The Cambridge History Of Political Thought 1450-1700

THE CAMBRIDGE OF P O L I T I C A L HISTORY THOUGHT 1450-1700 Cambridge Histories Online © Cambridge University Pre...

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THE

CAMBRIDGE

OF P O L I T I C A L

HISTORY

THOUGHT

1450-1700

Cambridge Histories Online © Cambridge University Press, 2008

Cambridge Histories Online © Cambridge University Press, 2008

THE CAMBRIDGE H I S T O R Y OF POLITICAL THOUGHT 1450-1700 EDITED

J.H.

BY

BURNS

Professor Emeritus of the History of Political Thought, University of London WITH

THE

MARK

ASSISTANCE

OF

GOLDIE

Lecturer in History and Fellow of Churchill College, Cambridge

CAMBRIDGE UNIVERSITY PRESS

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B u r n s , J. H . ( J a m e s H e n d e r s o n ) , 1921 — T h e C a m b r i d g e history o f political thought, 1450-1700. i . Europe. Politics. T h e o r i e s , history i.Title

11. Goldie,Mark 320'.094

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cataloguing

in publication

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T h e C a m b r i d g e history of political thought, i 4 5 0 - i 7 0 0 e d i t e d b y J. H . B u r n s w i t h t h e a s s i s t a n c e o f M a r k p.

cm.

Includes bibliographical ISBN 1. P o l i t i c a l s c i e n c e — H i s t o r y .

references.

0-52i-247i6-0

1. B u r n s , J . H . ( J a m e s H e n d e r s o n ) JA81.C283 r

/

Goldie.

320 .09-dc20

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ISBN 0 5 2 i 2 4 7 i 6 0 ISBN 0 5 2 i 4 7 7 7 2 7

1 1 .Goldie, Mark.

1990 CIP

hardback paperback

Cambridge Histories Online © Cambridge University Press, 2008

Contents

Contributors

page

Acknowledgements

x xii

Introduction

i

J.H. BURNS

I 1

Renaissance and Counter-Renaissance H u m a n i s m and political theory

9

ANTHONY GRAFTON

i ii

and philologists

9 10

iii

H u m a n i s m in the service o f the city-state

12

iv

' C i v i c h u m a n i s m ' a n d its rivals

15

T h e t o p i c s o f h u m a n i s t p o l i t i c a l discourse

20

v 2

S c h o l a r s h i p a n d p o w e r : a p r o b l e m a t i c partnership Dictatores

Italian p o l i t i c a l t h o u g h t , 1450—1530

30

NICOLAI RUBINSTEIN

i ii iii 3

M o n a r c h i e s a n d r e p u b l i c s , 1450—1500

30

A n e w epoch: Machiavelli

41

Florence and Venice: Guicciardini

58

Law

66

DONALD R. KELLEY

i

T h e old legal heritage

66

C i v i l science in t h e R e n a i s s a n c e

70

iii

H u m a n i s m and jurisprudence

75

iv

T h e French school

78

Rivals to R o m a n i s m

81

C u s t o m a n d t h e l a w o f nations

84

ii

v vi vii

Rational jurisprudence

86

viii

T h e n e w legal heritage

90

v

Cambridge Histories Online © Cambridge University Press, 2008

Contents 4

Transalpine humanism BRENDAN

i ii

Renaissance eloquence: rhetoric and philosophy T h e renaissance o f politics

95 98

iii

Humanitas

iv

Political W i s d o m

106

Humanitas

114

v 5

95

BRADSHAW

a n d t h e imago Dei and the Christian c o m m o n w e a l t h

Scholasticism: survival and revival

101

132

J.H. BURNS

i ii iii

II 6

S c h o o l m e n a n d schools o f t h o u g h t

135

L o r d s h i p , rights, a n d s o c i e t y

140

C o n c i l i a r i s t s a n d papalists

146

Religion, civil government, and the debate on constitutions Christian obedience and authority, 1520-1550

159

FRANCIS OAKLEY

i ii iii

T h e o l o g i c a l a n d canonistic f u n d a m e n t a l s

160

Luther and early G e r m a n Lutheranism

16

T h e L u t h e r a n diaspora a n d the e m e r g e n c e o f the r o y a l supremacy

iv

tradition

182

T h e radicals o f t h e R e f o r m a t i o n

187

C a l v i n i s m a n d resistance t h e o r y , 1550—1580

193

v 7

175

Z w i n g l i , B u c e r , t h e y o u n g C a l v i n , a n d the R e f o r m e d

ROBERT M. KINGDON

i ii

194 200

iii

T h e C a l v i n i s t inheritance f r o m the S c h m a l k a l d i c w a r : P e t e r Martyr Vermigli

203

iv

T h e H u g u e n o t s and the French wars o f religion

206

T h e d e p o s i t i o n o f M a r y Stuart

214

v 8

K n o x a n d t h e a n t i - M a r i a n resistance T h e d e v e l o p m e n t o f L u t h e r a n resistance t h e o r y

C a t h o l i c resistance t h e o r y , U l t r a m o n t a n i s m , a n d the r o y a l i s t r e sponse, 1 5 8 0 - 1 6 2 0

219

J.H.M. SALMON

i ii iii iv v vi vii

Patterns o f c o n t r o v e r s y

219

T h e Catholic League

221

Gallicanism

231

royalism

233

Jesuits a n d U l t r a m o n t a n e s

Politique

236

English Catholicism

241

T h e defence o f A n g l i c a n i s m

244

vi

Cambridge Histories Online © Cambridge University Press, 2008

Contents

viii

J a m e s I, t h e o a t h o f a l l e g i a n c e , t h e V e n e t i a n interdict, a n d the reappearance o f French U l t r a m o n t a n i s m

Constitutionalism

247 254

HOWELL A. LLOYD

i

T h e idea o f c o n s t i t u t i o n a l i s m

254

T h e origins and end o f political society

258

iii

C u s t o m a n d t h e rule o f l a w

264

iv

M i x e d constitution or m i x e d g o v e r n m e n t

273 279

ii

v vi vii viii

England: H o o k e r France: C o q u i l l e T h e Netherlands: Althusius

283 287

Spain: Suârez

292

S o v e r e i g n t y a n d the m i x e d c o n s t i t u t i o n : B o d i n a n d his critics

298

JULIAN H. FRANKLIN

i ii iii

B o d i n ' s d o c t r i n e a n d its l i m i t a t i o n s

299

T h e q u e s t i o n o f s o v e r e i g n t y in t h e c o n s t i t u t i o n o f the G e r man Empire

309

Besold and the m i x e d constitution

323

Utopianism

329

J.C. DAVIS

i ii

III 12

C h r i s t i a n social m o r a l i t y a n d t h e best state

329

H o l y e x p e r i m e n t s in a fallen w o r l d

335

Absolutism and revolution in the seventeenth century Absolutism and royalism

347

J.P. SOMMERVILLE

i

T h e meaning o f absolutism

347

ii

Sovereignty and monarchy

350

iii

Patriarchalism

358

iv

Contract, conquest, and usurpation

361

v 13

T h e limits o f a b s o l u t i s m

367

E n g l a n d : ancient c o n s t i t u t i o n a n d c o m m o n l a w

374

CORINNE C. WESTON

i ii iii 14

T h e c o m m o n l a w m i n d a n d t h e ancient c o n s t i t u t i o n

375

' C o o r d i n a t i o n ' a n d t h e r o y a l i s t response

396

H i s t o r y a n d s o v e r e i g n t y in t h e E x c l u s i o n Crisis

404

Leveller d e m o c r a c y and the Puritan R e v o l u t i o n

412

DAVID W O O T T O N

i ii

T h e Leveller m o v e m e n t

412

Puritans and revolutionaries

416

vii

Cambridge Histories Online © Cambridge University Press, 2008

Contents

15

iii

T h e L e v e l l e r s a n d the c o n s t i t u t i o n

426

iv

Free g r a c e a n d t o l e r a t i o n

434

English republicanism

443

BLAIR WORDEN

i

S o u r c e s a n d resources

443

ii

Writers and writings

449

T h e Machiavellian tradition

464

iii

IV 16

The end of Aristotelianism T a c i t i s m , s c e p t i c i s m , a n d reason o f state

479

PETER BURKE

i ii iii 17

R e a s o n o f state

479

Tacitism

48

S t o i c s a n d sceptics

491

Grotius and Selden

499

RICHARD TUCK

i

499

D u t c h r e p u b l i c a n i s m a n d t h e transition t o n a t u r a l l a w

503

iii

T h e A r m i n i a n s and the p r o b l e m o f religious toleration

509

iv

G r o t i u s ' Of the Law of War and Peace

514

Selden

522

v 18

T h e c o n t e x t o f G r o t i u s ' career

ii

H o b b e s and Spinoza

530

NOEL MALCOLM

V 19

i

Hobbes

530

ii

Spinoza

545

Natural law and utility Pufendorf

561

ALFRED DUFOUR

i ii

563 567

iii

T h e f o u n d a t i o n s o f the. state

570

iv

T h e doctrine o f sovereignty

574

T h e state in h i s t o r y

579

T h e reception o f Hobbes

589

v 20

T h e p h i l o s o p h i c a l bases o f P u f e n d o r f ' s t h o u g h t T h e b a c k g r o u n d o f l a w : anti-realism a n d v o l u n t a r i s m

MARK GOLDIE

i

T h e p o l e m i c against H o b b e s : t h e t h e o l o g i c a l p r e m i s e s

589

S o v e r e i g n t y and constitutionalism

594

iii

C o n t r a c t a n d t h e limits o f o b l i g a t i o n

602

iv

E t h i c a l r e l a t i v i s m a n d sceptical politics

606

Erastianism, t o l e r a t i o n , a n d t h e p o w e r o f t h e c h u r c h

6 1 0s

ii

v

vin

Cambridge Histories Online © Cambridge University Press, 2008

Contents

21

Locke

616

JAMES TULLY

i ii

Government

616

Political p o w e r

619

iii

T h e origin o f political p o w e r

622

iv

P u b l i c g o o d a n d natural l a w

625

M u t u a l subjection

629

vi

v

Revolution

63 5

vii

Toleration

642

Conclusion

653

J.H. BURNS

Biographies

657

Bibliography

703

General w o r k s

704

I

R e n a i s s a n c e and C o u n t e r - R e n a i s s a n c e

706

II

R e l i g i o n , c i v i l g o v e r n m e n t , and the d e b a t e o n constitutions

724

III

A b s o l u t i s m and r e v o l u t i o n in the s e v e n t e e n t h c e n t u r y

744

IV

T h e end o f Aristotelianism

758

V

N a t u r a l l a w and utility

765

Index of subjects

789

IX

Cambridge Histories Online © Cambridge University Press, 2008

Contributors

BRENDAN

BRADSHAW

Lecturer in History PETER

and Fellow of Queens'

College,

Cambridge

BURKE

Reader in Cultural

History

and Fellow of Emmanuel

College,

Cambridge

J.H.BURNS Professor Emeritus of the History

of Political

Thought,

University

of London

J.C. D A V I S Professor of English History, East

School of English and American

Studies,

Univerity

of

Anglia

ALFRED

DUFOUR

Professor of Legal History,

Department

of Legal History,

Faculty of Law,

of Geneva J U L I A N H. F R A N K L I N Professor of Political

Science, Columbia

University,

M A R K GOLDIE Lecturer in History and Fellow of Churchill ANTHONY

College,

New

York

Cambridge

GRAFTON

Professor of History,

Princeton

University

D O N A L D R. KELLEY Professor of History,

University

of Rochester

R O B E R T M. KINGDON Professor of History,

University

of Wisconsin,

Madison

H O W E L L A. L L O Y D Professor of History,

University

of Hull x

Cambridge Histories Online © Cambridge University Press, 2008

University

Contributors

NOEL

MALCOLM

Former Fellow in History FRANCIS

and English,

Gonville

and Caius College,

Cambridge

OAKLEY

President Emeritus and Edward Dorr Griffin Professor of the History of Ideas,

Williams

College, Massachusetts NICOLAI RUBINSTEIN Professor Emeritus of History,

Westfield

College,

London

J.H.M. S A L M O N Professor Emeritus of History, Brun Mawr College,

Pennsylvania

J.P. S O M M E R V I L L E Associate Professor of History, RICHARD

University

of Wisconsin,

Madison

TUCK

Lecturer in History

and Fellow of fesus

College,

Cambridge

JAMES T U L L Y Associate

Professor of Political

Science and Philosophy,

McGill

University,

Montreal

C O R I N N E C. W E S T O N Professor Emeritus of History,

Herbert H. Lehman

College,

The City

University

New York DAVID W O O T T O N Professor of Politics, Department of Government,

Brunei University,

BLAIR W O R D E N Lecturer in History and Fellow of St Edmund Hall,

London

Oxford

XI

Cambridge Histories Online © Cambridge University Press, 2008

of

Acknowledgements

M y greatest debt as general editor of this volume is to Mark Goldie for the invaluable contribution he has made since January 1 9 8 7 to every aspect of the editorial work. I must also thank Quentin Skinner and Richard Tuck for placing their expert knowledge and their time at my disposal when the book was first being planned. Mark Goldie and I wish to thank Richard Fisher for his unfailing help and support at the Cambridge University Press and Linda Randall for her patient and painstaking copy-editing. Our thanks are due also to Jane Palmer for prodigious typing and manifold secretarial support. Since this volume marks the end of my editorial contribution to what has grown into a continuing series, I take the opportunity of belatedly expressing my gratitude to those who helped me in many ways in the editing of The Cambridge

History

of Medieval

Political

Thought.

I owe a very

special debt to Patricia Williams, then of the Press, for her enthusiastic furthering of the original one-volume project; to Jeremy Mynott for continuing support; once again to Richard Fisher, and to his predecessors Stephen Barr and Jonathan Sinclair-Wilson; to Linda Randall for bearing a particularly burdensome load of copy-editing; and to two contributors whom it is not invidious to single out here — David Luscombe, who sustained me with his advice and reassurance in so many ways; and Joe Canning who came promptly and generously to the rescue at a moment of crisis. J.H.B.

xn

Cambridge Histories Online © Cambridge University Press, 2008

Introduction

The political ideas examined in this volume were generated in a period that requires its historians, in an especially marked degree, to 'look before and after'. A watershed between 'medieval' and 'modern' European history has conventionally been located in the late fifteenth century and the beginning o f the sixteenth — the period which saw the final eclipse o f the Byzantine Empire, the flowering o f the humanist Renaissance, and the first stages o f the Protestant Reformation. Yet the society o f the three centuries following that period has increasingly been represented as a 'world we have lost' — a world essentially pre-modern because pre-industrial (at least in terms o f what Marx called 'machinofacture') and pre-capitalist (if by 'capitalist' we mean to refer to a society having an urban proletariat as a major characteristic). Demographically, the population explosion accom panying the social transformations o f the eighteenth and nineteenth centuries brought into being mass societies o f an unprecedented kind. In political terms, it is true, there may seem to be less reason to question the modernity o f the period here under scrutiny. There is a genuine sense in which the 'sovereign state' — even i f its lineaments are more clearly discernible in medieval Europe than has sometimes been supposed — took firmer shape in and after the sixteenth century, Yet even here the need to distinguish an 'early modern' from a later phase is evident. The European nation-state o f the nineteenth and twentieth centuries is a very different entity from the typically dynastic states (or the surviving republics) o f that Ancien Regime which was shaped in the period with which we are here concerned. The modern democratic state, the welfare state, the dirigiste or corporatist state, the bureaucratic state, the state organised around political parties (or around a single party) — all these, in forms we could readily recognise, are developments o f the past 200 years. The monarchies which dominated the political scene for three centuries or so before the French 1

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Introduction

Revolution — whether they were absolute or limited monarchies — belonged to a quite different world. The republics o f the sixteenth and seventeenth centuries, even if they might ascribe sovereignty to the populus, were hardly 'people's republics' or 'democracies' as we understand those terms. This is not, o f course, to imply that the world o f early modern Europe was merely a world o f medieval survivals, of a continuity with the middle ages not to be broken significantly within our period. Decisive changes had taken place: there are features in early modern society and institutions that can and must be differentiated from what had gone before as well as from what was to follow. Yet it seems equally clear that, as the differentiation between 'early modern' and 'later modern' has sharpened, that between 'early modern' and 'medieval' has softened. This is manifestly a point to be considered in depth in the book as a whole; but it is one worth exemplifying and exploring briefly even in this introductory essay. An illustrative area o f particular importance is that o f ecclesiastical polity. In the traditional view, this was perhaps the clearest exemplification o f 'the end o f the middle ages'. The collapse o f the universal authority o f the papacy marked the demise o f 'medieval Christendom'. The respublica Christiana, insofar as it took visible shape, did so, from the sixteenth century onwards, in the form of'national churches'. Here above all, it seemed, the sovereignty o f the new, modern state was asserted and vindicted. Even in Catholic Europe — in Spain, in France, in the Habsburg Empire — this pattern prevailed. N o w it cannot be doubted that this view, so far as it goes, is substantially correct; but how far does it in fact take us towards an understanding o f the ecclesiastical polity o f early modern Europe? If we think o f the modern state as 'secular', as accepting (or even insisting upon) a separation o f church and state, then we are again bound to question the modernity o f early modern political society and o f much of its political thinking. The states o f Europe in the sixteenth and seventeenth centuries, whatever else they may have been were not secular states. They were, or at least they strove strenuously to be, confessional states, in which member ship o f the political community was inseparable from membership o f a coextenive ecclesial community. The respublica Christiana survived vigorously, however much the doctrinal ground o f its being might be disputed. Again, the notion of a christianitas of which the universality, even the unity, was compatible with political diversity and with the exercise o f substantial control o f the church by the state was not simply a development o f post-Reformation times. Already in the later middle ages means had 2

Cambridge Histories Online © Cambridge University Press, 2008

Introduction

been found o f reconciling papal authority with the 'free empire' o f temporal (but by no means secular) rulers. Here as elsewhere the period from the late fifteenth century to the end o f the seventeenth saw neither innovation nor even the unfolding o f what had been implicit or latent, but rather the fuller and faster development o f tendencies already explicitly present and manifest in late medieval society. These and other related themes are here illuminated not only in those chapters (6—8 especially) dealing directly with ecclesiological issues, but also in those which explore the impact o f law and legal concepts on political ideas (e.g. chapters 3 and 10).

Complexity and ambiguity are likewise to be found in intellectual and cultural history. The great movements o f the Renaissance and the Reformation did indeed mark significant new departures. That is why those movements dominate the early chapters o f the book. Yet neither humanism nor Protestantism — to say nothing o f the continuing vitality o f other intellectual and spiritual traditions — retains in recent historiography quite the appearance it formerly had. This is in part a result o f lengthening the chronological perspectives, o f recognising the significance o f what might be called proto-humanism and o f earlier instances o f the genus 'renaissance'; or o f acknowledging that the Reformation and the CounterReformation o f the sixteenth century are themselves part of a much longer 'age o f reform' in western Christendom (Ozment 1980; Oakley 1979). It is also a matter o f perceiving greater complexity in the relationships between what might otherwise be seen as antithetical groups or movements. Intellectual activity did not, could not, take place in rigidly separated channels. One man in his time could play different parts as circumstances required: Giovanni Francesco Poggio, son o f the great Poggio Bracciolini, could write both a humanist's discourse on princely government (Poggio 1504) and a scholastic jurist's treatise on papal and conciliar authority (Poggio 1512?). Again, as we ourselves move further away from the educational dominance o f the classical tradition and from the influence o f religious concepts derived from both Catholicism and Protestantism in their sixteenth-century forms, it becomes harder to accept the modernity o f the principles and values embodied in those modes o f thought and teaching. When, almost at the end o f the volume we find (in chapters 18-20) the stubborn persistence o f theological issues that had preoccupied late medieval scholastics, it may yet again seem that distinctive modernity has been submerged. Yet there are after all intellectual criteria o f that 3

Cambridge Histories Online © Cambridge University Press, 2008

Introduction modernity which do come to us from the early modern period, and perhaps especially from the seventeenth century. The philosophy and what we would call the science o f that seminal era, whatever indebtedness there may have been to the insights o f late scholasticism, do convey the sense o f novelty expressed in Bacon's Great Instauration. Neither the rationalism nor the empiricism o f the age o f Descartes and Hobbes, o f Locke and Leibniz, has proved definitive; but both may be seen as characteristic o f a recognisably modern way o f thinking. Nonetheless such a theme or thesis — classically expounded in Alfred North Whitehead's Science and the Modern World (1926) — requires cautious scrutiny: we need, for instance, to remind ourselves that the thought-world o f an Isaac Newton is remote in many ways from our concerns and our assumptions. As ever, there is no evading the historian's responsibility for reading the evidence as far as possible in its own terms. Such a reading may lead us to adopt and transplant Galileo's eppur si muove: the world o f ideas, like the world o f institutions and social relationships, moved decisively in the period with which we are concerned. Nor is the historical importance o f that movement in any way lessened by the recognition that the process has continued, perhaps even more decisively, in the transformation o f the world we have lost into the world in which we find ourselves. The history o f political thought in early modern Europe could obviously be written in different ways. Mere chronicling is perhaps the only historiographical mode ruled out by the nature o f the subject. Some chronological ordering there must indeed be; and the division o f this volume into five parts reflects that need. Such dividing-lines cannot, however, be rigid. Plainly the concerns o f Renaissance thinkers continued into the period o f Reformation and Counter-Reformation when the ideas analysed in Part II were generated. And a theme like the constitutionalism discussed in chapter 9, besides projecting long shadows beyond the notional terminal date o f the chapter in the early seventeenth century, demands that the source o f the light casting those shadows be sought in the period mainly examined in Part I. Late scholastic thinkers such as John Mair and Jacques Almain, writing in the early decades o f the sixteenth century, were to be significant for some ways o f thinking throughout the seventeenth. Recurrences and overlaps, then, are both unavoidable and deliberate. Chronological sequence can provide no more than a broad flexible framework for the investigation. Within that framework, again, different schemes o f subdivision suggest themselves. The thematic scheme adopted below need not be defended 4

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Introduction here: it must be judged by its fruits in historical elucidation o f an intricate and complex mass o f material. At the same time there are at least two other options calling for preliminary comment, both because o f their own claims and because each has in fact had a certain modifying effect on the structure the book has aquired between planning and completion. There is, first, the possibility o f treating the history o f political ideas as the history o f modern Europe in general is often treated; as a series o f inter related but discrete national histories. J . W . Allen's History of Political Thought in the Sixteenth Century largely exemplified this approach; and it is noteworthy that when Allen carried his investigation into the next century he did not undertake to look further afield than English political thought (Allen 1928, 1938). N o w it is indeed quite clear that, in comparison with the middle ages, there is much greater national diversity in political discourse from the mid-fifteenth century onwards. T o ignore this, or even to reduce it (as, in general, has been done here) to a secondary role in determining the arrangement o f the material, carries the risk that important aspects o f the subject will be left in shadow. It may be the case here, for instance, that — despite the recurrence o f a thinker like Suarez in several chapters — Spanish political thought, in a period when Spain was a dominant European power, has received less than due attention. Yet a case can be made for accepting this kind o f possible lack o f proportion as the necessary price for sustaining a more illuminating approach to the subject as a whole. The transformation as well as the survival o f the respublica Christiana in this period has already been noted. W e now need to consider the emergence o f the notion o f a 'republic o f letters'. This was surely not the least important contribution made by humanism to European intellectual life; and for all the diversity in experience and in the articulation o f that experience in political reflection and analysis, the sense o f a 'common market' in ideas persists. George Buchanan's De jure regni apud Scotos was at one and the same time a response to a crisis in one small realm and part o f a European debate on monarchy engaging general concern across national frontiers. Its author's correspondence with other humanists graphically illustrates the kind o f intellectual community within which that debate took place. It is with European political thought in this sense that the chapters below seek to deal. D o chapters 13, 14, and 15 stand out as exceptions to this norm? Is there even some reflection here o f an 'anglocentricity' only too likely to be found in a history published in English and written almost wholly by British and 5

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Introduction North American scholars? Not necessarily so. For one thing, these chapters are grouped in a part o f the book which opens with a chapter bringing out very clearly the affinities between English and French conceptions o f absolute monarchy and exemplifying the tendency in recent historio graphy to soften the sharp contrast conventionally made between England and continental Europe in such contexts. And, to the extent that there is then a considerable concentration on the importance o f English experience, this is by no means a mere manifestation o f intellectual chauvinism. There was, it is true, conflict and debate elsewhere in Europe in the early and middle years o f the seventeenth century — perhaps even a 'general crisis' o f authority across the entire continent. Yet the British and particularly the English aspect o f that crisis threw issues into uniquely sharp relief and generated an unrivalled wealth o f ideological dialectic. Specifically English the ideas — or at least their expression — may be in many instances; their historical significance nonetheless transcends such limitations. As it happens, two English thinkers who do not receive attention mainly in the chapters just referred to illustrate the second possible approach to the subject which, while not predominant has had its influence here. Hobbes and Locke would be universally recognised as major intellectual figures; and here, like Pufendorf, Spinoza, Grotius, Bodin, Machiavelli, these thinkers have chapters or substantial parts o f chapters devoted to their ideas. There is neither space nor need here to rehearse the now well-worn theme that the history o f political thought is at best imperfetly written in terms o f a succession of'great thinkers'. And yet, however one conceives the nature o f that history, the fact remains that figures emerge every now and then — and they were perhaps especially numerous in our period — who demand sustained analysis and who cannot, without distortion, simply be 'reduced to the ranks'. A balance must be struck between recognising this and responding to the demand o f other, lesser voices to be heard. I f there is dissonance as well as counterpoint (and sometimes harmony) in the composition, it must be hoped that such a result is inseparable from the nature o f the subject.

6

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I Renaissance and Counter-Renaissance

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I

Humanism and political theory ANTHONY

i

GRAFTON

Scholarship and power: a problematic partnership

In 1599 the Habsburg archduke and his Infanta came to the university o f Louvain to hear a humanist teach. The outstanding local scholar Justus Lipsius proved more than equal to this challenging task, as he explained to a friend in a characteristically immodest letter: I had to perform in the School of Theology, after what they call a theological 'Actus'. So I stood up and began to speak . . . after an extemporaneous introduction I explained a short text from Seneca's De dementia, beginning: 'The prince's greatness is firmly founded if all know that he is at once above them and on their side e t c ' I explained the text from, Seneca, I say, and in it the task of princes, and finally I added a reflection on the happy result that would stem from this, that is that we Belgians would feel towards them the benevolence and loyalty we had always felt for our rulers. That's it. They heard me with such sympathy that the prince never took his eyes off me; he inclined towards me not just mentally but bodily. So did the other nobles present, and they in turn received the favour of the ambassador of the king of Spain, a scholar, and one who favours me, as you should know. The Infanta was there too. I leave you to imagine what - or if - she understood. Now you know what went on here — the unusual, or possibly unique, event of a female prince coming to these exercises. I, and other prudent men, may begin to cherish better hopes for the republic, since the princes are openly beginning to show themselves favourably disposed to their Belgians and their ways. (Lipsius 1637, 11.454) The lesson could hardly have gone better. Lipsius' lecture to his Habsburg patrons encapsulates in one exemplary case the humanist enterprise in political thought. W e encounter a scholar firmly committed to the belief that practical instruction for the most urgent tasks in political and social life can best be found in Greek and R o m a n texts. W e see him extract from one o f these a message not particularly R o m a n but directly germane to the Habsburgs, whose refusal to learn or even 9

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accommodate themselves to the customs o f their Burgundian subjects had helped to provoke the Dutch Revolt. W e see his audience nod eagerly in agreement even when they do not understand what he is saying. In short, we see the ancients made to live again as political counsellors. And yet, in this as in other instances, the more closely we scrutinise the exercise, the more it puzzles us. Is this the limited free speech allowed to a famous and valued counsellor, an independent intellectual challenging the authorities? Or is it a prearranged public ritual o f conciliation between Habsburgs and Spanish officials on the one hand and Belgian dignitaries on the other? Did Lipsius mean — or expect — his advice to carry weight? Did Lipsius — until 1591 the leading scholar in the Protestant provinces o f the Netherlands, an intellectual architect o f their successful military resistance to Spain, a designer o f the new model army led with such brilliance by his pupil Maurice o f Nassau — really think that a Habsburg would come to hear about Seneca, attain enlightenment, and put an end to the revolt? The letter seems rich and vivid, yet the images it calls up are soon dispelled, and we are left, much like Alice, able to see the humanist's smile o f satisfaction but not to grasp his meaning in a way that satisfies us. The same interplay o f fascination and frustration recurs when we trace the brand o f scholarship Lipsius represents back to its Italian roots. T o be sure, not every humanist and every fact proves difficult to place or assess. W e know where the movement started. W e can trace its spread and watch it take on institutional form. But we must remember the element o f the mysterious in the humanists' enterprise as we try to grasp their distinctive forms o f political discourse and teaching.

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Dictatores and philologists

W e begin in the thirteenth century, with the growth o f two parallel and related intellectual traditions in the Italian city-states. On the one hand, dictatores sprang up in every city and in many universities. These men, neither lawyers nor orators in the modern sense, performed a variety o f necessary public functions, commercial, administrative, and legal. They developed an elaborate and stylised method for writing, in epistolary form, about matters o f private and public interest. They kept formulary books o f model letters and contracts, boiler-plate which could be copied or adapted to serve the needs o f a businessman writing to a partner or a government clerk keeping records. And they soon came to play an active role in the 10

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Humanism and political theory small permanent governments that the Italian city-states developed to collect taxes and administer justice (Witt 1982). On the other hand, intellectuals simultaneously began to form small cohesive groups and create new forms o f literature and scholarship in the same cities. These men came from a variety o f social orders and practised a variety o f professions. Some, like the Paduan lawyer Lovato Lovati, were laymen; others, like the Mansionarius o f the Verona cathedral, Giovanni de Matociis, were priests. But all shared a dedication to seeking out unknown or little-known classical texts. All tried to sort out the historical and philological problems the new texts posed (like the relation between the Pliny o f the Natural History and the Pliny o f the Letters, the nephew o f the former, which Giovanni de Matociis explained). All tried to decode and master the most difficult and novel formal features that the texts presented (like the metres o f Senecan tragedy, which Lovati became the first man in centuries to try seriously to scan). And many wrote substantial works o f their own, ranging from derivative and traditional compendia to innova tive histories and poems, in which they put their classical discoveries to work (Weiss 1947; Holmes 1986). The two groups were not cut off from one another. Some early humanists worked with or as dictatores in public life. Some o f the dictatores found the direct study o f the R o m a n law and other classics to be to their professional advantage. Albertino Mussato, the best known o f these early humanists, even tried to use the most advanced scholarship o f his world to practical political effect. He not only mastered Seneca's metres but used them to write a Senecan tragedy on the tyranny o f Ezzelino da R o m a n o . He hoped that this powerful composition might dissuade his fellow citizens from giving in to the tyrannical della Scala. Cola di Rienzo similarly used the lex regia to persuade his fellow Romans to restore their republic to greatness. When the dictatores and early humanists addressed themselves to political issues, they drew on Cicero and Seneca to dramatise the need for concord and pursuit o f a common good; and to that extent a pre-humanist political discourse came into being, which adumbrated many features o f later humanist political writing. It did not, however, annex the advanced philology o f its time; the scholarship o f the humanists remained a private preoccupation o f scholars and writers, throughout the fourteenth century. The most original and learned scholar o f the time, Petrarch, studied R o m a n inscriptions and Livy's history with great intensity. He loved the brilliant early centuries o f R o m a n history, which he saw as the culmination 11

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o f human accomplishment, far more than the more recent but more obscure Christian centuries. He chose his favourite books — which he carefully listed at an early date — almost exclusively from R o m a n literature. And he modelled his literary career on those o f Virgil and Ovid as he knew them from their works and the ancient commentaries. But he did not make any effort to recreate in his own world the R o m a n ethos o f active life in the service o f the state — the ethos that Virgil celebrated and Cicero practised. He often adverted to the superiority o f solitary contemplation to impure political action. He showed no special affection for the republic o f Florence from which his family came. And when he learned from the Letters to Atticus that his beloved Cicero, his favourite philosopher, had also been an engage politician, he reacted not with admiration but with horror. Cicero's involvement in earthly politics seemed to him a terrible error — one that compromised Cicero's standing as a moral philosopher and revealed undreamt-of corruption in the classic heart o f pagan culture: 'How much better it would have been for a philosopher to grow old in the quiet countryside . . . Farewell, my Cicero, from the land o f the living . . . in the year 1345 from the birth o f the God you did not know' (Familiares 24.3). The most advanced classical scholarship o f the fourteenth century, in other words, served literary and philosophical rather than practical and political ends (Mommsen 1959; Baron 1988).

iii

Humanism in the service o f the city-state

Between 1390 and 1420, to be sure, the situation changed. Coluccio Salutati, a provincial notary who became the chancellor o f Florence, finally fused humanistic scholarship and political action. As a humanist he avidly collected classical manuscripts, corrected texts, and supported young scholars like Poggio Bracciolini and Leonardo Bruni who also sought out, copied, and made available new classical texts. As a statesman he employed his new information and ideas on behalf o f Florence. Defending her against the aggressive and effective ruler o f Milan, Giangaleazzo Visconti, he articulated a new ideology o f republicanism to counter Milanese propa ganda and rally other cities to Florence. He presented Florence as the true heir o f R o m a n liberty, founded by R o m a n citizens and therefore directly descended fom the republic (Garin 1952, pp. 20, 32 Witt 1983). Bruni, later to become chancellor o f the republic in his own right, went much further along the same road. His commitment to republicanism led him to reassess all values, including his own strict early classicism. He 12

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Humanism and political theory defended Dante, for example, as an exemplary active citizen (where Petrarch had remained aloof and uninvolved); more remarkably still, he defended Dante's use o f the vernacular, arguing passionately that 'each language has its own perfection and its own sound, and its polished and learned diction', so that Italian as well as Latin poetry could make the basis o f a valid claim to eternal fame (Griffiths et al. 1987, p. 93). He developed an acute and robust theory o f history, one both coherent in its explanation o f events and original in its refusal to follow traditional ways o f ordering the past. Bruni held that talent, in politics and literature alike, could produce great achievements only in a society that rewarded virtue. This, R o m e had ceased to do by the time it became an empire. The emperors, in their violence and suspicion, decimated the R o m a n people whom they should have protected. R o m e itself, like the great trees that 'overshadow small plants that arise in their vicinity and keep them stunted', had crushed the old cities o f Etruria (Watkins 1978, p. 33). History written by Bruni did not apply the old strait-jacket o f the four Monarchies to the chaos o f local events; it did not even magnify R o m e ' s greatness. Rather, it celebrated what had always seemed the most tragic o f all events, the fall o f R o m e , as the precondition o f the rise o f Italy's medieval free cities — above all the greatest o f them, Florence. And Bruni did not hesitate to argue, in terms and forms borrowed from Thucydides and other ancient celebrators o f the greatness o f republican Athens, that the liberty and free access to office that Florentines enjoyed were a sufficient explanation o f their unique insti tutions and achievements (Baron 1988, 1, pp. 24-93). N o wonder that the creator o f this 'Copernican Revolution in historiography', as Baron has called it, became the best-paid official and one o f the best-known citizens o f Florence, as his splendid tomb still shows. From the 1420s, then, humanism had shown that it could forge a civic ideology that crystallised the aspirations o f leading citizens and evoked the loyalty o f ordinary men and allies. It could produce effective propaganda in the modest form o f broadsides and letters or the far larger and more intellectually ambitious one o f Bruni's History. It naturally won the interest and support o f established members o f the social and political elites throughout Italy. In Florence and Venice, for example, members o f the ruling order began in the first decades o f the fifteenth century to have their sons educated classically. In Florence those present at the committee meetings o f influential citizens that took place at every time o f crisis began to cite classical examples as sources o f valid political precept and example (Brucker 1977; King 1986). And they began to see themselves as the 13

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humanists portrayed them: as the heirs o f R o m e and the defenders o f republican liberty, stability, and law. At the same time, however, the Visconti rulers o f Milan, the Aragonese rulers o f Naples and the popes in R o m e also began to hire humanists to legitimate their very different political goals and achievements. Despots and popes won credit above all for support o f the arts, but they also often appeared in the texts written about them as the ideal defenders o f a classically defined common good (Bentley 1987). Humanism, in short, had established itself as vital to the public justification o f political power: it could legitimate or attack a regime, defend a war, instil patriotism, and offer advice in time o f crisis. As humanist skills became fashionable in government offices and princely courts, the humanists themselves began to demand — and to achieve — the creation o f a new network o f institutions. They founded schools where their new literary skills could be learned through direct encounters with the classical texts. They revived the classical notion, forged in Athens and re-forged in republican R o m e , o f the vir bonus dicendi peritus — 'the good man skilled in public speaking' — as the ideal product o f education (Kristeller 1979; Gray 1963). They forcefully pointed out that the normal educational systems o f their time - the innovative, popular, and intellectually aggressive Italian university faculties o f medicine and law, with their emphasis on technical skills and their determined modernisation o f classical texts to serve current needs — could not produce morally reliable generalists able to speak effectively in public, in assembly, court, or diplomatic delegation, on any subject. And they urged that close study o f rhetoric would provide the skills, and close study o f history and moral philosophy would develop the moral strength, that would enable active members o f the elite to govern themselves, their families, and their states 'far more effectively than the pettifoggers and shysters o f our day' — as Lodovico Carbone put it in the 1450s, when setting out to teach R o m a n history from Lucan and Valerius Maximus (Milliner 1899, pp. 88—9). The humanists never convinced all members o f the elite to accept the most ambitious planks in their programme. Teachers o f rhetoric and history never enjoyed salaries a third as large as those normally paid to lawyers, and a degree in law continued to seem desirable and attractive to thousands o f young members o f the patriciate (Grafton and Jardine 1986). Moreover, the rise o f new schools o f formal theology in Italy, which reached real prominence at the same period as the humanist schools, also offered a non-humanist path to power and activity in the one world-wide political organisation, the church. Bernardino o f Siena and Antonino o f 14

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theory

Florence were by no means the only influential Italians o f the mid-fifteenth century to follow this path to power and authority (Kristeller 1979; Seigel 1968). Yet in many respects the humanists did triumph. They transformed the tastes and sensibilities o f the elite. Classical texts written — after the 1470s printed - in the clear round script that the humanists revived from Carolingian manuscripts became the proper load for a patrician's shelves to bear. Young lords and merchant princes found themselves forced to study Latin texts, word by word, and to weave the fruits o f their reading into their own compositions. Ambrogio Traversari spoke with pleasure o f the sight o f the young Gonzaga prince and princess that he met in Mantua in 1435. The boy recited 200 verses o f his own composition as well as Virgil had recited Aeneid 6 to Augustus, while the girl, though only ten years old, wrote a finer Greek hand than many professional scholars (Traversari 1759, B k 1 5 , ep. 38) Ludovico Sforza o f Milan, trying to produce a gift worthy o f his formidable mother Bianca Maria, wrote out for her a neat fair copy o f his tutor's lectures on a treatise on rhetoric, the Ad Herennium, then thought to be by Cicero (Filelfo 1967). The humanists, in other words, did impart a new set o f skills and tastes to many members o f the political elite. Chanceries and courts across Italy participated in a common discourse and possessed a common set o f standards o f civility and elegance (Grafton and Jardine 1986).

iv

'Civic humanism' and its rivals

But did this revolution in the canons o f taste and the form o f public discourse also lead to revolutionary change in political thought? Here opinions differ sharply. Hans Baron, perhaps the most influential o f all Renaissance scholars in the last two generations, has argued that the Florentine humanists with whom we have become acquainted were the founders o f secular political thought and the modern republican tradition. Challenged by the Visconti, virtually bereft o f allies, Florence maintained itself against high odds as the champion o f liberty in Italy. When Giangaleazzo died in 1402 and the Milanese state lost cohesion - as the Italian despotates so often did when a ruler died - Florence triumphed, or at least survived. And this victory transformed the lives and ideas o f its citizens and intellectuals (Baron 1966). True, the great old chancellor Salutati never fully abandoned his loathing, founded on medieval beliefs, for the murderers o f Caesar. For all his interest in new texts and critical techniques, he retained his loyalty to a 15

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Trecento intellectual style, practising allegorical forms o f classical scholar ship that his younger contemporaries would abandon. Bruni by contrast changed radically. Before the crisis, so Baron argued, Bruni had written a clever dialogue in which his friend Niccolo Niccoli tore apart the unclassical styles and defective scholarship o f Florence's three great fourteenth-century writers, Petrarch, Dante, and Boccaccio. Bruni and Niccoli shared a classicism so rigorous that it led them to condemn all products o f modern culture as inferior - indeed, to assert, against Salutati, that modern men could write nothing o f value. After the crisis Bruni wrote a phosphorescent work In Praise of Florence, modelled on Aelius Aristides' ancient work in praise o f Athens. He lavishly praised the unique qualities o f Florence's republican government, mercantile wealth, physical beauty. He wrote a second dialogue to correct and complete the first, a palinode in which Niccoli refuted his own criticisms o f the fourteenth-century writers and praised modern Florence heartily — i f less powerfully than he had attacked it. And throughout his life, much o f it to be spent a chancellor, Bruni took every opportunity to praise Florentine civic virtues and values. He used powerful ancient models like Thucydides' funeral oration o f Pericles and Livy's history o f R o m e to brilliant effect (Baron 1966). Others went as far and further. Poggio produced a dialogue On Avarice in which one speaker explored the possibility that acquisitiveness o f the kind normal and necessary in the mercantile elite was not a sin but a vital civic virtue: T o r money is vital, like a set o f sinews that sustain the republic, and since the avaricious have so much o f it, they must be esteemed a foundation o f the state . . . Moreover they often add great adornments to the cities' (Garin, 1952, pp.270, 272). Palmieri wrote powerfully on the duties o f the good citizen as he had learnt them from the Florentines who came to political maturity in the Milanese crisis (Baron 1988,1, pp. 1 5 5 - 7 , 234—5). Even Machiavelli owed his insights into the nature o f republican ism very largely to his predecessors o f a century before in the Florentine chancery. For Baron, then, the Florentines were the first intellectuals to adopt an implicitly secular and civic view o f politics, and to use the tools o f classical rhetoric to give that view powerful expression in works on philosophy, literature, and history. More recent scholarship has modified Baron's theses in a variety o f ways. The crisis o f 1402 now seems less prominent than Baron thought it, and other ones, like the slightly later war with Ladislas o f Naples, seem more so. More important, the humanists seem less radical than Baron thought them. Closer examination o f the central texts Baron relied on - few o f which in 16

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Humanism and political theory fact explicitly concentrate on political questions — has revealed that none o f them yields the unequivocal messages Baron found in them except at the price o f over-interpretation and deliberate indifference to their genres. Bruni's two dialogues, for example, are clearly modelled on the dialogues o f Cicero, in which different positions were deliberately presented with comparable eloquence by one author, speaking through the mouths o f different characters (an exercise known as argument in utramque partem). The attack on and the defence o f Florence form part o f a single conception and were meant to be read together, whether they were written simultaneously or not (Quint 1985; Mortensen 1986). Poggio's dialogue On Avarice — to which we will return - offers its defence o f sin as a paradox, and winds up with a blistering attack on avarice by a powerful speaker (Oppelt 1977). Moreover, the timing o f events is less precise than Baron held, the connection between external circumstances and political ideas far less tight. It now seems likely, for example, that Bruni's dialogues were not only written to stand together but also at the same time the political crisis came before either was drafted, and presumably affected the attitudes o f the second no more than those o f the first. Above all, it has become clear that the complex o f ideas and values Baron labelled as 'civic humanism' did not even win the full assent o f the Florentine elite. Niccoli, for example, came from a Florentine family o f wealth and power and served the state in important public offices. Yet he never adopted the favourable view o f republican culture that Bruni espoused. Attacks on him circulated, ridiculing him for his obsession with collecting manuscripts and correcting their spelling and punctuation. Surely, the attackers suggested, to spend one's life worrying about whether a Latin word should be spelt nihil or nichil is to create much ado about nothing (Gombrich 1976). Thus one could belong to the Florentine elite and serve the Florentine state in the years o f crisis without ever necessarily fusing civic service with scholarly tastes. A commitment to civic service, moreover, did not necessarily imply a commitment to republican ideals. Bruni perhaps compromised his own adherence to republican government by committees chosen by lot when he stayed on as chancellor under Cosimo de' Medici, who took over and subverted the Florentine republic after 1433; more likely, as James Hankins has argued, he saw himself as committed not to republicanism as an ideology but to public service as a calling — to deploying his considerable skills loyally in the service o f the Florentine government (Hankins forthcoming; cf. Baron 1988, 1, p. 9). And Poggio, who succeeded Bruni as chancellor, seems to 17

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have been less a civic humanist than an old, loyal servant intent on getting through state meetings as soon as possible so he could return home for his dinner. If the civic humanists o f Florence had an ideology less clear and cohesive than Baron thought, moreover, they also had more rivals than he admitted through the fifteenth century. First, their friends and colleagues in princely states often held a diametrically opposed view o f the needs and nature o f society, arguing that a prince could uphold justice and maintain peace far more effectively than a republican government, with its liability to faction and corruption. I f Poggio thought that Scipio had been R o m e ' s greatest hero, Guarino o f Verona thought Caesar deserved that honour — and the two o f them fought out their rival conceptions in an elaborately staged debate (Oppelt 1974). Guarino could not have agreed more fully with the Florentines that the study o f the ancient world should produce moral, active citizens now. He too found inspiration in Cicero for these views. 'What better goal can there be for our thoughts and efforts [he asked at the start o f a course on Cicero De officiis] than the ability, precepts, and studies by^ which we may come to guide, order, and govern ourselves, our households and our political affairs?' (Sabbadini 1896, p. 182) Guarino too saw classical texts as the best available source o f advice for public life. But the rules he extracted from his texts were hardly civic in their implications. 'Whatever the ruler may decree', he explained to his son, 'must be approved o f with a calm mind and the appearance o f pleasure. For men who can do this are dear to rulers, make themselves and their relatives prosperous, and win high promotion' (Guarino 1 9 1 5 - 1 9 , m, p. 439)Similarly, but less cynically, the influential teacher Pier Paolo Vergerio combined a belief that 'that man excels all others in character and way o f life who devotes himself to the government o f the state' with the further belief that princes normally preserved the rule o f law most effectively, and that the best civic life would normally be attained in their service (Robey 1973). Second, the secular and civic values that Bruni sometimes expounded had intellectual competition o f a serious kind from ideas that seem far less familiar to modern readers. W e have seen that history provided men like Bruni with a genre in which they could both assert the primacy o f the values they believed in and present an implicitly secular and highly politicised characterisation o f human life. Yet their history was not the only literary form o f the public memory to thrive in fifteenth-century intellectual circles. Another popular one — one that the Latin west had 18

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Humanism and political theory inherited from Islam in the twelfth century — rested on the belief that the conjunctions o f Jupiter and Saturn that take place roughly every twenty years have a powerful shaping effect on earth, and aligned the great turning points in ancient and modern history with the stately, regular dance o f the stars. This belief clearly implies a vision o f politics different from either that o f the Florentines or that o f their debate partners in Milan and Ferrara - a vision in which providence still controls man directly and human decisions, accordingly, play a limited and secondary role. Historical astrology o f this kind, prominent in fourteenth-century Florentine chronicles, was banned from historiography by Bruni and Poggio (Baron 1988,1, pp. 68—71). But it was hardly banned from Renaissance society. Great buildings - notably churches and palaces — continued to be built at astrologically propitious times. Horoscopes — including the horoscope o f the founding o f Florence — continued to fascinate intellectuals and eventually received treatment in the great official pictorial versions o f Florence's founding in the sixteenth century (Cox-Rearick 1984). And in the time o f Savonarola, late in the fifteenth century, it became clear that this and other providential interpretations o f history had a stronger claim on many than the secular and civic ones for which Bruni is now celebrated. Finally, recent research on medieval political and legal thought has shown that the jurists and philosophers o f the Italian universities had at least as much to say about the practical needs and goals o f the Italian communes as the humanists did. Jurists, not humanists, established and invoked the secular principle that in a crisis o f the state necessitas legem non habet ('necessity knows no law'). Scholastics, not humanists, first revived the Aristotelian writings that offered a set o f secular categories for analysing states as monarchical, aristocratic, or popular. A scholastic trained in Paris, Marsilius o f Padua, drew out the implications o f Aristotle's view for the autonomy o f the human city far more thoroughly than any humanist ever would (Rubinstein 1982). And his application o f the Aristotelian principle o f the bonum commune to the popular government o f Italian communes was no individual aberration; he drew on the patriotic enthusiasm o f humanists like Mussato, and, even more directly, on the political thought o f earlier Italian scholastics and pre-humanists who had already shown that Latin morality and Greek categories could fit and help to explicate Italian realities (Skinner 1986). Mendicants, not humanists, first admitted in their theological writing that merchant cities needed merchants to carry out their political and economic functions. 'The rich', wrote Bernardino o f Siena, 'are necessary to the state' (Oppelt 1977, p. 574). And mendicants 19

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elaborated the rich store o f casuistic doctrine that permitted merchants and bankers to charge interest without committing usury, by redefining interest as compensation for potential and actual loss o f income. They also drew up the first, impressive sketches o f doctrine about fair wages and prices (Bee 1967).

v

The topics o f humanist political discourse

What remains when all subtrahends are removed is still important. The humanists created a new language for talking about citizenship and the state. As specialists in discourse they made their way to prominence and power, offering in a language far more attractive and accessible than that o f scholasticism a description o f society as it is and prescriptions for what society should be that often fitted the needs o f their time with supple elegance. This language, flexible, rich, and largely classical, was shared by civic humanists and monarchists, Florentines and Ferrarese. For the remainder o f this essay we shall explore it, dividing its lexicon o f concepts into three categories that the humanists themselves would have seen as legitimate. Humanist social and political language explicates the duties o f the patrician towards household, city, and state. T o deal with the household may seem to the twentieth-century reader a conflation o f the personal and the political. Yet in fifteenth-century cities it seemed evident that the two forms o f economic and administrative order were analogous and inti mately related. Teachers o f ethics like Ioannes Argyropoulos argued that they had to show from their texts that 'man is born not for himself but for others as well, but not just any others, only those for whose care and rule he is responsible. These fall into two categories; some belong to the household, some to the state' (Milliner 1899, pp. 1 2 - 1 3 ) . Teachers o f history like Ludovico Carbone promised to show their pupils how 'to organise the family and administer the state' (Miillner 1899, pp. 88—9). And all tended to assume in humble practice — whatever they might proclaim in lofty theory - that on these matters the classical philosophers had basically 'the same doctrines as our writers do' (Bruni 1928, p. 7 1 ) . First, then, the family. Here the humanists had much to say. They began by making classical materials available in a new way. Francesco Barbaro wrote an elaborate treatise De re uxoria in which he vulgarised the ideas and anecdotes o f Plutarch about how to marry, raise children, and preserve a peaceful home (Garin 1952, pp. 1 0 4 - 3 7 ; Kohl and Witt 1978, pp. 189-228). Leonardo Bruni retranslated the pseudo-Aristotelian treatise Oeconomica, 20

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Humanism and political theory 'On Household Management', and used his knowledge o f Greek history and customs to provide it with a commentary that made clear much that the scholastics had misunderstood — and even some points that the author himself (whom Bruni thought to be Aristotle) might have left obscure. Bruni was at pains to show that the text did not treat women, as it seemed at first to do, as domestic equipment on a par with cattle. He argued at length, in fact, that a wife had a status and rights guaranteed by laws which no husband could licitly violate (Griffiths et al. 1987, pp. 300—17). This work became a humanist bestseller; more than 200 manuscript copies o f it survive, still bearing the marks left by owners who included clerics and laymen, scholars and merchants — a cross-section o f the Italian elite (Griffiths et al. 1987). Others elaborated in treatises on education the doctrines on marriage and management o f children that they had found in the witty, anecdotal essays o f Plutarch and the systematic treatise o f Quintilian (Woodward 1899). So far as relations between husbands and wives, fathers and children were concerned, the humanists essentially fitted their classical sources to Italian realities. The major classical text on marriage, Plutarch's Coniugalia Praecepta, calls for husbands to remain on top, but does so in a moderate and qualified way. Plutarch insists that husbands accommodate themselves to their wives and not expect them to be constantly obsequious and complaisant in the style o f courtesans. Bárbaro, adapting Plutarch to an Italian world where husbands married young wives late in their own careers, speaks only to husbands and advises wives simply to be silent and obey. He twists Plutarch's anecdotes to support total subordination o f women. In the same style, later treatises like Leon Battista Alberti's Italian dialogues On the Family offer a splendid male fantasy o f docile young wives being ruled and instructed by powerful, mature husbands in everything from storage o f food to sexual relations. I f sometimes fanciful, though, these texts are far from insignificant. In a society that often seemed obsessed with the need to preserve the family against the aggression o f rival families, the suspicions o f state officials, and the high rate o f infant mortality, they offered attractive and apparently effective advice that actually ratified the demographic realities o f the time. But they did so at the double price o f distorting classical sources and o f ignoring many difficult modern situations, such as arose when a young and vigorous widow like Alessandra Scala came to control a family or a princess became the ruler o f a state (Grafton and Jardine 1986, ch. 2). More ambitious — and probably far more influential - were the 21

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humanists' efforts to provide a moral rationale for the existence and power o f the rich merchants and princes o f their time to earn and spend their money without shame. They found in Aristotle above all justification for conspicuous expenditure: 'But great expenditure is becoming to those who have suitable means to start with, secured by their own efforts or from ancestors or connections, and to people o f high birth and reputation . . . For all these things being with them greatness and prestige' (Nicomachean Ethics H22b30ff). They thus came to argue that wealth was not simply something 'indifferent' — something that could be used for good or for ill — but that its possession could be the foundation o f a virtue in its own right. 'Magnificence', the proper expenditure o f large sums, was a virtue peculiar to the rich; and the rich, in Florence and elsewhere, and their panegyrists rapidly appealed to these views as they dropped the traditional medieval habit o f concealing wealth from tax officials and rivals and went in for display (Fraser Jenkins 1970). Great families, in Florence above all, built themselves palaces that cut them off from the street-corner life o f the city and loggias that offered in its place a private sociability for family and close friends (Goldthwaite 1981; Kent 1977). They became — most notoriously in the case o f Cosimo de' Medici — patrons o f architecture on the vast scale previously reserved for the church and secular rulers, and patrons o f visual artists and dealers in fine clothing and antiquities as well (Gombrich 1985). And they and those who designed for them, like Alberti, continually insisted that this new world o f display was the conscious and virtuous exercise o f magnificence in action. 'Men o f public spirit', Alberti wrote in the preface to his work on architecture, 'approve and rejoice' at the sight o f such activity (Fraser Jenkins 1970). As personal display came to seem desirable and virtuous, acquisitiveness too took on a newly laudable character. True, the humanists did not actually advance new economic doctrines to supplant those o f the medicants. But they did defend the activities o f the merchant in a newly aggressive way, as vital to the exercise o f virtue. When the venerable Giannozzo in Alberti's On the Family insisted that his young relatives should examine their consciences nightly to determine if they had missed an appointment or an opportunity, failed to meet a commitment, or to act in good time, he spoke a language o f inner worldly asceticism that the mendicants could not use - and that would have lacked any justification without the alternate ideologies o f magnificence and civic service that Alberti espoused through other personae (Baron 1988,1, ch. 10). In later bourgeois society 'money is very ashamed o f itself, as Lionel 22

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Humanism and political theory Trilling rightly pointed out. In fifteenth-century Italy the humanists devised a language in which money could speak without shame, i f only as the sign and basis o f a new idea o f virtuous conduct. Humanist doctrines on the government o f the household, in other words, were modern and attractive; and they helped to reshape the social and physical space in which the Italian elite lived. Humanist doctrines about the nature and government o f cities, like those on households, began from classical sources but were not confined to them. The humanists knew from Aristotle and his followers how to divide an urban population into ordinary people and patricians. They learned from Livy how the circumstances o f a city's founding shape the character and virtues o f its people. But they also learned from medieval intellectuals how to compile a powerful dossier in praise o f the city to which they belonged, enumerating its saints and spectacles in overwhelming detail. And even their most classical descriptions o f a city's virtues tend to enfold or reflect late medieval discussions o f urban history and power. Humanist texts on cities may at first seem somewhat bland to the uninitiated reader. Examples o f epideictic rhetoric, oratory in praise (or blame) o f a person or thing, they pile up the virtues and attributes o f the cities they describe with little obvious regard for details or qualifications. Salutati defending Florence against Antonio Loschi and Bruni praising Florence both extol the city's climate, health, agriculture, trade, com merce, walls, and buildings — referring neither to the lowered scale o f manufacturing and banking after the crash o f the fourteenth century nor to the insalubrious conditions caused in Florence by some o f her characteristic industries, like the tanning works and fullers' shops. Bruni explicates Florentine institutions as built around a central check, a cautela — the system o f choosing members o f the governing committees by lot from a large body o f citizens that supposedly prevented the great families from controlling urban policies. Yet he wrote this at a time when one small group o f families was in fact manipulating the city's policies towards war and expansion to serve their own economic interests, as well as opening up positions in the government to more citizens than before. Such rhetoric blurs the outlines o f real cityscapes and institutions. The classical and clerical sources o f the humanists' language, moreover, did not offer them terms and tools for dealing with certain crucial features o f Renaissance urban life. Florence, we know from several recent books, was less a single coherent city-state in the classical sense than a congeries o f districts and guilds to which most citizens felt their primary loyalties — and 23

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from which they received such governmental interference as they met (Kent and Kent 1982). But the classical language o f social analysis o f cities has little terminology for these intermediate bodies, and the works in praise o f cities accordingly paid little attention to them. True, the Venetian humanists devised a more elaborate and novel language to deal with their city's unique constitution, its powerful doge, closed governing body, and remarkable social harmony (King 1986). And reality slips through the rhetoric in Florence as well — as when Bruni, writing for his Greek friends at the Council o f Ferrara—Florence, admitted that his city was now dominated by men o f wealth and connected that fact with the replacement o f the old civic militia by mercenary armies, who fought for money rather than sentiment (Griffiths et al. 1987, p. 174). On the whole, however, it remained a language o f praise (Goldbrunner 1983). Yet the humanists' civic discourse was novel in at least two vital ways. In the first place, they based cities' claims to antiquity and high origins on direct study o f the ancient sources. Salutati's argument for Florence's R o m a n heritage, for example, rested on a passage in Sallust's history o f Catiline in which he described discontented veterans o f Sulla's army sent out to resist the inhabitants o f Fiesole, turning rebellious after losing their property. Such arguments became more and more elaborate over time, as Bruni and others traced their cities back to R o m e , to the Etruscans, and even — in the notorious case o f Viterbo — to Isis and Osiris. And they often led to the bold invention o f acts and documents where these were lacking, since, as Salutati had already admitted, the passage o f time made urban origins tantalisingly obscure. Yet they had a powerful impact on political propaganda throughout Europe, and the invention o f traditions about Trojan, Roman, or Greek origins that became a staple o f Renaissance pageantry and propaganda had its origins in the Italy o f the humanists (Baron 1988, 1, ch. 3; Cipriani 1980). In the second place, the humanists dwelt on the physical appearance o f their cities with a new artistry and interest. They treated Florence under the Medici, R o m e under Nicholas V, and Milan under the Sforza as cities rationally planned both to give aesthetic pleasure and to further economic activity and political power. Bruni, for example, emphasises in his Praise of Florence the city's ideal situation, splendid public buildings, clean and wide streets. The humanists in the papal curia did the same, ceasing to lament the decay o f R o m a n inscriptions and buildings — and their misidentifications by past scholars — as papal architects rebuilt and population returned to the acres o f sheep meadow within the old walls. These descriptions often 24

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misrepresented reality. They treated confused and over-built cities, with narrow streets and polluted rivers, as ideal and rational creations like the cities imagined in Antonio Filarete's treatise Sforzinda and Alberti's On Architecture. Yet in doing so they challenged rulers to build systematically and further the creation o f rationally planned colonies — and a few such cities, like the fortress o f Alessandria, were actually built. More import antly, perhaps, they helped to create the tradition o f including detailed physical descriptions o f public buildings, churches, hospitals, and open spaces in political writing — and o f insisting on the effects o f the built environment on its human inhabitants. These motifs became standard ones in the Utopian writing o f the sixteenth century, from Thomas More's Utopia to Tommaso Campanula's City of the Sun. T o that extent the apparently unrealist epideictic orations o f the humanists had a real impact — if not on most cities, at least on some o f the most powerful and persistent western visions o f what a good city should be. The image o f the city as a rational, planned space, its buildings and quarters differentiated not by tradition and accretion but by logic and science, received its most powerful crystallisation in Leonardo's drawings. It is salutary to remember that these high Renaissance creations o f one who called himself a 'man without letters' have their roots in the political writing o f the humanists (Garin 1969). The state, finally, respublica as opposed to civitas, called forth a great deal o f discussion from the humanists. Writers about kingship, on the one hand, naturally directed their attention to relations between a court and all its subjects rather than the more limited political space o f the city where a court was normally located. This they did partly because their rulers genuinely formed the heads o f a wider political community, and — especially in Naples and Milan — found both special problems and special opportunities in the existence o f lesser nobles and formerly independent cities in their domains. But they also did so because the tradition o f writing on kingship that they inherited, stemming from Isocrates in classical Greece and brilliantly continued by John o f Salisbury and many others in the middle ages, dictated this approach. An almost unvarying series o f topics — including the proper relations between a king and his counsellors, the question o f whether a king is above or below the law, and the king's moral duty to devote himself to the good o f his subjects, avoiding excess taxes and unnecessary war — formed the staple o f this genre in its Renaissance incarnation from Petrarch on. Modern readers know these topoi best from Machiavelli's inversions o f them in The Prince, with its obsessive insistence 25

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on the role o f fear and the vital importance o f warfare. And for all the mordant injustice o f his work, it must be admitted that the humanists o f the fifteenth century added little o f substance to the traditions that they drew upon (Born 1928). Republican writers often addressed — but did not always have much o f substance to say about - the increasingly large territorial states that surrounded Florence and Venice. In defending Florence against Antonio Loschi, Salutati tried to articulate an ideology that justified Florence's presence outside her own walls. Florence stood, he claimed, as the defender oflibertas, not just at home but in the rest o f north Italy; her territorial state was the necessary consequence o f the need to defend republicanism against the aggression o f the Visconti tyrant. This argument sounds pleasing now, but as Nicolai Rubinstein has shown, it would have evoked remarkably varied reactions around 1400 (and in fact did so from Salutati's literary opponent, Loschi). In Florentine political discourse libertas had a variety o f meanings, including the republican constitution at home and freedom from interference from other powers. But it did not mean that formerly autonomous states that now came under Florentine rule would be granted autonomy in their own affairs. Pisa, captured in 1406 and made to serve as the base o f the Florentine galley fleet, was occupied by a garrison and ruled by Florentine governors and tax collectors. Loschi did not fail to point out that libertas was more a cloak for self-interest than a programme for the political development o f north Italy (Rubinstein 1982). In short, humanist political discourse did not offer an incisive analysis o f the larger and larger political entities, centred on Milan, Florence, Venice, R o m e , and Naples, that divided up the Italian political scene in the course o f the fifteenth century, like monstrous paramecia seen on a microscope slide devouring smaller organisms. What the humanists did offer, as usual, was a flexible and persuasive language o f praise and justification for the states and rulers that they served. In this realm o f epideictic discourse the humanist mastery o f the ancient texts, with their rich resources o f argument, anecdote, and metaphor, and the humanist command o f rhetoric itself proved a decisive advantage. Any ruler and any subject could be provided with a terminology appropriate to the social and intellectual standing o f both. Thus, as Alison Brown has shown, classical topoi could be deployed, in praise o f Cosimo de' Medici in at least three ways. A Greek humanist like Argyropoulos, appointed to a formal position in the Florentine studio, could draw on Plato's Republic to describe his master as the embodiment o f the philosopher-king that Plato 26

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Humanism and political theory had thought could not exist except as an ideal. Members o f established Florentine families like Donato Acciaiuoli could remain more reserved — and reveal less awareness o f the political realities — by treating Cosimo as simply primus inter pares, a noble and beneficent citizen who had saved the state from chaos, held only a few offices, and devoted himself to the public good. And the admirers and beneficiaries o f Cosimo's lavish patronage o f the arts, drawing on the rich resources o f Horace and Virgil, could compare Cosimo to Augustus and Maecenas, the great benefactors o f the Augustan age whose most lasting material was the classic literary works they had supported (Brown 1961). Humanist epideictic proved remarkably supple and inventive. Some orators employed premises that seemed unexceptionally R o m a n and republican to praise absolute — and absolutely non-Roman — rulers. Thus Pier Paolo Vergerio, theorist o f education and student o f Cicero, insisted firmly on the preeminence o f the active life in public service: 'That man excels all others in character and way o f life who devoted himself to the government o f the state and to sharing in the labor for the common good.' At one point he went even further, arguing like a good Florentine that 'the best philosophy . . . dwells in cities and shuns solitude, strives both for its own advantage and for that o f all', and denouncing Augustus as a tyrant. On the whole, however, the one string that he plucked in every context was the need for justice and the rule o f law rather than violence. It comes as a surprise to learn from David R o b e y that he used these principles to build an edifice o f praise for the Carrara o f Padua, a family not known for their rigorous adherence to legal codes (Robey 1973). And while one could argue — as Castiglione later would — that such idealised statements were a way o f confronting the actions o f a ruler with the values they violated, o f teaching by indirection, the lasting impression one receives is o f men deliberately setting out to conceal and divert attention from inconvenient realities. When Bartolomeo Fonzio set about praising Lorenzo de' Medici, a far less active patron than Cosimo (though a fine poet in his own right) and a more overt manipulator o f Florentine government, he did so in the exalted term o f Virgil's Fourth Eclogue; ' Y o u have at last restored the rule o f Saturn [the Golden Age] . . . The arts are restored, poets are prospering' (Gombrich 1985). Angelo Poliziano, similarly, finely conflated Virgil, Ovid, and others in a mock epic in which Lorenzo himself was made to learn not how to found a new race but how to love (Poliziano 1979). These praises o f Lorenzo had a clear political purpose despite their exalted sound. They distracted attention from the recent rise o f the Medici 27

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and Lorenzo's personal lack o f the military prowess which had distingu ished princes in most traditional panegyrics (he himself confessed that he was not 'a hard hitter' and won tournaments only because the judges wanted him to). And they did create a powerful image o f Lorenzo as a patron o f the arts — an image which persisted in histories o f the Renaissance, despite his lack o f means and low scale o f real expenditure, into the twentieth century. Sometimes, indeed, the curtain-drawing seems painfully visible — as when Poliziano, writing the history o f the conspiracy o f the Pazzi against the Medici, modelled his work on Sallust's Catiline but completely omitted any counterpart to Sallust's social and political exposition o f why conspiracy had taken place. T o include such an explication was to call attention to the recency and illegitimacy o f Medicean rule. Poliziano accordingly ignored social and political preconditions o f revolt and instead included a stunningly vivid account o f the rituals o f inversion by which the Florentine crowd had humiliated the Pazzi alive and even dead (Poliziano 1958). In one area — and perhaps only in one city — humanist political discourse did transcend propaganda. In Venice, as Margaret King has recently shown, the fifteenth century saw the patriciate which dominated the Venetian economy and monopolised political life take a strong interest in humanistic scholarship. The Venetian elite, with its tradition o f service to the state in a wide variety o f positions at home and in the Venetian outposts (and eventually its growing empire in Italy) forged from partly classical ingredients and partly modern ones a new set o f ideas. Ermolao Barbaro, for example, a great scholar and also a great state servant, wrote in classical Latin an account o f the duties o f the resident ambassadors o f Venice, those officials o f a new kind who made it possible for states to survive in the turmoil and continual rapid reversals o f Italian politics. Here he articulated an ideal o f absolute subservience, not to a single ruler but to the state as a whole, that had no counterpart in previous political discourse. Barbaro argued that the ambassador must place himself absolutely at the disposal o f the home government, obeying its commands without hesitation or scruple, as a deliberate and dutiful sacrifice o f that independence o f action which a patrician normally cherished in other spheres (Barbaro 1969). This call for absolute obedience to the political needs o f the state, brief, cogent, and simple, resounds with reality and modernity just as powerfully as Bruni's admission o f the role o f money in Florentine affairs (King 1986; Branca 1973). Specialists in discourse, the humanists did not articulate a new and 28

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Humanism and political theory compelling full-scale analysis o f the new and dangerous political world that they inhabited. They praised, they blamed, they concealed; the classical themes and ideas they revived more often proved a template to be imposed on obdurate facts than a lens through which to inspect them more closely. And even when they obtained, translated, and discussed such powerful ancient works o f political philosophy as Plato's Republic or o f political reflection a Thucydides' history, they used them more as grab-bags o f anecdote and edifying platitude than as models for comparably ambitious intellectual projects. These they left to the later writers o f the age o f the New Monarchies and after. Yet epideictic, though usually stereotyped and sometimes cloying, is far from insignificant. The humanists' idealisations o f institutions and individuals took on a powerful life o f their own, inspiring later thinkers and deceiving later historians. For that alone they deserve close scrutiny.

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2

Italian political thought, 1450-1530 NICOLAI

RUBINSTEIN

The middle o f the fifteenth century was a turning point in the relations between the Italian states, and the relative stability which Italy enjoyed until the Neapolitan expedition o f Charles VIII in 1494 forms part o f the background to the history o f its political thought during that period. The peace o f Lodi had put an end, in 1454, to a succession o f wars which had begun in the 1420s. It had been followed by the conclusion o f an Italian league, aimed at safeguarding the integrity o f the Italian states as well as peace among them; in fact, wars were chiefly prevented or contained by triple and dual alliances between the five greater powers which were its members, Milan, Venice, Florence, the papacy, and Naples. T o the relative stability and equilibrium in inter-state relations, threatened primarily by the expansionist policies o f Venice and the papacy, there corresponded a similar stability in the internal conditions o f the Italian states, although it too could be temporarily threatened. Domestic crises occurred in Milan in 1476 with the assassination o f Duke Galeazzo Maria Sforza, in Florence in 1478 with the Pazzi conspiracy, but these were o f short duration; far more serious and lasting was the revolt o f the Neapolitan barons against Ferrante o f Aragon in 1485. The lesser princes, such as the Malatesta at Rimini and the Este at Ferrara, were more vulnerable; a judicious policy o f placing themselves under the protection o f one or more o f the greater powers, as well as serving them as condottieri, could help them to achieve security and dynastic survival.

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The Italian states o f the fifteenth century could be divided into monarchies and republics; but within these categories, there was a great variety o f constitutional structures. O f the former, only the kingdom o f Naples 30

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Italian political thought, 1450—1530 conformed to the type o f western European monarchies; the others, with the exception o f the Papal States, had communal or feudal origins; and even the most powerful and the longest established among them, such as that o f the Visconti at Milan and those o f the Este at Ferrara and Modena, were not entirely independent o f superior - imperial or papal - authority and o f popular support, and could consequently not rely on the same measure o f sovereignty as a 'natural lord' like the king o f Naples. O f the republics, the two leading ones, Venice and Florence, differed substantially in their political institutions; in Venice, the aristocratic constitution, established at the turn o f the thirteenth century and perfected in the course o f the fourteenth, remained the solid foundation o f government and administr ation; in Florence, the republican institutions, which went back to the end o f the thirteenth and the early fourteenth centuries, were at crucial points gradually eroded by the Medici and adapted to secure an ascendancy which was consolidated in 1458 and greatly increased under Lorenzo de' Medici. Other republics experienced, in their turn, the rise o f single families to supreme political power, or even to signorial position, as did Bologna under the Bentivoglio and Siena under the Petrucci while, like the despots o f that region, Bologna and other communes o f the Papal States were liable to have their independence substantially curtailed by the reassertion o f papal authority and the consequent extension o f the central administration. The history o f Italian political thought during this period reflects, in several respects, these developments and problems. Treatises on princely government composed by humanists continued the medieval tradition o f Mirrors o f Princes, but there were significant differences between those addressed to lesser rulers whose security could be enhanced by good government, and eulogistic works addressed to the king o f Naples which emphasised the majesty o f a 'natural' monarch. Bartolomeo Platina's De principe, written in 1470 for Federico Gonzaga, heir o f the marquess o f Mantua (Platina 1979), while broadly modelled on Giles o f R o m e ' s De regimine principum, is a typical product o f humanist didactic literature; making ample use o f the works o f moral philosophers such as Cicero, he illustrates his teachings by a wealth o f examples drawn from ancient history. Platina takes for granted the superiority o f monarchy as the best form o f government (pp. 53—6), as well as the absolute authority o f the prince; but this authority, which in fact corresponded to that o f Italian despots, was to be tempered by his duty, spelled out under the 1

1. See Gilbert 1939, pp. 46orT (repr. 1977, pp.98ff).

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headings o f the cardinal and other political virtues, to govern his subjects justly and liberally and see to it that his officials did so likewise. The optimus princeps is, briefly, a benevolent despot, and as such the opposite to a tyrant who, deprived o f friendship and loyalty, is liable to be toppled from power (pp. 70—1). His is also a military leader, as the Gonzaga were; the third book o f the treatise deals with warfare and military science. Some o f Platina's practical advice for the security o f the ruler appears, undiluted by humanist rhetoric and learning, in Diomede Carafa's / doveri del principe, composed before 1476 for the duchess o f Ferrara, Eleonora o f Aragon (Carafa 1899). States are ruled by love or by fear, he says, and it is preferable for the ruler to be loved (p. 266), yet at the same time he is advised to keep armed forces, for then his subjects will 'see to it to be obedient and will not indulge in wicked thoughts' (p. 270). Legitimate rulers have so often lost their power that it is essential to guard oneself against such an eventuality by making military and financial provisions, but above all by having soldiers at one's disposal to deal with emergencies (p. 272). For all this, the lord should treat his subjects as i f they were his children, dispense justice equitably through his officials, and whenever possible avoid wars, which may harm them as much as him (pp. 276ft, 289). Compared with this pragmatic and paternalistic view on how to preserve power in a north Italian principality, whose ruler had only recently acquired the ducal title, the Neapolitan humanists have a more exalted vision o f monarchy. Giovanni Pontano, in his Deprincipe (c. 1468; Pontano 1952), states, after a passing reference to the importance for the prince o f justice and religion, that among the traditional princely virtues he should above all observe humanitas and liberality; for inhumanity is the mother o f hatred, and it should be the prince's aim to be loved by his subjects (pp. 1040, 1042). But what determines most the opinion they have o f him is what some call his majesty, which is the special property o f the prince, 'principum propria' (p. 1046). It has its origin in his nature, but must be cultivated by art and diligence; it differs from Cicero's decorum, which belongs to private persons, not to kings; and it is borne out by the prince's behaviour (p. 1060). Pontano ends his advice to the young Alfonso, duke o f Calabria, to whom the work is dedicated, by urging him to sustain the majesty o f the prince by correct deportment, gestures, and dress - 'a subject neglected by the ancient philosophers' with which he could fill many books. It was to majesty that in 1492 Iuniano Maio devoted an entire book, which he dedicated to King Ferrante, the duke o f Calabria's father. He 32

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Italian political thought, 1450—1530 begins his De maiestate (Maio 1956) by displaying his humanist learning in a long discourse, studded with quotations from classical authors, on the meaning o f the term, follows this up by enumerating the princely virtues, and devotes, after describing the burdens o f majesty, the penultimate chapter to the magnificence o f the prince. His examples are drawn, in the customary humanist fashion, from antiquity, but are supplemented, in appendices to the various chapters on the prince's virtues, by others derived from the life o f Ferrante, who thus appears as an exemplary prince. These manuals for princes ignore, in contrast to Aquinas' De regimine principum, the existence o f other forms o f government: apart from a glancing observation in Platina's De principe, the humanists keep strictly to their purpose o f exhorting and celebrating monarchs. As rhetoricians schooled to defend 'the other side' (alteram partem), they were also perfectly capable o f performing the same service for republics. Platina adapted, in 1474, his advice book for princes to fit the virtual ruler o f the Florentine republic, and his image o f Lorenzo de' Medici as optimus civis o f the republic probably came closer to political realities and to Lorenzo's own views o f his position than the eulogies o f friends and clients (Platina 1944; see Rubinstein 1986, pp. i4ifT). The Sienese Francesco Patrizi wrote two successive treatises praising first republics and then monarchies as the best constitutions; he admits in his De regno et regis institutione (Patrizi 1594b), which he dedicated to Alfonso, duke o f Calabria, probably in the early eighties (Battaglia 1936, p. 102), that 'there will be those who will say that these things are self-contradictory' and that the same person cannot consistently argue both in favour o f monarchies and republics. T o this he replies somewhat feebly that 'men are free to praise alternatively whomever they wish' (1, 1), and launches into a celebration o f monarchy. In his De institutione reipublicae he had pointed out that while monarchy was theoretically the best form o f government, it was liable to degenerate (1, 1 ) . 'Born and educated in a free city', he considers 'the life o f a wellordered republic safer.' Even though a prince possessed all the virtues, in a republic, which was 'nearly immortal', they may be spread over many citizens. As for its constitution, he counts himself among those who preferred one that was 'mixed o f all classes o f men' (1, 4), in which not arbitrary power, but 'only law rules' (1, 5). Yet happy are those republics 2

3

2. Platina 1979, p . 56: 'Laudare o p t i m a t u m r e m publicam popularemve, quarum altera ad tyrannidem vel p a u c o r u m potentiam facile descendit, altera ad principem vergit, instituti nostri nequáquam est'. 3. Patrizi 1594a. See Battaglia 1936, p . 101: completed b e t w e e n 1465 and 1471.

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which, 'as Plato says, are governed by the wise and learned' (i, 8). In the De regno, on the other hand, he concedes that a well-governed republic 'may be praised' (i, 3), but it is prone to turn into a tyranny or mob rule. He quotes a large number o f classical authors to support his arguments in favour o f monarchy; it is o f divine origin, and the king resembles God on earth (1, proem, ix, 2). In describing the ideal prince, Patrizi says, he is going to imagine one 'who may never have existed', thus following the example o f Plato who 'conceived a new, imaginary, perfect city' (11, 4). He provides an extensive and detailed advice book for princes, with a long catalogue o f their virtues. Foremost among these is justice (11, 1); magnificence 'is fitting only for kings and princes', and differs from liberality, the former concerning 'the great and the public', the latter 'the small and the private' (vn, 1 1 ) . Under a just king, there reigns what Plato calls 'civil or social friendship' among the citizens, which 'is more appropriate to the king than any other' (vm, 10) — a form o f consensus which should form the foundation o f a well-ordered state (Battaglia 1936, p. 124). In many ways, Patrizi follows the tradition o f the medieval specula principis; but he does so by amply drawing on classical authorities and exemplars, as he had done in his De institutione reipublicae, which may help to explain why these two rather unwieldy humanist works enjoyed an impressive degree o f popularity during the sixteenth century (pp. I02ff). While the humanist authors o f advice books for princes were concerned with their moral virtues, Giovanni Simonetta's history o f Francesco Sforza, the Commentarii, written in the seventies as a semi-official work which could serve the dukes o f Milan as propaganda, offers a different and more realistic picture o f a new prince (Simonetta 1932—59; see Ianziti 1988, pp. 15 iff). Simonetta portrays the condottiere founder o f the Sforza dynasty as a military leader endowed with qualities, among them foresight and speed o f decision, that were conducive to the success o f his actions, even though these could at times be considered to be immoral, the end, that is victory, thus justifying cruel means such as the sacking o f towns (Ianziti 1988, pp. i84ff). Similar lessons could be drawn from Flavio Biondo's innovatory history o f contemporary Italy, which as early as 1437 had elicited the comment that it provided precepts for political action at home and abroad. Historiography could serve as a corrective to eulogistic works on princely conduct in showing a new sense o f the power politics o f fifteenth-century Italy, in which both princes and republics were involved. 4

4. Ianziti 1988, pp. 5 1 - 3 , on Lapo da Castiglionchio's letter to B i o n d o praising his third

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Decade.

Italian political thought, 1450—1530 Only one humanist attempted a systematic comparison between the monarchical and the republican forms o f government, and it may not be a coincidence that Aurelio Brandolini, although once a resident o f Naples, was a native o f Florence, where the enduring tension between republican and Medicean views on government had kept alive the issue, so important in the political literature o f the early Quattrocento, o f the relative value o f republic and monarchy. Brandolini, who began his dialogue De comparatione rei publicae et regni at Buda, originally planned to dedicate it to King Matthias Corvinus o f Hungary, who figures in it as the principal interlocutor; after the king's death in 1490 he completed it, with a dedication to Lorenzo de' Medici, in Florence (Brandolini 1890, pp. 79—80, 81—4). In the dialogue, Domenico Giugni, a Florentine resident in Hungary, defends the republican form o f government; Matthias defeats his arguments that it secures liberty, equality, and justice more effectively than a monarchy. While he does so in a general fashion, the republic which Giugni defends is Florence. As a result, the debate turns on the superiority o f that city's republican institutions, which Giugni describes in consider able detail and which are subjected to a scathing critique by the king. His task is facilitated by the fact that Giugni is concerned less with the actual working o f those institutions than with their original purpose, and thus conforms to the idealisation o f the Florentine republic by civic humanists such as Bruni. He does not take into account the changes brought about by the Medici and the ascendancy o f Lorenzo de' Medici, which Matthias sees, precisely, as the saving grace o f the Florentine republic. In the end, Brandolini may have agreed with this view, i f his dedication o f the dialogue to Lorenzo is an indication; Matthias' critique o f Florentine republican institutions and his praise o f monarchy should, he says, be acceptable to a man who was in ea re publica princeps' (p. 84). Brandolini tried to compare the Florentine republic with a feudal monarchy; comparisons between different types o f monarchical and republican regimes, so obvious to modern historians, are notably absent from the political literature o f the period. However, the admiration o f the Venetian republic which we find among Florentine patricians during the fifteenth century implies a comparison between its aristocratic constitution and the government o f Florence under the Medici (see Gilbert 1968). 4

Another comparison which continued to be discussed by the humanists, that between condottieri warfare and native militia, could have political implications. Platina advised the prince on practical grounds to choose his troops from his own territory (Platina 1 9 7 9 , p. 162). Patrizi, who 35

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considered condottieri unreliable, in his turn proposed, in the De institutione reipublicae, to raise a militia from the contado (Patrizi 1594a, p. 42; in, 5; iv, 4; see Bayley 1961, pp. 2 3 1 - 3 ) . The admiration for the heroes o f antiquity, perpetuated in innumerable examples by classical authors such as Valerius Maximus, and represented, in the fifteenth century, in public palaces in paintings o f famous men, made the connection between civic patriotism and military valour a favourite humanist topos. In contrast to warfare, scant attention is paid in the political literature to the relations between states. Platina's sole reference to them in the De principe occurs in the chapter 'de fide'; like earlier authors of specula principis, he conceives the question in ethical terms; following Cicero, he demands that 'servanda [est] fides' (Platina 1979, pp. 1 1 6 - 1 9 ; cf. De officiis, nr.29.104). For new and wide-ranging insights into the realities o f foreign policy and diplomatic practice, we have to turn to despatches o f ambassadors and letters o f statesmen such as Lorenzo de' Medici, whose correspondence shows, among reflections on the relations between states in war and peace and on the techniques o f power politics, the emergence o f the concept o f balance o f power as a prerequisite o f Florentine independence and influence and as a foundation o f the peace o f Italy. Among the Italian republics, the political thought o f Venice in the fifteenth century was, like its constitution, marked by stability and continuity. There is no evidence o f debates on political principles, o f discussions o f problems affecting the government, as in Florence. The Venetian republic is seen as a uniquely successful realisation o f the notion o f the mixed constitution. Since the turn o f the century, humanists had supplemented the Venetian tradition, according to which during the barbarian invasions the city was founded in the lagoon by emigrants from the mainland as the home o f liberty and justice; her constitution, they argued, conformed to classical models. The translation, at the middle o f the century, o f Plato's Laws was taken by its translator to provide triumphant support for this thesis: George o f Trebizond asserts, in his preface to Francesco Barbaro and the Venetian republic, that its founders followed Plato's teaching by creating a constitution that was a mixture of monarchy, aristocracy, and democracy (George o f Trebizond 1970, pp. 498—501, 1984, pp. 198—203). He thus reinforced the argument, stated as early as c. 1300 by Henry o f Rimini, that Venice possessed a mixed constitution (Robey and Law 1975, p. 54), an argument which remained a fundamental theme o f 5

5. O n t h e ' m y t h o f V e n i c e ' s e e Gaeta 1961; Fasoli 1958; R o b e y and L a w 1975; K i n g 1986, p. 174 n. 231 (bibliography).

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Venetian political thought and which was authoritatively reaffirmed in the 1520s by Gasparo Contarmi in his widely read De magistratihus et republica Venetorum as the principal reason for the incomparable excellence o f the Venetian constitution. The principal classical authority for Venetian political thought was, however, Aristotle, whose Politics could also be interpreted to favour aristocracy. Lauro Quirini made a digest o f that work, which he dedicated in about 1450 to the Doge Francesco Foscari under the title De republica (Quirini 1977b, pp. 123—5; the date, p. 109). Quirini considers that political regime the best which preserves liberty through being governed, with the consent o f thè people, by 'nobiles et generosi' (p. 142). Quirini's hierarchical vision o f Venetian society under the government o f ' t h e few but elected' also underlies his De nobilitate, in which he affirms that no republic remained so long 'in unanimous concord' as Venice (Quirini 1977a, p. 89). Unanimity was a central political theme o f Venetian humanism, and the nobility was uniquely fitted to secure it (King 1986, pp.92, 172ft). There could be differences o f opinion on the precise structure o f that nobility. In his De bene instituta re publica. Domenico Morosini, at the beginning o f the sixteenth century, follows Aristotle more faithfully than Quirini had done. He advocates a society ruled, to the exclusion o f the excessively powerful and o f the plebs, by 'middling' citizens whom he identifies with the true Venetian nobility; a view which may have been prompted by a reaction against those nobles who had led the republic into a dangerous expansionist policy. Venetian expansionism on the mainland had been a major issue in determining Italian attitudes to Venice throughout the fifteenth century. Among Florentine patricians, criticism o f that policy went uneasily hand in hand with admiration for Venice's aristocratic constitution. During the second half o f the century, the Turkish advance, from which Venice suffered more than any other Italian state with 7

8

o

n

9

10

6. C f . the De Republica Veneta b y Pier Paolo V e r g e r i o , o f about 1400, ed. R o b e y and L a w 1975, pp. 38-9 (on the date, p. 29); see Gilbert 1968, pp. 468fF. 7. C o n t a r m i 1589, fos. 4r, 8v: 'Earn vero in hac repub. m o d e r a t i o n e m ac t e m p e r a m e n t u m adhibuere, eamqu. mistionem o m n i u m statuum qui recti sunt, ut haec una R e s p u b . et r e g i u m principatum et optimatium gubernationem et civile item regimen referat . . .'. O n Contarini's constitutional theory see Gilbert 1969, p p . i i o f f (repr. 1977, pp.2Ó2fT). 8. As it was, for instance, b y V e r g e r i o ; see above, n. 6. Aristotle considered aristocracy the best form o f the m i x e d constitution: Politics i v , 1293b. 9. Quirini 1977b, p. 136: ' p a u c o r u m sed electorum', pp. 142—3. 10. Morosini 1969, p. 76. See C o z z i 1970, pp. 4i8fF, 429; K i n g 1986, pp. 140-50. T h e w o r k was written b e t w e e n 1497 and Morosini's death in 1509.

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the exception o f Genoa, added further recriminations for her lukewarmness in supporting crusades, and Paolo Morosini defended, in a letter to the Milanese chancellor Cicco Simonetta, the republic on both counts as being 'avid for peace and content with her own boundaries' (King 1986, p. 139). That the evolution o f political thought was far richer and more varied in Florence than in Venice was due, in large part, to the political vicissitudes o f the Florentine republic from the end o f the fourteenth century onwards. The shift, after 1434, from the aristocratic regime o f the early fifteenth century to Medicean ascendancy gave rise to new political ideas; but owing to its gradual development and oblique nature, and to the survival o f republican values and institutions (Rubinstein 1966, pp. 7ff), it did not bring about a clear break with the ideology o f civic humanism. Matteo Palmieri's dialogue Vita civile, which was written about five years later, at a time when Cosimo de' Medici and his supporters were well on the way to establishing their control o f government and legislation by manipulating elections to the Signoria and having legislation passed by specially constituted councils, contains no reference whatsoever to these develop ments. W e are still in the civic world o f the early fifteenth century, which had been celebrated by Bruni. The central figure o f the dialogue is a patrician o f the old elite, Agnolo Pandolfini, and the work is designed 'to show the proven life o f the virtuous citizens' o f Florence rather than o f imaginary citizens, such as those described by Plato (Palmieri 1982, p. 7). Modelling his moral teachings largely on Cicero's De officiis, his educ ational ones on Quintilian, Palmieri follows Bruni in using classical sources, including Aristotle's Politics, to formulate a republican theory that con formed to the political conditions and problems o f his city. The central principles o f that theory are, as for Bruni, the supremacy o f the common good, justice, equality, civic unity, and liberty. Office-holding, which is meant to serve the common good, is seen as representing 'the universal persona o f the entire city', justice involves equitable distribution o f offices and taxes without regard to ancestry; his ideal is a meritocracy rather than an aristocracy, although he shares the views o f the patricians who wanted the plebs to be excluded from government (pp. 136, 1 3 7 - 8 , 187, 191). He insists, as Florentines had done since the days o f Dante, on the destructive consequences o f civil discord — a disease o f the body politic which, as history shows, could be mortal (p. 133). Florence had only recently been 11

12

1 1 . O n the date (between 1437 and 1440) see Belloni 1978. 12. Palmieri 1982, pp. 1 3 1 - 2 : 'rapresentare l'umversale persona di tutta la citta, et essere facta animata republica'.

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Italian political thought, 1450—1530 torn by party struggles, which in the end had brought Cosimo and his faction to power, and Palmieri's warning to those 'who own sweet liberty' that there is no greater cause of'civil dissensions and seditions' than unjust government, may well have been addressed to the new ruling group. Palmieri could still believe that the Medici regime, in its formative period, would not seriously alter the political traditions o f the Florentine republic. The restoration and extension, in 1458, after a brief period o f abolition, o f the Medicean controls taught Florentine republicans a different lesson; but the vigour and militancy with which republican values were reasserted during a spell o f anti-Medicean reaction in 1465/6 bear witness to their survival in Medicean Florence. So, with a sense o f fatalistic resignation, does Alamanno Rinuccini's dialogue De libertate, which he wrote, during the war o f the Pazzi conspiracy, in 1479 (Rinuccini 1957). Rinuccini condemns Lorenzo de' Medici (who had succeeded Cosimo's son Piero in 1469), as a tyrant, under whom the ancient laws o f the city were being violated and equality, 'the chief foundation o f the citizen's liberty', and freedom o f speech and elections by lot abolished, while only few citizens were allowed to participate in government (pp. 283ft). Since resistance was impossible, it was preferable, rather than serve under such a regime, to retire into the private sphere o f contemplative life (p. 302). That Rinuccini joined, in the following year, the special council set up to consolidate the Medici regime, reflected an ambivalence characteristic o f patrician attitudes to it (Rubinstein 1966, p. 312). Rinuccini's political ideals were still those o f the civic humanists o f the early Quattrocento, his principal classical sources, like Bruni's, Aristotle and Cicero; and it was the Politics which provided him with the view, fundamental for his political theory, that a free republic resembled 'one body with many heads, hands, and feet' (Rinuccini 1957, p. 284; c f Politics, in, 1281b). Rinuccini, like Palmieri before him, also quotes Plato; but Plato had by then become, in Florence, the favourite classical source for those who, by way o f eulogy or prescriptive teaching, pointed to the union in the same person o f political power and philosophy as the key to Lorenzo's position in Florence (Brown 1986, pp. 388ff). At the same time, the image o f his grandfather was transformed from that o f the republican statesman, who by public decree had been posthumously named 'pater patriae', to that o f 13

14

13. Palmieri 1982, pp. 13^5—6: 'Piglino e x e m p l o coloro che posseggono la dolce liberta'. 14. Pampaloni 1 9 6 1 , 1962; see also Rubinstein 1966, pp. 1366°, 1968, pp. 456-60; Phillips 1987, pp. 1696**.

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the philosopher-ruler (Brown 1961). In the version o f the Deprincipe which he dedicated to Lorenzo under the title De optimo cive, Platina held him up as an example o f 'the father and leader' o f the republic. In this dialogue, Cosimo himself quotes Plato's 'divine words' that 'republics will only then be happy when the learned and the wise begin to rule them, or those who rule them place all their endeavour in learning and wisdom' (Platina 1944, pp. 185, 2 1 2 ) . Cristoforo Landino, in his Disputationes Camaldulenses, written about the same time, quotes the same passage, while Marsilio Ficino, in his dedication to Lorenzo o f the Theologia Platonica, asks him to combine philosophy with the 'supreme authority in public affairs'. But Ficino did not always give that authority his wholehearted support (Fubini 1984, pp. 24ff), and Platina subjected it to the observance o f republican liberty, o f which the 'optimus civis' should be the guardian (Platina 1944, pp. 192—3). However much eulogists may have praised Lorenzo in Platonic terms, Platina came closer to the real nature o f a regime in which the position o f its leader as the virtual head o f the state had gradually evolved within the framework o f the republican constitution. 15

The enemies o f Lorenzo described him as a tyrant, a description which was as far removed from reality as that o f a philosopher-ruler; and the fall o f the Medici in 1494, two and half years after his death, was hailed as a liberation from tyranny. That such 'tyranny' was contrary to the nature and customs o f the Florentine people was one o f the chief arguments o f Girolamo Savonarola's Trattato circa el reggimento e governo della citta di Firenze (Savonarola 1965, 11, 3, pp. 469—71). Republican restoration had been followed, under his inspiration and guidance, by a fundamental reform o f the Florentine constitution with the creation o f a great council o f over 3,000 citizens which, like that o f Venice which served him as a model, was both the sole legislative and the electoral body o f the republic's magistracies. Savonarola's treatise, which he wrote at the beginning o f 1498 at the request o f the Signoria, was designed to show that the great council, the guardian o f the city's liberty and representative o f its people, was divinely established, 'sent by God', and that a republican constitution was in accordance with its nature (in, 2). T o prove this, he drew on the scholastic Aristotelianism o f St Thomas Aquinas' and Tolomeo o f Lucca's De regimineprincipum (Weinstein 1970, pp. i^off). In about 1430, Leonardo Bruni had used the Politics to describe the Florentine constitution as mixed o f aristocracy and democracy (Rubinstein 1968, pp. 447—8); Savonarola, in 15. Landino 1980, p. 1 1 ; see Rubinstein 1986, pp. 143-4. Ficino 1576, p. 78; see B r o w n 1986, p. 395.

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Italian political thought, 1450—1530 the wake o f sixty years o f Medicean ascendancy and, in the end, virtual rule, used Aristotle's argument that different constitutions were suitable to different peoples (Politics, m, 1288a), to prove that, while monarchy was theoretically the best form o f government, republican government was natural to the Florentines, 'the most intelligent (ingegnosissimo) o f all the peoples o f Italy', 'whose nature it is not to support the rule even o f a good and perfect prince' (1,3). The same Aristotelian argument had been related by Tolomeo to republican Italy in general (Aquinas 1948, iv.8, p. 76): Savonarola applied it, two centuries later, in an Italy in which only few o f the old republics had survived the spread o f despotism, to Florence in particular. At the same time, he blends the teachings o f the De regimine principum, which went in its entirety under the name o f Aquinas, with traditional Florentine notions o f republican liberty (Weinstein 1970, pp. 305ft) — just as, in his chapters on tyranny, he combines Aquinas' description o f the tyrant's devices with allusions to the tyrannical rule o f the Medici (11, 2, 3). That rule had been discussed, in very different terms and with a different purpose, by the humanist Platina in his De optimo cive\ a quarter o f a century later, the Dominican friar from Ferrara provided the new Florentine republic with an authoritative declaration o f its guiding principles. But Savonarola's theologically inspired political theory was illadapted to the problems which that republic had to face during the years following on its establishment, at a time when the balance o f power in the peninsula had been upset as a result o f the French invasion o f 1494. T o some o f these problems, Machiavelli reacted in his first political writings in a spirit that had little in common with Savonarola's religious and moral stance; but they both shared a whole-hearted commitment to the republican cause.

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Although only briefly successful, Charles VIH's expedition to conquer Naples, the Anjou claims to the kingdom having recently devolved to the French crown, proved a turning point in the history o f the Italian states. It not only put an end to the relative stability which had prevailed during the preceding forty years; large parts o f the country soon passed under foreign domination: in the first years o f the sixteenth century the duchy o f Milan under the rule o f France, the kingdom o f Naples under that o f Spain; and in 1509, the league o f Cambrai came close to destroying the terraferma empire o f Venice. The destablisation o f inter-state relations offered Cesare Borgia 4i

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the opportunity o f creating a new territorial state in central Italy at the expense o f local rulers. At the same time, conquests were liable to be short lived: Cesare Borgia's dominion collapsed after the death in 1503 o f his father, Pope Alexander VI; the French lost Milan in 1 5 1 2 , by which year the Venetians had recovered many o f their mainland territories. In Florence, Piero de' Medici's opposition to the French expedition against the king o f Naples, an ally o f Florence, had led to his expulsion in November 1494 and to the establishment o f a new republican regime. Eighteen years later, the withdrawal o f the French, Florence's only ally, from northern Italy after the battle o f Ravenna resulted in the fall o f that regime and the return o f the Medici; and the restored Medici supremacy was greatly enhanced, in 1 5 1 3 , by the election o f Lorenzo's son Giovanni to the papal throne as Leo X . These events form the background to a new epoch in the history o f Italian political thought, whose dominant figure was Niccolo Machiavelli. His two great political works, i7 Principe and the Discorsi sopra la prima deca di Tito Livio grew out o f his humanist knowledge o f ancient history, blended with his experiences o f Florentine and Italian politics during a period when the Florentines were desperately trying to safeguard their dominions and, above all, to recover Pisa. Elected in 1498, after the execution o f Savonarola, as second chancellor o f Florence and then as secretary o f the Ten, the magistracy responsible for the conduct o f foreign and military affairs, he was employed in many diplomatic missions in Italy as well as in missions to the French king and the king o f the Romans. Machiavelli thus acquired an extensive and diverse knowledge o f diplo macy and war and o f the problems o f territorial administration in the rapidly changing world o f Italian politics at the beginning o f the sixteenth century. A passionate critic o f mercenary warfare, he strenuously agitated for the creation, and was intimately involved with the organisation, o f a Florentine militia recruited from the contado (Bayley 1 9 6 1 , pp. 247ff; Ridolfi 1972, pp. I26ff, i37ff, 154ff). His earliest political writings mirror these concerns. Their predominant themes relate to the security and to the recovery o f the city's territories at a time when, in the midst o f a war against Pisa which had rebelled against her rule in 1494, Florence was being confronted with other such rebellions in the wake o f the advance o f Cesare Borgia. They also raise questions and present answers which foreshadow his major works (Marchand 1 9 7 5 , pp. 37iff). Foremost among these is the question o f the role o f force in politics: it is central for his advice, written in the year after the loss and recovery o f Arezzo, on how to deal with rebellious subjects o f the Valdichiana, where he recommends the solution 42 Cambridge Histories Online © Cambridge University Press, 2008

Italian political thought, 1450—1530 adopted by the Romans 'that rebellious populations must be either benefited or squashed (0 beneficare 0 spegnere), and that any other method is highly dangerous': the 'middle path' (via di mezzo) has to be avoided at all costs; it was another matter o f whether the use o f force or o f love, 0 la forza о Г amore, were preferable. The question o f the proper use o f force also underlies his writings on the Florentine militia, and involves that o f civic education: introduced in the contado only, the militia would, he was hoping, be extended to the city itself and thus help to generate civic virtue. These are themes which reappear, in a much more systematic and penetrating form, in 17 Principe and in the Discorsi, together with others which are first formulated or adumbrated in his earliest writings — such as the role o f fortune in man's actions, the lessons which history can offer them ('I have heard it said that history is the teacher o f our actions'). Closely related to this question is his advice, although 'it is not customary to refer' to them, 'to imitate those who had been the rulers o f the world'. There are also passages which almost literally anticipate The Prince, as when he states, in 1506, that in certain circumstances 'to a new ruler, cruelty, perfidy, and irreligion are useful in order to achieve reputation' (Ma chiavelli 1961a, p. 231: 'Ghiribizzi')'. 16

17

18

19

20

21

22

It was in keeping with the nature o f Machiavelli's employment by the republic that, in contrast to his concern with territorial and military policies, the discussion o f domestic affairs is all but missing from his earliest writings; only after the fall o f the republic in 1512 does the political and social structure o f the state become a dominant theme o f his political thought. In December 1513 Machiavelli, who had lost his post in the chancery in the preceding year in the wake o f the restoration o f the Medici (he had even been imprisoned under suspicion o f having participated in a conspiracy against them), completed a short work which he first called De principatibus and which he sent to his friend Francesco Vettori in R o m e , in the hope o f finding employment with the Medici. In one o f its opening sentences, he states that, having written on republics, he will now deal with 23

16. Del modo di trattare ipopoli di Valdichiana ribellati, in Machiavelli 1961b, pp. 7 3 - 4 . O n the date (1503) see R i d o l f i 1972, p. 450; M a r c h a n d I975> PP- 102-4. 17. 18. 19. 20. 21.

Machiavelli 1961b, p. 72; see Whitfield 1969, pp. 37ff. Discorso fatto al magistrato dei dieci sopra le cose di Pisa, in Machiavelli 1961b, p. 13. Discorso dell' ordinare lo stato di Firenze alle armi, in Machiavelli 1961b, p. 100. Del modo di trattare, in Machiavelli 1961b, p. 7 3 . Letter to G i o v a n Battista Soderini ('Ghiribizzi'), in Machiavelli 1961a, pp. 229-30. O n the date (1506) o f this letter, w h i c h had previously been dated 1512, see R i d o l f i and Ghiglieri 1 9 7 ° ; Martelli 1969. 22. Del modo di trattare, in Machiavelli 1961b, p. 7 3 . 23. Letter to V e t t o r i o f 10 D e c e m b e r 1 5 1 3 , in Machiavelli 1961a, pp. 3 0 1 - 6 .

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principalities (n). It seems probable that by that time he had written part o f what was to become the first book, which deals primarily with republican institutions, o f the Discorsi sopra la prima deca di Tito Livio, and that he interrupted his work on republics to write 17 Principe. The central figure o f II Principe is the new prince: Machiavelli asks by what means he can establish and maintain his power, and what role virtù and fortune play in this process. Machiavelli starts from the premise that to want to acquire power is entirely natural to man (in), and the lesson he is teaching the new prince is how to do so first at home and then abroad. In this context, his belief in the superiority o f native over mercenary armies acquires fresh importance; arguments in favour o f the former are now marshalled for the prince instead o f the republic (xn—xiv). Similarly, the chapter on 'mixed principalities' (m), which discusses the problems o f holding newly acquired territories, recalls his experiences with the problems Florence had to face in her dominions. Loosely following the model o f Mirrors o f Princes (Gilbert 1938, pp.9, 23 iff), he firmly rejects the method o f the many authors - one o f them was Patrizi — 'who have imagined republics and principalities which have never been seen or are known to exist'. His purpose was to write something useful to those who understand, and so he preferred to examine matters as they are in reality, the 'verità effettuale della cosa', rather than in imagination (xv). Accordingly, the famous chapters ( x v - x v n ) on the qualities required for a ruler who wants to preserve his power invert the moral teachings o f the medieval and humanist advice books for rulers by proposing an alternative code o f political conduct. This prescribes, wherever necessary, the use o f cruelty and deceit as inevitable means, owing to the innate wickedness o f men, to achieve the desired end. 'It is necessary for a prince who wants to maintain himself to learn how not to be good, and to use or not to use this knowledge according to necessity'; for 'one who wants to make a profession o f goodness in all things will be ruined among so many who are not good' (xv). While avoiding hatred and contempt (xvn, xix), he 'must not mind the infamous reputation o f cruelty, to keep his subjects united and loyal' (xvn), as long as his cruelties are committed 'all at once for the 24

24. Unless, as has been argued b y Baron, according to w h o m no part o f the Discorsi was written in 1513, the sentence in // Principe, n, is a later interpolation (see b e l o w ) . T h e c h r o n o l o g y o f the composition o f the Discorsi, and in particular the question whether part o f B o o k I was composed or drafted before // Principe, is controversial: see Gilbert 1953; Hexter 1956; Sasso 1957, 1958; Bertelli, in Machiavelli i960, pp. I09ff; Baron 1961; Bausi 1985. O n the composition o f / / Principe, see C h a b o d 1927. A l l references to the t w o w o r k s are to the edition in Machiavelli i960.

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Italian political thought, 1450—1530 necessity o f security, and afterwards not persisted in' (vm). He 'ought not to keep faith, when by doing so he acts against his own interest' (xvm). Briefly, 'a prince, and particularly a new prince, cannot observe all those things on whose grounds men are considered good', and 'must often, in order to maintain his power, act against faith, against charity, against humanity, against religion', while at the same time feigning to have all these qualities. 'Let the prince aim at conquering and maintaining power (lo stato); the means will always be judged honourable and praised by everyone, for the crowd (il vulgo) is always taken in by appearances' (xvm). At the same time, these teachings are qualified by the role fortune plays in the prince's actions, and the interaction o f fortune and virtu, an ambivalent term which, derived from the Latin virtus, may broadly be defined as that quality o f energy, vitality, and courage which enables man to achieve greatness and power in the face o f the impersonal force o f fortune (see Price 1973; Diesner 1985). The interaction o f fortune and virtu, which had preoccupied him since the years he spent in the Florentine chancery, is one o f the key questions o f The Prince, and central to his account o f the rise and fall o f Cesare Borgia, whom he had set up as a model for the new prince (vn). His answer is not free o f ambiguities: he adopts classical and humanist notions in stressing the capacity o f virtu to curb or defeat fortune, but concedes, in chapter x x v , that fortune controls one half o f our actions. What ultimately matters is whether men's nature is in agreement with fortune or not; yet even so he insists, in the concluding sentences o f that chapter, that 'it is better to be impetuous than cautious', for fortune, 'as a woman, is a friend o f the young, for they are less cautious, fiercer, and command her with greater audacity'. It is a theme which Machiavelli takes up in the Discorsi in the context o f reflections on the role o f the individual in the process o f historical* change (11, 29). i7 Principe ends with a passionate appeal to the Medici to take the lead in liberating Italy from foreign domination (xxvi). A Medici was pope, and there were unequalled opportunities 'for a new prince' to take up arms against the 'barbarians'. There were, in fact, plans, in 1 5 1 3 , to create a territorial state for Leo X ' s brother Giuliano, to whom, in December o f that year, Machiavelli intended to dedicate the De principatibus, and it has been argued that he had these plans in mind when composing it. He dedicated the work, in 1515 or 1 5 1 6 (Ridolfi 1972, pp. 257, 5 2 5 - 7 ) , to Leo's nephew Lorenzo, who then acted as the pope's lieutenant in Florence, 25

25. Machiavelli 1961a, p. 267; C l o u g h 1967, pp. 6iff. B u t see Sasso 1967, pp. 84ff.

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and there were those in the city who believed Machiavelli was teaching Lorenzo how to become her absolute ruler: 'to the rich it seemed that his Prince had been a lesson to teach the Duke to deprive them o f all their properties, to the poor, o f all their liberty' (Busini i860, p. 84: letter o f 23 January 1549). But i f 17 Principe contained a specific message to the Florentines, it has rather to be sought in chapter ix on the 'civil principality' ('principato civile'), where Machiavelli advises the 'private citizen' who 'with the support o f the other citizens becomes prince o f his fatherland', his patria, to found his power on the people rather than on the nobility, the grandi, because such a power base would give him greater security (cf. x x ; see Sasso 1967, pp. 96ff, 1980, pp. 346ft). T o gain popular favour, he could use a variety o f methods, molti modi, which Machiavelli refrains, no doubt prudently, from spelling out; but the traditional use, derived from Aristotle, o f the term politicus or civile to describe constitutional govern ment based on popular consent can hardly have been absent from Machiavelli's mind when he was writing that chapter (see Rubinstein 1987, pp. 44ff). 'These principalities decline', he says at its end, 'when they change from the or dine civile to the absolute one' (cf. Discorsi 1, 25, 26); and in the Discorsi he writes (1, 16; cf. 1, 58, m, 1) that the king o f France, whose rule conformed to the requirements o f the vivere politico or civile, had 'pledged themselves to obey an infinite number o f laws, which encompass the security o f all their peoples' (see below, p. 54). The Discorsi are also designed to demonstrate that, although the government o f monarchies as well as o f republics can conform to the vivere civile, it is in the republics that it finds its fullest expression. Republicans took it for granted that the vita civile was characteristic o f republics; Savonarola had described it as natural to the Florentines (see above, pp. 4 0 - 1 ) ; Machiavelli saw it realised to perfection in ancient R o m e . In order to discover the reasons for R o m e ' s success in creating 'a perfect republic' (1, 2), he takes as his text the first ten books, or decade, o f Livy's History of Rome, which cover the history o f the city from the origins to 293 B C , but he also draws on later books o f that work. In the opening sentence o f the proem o f the first book o f the Discorsi, he proudly affirms that he has chosen to 'enter a new path . . . not yet trodden by anyone'. Considering, he says, that antiquity is so greatly revered that, to cite only one o f innumerable examples, sculptors are made to imitate fragments o f ancient statues acquired at great cost, it is a matter o f surprise and sadness that the examples o f virtuous actions provided by ancient history are 'admired rather than imitated'. 'Infinite numbers o f those who read it enjoy hearing o f the 46

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Italian political thought, 1450—1530 various incidents contained in it, without any thought o f imitating it, since they believe this to be not only difficult but impossible'. T o remedy this 'error', he proposes to write a commentary on Livy's History (in fact, he says, on all its extant books), so as to learn from that work the kind o f lessons 'which one should seek to acquire through the knowledge o f history'. The premise for this enterprise is the fundamental identity o f human nature from antiquity to the present time, 'the world' having 'always been the same' ('sempre essere stato ad uno medesimo modo'), only what is good or bad in it shifting from region to region (11, proem). B y taking as the text for his political theory an historical rather than, like his scholastic and humanist predecessors, a philosophical work, Livy' Ab urbe condita rather than Aristotle's Politics, Machiavelli endowed his enquiry from the start with an historical dimension. His generalisations and his rules for political action (see Machiavelli 1950, 1, pp. 93ff; Butterfield 1940, pp. 37ff, 7iff) are, as a result, derived from his study o f R o m a n history as well as from his own experience. At the same time, by writing the Discorsi in the form o f a commentary, he renders a systematic analysis o f that theory often singularly difficult, at times artificially contrived. Yet, despite occasional inconsistencies and even contradictions, a coherent scheme o f political ideas does emerge from a reading o f the Discorsi; and this is helped by the fact that the first eighteen chapters disregard the chronological sequence o f Livy's History and discuss, in a fairly systematic fashion, fundamental concepts and problems which are subsequently presupposed and partly treated at greater length. Machiavelli's historical and empirical method o f political enquiry underlines, and largely explains, his apparent lack o f interest in some o f the basic questions o f classical and scholastic political philosophy - such as the role o f justice in the state, the nature o f law, the limits o f political obligation, and the relationship between the temporal and the spiritual power (Plamenatz 196J, 1, p. 16). In the proem o f the Discorsi, he enumerates, in his turn, the questions to which a correct reading o f ancient history can provide answers: they concern the institutions (ordini) o f republics and o f kingdoms, the preservation o f political regimes, military organisation and judicial administration, and territorial aggrandisement. In the Discorsi, these questions are encompassed in the basic theme presented to Machiavelli by Livy's History: why and in what ways R o m e became a 26

26. Gilbert 1953, p. 150 (repr. 1977, p. 127) suggests that these chapters constituted the draft o f a separate treatise on republics on w h i c h Machiavelli was w o r k i n g in 15 13 and w h i c h he later used in the final version o f the Discorsi.

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'perfect republic'. The point o f departure for Machiavelli's attempt to answer this question is Polybius' cyclic theory o f constitutional change (i, 2), although he does not mention him by name. Polybius saw the mixture o f constitutional forms as the only way by which the inexorable process o f corruption, to which all simple constitutions are subject, and hence the cycle through which they pass, could be for a time arrested; the R o m a n republic owed its duration to its mixed constitution. B y taking the sixth book o f Polybius' Histories as his guide for his interpretation o f the history o f R o m e , Machiavelli also follows Polybius' view that even R o m e , despite the exemplary character o f her constitution, was not exempt from the process o f corruption. In sharp contrast to the condemnation, traditional in Italian political thought since the thirteenth century, o f civic division as destructive o f republican regimes, including that o f ancient R o m e , he considers class conflicts the chief cause o f the evolution o f her constitution, and thus o f her stability and greatness. T w o legislators, Romulus and Numa, had laid the foundations o f that constitution, just as Lycurgus had laid those o f Sparta; but the laws and institutions they had established had been designed for a monarchy. Yet, though defective, they could, after the expulsion o f Tarquinius, serve as the foundations for a vivere civile e libero (1, 2), that is, a republic. The role o f the lawgiver is central to Machiavelli's political thought; in R o m e , however, he provides, in contrast to Sparta, only the foundations on which later generations were to build, in the course o f struggles between social classes, 'a perfect republic' (1, 2 ) . That all states are divided into two classes, the nobles and the people, the grandi and the popolo, whose 'humours', or desires, conflict with one another (1, 4), is one o f the major premises o f Machiavelli's political theory. The umori form part o f Machiavelli's notion o f the state as a body politic in which, as in the human organism, contrasting humours can be contained or reconciled. In II Principe, the new ruler is advised to make use o f this division in his own interest by choosing the people as his chief supporter: 'who becomes a prince through the favour o f the people, should preserve its friendship'; who does so 'against the people through the favour o f the nobles, should above everything else seek to acquire that o f the people' (ix). According to the Discorsi, the mixed constitution created in R o m e a balance between these contrasting 'humours' by dividing power 27

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27. See Sasso 1967, pp. 161-280 (revised Sasso 1 9 8 7 - 8 , 1 , pp. 3 - 1 1 8 ) ; W a l b a n k 1972, pp. 13 iff. O n the eventual decline o f the m i x e d constitution, W a l b a n k 1972, p p . 1 4 5 - 6 . 28. T h e basic concept is again Polybian: see The Histories, vi. 1 0 . 1 2 - 1 4 ; R o m a n s achieved the same result as L y c u r g u s not ' b y any process o f reasoning, but b y the discipline o f m a n y struggles and troubles' (trans. W . R . Paton, L o e b edn, 111, p. 293). 29. ' . . . e' sono in o g n i republica due u m o r i diversi, quello del p o p o l o e quello de' grandi'. t n e

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Italian political thought, 1450—1530 between those two classes. Machiavelli insists that, contrary to received opinion, in R o m e class conflicts had a constructive effect by creating a constitution which made possible centuries o f domestic stability (1, 4). He also maintains that, through the active share in political life assigned by it to the people, that constitution provided the foundation o f R o m e ' s military power and hence o f its empire (1, 5); while the Venetian constitution, mixed in its turn, had, by making the nobility the ruling class o f the state at the expense o f the people, deprived the republic o f the strength needed to preserve its conquests (1, 6). It was only when in R o m e selfish economic interests came to prevail, in the class conflicts, over political ambitions (see Price 1982), that these conflicts took, at the end o f the second century BC, a disastrous turn, leading first to the victory o f the nobility over the people and finally to the overthrow o f the republic itself by Caesar. The event which set this process in motion was the Gracchi's attempt to enforce the agrarian laws at the expense o f the patricians, because it resulted in such 'hatred between the plebs and the senate, that it led to armed struggle and to bloodshed' (1, 37; see Cadoni 1978a), and thus to the breakdown o f the political balance o f the vivere civile which the same class conflicts had helped to bring about at the time o f the early republic through perfecting its ordini. Machiavelli distinguishes between ordini and leggi (see Whitfield 1955; repr. 1969); in R o m e , the former were the political institutions created by the founders o f the monarchy and then o f the republic, the latter were laws that were introduced subsequently; they could supplement or enforce, but only rarely change, the ordini. He explains this distinction in Discorsi, 1, 18: the constitutional arrangement o f the R o m a n republic, with the division o f power between consuls, senate, and tribunes, and with their methods o f elections to office and o f legislation 'changed little or not at all'; what changed were the laws that were designed to restrain, among other corrupt practices, the anti-social ambitions o f the citizens. In view o f the fact that Machiavelli often uses ordini and leggi as interchangeable terms, it is important to bear this distinction in mind. Legislators have to assume, he says at the beginning o f the Discorsi (1, 3) 'that all men are evil' and that they 'never do good unless induced by necessity'. His concept o f law, like that o f Marsilius o f Padua, is unreservedly positivist: the validity o f human law depends in no way upon its conformity to a higher law. This son o f a lawyer omits entirely, from his discussion o f law, the term 'law o f nature', crucial for medieval juristic theory; perhaps it is not without an ironic 30

30. C a n n i n g 1988, pp. 454ff. Geerken 1987 argues that Machiavelli's use o f the term ordini relates to C i c e r o ' s concept o f natural l a w (pp. 40—1). For the generally accepted v i e w on this question see ibid., pp. 3 7 - 8 .

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twist that in Bartolomeo Scala's dialogue De legibus et iudiciis, Bernardo Machiavelli figures as representing, in Platonic terms, this tradition (Brown 1979, pp. 292—4). Good laws produce buona educazione, and 'good education' generates, in its turn, 'good examples' (1, 4), that is, o f civic virtue. For Machiavelli, good laws are not concerned with individual rights, but with civic duties, with checking ambition and restraining or reconciling conflicting bids for power. They benefit the citizens insofar as they secure domestic peace, concern for the common interest, and security o f life and property, with which the vast majority o f citizens is anyway satisfied: only 'a small part o f them want to be free in order to command'; in no republic does the ruling group exceed forty or fifty members (1, 16). Good laws also serve the citizens by providing the foundations o f empire. Religion and military service make it possible for the laws to fulfil their creative functions, the former by instilling unquestioned loyalty to the state, the latter by complementing civic virtue with military prowess. Numa was the second founder o f R o m e , for the religious institutions which he introduced were 'among the prime reasons for the happiness o f that city'; they 'caused good ordini, and good ordini produce good fortune', which in its turn was the cause o f R o m e ' s successful military exploits ( 1 , 1 1 ) . 'Where military service (milizia) is good, the ordine must needs be good', and it is rare that this is not accompanied by good fortune (1, 4). Indeed, Machiavelli goes so far as to maintain that 'the foundation o f all states is the good milizia'; and where it does not exist, 'there cannot be either good laws or anything good' (m, 31). This reformulates his statement in 17 Principe (xn) that 'the principal foundations o f all states . . . are good laws and good arms', and that 'there cannot be good laws where there are not good arms, and where there are good arms there must be good laws'. The milizia is also essential for republics whose aim is territorial aggrandisement, and which should follow R o m e ' s example in arming the people (1, 6). But good arms cannot be easily introduced, and when introduced preserved, without religion (1, 1 1 ) . While reinforcing the case for the essential role religion plays in the state by generating civic virtue, Machiavelli's argument has also a bearing on his critique o f Christian religion as being less capable than the pagan religion o f ancient R o m e o f producing fortitude and love o f liberty among the citizens: 'the ancient religion . . . beatified only men who were replete with worldly glory . . . Our religion has glorified humble and 31

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31. See Arte delta guerra, p r o e m , in Machiavelli 1961b, pp. 325—7. 32. . . . d o v e e religione facilmente si possono introdurre 1' armi; e d o v e sono l'armi e n o n religione, con difficulta si p u o introdurre quella'.

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Italian political thought, 1450—1530 contemplative men rather than men o f action'; although he adds that this is caused by a false interpretation o f our religion, which 'allows us to exalt and defend the fatherland' (11, 2). While institutions and laws promote civic virtue, they require, for being observed, in their turn 'good customs' ('buoni costumi'): 'just as good customs need good laws for being maintained, so laws need good customs for being observed' (1, 18) — an apparently circular argument, which reflects a fundamental premise o f Machiavelli's political thought: the dependence o f institutions for their proper functioning on social conditions. These are, in their turn, subject to change. As a result, good laws and institutions that were introduced at a time when social conditions were healthy cease to be so, indeed may be harmful, when they have become corrupt (1, 1 7 , 18). Machiavelli's theory o f the role o f institutions and laws in political life is sociological as well as historical. Polybius' theory o f cyclic change relates, in Machiavelli's formulation, to 'variations o f government' ('variazioni de' governi'), which follow 'the cycle passing through which all commonwealths have been and are governed' (1, 2 ) . According to Polybius, all simple constitutions had a built-in tendency to change into corrupt forms; even the mixed consti tution was destined to decay and fall. In the first chapters o f the Discorsi, Machiavelli had analysed the origins and progress o f the 'perfect' mixed constitution o f R o m e . Three subsequent chapters (1, 16—18) are concerned with the decline o f that constitution, and with corruption in general. The result is a general theory o f political degeneration which is firmly based on social foundations. 33

'Since all human affairs are in a state o f movement (in moto), and since they cannot stand still, they must either rise or decline' (1, 6); and Machiavelli recapitulates, at the beginning o f book 111: 'it is abundantly true that the life o f all things in this world has its end'. The goodness, bonta, which republics and monarchies had at the time o f their creation, 'degenerates in the course o f time' unless they are renewed (m, 1; see below p. 52). This degeneration affects not only ordini but society at large. Ozio, idleness, is singled out as one o f its immediate causes, since it threatens civic virtue (1, 1 ) ; it is a hallmark o f the feudal society which Machiavelli considers to have been, in Italy, a primary cause o f corruption (1, 55; see Waley 1970, p. 95). Another such cause is inequality, in contrast to the basic equality among citizens which should reign in republics, and which has 33. O n the extent o f the influence on Machiavelli o f Polybius' cyclic theory, see Sasso 1967, pp. i66ff, 232ff, 1987-8, 1, pp. 7ff, 75ff.

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made it possible for the German towns to maintain an uncorrupted vivere politico (i, 55); yet another, the seizure by the government o f absolute power, 'for absolute power {una autorità absoluta) corrupts the material {la materia), in the shortest o f time' (1, 35). What did Machiavelli mean by materia?. 'Other ordini and regimes {modi di vivere) are required according to whether their subject is bad or good, nor can the same form exist where the materia is entirely contrary' to it, he states in 1, 18. In other words, the ordini are the form, the materia the society to which they are applied; and the society can be virtuous like that o f republican R o m e , whose history bears witness to the 'goodness o f its materia (1, 18, m, 8), or it can be corrupt. Where the materia is good, as in R o m e , class war and civil unrest, i tumulti ed altri scandoli, do not damage it; where it is corrupt, 'the well-ordered laws are o f no avail', unless applied with extreme force (1, 17). This process o f social degeneration is inevitable, it can only be arrested or reversed by one man using such 'extreme force' in imposing laws capable o f restoring society to its pristine health: 'and I do not know whether this has ever occurred and whether it is possible that it should occur' (1, 17). As far as republics are concerned, to renew one in this way 'presupposes a good man, and to become through violence the ruler o f a republic an evil one', and consequently it happens extremely rarely that a good man seizes power by evil means, though the end is good, or that an evil man, once he has become a prince, should use the authority he has thus acquired to a good end: it is therefore practically impossible 'to maintain or newly create a republic in corrupt cities' (1, 18). Elsewhere, Machiavelli is less pessimistic: states, like religious bodies {sètte), which are equally subject to degeneration, can be renewed by taking them back to their origins {principii), and 'those are better ordered and have longer life, whose institutions {ordini) makes their frequent renewal possible' (m, 1). Reformers occupy, in his political theory, a place second only to that o f founders. 'Truly, should a prince seek worldly glory, he should covet to possess a corrupt city, not in order to spoil it entirely as Caesar, but to re-order it as Romulus did' (1, 10): 'one ought to take it as a general rule, that it never or rarely happens that a republic or a kingdom is either well ordered at the beginning, or completely reformed apart from its ancient institutions, unless this is done by one person' (1, 9). Yet, such a reform was liable to be only temporary: once its architect was dead, the city would return to its former state (1, 17). The problem is compounded by the fact that, while absolute power is essential to effect the reform o f a corrupt society, it is itself, as we have seen, a source o f corruption. Machiavelli's sociological analysis o f corruption forms part o f a general 52 Cambridge Histories Online © Cambridge University Press, 2008

Italian political thought, 1450—1530 theory o f the suitability o f political institutions to different societies at different points o f their evolution. Institutions differ also according to whether a state is organised with a view to territorial aggrandisement or to security within its own borders. The former was the case o f ancient R o m e , the latter is that o f modern Venice. A state which wants to expand should therefore follow, in fashioning its institutions, the example o f R o m e ; to seek aggrandisement where the institutions, and in particular those concerning warfare, are not devised accordingly, means to court disaster, as the recent example o f Venice's — in fact only temporary — loss o f her mainland possessions shows (1, 6). As for the notion o f the suitability o f institutions to different societies, it derives ultimately from Aristotle; Tolomeo o f Lucca had applied it to Italy, Savonarola, following him, to Florence (see above, pp.40—1); Machiavelli refines Savonarola' formu lation by arguing that some nations require monarchies, others republics because o f their different social structures; 'a republic should therefore be set up where there i s . . . a great equality, and vice versa a principality where there is great inequality'; to ignore this political fact o f life will nearly always lead to failure (1, 55). At the same time, Machiavelli considered republics to be superior to monarchies. 'As for prudence and stability, I say that a people is more prudent, more stable, and has better judgement than a prince' (1, 58); 'a republic has a longer life . . . than a principality' (m, 9); the 'common good is only observed in republics' (11, 2); they 'observe treaties far better than princes' (1, 59); they show more gratitude to their citizens than princes to their subjects (1, 29); R o m e ' s rise to world power began after the expulsion o f the kings and the establishment o f the republic. In fact, 'cities have never increased their empire or wealth unless they were free', for is it 'the common good which makes cities great' (11, 2). Machiavelli rejects the 'common opinion', according to which 'the people, when in power, is variable, fickle, and ungrateful, and disting uishes between the 'disorganised' ('sciolta') multitude and the one which is 'regulated by the laws'. It is the 'well-ordered people' 'which would be at least as stable, prudent, and grateful . . . as even a prince who is considered wise, while a prince who is unrestrained by the laws' would in these respects be worse than a people. At the same time, i f one compared a prince and a people both bound by the laws, 'one would see more virtu in the latter than in the former; i f unrestrained by them, 'one would see less errors in the people than in the prince' (1, 58). Despite the superiority o f the republic, good government can also be 34

34. Politics in, 1288a, i v , 1296b, v , 1327b. See Butters 1986, p.413.

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provided by a monarchy, and not only at the foundation o f states, or at their reform, where the untrammelled action by one man is essential. In a corrupt society, an absolute ruler can provide the only solution; for 'where the materia is so corrupt that the laws do not suffice to restrain it', what is needed to reform it is a monarchy 'which with absolute and excessive power restrains the excessive ambition and corruption o f the powerful', as would be the case o f most o f Italy (i, 55). But also in societies in which corruption has not reached a stage where only an absolute ruler stands any chance at all o f reforming them, monarchy can be a suitable form o f government. The prime example o f a good monarchy is, for Machiavelli, contemporary France. One o f the reasons why he considered that country 'among the well-ordered and well-governed kingdoms' o f his age was precisely because its king had succeeded, through the establishment o f the parlement, in placing 'a bit in the mouth' o f the great nobles and had thus checked their ambition and insolence (II Principe, x i x ) ; another, and more cogent reason, was that he had 'pledged himself to observe an infinite number o f laws which encompass the security o f all his peoples' (1, 16); with the result that the kingdom o f France is 'more regulated by laws than any other o f our time o f which we have knowledge' (1, 58). A monarchy bound by law was, like a republic, a vivere politico, and as such the opposite to tyranny. Since the early fourteenth century, Italian republicans had identified the politeia o f Aristotle's Politics, as vivere politico or civile, with republican government; Machiavelli departs from this tradition by extending the term politicus, as Fortescue had done in England and Seyssel, recently, in France, to constitutional monarchies (Rubinstein 1987, pp. 44ff, 49ff). Machiavelli's eulogy o f the kingdom o f France, which is 'regulated by laws', serves to underline its distinction from a tyranny (see Matteucci 1 9 7 2 , pp. 215ft). His unreserved condemnation o f tyranny relates to the classical and medieval notion o f it as a corrupt form o f monarchy, but also to Italian republican traditions: after the rise o f despotic regimes in the Italian cities in the thirteenth century, tyranny was seen not only as a corruption o f monarchy but above all as the antithesis to republican liberty. It is this republican tradition which prevails in the Discorsi where, after dealing with the heroic age o f the R o m a n republic, he comments on the succession o f crises which led to its destruction by Caesar was, for Machiavelli, a tyrant, like other citizens 'who had become tyrants o f their fatherland' (1, 16). The new prince o f 17 Principe who comes to power as a private citizen, 'di privato . . . diventa principe' (vm), is, by this definition, a tyrant as soon as he seizes absolute power (ix; cf. Discorsi 1, 25, 54

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Italian political thought, 1450—1530 26), although Machiavelli never uses the term in this work, even where he condemns princes for their criminal and cruel actions (vm). It is one o f those points where 27 Principe and the Discorsi, though dealing with the same subject, approach it from different viewpoints — a difference which was due to the different purposes o f the two works, rather than to changes in Machiavelli's political thinking. This forms part o f the wider question o f the relationship between the republican theory o f the Discorsi and the advice offered in The Prince to the new ruler. The apparent conflict between the political teachings in these two works has been interpreted as due to the former belonging to an earlier phase in the development o f Machiavelli's thinking about politics, but it can also be explained by the different situations in which they were written and by their different purposes. The two works have major themes in common. Thus the problem o f virtu and fortune is again taken up in the Discorsi, but given a less voluntarist and more historically defined slant than in The Prince: the emphasis is now placed on men's character conforming to the point in history at which their action takes place: 'the cause o f the bad or the good fortune o f men depends on their behaviour happening to be in conformity with the times' (111, 9). This is, incidentally, yet another reason why a republic is superior to a monarchy; for owing to the 'diversity' existing among its citizens, it is better equipped than a prince to 'adapt itself to the diversity o f the times' and consequently enjoys life and good fortune over longer periods (in, 9). Another theme, central for the teachings o f / / Principe, is the rejection o f Christian morality as the guide o f political action. In The Prince, while considered objectionable in theory, this is justified in practice on the grounds o f the innate wickedness o f man; 'for how one lives is so far removed from how one ought to live, that he who leaves what is done for what ought to be done will experience his ruin rather than his preservation' (xv). Here the use o f immoral methods is defended as essential for the success and the security o f the prince, whereas in the Discorsi the end is also postulated as justifying the means as long as it serves the common good. Writing o f Romulus' murder o f Remus, Machiavelli comments that it is to be accepted that, 'although the fact accuses him, the effect excuses him', it being a 'general rule' that a state can only be well ordered, or reformed, by one person, and that he who intends to do so not for his own sake or for that o f his successors, but for the common good and the fatherland, 'should seek 35

35. See B a r o n 1961, p p . 247flf, repr. 1988, p p . i93fF, and above, n. 24.

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to be alone in authority' (i, 9). It is for the sake o f preserving the republic that he justifies the execution by Brutus, the first consul, o f his own sons for having plotted against it. However, much the same also applies to the founder o f a tyranny: 'he who establishes a tyranny and does not kill Brutus, and who creates a republic (uno stato libero) and does not kill the sons o f Brutus, lasts only a short time'; in both cases 'it is necessary to take exemplary (memorabile) action against the enemies' o f the new regime (m, 3). The necessity to use extraordinary methods at their foundation applies to republics as well as to principalities: 'he who sets out to govern a multitude either in the form o f a republic or o f a principate, and does not secure himself against those who are hostile to the new order, creates a regime which will be short-lived' (1, 16). The chapter on fraud (in, 40), with its distinction between private and public morality, reads as if it were taken straight from The Prince: 'although to use fraud is detestable in any action, in the conduct o f war it is nevertheless praiseworthy and glorious'. For the aim is the good o f the community, in this case o f the fatherland in its relation to other states; and, as he says in the following chapter (in, 41) — one o f the last o f the work: 'when one decides wholly on the safety o f the fatherland (patria), there should be no consideration o f what is just or unjust, kind or cruel, praiseworthy or ignominious; rather, setting aside any other regard, one should entirely adopt that decision which saves its life and preserves its liberty'. The term patria recurs, about ten years after he had completed the Discorsi, in a letter Machiavelli wrote, at a moment o f supreme crisis, when the imperial army was advancing on Florence: 'I love my fatherland more than my soul' ('amo la patria mia piu dell'anima'). What is the relevance o f his patria to an understanding o f that work? There are no explicit references to the internal politics o f Florence in i7 Principe, except to support his argument about the importance o f arms for a prophet: Savonarola, a prof eta disarmato, 'was ruined . . . when the multitude ceased to believe in him' (vi). Yet, i f our interpretation is correct, there is a veiled lesson on Medicean rule in the chapter on the 'civil principality' (ix; see above, p. 46). The Discorsi were perhaps read by Machiavelli around 1 5 1 6 to a select literary circle at Florence which met in the Rucellai garden. T o what extent has this political commentary on the history o f the 'perfect' R o m a n republic to be understood in the context o f Florentine politics, and 36

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36. T o Francesco Vettori, 16 A p r i l 1527, in Machiavelli 1961a, pp. 504-537. R i d o l f i 1972, pp. 265-6. A c c o r d i n g to N e r l i 1859,11, p . 12, 'a loro istanza compose il M a c h i a v e l l o quel suo libro de' discorsi sopra T i t o L i v i o ' .

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Italian political thought, 1450—1530 as providing, apart from 'general rules', special lessons for his compatriots? His observations on the city and on individual citizens, scattered through that work, are mostly critical; yet when he discusses the chances o f reform in corrupt Italy, he distinguishes regions such as Lombardy, in which the materia had degenerated to an extent where only absolute power could restrain the excesses o f the nobility, from the three Tuscan republics Florence, Siena, and Lucca, 'where there exists so much equality that a prudent man who was familiar with the civic institutions (civilita) o f antiquity could easily introduce a constitutional government (uno vivere civile)' (1, 55). Central to the problem o f the role o f Florence in the Discorsi is the question to what extent Machiavelli's innovative view o f the effects o f internal division on the evolution o f the R o m a n republic was relevant to his interpretation o f Florentine history. It was only later, in his Istorie jiorentine (Machiavelli 1962), which he wrote between 1520 and 1525, that he tried to explain why civil conflict was beneficial in R o m e but harmful in Florence; but it is probable that when he discussed the political and institutional equilibrium which the struggles between the nobility and plebs had brought about in ancient R o m e , he was also thinking o f the antagonism between ottimati and popolani, between aristocratic and democratic tendencies, which had reemerged in Florence after the creation o f the great council in 1494 and which played a major role in the political life o f the republic during Machiavelli's years in its chancery. The preface to the third book o f the Istorie Jiorentine contrasts the political balance which class struggle had produced in R o m e with the oppression o f the nobility by the people after its victory in Florence; and in the preface to the seventh book he insists that factions, sette, are, unlike class division, always detrimental to the common good, and have always been harmful to Florence. In the Discorsi, most o f the explicit references to his city are to her recent past (see Rubinstein 1972, pp. 23ff); but towards the end o f the first book, Machiavelli attempts a comprehensive interpretation o f her history. During the last two centuries, he writes, which are reliably documented o f which 'si ha di vera memoria' — she has never succeeded in establishing a regime 'which allowed her to be truly called a republic' (1, 49). About two years after the completion o f the Discorsi, he made this conclusion the starting point for an analysis o f the constitutional develop ment o f Florence designed to provide the basis for a proposal to reform the ruling Medicean regime. The Discursus florentinarum rerum, written after the death in 1 5 1 9 o f the virtual ruler o f Florence, the younger Lorenzo de' 57

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Medici (Machiavelli 1 9 6 1 b , pp. 261—77), forms part o f a group o f political pamphlets advising the Medici how to secure their power through reforms. Machiavelli's is the most radically republican o f these writings: he advocates the restoration, with some substantial changes, by Leo X and Cardinal Giulio, the only surviving legitimate members o f the main branch o f the family, o f the republican constitution the Medici had overthrown in 1 5 1 2 . He repeats, and expands, his critical interpretation, in the Discorsi, o f his city's constitutional history: it had never been a true republic or a true principate. Her social structure, characterised by a Very great equality', requires a republican constitution (pp.261, 267). The Medici were, by reestablishing and reforming such a constitution, to act as the reformers Machiavelli had praised, in the Discorsi, as the saviours o f their country: 'no one is as much extolled in any o f his actions as those who through laws and institutions have reformed republics and kingdoms' (p. 275; cf. Discorsi, 1, 10). This appeal, which joins that to the Medici, at the end o f II Principe, to liberate Italy from the barbarians, proved, in its turn, to be a complete failure. It contrasts with his observations, in the Discorsi, on the obstacles facing reform in an age o f corruption (1, 1 7 , 18), and thus reflects on the problem, fundamental for Machiavelli's theory o f the lessons o f history, o f the validity of'general rules'.

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Machiavelli's Discursus florentinarium rerum was, like other Florentine political writings such as those by Niccolo Guicciardini, Lodovico Alamanni, and Alessandro de' Pazzi (Albertini 1 9 5 5 , pp.4irf, 85tT), concerned with practical questions regarding the reform or the consolida tion o f the restored Medici regime. The hopes o f Machiavelli and o f other republicans that the Medici would initiate a constitutional reform leading to a restoration o f the republican constitution were dashed by the discovery, in 1522, o f a conspiracy against them. Francesco Guicciardini's Dialogo del reggimento di Firenze (Guicciardini 1932, pp. 3—172), which he began before that event, during the pontificate o f Leo X , and completed about four years later during that o f the second Medici pope, Clement VII (pp. 296—7), proposes such a reform within the context o f a wide-ranging analysis o f Florentine government and politics under the early Medicean regime and under the republican regime established in 1494. Unlike Machiavelli, Guicciardini was a member o f an old patrician family which had played a prominent role under Lorenzo de' Medici and had later supported the new republic; as the heir to a family tradition o f active 58 Cambridge Histories Online © Cambridge University Press, 2008

Italian political thought, 1450—1530 participation in government, he was, again in contrast to Machiavelli, drawn to an aristocratic rather than to a democratic view o f Florentine politics. At the same time, although holding high office in the administration o f the States o f the church under two Medici popes, he considered, when writing the Dialogo, a republican constitution more suitable to his city than Medicean rule. The purpose o f the Dialogo explains why its republican theory is, unlike that o f the Discorsi, strictly related to Florence; but just as the Discorsi have Florentine implications and undertones, so the political ideas expounded in the Dialogo often transcend their Florentine dimension and assume a general character, which comes fully into its own in the Ricordi, or maxims, which Guicciardini penned in the course o f the manifold activities o f his political life. The central question o f the Dialogo is whether the Medici regime or a republican constitution was more congenial to Florence. The work belongs, like the Discorsi, to the Italian debate on the respective merits o f monarchies and republics. It is also, like Machiavelli's political writings, strictly related to empirical facts. Guicciardini resolutely rejects any evaluations o f forms o f government based on normative classifications o f constitutions (p. 15). Similarly, he subjects traditional concepts o f liberty and equality, basic for Florentine political thought and authoritatively formulated by Bruni, to a devastating critique: in most cases these terms serve, he believes, to conceal bids for power on the part o f the underprivileged (p. 38). The only criterion he accepts for a comparative evaluation o f constitutions concerns, pragmatically, their 'effects' feffetti'). Those constitutions are the best, 'where the laws are most observed and justice is best administered, and where there is most consideration o f the good o f all, while at the same time social distinctions are respected' (p. 16). His rejection o f classical constitutional theory as his guide does not prevent him from proposing the mixed constitution as the ideal form o f government for the Florentine republic; but he does so with reference not to a classical author, as Machiavelli had done, but to contemporary Venice. It is Venice, not ancient R o m e , which he holds up as a model republic, a view which goes hand in hand with a critique o f Machiavelli's interpret ation o f R o m a n history and altogether with a rejection o f his axiomatic belief in the lessons o f history (p. 6 8 ) . 38

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38. Guicciardini 1932, pp. 1486°. C f . his Considerazioni intorno ai Discorsi del Machiavelli sopra la prima deca di Tito Livio, Guicciardini 1933, pp. ioff, 43. 39. C f . Guicciardini 1951, p. 121 ( c i 10): ' Q u a n t o si ingannano coloro che a ogni parola allegano e R o m a n i ! Bisognerebbe avere una città condizionata c o m e era loro, e poi governarsi secondo quello essemplo . . .'

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At the same time, Guicciardini insists, like Machiavelli, on the importance o f the suitability o f constitutions to the societies for which they are devised; and like Savonarola, and like Machiavelli in the Discorsi, he accordingly considers republican liberty to be 'natural' for Florence (pp.98—9). Again like Savonarola, he contrasts that liberty with the government o f Florence under Lorenzo de' Medici; but he does so within the context o f a detailed comparison o f the Medicean regime before 1494 with that o f the new republic. Savonarola had condemned the former as a tyranny, Guicciardini argues that it had respected republican institutions and traditions, and had preserved at least the image o f liberty. While preferring republican liberty as natural to Florence, he nevertheless rates the early Medicean regime higher than the republican one that had replaced it in 1494 on the grounds o f its better 'effects' for the government o f the city, because its errors were due to rational calculation, those o f the people to ignorance; and ignorance, 'which has neither measure nor rules' (p. 51), is more damaging than errors due to malice (pp.46, 50—1, 55). As early as 1 5 1 2 , Guicciardini had, in a short discourse on the reform o f the republican regime o f 1 4 9 4 , singled out the guiding principle o f the ideal republican constitution, which he expounds in the second book o f the Dialogo, after having completed the comparison between the two regimes under which Florence had been governed in the recent past. That principle is a balance between the conflicting claims to power o f the upper and lower classes, to be secured by a constitution in which an elite o f wise and experienced citizens plays a decisive and moderating role and holds in check 'the ignorance o f the multitude' (p. 227). This does not only apply to Florence: 'at all times, experience has always shown that it is the virtue o f few citizens which has governed and which governs the republics' (p. 238). In the Dialogo, the senate, composed of'the most virtuous and best qualified citizens', holds the balance between the potentially excessive authority o f the head o f the republic, the Gonfalonier o f Justice, and the people assembled in the great council, by providing 'a moderating element between tyranny and popular licence' ('uno temperamento tra la tirannide e licenzia populare') (p. 118). His model, as for other institutions o f his ideal 40

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40. ' . . . non era v e n u t o su c o m e u n o stato di u n o principe assoluto, ma a c c o m p a g n a t o c o ' m o d i della libertà e della civilità, perché ogni cosa si g o v e r n a v a sotto n o m e di república . . . la imagine era che el g o v e r n o fussi libero' (p. 77). In his Storie fiorentine, c o m p o s e d in 1508—9, he had described Lorenzo as a benevolent despot (Guicciardini 1931, p. 80): ' . . . bisogna conchiudere che sotto lui la città non fussi in libertà, n o n d i m e n o che sarebbe impossible avessi a v u t o un tiranno migliore e più piacevole'. 41. Del modo di ordinare il governo popolare ('Discorso di L o g r o g n o ' ) , in Guicciardini 1932, pp. 218—59.

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Italian political thought, 1450—1530 Florentine republic, is the Venetian senate. Venice, which, he says, 'for so many centuries has preserved the same form o f government without ever experiencing seditions or civil discord' (p. 139), has 'the best government not only o f our own times, but perhaps the best that any city had ever possessed in ancient times, for it has a share o f all forms o f government, o f one, o f the few, and o f the many, and has moderated them all in such a way as to derive from each o f them most o f its advantages and avoid most o f its disadvantages' (pp. 138—9). In a veiled critique o f Machiavelli's idealisation o f ancient R o m e as the 'perfect republic', Guicciardini, apparently oblivious o f his earlier rejection o f the standard classifications o f consti tutions, shares, in a far more subtle and comprehensive form, the admiration with which some Florentine patricians o f the fifteenth century had regarded the mixed constitution o f Venice — an admiration which reemerged after the creation in 1494 o f the great council, conceived by Savonarola in imitation o f Venice, and which contributed to attempts by the aristocrats, the ottimati, first in 1502 and then during the last days o f the republic in 1 5 1 2 , to reform the republican constitution by creating a senate (Gilbert 1968, pp. 4 7 5 - 6 , 484, repr. 1977, pp. 1 9 0 - 1 , 198). Yet Guicciardini, with all his insistence on the divisive role o f a political elite — 'in reality, the entire weight o f government (tutto 'I pondo del governo) lies, in the end, on the shoulders o f very few men, and this was always so in all republics in ancient as in modern times' (Guicciardini 1932, p. 242) - does not want this elite to be exclusively formed o f aristocrats. He condemns oligarchy as leading to oppression and discord (pp. 139—40): what he has in mind is a meritocracy o f the wisest and the best citizens who, while not identical with the patricians, would be more likely be found in their ranks than in those o f the people (pp. 1 1 8 - 1 9 ) . The detailed account o f the constitutional arrangements that were to establish and to secure Guicciardini's 'well-ordered' republic (p. 101) reflects a deep-rooted Florentine belief in the political efficacy o f insti tutional reforms and manipulations. Guicciardini shared Machiavelli's views on the creative force o f ordini, but they were meant to create, rather than civic virtue and imperial power, good government and internal stability. He too believed that their suitability was historically conditioned: Florence, he writes, was by now an old city, 'and rather declining than growing' ('phi presto in declinazione che in augumento'), and hence less capable o f being reformed (pp. 81—2, 145). When he began composing the Dialogo, at a time when constitutional reforms were being discussed in the city, he had not been without hope that his project o f an ideal Florentine 61

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constitution could contribute to republican reform before he reached old age. B y the time he completed this work he seems to have abandoned that hope, and a few years later, after the fall in 1530 o f the last Florentine republic, under which he had suffered from political persecution, he gave his full and unreserved support to the nascent principate o f the Medici. The Dialogo is not only a blueprint for a republican reform o f Florence. In his pragmatic insistence on political 'effects' rather than norms, Guicciardini breaks with the traditions o f classical political philosophy even more incisively than Machiavelli. His critical analysis o f the concepts o f liberty and equality, while related to Florence, are meant to have general validity, and the same applies to his observations on the connection between power and violence: ' i f one carefully considers their origins', he says o f states, 'they are [all] violent, and with the exception o f republics, and this only within their boundaries (nella loro patria), there is no power whatever which is legitimate' (p. 163). Like Machiavelli, he considers conquest a natural desire 'it is pleasant to make acquisitions' ('lo acquistare é cosa dolce': p. 160), in whose pursuit Christian virtures may not have any place. ' W h o nowadays wants to keep dominions and states should, whenever possible, use compassion and goodness, and where this is not possible, it is necessary that he use cruelty and pay scant regard to his conscience.' For ' i f one wants' to govern and rule 'in the way it is done today', it is impossible to do so 'according to the precepts o f Christian law' (p. 1 6 2 ) . Guicciardini included the observation that power is nearly always founded on violence almost literally in his Ricordi. The Ricordi, which he collected between 1 5 1 2 and 1 5 3 0 , were designed by him to spell out, in the form o f general maxims, the quintessence o f his public and private experiences in Florence and abroad. Many o f them recall the views expressed in the Dialogo, others range over a wider area. In a republic, 'only those should govern who are able to do so and deserve it' (c 109), for 'who speaks o f a people really speaks o f a mad animal which is crammed with a 42

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42. 'E pero potrebbe questa fatica mia non riuscire al tutto inutile e venire eziandio, innanzi che io invecchiassi, el t e m p o suo da publicarsi' (Guicciardini 1932, p. 299; first version o f the p r o e m o f the Dialogo). 43. In the final version o f the p r o e m he writes that he had c o m p o s e d the Dialogo 'massime . . . per m i o piacere e recreazione né c o n intenzione di publicarlo' (Guicciardini 1932, p. 5). 44. C f . also Del modo di ordinate, in Guicciardini 1932, p. 222: ' N o n é altro lo stato e lo imperio che una violenzia sopra e' sudditi.' 45. Guicciardini 1951, pp. ixff. T h e f o l l o w i n g references to the Ricordi are to this edition, Q refers to the collection o f 1512, A to Ricordi written b e t w e e n 1512 and 1525, B to that o f 1528 and c to the final one o f 1530. See also Scarano 1980, pp. 89-178 ('Le redazioni dei " R i c o r d i " ' ) .

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Italian political thought, 1450—1530 thousand errors and confusions, without taste, discernment, and stability' (c 140). ' D o not believe those who preach liberty so effectively, because . . . perhaps none o f them has anything but his private interests in mind' (c 66). In fact, 'those men conduct their affairs well in this world, who always keep before their eyes their own interests' (c 218). What the 'liberty o f republics' (la liberta delle republiche), according to a maxim written before 1525 (A 119), really means is that it is the 'servant o f justice, for it has not been founded for any other purpose than to prevent anyone being oppressed by another'. I f one could be certain that justice was observed under the rule o f one or a few, 'there would be no reason to desire' that liberty. Indeed, together with republican liberty, princely rule is a major theme o f the Ricordi, reflecting his experience o f Italian politics. Princes do not always conform to the classical norm o f being 'established not for their own interest but for the common good' (c 172); in the Ricordi, in fact, he calls them often tyrants — unlike Machiavelli in /7 Principe, he does not avoid the term to describe absolute rulers. There are 'prudent' tyrants, as well as 'bestial and cruel' ones (c 98, 99, 101). Guicciardini is here concerned less with tyranny as such, which he condemns, in one o f the earliest Ricordi (Q 23), as being held together 'by the blood o f the citizens', than with rules o f behaviour to be adopted towards a tyrant. ' T o save oneself from a bestial and cruel tyrant', the only effective rule is 'to flee from him as far and as quickly as possible' (c 101). Otherwise it is best to take as one's guide Tacitus, who tells one 'what are the thoughts o f tyrants' (c 13) and who 'teaches very well . . . those who live under a tyrant how to live and conduct themselves prudently, just as he teaches tyrants the means o f founding a tyranny' (c 18; see Schellhase 1976, pp. 94ff). 2

The years around 1530 formed a turning point in the history o f Florentine political thought. Machiavelli died in 1527, shortly after the last restoration o f the republican regime; after its fall in 1530, Guicciardini became a counsellor o f Duke Alessandro de' Medici and, after his assassination in 1537, helped Cosimo I to succeed him as duke; he spent his last years writing his greatest work, the Storia dTtalia. But Guicciardini's hope o f a republican reform, which he had expressed in his Dialogo del reggimento di Firenze, was not extinct among Florentine republicans. Shortly after the fall o f the last republic, Donato Giannotti combined, in his Delia repubblicajiorentina ( 1 5 3 1 - 4 ) , a painstaking survey o f the evolution o f the Florentine constitution with a critical analysis o f the shortcomings o f the last two republican regimes and with a detailed project o f constitutional reform which would create one such regime that would be both stable and 63

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lasting (see Albertini 1955, pp. 146ÍÍ). Giannotti began this work while he was confined to his villa near Florence because o f his association with the last republic: he had held Machiavelli's former post in the chancery, to which he had been appointed in 1527. The year before, he had written, in Padua, a dialogue Delia repubblica de' Viniziani, which has been described as representing 'the climax o f Florentine political thinking on Venice in the Renaissance period'. Giannotti may have been motivated by the publication, in 1526, o f the Delia república by Antonio Brucioli, a member o f the Orti Oricellari group who had fled from the city after the conspiracy o f 1 5 2 2 . Brucioli draws, in his dialogue, the picture o f an ideal republic which is largely modelled on Plato and Aristotle, but intends to deal with those republics only 'which have existed or which could exist', refusing, as Machiavelli and Guicciardini had done, to discuss imaginary ones; some aspects o f his scheme evidently refer to Florence, as for example the importance he ascribes to the militia (Brucioli 1982, pp. 101, i2off; see Cantimori 1937, pp. 95ff). Giannotti, in analysing the Venetian consti tution and describing its evolution, claims to be following the example o f Aristotle who 'composed special books on all states existing in his time and known to him' (Giannotti 1850, pp. 3—4). Despite all his admiration for the laws and institutions o f the Venetian republic and for the 'wise mixture' ('prudentissimo temperamento') o f its constitution (p. 1 7 ) , he did not set up a model for Florence a city in which the members o f the great council were descended from the nobles who, at the city's foundation, 'formed' its 'body' (p. 33). Like Guicciardini, he considers the mixed constitution the most suitable form o f government for Florence (Giannotti 1990,1, 5 ) ; but in a city in which there were few nobles (grandi) and a large middle class (pp. 98—9), the mixture o f constitutional elements should be weighed in favour o f the people, and should 'inclinare nel popólo' (111, 3). At the same time, the great council, 'the city's ruler' ('il signore della cittá') (p. 166), was to be composed o f the 'grandi, the mediocri, and the popolarf, to the exclusion o f the plebs (p. 166). Giannotti believed that his mixed constitution, his 'governo ottimamente temperato' (p. 102), was superior to that o f R o m e as described by Polybius (and, he might have added, by Machiavelli): had the government o f R o m e been weighted in favour o f the 46

47

48

49

46. Gilbert 1968, p. 490 (repr. 1977, p. 204). O n the date o f composition see R i d o l f i 1942, p. 7 7 . 47. Brucioli 1982, dialogue v i ; see C a n t i m o r i 1937, pp. 88ff; Albertini 1955, pp. 7 9 - 8 3 . 48. For Giannotti's use o f the w o r d temperare see Giannotti 1990a, in, 2 ( ' C o m e si debbe temperare lo stato misto'). 49. ' C h e Firenze é subietto capacissimo del g o v e r n o misto'. C f . 111, 4.

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Italian political thought, 1450—1530 people or the senate, she would have avoided civic struggles (m, 2). He visualises his ideal Florentine constitution in the form o f a pyramid, whose apex is formed by the Gonfalonier o f Justice, its base by the great council, with the senate on the intermediate level (m, 4 ) . Following Machiavelli's views on military service, and drawing on his own experience during the siege o f the city, he considers the civic militia an essential part o f the reformed republic (iv, 1). Like Guicciardini, he intends, in his work, 'to deal exclusively with the government' o f Florence, and with the 'kind o f republic that is suitable' to her (1, 2); but, unlike Guicciardini, who composed his Dialogo before the short-lived republican restoration o f 1527, he has the advantage, o f which he makes ample and detailed use, to subject to critical analysis not only the republican regime o f 1494, but also that o f 1527, and to single out their defects and shortcomings — an analysis which then serves him as the foundation o f his own programme o f a well-ordered and stable republican constitution. That he could still hope that such a constitutional reform could be introduced at a time when Alessandro de' Medici was consolidating his absolute authority in Florence under the protection o f the emperor contrasts with Guicciardini's diffident attitude towards the realisation o f his own reform programme (Guicciardini 1932, pp.5, 299—300; see above, pp. 61—2). Giannotti's treatise became, in its idealistic optimism, the major intellectual document o f the republican exiles, whose hopes o f a restoration o f the city's ancient liberties and more recent reforms were definitively dashed in 1537 by Cosimo I's victory over them in the battle o f Montemurlo. 50

50. H e had used the same metaphor in his description o f the Venetian constitution: Giannotti 1850, pp. 3 7 - 8 .

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3 Law DONALD

R.

KELLEY

'Civil science is the true philosophy', declared the fifteenth-century jurist Claude de Seyssel in his commentary on the Digest, 'and is to be preferred to all other fields because o f its purpose' (Seyssel 1508, fo. 1). Down at least to the eighteenth century this conviction was maintained by professional lawyers o f various political persuasions, and indeed expanded because o f the increasing interaction between jurisprudence and modern political thought and institutions. The original R o m a n formula, enshrined in the first lines o f that great anthology o f classical jurisprudence, the Digest o f Justinian, was joined to a deep reverence for judicial expertise and for the holy office o f the 'priests o f the laws'; but in its Byzantine context legal science was subordinated to, and conscripted by, the absolutist and imperialist designs o f the emperor; and this strategy was resumed by early modern European jurists, especially those serving monarchs - kings o f France, Spain, and England — who claimed to be 'emperors' in their own kingdoms. Civil law continued to be concerned predominantly with private matters (personal status, family, succession, property, obligations, and the like), though increasingly it came to be subordinated to and shaped by legislation. 'True philosophy' was in many ways bound to modern ideas o f rulership. This is why political thought in its widest sense cannot be understood apart from law and jurisprudence.

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The old legal heritage

In the fifteenth century the European legal tradition was vastly complex but displays, from a modern perspective, three fairly distinctive aspects, corresponding to civil, canon, and customary law. B y then each o f these 1

1. Classical surveys are headed b y Koschaker 1958, Calasso 1954, W i e a c k e r 1967, C a v a n n a 1983-7, C o i n g 1985-9, and Stintzing and Landsberg 1880-1910; but see also Fasso 1968 and C a r l y l e 1903-36, v i ; and for b i b l i o g r a p h y C o i n g 1 9 7 3 - 7 .

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Law had been formulated in modern written terms, rationalised and in various ways modernised, and subjected to several generations o f adaptive 'interpretation'. Civil law, revived in the twelfth century and expanded into 'civil science' through academic and practical jurisprudence, has at all points been central to the legal tradition, since it provided both the model and the quarry for 'canonist science', and since it provided the conceptual basis and the terminology for European customary law, whether through 'scientific' incorporation (the jus feudale being regarded as part o f ' R o m a n law' in Italy and the empire) or simply as a standard o f comparison (as in England and, more systematically and officially, in France). All three subtraditions were, o f course, transformed: civil law from R o m a n o Byzantine books o f authority to an eclectically construed and adapted common law, its sibling rival canon law from hierocratic ecclesiological doctrine into a subordinate system o f private rules, and customary law from a melange o f barbarian, feudal, and communal usages into distinctive, though still localised, national systems. All o f these were given a certain common basis through interpretation in terms o f natural and divine law and subjection to legislative authority. O f the modern European legal tradition in general R o m e was ever, according to the ancient formula (Digest i, 1 2 , 1, 1 3 ; Code 1, 33), the 'common fatherland' (Roma communis patria). Centuries after the fall o f R o m e the structure and spirit, the language and the methods, o f its law preserved their sway not only through derivative legal systems, Romanist or Romanoid i f not R o m a n , but also through attitudes, assumptions, and what Justice Holmes once called 'inarticulate major premises'. In a famous passage Holmes' friend Alfred North Whitehead advised historians to attend not merely to positions consciously argued by writers in bygone ages, but also to 'fundamental assumptions presupposed by all disputants' (Whitehead 1948, p. 50). In jurisprudence and to a considerable extent in political philosophy such presuppositions have been reflected most com prehensively in certain titles, especially the early titles, o f the Corpus Juris Justiniani published in the 530s. The Institutes and the Digest in particular represented a significant part o f general 'liberal' as well as specifically legal education in many European universities. In order to suggest the significance o f the legal tradition for political thought suffice it here to set down some o f the major rubrics, formulas, concepts, and topoi o f R o m a n jurisprudence as they were transmitted to modern thought (Schulz 1936; Kelley 1990). 1 Toga and sword. 'The imperial majesty should be armed with laws as well as glorified with arms, that there may be good government in times 67 Cambridge Histories Online © Cambridge University Press, 2008

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both o f war and o f peace' (Institutes, proemium, further elaborated in the prefaces o f the Digest). From Justinian (and before) to Napoleon (and beyond) this formula was invoked to express the two aspects o f rulership, and usually the turning from conquest to social control and political organisation. 2 The divine origin o f law. ' W e have wished God to become the author and head o f the whole work', declared Justinian o f his Digest, adding moreover that his collection 'shall prevail for all time hereafter' (constitution Tanta). Such has been the claim o f virtually every official legal collection, or 'codification', o f medieval and modern times, reflecting the need to claim perfection or infallibility on transcendent grounds, and establishing a legal and ideological canon binding legal interpreters. 3 The reverence for antiquity. The authority o f civil law derived in no small measure from its age and pedigree, going back some 1,400 years to the 'founding o f the city', according to Justinian (constitution Tanta); and for lawyers this entailed also going back to origins, or sources, for full understanding (Digest 1, 1, 2, de origine juris). Celebration o f and reliance upon antiquity, and especially upon founding fathers, has likewise been characteristic o f European jurisprudence and political thought down to modern times. 4 Absolutism. Despite respect for the 'fathers o f jurisprudence', Justinian insisted that henceforth the only source o f law was the imperial will - 'for how can antiquity abrogate our laws?' (constitution Tanta) — and so he forbade all judicial discretion, all 'interpretation', in the hope o f preventing the 'vain discord o f posterity'. This heaven-storming ambition, expressed in a variety o f famous formulas, especially that 'What pleases the prince has the force o f law' (Quod principi placuit legis habet vigorem) and that the prince is above the law (legibus solutus) (Digest 1, 4, 1, and 1, 3, 31, and Institutes 11, 1 7 , 8), was revived by later monarchs; and the concept o f sovereignty itself (related to the imperium as well as to majestas) was further developed by medieval and early modern legists, most famously by Jean Bodin in the sixteenth century. Yet in this case, too, there was a counterthesis, namely: 5 Popular sovereignty. The aforementioned idea that the prince's will was law was justified (though in effect undermined) by the second clause o f the formula, referring to the famous lex regia, according to which the prince received his authority from the people, that populus which alone, originally, possessed 'majesty'; and this principle was reinforced by another formula, the equally famous Lex Digna Vox, declaring that 'It is a word worthy o f majesty o f the ruler that the prince professes himself bound to 68 Cambridge Histories Online © Cambridge University Press, 2008

Law the law' (Code i, 14, 4). The conflict between this proto- 'constitutionalist' argument and the preceding 'absolutist' formulas has informed much o f western political thought. 6 Distinction between public and private law (Digest 1, 1, 1, 2). This distinction, which corresponds to those between individual and society, or government, between domestic and political economy, and between ethics and politics, has become even more deeply and perhaps incorrigibly embedded in western thought (Mullejans 1961; Longo 1972). 7 Natural law (Digest 1, 1, 1, 3, and Institutes 1, 1). The jus naturale, associated with the 'natural reason' underlying custom and the 'law o f nations' (Gaius, Institutes 1, 1, 1), came to be identified with the loftier 'reason' o f Stoic philosophy and distinguished in Greek fashion from convention or culture, later 'positive law'; and it was in this form that 'natural law', whether distinguished from or identified with 'divine law', was elaborated by medieval and modern jurists (Gierke 1950; Tuck 1979). 8 The law o f nations (Digest 1, 1, 1, 4, and Institutes 1, 1 ) . The jus gentium, assembled originally by R o m a n jurists from the customs o f foreign nations taken into the Empire, was expanded by medieval and modern lawyers to include other, non-western cultures, resulting in a massive expansion o f the field o f comparative legal and institutional studies (Lombardi 1947). 9 The structure o f law. 'All the law which we make use o f relates either to persons, things, or actions' (Digest 1, 5, 1, and Institutes 1, 2, 12, from Gaius, Institutes 1, 2, 8). Prehistorical in origin, this formal principle o f private law has come to inform western social and political thinking over many centuries, serving among other things to establish the boundaries o f public law (Kelley 1979b; Goudy 1910; Affolter 1897). 10 The status o f persons, or condition o f man (Digest 1, 5 et seq., and Institutes 1, 3 et seq.). This famous rubric has furnished the juristic locus for celebrations o f the dignity o f man (rarely including women), arising from natural and civil 'liberty', defined according to various familial, economic, and social qualifications (Duff 1938; Zatti 1975). 11 The idea o f property. The second member o f the R o m a n trinity (No. 9 above), the category of'things', represents above all the materials o f the natural world which, when prehended or occupied by persons, become the basis o f possession or property in a general, legal, or 'civil' sense; and the social problems created by this institution have been perhaps the major concern o f Romanist legal systems from Justinian to Napoleon, as well as a central theme o f political thought (Maiorca 1937). 12 The idea o f action. This third category, while originally limited to 69 Cambridge Histories Online © Cambridge University Press, 2008

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legal initiatives aimed at redress o f injuries (legis actiones), introduces more generally fundamental assumptions o f legal and political voluntarism, which is to say the central role o f human will in private (as in public) law, and the importance o f values, including public as well as private interest, in legal and political decisions (Bekker 1 8 7 1 ; Orestano 1978). 13 Customary law (Digest 1, 1, 1 , 6 , and 1, 3, 32—40. Defined originally as 'unwritten' as distinguished from 'written law', consuetudo evolved into a complex tradition and conceptual system by which Germanic and other European (and non-European) customs could be incorporated into R o m a n law and later discussed in more general philosophic and later anthropo logical terms (Schmiedel 1966). 14 The idea o f interpretation (Digest 1, 3, passim, and L, 16 and 1 7 , including the essential titles de regulis juris and de verborum signification). Here is the source o f many o f the conventions, 'commonplaces', and 'maxims' o f legal (and implicitly political) thought, including perhaps obvious notions of'equity' and the value of'liberal' as distinguished from 'strict' interpretation, which is to say emphasis on the judicial and customary rather than the legislative source o f law (Stein 1966). 15 The criticism o f law. Going back to the ancient distinction between practitioners (pragmatici) and philosophical jurists (jurisconsulti), lawyers have been regarded with ambivalence, but never before the object o f such extremes o f adulation and vituperation — ranging from identification with 'nobility' and virtue to denunciations, satirical, moral, religious, and political.

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These are some o f the major assumptions, attitudes, and principles inherited and developed by the legal tradition, especially in its 'modern' form, as Seyssel characterised his fellow Bartolists (Seyssel 1566, p. 3). Adaptation o f these themes, o f course, differed among the various national branches o f the R o m a n legal tradition. The classic modern formulation came in 'juris prudence Italian style', and from the fifteenth century this modernised law was 'received' into the imperial courts o f Germany. At the other extreme was England, which maintained a vernacular tradition o f customary and ' "common" law' touched only marginally by Roman influence, civilian or canonist. Indeed, in his De Laudibus Legum Anglie, Sir John Fortescue defined (or rather idealised) English law as the very obverse o f civil law, whose arbitrary and illiberal spirit was epitomised by the formula that the 70

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Law prince's will was law (Fortescue 1949, ch. x i x et seq.). In France and Spain, as in England, neither R o m a n law nor its feudal supplements had specific 'authority', but o f course it was taught in the universities and had profound ideological as well as methodological impact, certainly in terms o f the themes summarised above (Coing 1 9 7 3 - 7 , 11, pt 1, ch. 1 ) . One o f the conditions o f the massive expansion o f jurisprudence in early modern Europe was what one historian has called 'the triumph o f the professionals', a phenomenon itself arising from the shift from customary to 'written law', and specifically to Romano-canonical procedures. From the thirteenth century jurists trained 'in both kinds o f law' (utriusque juris) created a large Romanist, or at least Romanoid, jurisprudence; in France and Spain the same process was carried out by the légistes and letrados and by the royal courts which overwhelmed popular and eventually feudal forms o f justice. The parlement o f Paris in particular, branching off from the royal council from the early fourteenth century, stood at the apex both o f the French system and o f the legal profession, and (especially from the time o f the Great Schism) acquired political and even legislative as well as judicial authority, which continued into the eighteenth century, especially through remonstrances and 'interpretation' o f ordinances. In Germany the formal Rezeption gave official status to the incursions o f learned law made over the previous century or so, and consequently the older popular courts and finders or 'sayers' o f law (Weistümer, Oberhöfe and to some extent the Schöffen) were in large part supplanted by the imperial and territorial courts. There were the closest ties with the schools o f law, which from the sixteenth century were called upon to submit expert judgements in (Aktenversendung). response to 'records dispatched' from the courts Magistrates and lawyers were themselves trained and in effect licensed by these schools, whether law faculties or technical schools like the English Inns o f Court, and so were part o f the academic as well as administering establishment. The connections between legal and political thought are evident above all in this academic context. In the universities civil, canon, and feudal law were all taught according to a conventional scholastic method, which (though introduced by thirteenth-century French jurists) came to be named after its eponymous hero Bartolus and later was referred to as the 'Italian method' (mos italicus) (Engelmann 1939; Canning 1987). O f the founding fathers (especially Bartolus, his mentor Cino da Pistoia, and his 2

2. D a w s o n i960, p. 69, 1968; also Strauss 1986, D a h m 1972, and Piano Mortari 1962.

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disciple Baldus) the most important epigones in the later period were Filippo Decio (d. 1535), Giason del Maino (d. 1519), and Claude de Seyssel (d. 1519), who taught at Turin in the 1480s; but there were also distinguished representatives o f 'Bartolism' in Germany, France, Spain, and even England who took the Italian master as their model (nemo jurista nisi Bartolista was a common proverb even in France) (Pasquier 1 6 2 1 , p. 706). The Bartolists were masters o f political thought as well as o f legal science and set about literally to 'civil-ise' the world by bringing the activism o f the civ is, the urbanity o f the civitas, and the regularity o f the jus civile to the social groupings and political forces that agitated the cities and countryside o f Renaissance Europe. 'Civic humanism' has been the subject o f much debate and no little exaggeration in recent years, in part because o f the tendency to allow humanist rhetoric to drown out, and in some ways to discredit, the more pedestrian work o f professional lawyers. Political posturing and propa gandising as well as more conspicuous engagement in contemporary issues have overshadowed the contribution o f jurists to political and social thought, as indeed Aristotelian political philosophy has tended to overshadow the texts o f civil law. Yet as historians used to notice, civilians o f the Bartolist persuasion possessed not only technical legal expertise but also the values and aspirations o f a new civilita, a commitment to the ideals o f citizenship, and often a favourable attitude toward republican liberty and even resistance to 'tyranny' - though like humanists, o f course, they could as easily be conscripted into the service o f despotism. These attitudes were expressed independently o f the political 'causes' and the ' M a chiavellian moment' often associated with 'civic humanism', and so it seems plausible to distinguish a cast o f mind o f rather longer intellectual duree, which might be called 'civil humanism'. Between Italian and northern European civil science, however, as between Italian and northern humanism, there were significant differences and even rivalries. Politically, this had to do above all with the authority o f ' R o m a n law', consequently with the position o f the emperor; and it was expressed generally as an opposition between 'Citramontanes' and north ern 'Ultramontanes', a division which was intensified through the Habsburg—Valois conflict o f the sixteenth century. French, Spanish, and German jurists challenged the formula that the emperor was literally 'lord o f the world' (dominus mundi), as the glosses on the title Cunctos populos had it, and took the position that the authority o f civil law arose entirely from its rationality or 'rationability' — that, according to a modern formula, it 72

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Law was accepted 'not by reason o f empire but by the empire o f reason' (non ratione imperii sed rationis imperio) (Aubepin 1855, p. 139). Yet these European doctores legum had a common professional commit ment, spoke the same technical language, believed in the same exalted goals, and applied the same methods; they constituted, according to one o f their eighteenth-century members, a veritable 'republic o f jurisconsults' (Gennaro 1733). This 'republic' was at once a licensed profession, an international academic guild, and a secular intelligentsia with overweening intellectual and political ambitions. Its members were the products of, and often taught in, the various university law faculties o f Europe (numbering some seventy-five by the sixteenth century). Like their academic rivals in the faculties o f theology, philosophy, and medicine, jurists agreed generally on the authoritative texts in which 'doctors o f law may not allege error', according to Baldus (Baldus 1535, fo. 4); namely, Justinian's Digest, Institutes, Code, and Novels for 'legists'; Gratian's Decretum and the thirteenth- and fourteenth-century decretals for 'canonists'; and both, o f course, for those who took their degrees utriusque. There was disagreement about the status, or 'authenticity', o f feudal law (that is, the Consuetudines Feudorum, which Italian 'feudists' accepted as the 'tenth collation' o f imperial law following Justinian's Novels because o f the presence o f certain constitutions by medieval emperors), while Protestant and Anglican jurists rejected canonist tradition as a whole (at least on principle) from the second quarter o f the sixteenth century (Laspeyres 1830). But explicitly or implicitly, the form and much o f the content o f R o m a n law remained in force, effective in education and legal mentality if not always in law courts, down to the end o f the old regime, and indeed long after. In various transformations since the thirteenth century R o m a n legal science has been a permanent part o f the environment o f political thought; and in some respects — social and economic dimensions and various ideological and institutional applications — it has had a deeper impact than its chief rival, Aristotelian political science, which has for so long dominated the history o f political thinking. The methodology of'jurisprudence Italian style' changed little between the time o f Bartolus and that o f Bodin, although issues multiplied and opinions proliferated through a variety o f conventional genres derived from pedagogical as well as practical concerns: elementary summaries, extracted 'questions', legal briefs (consilia), and endless monographs based usually on particular titles o f the Romano-Byzantine canon, or its canonist or customary counterparts (Kelley 1979a). Essential to teaching and 73

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inevitable in legal practice was the accumulation o f opinions, pro and contra, whether or not a professional consensus (communis opinio) could be attained; and indeed a fundamental dialectic (duplex interpretatio) was so inherent in jurisprudence that it seems impossible to tie R o m a n legal doctrines to any particular political or ideological position — absolutist, constitutional, or revolutionary. Nor did European legists acknowledge any impingement from other disciplines, including theology, which on the contrary, declared Barthelemy de Chasseneuz was actually contained in the law (Chasseneuz 1586, fo. 207). Legal science was even exempt from the rules o f grammar and historical truth, as certain defenders o f the Donation o f Constantine insisted (Maffei 1964, ch. m); and it was not ignorance but professionalism which led jurists to accept certain etymologies which obviously contradicted linguistic possibility (perhaps most famously in the derivation o f the fief from faith (feudum a fide seu fidelitate) in the Consuetudines Feudorum 1, 3) (Lehmann 1896). For, as Seyssel put it, the purpose o f etymology was to get at the essence (quidditas) o f a term; and in general the aim o f jurisprudence was justice, or equity, before logic or historical truth (Seyssel 1566, p. 1 1 ) . Much the same can be said about the vast accumulation o f conventional legal 'maxims' which grew out o f centuries o f legal experience. Civil science purported to be a whole world, then, a complete encyclopaedia o f learning which could claim superiority to other fields, including philosophy, medicine, and theology, because o f its unique combination o f natural and social philosophy. On the one hand it was a true 'science', as generations o f jurists proclaimed, because o f its universality and its rationality and above all because it offered understanding in terms o f cause and effect — referring to 'cause' in a richly moral and legal as well as technical Aristotelian sense (Cortese 1 9 6 2 - 4 , 11, as index). ' T o know is to understand through causes', Chasseneuz explained (scire est per causas cognoscere); and 'legists and canonists understand through causes' (legistae et canonistae cognoscunt per causas) (Chasseneuz 1586, fo.209). On the other hand jurisprudence displayed characteristics o f a liberal art (studium liber ale, Chasseneuz called it) (fo.207), and more especially it had to take into account factors o f human will and social and cultural circumstances. Jurists were obliged to determine facts as well as to apply principles. As Seyssel summed it up, 'Civil science consists in action, not in speculation' (Seyssel 1566, p. 1 1 ) . This further illustrates the point that there has been a current o f 'civil' as well as 'civic humanism'. 74

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Law

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Humanism and jurisprudence

The humanist movement in Italy had a profound effect on the study o f R o m a n law, and Justinian's Digest in particular became a major target o f philological and historical criticism. T o Lorenzo Valla and other 'legal humanists' R o m a n law was best understood not as the basis o f professional jurisprudence but rather as a great monument o f classical learning, unfortunately mangled and distorted by its Byzantine editors. 'Wherever the Latin tongue holds sway', Valla wrote in his Elegantiae Latinae linguae (n, preface), 'there is the R o m a n Empire.' Even more than the Greekisms o f Tribonian and his colleagues, Valla deplored the barbarisms o f medieval jurists such as Bartolus, whose pseudo-philosophical interpretations and impossible etymologies had, he thought, corrupted the 'golden science' o f the ancients almost beyond recognition. Valla's aim, and that o f such followers as Angelo Poliziano, Ludovico Bolognini, Guillaume Bude, Lelio Torelli, and Antonio Agustin, was to reconstruct the historical meaning o f classical texts and so to achieve a closer understanding o f the culture of'antiquity'. From the pristine R o m a n tradition, Valla banned not only feudal but also canon law, ' o f which the greatest part is Gothic', he remarked (1962, p. 80), and o f which some is fabricated, as he showed in his devastating exposure o f the Donation o f Constantine. In these ways Valla hoped to humanise and to liberalise the 'true philosophy' which he, too, took civil law to be. 3

The impact o f humanist philology was apparent not only in the fields o f textual exegesis and juridical lexicography but also in an area more obviously significant to political thought, namely, the practice and theory o f 'interpretation'. Modernly as well as classically, the dispute was between those (humanists as well as the old glossators) who demanded strict construction o f legislative will and those who (with the Bartolists and especially canonists) inclined toward what jurists called 'extension' (interpretatio extensiva or extensio interpretativa) and which came to be identified with the underlying meaning or reason o f law (mens or ratio legum). 'For reason', as Andrea Alciato wrote in his great commentary De Verborum signification, 'is the soul and life o f a particular law' (Alciato 1565, p. 20). At stake in this controversy was not only a concept o f hermeneutics — the letter versus the spirit o f a law - but also control over the political and 4

3. Valla 1962, p. 196; D u k e r 1 7 1 1 ; and see Kelley 1970a. 4. MafFei 1956 and T r o j e 1971; see also Kisch 1972 and 1969, and Kelley 1987.

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social meaning and application o f laws. What was reflected in the great stream o f extensio literature generated especially from the late fifteenth century was an early phase o f the interminable struggle between legislative and judicial authority. In this debate the inclination o f humanism was in general toward the authoritarian position. More specifically in Valla's polemic we can see the making o f an even more publicised controversy in early modern European jurisprudence, that between the 'Italian' and 'French' methods (mores italicus and gallicus) as they were later called, in fact a particular skirmish within the larger war between scholasticism and humanism, which was also reflected in the work o f Valla. The popular view o f this controversy is illustrated by a little dialogue by Claudio Tolomei, De Corruptis verbis inris civilis dialogus (i 517), which introduced Poliziano as spokesman for the innovating 'gram marians' and Giason del Maino for the professional Bartolists, who actually endorsed such neologisms as guerra (for bellum) and so, more generally, modern departures from ancient ideas and institutions (Tolomei 1 5 1 7 , sig. Aiii). The case for legal humanism was elaborated by a long series o f manifestos in the sixteenth century, especially by the French disciples o f Alciato, and attacked by a smaller number o f tracts defending oldfashioned Bartolism, perhaps most notably by Alberico Gentili's De Iuris interpretibus dialogi sex (1582), which denounced the pedantry and the amateurism o f the philologists and historians poaching on the territories o f the legal profession. Like Seyssel, Gentili was convinced that law was a practical civil science not a scholarly pastime, a systematic discipline to be placed in the service o f particular 'causes' not a form o f literature. 5

This was the position taken by most jurists, even Alciato, though he boasted o f having been the first in a thousand years to teach law 'in the Latin manner'. Alciato denounced the ignorance o f the glossators (Accursiani), but he had little more use for the irrelevant 'folly' (consciously using the term o f his friend Erasmus) o f grammarians, especially o f their 'emperor' Valla; and he celebrated the work o f Bartolus and such later professional interpreters as his own teacher Giason, 'without whom . . . we should have no science'. Neither grammar nor rhetoric nor even philosophy had authority over this science since justice always had priority over the aims o f these other disciplines. In general the search for the true 'method for studying law' could be satisfied by neither the Italian nor the French extremes; rather it had to combine the best o f both and to pursue in a 6

5. Gentili 1582; and see Astuti 1937 and Panizza 1981. 6. Alciato 1617, col. 1, and cf. cols. 188, 377; and see Viard 1926.

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Law systematic way the ultimate goal o f making civil science into 'true philosophy'. In the early sixteenth century this enterprise was taken up in a most innovative fashion by a great 'triumvirate' o f legal scholars, including Budé, Ulrich Zasius, and Alciato. All three deplored Accursianism (Accursianitas), devoted themselves to textual emendation o f the text o f the Digest, supported the idea that civil law was a member o f the humanities (studia humanitatis), and at the same time tried to reveal the philosophical riches o f civil law, termed 'civil wisdom' (civilis sapientia) by Budé. In particular they associated Ulpian's famous definition o f jurisprudence (as ars boni et aequi) with the 'equity' (epieikeia) o f Aristotelian philosophy, which 'emended' the legalistic rigour implied by the formula, 'the most general law is the most injurious' (summum ius, summa iniuria). On the whole and in their own ways these men also accepted the notion o f princely absolutism established by Justinian, though they, o f course, had a historical interest in earlier institutions and sources o f law; and they were intensely aware o f the differences between antiquity and the vastly changed traditions o f 'today' (hodie, in the conventional formula). Yet these traditions, if divergent, were nonetheless derivative o f ancient customs; and so, for example, all three scholars seemed to agree, for similar ideological purposes, that feudal customs had a basically R o m a n provenance (Kelley 1964). Inevitably, there were political differences between Budé, Zasius, and Alciato, arising especially from the old conflict between Ultramontanes and Citramontanes. Alciato and Zasius perforce supported the imperialist party and the Romano-Germanic idea o f 'translation o f empire', which was to say the theoretically universal hegemony o f Charles V, while Budé reached back to Gallican doctrines. 'The point', as Alciato stated the fundamental issue, 'is to determine whether the king o f France recognises the emperor as superior', and his answer was taken from the most authoritative o f all jurists. 'Bartolus says yes (quod sic) . . .', he continued, 'for the emperor is lord o f the whole world' (dominus totius orbis, according to the famous gloss on Cunctos Populos). Zasius took much the same position and declared also in favour o f the emperor's absolute power (legibus solutus), though he added that the emperor could neither break 7

8

7. B u d é 1535, fo. 3, on Digest 1 , 1 , 1 : critical edition in Kisch i960, studying the legal concept o f equity (epieikeia). C f . B a r o n 1562, 11, (letter to Marguerite o f Navarre, 154): 'divina illa iuris sapientia'. 8. Alciato 1 6 1 7 , 1 col. 9, on Digest 1, 1, 1. See also M o c h i O n o r y 1951, pp. 96ff; Post 1964, pp. 413flf; G i l m o r e 1941; G o e z 1958.

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contracts nor override judicial decisions on this ground, especially not since the 'reception' o f R o m a n law in 1495. Zasius had no quarrel with the complementary authority o f canon law, but he would hardly go as far in his opinions as Alciato, who defended the Donation o f Constantine on grounds o f prescriptive legitimation (Zasius 1550, pp. 241, 347). Yet both worked within the conventions o f R o m a n universalism and R o m a n imperialism which were increasingly offensive to the new forces o f what has been called juridical nationalism'.

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The French school

N o French jurist could agree with these Romanist formulations, especially during the Habsburg—Valois conflicts o f the sixteenth century. Bude's strategy generally was to appropriate for the French ruler those political and institutional principles most useful for national monarchy. The result was to lead him to a series o f essays in comparative law, which offered critical analogies between roy and princeps, regalia and imperium, parlement and senate, chancellor and praetor and other offices, customs, and archival records. Other French jurists, who took a more professional and less historical line, appealed to contrary formulas, derived characteristically from canon law, that in fact the emperor had never been 'lord o f the world' (imperator nunquam dominus mundi) and that the French king was himself 'emperor in his kingdom' (rex imperator in regno suo), and, according to the canonist companion text, 'recognised no superior in temporal things' (non recognoscat superiorem in temporalibus) (Schramm i960; Kantorowicz 1957, ch. vn). One classic formulation was that o f Chasseneuz, whose Catalogus gloriae mundi (1529) invoked Giovanni Pico della Mirandola's Oration on the Dignity of Man to establish proper rankings, political as well as natural, including the preeminence o f Francis I and his predecessors over all the rulers o f Europe (Chasseneuz 1586, fos. 13 8rT). French royalism was celebrated more insistently by practising lawyers with official commissions, such as Jean Ferrault and Charles de Grassaille, though they likewise exploited R o m a n as well as.indigenous sources. With Chasseneuz and others they carried on the task o f collecting, proving, and giving political shape to the 'regalian rights' (regalia) o f the French crown (Ferrault 1542; Grassaille 1545). Among these 'marks o f sovereignty', as they were in the course o f becoming, were principles o f exclusive legislation (solus rex facit constitutiones seu leges in regno Franciae), inde pendence from foreign law (feudal as well as civil and canon), expressed 78

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Law especially in the formula that the French king 'recognises no one in temporal things' and is 'above all other kings' (super omnes reges), the title 'most Christian',»the power to work miracles, the exclusion o f women from royal succession (the so-called Lex Sálica), and a variety o f particular secular and ecclesiastical privileges. O f these royal prerogatives Ferrault listed twenty, Grassaille forty, Chasseneuz fifty-six, and through legal investigation and argumentation they continued to multiply (Franklin 1973; Fell 1983—7). In a sense they represent the particulars o f that principle o f sovereignty (majestas) which Bodin would provide with philosophic form. In their way, legal history and antiquarianism accumulated juridical and ideological arsenals for the defence o f government and other institutions and interested parties, including the legal profession itself. The great centre o f the 'French method' (mos gallicus, as distinguished from the old-fashioned mos italicus) was the University o f Bourges, where the intellectual progeny o f Alciato (Alciatei is the term applied in later legend) emerged in the 1540s to establish their law faculty as perhaps the most distinguished in Europe (Kelley 1981b; Piano Mortari 1978). The two leading figures were Eguinaire Baron and Francois Le Douaren, whose respective folio wings in the second half o f the sixteenth century developed into academic factions and then confessional 'parties' (the latter inclining toward evangelical religion). Among the disciples o f Baron were Francois Baudouin and, indirectly, Jacques Cujas; on the side o f Le Douaren the most prominent were Francois Hotman and Hugues Doneau. With Francois Connan and Jean de Coras, these were the leading figures in the French school, whose first aim was the restoration o f R o m a n law in terms o f form as well as substance. Their work, together with that o f such likeminded scholars as Agustín and Torelli, formed the basis o f the 'new jurisprudence' o f that 'golden age', in which law itself became the basis o f an encyclopaedic cultural ideal. 'The civilised man is the jurisconsult' (Homo politicus, id est jurisconsultus), as Baudouin put it (Baudouin 1559, p. 20). In the massive work o f this school several parallel or intersecting trends may be seen, beginning with one area o f enquiry inherent in 'civil science' from the start, namely, comparative law and politics. This was inevitable because o f the necessity o f adapting ancient law to modern conditions, the need to reconcile civil with canon law, and the acceptance o f feudal law into the R o m a n canon; but it was given special urgency in France because o f the status o f R o m a n law as 'common law', and because o f the political threat posed by any official 'reception' o f what was regarded as the 79

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'emperor's law'. Like Budé French jurists in general proceeded to reject or to plunder R o m a n law sources as it suited royal or national needs, but in any case it was essential to include them in legal education even i f they might be treated invidiously. A good example is the work o f Baron, whose teaching from the mid-1520s led him to publish a series o f 'bipartite commentaries' on the Institutes and Digest o f Justinian, taking up various French counterparts to the standard categories o f R o m a n law, including questions o f sovereignty, legislation, justice, and indeed the whole range o f institutions making up what Seyssel had celebrated as the 'grand monarchy o f France'. ' T o the R o m a n princeps we oppose the French rex\ Baron wrote sententiously, 'for in establishing and promulgating law he follows reason more closely than the emperor' — recalling the formula that civil law was accepted 'not by reason o f empire but by the empire o f reason' (Baron !55°» P- 5)- I the spirit o f what has been called 'juridical nationalism' Baron went on to glorify the liberal and constitutional traditions o f French government and society. The 'French method', too, was carried over into vernacular jurisprudence - not only in the editing o f medieval texts but also in the Romanising, or at least 'civilising', o f native legal traditions. A striking case is the work o f Louis Le Caron (Charondas), graduate o f Bourges and pioneer of'vernacular humanism' in France. In his Pandectes ou Digestes du droit françois (1587) Le Caron set out to fulfil the ideal o f the profession o f law to embody 'true philosophy', which he also called 'la Philosophie chrestienne' and linked to the political philosophy o f Plato. Le Caron rehearsed the old formulas that the French king was 'emperor in his kingdom' and even 'the image o f God'. Yet in opposition to royalists like Bodin, Le Caron identified the true 'mark o f sovereignty' not with the legislative power but, following Plato, with justice itself - which in practice meant the judiciary. During the civil wars Le Caron even endorsed the inflammatory notion of'mixed monarchy' (equivalent to lèse-majesté some argued), pointing out the corrective force o f custom (usus legum corrector) and recalling the originally elective character o f the French monarchy. Legal judgement rather than political power represented for Le Caron the cornerstone o f that magisterial discipline which he did not hesitate to call 'la Science politique'. 9

n

10

9. B a r o n 1562, 1, p. 38. o n Digest I, I , i ; and see M o r e a u - R e i b e l 1933. C f . Seyssel 1961; 1981. 10. L e C a r o n 1587, p. 3; 1637, p. 34; and see K e l l e y 1976a.

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v

Rivals to Romanism

Civil science was a fundamentally comparatist discipline. The study o f law was European-wide and tied not only to modern civil science but also to emergent native traditions and their attendant problems, such as those o f 'territoriality' and the 'conflict o f laws'. Feudists o f all countries made Latin commentaries on vernacular texts, customs as well as statutes, and so did studies o f comparative law at least implicitly, whether invidiously or approvingly. The Spanish 'national school' tried to establish a 'con cordance' o f Hispanic and R o m a n law, largely to the advantage o f the former. In Germany several authors assembled a treatise designed to show 'the difference between civil and Saxon law', and others carried on antiquarian research into the Germanic past in order to deepen such studies. English civilians preserved a tenuous tradition through the 'Doctors' Commons' and tried to preserve the respectability o f R o m a n law. In the early seventeenth century William Fulbeke drew a 'parallel or conference o f the civil law, the canon law, and the common law o f this realm o f England', for example, while John Co well compiled an Institutes of the Lawes of England in the effort to join English substance with R o m a n forms. One o f their colleagues went so far as to call civil law the 'mother' o f common law, although the most judicious conclusion was probably that o f Sir Henry Spelman, who thought 'the Foundations o f our Law to be laid by our German ancestors, but built upon and polished by materials taken from the Canon Law and the Civil Law, (Spelman 1733, p. 100). In France vernacular jurists like Etienne Pasquier and his colleague Antoine Loisel followed much the same moderate line as Baron and Spelman. Pasquier composed an Interpretation de Institutes de Justinian, which began as a translation but which ended up as an extensive discussion o f French counterparts to conventional R o m a n institutions, commending French law for its rejection o f absolutism in public law and o f rigidity in private law. The authoritarian formula Quod principi placuit 'need not be taken cruelly', he wrote, and the notorious 'paternal power' (patriapotestas) 'has no place among us' (Pasquier 1847, p. 26). More ingenious and original was Loisel's Institutes coutumiers, which sought the spirit o f French law in proverbs and popular literature as well as in provincial customs. The 11

12

1 1 . See K a g a n 1981; Garcia G a l l o 1956; V a n Kleffens 1968; W i e a c k e r 1967; Levack 1973. 12. Fulbeke 1618; C o w e l l 1651, opposing C o k e ' s m o r e famous w o r k o f the same title. See K e l l e y 1974 and T h o r n e 1976.

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message was much the same: Loisel did not deny royal authority - 'Qui veut le R o y ' , he quoted, 'si veut la loy' — but stressed its popular roots and limitations and repeated that 'Droit de puissance paternelle n'a lieu'. Though a seeker and celebrator o f custom, Loisel was no populist, and it might be better to see him as a professional chauvinist. He also published a sort o f hagiography o f French legists, which he named in honour o f his old friend (Pasquier, ou Dialogue des avocats) and in general agreed with him in emphasising, contrary to R o m a n convention, the value o f judicial authority as a necessary supplement to princely power. The comparative approach was reinforced among French jurists both by the movement for a 'reformation o f customs', led by the first president o f the parlement, Christofle de Thou, and by the growing debates over the cultural and political provenance o f the French nation — Roman, Germanic, or even (as Connan suggested) Celtic (Filhol 1937)? The 'Germanist' persuasion was represented most effectively by that 'prince o f legists' Charles Du Moulin, who began by rejecting the consensus view about the R o m a n origins o f feudalism. His own programme included the defence o f the 'ancient liberties' o f the Gallican church and especially the unification o f French customs under a national monarchy purged o f Romanism, both papal and imperial (Thireau 1980). His protege Hotman pushed Germanist arguments to a further extreme. In his Antitribonian (1567, published 1603) he offered a systematic critique o f the evils o f Romanism introduced by the universities in terms o f persons, things, and actions; and for purposes o f a 'reformation' concluded that 'the laws o f a country should be accommodated to the state and not the state to the laws' (Hotman 1603, p. 6). In the wake o f this 'anti-Tribonianist' manifesto Hotman offered, in his famous Francogallia (1573) a historical survey o f the Celto-Germanic traditions o f the French monarchy, emphasising its liberal, consensual, and even elective character, in contrast to the 'tyranny' o f Romanism. This sort o f anti-Romanism was reflected also in the work o f English common lawyers, from Sir John Fortescue to Sir Edward Coke (both chief justices o f the king's bench), and for much the same reasons. From the time o f Henry VIII, as an eighteenth-century historian, John Ayliffe, wrote, 'the books o f Civil and Canon law were set a-side to be devoured o f Worms, as savouring too much o f Popery', while in the next century civil law was inevitably associated with the 'prerogative' and growing despotism o f the Stuart kings (Ayliffe 1 7 1 4 , p. 188). 13

13. Loisel 1935, pp. 19, 23; and see R e u l o s 1935.

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Law Perhaps the major source o f criticism o f written 'law' in general was the Protestant Reformation as understood by Martin Luther, who set out to evaluate the whole tradition o f the church formulated by the canonists. What he ended up doing, was, in the spirit o f Pauline doctrine, to reject the Romanist (and in effect crypto-Judaic) law entirely; and indeed his symbolic burning o f the Corpus Juris Canonici (provoked in part by his discovery o f Valla's declamation against the Donation o f Constantine) was one o f the emblematic gestures o f the age, and well publicised in his subsequent pamphlet, Why the Books of the Pope and his Disciples were Burned (1520). Much o f the ecclesiastical polemic o f the next two generations continued the canonist debate started by Luther and taken up by Calvin and other evangelical reformers. Problems o f church and state, o f divine and human law, and o f various political doctrines such as conciliarism and Gallicanism, were discussed in the context o f canon law. (It is curious that this field, so productively cultivated by medievalists, has been relatively neglected by students o f modern history and political thought. For many ordinary folk as well as jurists the virtues and vices o f Romanism were manifested more directly in the canonist tradition than in the more academic doctrines o f the laws o f Justinian.) In this connection it should be noted, too, that Protestant ideas o f resistance owed much to the secularising o f notions o f Christian 'liberty o f conscience' preached by Luther and by the associated insistence o f being freed from the 'law' (Skinner 1978; Kelley 1981a, ch. 5). This is another case o f creative, or at least transformative, interpretation. It was in any case Protestant lawyers, beginning with the defenders o f the Schmalkaldic League and defiant towns like Strasburg and Magdeburg and including Huguenot publicists like Hotman and Doneau, who took over from theologians the leadership o f protest, shifting the arguments for resistance from biblical to constitutional and political grounds, with the help o f various concepts o f feudal and civic 'liberties' and the private notion o f 'resisting force with force' (vim vi repellere licet). It was an often inarticulate commonplace o f the legal tradition that the private sphere in general — the sphere o f popular custom — was excluded from interference by public authority, to the extent indeed that the 'reformation o f customs' could be effected only through consent o f all three estates. 14

Luther 1957. For Melanchthon's m u c h m o r e favourable v i e w o f ' l a w ' see Kisch 1967.

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Custom and the law o f nations

In the broadest view and religious questions aside, the poles o f early modern jurisprudence were 'written law' (that is, the Justinianian canon) and unwritten 'custom'. Historically the two were linked, as recognised in the old juridical formula deriving law from fact (lex ex facto oritur), but there was always a fundamental rivalry between the two (Zasius 1550, m, col. 16). Since the twelfth century consuetudo could have written form, but in any case it was always a major source of'interpretation' - being indeed, according to the Digest (1, 3, 37), 'the best interpreter o f written law.' Such was in particular the view o f many continental feudists and virtually all English common lawyers. The force o f custom was always popular rather than princely, or at least feudal rather than royal, social rather than political; and despite its irrational or prerational implications (being dependent on social or judicial memory) it commanded respect even at the height o f enthusiasm for rationalist methods. O f the Parisian coutume Claude de Ferriere wrote in his seventeenth-century commentary, 'It unites the law, interprets it, and sometimes corrects it' (a vernacularist paraphrase o f the old civilian gloss) (Ferriere 1679, p. 1). English common law, o f course, was interpreted entirely as a species o f custom — and finally, in the age o f constitutional conflict, as 'immemorial custom'. Often overlooked, the rich tradition o f late medieval and early modern customary jurisprudence was an important source o f political and social thinking and especially, in its peculiarly empirical way, for the search for the 'spirit o f the laws'. Custom represented the most basic aspect o f positive jurisprudence, which came to include a variety o f legal opinions expressed in law reports, legal briefs (consilia), and monographic publications, as well as commen tary on and interpretation o f legislation. Like custom, judicial opinion in particular continued in some ways to be conceptualised according to R o m a n convention, which is to say the old civilian (and canonist) rubric o f 'matters judged' (de rebus judicatis). One o f the best examples is the treatise on this topic published by Pasquier's friend Pierre Ayrault, for whom the true source o f law was not the will o f the legislator but the concrete wisdom o f the magistrate (Ayrault 1 6 7 7 , 1576). Whence his interest in legal procedure and the history o f procedure, and especially the relativity and mutability o f the circumstances which judges had to take into account. Like 15

15. See Puchta 1828-37, Brie 1898, and Lebrun 1932, as well as Calasso 1954.

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Law his colleague Montaigne, Ayrault was both impressed and depressed by the variability o f customs and the instability o f laws; but his remedy was not withdrawal into self-preoccupation — a sceptical stance adopted by Montaigne but rejected by more activist colleagues, such as Le Carón (Le Caron 1555) — but rather it was to develop a more sophisticated and socially useful science o f law. It was above all the task o f the judge, especially in the midst o f political chaos (Ayrault was writing at the height o f the civil wars), to keep in mind that the ultimate goal was not private fulfilment or even abstract justice but always 'public utility', another time-honoured R o m a n concept. Through positive as well as abstract jurisprudence, then, R o m a n law had come to permeate European social and political thought, whether officially 'received' or not. Civil law in its modern forms (the usus modernus Pandectarum in the phrase o f Samuel Stryk) was practised internationally and produced another intellectual polarity, which was a specifically juridical version o f the famous 'quarrel o f ancients and moderns'. This battle o f books, with the humanists representing the 'ancients' and conventional professionals the 'moderns', had its champions in all countries: in Italy the ancients were defended by Alciato and the moderns by Gentili (for example); in Germany there were Gregor Haloander and Benedikt Carpzov; in Spain Agustín and Diego de Covarruvias; in England Sir Thomas Smith and (again) Gentili; and above all in France the two heroic figures, Cujas and Du Moulin (Schulz 1953, ch. 4). 'What has this to do with the Pretorian edict?' was the question Cujas was supposed to have asked about legal matters; 'What has the Pretorian edict to do with us?' is the question Du Moulin and his colleagues might have put. The war has never really ended, though in general the 'moderns' succeeded in occupying, or at least leaving their mark on, large parts o f the European legal tradition. The general framework for the interpretation o f positive law in its various national forms was, once again, o f ancient R o m a n devising, though vastly expanded since antiquity. The 'laws o f nations' (jus gentium), produced by military and then commercial contacts between R o m e and 'barbarian' peoples, consisted both o f a law common to all gentes and, as Baron repeated from medieval jurists, a particular law (jus proprium) for each nation. It is too often forgotten that much political and legal argumentation in the Renaissance was carried out within the confines not 16

17

16. W i e a c k e r 1967, p. 204; Stintzing and Landsberg 1880-1910; and Sollner 1975. 17. B a r o n 1562, 1, p. 29; and see Córtese 1962-4, 1, pp. 55fF, and W a g n e r 1978.

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o f the jus civile but oí the jus gentium. Not only 'actions' but also 'peoples' and 'tyrants' belonged to the law o f nations according to often repeated formulas (actiones, populi, tyranni sunt de jure gentium). This was the true basis o f the right to self-government enjoyed by every state. Aside from its relationship to modern 'international law', in other words, the jus gentium (or jus novissimum gentium) represented the expanding and extra-European horizons o f modern political and social thought. Most portentously, the jus gentium represented the legal face o f that 'universal history' in which Bodin found the basis both for his juridico-historical 'method' (Methodus adfacilem historiarum cognitionem, 1566) and for his massive treatise on comparative public law (Les Six Livres de la République, 1576). 'In universal history', Bodin declared, 'one finds the better part o f law' (In historia iuris universi pars optima latet) (Bodin 1 9 5 1 , p. 108). In this way he opened further that 'world of nations' (in Giambattista Vico's famous phrase) which would be explored by historians and social and political philosophers. For Vico, indeed, drawing here especially upon Grotius, the 'natural law o f nations' (diretto naturale delle genti), derived from the right to self-defence, was one facet o f his 'new science'. 18

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Rational jurisprudence

One o f the major preoccupations o f the later sixteenth century was the massive, interdisciplinary search for a proper 'method' o f learning, whether pedagogical or scientific. This quest was carried on in philosophy, theology, and history, but nowhere more intensively or more controversi ally than in continental jurisprudence o f the sixteenth and seventeenth centuries. As in other fields, some jurists inclined toward the old Aristotelian dialectic and others toward the new rhetorical approach usually associated with Peter Ramus. The first is illustrated by Matteo Gribaldi's treatise o f 1541 on the 'method and reason' o f legal study, which utilised Aristotle's transcendentals and predicaments and especially his system o f four causes; the second by discussions o f legal dialectic and rhetoric by humanists like Claude de Chansonnette (Cantiuncula) and Christoph Hegendorf, who preferred the innovative approach to logic o f Agricola, later to be developed by Ramus and Johann Frey, whose conception o f the 'perfect jurist' was based directly on bifurcation in the 19

18. V i c o 1 9 1 1 - 4 1 , 1 1 . 1 , pp. 126-7 (Diritto universale, ch. 136), I V . I , p. 26 (Scienze Fassó 1971. 19. Gilbert i960; Ebrard 1948; Carpintero 1977; and Vasoli 1977.

nuova, n o . 31); and see

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style o f R a m u s . But despite this formalism most jurists tended to arrange the material o f law according to its own structure and 'topics', its own conventional modes o f arguing from reason and authority, yet with attention to facts as well as principle and sometimes the flexible concept o f 'equity' as well. This was the sort o f theoretical literature that 'extended' the idea o f legal interpretation from its original suspect status (Justinian's ban) to its position as a fundamental 'part o f law', as Pietro Gammaro argued in his De Extensionibus o f 1520. This enhanced 'interpretation' implied a wider view o f judicial discretion, hence a more intense rivalry with legislative authority, and it also contributed to the mainstream o f modern philosophical hermeneutics. 21

One o f the most comprehensive discussions o f legal 'method' came in the work o f Coras, who also had visions o f legal system and who emphasised the centrality o f the notion o f causation to the 'science' o f law (Coras 1560, 1568). In Aristotelian terms this meant that the 'people' (populus) itself was the efficient cause, the particular business or social actions the material cause, the general law relevant to the case the formal cause, and the common good the final cause: Salus populi suprema lex, he quoted, though o f course placing the whole process under the purview and control o f the legislative sovereign. For Coras legal coherence and monarchical authority were two sides o f the social coin o f the realm. This conviction also appears in his defence o f paternal power (la puissance paternelle), which seemed to him perhaps more fundamental than royal or even divine authority to the extent that it is in the family that a sense o f order is first instilled and obedience learned, i f ever (Coras 1572). With a more practical and perhaps solider learning in the law Coras supplemented the 'absolutist' views given currency by the better known work o f his colleague Bodin. Perhaps the central impulse o f modern professional jurisprudence, at least on the continent, was the search for a general system, which was often a way o f subordinating law to politics. The pioneers o f what Savigny would call 'systematic' jurisprudence were Le Douaren, Connan, and especially Doneau, who carried the message into Germany; and o f course it later came to include such self-conscious 'jusnaturalists' as Jean Domat and Samuel Pufendorf (Voeltzel 1936; Todescan 1980). The discussions o f these jurists began with the conventional rubrics o f civil law but departed from 20. Gribaldi 1541; Cantiuncula 1545; H e g e n d o r f 1537; H o t m a n 1560; and Fregius 1581, a m o n g m a n y others: the best collection is R e u s n e r 1588. See also Kisch 1970; K a l i n o w s k i 1982; T r o j e 1969; and C o i n g 1 9 7 3 - 7 , n, pp. 724-542 1 . G a m m a r o 1584, fo. 248; and see Piano M o r t a r i 1956, and C o n r i n g 1666, pp. I49ff.

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them in the name of'interpretation' and 'extension' and reordered them in the cause o f the 'reason' or 'spirit' o f the laws (ratio, mens legum), which had to be extracted from texts formerly depending on 'authority' even more than 'reason'. Their concern was with the definition o f law in general, its divisions, distinctions, and 'distribution', and with such concepts as equity, custom, justice* sovereignty, and 'public utility' as well as with the ancient hope of'reducing law to an art' (de jure in artem redigendo, in the Ciceronian phrase). In fact R o m a n law had often been referred to rhetorically as 'written reason' (ratio scripta); and what these systematists were doing was to attempt to realise the ancient claims o f jurisprudence to be 'true philosophy' (vera philosophia), though their success had to wait for two centuries and a revolution before the Romanoid legislative creation o f Napoleon (Arnaud 1969). It should be added that feudal custom, too, was the object o f such attempts at rationalisation, as in Antoine Le Conte's Methodus de Jeudis o f 1599 and in Paul Challine's Méthode générale pour Vintelligence des coutumes de France o f 1666, representative o f a vast (and vastly neglected) literature. 22

Other products o f the impulse to philosophical or legislative system included the 'republics' envisioned by Bodin, Pierre Grégoire de Toulouse, and Henning Arnisaeus, for whom public law assumes a dominant position over the legal and social concerns o f jurisprudence. Bodin's work far transcended the limits o f jurisprudence, o f course; that o f Grégoire likewise has high philosophic aspirations but kept closer to legal forms. T o Grégoire the 'republic' suggested not only an ideal society but a total cultural cosmos, and as an organising principle he preserved Justinian's (and Gaius') tripartite division o f persons, things, and actions as the basis for a syncretistic effort to arrange and to explain all human, natural, and divine law. The 'republic', he declared, 'is a community o f one society o f things and life, which makes up a single civil body composed o f many different parts, so that its members, under a single supreme power and under one head and spirit intended for the benefits and comforts o f this mortal life, may more easily achieve eternal life'. In this connection Grégoire explicitly attacked the counsels o f that 'most pernicious man Machiavelli,' whose rejection o f conventional religion and morality — and more especially o f law! — made him a devil figure for French jurists, not only Protestants like Innocent Gentillet but orthodox Catholics like Grégoire 23

24

22. Le C o n t e 1599; and see T h e u e r k a u f 1968, o n the medieval b a c k g r o u n d . 23. Arnisaeus 1615; and see also H o k e 1976, and Gross 1973. O n B o d i n , Denzer 1973. 24. Grégoire 1609, also 1580 and 1591; and see C o l l o t 1965 and G a m b i n o 1975.

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Law (Kelley 1970b). On the other hand, Grégoire, in his eclectic and anthropocentric synthesis, was pleased to make use o f the 'Francogallic' interpretations o f Hotman as well as the absolutist theorising o f Bodin, whose political and religious positions had been poles apart. All o f these topics o f discussion - legal humanism, comparative law, the conflict o f methods, the law o f nations, and the search for system — converge on the main theme o f early modern legal and political thought. Natural law (jus naturale) had been variously identified with divine law, 'right reason', the law o f nations, and even custom, which was at least a 'second nature' (altera natura). From Bartolus to Grotius it was also conventional to distinguish a 'primary' from a 'secondary law o f nature', the first being in accord with natural reason, as Baron wrote, and the second reflected in the collective behaviour o f peoples (Baron 1562, 1, p. 29). Among the early founders o f modern (Gierke calls it 'antique-modern') natural law were Johann Oldendorp, Bodin, and the Spanish theologianjurists, including Francisco de Vitoria and Francisco Suârez, creators o f the so-called 'second scholasticism'; but o f course the major figures were Hugo Grotius, Johannes Althusius, Pufendorf, and other seventeenth-century theorists who appealed increasingly to pure reason and made analogies with the 'new' natural philosophy which 'cast all in doubt' but which also promised a straighter path to certainty. From the rhetorically inspired Ramus' 'method' o f sixteenth-century jurists, the success o f pure reason seems complete with Leibniz' Nova methodus discendae docendaequae jurisprudentiae o f 1667; and o f course such rationalism also came to inform political thinking. 'In opposition to positive jurisprudence . . .', as Gierke put it, 'the natural-law theory o f the state was Radical to the very core o f its being'; and it figured centrally in the great intellectual war o f the age o f Descartes, Hobbes, and Leibniz, which Ernst Troeltsch described as the first struggle between 'naturalism' and 'historicism'. 25

26

27

This dichotomy is certainly reflected in much o f the legal theory o f that age o f naturalist system-building. Ultimately, it derives from the ancient distinction between nature and custom — which in legal terms is to say, according to Aristotle, between law that was natural (physikon) and law that was arbitrary (nomikon). The contrast is drawn perhaps most sharply by Hobbes' Dialogue between a Philosopher and a Student of the Common Laws of England (1661), which raised the humble men o f reason (mathematici) 25. See M a c k e 1966, W o l f 1963; also Grossi 1972, 1; and in general Scupin et al. 1973. 26. Leibniz 1667; and see Sturm 1968, Schneider 1967, D i c k e r h o f 1941; also Kelley 1988. 27. Gierke 1950, pp. 35—6; cf. Troeltsch 1922.

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above the arbitrary and authoritarian men who invoked custom or even consent (dogmatici) and who, like Descartes, preferred a Euclidean to a Justinianian model o f learning (Hobbes 1 9 7 1 , p. 53). It is a striking and unusually neglected fact that many o f the most distinguished jusnaturalists — including Domat and Leibniz as well as Grotius and Pufendorf (if not Hobbes) — followed the spirit and often the letter o f R o m a n forms, substance, and terminology (including the Gaian tradition o f persons, things, and action), and that they depended profoundly on the scholarship of'recent'jurisprudence (hodierna is Leibniz' term), including most o f the names discussed here. Yet it remains true that the central thrust was to shift attention from the authoritarian source o f law to its fundamental but metahistorical rationale — in this way to transform the meaning o f the old civilian formula, 'spirit o f the law' (mens legum; esprit den lois), from original intention to philosophical justification. 'Whether natural or arbitrary', as Domat declared in Les Loix civiles dans leur ordre naturel (1702), 'all rules base their usage on the universal justification which is in their spirit' (Domat 1702,1, p. 6). In the next century this quest for 'the spirit o f the laws' would be carried on even more profoundly by Montesquieu and Vico.

viii

The new legal heritage

The impact o f Romanist, Romanoid, or rational jurisprudence on public law was overwhelming. In the areas o f private law it was hardly less extensive but much harder to trace and to assess, since it was conventionally resorted to as a standard o f custom or, as Hermann Conring wrote, 'measure o f positive law'. In many ways it reshaped the materials gathered under the three conventional rubrics o f civil law. The law o f persons was extended increasingly by notions o f citizenship, civil 'liberty', and resistance; and it was expanded as well by commercial forces - the legal aspect o f that 'individualism' which is usually described in other material or cultural contexts. The law o f things was extended through R o m a n concepts o f prescription, giving definition to vague 'custom'; possession, which came to supplement 'seizin'; and especially property, which helped to transform feudal lordship (dominium) into 'private' ownership (dominium directum as distinguished from dominium utile) and which was reinforced through criminal law (Meynial 1908; Choppin 1662). Legal 'actions' were elaborated in connection with commercial law in particular, which shifted 28

28. O n C o n r i n g see W o l f 1963, pp. 220-52.

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Law emphasis from quasi-moral questions o f usury to technical questions o f economic exchange and 'interest', and which helped to raise the idea o f 'contract' to a more general, a social and political, level o f discussion. But these problems go far beyond, or below, the history o f political thought as commonly understood and in any case still await adequate historical investigation. B y way o f conclusion suffice it to suggest a few o f the major themes and transformations in the tradition o f European law between the Renaissance and the threshold o f the Enlightenment. 1 The expansion o f the legal profession. Established as a lay in telligentsia from the thirteenth century, jurists (legistae, canonistae,feudistae, and other professional specialities) not only formed national guilds and a university monopoly but also became an integral part o f government and a new office-holding nobility. The education o f this professional elite thus became an important part and extension o f higher learning in general and in many ways an important substratum o f social and political thought, furnishing terms, materials, and forms o f conceptualisation for the understanding o f modern European society. 2 The debates over 'method'. From Baron and Le Douaren to Leibniz, and beyond, jurists (paralleling philosophical methodologists from Ramus to Descartes, and beyond) enquired first into the pedagogical organisation o f legal study and then into the practical application and theoretical formulation o f human law. Because o f the overlapping o f questions o f fact, value, reason, and public interest, these debates touched also on the methodology o f emergent political and social as well as legal 'science', especially with the attempt to accommodate geographical, cultural, and historical factors both in judgements and in the theory o f law. 3 Legal hermeneutics. From being a questionable and indeed illegal practice, legal 'interpretation' became a major genre in which questions o f sources, authenticity, authorial 'intention', and rational and contextual 'meaning' were discussed with great sensitivity and ingenuity — thus marking the convergence o f the legal theory o f interpretation with the older philological, philosophical, and theological varieties. It marked, too, a new phase in the endless conflict between (interpretive) judicial and (declarative) legislative interests (Kelley 1983). 4 Legal antiquities. From the fifteenth century serious enquiries were undertaken in legal and institutional history, medieval as well as ancient; and before the advent o f anti-historical natural law theories such historical materials and interpretations were fundamental in the treatment o f legal and especially political issues. Arguments from history — authority, 9i

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precedent, the 'ancient constitution', and even 'immemorial custom' — drew strength from legal antiquarianism (Pocock 1957, 1987). 5 Divergent national traditions. However closely or remotely con nected with civil and canon law, all o f the indigenous national traditions drew upon and compared themselves with the R o m a n model and, what is more, frequently returned to it, whether through the judgements and interpretations o f learned men or through a more official 'reception', a modern adaptation o f R o m a n law (the usus modernus Pandectarum), or even construction o f a Romanoid code. 6 The law o f nations. Vastly expanded as a Romanist law common to the gentes and peoples undreamt o f by the ancients, the jus gentium became also, in the work o f jurists like Vitoria and Grotius, the basis for a jus inter gentes, which produced the first stage o f modern 'international law', as well as the basis for Vico's system of'universal law', the first form o f his 'new science' (cf. n. 18 above). 7 Legal systematics. The impulse to system, evident already in Gaius and the editors o f Justinian, was implied in the dialectical method employed by Bartolists and, in somewhat different ways, by Ramist and Ramoid methodisers o f the sixteenth and seventeenth century; but it was most fully realised by the French system-builders from Doneau and Connan to Domat. Originally pedagogical or philosophical in inspiration (in order to reform or to improve upon the Institutes o f Justinian), this impulse was also significant for the great efforts o f codification beginning in the eighteenth century. 8 Natural law. The attempt to define the jus naturale (or jus naturale gentium) was a rationalist offshoot o f legal systematics, but the seventeenthcentury aim was deliberately to depart from R o m a n convention, as exemplified by Domat's classic treatise devoted to arranging 'civil laws according to their natural order', analogous to seventeenth-century mathematical and metaphysical systems but also in keeping with earlier juridical invocations o f 'geometrical' forms by Le Douaren, Coras, and others. 9 The idea o f sovereignty. Based literally on ancient R o m a n 'majesty' (according to Bodin), this dominating conception drew also on the attributes of'empire' and on a vast accumulation o f modern regalian rights, privileges, and precedents — 'marks o f sovereignty' — which were largely the creation, and in the curatorship, o f the professional lawyers, especially those in the employ o f the national monarchies. 29

29. Tarello 1971; G a g n e r i960; Vanderlinden 1967; G a u d e m e t 1977; Ebel 1958.

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Law 10 The idea o f custom. Again o f ancient lineage, 'custom' (consuetudo, produced by mos) acquired a social and cultural as well as a legal significance, suggesting the prehistorical origin and corrective 'spirit' o f written law. It marks a crucial point o f intersection between jurisprudence and history, anthropology and sociology, at least in retrospect. 11 The idea o f liberty. Associated traditionally with the civil law rubric on 'the condition o f men', this fundamental human attribute was conceptually enhanced by Germanic and Protestant views o f freedom. Detached from this legalistic context this theme was taken over in often derivative political affirmations about the general, 'natural' as well as civil, 'rights o f man'. 12 The idea o f resistance. Tied in many ways to the idea o f liberty, this distinctively modern theory joined also religious and constitutional protest and private law notions o f self-defence into what was potentially — and, in the context o f natural law, actually — a defence o f revolution in a modern sense. 13 The idea o f private property. Regarded in effect as an extension o f 'personality', this is the most important o f a number o f concepts o f political economy developed by jurists in the economic conditions o f a commercial age, and associated increasingly with values derived from labour, produc tion, exchange, and 'interest'. 14 The idea o f contract. Elaborated from R o m a n precedents, this juridical device was expanded mightily not only in the economic but also in the political domain, where philosophical arguments transformed the notion into a 'social contract' interpreted in a variety o f ways, libertarian and authoritarian. 15 The idea o f the 'perfect jurist' (jurisconsultus perfectus). First as a sixteenth-century topos and then as a legal genre, this Renaissance idealisation, formed by the convergence o f traditional civil science and legal humanism, portrayed the learned yet activist lawyer as the master o f legal, social, and political science — the fulfilment in modern terms o f the ancient ideal o f 'true philosophy'. 16 As ever, but more ingeniously and more indignantly, critics o f law and o f lawyers carried on the protests against the pretensions, dishonesty, and duplicity apparently inseparable from the methods o f the legal profession. T o the idealised 'perfect jurist' celebrated in sixteenth- and seventeenth-century literature, Luther opposed the old proverb, 'The lawyer is a bad Christian.' From either point o f view the law has remained a central force in modern history and political thought. In general, under the intimidating influence o f the new natural 93 Cambridge Histories Online © Cambridge University Press, 2008

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philosophy, old-fashioned civil science seemed to be eclipsed by the rising star o f natural law and to be estranged from political philosophy. Some defenders o f positive jurisprudence protested against the extreme and empty rationalism represented by fashionable social contract theories. Samuel Rachel lodged such a complaint against Pufendorf, for example; and J . W . Textor argued that the 'law o f nations' was the product not only o f reason but o f positive law and historical precedent (Rachel 1676; Textor 1916, ch. 1 ) . Later Vico drew upon the old tradition o f civil law to lay the foundations o f a 'new science' constructed wholly on human, antinaturalistic principles. For Vico 'certainty' was the product first not o f reason but rather of'authority' understood in a cultural and historical sense. Law too had to be understood as an accumulation o f national experience, not a quasi-geometrical construct; and only through historical and comparative investigation could one achieve that 'system o f universal law' underlying Vico's New Science. On the whole, however, these objections were lost in the wave o f enthusiasm for an abstract and universal reason which raised the 'philosophical school o f law' into a position o f dominance which — among critics as well as defenders o f the old regime — prevailed until the historical school o f the nineteenth century. Civil law was overshadowed by natural law — and 'civil science' by natural science. Nor has the balance ever been restored. 30

30. V i c o 1911—41, 11.1, pp. 83, 126, 254, etc.; and see K e l l e y 1976c.

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4 Transalpine humanism BRENDAN

i

BRADSHAW

Renaissance eloquence: rhetoric and philosophy

Skirting the problematical subject o f the reception o f Renaissance humanism outside Italy (Skinner 1 9 7 8 , 1 , ch. 7) this chapter addresses itself directly to humanism as an established phenomenon north o f the Alps. Chronologically it spans what may be described as northern humanism's epic phase: the period from roughly the last decade o f the fifteenth century when, with the writing o f such scholars as R o b e r t Gaguin in France, Conrad Celtis in Germany, and John Colet in England, humanist discourse in the north acquired a native voice, down to the late 1530s when, with the death o f the generation o f Erasmus and Bude, and the burgeoning o f the Reformation and the Counter-Reformation, northern humanism lost its discrete character as a cultural force — succumbing to the role o f handmaiden in the service o f a variety o f other cultural forces. The specific concern o f the chapter is to explore the intellectual and ideological content of the political literature generated by northern humanism in this epic phase. Thus, having skirted a historigraphical Scylla, it will be necessary to engage with a Charybdis. Charybdis looms in the form o f a well-established orthodoxy which denies Renaissance humanism any specific philosophical content. It does so by defining humanism in exclusively literary and educational terms, as a movement devoted to the cultivation o f bonae literae and the studia humanitatis. Accordingly, it is argued, the involvement o f humanists with th€ larger questions o f religion, morality, and politics must be distinguished from their proper role as humanists. In such instances, the argument goes, the humanist is to be viewed as bringing an array o f technical literary and rhetorical skills to bear on issues extrinsic to the discipline itself. And, it is urged, the variety o f ideological standpoints which humanists can be seen 95

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to assume in these areas testifies to the lack o f any specific philosophical content to humanism as such. Approached in this way, therefore, the political literature o f northern humanism presents, strictly as a humanist corpus, a mode o f discourse, no more — a form, so to speak, without substantial content. Such a thesis might seem amply justifed in the case o f the political literature o f northern humanism. For here a cursory survey conveys the impression o f an ideological hotchpotch. B y way o f illustration one might point to the ideological gulf that yawns between the Utopia (1516) o f Sir Thomas More and the exactly contemporaneous La Monarchie de France (1515) o f the Swiss, Claude de Seyssel: the one provides a scathing indictment o f the political elites o f northern Europe: the other is written in a spirit o f piety towards a royal patron, Francis I, and an adopted patria, and extols the French monarchy accordingly as the ideal form o f common wealth. Equally, the reductionist definition would serve to explain the marked contrast in ideological viewpoint observable in the political writings o f those rival princes o f northern humanism, Erasmus and Budé: as between the moral idealism o f Erasmus and his excoriation o f militarism and o f institutional violence, and the staid conservatism o f the legist Budé (Tracy 1978, passim). O r again, the orthodoxy seems to find support in the writings o f a younger generation o f humanists, in the contrast provided, for instance, by Thomas Starkey's Dialogue between Pole and Lupset (1529—32), with its startlingly frank avowal o f populist and republican sentiments, and the best-selling Boke Named the Governour (1531) o f his fellow Englishman, Sir Thomas Elyot, which anxiously defends the old order and the virtues o f lineage and degree. 1

A cursory survey o f the political commentary o f the northern humanists, therefore, seems to substantiate the orthodox thesis by which humanism is reduced to a mode o f discourse and an array o f rhetorical techniques lacking a profounder philosophical perspective. What the corpus seems to reflect, indeed, is the readiness o f humanists to put their literary expertise to work as polemicists and propagandists on behalf o f a variety o f mutually antipathetic ideologies - often, allegedly, for no better reason than considerations o f professional advancement. Superficially attractive though this thesis might seem, it is not borne out by a closer scrutiny o f the literature. And the import o f the analysis offered here is to give it the lie. As will be seen, the political commentary o f northern humanism is informed 1. This interpretation originated w i t h Paul O t t o Kristeller. For one a m o n g m a n y statements o f his position, see Kristeller 1 9 6 1 , ch. 1, esp. pp. 8 - 1 3 , 17—19. Kristeller's interpretation has been extensively applied in recent times, e.g. F o x and G u y 1986, ch. 1, esp. pp. 3 1 - 3 .

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by a common perception o f the human condition, a world view, a philosophy o f life, on which the literary and educational enterprise o f the humanists is also found to be grounded. N o doubt the world view to which the humanists subscribed turns out on inspection to be a capacious construct. N o doubt also it was variously apprehended and interpreted, and proved capable o f accommodating a variety o f ideological standpoints. Nevertheless, the crucial consideration is that beyond the ambiguities and the variables a common nucleus o f values and assumptions is found which "constitutes the matrix o f a distinctively humanist ideology. The latter provides the agenda for the exposition which follows. The task is twofold: to identify those seminal concepts which comprised the matrix o f the humanist ideology and to trace their impact in each case upon the political thought o f northern humanism. Before proceeding to that agenda, however, some preliminary considera tion must be given to the formal composition o f the texts which constitute the basis o f the analysis. That is especially necessary because the humanist mode o f discourse often conveys an impression o f intellectual superficiality which has played no small part in lending credence to the historiographical orthodoxy just discussed. The nub o f the problem lies in the humanist notion o f Eloquence. This is commonly taken to refer to a merely rhetorical attainment: stylistic competence, a facility o f expression in accordance with the standards o f bonae literae, i.e. the best practice o f classical antiquity, in contrast to the barbarouly functional latinity o f the scholastics. Such a notion o f humanist Eloquence is valid enough in so far as it goes. It is, indeed, the case that a discursive, literary presentation is o f the essence o f humanist Eloquence by contrast with the dialectical-analytical mode o f the scholastics. However, misconceptions result when humanist Eloquence is reduced on this basis to a mere matter o f stylistic elegance, and when the humanists' enthusiasm for bonae literae is taken to entail an antipathy towards systematic analytical procedures in reaction to the perceived sterility o f dialectical analysis. In fact humanist Eloquence aspired to combine the functions o f philosophy and rhetoric, allying the intellectual rigour o f the former to the persuasive power o f the latter: the challenge was to construct a discourse that would be both attractively literary in its form and seriously philosophical in its substance. So far as the corpus under consideration is concerned two basic strategies can be 2

3

2. For a different approach b y means o f a close thematic analysis o f the texts, see the magisterial treatment o f Skinner 1978, 1.7, 8, 9. 3. Seigel 1968, p t i ; K e n n e d y 1980, chs. 5, 10. For a contemporary corroboration from a northern humanist, see E l y o t , The Governour (1531), B k i , ch. 12.

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discerned by means o f which commentators in the north sought to develop a mode o f political discourse which would satisfy the demand o f humanist Eloquence for both literary appeal and philosophical rigour. One was by resort to a literary-fictional approach in which a literary form - dialogue, fictitious narrative, allegory, satire — was exploited as the vehicle for a sustained philosophical discourse. More's Utopia stands as the enduringly brilliant example: in contrast, the somewhat earlier Tree of Commonwealth (1510) o f Sir Edmund Dudley provides an example — one among regrettably many — o f the lugubriousness to which the medium lent itself at the hands o f less-gifted rhetoricians. The alternative procedure — also, perhaps, the more common — was to construct a straightforward prose discourse, designed to achieve literary appeal by means o f stylistic embellishment and the deployment o f a range o f apt exempla culled from literature, history, and, not least, scripture. The genre at its best is exemplified in the Adages o f Erasmus, in which an original series o f expositions o f classical proverbs are developed through succeeding editions into a collection o f brilliantly contrived propagandist essays on religious, moral, and political issues. B y way o f a counter example, Elyot's Boke Named the Governour might be cited as all too characteristic o f the earnest pedantry which permeated commentary in this vein. Ultimately, how ever, the literary merit o f the corpus o f northern humanist political commentary is not the relevant issue for the discussion which follows. What matters is its philosophical content which historians too often tend to miss, bemused by the rhetorical packaging and by an inadequate grasp o f what was entailed in the practice o f humanist Eloquence.

ii

The renaissance o f politics

Proceeding, then, to the agenda proper, an obvious starting point is provided by a consideration o f the influence on the political thought o f the northern humanists o f the seminal concept which has been taken to characterise the era in which they flourished and to which nineteenthcentury historians have given the name, the Renaissance (Skinner 1 9 7 8 , 1 , passim). The claim o f the aspiration towards rebirth or renewal — the notion which the term Renaissance was coined to describe — to constitute a seminal concept o f the era in which humanism enjoyed its vogue need not, presumably, be pressed (Ferguson 1948, passim). Perhaps it needs to be emphasised, however, that the aspiration provides as characteristic a feature o f the intellectual environment o f politics in the period as it does o f 98

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literature and the arts with which it is more commonly associated. Indeed, the case has been made that the emergence o f the aspiration was conditioned in the first instance by the exigencies o f Italian politics rather than by autochthonous pressure within the cultural domain (Ullmann 1977, passim). B e that as it may, the impact o f the notion upon the political thought o f the northern humanists is manifest in their writings. Indeed, it can be seen to provide the fundamental inspiration o f the genre o f northern humanist political commentary as a whole. In that connection, a significant parallel is to be observed between the perspective on politics adopted in humanist writings and that adopted towards literature and the arts. In each case a critical stance is assumed towards the conventions and forms o f the received culture and an alternative model is promoted based on the practice o f classical antiquity conceived in idealised terms. In this regard, Utopia presents the classic paradigm with its scathing critique o f the chivalric culture o f late medieval Europe in B o o k 1 set over against the ideal political order o f Utopia depicted in B o o k 11. True, for the purposes o f the fiction, the ideal is located at a geographical distance from late medieval Europe rather than in the classical past. However, the provenance o f the ideal is not in doubt: Hythlodaeus, the protagonist both o f the critique o f contempor ary barbarism and o f Utopian civility is presented as a Platonic philosopher. Similarly, the political commentary o f Erasmus pivots on the contrast between the wisdom o f the political values enshrined in the classical heritage and the folly o f contemporary practice. His well-known colloquy, Convivium Religiosum (1521), daringly apostrophising 'St Socrates', ele gantly exemplifies the approach. More to the point for present purposes, the same thought-pattern is found to inform the political commentary o f the conservative stream o f humanist writers in the period. In the writings o f these, it is characteristically expressed in the form o f the paradoxical axiom o f radical conservatism — given utterance here perhaps for the first time in the literature o f western political thought: the necessity to change in order to remain the same. Thus Seyssel's La Monarchie begins by extolling the perfections o f the French constitution, embodying, as he claims, the Aristotelian ideal o f mixed government, i.e. the attributes o f monarchical, aristocratical, and popular rule, but then proceeds to urge a scheme o f administrative reform o f quite radical constitutional implications in order to bring the reality into line with the ideal. The same cast o f thought, altered in the focus o f its concern, is reflected in Elyot's The Boke Named the Governour. There, drawing especially upon the Neoplatonic tradition, he gives classic expression to a message which conservatively minded 99

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humanists had begun to preach several decades earlier - Celtis in Germany (Inaugural Oration, 1492), Dudley in England (Tree of Commonwealth), and Bude in France (De Asse, 1515) — the need for a profound transformation o f the chivalric culture and lifestyle o f the English nobility, from a warrior to a civil ethos, in order to maintain their traditional role o f political leadership intact. Thus, as this cross-section o f the literature exemplifies, humanist political commentary at this period revolves upon the notion o f renewal under the inspiration o f an idealised perception o f classical antiquity. Whatever the differences otherwise, the ideological thrust o f the comment ary is invariably progressive, urging advance from an imperfect present towards an ideal inspired by classical antiquity. That progressive orienta tion provides the first example o f the way in which humanist political thought in the north took a distinctive ideological impress from the matrix o f seminal ideas which moulded the intellectual environment in which humanist culture flourished. The task now is to give specific content to the aspiration towards renaissance or renewal as it took form in the political thought o f northern humanism. This can be done by means o f a closer analysis o f the literary corpus. In that connection, attention is to be directed in the first instance to the sub-categories into which the literature breaks down. Here a twofold classification emerges in accordance with the themes around which the treatises are organised. These are conveniently illustrated in the classic contributions o f Erasmus and More to the genre, the titles o f which conveniently summarise the burden o f the discourse: Of the Formation of a Christian Prince (1516) and Of the Best State of a Commonwealth and of the Island of Utopia. Humanist political discourse, therefore, was preoccupied with the practical problem o f the reform o f government in its personnel and its processes. However, as reference to the treatment o f these issues in the commentary shows, the two converge, as lines o f approach, on a single all-absorbing consideration: how the means o f government — human and instrumental - were to be brought to fulfil its end. And ultimately, by reference to the end o f government as envisaged in the commentary, it can be seen that the concern o f the humanists was not strictly political at all. For the reform o f government, as presented in the literature, is directed to the reform o f the social order as a whole. In that connection, a consideration o f the rhetoric through which the aspiration o f the humanists was articulated proves highly illuminating. Interest here focuses on a term which enjoyed a special vogue in humanist political discourse before entering upon a long and eventful career in the rhetorical currency o f early modern Europe, 100

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n a m e l y the t e r m respublica — together w i t h a variety o f vernacular equivalents. W h a t needs to be emphasised in that c o n n e c t i o n is the unique resonance w h i c h the t e r m acquired in humanist usage precisely t h r o u g h association w i t h the n o t i o n o f a renaissance. A n d the k e y to its uniqueness lies in its fidelity to the original Platonic usage f r o m w h i c h it derived, n a m e l y to c o n v e y an abstract and teleological concept: the n o t i o n o f a political c o m m u n i t y flourishing under a just and beneficent political order (see b e l o w , p p . 116—17). T h a t ideal o f the respublica—usually put into English as 'the c o m m o n w e a l t h ' — constitutes the criterion o n w h i c h the humanist critique o f late m e d i e v a l political culture w a s based and the inspiration o f the humanists' aspiration t o w a r d s the r e n e w a l o f the political order.

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Humanitas and the imago Dei

A g a i n s t that b a c k g r o u n d the discussion m a y p r o c e e d to consider the place o f a second seminal idea in m o u l d i n g the distinctive content o f humanist political c o m m e n t a r y in the north. T h i s is the Renaissance c o n c e p t o f M a n . A l t h o u g h the subject is historiographically fraught, as w i l l soon appear, the historicity o f the concept, as such, hardly calls for c o m m e n t , manifest as it is in the artistic and literary artefacts o f the period: in art, in the distinctive Renaissance p r e o c c u p a t i o n w i t h the h u m a n f o r m as e m b o d y i n g the ideal o f perfect b e a u t y ( G o m b r i c h 1950, chs. 1, 15); in literature in a c o r r e s p o n d ing genre m o s t f a m o u s l y represented b y G i o v a n n i P i c o della M i r a n d o l a ' s Oration on the Dignity of Man ( i 4 8 6 ) . T h e motif, therefore, is as characteristic o f the Renaissance as the aspiration t o w a r d s r e n e w a l itself: indeed, they are corollaries. H o w e v e r , the i m p a c t o f the c o n c e p t o n humanist political t h o u g h t p r o v i d e s a m o r e problematical subject. T h e p r o b l e m r e v o l v e s u p o n the significance w h i c h is to be attached to the c o n c e p t o f humanitas as d e p l o y e d in humanist discourse. Here t w o traditions o f interpretation h a v e tended to d o m i n a t e , each o f w h i c h serves v a l u a b l y to emphasise a particular aspect o f the term's c o n t e m p o r a r y usage, t h o u g h neither, as w i l l be suggested, c o m p r e h e n d s the full referential range intended b y the humanists. 4

O n e approach, m e n t i o n e d earlier, seeks to confine Renaissance h u m a n ism w i t h i n a scholarly, academic a m b i e n c e and m a y , therefore, be described, at the risk o f s o m e confusion, as scholasticist. It stresses the humanists' c o n c e r n for the r e v i v a l o f rhetoric and literature as academic 4. T h e theme has generated a considerable historical literature. For a sampling, see Kristeller 1972; Trinkaus 1982; Skinner 1978, 1, pp. 9 4 - 1 0 1 .

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disciplines, and their resistance to the o v e r w e e n i n g influence o f scholastic p h i l o s o p h y (e.g. Kristeller 1 9 6 1 , ch. 1). Set w i t h i n that f r a m e w o r k , humanitas acquires a strictly academic range o f reference. It relates s i m p l y to the studia humanitatis, the cluster o f arts subjects, c o l l o q u i a l l y referred to in academic parlance as the humanities. T h u s , as n o t e d earlier, Renaissance h u m a n i s m is d e p r i v e d o f any distinctive philosophical content and, ipso facto, o f a n y distinctive political i d e o l o g y . Humanists, it is argued, espoused a variety o f political standpoints w h i c h they vindicated b y recourse to their humanistic skills and learning but n o t strictly in their capacity as humanists. T h e difficulty w i t h this interpretation is that it ignores the basis on w h i c h the studia humanitatis w e r e p r o m o t e d and vindicated. T h e humanists did n o t take a stand o n the principle o f ars gratia artis. R a t h e r , they regarded their subject as s u p r e m e l y w e l l adapted to that larger purpose to w h i c h they believed their educational enterprise to be directed, n a m e l y , m o r a l f o r m a t i o n (Garin 1965). In this respect, it m a y be r e m a r k e d in parenthesis, their cast o f t h o u g h t reflects a distinctively Platonic, or, m o r e strictly, Socratic influence. It is precisely in this m o r a l orientation that the second tradition o f interpretation finds the k e y to the m e a n i n g o f humanitas. H e r e appeal is m a d e to the term's classical p r o v e n a n c e . Set in that c o n t e x t it refers to a m o r a l quality e x t o l l e d b y the philosophers and poets o f classical antiquity, a w a y o f acting in accordance w i t h those unique faculties w h i c h set the h u m a n species a b o v e the animal k i n g d o m : reason, speech, and m o r a l f r e e d o m (Trinkaus 1970, passim; U l l m a n 1977, ch. 4). S u c h an explication advances understanding o f the t e r m as d e p l o y e d b y the humanists in t w o related respects. It d r a w s attention to the c o m m o n m o r a l stance w h i c h the humanists b r o u g h t to bear in their w r i t i n g s , c o r r e s p o n d i n g to the c o m m o n set o f cultural and aesthetic values w h i c h they espoused. A n d , as a corollary, it reveals the objective to w h i c h the p r o m o t i o n o f the studia humanitatis w a s directed: the restoration o f bonae literae n o t as an end in itself but as a means t o w a r d s the restoration o f humanitas as e m b o d i e d in the ideal o f the vir humanus (Garin 1965, p p . 78—113; U l l m a n n 1977, ch. 4). In that light, it is possible to see that the n o t i o n o f humanitas as d e p l o y e d b y the humanists did, indeed, e x t e n d to c o m p r e h e n d , i f n o t a f u l l - b l o w n p h i l o s o p h y , at least a w o r l d v i e w , an i d e o l o g y , a c o m m o n o u t l o o k o n life and art, g r o u n d e d u p o n an exalted a n t h r o p o l o g y (Trinkaus 1970, passim). Nevertheless, this a c c o u n t does n o t seem entirely satisfactory as applied to the political t h o u g h t o f the humanists. T h e difficulty arises in relation to the p o l e m i c a l function w h i c h is assigned to the t e r m humanitas in humanist 102

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political c o m m e n t a r y . A c c o r d i n g to the tradition o f interpretation under discussion this, in a w o r d , m a y be described as secularist. T h e suggestion is that the vir humanus w a s i n v o k e d as a means o f affirming the a u t o n o m y o f the secular order against a m e d i e v a l Christian i d e o l o g y w h i c h sought to sacralise it, and, thereby, to g i v e the church ultimate control o f it. T h e objection to such an explanation is that the thrust o f humanist political t h o u g h t in the n o r t h is, in fact, holistic. A s perusal o f the political treatises o f the humanists abundantly indicates, the c o n t r o l l i n g c o n c e p t i o n is o f a r e n e w e d Christian society — a truly Christian c o m m o n w e a l t h — not o f a restored secular political order o n the classical m o d e l . It seems, therefore, that the humanists' understanding o f humanitas s o m e h o w c o m p r e h e n d e d such a holistic vision. In that regard, an illuminating insight is p r o v i d e d b y those artistic and literary artefacts referred to earlier, in w h i c h the Renaissance c o n c e p t o f M a n is celebrated. A s the i c o n o g r a p h y o f the art and the literary tropes abundantly testify, the h u m a n ideal w h i c h is here affirmed expresses n o t a p o l e m i c a l tension b e t w e e n a classical and a Christian c o n c e p t i o n but a h a r m o n i o u s fusion o f the t w o . A n d the inspirational source o f the synthesis is n o less clear. It is the account o f M a n in his original state o f perfection contained in the o p e n i n g t w o chapters o f the B o o k o f Genesis. In effect, the humanists baptised the classical ideal o f the vir humanus b y subsuming it under the biblical ideal o f M a n as the imago Dei (Trinkaus 1970, passim). T h i s , then, w a s the end to w h i c h the humanists' p r o m o t i o n o f the studia humanitatis w a s directed: not the r e v i v a l ofbonae liter ae as a g o o d in itself; n o r yet the r e v i v a l o f the classical ideal o f the vir humanus, secular m a n , as such. W h a t the humanist aspired to w a s the r e v i v a l o f the classical ideal subsumed under the biblical ideal o f M a n as the image o f G o d . T h e w a y is n o w clear to proceed to a consideration o f the i m p a c t o f the Renaissance concept o f M a n o n the political t h o u g h t o f the northern humanists. T h e first point w h i c h should be m a d e in that c o n n e c t i o n is that the topos o f the imago Dei is f o u n d to p e r v a d e the b o d y o f humanist literature in the n o r t h in the same w a y as in Italy. T r u e , the genre o f f o r m a l l y elaborated treatises De dignitate hominis m a y be less w e l l represented — t h o u g h Juan Luis V i v e s ' Fabula de homine (1518) provides a c h a r m i n g e x c e p t i o n in w h i c h the Genesis account is d e c k e d out in the trappings o f classical a l l e g o r y . M o r e to the point, the m o t i f o f ' t h e excellent d i g n i t y o f m a n ' is encountered as a recurring trope w i t h i n the political 5

6

5. This tradition o f interpretation m a y be traced back to Burckhardt. H o w e v e r , I have especially in mind the thesis argued in U l l m a n n 1 9 7 7 . 6. See b e l o w pp. 1 0 4 - 5 .

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c o m m e n t a r y itself and in a f o r m , m o r e o v e r , w h i c h c o m p r e h e n d s b o t h the classical and biblical concepts: for instance, as a philosophical gloss o n the Genesis account, as in E l y o t ' s Governour ( B k m, ch. 2); or, as a N e o p l a t o n i c a l l e g o r y — thus Celtis' lyrical e u l o g y o n M a n as 'the earthly star' (Oration, ch. 11) and S t a r k e y ' s 'sparkle o f d i v i n i t y ' (Dialogue: 1989, p. 9); or in the f o r m o f a literary trope as in Erasmus' 'St Socrates' (Convivium Religiosum). H o w , then, did this exalted c o n c e p t i o n function in the political t h o u g h t o f the northern humanists? T h e answer, as w i l l n o w be clear, c o m e s to h i n g e o n the i d e o l o g i c a l implications o f s u b s u m i n g the classical ideal o f h u m a n perfection under the biblical one. In that c o n n e c t i o n a crucial insight is p r o v i d e d b y the humanists' d e p l o y m e n t o f the classical n o t i o n o f respublica as the ideal o f g o v e r n m e n t and as the m o r a l criterion b y w h i c h to assess the political practice o f the g o v e r n i n g elites o f c o n t e m p o r a r y E u r o p e . T o return to a point m a d e earlier: the thrust o f this p i v o t a l i d e o l o g i c a l c o n c e p t i o n , as d e p l o y e d in the political c o m m e n t a r y o f the humanists, w a s t o w a r d s the affirmation o f a Christian n o t a secular political order. T h e classical ideal w a s held up n o t as the criterion o f absolute perfection but as p o i n t i n g t o w a r d s an e v e n loftier ideal, enjoined o n Christian rulers, a fortiori, b y reason o f the greater excellence o f the Christian dispensation. T h i s rhetorical structure is readily apparent in the mainstream tradition o f humanist c o m m e n t a r y w h e r e the m o d e is straightforwardly e x h o r t a t o r y . H e r e the lesson is explicitly d r a w n in the m a n n e r o f a m o r a l exemplum — as, for instance, w h e n A n t o n i o de G u e v a r a appeals f r o m the ' p a g a n ' ideal o f a heroic death in battle to the 'Christian' ideal o f the h o l y life o f the peace m a k e r . M o r e tellingly, h o w e v e r , the same t h o u g h t process is reflected in humanist p o l e m i c in the satirical m o d e , despite its iconoclastic force and studied ironies, as practised to such devastating effect b y Erasmus, M o r e , and, indeed, R a b e l a i s . Here, as so often, Utopia holds a special interest, n o t so m u c h for the light it t h r o w s o n the m i n d o f M o r e himself but for the w a y it serves to illuminate the mind-set o f the humanists o f his generation. In Utopia, then, the n o t i o n of respublica is applied as a rhetorical p l o y o n w h i c h the p o l e m i c a l structure o f the w o r k as a w h o l e pivots. T h u s , the injustices o f the n o m i n a l l y Christian c o m m o n w e a l t h depicted in B o o k 1 are h i g h lighted b y appeal to the justice o f the n o n - C h r i s t i a n c o m m o n w e a l t h o f U t o p i a depicted in B o o k 11. Nevertheless, as M o r e signals at several points t h r o u g h o u t the text, the U t o p i a n p o l i t y remains less than perfect, limited as it is b y the dictates o f reason, u n g u i d e d b y the h i g h e r light o f r e v e l a t i o n . 7

8

7. Guevara 1 9 1 9 , p. 130.

8. These are pinpointed in Skinner 1987, pp. 1 4 7 - 5 2 .

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A c c o r d i n g l y , that c o n s u m m a t i o n , the c o n v e r s i o n o f the island to C h r i s tianity, p r o v i d e s the conclusion to H y t h l o d a y ' s narrative ( B r a d s h a w 1981, p p . 6 - 1 4 ) . Despite the savage indictment o f the c o n t e m p o r a r y establish ment, therefore, and the appeal to the classical ideal o f a j u s t l y ordered respuhlica, Utopia reflects a deeply Christian consciousness. U n d o u b t e d l y , the p o l e m i c is calculated to u n d e r m i n e the political culture o f late m e d i e v a l C h r i s t e n d o m but it is c o n d u c t e d o n b e h a l f o f a Christian, not a secular, alternative. M o r e precisely, the message w h i c h the U t o p i a n p o l e m i c seeks to c o n v e y is that the construction o f a truly Christian political order must rest u p o n the foundation o f a just secular one ( B r a d s h a w 1 9 8 1 , p p . 6—14). H e r e lies the k e y to the significance o f the Renaissance c o n c e p t o f M a n as it functioned in the political t h o u g h t o f the humanists. B y virtue o f this a n t h r o p o l o g i c a l perception, the humanists s o u g h t to b r i n g to bear the values and insights o f classical political t h o u g h t , g r o u n d e d o n the n o t i o n o f the vir humanus, in pursuit o f their aspiration to construct a truly Christian commonwealth. In considering the consequences o f this approach for the political t h o u g h t o f the humanists the first step is to grasp its i d e o l o g i c a l implications. T h e s e m a y best be observed, f o l l o w i n g the interpretative line o f the secularists discussed earlier, in the light o f the p o l e m i c w h i c h the humanists c o n d u c t e d against the political culture o f late m e d i e v a l C h r i s t e n d o m . A c c o r d i n g l y , the discussion returns to the starting point p r o v i d e d b y the secularists. T h a t is the contrast b e t w e e n the anthropological perception w h i c h m o u l d e d humanist political t h o u g h t and the perception w h i c h d o m i n a t e d the cultural ethos o f late m e d i e v a l E u r o p e : the v i e w o f M a n as fallen f r o m grace, corrupt in nature, and in need o f r e d e m p t i o n , derived, ironically, f r o m the same source as the humanist one, the o p e n i n g chapters o f the B o o k o f Genesis. A s the secularists rightly insist, that deflating a n t h r o p o l o g i c a l perception, in the radically pessimistic formulations o f St A u g u s t i n e c o n v e y e d to the late m i d d l e ages in P o p e Innocent Ill's bleak account o f the h u m a n condition, De miseria humanae conditionis, provides the p o l e m i c a l referent o f the Renaissance c o n c e p t o f M a n as d e p l o y e d in the r e f o r m treatises o f the humanists. Nevertheless, as pointed o u t earlier, the secularists' account o f the i d e o l o g i c a l implications o f the contrast is unacceptable. It is not satisfactorily explained in terms o f a conflict b e t w e e n a sacralising m e d i e v a l i d e o l o g y and a secularising Renaissance one. T h e 9

9. U l l m a n n 1 9 7 7 , ch. 4. O n the humanist polemic against the anthropology o f the Christian middle ages, see Skinner 1 9 7 8 , 1, pp. 88—101.

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ideal w h i c h the humanists s o u g h t to p r o m o t e w a s n o t the vir humanus as such, but that classical c o n c e p t subsumed under the biblical c o n c e p t o f the imago Dei. A n d the purpose o f the humanists in d o i n g so w a s p r o f o u n d l y Christian, n o t to desacralise the political culture o f late m e d i e v a l C h r i s t e n d o m but, as they b e l i e v e d , to reChristianise it. W h i l e , therefore, the h o a r y jurisdictional debate b e t w e e n church and state s u r v i v e d into the early m o d e r n period w i t h fateful consequences, it does n o t p r o v i d e the frame o f reference w i t h i n w h i c h the p o l e m i c o f the humanists w a s c o n d u c t e d . A s perusal o f the relevant literature abundantly s h o w s , the humanists' critique o f the political culture o f late m e d i e v a l C h r i s t e n d o m w a s i n f o r m e d b y a m o r e fundamental, functional p r e o c c u p a t i o n . It concerned the central question to w h i c h political t h o u g h t in the classical tradition addressed itself: the means b y w h i c h the p o l i t y is to be directed to the end o f a j u s t l y ordered r espublica. T h i s , therefore, is the frame o f reference w i t h i n w h i c h the i d e o l o g i c a l significance o f the contrast b e t w e e n the a n t h r o p o l o g i c a l perception o f the humanists and that w h i c h d o m i n a t e d late m e d i e v a l C h r i s t e n d o m must be explicated. Situated in that c o n t e x t the contrast is seen to reflect a conflict b e t w e e n t w o approaches to the practice o f g o v e r n m e n t : the one v o l u n t arist, characterised b y strategies o f coercion, and reflecting a perception o f h u m a n nature as fallible and predisposed t o w a r d s evil; the other rationalist, characterised b y strategies o f persuasion, and reflecting a perception o f h u m a n nature as perfectible and disposed to virtue. In i d e o l o g i c a l terms, therefore, the contrasting a n t h r o p o l o g i c a l perceptions under consideration reflect, o n the one hand, the humanists' repudiation o f c o n v e n t i o n a l A u g u s t i n i a n assumptions about g o v e r n m e n t as a necessarily c o e r c i v e and punitive process — a consequence o f the fall o f A d a m — and, o n the other hand, their c o m m i t m e n t to a m o r e b e n i g n approach, designed to assimilate the classical tradition o f political t h o u g h t , g r o u n d e d o n the ideal o f the vir humanus, w i t h i n a Christian frame o f reference.

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Political W i s d o m

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flourishing genre o f W i s d o m literature, s t e m m i n g f r o m Petrarch's De sapientia, and represented m o s t famously — t h o u g h b y n o means u n i q u e l y — in the n o r t h b y Erasmus' Praise of Folly ( 1 5 0 7 ) . T o the testimony o f the literature m a y be added the corresponding d e v e l o p m e n t in art o f a genre centred u p o n the t h e m e ofhomo sapiens, familiar e x a m p l e s o f w h i c h include R a p h a e l ' s School of Athens and the Allegory of Philosophy o f A l b r e c h t Diirer. T h e c o n c e p t o f W i s d o m claims a place, therefore, alongside the aspiration t o w a r d s r e n e w a l itself, and the exalted a n t h r o p o l o g i c a l n o t i o n just n o w considered, w i t h i n that m a t r i x o f ideas w h i c h m o u l d e d the culture o f the Renaissance. O f m o r e specific relevance to the subject in hand is the matter o f intellectual p r o v e n a n c e . In this regard t w o points require to be emphasised. O n e concerns the classical inspiration o f the concept. W h a t is o f significance here is the syncretism o f the humanists' approach to the W i s d o m literature o f classical antiquity and the consequent fusion, in the n o t i o n o f E l o q u e n c e , o f t w o i d e o l o g i c a l l y c o n g e n i a l but m e t h o d o l o g i c a l l y disparate schools o f t h o u g h t : the Socratic philosophical tradition, mediated t h r o u g h Plato, and the rhetorical, literary stream, represented for the humanists a b o v e all b y C i c e r o and the S t o i c s . In this c o m b i n a t i o n , therefore, lies the intellectual source o f the humanists' c o m m i t m e n t to philosophia de caelo revocata — i.e. a m o d e o f philosophical reflection that w a s existential, m o r a l , and practical — and their aversion, b y the same t o k e n , f r o m the essentialist quiddities to w h i c h Aristotelian p h i l o s o p h y tended, m o s t especially as represented b y scholastic dialectic (Guthrie 1969, m , pp.417—25). T h e second point w h i c h a consideration o f the intellectual p r o v e n a n c e o f the W i s d o m idea serves to h i g h l i g h t is the Christian orientation o f the concept. In v i e w o f the earlier discussion o f humanist a n t h r o p o l o g y this point need scarcely be laboured. A l l that needs to be said is that the same intellectual strategy can be seen to operate here as applied in the christening o f the vir humanus. T h e classical c o n c e p t w a s subsumed under a Christian one: in this case m a i n l y b y reference to the W i s d o m tradition o f the O l d T e s t a m e n t and to the treatment o f the t h e m e in the Pauline epistles — St Paul is m a d e to play Plato to Jesus' Socrates, as in the remarkable conclusion to Erasmus' Praise of Folly (Bradshaw 1982, esp. p p . 429—40). T h e relevance o f these considerations e m e r g e s in c o n n e c t i o n w i t h the explication o f the m o t i f s precise intellectual content. 10

11

H e r e , o n c e m o r e , Erasmus offers an illuminating insight in a phrase 10. T w o major studies o f Renaissance W i s d o m are R i c e 1958 and K a h n 1985. O n the classical W i s d o m tradition, see Guthrie 1969, in, ch. 14, and 1 9 7 5 , iv, ch. 4. 1 1 . K a h n 1985, ch. 2; Seigel 1968, chs. 1, 3; R i c e 1958.

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w h i c h has been claimed to c o n v e y 'the one ideal o f w i s d o m peculiarly characteristic o f the Renaissance'. It is virtus cum eruditione liberali coniuncta ( R i c e 1958, p . 204). W h a t c o m m e n d s that phrase is its encapsulation o f the Socratic—Ciceronian perception just discussed, o f learning as a m o r a l process — directed to the fulfilment o f the h u m a n potential — and, as a corollary, the repudiation o f k n o w l e d g e pursued for its o w n sake, and the disparagement o f metaphysics and the science o f nature for their lack o f m o r a l relevance. T h e insight thus p r o v i d e d into the mind-set o f the humanists has to d o w i t h the nexus w h i c h is here h i g h l i g h t e d b e t w e e n sapientia and humanitas. For, as has been r i g h t l y observed, the Erasmian phrase m i g h t equally w e l l be taken to characterise that latter n o t i o n ( R i c e 1958, p. 214) — as the potentia, so to speak, w h i c h issues in W i s d o m . In elucidating the significance o f this association it is necessary to correct once again a confusion arising f r o m the secularist tradition o f interpretation. In that tradition the nexus is taken to reflect the secular thrust o f the humanist concept, inspired, supposedly, b y the classical ideal o f W i s d o m as the rationally acquired virtue o f the vir humanus, o v e r against a m e d i e v a l c o n c e p t i o n o f it as supernaturally infused k n o w l e d g e . In the light o f the b a c k g r o u n d p r o v i d e d here that v i e w calls for little c o m m e n t . Suffice it, therefore, to illustrate the Christian orientation o f the humanist c o n c e p t b y reference to another phrase as quintessentially Erasmian as it is characteristic o f the mind-set o f Renaissance h u m a n i s m . T h a t is the phrase in w h i c h Erasmus extols the gospel as the philosophia Christi, the Christian W i s d o m in w h i c h classical W i s d o m finds its c o n s u m m a t i o n (Bradshaw 1982, pp. 422-9). 1 2

C l e a r l y , then the significance o f the nexus b e t w e e n humanitas and sapientia in the minds o f the humanists requires to be reformulated. In fact, its m e a n i n g b e c o m e s abundantly evident b y references to treatments o f the t h e m e in the humanist genre o f W i s d o m literature: as, for instance, in the systematic exposition b y Erasmus h i m s e l f in the Antibarbari ( B r a d s h a w 1982, passim) or, in m o r e didactic f o r m , in a host o f manuals o f the ars vivendi variety, represented in the north, for instance, b y the Introductio ad sapientiam (1524) o f V i v e s — translated into English b y R i c h a r d M o r i s o n (1540) - or E l y o t ' s Of the Knowledge which Maketh a Wise Man (1533) ( F o x and G u y 1986, pp.65—73), or, indeed, b y Erasmus' o w n best-selling Enchiridion Militis Christiani (1504). T h e c o n c e p t w h i c h e m e r g e s f r o m these constitutes the epistemological corollary, as it m i g h t be said, o f the 12. T h u s R i c e 1958, see esp. ch. 8. C f . U l l m a n n 1 9 7 7 , esp. pp. 198-202.

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a n t h r o p o l o g i c a l c o n c e p t i o n w h i c h the humanists p u r v e y e d b y recourse to the biblical ideal o f the imago,Dei. It is the n o t i o n o f W i s d o m as an attribute acquired t h r o u g h the c o m b i n e d resources o f R e a s o n and R e v e l a t i o n , each contributing u n i q u e l y y e t reciprocally t o w a r d s that c o n s u m m a t i o n ( B r a d shaw 1982, p p . 422—9). Situated in the c o n t e x t o f the cultural ethos o f late m e d i e v a l Christianity the i d e o l o g i c a l thrust o f that c o n c e p t i o n — and the force o f the Erasmian rhetoric — is readily apparent. O v e r against a deeply entrenched patristic current o f t h o u g h t , w h e r e b y R e v e l a t i o n w a s set apart, as transcending and superseding m e r e h u m a n reason, the humanists s o u g h t to affirm a v i e w o f the t w o as c o m p l e m e n t a r y and interdependent (Bradshaw 1982, p p . 414—16). T h u s , in this v i e w , the k n o w l e d g e acquired b y rational means points t o w a r d s R e v e l a t i o n as to its perfection, w h i l e the k n o w l e d g e to w h i c h R e v e l a t i o n gives access requires to be appropriated b y means o f rational e n d e a v o u r . V i e w e d in conjunction, therefore, the t w o seminal Renaissance ideas here discussed — o f M a n and o f W i s d o m — can n o w be seen to reflect an e v e n m o r e fundamental c o n c e p t i o n o n w h i c h , indeed, the i d e o l o g y o f Renaissance h u m a n i s m w a s ultimately g r o u n d e d . T h a t is the n o t i o n o f an o n t o l o g i c a l symbiosis as b e t w e e n the natural and the supernatural orders and, b y w a y o f corollary, o f nature and grace as the divinely appointed means b y w h i c h M a n is enabled to attain his perfection as the imago Dei. H e r e in that h a r m o n i o u s o n t o l o g i c a l c o n c e p t i o n lies the k e y to the function o f W i s d o m , as perceived b y the humanists, in the practice o f politics and g o v e r n m e n t . P r o c e e d i n g then to consider that question, w h a t first requires to be n o t e d is the w a y in w h i c h W i s d o m is singled out a m o n g the virtues in humanist political discourse. Its status is w e l l reflected in the r e v i v a l o f the Platonic ideal o f the philosopher-prince, a figure w h o p r o v i d e s an ubiquitous trope in the w r i t i n g s o f humanists, b o t h those in the Erasmian m o u l d , such as M o r e , V i v e s , and Starkey, and those o f a m o r e conservative cast, such as Erasmus' G e r m a n c o n t e m p o r a r y , Celtis, or, in the n e x t generation, E l y o t . W h a t e v e r their differences o t h e r w i s e — w i t h one another or, indeed w i t h Plato, as w e shall see — all agree in singling out W i s d o m as the preeminent political virtue. T h e second feature o f note points u p the relevance o f the earlier e p i s t e m o l o g i c a l discussion. It concerns the rationale w h i c h the humanists p r o v i d e d for their sapiential o p t i o n . T h e point o f fundamental significance in that regard is the humanists' perception, in line w i t h S o c r a t i c - P l a t o n i c e p i s t e m o l o g y , o f intellect rather than w i l l as the d y n a m i c source o f action (Guthrie 1969, m, p p . 450—61). T h u s , b y w a y o f e x a m p l e , Erasmus' classic Institutio Principis Christiani (1516) w h i c h opens w i t h a 109

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paean to W i s d o m and goes o n to impress u p o n the y o u n g Charles V that whereas ' g o o d w i l l m a y suffice in the ordinary citizen, since he is directed b y the laws, it [ g o o d will] is o f little avail in a prince unless a c c o m p a n i e d b y w i s d o m w h i c h s h o w s h i m h o w to attain w h a t he desires' (Institutio: 1936, p . 187). T h e precise i m p l i c a t i o n o f this perception is pinpointed b y E l y o t w h e n he declares — in another classic advice b o o k o f a later v i n t a g e and at a significant distance i d e o l o g i c a l l y in other respects f r o m that o f Erasmus — that 'sapience in the g o v e r n a u n c e o f a c o m m o n w e a l t h is o f m o r e efficacy than strength and puissance' (Governour, B k m , ch. 23). In short, the effect o f the humanist attempt to assimilate the insights o f classical political t h o u g h t w i t h i n a Christian frame o f reference w a s , in the first instance, a c o m m i t m e n t to an i d e o l o g y o f W i s d o m as against one o f P o w e r as the instrument o f politics. T h e third significant feature o f the W i s d o m m o t i f as treated in the political c o m m e n t a r y o f the humanists concerns the a m b i g u i t y , n e v e r t h e less, as hinted earlier, o f the response e v i n c e d b y the Platonic tradition o f political reflection. T h e attitude is h i g h l i g h t e d in a topos significantly as ubiquitous in humanist political c o m m e n t a r y as the trope o f the philosopher-prince. Its effect is to d i s a v o w the Platonic tradition o f political t h o u g h t — or, b y e u p h e m i s m , 'ancient p h i l o s o p h y ' — as impractically idealistic, in fact, as philosophia in caelis, and to affirm an alternative a p p r o a c h o n the basis o f its practical utility. T h u s , the Swiss humanist, Seyssel, in an entirely characteristic p r o e m to his La Monarchie de France emphasises the n o v e l t y o f his treatise insofar as it addresses the state o f the historic French c o m m o n w e a l t h and n o t that abstraction o f 'ancient p h i l o s o p h y ' , the ideally best c o m m o n w e a l t h . H o w e v e r , the m o s t i l l u m i n a t i n g e x a m p l e o f the humanists' attitude — in part because the m o s t paradoxical — is p r o v i d e d o n c e again b y M o r e ' s Utopia — as it happens a w o r k e x a c t l y c o n t e m p o r a n e o u s w i t h Seyssel's La Monarchie. T h i s must be discussed at s o m e l e n g t h since it directs attention to w h a t w a s m o s t distinctive about the c o n c e p t o f W i s d o m as it functioned in the political t h o u g h t o f the humanists. In Utopia the d i s a v o w a l o f Platonic political t h o u g h t takes t w o forms. O n e consists in a prefatory p o e m and an epistle, o b l i g i n g l y supplied b y M o r e ' s collaborator, Peter Giles, w h i c h acclaim the merits o f Utopia to the disadvantage o f Plato's Republic ( M o r e 1965, p p . 2 1 - 5 ) . T h e second takes the f o r m o f a debate w h i c h develops w i t h i n the text b e t w e e n M o r u s and the Platonic philosopher H y t h l o d a e u s . T h e p o l e m i c is m u t u a l l y reinfor c i n g despite the inevitable i r o n y . T h e point o f Giles' c o y banter is to d r a w

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attention to the realism w i t h w h i c h M o r e constructs his 'best state o f a c o m m o n w e a l t h ' as a credible entity existing in the w o r l d o f h u m a n experience, b y contrast w i t h Plato's idealised abstraction. A n d , indeed, as can be seen b y reference to the account o f the island c o m m o n w e a l t h p r o v i d e d b y H y t h l o d a e u s in b o o k n, U t o p i a is n o idyllic arcadia. It enjoys n o special e n v i r o n m e n t a l advantages. It is p e o p l e d not b y paragons but b y mortals o f ordinary intellectual and m o r a l calibre - descended, as elsewhere, f r o m ignorant and uncivilised forebears. A n d the U t o p i a n s maintain their justly ordered c o m m o n w e a l t h in the midst o f a w o r l d o f Realpolitik in w h i c h their m o r a l idealism is e v e r y w h e r e discarded in the pursuit o f p o w e r , w e a l t h , and self-advantage. T h e i r o n y o f the p o l e m i c appears o n turning to the debate b e t w e e n H y t h l o d a e u s and M o r u s . For here H y t h l o d a e u s is found defending the Platonic proposition o f w h i c h the Republic constitutes the locus classicus, that the philosopher must stand a l o o f f r o m politics. In d o i n g so he s h o w s that he has not grasped the m e a n i n g o f the U t o p i a n c o m m o n w e a l t h o f w h i c h he himself is the a d v o c a t e . It is left to M o r u s to point up the message. T h e basis o f the Platonic a r g u m e n t is that the philosopher's approach to g o v e r n m e n t is i n c o m p a t i b l e w i t h that o f the politician. T h e philosopher is concerned to s h o w h o w g o v e r n m e n t is to be c o n d u c t e d b y reason and virtue in the interests o f the c o m m o n w e a l t h . T h e politician perceives g o v e r n m e n t as a function o f p o w e r and w e a l t h directed t o w a r d s selfinterest. In consequence, the philosopher must steer clear o f politics for t w o reasons. First, because i n v o l v e m e n t w o u l d not serve the interests o f the c o m m o n w e a l t h : in politics the philosopher's advice w o u l d be spurned as irrelevant to the concerns o f g o v e r n m e n t . S e c o n d l y , because i n v o l v e m e n t w o u l d place the philosopher's m o r a l integrity in j e o p a r d y : politics is c o n d u c t e d b y means o f dissimulation and c o m p r o m i s e w h i c h are i n c o m patible w i t h the philosopher's adherence to reason and v i r t u e . T h i s , then, is the Platonic a r g u m e n t , placed in the m o u t h o f H y t h l o d a e u s , w h i c h M o r u s rebuts in a profoundly illuminating interjection. His first p l o y is to direct the Platonic a r g u m e n t against academic p h i l o s o p h y , thereby turning the tables o n Plato. T h u s , the imperviousness o f politicans to philosophical advice is attributed to the f o r m in w h i c h it is offered, i.e. academically, as abstract prescriptions e n d o w e d w i t h universal validity, r e m o t e , therefore, f r o m the politicians' p r a g m a t i c w a y o f thinking — 'scholastica, quae quiduis 1 3

14

13. For a different interpretation o f this debate to w h i c h , h o w e v e r , I am indebted, see Skinner 1987, pp.

123-35.

14. O n the Socratic-Platonic argument, see Guthrie 1 9 7 5 . iv, pp. 9 1 - 3 , 498-502. Ill

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putet ubiuis c o n v e n i r e ' ( M o r e 1965, p . 98 line 1 1 ) . M o r u s then proceeds to resist Plato's categorical stricture against the philosopher's i n v o l v e m e n t in politics b y e x p o u n d i n g an alternative m o d e o f philosophical discourse, a ' m o r e political p h i l o s o p h y ' w h i c h undermines the t w i n pillars o f Plato's objection. H e explains w h a t he has in m i n d b y recourse to a m e t a p h o r w h i c h reflects M o r e ' s o w n b o y h o o d experience, that o f the actor w h o improvises a part in a p a n t o m i n e : 'she (philosophia civilior) gets to k n o w the scene, a c c o m m o d a t e s herself to the matter in hand, and plays her part a c c o r d i n g l y w i t h d e c o r u m ' ( M o r e 1965, p. 98 lines 11—14) — n o t c o m i n g on stage, as he says, in a philosopher's g o w n or intruding a tragic oration into a c o m e d y . T h u s , b y a c c o m m o d a t i n g itself to the constraints o f the political f o r u m p h i l o s o p h y can, contrary to Plato's contention, aspire to an effective v o i c e in politics. F u r t h e r m o r e , as the histrionic m e t a p h o r serves to indicate, the a c c o m m o d a t i o n required pertains to f o r m and n o t to substance. It is a strategy w h i c h enables the philosopher to represent the claims o f reason and virtue in credible f o r m to those p r a g m a t i c a l l y m i n d e d politicians responsible for the c o n d u c t o f g o v e r n m e n t . Plato's m o r a l objection is o v e r t h r o w n , therefore, since the philosopher uses his i n v o l v e m e n t in politics in the interests o f the c o m m o n w e a l t h and not for private advantage. T h u s M o r e proceeds to clinch his case as he b e g a n b y turning Plato's a r g u m e n t back u p o n academic p h i l o s o p h y . His contention is that the academic's self-righteous repudiation o f the constraints o f politics — the necessity to e n g a g e in dissimulation and c o m p r o m i s e — constitutes the real m o r a l abdication. T o d o so, he v e h e m e n t l y protests — i n v o k i n g another m u c h f a v o u r e d humanist m e t a p h o r — is to abandon the ship to the storm because y o u h a v e n o control o v e r the w i n d s . T h e p o l e m i c a l point o f the s o called ' D i a l o g u e o f C o u n s e l ' , therefore, concurs w i t h the message w h i c h M o r e sought to c o n v e y t h r o u g h the realism o f his account o f the U t o p i a n c o m m o n w e a l t h . T h e point is, pace Plato, that the philosopher can and, therefore, must pursue the ideal o f the c o m m o n w e a l t h in the w o r l d o f Realpolitik. T h e implications for the c o n c e p t o f W i s d o m as it functioned in the political t h o u g h t o f the humanists remain to be considered. T h e s e m a y be elucidated b y reference to the n o t i o n o f philosophia civilior w h i c h M o r u s o p p o s e d to the philosophia scholastica represented b y the Platonic p h i l o s o pher H y t h l o d a e u s . In that c o n n e c t i o n t w o features of the philosophia civilior as it e m e r g e s in the course o f the debate assume fundamental significance. 15

15. This is recounted in the biographical m e m o i r o f his son-in-law, W i l l i a m R o p e r , ed. E.E. R e y n o l d s 1963,

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O n e pertains to its correspondence — the quarrel n o t w i t h s t a n d i n g - w i t h the philosophia scholastica o f H y t h l o d a e u s . T h i s arises at the fundamental level o f i d e o l o g i c a l orientation. B o t h are concerned to s h o w h o w g o v e r n m e n t m a y be directed b y reason and virtue in the interests o f the c o m m o n w e a l t h . In that respect, therefore, b o t h stand in a tradition o f political t h o u g h t characterised b y adherence to W i s d o m rather than to P o w e r as the means o f pursuing the goals o f the c o m m o n w e a l t h — a tradition d e r i v i n g ultimately f r o m the rational idealism o f Socrates—Plato. T h e second feature o f note, b y contrast, pertains to the precise issue in the quarrel b e t w e e n M o r u s and Hythladaeus. T h i s , it is clear, r e v o l v e s u p o n the question o f intellectual m e t h o d . W h e r e , as M o r u s observes, academic p h i l o s o p h y proceeds b y abstraction, seeking prescriptions o f universal application — quiduis putet ubiuis convenire — philosophia civilior proceeds b y a c c o m m o d a t i o n , seeking, like an actor, to address itself to a specific c o n t e x t , to the exigencies o f time, place, and circumstance. T h e sig nificance o f these different procedures appears b y reference to an earlier discussion o f the intellectual p r o v e n a n c e o f the humanist c o n c e p t o f W i s d o m . For w h a t the quarrel b e t w e e n M o r u s and H y t h l o d a e u s brings to light is the consequence for the political t h o u g h t o f the humanists o f the fusion w h i c h they effected as b e t w e e n the rational idealism o f Socrates—Plato and the rhetorical tradition o f W i s d o m represented b y C i c e r o . In that c o n n e c t i o n M o r e ' s histrionic m e t a p h o r is especially illuminating. B o t h the m e t a p h o r itself and the terms o n w h i c h M o r e d r a w s in d e v e l o p i n g it — a c c o m m o d a t i o n , h a r m o n y , propriety, d e c o r u m — reveal behind the figure o f M o r u s , the a d v o c a t e o f the philosophia civilior, the figure o f the C i c e r o n i a n o r a t o r . C o n f r o n t e d , therefore, w i t h the g u l f o p e n e d up b y Plato b e t w e e n the rational idealism o f Socratic W i s d o m and the c o n t i n g e n t w o r l d o f practical politics, M o r e l o o k e d to rhetoric, in the m a n n e r o f C i c e r o , to p r o v i d e a b r i d g e . 16

It is precisely this c o n c e p t i o n o f rhetoric as the means o f pursuing the m o r a l l y ideal in the real w o r l d o f politics w h i c h led the humanists to e x t o l their 'political W i s d o m ' o v e r the abstract prescriptions o f 'ancient p h i l o s o p h y ' . A g a i n s t that b a c k g r o u n d , in turn, the full significance o f the humanists' c o m m i t m e n t to humanitas at last e m e r g e s . It is humanitas w h i c h p r o v i d e s access to the political w i s d o m to w h i c h the humanists l o o k e d to fulfil their aspiration for a truly Christian c o m m o n w e a l t h . 1

16. T h e point is persuasively demonstrated in Skinner 1987, pp. 1 2 8 - 3 • On C i c e r o ' s fusion o f rhetoric and philosophy and the Renaissance revival o f the Ciceronian notion, see Seigel 1968 passim; K a h n 1985, chs. 1 - 4 .

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It w i l l b e sufficiently clear b y n o w that, as argued f r o m the outset, the humanists' c o m m i t m e n t to humanitas served to generate a b o d y o f political c o m m e n t a r y in the n o r t h w h i c h w a s distinctive, not o n l y in f o r m but also in substance. F o r m a l l y w h a t resulted w a s a distinctive m o d e o f political discourse, a w a y o f c o n d u c t i n g political t h o u g h t in accordance w i t h the n o r m s o f Renaissance E l o q u e n c e (see a b o v e , pp.97—8). O f m o r e fundamental historical significance, h o w e v e r , the effect w a s also to p r o d u c e a genre o f political literature distinctive in its substantial content b y reason o f the characteristically Renaissance intellectual m a t r i x w i t h i n w h i c h it w a s m o u l d e d . In that respect, the distinctiveness o f humanist political c o m m e n tary in the n o r t h derives in the first instance f r o m the exalted a n t h r o p o l o g i c a l c o n c e p t i o n w h i c h provides its i d e o l o g i c a l p i v o t — and o n w h i c h , indeed, the entire enterprise o f the Renaissance m a y b e said to p i v o t — that o f the classical vir humanus subsumed under the biblical ideal o f the imago Dei (see a b o v e , p p . 102—3). Inspired b y that lofty ideal, the humanists s o u g h t to r e n e w the political culture o f n o r t h e r n E u r o p e b y assimilating the values and insights o f the classical W i s d o m tradition o f political t h o u g h t w i t h i n a Christian frame o f reference (see a b o v e , p p . 106—9). T h e precise implications o f that a p p r o a c h for the practice o f politics and g o v e r n m e n t remain to be considered. T h e s e m a y best be observed, f o l l o w i n g the p r o c e d u r e adopted hitherto, b y relating the political c o m m e n t a r y o f n o r t h e r n h u m a n i s m to its c o n t e m p o r a r y c o n t e x t . P r o c e e d i n g , therefore, to that exercise, w h a t presents itself first for consideration is the m o r a l challenge w h i c h the humanists offered to the assumptions and values o n w h i c h thé practice o f g o v e r n m e n t in the late m e d i e v a l period w a s g r o u n d e d . T h e issue here is h i g h l i g h t e d in the contrast b e t w e e n the rational idealism o f the classical W i s d o m tradition and the A u g u s t i n i a n w o r l d v i e w w h i c h served to c o n d i t i o n the political culture o f late m e d i e v a l n o r t h e r n E u r o p e . M o r e specifically, the issue r e v o l v e s u p o n the contrast, n o t e d earlier, b e t w e e n the rationalist a p p r o a c h to the c o n d u c t o f g o v e r n m e n t and the strongly voluntarist approach to w h i c h the A u g u s t i n i a n w o r l d v i e w lent itself (see a b o v e , p p . 108-9). brief, f r o m the A u g u s t i n i a n standpoint, g o v e r n m e n t w a s seen as the secular corollary o f supernatural grace, in that it p r o v i d e d an antidote in the secular d o m a i n to the evil propensities o f fallen h u m a n nature ( M a r k u s 1970, ch. 4). A s such, 17

m

17. O n Augustinianism in the late middle ages, see W r i g h t 1982, ch. 1; O b e r m a n 1 9 7 7 , ch. 6.

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h o w e v e r , it fulfilled its function in an altogether different manner, appropriate to the d o m a i n o f fallen nature to w h i c h it pertained. T h u s , whereas grace operates i n w a r d l y , m o v i n g the individual soul to spiritual regeneration b y supernatural p o w e r — divine charity — g o v e r n m e n t operates externally b y h u m a n p o w e r — the secular s w o r d — m o v i n g society to o u t w a r d c o n f o r m i t y to the n o r m s o f social justice and public order. In the A u g u s t i n i a n secular c o s m o l o g y , therefore, g o v e r n m e n t wals perceived as an instrument o f c o e r c i o n and punishment necessary for the maintenance o f justice and order in the d o m a i n o f corrupt h u m a n nature. T h e effect w a s a political m o r a l i t y w h i c h served to endorse v i o l e n c e as the necessary sanction o f g o v e r n m e n t b y appeal to the shibboleths o f the just w a r ' and 'severe j u s t i c e ' . A g a i n s t that b a c k g r o u n d the nature o f the m o r a l challenge w h i c h the humanists offered to the political culture o f the late m e d i e v a l period clearly e m e r g e s . Its source is found in the assimilation o f the values and insights o f the classical W i s d o m tradition w i t h i n a Christian frame o f reference. T h e effect o f christening the W i s d o m tradition w a s virtually to invert the A u g u s t i n i a n categories. First, it led the humanists to take as their a n t h r o p o l o g i c a l starting point, not the Fall o f M a n , but his creation, in w h i c h he w a s dignified b y the unique status o f the imago Dei. S e c o n d l y , it led t h e m to construct a secular c o s m o l o g y , n o t o n the basis o f the evil propensities o f h u m a n nature, vitiated b y the corruption o f the w i l l , but rather o n the basis o f h u m a n nature's capacity for self-perfection, h a v i n g been e n d o w e d w i t h a rational faculty and thereby w i t h the attributes o f humanitas — intellect, speech, and m o r a l freedom (see a b o v e , p p . 102—3). T h i r d l y , in contrast to the d o u r l y n e g a t i v e c o n c e p t i o n o f the political order w h i c h the A u g u s t i n i a n w o r l d v i e w entailed, the humanists w e r e led to c o n c e i v e the function o f g o v e r n m e n t in b e n i g n l y teleological terms. T h i s w a s the c o n t e x t in w h i c h their aspiration t o w a r d s a truly Christian c o m m o n w e a l t h e m e r g e d . In the light o f M a n ' s unique d i g n i t y as the imago Dei and the capacity for self-perfection w h i c h his humanitas conferred, the humanists w e r e led to adopt the m o r a l ideal b y w h i c h the classical W i s d o m tradition o f political t h o u g h t had been inspired, the c o n c e p t i o n o f g o v e r n m e n t as directed b y reason and virtue to the g o a l o f respublica, the c o m m o n w e a l t h (Guthrie 1975, iv, pp. 434-544). Inspired b y that ideal, in turn, the humanists sought to regenerate the political culture 18

18. T h e classical historical evocation o f this ethos is Huizinga 1924, ch. 1. Huizinga's account is generally corroborated b y a more recent study o f the mental environment o f late medieval English politics - the environment w h i c h conditioned the perception o f the author o f Utopia: James 1978, pp. 2 - 2 2 ; cf. Hexter 1965, pp. 1-liv. For the underlying moral tradition see Keen 1966, chs. 5, 6.

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o f late m e d i e v a l C h r i s t e n d o m and, in d o i n g so, to challenge the A u g u s t i n i a n values w h i c h it e m b o d i e d . In that light, the c o m m o n w e a l t h ideal n o w e m e r g e s as the fourth and c u l m i n a t i n g c o m p o n e n t o f that m a t r i x o f Renaissance ideas f r o m w h i c h the political t h o u g h t o f the humanists derived i d e o l o g i c a l coherence. Its precise impact, as such, therefore, calls for explication. C o n v e n i e n t l y that question m a y be pursued in the c o n t e x t o f the present discussion for, as has been seen, respublica constitutes the m o r a l criterion against w h i c h the humanists measured the c o n t e m p o r a r y practice o f politics and g o v e r n ment, and found it w a n t i n g . In elucidating the implications o f the n o t i o n as d e p l o y e d in humanist political c o m m e n t a r y , an instructive case-study presents itself, y e t again, in T h o m a s M o r e ' s Utopia, considered n o w , at last, precisely as a treatise o n the reform o f the c o m m o n w e a l t h . Here, as w i l l be seen, the c o n c e p t reveals its full potential as the p i v o t o f a devastating critique o f the political status quo and o f a r e f o r m i n g manifesto. A t t e n t i o n for these purposes centres u p o n the t h r e e - p r o n g e d i d e o l o g i c a l thrust w i t h w h i c h M o r e e n d o w e d the n o t i o n and u p o n its c o r r e s p o n d i n g threefold intellectual p r o v e n a n c e . First to be considered is its application to the process o f g o v e r n m e n t , strictly as such, as a criterion o f justice b y means o f w h i c h M o r e sought to expose the m o r a l b a n k r u p t c y o f c o n t e m p o r a r y g o v e r n m e n t a l practice and to p r o m o t e an alternative. T h e k e y to the content o f respublica in that respect lies in its original Platonic formulation. In the Republic, the res w h i c h Plato posits as the end o f g o v e r n m e n t is defined n o t in terms o f tangible material values but as m o r a l betterment — the g o o d proper to m a n in virtue o f his rational nature - w h i l e publica is taken to c o m p r e h e n d the entire b o d y politic, n o t just its ruling or political element (Guthrie 1975, iv, p p . 434—9, 411—18). C o n c e i v e d in those terms, as H y t h l o d a e u s relentlessly flagrantly demonstrates in B o o k 1 o f Utopia, the c o m m o n w e a l t h w a s disregarded in c o n t e m p o r a r y g o v e r n m e n t a l practice. T h i s w a s directed neither t o w a r d s h u m a n b e t t e r m e n t n o r t o w a r d s the general welfare. R a t h e r , it w a s directed t o w a r d s the material benefit o f the ruling elites in the f o r m o f w e a l t h , p o w e r , and public reputation, to the detriment, m o r e o v e r , o f the general welfare since, as H y t h l o d a e u s s h o w s , the pursuit o f these goals p r o d u c e d socially harmful consequences - w a r , extortionate taxation, repressive legislation, idleness, crime, and p o v e r t y ( M o r e 1965, p p . 86—97; cf. H e x t e r , ibid., p p . 1—liv). H i g h l i g h t i n g the message, M o r e has H y t h l o d a e u s present in B o o k 11 the e x a m p l e o f U t o p i a n g o v e r n m e n t , directed in accordance w i t h the Platonic criterion. Here, indeed, g o v e r n 116

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merit is ordered to h u m a n b e t t e r m e n t and to the general welfare; civil administration is its concern, not w a r and foreign aggrandisement; service o f the public interest is its aim and not private profit; virtue is its criterion o f merit and n o t p r i v i l e g e o f birth or riches; need is the criterion o n w h i c h distributive justice is based, not mere possession; r e f o r m is the end to w h i c h the criminal c o d e is directed, n o t v i n d i c t i v e punishment. T h e effect o f the U t o p i a n contrast, therefore, is to affirm a cluster o f values, based o n the Platonic c o n c e p t o f respublica as just g o v e r n m e n t , b y appeal to w h i c h M o r e w a s enabled to e x p o s e the m o r a l b a n k r u p t c y o f the c o n t e m p o r a r y practice o f g o v e r n m e n t and to p r o v i d e a m o r a l basis for its reformation. T h i s Platonic c o n c e p t i o n , w i t h its attendant cluster o f values, presented as the criterion o f just g o v e r n m e n t , constitutes the first aspect o f the i d e o l o g y o f the c o m m o n w e a l t h as it e m e r g e s in the pages o f Utopia. T h e second aspect shifts attention f r o m the specifically g o v e r n m e n t a l range o f reference w i t h w h i c h Plato's f o r m u l a t i o n originally e n d o w e d respublica to its w i d e r political register. T h a t c o n c e p t i o n m a y be a p proached b y means o f the p a r a d o x o f the U t o p i a n perspective o n politics. In its p r e o c c u p a t i o n w i t h h u m a n corruptibility this m i g h t seem to reflect a truly A u g u s t i n i a n a n t h r o p o l o g i c a l pessimism, for all the c o m m i t m e n t to humanitas o f the treatise otherwise. In fact, as closer scrutiny reveals, w h a t the U t o p i a n p r e o c c u p a t i o n reflects is an aspect o f the inversion o f the A u g u s t i n i a n w o r l d v i e w , p r o d u c e d , as noted earlier, b y the humanists' perception o f M a n as the imago Dei. T h e crucial indicator in this regard is the i d e o l o g i c a l orientation o f the pessimism in each case. A u g u s t i n i a n pessimism — to repeat — served to c o n d i t i o n a voluntarist approach to g o v e r n m e n t , w h i c h stressed its c o e r c i v e and punitive function, and to p r o v i d e a c o r r o b o r a t o r y political m o r a l i t y centred u p o n social obedience, public authority, and the sanction o f force. T h e A u g u s t i n i a n p r e o c c u p a t i o n w i t h h u m a n corruptibility, it m i g h t be said, reflects a perception o f the political order haunted b y the spectre o f ' a n a r c h y f r o m b e l o w ' . C o n s i d e r e d in that light, the i d e o l o g i c a l orientation o f U t o p i a n pessimism presents a significant contrast. T o adapt the metaphor, the spectre w h i c h haunts the U t o p i a n perception o f politics is that o f ' t y r a n n y f r o m a b o v e ' (Fenlon 1981). In m o r e explicit terms, f r o m the U t o p i a n perspective the threat posed to the political order b y h u m a n corruptibility is perceived to emanate f r o m those w h o exercise p o w e r rather than f r o m those u p o n w h o m it is exercised. T h e significance o f the contrast is that it serves to h i g h l i g h t in turn the intellectual source o f M o r e ' s a n t h r o p o l o g i c a l pessimism. A s w i l l b e clear, this is not satisfactorily explained b y reference 117

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to a m e d i e v a l A u g u s t i n i a n w o r l d v i e w . R a t h e r , its i d e o l o g i c a l thrust points to a source that is classical and humanist, n a m e l y , C i c e r o ' s characteristic p r e o c c u p a t i o n w i t h the threat w h i c h the abuse o f p o w e r poses to the respublica. In line w i t h the syncretism o f the humanists' response to the classical W i s d o m tradition, therefore, the U t o p i a n c o n c e p t o f respublica is f o u n d to reflect a C i c e r o n i a n as w e l l as a Platonic intellectual p r o v e n a n c e . P r o c e e d i n g to elucidate the U t o p i a n c o n c e p t i o n w i t h i n the intellectual f r a m e w o r k thus p r o v i d e d , attention c o m e s to focus o n the t w o features w h i c h are basic to C i c e r o ' s c o n c e p t i o n o f a just respublica. O n e is the 'rule o f the w i s e ' , b y w h i c h , in line w i t h the Platonic c o n c e p t i o n , g o v e r n m e n t d e v o l v e s u p o n the intellectual and m o r a l elite — as idealised in C i c e r o ' s O r a t o r . T h e second, departing f r o m the Platonic c o n c e p t i o n , is the n o t i o n o f constitutional g o v e r n m e n t — as it w o u l d n o w be called — a system o f political organisation devised so as to c o m p r e h e n d the general w i l l b y the processes o f election, consultation, representation, and c o n s e n t . T u r n i n g to Utopia w i t h these principles in m i n d , their implications for the U t o p i a n p o l e m i c e m e r g e o n c e m o r e b y means o f the contrast w h i c h c o n v e n t i o n a l E u r o p e a n practice presents to U t o p i a n arrangements. T h u s , the effect o f H y t h l o d a e u s ' political critique in B o o k I is to u n d e r m i n e the credibility o f the m o n a r c h i c a l regimes o f northern E u r o p e as representing 'the rule o f the w i s e ' . I n v o k i n g their public record, his o w n encounters w i t h the establishment mentality, and the deliberations, as he persuasively re constructs t h e m , o f E u r o p e a n m o n a r c h i c a l councils, he p r o v i d e s a s w e e p i n g indictment o f the ruling elites w h i c h c o m e s to rest o n t w o g r a v a m i n a . O n e is m o r a l corruption: e v i d e n c e d in the w a r - m o n g e r i n g and dishonesty w h i c h marks the practice o f international relations; in the e x t o r t i o n , repression, and manipulation o f the l a w in w h i c h g o v e r n m e n t s e n g a g e in the c o n d u c t o f civil administration; and in the self-interested flattery and m o r a l c o w a r d i c e w h i c h passes for c o u n s e l - g i v i n g . T h e second charge is intellectual decadence, as manifested b y the inability o f the ruling elites to respond to n e w ideas or to the n o t i o n o f progress — M o r e satirises, w i t h characteristic brilliance, the c o m b i n a t i o n o f i n c o m p r e h e n s i o n , n e g a tive traditionalism, and s e l f - c o m p l a c e n c y w i t h w h i c h r e f o r m i n g proposals are greeted (e.g. M o r e 1965, p p . 5 6 - 9 , 7 0 - 1 , 80-7). U t o p i a , o f course, as H y t h l o d a e u s s h o w s in B o o k 11, presents an altogether different picture. T h e r e the 'rule o f the w i s e ' does, indeed, obtain. G o v e r n m e n t d e v o l v e s u p o n those o f p r o v e n m o r a l and intellectual calibre. A n d the practice o f 19

19. H u n t 1954, esp. pp. 1 9 7 - 2 0 5 . W a t s o n 1986 edn. K e n n e d y 1980, pp. 9 0 - 1 0 0 .

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politics, consequently, is m a r k e d b y rationality and m o r a l p r o b i t y : international relations are c o n d u c t e d o n the basis o f natural justice, n o t cynical o p p o r t u n i s m ; civil g o v e r n m e n t is m a r k e d b y intellectual openness and a desire for p r o g r e s s ; and the political ethos is characterised b y a c o m m o n c o m m i t m e n t to the service o f the c o m m o n w e a l t h n o t b y c o m p e t i t i o n for personal a d v a n c e m e n t . Here, o n c e again, U t o p i a n practice is found to e m b o d y a cluster o f values derived f r o m the classical ideal o f respublica w h i c h serve b o t h to u n d e r m i n e the m o r a l credibility o f E u r o p e a n practice and to p r o v i d e a m o r a l basis for its reformation. H o w e v e r , the full subversive potential o f the C i c e r o n i a n c o n c e p t o n l y e m e r g e s w h e n this aspect o f the U t o p i a n p o l e m i c is set in the c o n t e x t o f the contrast w h i c h U t o p i a presents w i t h regard to constitutional arrangements. Here, replac ing the hereditary monarchies and r o y a l l y appointed g o v e r n m e n t s o f the E u r o p e a n system, U t o p i a flourishes under a carefully elaborated consti tution in w h i c h the features o f election, consultation, representation, and consent m a r k all aspects o f the political system, i n c l u d i n g the selection o f the ruler h i m s e l f and his e x e c u t i v e c o u n c i l ( M o r e 1965, p p . 122—5). T h u s , in the process o f u n d e r m i n i n g the m o r a l credibility o f the m o n a r c h i c a l regimes o f n o r t h e r n E u r o p e , Utopia is found to endorse a full-blooded C i c e r o n i a n republicanism: in E u r o p e the choice o f the ruling elite d e v o l v e s u p o n the arbitrary processes o f heredity and political patronage, w i t h the consequences o f c o r r u p t i o n and stagnation, as H y t h l o d a e u s ' critique demonstrates; in U t o p i a the political system encompasses the general w i l l b y means o f election, consultation, representation, and consent, thus ensuring the rule o f the w i s e and the service o f the c o m m o n w e a l t h . B y w a y o f a d d e n d u m here, attention must be d r a w n to the m a n n e r in w h i c h the U t o p i a n contrast serves to emphasise an i m p o r t a n t corollary to the principle o f the 'rule o f the w i s e ' , derived f r o m the C i c e r o n i a n i d e o l o g y . T h i s relates to the question o f the political responsibilities o f the intellectual — the subject w h i c h , as w i l l be r e m e m b e r e d , p r o v i d e d the issue in debate b e t w e e n H y t h l o d a e u s and M o r u s in the so-called ' D i a l o g u e o f C o u n s e l ' (see a b o v e , p p . 111—12). T h e contrast w h i c h e m e r g e s in this instance is b e t w e e n , o n the one hand, the representative o f the E u r o p e a n intelligentsia, H y t h l o d a e u s , the philosopher, w h o holds a l o o f f r o m politics, t h r o u g h disdain for its p r a g m a t i s m and c o m p r o m i s e s , and, o n the other hand, the U t o p i a n intellectual elite w h o e n g a g e in politics in a spirit o f 20

20. O n the conduct o f foreign affairs, see M o r e 1965, pp. 196—203. O n the Utopians' intellectual openness, see ibid., pp. 1 0 6 - 9 , 1 8 0 - 5 .

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service to the c o m m o n w e a l t h ( M o r e 1965, p p . 1 3 0 - 3 ) . It is left to M o r u s to point u p the message that the claims o f the c o m m o n w e a l t h o v e r the private interest - e v e n the lofty interests o f the intellectual - are not diminished in transition f r o m the ideal w o r l d to the real w o r l d o f politics. T h e third i d e o l o g i c a l thrust o f the c o m m o n w e a l t h ideal as elaborated in Utopia presents its most p r o b l e m a t i c and also, perhaps, its m o s t e n d u r i n g l y attractive aspect. H e r e the c o n c e p t acquires a distinctively populist range o f reference. T h e focus shifts f r o m the abstract ideal c o n c e i v e d b y Plato and C i c e r o — respublica as such — to a social g r o u p , the populus, envisaged, m o r e o v e r , as c o m p r i s i n g n o t o n l y the ' p o o r c o m m o n s ' , but also the marginalised and criminalised elements o f late m e d i e v a l E u r o p e a n society — the destitute, the incapacitated, the vagrants, the b e g g a r s . P r o c e e d i n g to e x p l o r e this dimension o f the U t o p i a n ideal in the light, as hitherto, o f its intellectual p r o v e n a n c e , a n o v e l feature presents itself. T h a t is its failure to strike a resonant c h o r d w i t h i n the classical W i s d o m tradition. T h u s , b y default, attention c o m e s to focus o n the significance o f the baptism o f the classical concept b y reason o f its assimilation w i t h i n a Christian frame o f reference. T h e effect, as exemplified b y Utopia, in any case, w a s the fusion o f t w o radical m o r a l traditions: the classical W i s d o m tradition o f political t h o u g h t , p i v o t i n g o n the ideal o f respublica, and a Judaeo-Christian tradition o f social m o r a l i t y , inspired b y the ideal o f Messianic justice, i.e. the emancipation o f the p o o r , the w e a k , and the socially ostracised. O r i g i n a l l y d e v e l o p e d w i t h i n the prophetic literature o f the O l d Testament, reiterated in the Messianic preaching o f Jesus in the gospels, and finally e m b o d i e d in the eschatological ideal o f the A c t s o f the Apostles, o f a Christian c o m m u n i t y ' h o l d i n g all things in c o m m o n ' , this radical tradition provides the inspirational source o f the populist dimension o f the U t o p i a n commonwealth. E x p l i c a t i o n o f the U t o p i a n ideal w i t h i n that frame o f reference returns the discussion, in the first instance, to H y t h l o d a e u s ' searing critique o f the political status quo, considered n o w in its specifically social content — as an indictment w h i c h leads h i m to d e n o u n c e 'the c o m m o n w e a l t h s [ w h i c h ] n o w a d a y s a n y w h e r e d o flourish' as but 'a conspiracy o f rich m e n p r o c u r i n g their o w n c o m m o d i t e s under the n a m e and title o f the c o m m o n w e a l t h ' ( M o r e 1965, p p . 2 4 0 - 1 ; 1974, p . 132). A s an e x p o s e o f social injustice, t w o features o f H y t h l o d a e u s ' critique h o l d a special interest. O n e is the w a y in w h i c h republica is pressed into service o n b e h a l f o f an i d e o l o g y o f 2 1

2 1 . V a w t e r i o 6 i ; G e l i n 1965. T h e m o r a l tradition l y i n g behind the perception o f social justice in Utopia is treated in B r a d s h a w 1 9 8 1 , pp. 1 4 - 2 1 .

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biblical p o p u l i s m . T h a t abstract political c o n c e p t n o w , in effect, c o m e s to be identified w i t h the welfare o f the c o m m o n s and, in d o i n g so, to affirm a series o f 'preferential options' w h i c h precisely reflect the social stance o f biblical p o p u l i s m : solidarity w i t h the p o o r , the w e a k , and the ' d o w n c a s t ' o v e r against the rich and the p o w e r f u l perceived as the exploiters and oppressors o f their social inferiors. T h u s , H y t h l o d a e u s ' analysis o f the 'ills o f the c o m m o n w e a l t h ' takes the f o r m o f an indictment in w h i c h the oppression and exploitation perpetrated b y the ruling elites o f E u r o p e u p o n the ' p o o r c o m m o n s ' are precisely delineated: dynastic w a r - m o n g e r i n g w i t h its associated extortionate taxation; aristocratic p o w e r - p o l i t i c s w i t h its socially disruptive factionalism and v i o l e n c e ; various forms o f profiteering — land-clearance, rack-renting, p r i c e - r i g g i n g ; all o f this aided and abetted b y a D r a c o n i a n system o f justice directed to social c o n t r o l and to the protection o f private p r o p e r t y ( M o r e 1965, p p . 5 8 - 9 7 ) . T h e second notable feature o f the analysis as an e x p o s e o f social injustice is the w a y in w h i c h the religious sanction to w h i c h biblical p o p u l i s m traditionally appealed is n o w p o w e r f u l l y reinforced b y reference to the sanction i n v o k e d b y the classical W i s d o m tradition, h u m a n rationality. W h a t gives the critique o f H y t h l o d a e u s its sharp satirical e d g e is his indictment o f the c o n d u c t o f the ruling elites, n o t m e r e l y as oppressive and exploitative o f the ' p o o r c o m m o n s ' but, ipso facto, as irrational insofar as it leads directly to those 'ills o f the c o m m o n w e a l t h ' w i t h w h i c h they seek v a i n l y to grapple in their capacity as g o v e r n o r s : destitution, dearth, idleness, v a g r a n c y , m e n d i c a n c y , crime, and social v i o l e n c e . T u r n i n g , then, to B o o k 11 to h i g h l i g h t the message o f the p o l e m i c , attention c o m e s to focus o n the social order o f the U t o p i a n p o l i t y . T h e significance o f the contrast there p r o v i d e d is nicely pinpointed in the criticism c o m m o n l y v o i c e d in the h i s t o r i o g r a p h y that the social order o f U t o p i a consigns its inhabitants to an existence o f drab u n i f o r m i t y — in dress, in housing, and in lifestyle g e n e r a l l y . S o , indeed, it m i g h t seem f r o m the perspective o f the socially a d v a n t a g e d — w h e t h e r o f the t w e n t i e t h or o f the sixteenth century. H o w e v e r , the prospect o f life in U t o p i a seems altogether m o r e i n v i t i n g f r o m the perspective o f the socially disadvantaged. First, the struggle for survival o n the threshold o f destitution has been eliminated: the p r o b l e m s o f p o v e r t y and dearth h a v e been resolved; the exigencies o f sickness and o l d age are p r o v i d e d against; full e m p l o y m e n t is available for the a b l e - b o d i e d w h i l e , at the same time, a six-hour w o r k i n g day ameliorates the d r u d g e r y o f m a n u a l labour. S e c o n d , 22

22. A recent e x a m p l e is Marius 1984, pp. 152—70. See also D o r s c h 1 9 6 6 - 7 , pp. 3 4 5 - 5 3 .

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social p r i v i l e g e has been abolished: a d v a n c e m e n t in the public d o m a i n is based o n merit; education is universally available; a v o c a t i o n is determined b y talent and aptitude. T h i r d , p o w e r is b e n i g n and exercised in the interests o f the c o m m o n people: justice is equitable and compassionate; w a r is a v o i d e d unless necessitated in the interests o f the publica and is then so c o n d u c t e d as n o t to cause general hardship. In short, the 'ills' w h i c h g o v e r n m e n t s inflict o n the l o w e r orders elsewhere are resolved b y g o v e r n m e n t as c o n d u c t e d in U t o p i a . T h e ' p o o r c o m m o n s ' h a v e been emancipated. T h u s the significance o f the U t o p i a n contrast v i e w e d f r o m the social perspective is that it affirms a c o n c e p t i o n o f social justice in accordance w i t h the criterion o f biblical p o p u l i s m and, in d o i n g so, p r o v i d e s a cluster o f values w h i c h serve b o t h to u n d e r m i n e the credibility o f the social order o f c o n t e m p o r a r y E u r o p e and to p r o v i d e a m o r a l basis for its reformation. T h e question o f h o w this j u s t l y ordered c o m m o n w e a l t h is to be attained finally takes the discussion to a consideration o f the U t o p i a n political strategy. In that c o n t e x t , the m u c h - d e b a t e d issue o f U t o p i a n c o m m u n i s m at last arises. W h a t significance is to be attached to H y t h l o d a e u s ' insistence, in line w i t h U t o p i a n practice, that the abolition o f private p r o p e r t y and the institution o f a c o m m u n i s t system o f s o c i o - e c o n o m i c organisation consti tute the necessary conditions for the attainment o f a c o m m o n w e a l t h ? W i t h o u t aspiring to resolve the apparently irresolvable, s o m e light m a y be t h r o w n o n that question b y adhering to the interpretative p r o c e d u r e hitherto adopted, n a m e l y b y v i e w i n g U t o p i a n practice, not as a blueprint for precise replication, but as a rhetorical d e v i c e designed to affirm a set o f values w h i c h serve b o t h to u n d e r m i n e the credibility o f c o n v e n t i o n a l E u r o p e a n practice and to p r o v i d e a m o r a l basis for its reformation. E x a m i n e d f r o m that perspective, c o m m u n i s m does not seem to function w i t h i n the f r a m e w o r k o f the U t o p i a n p o l e m i c as an u n a m b i g u o u s l y affirmed value. It constitutes the one feature o f the U t o p i a n political order r e g a r d i n g w h i c h the reiterated affirmations o f H y t h l o d a e u s encounter sustained objections f r o m M o r u s . A n d , significantly, the latter's a r g u m e n t c o m e s to rest o n the same g r o u n d w h i c h he occupies in his stand in the ' D i a l o g u e o n C o u n s e l ' : the need to a c c o m m o d a t e philosophical ideals to the exigencies o f practical politics. Seen in these terms, the i m p o r t o f the debate o n U t o p i a n c o m m u n i s m seems to be to vindicate the p r a g m a t i c realism o f the C i c e r o n i a n political activist o v e r the u n c o m p r o m i s i n g and, therefore, ineffectual idealism o f the Platonic philosopher - thus b o t h affirming the ideal and r e m o v i n g it f r o m the d o m a i n o f practical politics at 122

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the same t i m e . T h e effect o f the debate, secondly, h o w e v e r , as in the case o f the ' D i a l o g u e o n C o u n s e l ' , is to reveal b e y o n d the issue in c o n t r o v e r s y a broader area o f consensus b y virtue o f the c o m m o n c o m m i t m e n t o f H y t h l o d a e u s and M o r u s to the i d e o l o g y o f classical W i s d o m . A n d the effect o f the consensus, in turn, is to h i g h l i g h t b y w a y o f contrast the d i v e r g e n c e b e t w e e n the U t o p i a n political strategy, g r o u n d e d on the values and insights o f the classical W i s d o m tradition, and the approach adapted b y the ruling elites o f c o n t e m p o r a r y E u r o p e . In this w a y , the issue o f political strategy c o m e s to be subsumed under the issue on w h i c h the entire U t o p i a n p o l e m i c hinges: o n the one hand, the injustice o f the political order o f late m e d i e v a l C h r i s t e n d o m , g r o u n d e d u p o n A u g u s t i n i a n voluntarism, w i t h its pessimistic assumptions a b o u t h u m a n nature and its approbation o f the sanctions o f c o e r c i o n and v i o l e n c e ; on the other hand, the justice o f the U t o p i a n political order, g r o u n d e d o n the values and insights o f the classical W i s d o m tradition, and thus directed b y reason and virtue to the attainment ofrespublica. H e r e the clinching a r g u m e n t o f the p o l e m i c e m e r g e s - and the discussion o f the U t o p i a n c o n c e p t o f the c o m m o n w e a l t h returns to its starting point. For the message c o n v e y e d b y means o f the contrast in this respect, as in others, is u n a m b i g u o u s i f paradoxical. It is that humanitas provides the means, t h r o u g h the resources o f reason, rhetoric, and m o r a l virtue, to direct g o v e r n m e n t to the end o f a truly Christian commonwealth. T h e specific implications o f this c o n c e p t i o n , as e m b o d i e d in U t o p i a n practice, p r o v i d e the final cluster o f values w h i c h M o r e s o u g h t to b r i n g to bear in order to u n d e r m i n e the m o r a l credibility o f the c o n t e m p o r a r y political order and to p r o v i d e a m o r a l basis for its reformation. T h e s e m a y be summarised under three b r o a d categories. T h e first is rational planning. In accordance w i t h the Platonic c o n c e p t i o n , U t o p i a represents a t r i u m p h o f social and institutional engineering t h r o u g h w h i c h the c o m m u n i t y as a w h o l e is enabled to achieve h u m a n fulfilment, freed f r o m material w a n t In contrast, the and directed to intellectual and m o r a l b e t t e r m e n t . h i d e b o u n d traditionalism o f c o n t e m p o r a r y E u r o p e , w i t h its uncritical veneration o f c u s t o m and tradition, serves to perpetuate a political order w h i c h , as H y t h l o d a e u s ' critique has s h o w n , is designed to serve the interests o f the ruling elites alone and, ipso facto, to generate p o v e r t y and m o r a l 24

23. Bradshaw 1 9 8 1 , pp. 1 8 - 2 1 , 2 4 - 7 . T h e case presented there seems compatible w i t h the revised interpretation presented in Skinner 1987, pp. 1 4 6 - 5 7 . 24. O n U t o p i a n rational planning see M o r e 1965, pp. 78—9, 1 4 6 - 7 , 158—9, 2 0 8 - 1 0 . C f . Hexter 1952, pp. 5 6 - 6 2 .

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corruption. T h e second c a t e g o r y relates to the corollary o f rational planning in the Platonic c o n c e p t i o n — as transformed, h o w e v e r , under the inspiration o f C i c e r o n i a n rhetoric. It concerns v a l u e - f o r m a t i o n based o n reason as the means o f securing social and political h a r m o n y in the polity, as against reliance on the exercise o f c o e r c i v e authority. In U t o p i a , the resources o f rhetoric are d e p l o y e d on b e h a l f o f an i m a g i n a t i v e l y orches trated p r o g r a m m e o f f o r m a l education, civic ritual, and popular p r o p a ganda designed to inculcate public virtue and to secure personal c o m m i t m e n t to the U t o p i a n i d e o l o g y . T h e contrast is w i t h the ruthlessly authoritarian approach o f c o n t e m p o r a r y E u r o p e a n g o v e r n m e n t s to the p r o b l e m s o f social and political order. T h e r e , reliance is placed o n D r a c o n i a n penal legislation and violent repression d e p l o y e d in vain pursuit o f m e r e external obedience. T h e third c a t e g o r y relates to perhaps the most remarkable and, certainly, the least r e m a r k e d on, aspect o f the U t o p i a n strategy. It concerns the means w h e r e b y the p o l i t y a c c o m m o d a t e s itself to the w o r l d o f Realpolitik, a w o r l d in w h i c h m o r a l values are thrust aside in the self-interested pursuit o f p o w e r , w e a l t h , and reputation. H e r e the t e r m statecraft m a y be applied to the U t o p i a n strategy in full awareness o f the w o r d ' s M a c h i a v e l l i a n resonances. R e a s o n and rhetoric, d e p l o y e d as the means to counter political subversion, e m e r g e in U t o p i a n practice in the f o r m o f a series o f prudential expedients w h i c h disconcertingly m i r r o r Machiavelli's c o n t e m p o r a n e o u s reformulation o f the m e a n i n g o f political virtue (Skinner 1978,1, p p . 1 2 8 - 3 8 ; Butterfield 1940). T h e s e run the g a m u t f r o m the irreproachable — foresight and circumspection — to the m o r a l l y reprehensible - dissimulation, bribery, assassination, ultimately warfare. Nevertheless, a fundamental difference is to be discerned b e t w e e n U t o p i a n statecraft and the M a c h i a v e l l i a n version. A n d this serves as the basis, in turn, o f a contrast b e t w e e n U t o p i a n practice and Realpolitik as practised b y the political entrepreneurs o f c o n t e m p o r a r y E u r o p e — a major inspirational source, a c c o r d i n g to the author himself, o f M a c h i a v e l l i a n virtu. T h e distinction lies in the criterion w h i c h g o v e r n s practice in each case. For the latter, the interests o f the ruler — w h a t maintains his state — constitute the criterion o f political c o n d u c t . T h e y constitute the 'necessity' w h i c h for M a c h i a v e l l i supersedes the claims o f o r t h o d o x m o r a l i t y . In contrast, U t o p i a n statecraft is practised w i t h i n the constraints o f m o r a l o r t h o d o x y . Its criterion is the interests o f the c o m m o n w e a l t h . T h e s e constitute the m o r a l absolute b y appeal to w h i c h deviations f r o m the m o r a l l y ideal m a y be justified o n the g r o u n d s o f 'the lesser e v i l ' ; thus the d e p l o y m e n t o f 25

25. T h e classical origins o f this conception m a y be traced to C i c e r o , De Officiis, on w h i c h see H u n t 1954, ch. 6.

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mercenaries as ' w a r - f o d d e r ' in preference to p e a c e - l o v i n g natives, or the resort to espionage and assassination as a means o f averting full-scale warfare ( M o r e 1965, p p . 202—9). In that light the final i m p l i c a t i o n o f the contrast b e t w e e n U t o p i a n statecraft and c o n t e m p o r a r y E u r o p e a n p o w e r politics e m e r g e s . T h e message is that the g o a l o f the c o m m o n w e a l t h m a y be pursued e v e n in the a m o r a l w o r l d o f Realpolitik. In that regard, M o m s ' sober insistence, articulated in the course o f the ' D i a l o g u e o n C o u n s e l ' , o n the political function o f the humanist is m o s t apt. ' Y o u must w i t h a crafty w i l e and a subtle, train, study and e n d e a v o u r yourself, as m u c h as in y o u lieth, to handle the matter w i t t i l y and h a n d s o m e l y for the purpose; and that w h i c h y o u cannot turn to g o o d , so to order it that it be n o t v e r y b a d ' ( M o r e 1965, p p . 9 8 - 1 0 1 ; 1974, p . 48). N o t the least o f the ironies o f Utopia, as the ' D i a l o g u e o n C o u n s e l ' s h o w s , is that M o r u s , better than H y t h l o d a e u s , grasped the m e a n i n g o f the U t o p i a n message: in the resources o f reason, rhetoric, and m o r a l virtue, the humanist possesses the means and, therefore, incurs the d u t y , to pursue the interest o f the c o m m o n w e a l t h e v e n in the w o r l d o f Realpolitik. A n a l y s e d in the light o f its intellectual p r o v e n a n c e , therefore, the U t o p i a n ideal o f the c o m m o n w e a l t h is seen to represent a fusion o f classical and o f Christian values. A s such, it c o m p r e h e n d s three distinctive ideological elements. First, h a r k i n g b a c k to the c o n c e p t i o n o f respublica in its original Platonic formulation, it affirms a philosophical ideal o f g o v e r n m e n t as directed b y rational means to the attainment o f public virtue. S e c o n d l y , reflecting the m o r e political range o f reference w h i c h the n o t i o n acquired in the C i c e r o n i a n rhetorical tradition, it affirms the ideal o f a republican constitution as the guarantee o f g o o d g o v e r n m e n t directed in accordance w i t h the Platonic c o n c e p t i o n . T h i r d l y , it c o m p r e h e n d s a n o t i o n o f social justice, d e r i v e d f r o m the Judaeo-Christian tradition. In this dimension it affirms the populist values o f biblical social m o r a l i t y , encapsulated in the Messianic aspiration for the e m a n c i p a t i o n o f the populus f r o m p o v e r t y and social oppression. H e r e the c o n t r o l l i n g c o n c e p t i o n o f the U t o p i a n i d e o l o g y presents itself. It is the vision o f humanitas, the means to w h i c h classical W i s d o m l o o k e d for the realisation o f respublica, b r o u g h t to bear in order to realise the Messianic aspiration for an emancipated populus. It remains to assess the representative character o f the U t o p i a n ideal b y relating it to the corpus o f humanist political w r i t i n g . In short, the question w h i c h arises is w h e t h e r , as a treatise for the r e f o r m o f the c o m m o n w e a l t h , Utopia can claim the status o f a humanist manifesto. In p r o c e e d i n g to consider that question, an instructive c o m p a r i s o n is offered at the outset in 125 Cambridge Histories Online © Cambridge University Press, 2008

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the f o r m o f an a n a l o g o u s political discourse p r o d u c e d b y the a c k n o w l e d g e d leader o f the humanist circle w i t h w h i c h M o r e w a s associated. T h e text is the Institutio Principis Christiani, w r i t t e n b y Erasmus for the y o u n g H a b s b u r g m o n a r c h , Charles V , partly as a treastise on the education o f a prince and partly as a m a n u a l o f instruction for use in such circumstances. T h i s c o n t e x t is relevant to the c o m p a r i s o n in that it explains Erasmus' rhetorical strategy. In contrast to the satirical and calculatedly s h o c k i n g m o d e o f Utopia, the m o d e o f the Institutio is sober and discursive, befitting the d i g n i t y , as w e l l as the personal g r a v i t y , o f the y o u n g prince to w h o m the w o r k is dedicated. Nevertheless, as shall be seen, for all the constraining circumstances, the i d e o l o g i c a l stance w h i c h Erasmus' treatise adopts is unmistakably Utopian. T h e i d e o l o g i c a l affinities o f the Institutio are already suggested in the paean to W i s d o m w h i c h occupies its ' D e d i c a t o r y Epistle'. T h e y e m e r g e in specific terms as the discourse itself gets under w a y b y means o f the usual preliminary consideration o f the best f o r m o f g o v e r n m e n t . Here, the c o n v e n t i o n a l i t y o f the format is belied b y the u n c o n v e n t i o n a l i t y o f Erasmus' conclusion. R e m a r k a b l y , in the c o n t e x t o f the political culture o f post-feudal n o r t h e r n E u r o p e , and all the m o r e so in a treatise addressed to a m o n a r c h in the process o f a c c u m u l a t i n g a vast e m p i r e b y inheritance, Erasmus proceeds to u n d e r m i n e the credibility o f hereditary m o n a r c h y . His p l o y is to present it, in effect, as a historical anachronism, a survival, as he claims, o f barbaric c u s t o m , o v e r against w h i c h he sets out elective m o n a r c h y as the system rationally designed to secure a m o n a r c h 'apt to rule' in the interests o f the c o m m o n w e a l t h (Institutio: 1936, p p . 139-40). T h e C i c e r o n i a n register, thus struck, resonates t h r o u g h o u t the treatise, as the characteristic republican values are affirmed in s o m e o f Erasmus' m o s t intensely expressed pages: g o v e r n m e n t b y consent and under the l a w ; political liberty based o n a c o m m o n h u m a n i t y ; the heinousness o f political c o r r u p t i o n and t y r a n n y (e.g. Institutio: 1936, p p . 163—4, 74~~9> 199)M e a n w h i l e , consideration o f the qualities necessary in a prince 'apt to rule' serves to introduce a second aspect o f the U t o p i a n i d e o l o g y and, b y the same token, a second dimension o f the Institutio's tacit p o l e m i c against the cherished values o f the c o n t e m p o r a r y political culture. Predictably, n o d o u b t , the prince 'apt to rule' in Erasmus' treatment, turns out to be the ubiquitous p h i l o s o p h e r - k i n g o f humanist political treatises. M o r e signifi26

I

26. For a study o f the political ideas o f Erasmus" w h i c h differs in emphasis and in w h i c h the radical edge is considerably blunted, see T r a c y 1978. I2Ó

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cantly, h o w e v e r , as closer inspection reveals, he also p r o v i d e s an e m b o d i m e n t o f the values o f U t o p i a n respublica, as c o n c e i v e d in accordance w i t h the Platonic c o n c e p t i o n o f political justice: he g o v e r n s in the public interest, n o t for dynastic or personal profit; his concern is civil affairs, not foreign w a r s o f aggrandisement; he relies o n reason and not o n p o w e r as the sanction o f political authority; he observes merit and not p r i v i l e g e o f birth or w e a l t h as the criterion o f public status; he administers justice w i t h a v i e w to reform and n o t to v i n d i c t i v e punishment. T h e casualty o f the p o l e m i c here is the heroic w a r r i o r - k i n g m u c h - c e l e b r a t e d in m e d i e v a l c h i v a l r y w h o n o w , in the pages o f the Institutio, m e r g e s into the spectre o f the classical tyrant — arbitrary, aggressive, v a i n g l o r i o u s , deluded b y flatterers, a v a r icious, cruel, a w a r - m o n g e r , and a perverter o f j u s t i c e . Finally, as the discussion proceeds f r o m a consideration o f the qualities o f the Christian prince to a consideration o f the practice o f g o v e r n m e n t in the Christian p o l i t y , the Institutio's populist stance is h i g h l i g h t e d in t w o features. O n e relates to the exercise o f political authority. T h e radical position adopted here is sufficiently indicated in the n o v e l biblical exegesis o n w h i c h the discussion pivots. Erasmus disposes o f the standard text, R o m a n s 13:1—6, w i t h its authoritarian connotations — ' B e obedient to the p o w e r s that b e ' — b y e x p o u n d i n g it, in humanist fashion, in relation to its c o n t e x t , as an a d m o n i t i o n to Christians l i v i n g under p a g a n g o v e r n m e n t . O n the other hand, he directs attention in a l e n g t h y excursus to the text w h i c h he urges as n o r m a t i v e for the exercise o f all Christian authority, religious or political, M a t t h e w , 20:25—6. T h u s Christ, the h u m b l e servant, set o v e r against the lords o f the w o r l d w h o ' m a k e their authority felt', b e c o m e s the m o d e l for the Christian magistrate (Institutio: 1936, p p . 162—80). T h e second feature relates directly to the issue o f social justice as the Institutio proceeds to p r o v i d e guidelines for the Christian prince o n those aspects o f g o v e r n m e n t w h i c h , in the early sixteenth century, especially i m p i n g e d o n the w e l l b e i n g o f the populus: taxation, social privilege, criminal justice, warfare. H e r e the U t o p i a n preferential o p t i o n for the p o o r against the rich is clearly affirmed and, in the process, the U t o p i a n indictment is e c h o e d that the existing political order a m o u n t s to a conspiracy o f the rich against the p o o r 'in the n a m e o f the c o m m o n w e a l t h ' . T h u s attention is directed to the w a y s in w h i c h the political system operates to reinforce social inequality b y , for instance, enabling the ' w e a l t h o f the m u l t i t u d e ' to b e appropriated b y the f e w , b y t a x i n g necessary, n o t luxurious, g o o d s , b y repressing c r i m e and 27

27. A contrast between the virtuous prince and the tyrant is presented in Institutio: 1936, pp. 162—5.

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social discontent instead o f addressing the u n d e r l y i n g p r o b l e m s o f dearth and u n e m p l o y m e n t , a b o v e all, b y e m b r o i l i n g the c o m m u n i t y in the devastation o f warfare — the 'sea o f all calamities' to the denunciation o f w h i c h Erasmus devotes a final impassioned chapter. T h e effect o f affirming the U t o p i a n i d e o l o g y here, as elsewhere, therefore, is to u n d e r m i n e , at the same time, s o m e o f the most cherished shibboleths o f the c o n t e m p o r a r y political culture: in this case, the inviolable rights o f p r o p e r t y and heredity, the d i v i n e l y ordained w i s d o m o f lineage and social hierarchy, the a x i o m a t i c m o r a l i t y o f severe justice and dynastic warfare. A c o m p a r i s o n o f Utopia and the c o n t e m p o r a r y Institutio reveals, therefore, a c o m m o n i d e o l o g i c a l standpoint. B o t h are concerned to affirm the threefold U t o p i a n ideal o f a rationally g o v e r n e d , constitutionally organised, and socially just c o m m o n w e a l t h . T h a t is the first significance o f the c o m p a r i s o n . Nevertheless, it is also i m p o r t a n t to note that the p o l e m i c a l thrust o f the Institutio is reformist rather than r e v o l u t i o n a r y . T h u s , the m o r a l w h i c h Erasmus d r a w s f r o m his démystification o f hereditary m o n a r c h y is not that the system must be supplanted but that its deficiencies must be remedied — in the first instance b y e q u i p p i n g the heir to fulfil his task b y means o f an appropriate educational f o r m a t i o n . H e r e a second aspect o f the i d e o l o g i c a l correspondence o f Utopia and the Institutio emerges: the c o n v i c t i o n that the existing ills o f the c o m m o n w e a l t h can be r e f o r m e d b y a strategy o f rational planning, v a l u e - f o r m a t i o n , and statecraft. T h u s the Institutio, it m i g h t be said, provides the spectacle o f M o r u s , in the guise o f Erasmus, a c c o m m o d a t i n g the U t o p i a n ideal to the political e n v i r o n m e n t o f early sixteenth-century n o r t h e r n E u r o p e . In assessing the claims o f Utopia to the status o f a humanist manifesto, a second c o n t e m p o r a n e o u s treatise, p r o d u c e d in v e r y similar circumstances to the Institutio, offers a v a l u a b l y contrasting perspective. T h a t is La Monarchie de France, w r i t t e n b y the Swiss humanist, Seyssel, as a g u i d e for the y o u n g Francis I in g o v e r n i n g the p a t r i m o n y w h i c h he had just inherited. T h e effect o f the c o m p a r i s o n here is to reveal, in the first place, a significantly different i d e o l o g i c a l thrust to Seyssel's treatise. In contrast to Erasmus' manifestly C i c e r o n i a n predilections, the Swiss humanist does n o t hesitate to assure the y o u n g Francis I that m o n a r c h y in general, and the French m o n a r c h y in particular, constitute the best f o r m o f g o v e r n m e n t ; m o r e o v e r , that heredity constitutes the best f o r m o f m o n a r c h i c a l suc cession (La Monarchie: 1 9 8 1 , B k i , chs. 4—8). A g a i n , in contrast to Erasmus' Platonic emphasis o n the claims o f merit, (i.e. rational virtue) as the criterion for public office and status, Seyssel presents lineage and degree as 128

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part o f a d i v i n e l y ordained cosmic order w h i c h , as such, require to be buttressed b y political status and social p r i v i l e g e (La Monarchie: 1 9 8 1 , B k i , chs. 13—16, B k n , ch. 18). S u c h a v i e w o f the cosmic order is scarcely c o m p a t i b l e w i t h a populist social perspective and, unsurprisingly, Seyssel's analysis o f the 'ills o f the c o m m o n w e a l t h ' contains n o trace o f the social exploitation detected b y M o r e and Erasmus. Here, then, is a humanist political standpoint m a r k e d l y m o r e in tune w i t h the status quo than the stance reflected in the U t o p i a n i d e o l o g y . Nevertheless, the significance o f the c o m p a r i s o n lies also in the fact that, Seyssel's social conservatism n o t w i t h s t a n d i n g , closer e x a m i n a t i o n reveals a basic i d e o l o g i c a l affinity w i t h his m o r e radical f e l l o w humanists. In the first place, as already noted at an earlier stage o f the discussion, the treatise o f Seyssel shares w i t h those o f M o r e and Erasmus a c o m m o n reformist aspiration — a critical perspective o n the present state o f the c o m m o n w e a l t h and a c o m m i t m e n t to r e m e d y i n g the situation. S e c o n d l y , in m o r e specific terms, the reforms w h i c h Seyssel proceeds to a d u m b r a t e reflect a c o n c e p t i o n o f the 'best state o f a c o m m o n w e a l t h ' in generic a g r e e m e n t w i t h the U t o p i a n m o d e l . T h u s , w h i l e a c k n o w l e d g i n g the absolute status o f the French m o n a r c h y , he nevertheless emphasises the existence o f 'bridles' in the f o r m o f religion, l a w , and ' p o l i c y ' (i.e. its g o v e r n m e n t a l institutions) w h i c h effectively preclude the possibility o f arbitrary g o v e r n m e n t . A n d a major concern o f Seyssel's p r o g r a m m e o f r e f o r m is to reinforce the constitutional restraints u p o n the m o n a r c h y b y means o f a conciliar system (La Monarchie: 1 9 8 1 , B k 1, chs. 9—12, B k 11, chs. 4—7). Similarly, Seyssel's responsiveness to Plato's n o t i o n o f political justice is reflected in t w o features o f his r e f o r m i n g p r o g r a m m e . O n e is an aversion to c o e r c i v e sanctions as a n o r m a l m o d e o f g o v e r n m e n t : the m o n a r c h must manifest his humanitas in the f o r m o f the princely virtues — liberality, c l e m e n c y , h o n o u r — and must strive to o v e r c o m e force b y reason (La Monarchie: 1 9 8 1 , B k i v , chs. 2—4, B k v , ch. 13). T h e second is his insistence that the claims o f ancient lineage to social p r i v i l e g e and public h o n o u r must be supported b y m o r a l attainment — noblesse oblige — hence the value o f humanist education (La Monarchie: 1981, ch. 18). Finally, despite the absence in Seyssel o f the radical c o n c e p t i o n o f social justice w h i c h informs the populist critique o f M o r e and Erasmus, his p r o g r a m m e , nevertheless, reflects a concern to relieve the social plight o f the populus b y alleviating the burdens o f taxation and repressive legislation and b y p r o v i d i n g m o d e r a t e o p p o r t u n i t y for u p w a r d social m o b i l i t y (La Monarchie: 1 9 8 1 , B k n , chs. 22—5). E x a m i n a t i o n o f Seyssel's treatise in the light o f the U t o p i a n i d e o l o g y serves to d r a w 129

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attention o f o n e further point o f identity o n w h i c h a c o m m e n t m a y be m a d e in conclusion. T h a t is the strategy w h i c h b o t h espouse as a means o f r e f o r m i n g the ills o f the c o m m o n w e a l t h . In the same tradition as Utopia and the Institutio, La Monarchie sets out to s h o w the w a y in w h i c h the ills o f the c o m m o n w e a l t h can be r e f o r m e d b y the threefold f o r m u l a o f rational planning, v a l u e - f o r m a t i o n , and statecraft — and, in d o i n g so, o f course, it affirms w h a t it seeks to e x e m p l i f y . U n i t y , as w e l l as diversity, therefore, is found to m a r k the c o m p a r i s o n b e t w e e n Utopia and Seyssel's treatise. B o t h features are significant for the purpose o f relating the U t o p i a n ideal to the corpus o f humanist political c o m m e n t a r y . E x a m i n a t i o n o f the corpus in detail w o u l d serve to reveal a bifurcation o f the humanist approach to the p r o b l e m o f the r e f o r m o f the c o m m o n w e a l t h . O n the one side are ranged the Erasmians w h o espouse the radical c o n c e p t i o n o f Utopia, seeking to a c c o m m o d a t e it to the c o n t e m p o rary political e n v i r o n m e n t w i t h o u t repudiating its c o n t r o l l i n g vision o f an emancipated populus. T h a t tradition is w e l l represented in the w r i t i n g s o f V i v e s in the 1 5 2 0 s and in the striking contribution o f Starkey in the 1 5 3 0 s . O n the other side, the conservatism o f Seyssel is abundantly evident in the political reflections o f his m o r e distinguished colleague, B u d e , or in the n e x t generation, in the classic Boke Named the Governour o f the E n g l i s h m a n , E l y o t . T h e source o f the fundamental solidarity in humanist political c o m m e n t a r y has been explained and, it is h o p e d , n o w satisfactorily demonstrated. It can be traced to the c o m m o n intellectual m a t r i x p r o v i d e d b y a series o f seminal Renaissance ideas w i t h i n w h i c h their reflection w a s c o n d u c t e d . Inspired b y an ideal o f the d i g n i t y o f M a n and o f the h u m a n capacity for self-perfection, the humanists w e r e at one in their dissatisfaction w i t h the political culture o f their time and in their c o m m i t m e n t to its reformation. T o e x p l o r e the intellectual sources o f the 28

29

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28. T h e k e y texts o f V i v e s for these purposes are De pace inter Caesarum et Franciscum (1525). De disciplinis ( 1 5 3 1 ) , De subventione pauperum (1526), De concordia (1526), De pacificatione (1526). V i v e s like M o r e - rejected the Anabaptists' assertion o f c o m m u n i s m as an absolute prescription o f Christian morality in De communione rerum (1535). C f . N o r e n a 1970. 29. Starkey's major tracts on politics are A Dialogue between Pole and Lupset (1529—32), ed. M a y e r 1989, and The Exhortation to the People (1537), ed. Heritage 1878. A recent study w h i c h fails to take account o f the U t o p i a n affinities o f Starkey's Dialogue and, accordingly, presents it as an affirmation o f aristocratic oligarchy is M a y e r 1989. See also Bradshaw 1 9 7 9 , pp. 4 6 7 - 9 . 30. For a comparison o f the political ideas o f B u d e and Erasmus see T r a c y 1978, passim. A recent study o f E l y o t sees a 'basic inconsistency' b e t w e e n his ascription o f absolute political authority to the Prince in B o o k 1 and the severe limitations placed u p o n princely p o w e r b y the constraints o f virtue in B o o k in, F o x and G u y 1986, p. 57. Elyot's 'inconsistency' is entirely characteristic o f the constitutional conservatism displayed b y the humanist tradition represented here b y Seyssel. C f . L e h m b e r g i960; Major 1964.

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difference b e t w e e n the t w o traditions does n o t c o m e w i t h i n the scope o f the present study. Briefly, the k e y is to be found in the temporising possibilities offered b y the conservatives' espousal o f N e o p l a t o n i s m and the Aristotelian via media. T h i s tension n o t w i t h s t a n d i n g , the significance o f the humanist a c h i e v e m e n t must be emphasised before c o n c l u d i n g . T h e discussion returns, therefore, to the U t o p i a n ideal o f respublica. It w a s the concept and the rhetoric o f respublica w h i c h g a v e the n o t i o n o f renaissance or r e n e w a l as e m b o d i e d in the political t h o u g h t o f northern h u m a n i s m its specific content. T h e socially b e n i g n orientation o f that ideal assumes special significance in the light o f the historical j u n c t u r e at w h i c h it emerges. T h i s w a s precisely the m o m e n t w h e n , as a n n o u n c e d in the w o r k s o f M a c h i a v e l l i , a n o v e l n o t i o n o f political m o r a l i t y b e g a n to establish itself. M e a n w h i l e , as the p h e n o m e n o n o f M a r t i n Luther signified, the old A u g u s t i n i a n p e r c e p tion u n d e r w e n t dramatic rehabilitation. Fatefully for the course o f intellectual d e v e l o p m e n t in the w e s t thereafter - and, specifically, for the course o f the d e v e l o p m e n t o f political t h o u g h t — these t w o h i g h l y influential thinkers shared a c o m m o n a n t h r o p o l o g i c a l starting point: a p r o f o u n d l y pessimistic assessment o f the h u m a n capacity for selfp e r f e c t i o n . In consequence, under the auspices o f this unlikely alliance, political thinkers in the early m o d e r n period found themselves increasingly fascinated b y the spectre o f Leviathan. A t this crucial turning point in the history o f western political t h o u g h t , therefore, the humanists' r e c o v e r y o f the ideal o f respublica and o f the Messianic aspiration for an emancipated populus can be claimed to h a v e preserved for the west the line o f continuity b e t w e e n its m o r a l tradition and the political m o r a l i t y not o n l y o f classical antiquity but o f the Judaeo-Christian scripture. 31

3 1 . O n Machiavelli's anthropological pessimism see The Prince, ch. 17. For one example a m o n g many o f Luther's radical appraisal o f the consequences for human nature o f A d a m ' s Fall see his exegesis o f Genesis, ch. 2, in Trinkaus 1 9 7 9 .

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5 Scholasticism: survival and revival J.H.

BURNS

Endings, in the history o f ideas, are n o easier to identify w i t h certainty than beginnings. Scholasticism, that p r o d u c t o f the mature intellectual culture o f m e d i e v a l E u r o p e , w a s to experience, e v e n w i t h i n the period s u r v e y e d in this v o l u m e , m o r e than one r e v i v a l . R e v i t a l i s a t i o n m i g h t indeed be a better term; for that w h i c h has n o t died need n o t in the strict sense be r e v i v e d , and there is a m p l e e v i d e n c e to indicate that the scholastic tradition, h o w e v e r exhausted it m i g h t seem at times to be, c l u n g stubbornly to life. T h e advent o f the printing press ensured the preservation, the transmission, and the w i d e r dissemination o f m a n y scholastic texts. N o r w a s this characteristic o n l y o f the late fifteenth and early sixteenth centuries — w h e n it w a s o n l y to be expected, that w h a t w e r e still the standard w o r k s in t h e o l o g y and p h i l o s o p h y w o u l d be c o m m i t t e d to print. W e l l into the seventeenth century w e find, most n o t a b l y , the t w e l v e - v o l u m e edition o f the w o r k o f D u n s Scotus published in 1639. A year later - an instance o f particular relevance here - Jean B u r i d a n ' s c o m m e n t a r y on Aristotle's Politics w a s printed at O x f o r d . T h e place is as significant as the date - as a reminder that academic conservatism p l a y e d its part in k e e p i n g the scholastic m o d e alive. H o b b e s ' attack o n the s c h o o l m e n — f r o m w h o s e w o r k s , nonetheless, he n o d o u b t t o o k m o r e o f his ideas than he cared to a c k n o w l e d g e - indicates, again, that the doctrine he had received at the turn o f the century w a s still to the fore s o m e fifty years later. B y that time, indeed, a n e w scholasticism had d e v e l o p e d v i g o r o u s l y alongside the old. T h i s chapter, h o w e v e r , is n o t concerned w i t h w h a t has T h e f o l l o w i n g abbreviations are used in this chapter: CHLMP The Cambridge History of Later MediDBI Dizionario Biografico degli italiani, ed. A . M . eval Philosophy, ed. N . Kretzmann, A n t h o n y Ghisalberti et al. ( R o m e : Istituto della EncicloK e n n y , and Jan Pinborg ( C a m b r i d g e : C a m b r i d g e pedia Italiana, i 9 6 0 - ) University Press, 1982)

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been termed the Barockscholastik o f R o b e r t B e l l a r m i n e and S u a r e z . T h e focus here is o n the h u n d r e d years or so f r o m the mid-fifteenth to the m i d sixteenth centuries. T h e r e can o f course be n o sharp lines o f division in such a matter; but it is at least arguable that late m e d i e v a l scholasticism can claim — especially perhaps in political t h o u g h t — its o w n distinctive historical i m p o r t a n c e , setting aside its relationship to the scholastic t h e o l o g y and p h i l o s o p h y w h i c h d e v e l o p e d in the late sixteenth century and b e y o n d in response to the challenges o f the R e f o r m a t i o n and C o u n t e r - R e f o r m a t i o n . It is true that late m e d i e v a l scholasticism has been seen as a spent force e v e n before the period here in question. O f almost 150 authors d e e m e d w o r t h y o f a b i o g r a p h i c a l note in The Cambridge History of Later Medieval Philosophy n o m o r e than ten or a d o z e n can be regarded as h a v i n g flourished w i t h i n the h u n d r e d years referred to a b o v e . T h e philosophical w o r k o f those years is certainly n o l o n g e r dismissed as trifling and insignificant. T h u s the n o t i o n o f an 'eclipse o f the insights o f m e d i e v a l l o g i c ' b y 'a humanistic, rhetorically-orientated l o g i c ' is n o w seen to stand in need o f substantial modification (CHLMP, p. 787). T h e g r o u n d s for modification are located particularly in d e v e l o p m e n t s d o w n to about 1530 to w h i c h major contributions w e r e m a d e b y thinkers w h o , as w e shall see, w e r e i m p o r t a n t also in the political thinking o f the period. Y e t all this is still advanced in a chapter headed ' T h e eclipse o f m e d i e v a l l o g i c ' in a section entitled ' T h e defeat, neglect and r e v i v a l o f scholasticism'; and the ' r e v i v a l ' in this c o n t e x t b e l o n g s essentially to the second half o f the sixteenth century or later. Historians o f p h i l o s o p h y , it seems, w o u l d still find little plausibility in any suggestion that scholastic writers o f the period 1450—1550 p r o d u c e d original w o r k o f i m p o r t a n c e to t h e m . W i t h t h e o l o g y — and political ideas w e r e at least as firmly e m b e d d e d in t h e o l o g i c a l as in philosophical thinking — things are rather different. Here revaluation b y recent scholarship has increasingly rated the late fifteenth century as a period o f major i m p o r t a n c e . A figure like Gabriel Biel, w h o w i l l receive at m o s t a passing reference in a history o f p h i l o s o p h y , e m e r g e s in the t h e o l o g i c a l perspective as a thinker o f stature and extensive influence ( O b e r m a n 1967a, 1967b; O a k l e y 1979). N o r are historians o f t h e o l o g y n o w concerned m e r e l y to identify, w h e t h e r for praise or for b l a m e , 'forerunners o f the R e f o r m a t i o n ' . T h e r e is, indeed, o b v i o u s interest and i m p o r t a n c e in locating the roots o f those doctrines w h i c h m a d e Protestan tism the force it w a s to be in early m o d e r n E u r o p e . T h a t , h o w e v e r , is not the o n l y significance o f the ideas in question; and it is in any case essential to 1. See p p . 2 3 7 - 4 0 , 2 9 2 - 7 b e l o w .

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understand those ideas in their genesis w i t h i n m e d i e v a l t h i n k i n g and in the society f r o m w h i c h that t h i n k i n g e m e r g e d . S u c h issues c o m m o n l y arise o n the frontier b e t w e e n t h e o l o g y and the t h e o r y o f society and politics. A g o o d illustration is afforded b y the question o f 'individualism', w i t h particular reference to the c o n c e p t o f rights in m e d i e v a l t h i n k i n g . W h e t h e r w e are to l o o k here to a ' G e r s o n i a n ' t h e o r y o f active individual rights ( T u c k 1979) or rather to the d e v e l o p i n g doctrine o f conscience f r o m the twelfth century o n w a r d s ( T i e r n e y 1983), w e must at all events c o m e to terms w i t h a revised understanding o f the place o f the individual in m e d i e v a l t h o u g h t and experience (Black, in B u r n s 1988, p p . 588—606). It m a y be the case that a figure such as J o h n W e s s e l Gansfort expressed an ' e m p h a t i c insistence o n the individual-subjective conscience' o v e r against 'the objective, collectivist, corporational stand point'. Y e t this is n o t necessarily to say that such an insistence 'can be seen as the decisive t u r n i n g - p o i n t f r o m the wholeness point o f v i e w to the individualistic standpoint' ( U l l m a n 1 9 7 5 , p. 305). O t h e r considerations apart, it is plain that a g o o d deal o f further w o r k is needed o n late m e d i e v a l sources in order to unravel the strands in a c o m p l e x pattern. In any case, theologies and perceptions o f m a n in relationship to society can p r o p e r l y be regarded as contexts in w h i c h the late fifteenth and early sixteenth centuries h a v e m o r e to offer than the c o m p a r a t i v e aridity o f scholastic p h i l o s o p h y in the period m i g h t lead one to e x p e c t . A similar claim can also b e m a d e in respect o f m o r e n a r r o w l y 'political' ideas — ideas about authority, g o v e r n m e n t , and l a w . Here, indeed, historical r e c o g n i t i o n is o f s o m e w h a t l o n g e r standing. H a l f a century a g o and m o r e , the i m p o r t a n c e o f a w r i t e r like Jacques A l m a i n , or o f his teacher J o h n M a i r (Major) w a s d u l y a c k n o w l e d g e d ( C a r l y l e 1903—36, v i , pp. 241—8; A l l e n 1928, p p . 336—7). A c t o n and Figgis for that matter had seen the i m p o r t a n c e o f a tradition o f t h o u g h t s t e m m i n g f r o m the conciliar m o v e m e n t generated b y the Great Schism o f 1 3 7 8 - 1 4 1 8 ( A c t o n 1910, p. 17; Figgis 1916, pp. 41—70). Y e t here t o o m o r e recent scholarship m a y claim to h a v e m a d e an essential contribution: the almost e x p l o s i v e g r o w t h , in the third quarter o f the t w e n t i e t h century, in the e x p l o r a t i o n o f 'conciliarist' ideas has lengthened and deepened the perspectives in w h i c h those ideas are to be p r o p e r l y u n d e r s t o o d . N o t the least i m p o r t a n t aspect o f this is the r e c o g n i t i o n that before w e consider conciliarism as a 'political t h e o r y ' , w e 2

2. T h e publication since 1969 o f the Annuarium historiae Conciliorum is one indication o f the historical aspect o f this interest.

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Scholasticism: survival and revival need to understand it as an ecclesiology — or rather a g r o u p o f ecclesiologies. T h e o l o g y , and especially the t h e o l o g y o f the church, can n e v e r be v e r y far b e l o w the h o r i z o n as w e s u r v e y this intellectual landscape. T h e terrain is extensive, variegated, and u n e v e n : for its e x p l o r a t i o n s o m e k i n d o f provisional sketch m a p is essential. Different 'projections' (to continue the cartographical metaphor) are available, t h o u g h each o f t h e m w i l l n o d o u b t — as such projections must - tend to misrepresent and distort in s o m e respects e v e n i f it illuminates in others. S u c h m a p p i n g as is possible here must leave out m a n y details w h i l e emphasising s o m e features at the expense o f others. W h a t f o l l o w s w i l l concentrate m a i n l y o n s o m e halfd o z e n authors, w h o s e arguments w i l l be e x a m i n e d in relation to three major themes or patterns in the thinking o f the period. T h e first o f these is the dialectic b e t w e e n different schools in p h i l o s o p h y and t h e o l o g y generally; the second is the t h e o r y o f dominium', and the third, the issue b e t w e e n papalist and conciliarist v i e w s o f the p o l i t y o f the church, together w i t h their consequences for civil or t e m p o r a l g o v e r n m e n t .

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O f an earlier phase in the history o f m e d i e v a l t h o u g h t it has been said that ' T h e label o f n o m i n a l i s m . . . lies like a pall . . . across the p h i l o s o p h y and t h e o l o g y o f the fourteenth c e n t u r y ' (Leff 1976, p p . 12—13); d n o d o u b t the tendency o f such labelling is, for the fifteenth century, t o o , to obscure ' h e t e r o g e n e i t y ' and 'eclecticism'. T h a t there w a s a full measure o f eclecticism w i l l be evident e n o u g h in w h a t f o l l o w s . Y e t there can at least be n o d o u b t as to the i m p o r t a n c e attached to identifications and affiliations o f this k i n d b y fifteenth-century thinkers themselves. T h e point is w e l l illustrated in the case o f Gansfort. T h e issue b e t w e e n one school o f t h o u g h t and another seemed to h i m o f such m o m e n t that his p r i m a r y object in m o v i n g f r o m H e i d e l b e r g , w h e r e he had taught the realism learnt as a student at C o l o g n e , to Paris w a s 'to confute the opinions o f those t w o m o s t famous masters, H e n r y Z o m e r e n and N i c o l a u s o f U t r e c h t , and w i n t h e m f r o m the opinions o f the Formalists to those o f the Realists, to w h i c h I subscribed' (Gansfort 1 9 1 7 , 1, p. 285). Gansfort's reference here to 'the Formalists' is a valuable reminder that the issue w a s n o t a simple confrontation b e t w e e n ' n o m i n a l i s m ' and 'realism'; Scotist doctrine w a s still i m p o r t a n t and indeed experienced a notable r e v i v a l in this period. W i t h i n three m o n t h s , h o w e v e r , it w a s Gansfort h i m s e l f w h o c h a n g e d his position: and b y the end o f a year he had m o v e d f r o m the ' f o r m a l i s m ' he a n

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found in Scotus and others to the n o m i n a l i s m he w a s to u p h o l d during and after his stay o f s o m e sixteen years in Paris. T h i s i n v o l v e d taking sides in a dispute then sharply d i v i d i n g the university; and if, as seems likely, Gansfort left Paris in 1474 or 1 4 7 5 , this m a y w e l l h a v e been connected w i t h the i m p o s i t i o n o f the r o y a l ban o n nominalist teaching w h i c h prevailed for seven years, till 1 4 8 1 . 3

Jacobus H o e c k , w i t h w h o m Gansfort w a s later to argue at l e n g t h o n the subject o f indulgences, w a s , as prior Sorbonicus, a leading o p p o n e n t o f the nominalists; and Gansfort m a d e a particular point, in the later c o n t r o v e r s y , o f the philosophical position u p o n w h i c h he based his doctrinal stance. It w a s n o m e r e matter o f scoring points against an adversary's ' w a v e r i n g w o r d s ' b y insisting that 'our N o m i n a l i s t school w i l l not permit such inconsistency and i n c o h e r e n c e ' ( 1 9 1 7 , 1, p . 302, 1966, p . 890). N o r was Gansfort's concern s i m p l y to argue that t h e o l o g i c a l mastery depended u p o n philosophical rigour: ' w h o c o u l d ever attain to that apex o f t h e o l o g y , to w h i c h Peter d ' A i l l y c l i m b e d , w i t h o u t definitions, divisions, a r g u m e n t a tions, distinctions, and logical instances?' (1917, 1, p. 308, 1966, p. 895). T h e relationship b e t w e e n p h i l o s o p h y and t h e o l o g y reached b e y o n d this into the heart o f Gansfort's teaching. W h e n discussing the l o v e o f G o d he i n v o k e s the nominalist analysis o f ' i n t e n s i o n ' and claims that ' B y a d o p t i n g the v i e w o f the nominalists it b e c o m e s easy to understand w h a t should be taught, v i z . , that w e o u g h t to g r o w in l o v e ' ( 1 9 1 7 , 1 , p. 323, 1966, p. 907). T h e s e m a y appear to be, and in s o m e degree are, matters r e m o t e f r o m 'political t h o u g h t ' . Y e t there are connections. T h e p r o b l e m o f indulgences w a s in part a p r o b l e m o f authority, and Gansfort's position depends u p o n his c o n v i c t i o n s as to w h e r e authority ultimately lies. N o t h i n g in H o e c k ' s a r g u m e n t , perhaps, disturbed h i m m o r e than the claims m a d e for papal authority in doctrinal matters: 'I a m n o t a little horrified at y o u r a d m o n i t i o n that the p o p e ' s authority o u g h t to h a v e m o r e w e i g h t w i t h m e than reason . . . y o u admonish m e in matters o f this sort to regard the authority o f the p o p e , n o t m e r e l y as a substitute for reason, but as superior to it!' T h e reference here to reason is, for Gansfort, inseparable f r o m the test o f scriptural w a r r a n t y : What, I ask, am I to regard as reason in these matters? Is it not the Holy Scriptures? D o you wish to put the authority of the pope above the Holy Scriptures? The will of the pope and the authority of Scripture have not been placed on an equal footing so that, just as the will of the pope should be regulated by the truth of Scripture, so that truth should be regulated by the will o f the pope. (1917, 1, pp. 304-5, 1966, p. 892) 3. O n the effects o f the ban see, e.g., R e n a u d e t 1 9 5 3 , pp. 90-4; Ritter 1963, pp. 3 ifF.

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Scholasticism: survival and revival A n d w h e n he finds e v e n 'the venerable G e r s o n ' apparently departing f r o m this position, Gansfort feels constrained to suppose that this w a s o n l y the result o f a n x i e t y to a v o i d the scandal and schism that m i g h t result f r o m pressing the claims o f strict t h e o l o g i c a l truth w i t h t o o m u c h v e h e m e n c e (cf. 1 9 1 7 , 1, p . 308). W h a t is certainly striking is Gansfort's readiness to appeal, m o r e or less directly, f r o m papal authority to the individual's reason and conscience. T h e r e is scarcely a pause at the 'conciliarist' position w h i c h retained so strong a h o l d for m a n y thinkers — and n o t least a m o n g those o f nominalist inclination. Y e t , as a l w a y s , caution is needed before identifying the c o n n e c t i o n b e t w e e n n o m i n a l i s m and individualism. N o t o n l y does Gansfort, o f course, attribute essential authority to the church, w h i l e d e n y i n g that this authority can be identified w i t h that o f either p o p e or council. It is also i m p o r t a n t to take account o f the special place he accords to 'the wise m a n ' . A n d , perhaps m o s t i m p o r t a n t o f all, he insists that ' E v e r y m a n in his individual capacity (quisque privatus) o u g h t to assume that n o assembly o f distinguished m e n w i l l err in its definitions' (1917, 11, p . 204, 1966, p . 7 8 1 ) . Gansfort's individualism a l l o w s b o t h for the validity o f collective j u d g e m e n t s and for the superiority o f s o m e individual j u d g e ments to others. Parisian n o m i n a l i s m rapidly r e c o v e r e d after 1481 f r o m w h a t had been a reverse rather than a defeat. B y the turn o f the century, in the academic generation o f J o h n M a i r and his first pupils, ' t e r m i n i s m ' had indeed achieved substantial preponderance in philosophical teaching. It w a s against that preponderance that Peter C r o c k a e r t , at first a f o l l o w e r o f M a i r ' s teaching, led a T h o m i s t r e v i v a l w h i c h , as w e shall see, w a s to be i m p o r t a n t for political t h i n k i n g in the first h a l f o f the sixteenth century. Paris itself w a s not, it is true, to be a major centre o f T h o m i s t t h i n k i n g in those directions; and for that matter the m o s t i m p o r t a n t T h o m i s t o f the first quarter o f the century, T o m m a s o de V i o , later C a r d i n a l Cajetan, o w e d n o t h i n g to Parisian teaching. It is also the case that other, earlier manifestations o f T h o m i s t vitality in t h i n k i n g about society and g o v e r n m e n t d e m a n d s o m e consideration. T h e s e matters, h o w e v e r , can be m o s t appropriately discussed in later sections o f this chapter: the focus for the m o m e n t m a y remain o n the fortunes o f nominalist thinking, especially in centres other than Paris. T h e r e had a l w a y s been, o f course, major nominalist centres in G e r m a n y and m o r e w i d e l y in central E u r o p e . In the fifteenth century Erfurt seems to h a v e had special i m p o r t a n c e , and it w a s certainly there that G a b r i e l B i e l absorbed the ' O c k h a m i s m ' that w a s to p e r v a d e his later teaching (Picascia 137 Cambridge Histories Online © Cambridge University Press, 2008

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1979, p. 138). T h a t teaching phase in B i d ' s career c a m e late in life, for he w a s already in his sixties w h e n he c a m e to the U n i v e r s i t y o f T u b i n g e n , f o u n d e d in 1476. In its earliest years the T u b i n g e n t h e o l o g y faculty w a s presided o v e r b y J o h a n n H e y n l i n (Johannes a Lapide: c. 1428/31—96). H e y n l i n c a m e to T u b i n g e n f r o m Basle, but the f o r m a t i v e part o f his career — spanning a period o f o v e r t w e n t y years f r o m 1453 to 1475 — had been spent in Paris. T h e r e , as a p r o m i n e n t m e m b e r o f the arts faculty and latterly in t h e o l o g y , his position had been firmly o n the realist side, and this seems to h a v e been the initial t e n d e n c y in t h e o l o g i c a l teaching at T u b i n g e n . H e y n l i n ' s ' r e i g n ' , it is true, w a s brief: he left T u b i n g e n in 1479. Five years passed, h o w e v e r , before B i e l b e g a n to teach there; and, influential t h o u g h he clearly w a s , there is n o reason to suppose that other than ' O c k h a m i s t ' influences vanished at o n c e — or perhaps at all — f r o m the university. C o n r a d S u m m e n h a r t (d. 1502) o u t l i v e d B i e l and had preceded h i m at T u b i n g e n . L i k e H e y n l i n he had g o n e there f r o m Paris, w h e r e his studies w e r e pursued during the ban o n nominalist teaching; and his earlier formation, at H e i d e l b e r g , had been in the realist via antiqua. 4

Biel's o w n position is doubtless essentially nominalist ( O b e r m a n 1967a; Picascia 1979). Y e t it can also be argued — at least in those aspects o f the matter that are most relevant here - that he exemplifies the m o r e eclectic, less s c h o o l - d o m i n a t e d features o f fifteenth-century t h o u g h t . H e had h i m s e l f studied not o n l y at Erfurt but also at H e i d e l b e r g (where teaching w a s offered in b o t h via antiqua and via moderna), and at C o l o g n e (a major centre o f Albertist and T h o m i s t realism). T h e m i d d l e decades o f his career had been spent in largely n o n - a c a d e m i c activities — he w a s p r o v o s t o f several collegiate churches and a notable preacher. It is thus in n o w a y surprising to be told that w h e n he c a m e to T u b i n g e n to teach t h e o l o g y a c c o r d i n g to the via moderna his doctrine 'had a m a r k e d l y pastoral orientation' ( O a k l e y 1979, p. 237). B i e l w a s sufficiently concerned w i t h vindicating a substantial role for h u m a n reason in the process o f salvation to h a v e incurred Luther's censure as a 'pelagianiser' i f not a Pelagian ( O z m e n t 5

1980, p p . 233—5). In discussing the crucial question o f free w i l l , B i e l d r a w s extensively o n older m e d i e v a l thinkers such as A n s e l m and B e r n a r d o f C l a i r v a u x ; but o n s o m e o f the critically i m p o r t a n t philosophical issues, the influence o f the nominalist tradition, represented b y O c k h a m and G r e g o r y 4. For Haynlin, Auctarium Chartularii Universitatis Parisiensis, 6: 250 n. 7; for Summenhart, 539 n. 5. For the early history o f the T u b i n g e n theological faculty, see Hermelink 1906; O b e r m a n 1 9 7 7 , chs. 3—6; and cf. Picascia 1979, p. 33. Summenhart's early teaching, h o w e v e r , w o u l d have been in the arts faculty. 5. Opinions on this question have varied: cf. O a k l e y 1 9 7 9 , p. 147 and n. 26.

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o f R i m i n i , is strongly m a r k e d (Biel 1973—84,11, p p . 480—96). O n the other hand, w h e n e x a m i n i n g the p r o b l e m o f 'original justice' and the 'natural rectitude' o f the w i l l , it is to Scotus rather than to the nominalists that B i e l turns for support: O c k h a m is m e n t i o n e d it is true, but o n l y as h a v i n g in this matter 'imitated' Scotus (11, pp. 555—61). 7

Biel's eclecticism is also apparent in matters w i t h a m o r e directly political bearing, t h o u g h here, indeed, his indebtedness to Parisian n o m i n a l i s m is b o t h clear and fully a c k n o w l e d g e d . In the i m p o r t a n t discussion o f law in his c o m m e n t a r y o n B o o k m o f the Sentences, he proceeds w h o l l y o n the basis o f positions laid d o w n b y Jean Gerson. A n o b l i g a t o r y l a w is a true (or valid) sign i n f o r m i n g a rational creature o f the right reason o f h i m w h o prescribes it, enjoining or prohibiting s o m e act. T h e 'sign' m a y be mental, v o c a l , or written; and w h i l e the reference to 'right reason' is crucial, so t o o is the element o f w i l l , i m p l i e d at s o m e points but for the most part explicit and emphatic. A l l this is applied to h u m a n l a w — for w h i c h B i e l adopts Gerson's characterisation, positiva praeceptiva — in b o t h its canon and its civil f o r m . T h e w h o l e analysis c o m e s almost v e r b a t i m f r o m G e r s o n . Scotus t o o is i n v o k e d , h o w e v e r , b o t h in regard to natural l a w and in discussing the dispensing p o w e r . W i t h A q u i n a s also a m o n g the authorities cited, the impression o f a c o m p o s i t e rather than a n y t h i n g like a m o n o l i t h i c theory is heightened (m, pp. 6 2 7 - 3 3 ) . 8

T h e preponderance o f Gerson's authority in this k e y passage remains striking; and it reflects a pervasive Gersonian influence o n the t h o u g h t o f the period. Gerson's w o r k s , substantial in scale and varied in genre, often had political implications e v e n w h e n their p r i m a r y concern w a s not political. T h e De vita spirituali animae is a notable instance. Its analysis o f law, utilised b y B i e l , w a s used in the same w a y b y , a m o n g others, J o h n M a i r (Mair 1 5 1 9 , fo. 1 5 V A ) . N o r w a s the penetration o f Gerson's ideas restricted to n a r r o w l y academic contexts. It has been s h o w n that the vernacular Meroure ofWyssdome, w r i t t e n for James I V o f Scotland b y J o h n Ireland in 1490, incorporates extensive u n a c k n o w l e d g e d b o r r o w i n g s from G e r s o n . If it is arguable that, in terms o f nominalist p h i l o s o p h y and 9

6. These nominalist references occur, for instance, in the discussion o f such questions as p r o v i n g free will or establishing whether the will is a sufficient cause o f actions. 7. 'Hanc quaestionem tractat Doctor subtilis [Scotus] II dist. 29, quern in hac materia imitatur O c c a m . ' T h e r e are no other references to O c k h a m under this heading. 8. Biel refers directly both to the De vita spirituali animae and to the De potestate ecclesiastica. 9. This was first established b y M r D a v i d B r o w n o f the University o f G l a s g o w and will be fully documented in D r C r a i g M c D o n a l d ' s forthcoming edition for the Scottish T e x t Society o f B o o k s vi and vii o f the Meroure. See also Mason 1987, esp. pp. 129—31, 1 3 9 - 4 1 . For Ireland see Burns 1955 (an account n o w , h o w e v e r , needing substantial revision).

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t h e o l o g y in general, Pierre d ' A i l l y is the most influential fifteenth-century there is certainly a case for a c c o r d i n g priority to Gerson's thinker, influence o n the political ideas o f the latter part o f the century and b e y o n d . O n c e again, h o w e v e r , caution is needed in categorising a thinker and characterising his influence. G e r s o n is n o t p r o p e r l y to be seen as e x e m p l i f y i n g a n y t h i n g like a direct antithesis to the teaching o f A q u i n a s (see T i e r n e y 1983; B u r n s 1983b). A n d the m o s t substantial study o f Biel's t h e o r y o f l a w suggests that 'Biel's c o n c e p t o f l a w . . . approximates v e r y closely to the T h o m i s t c o n c e p t ' ( O t t 1952, p . 264). T h e tendency for a diversity o f approaches to c o n v e r g e is s o m e t h i n g to be b o r n e in m i n d in e x a m i n i n g the t h e o r y o f dominium in this period. 10

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T h e case o f W e s s e l Gansfort has already illustrated a possible c o n n e c t i o n b e t w e e n n o m i n a l i s m and s o m e kind o f individualism, and there w i l l be occasion to l o o k later at another aspect o f Gansfort's t h o u g h t . His w r i t i n g s did not, h o w e v e r , lend themselves to sustained theoretical analysis. For the concepts o f dominium and rights as these w e r e d e p l o y e d in late fifteenthcentury t h i n k i n g it is necessary to l o o k elsewhere; and it m a y indeed be best to b e g i n b y turning a w a y f r o m the nominalist tradition to a thinker w h o s e ideas w e r e cast in a different m o u l d . A n t o n i n u s o f Florence belongs, indeed, to the v e r y margins o f the period c o v e r e d here; his Summa Theologica w a s written, or at least b e g u n , in the late 1440s. Its influence, h o w e v e r , w a s exerted — and w i d e l y diffused — in the second half o f the century and later. A s a D o m i n i c a n , A n t o n i n u s w a s in some sense ex professo a T h o m i s t ; but his concern w a s n o t to e x p o u n d A q u i n a s ' system as a w h o l e , but rather, taking that system as his foundation, to d e v e l o p its implications in the c o n t e x t o f h u m a n action and relationships. T h e i m p o r t a n c e o f his Summa is epitomised in the claim that it w a s 'the first w o r k to h a v e e m b r a c e d the study o f m o r a l t h e o l o g y o n such a scale' ( M a n d o n n e t , cit. DBI, in, p . 529a). A n t o n i n u s ' m o r a l concerns, m o r e o v e r , m i r r o r e d the p r o b l e m s o f his o w n society — o f the bustling mercantile e c o n o m y o f Florence, w h e r e he w a s already archbishop w h e n the Summa w a s w r i t t e n . A n t o n i n u s , indeed,

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10. O f the few thinkers o f the period to receive m u c h attention in CHLMP, d ' A i l l y is g i v e n the most extensive treatment. 1 1 . T h e frequency o f early printings o f the Summa indicates its 'immense diffusion and success' (DBI, in, p. 530b, w h e r e seven editions in the period d o w n to 15 50 are mentioned; but this is b y n o means a complete list).

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Scholasticism: survival and revival m i g h t w e l l c o m m a n d m o r e attention in a history o f e c o n o m i c t h o u g h t than in the c o n t e x t o f political ideas. Y e t dominium is so central in late m e d i e v a l political t h i n k i n g that such a substantial and w i d e l y k n o w n discussion o f the t h e m e must be relevant here. W h a t A n t o n i n u s has to say o n this topic is n o d o u b t sufficiently T h o m i s t in approach. N u t u r a l l a w o f itself prescribes c o m m u n i t y o f g o o d s : it is b y jus gentium - m o r e precisely it is b y positive l a w in accordance w i t h jus gentium (and therefore not contrary to natural l a w ) - that the distribution o f private p r o p e r t y necessary since the Fall has been m a d e ( A n t o n i n u s 1959, m , p p . 1 8 0 - 1 ) . A s to the relationship b e t w e e n rights so established and dominium, A n t o n i n u s ' v i e w is n o t clear-cut. H e reports the existence o f different opinions, i n c l u d i n g the ' G e r s o n i a n ' position: ' A c c o r d i n g to s o m e doctors dominium and jus m e a n the same thing . . . so that i f a m a n has a right to a n y t h i n g he has lordship in it as w e l l (m, p. 186). A n t o n i n u s h i m s e l f seems to prefer a v i e w in w h i c h , w h i l e all dominium entails jus, the converse does not hold: there can be rights, such as those o f children against their parents, the possessor o f w h i c h does not h a v e lordship. A n t o n i n u s defines dominium as 'the right o f h a v i n g , possessing, and e n j o y i n g s o m e t h i n g either s i m p l y as one chooses or a c c o r d i n g to s o m e determinate m o d e , based o n a certain superiority or a u t h o r i t y ' (m, p . 186). N o w the dominium o f a p r o p e r t y - o w n e r is, it seems, one level in a hierarchy or p y r a m i d o f dominia, at the a p e x o f w h i c h w e find G o d - 'in the b e g i n n i n g things and possessions b e l o n g e d to n o one b u t G o d ' (in, p. 176). T h e h u m a n authority b y w h i c h individual dominium is established exists b y divine delegation, and such authority is the instrumentality w h e r e b y G o d has chosen to act in a matter p r o v i d e d for neither b y natural l a w nor, directly, b y divine l a w . A n t o n i n u s ' t h e o r y o f dominium in respect o f p r o p e r t y and rights thus forms part o f a m o r e general t h e o r y o f t e m p o r a l lordship: and this w i d e r t h e o r y is emphatically papalist. U n d e r G o d , universal d o m i n i o n lies w i t h the p o p e exercising 'authority and regal p o w e r ' . T h e e m p e r o r is indeed 'lord o f the w o r l d and princeps', but he is at the same time absolutely subject to the authority o f the p o p e , w h o m a y j u d g e , c o n f i r m , or depose h i m (in, p. 165). W i t h i n this structure — resonant, i f in rather h o l l o w tones, w i t h the r e n e w e d self-confidence o f the post-conciliar p a p a c y — w e find a fairly c o n v e n t i o n a l account o f political p o w e r ordinarily exercised either b y a k i n g or b y a city-state. T h i s is based o n the characteristically T h o m i s t v i e w that 'rule and g o v e r n m e n t ' are necessary for the w e l l - b e i n g o f those w h o cannot g o v e r n themselves. C o m m o n consent is i n v o k e d as the basis for an essentially v o l u n t a r y subjection, t h o u g h it seems fair to say that the 141

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emphasis o n consent is less m a r k e d than it w a s to be in 'nominalist' thinkers such as B i e l , M a i r , and A l m a i n (cf. in, p . 181). It is at the same time clear that A n t o n i n u s , d r a w i n g h e a v i l y o n juristic as w e l l as o n t h e o l o g i c a l sources, transmitted to later generations a substantial c o m m o n stock o f ideas to b e used b y other writers w i t h o u t such use i m p l y i n g a strong c o m m i t m e n t to a firmly held doctrinal position d e r i v e d f r o m one school or a n o t h e r . T o return f r o m this excursion into m i d - c e n t u r y T h o m i s t t h i n k i n g to the w o r k o f B i e l is indeed to be struck as m u c h b y similarities as b y divergences. B i e l t o o , w h e n discussing dominium in B o o k iv o f his Collectorium o n the Sentences, is c o n c e r n e d to establish the basis o f private p r o p e r t y rights, g i v e n that these are n o t the w o r k o f either natural or divine l a w . His p r i m a r y (and largely a c k n o w l e d g e d ) debt for the a r g u m e n t s he uses is to D u n s Scotus. F r o m Scotus he takes the v i e w that 'just positive l a w s ' are necessarily the basis o f private possessions and that such l a w s m a y be m a d e either b y paternal or b y political authority. T h a t authority, furthermore — especially in its political f o r m — retains its c o n t r o l e v e n after it has established and distributed p r o p e r t y rights. W h e n discussing the transfer o f p r o p e r t y , B i e l insists that this can be effected, n o t o n l y b y private transactions, but also b y acts o f public authority (Biel 1 9 7 3 - 8 4 , i v . 2, PP-5-9). O n c e again, therefore, w e h a v e a t h e o r y o f p r o p e r t y predicated u p o n a t h e o r y o f political authority — and indeed, in this instance, u p o n a m o r e general t h e o r y o f society. T h e l e g i t i m a c y o f public acts transferring p r o p e r t y , a c c o r d i n g to B i e l , stems f r o m the consideration that 'in the fact o f c o m m u n i t y there is supposed to b e included the consent o f e v e r y m e m b e r o f that c o m m u n i t y ' (iv.2, p. 8) — a point, o n c e again, d e r i v e d directly f r o m S c o t u s . C o n s e n t is here the g r o u n d o f l a w , and l a w is treated as equivalent to, or interchangeable w i t h , decisions b y the ruler. T h e t h e o r y of dominium has again b r o u g h t us to questions o f a political and g o v e r n m e n t a l nature; but for further light o n Biel's answers to such questions it is necessary to consider a rather different part o f his discussion. T h e c o n t e x t is still, as before, that o f restitution (the entire analysis f o r m i n g part o f an account o f the sacrament o f penance). N o w , h o w e v e r , Biel's c o n c e r n is w i t h the use o f v i o l e n c e and its justification. T h e 'just w a r ' is a relevant instance; and one factor in its justness is the l e g i t i m a c y o f the authority b y w h i c h it is w a g e d . 12

13

12. For instance, a k e y passage in the Summa summarum o f Silvestro M a z z o l i n i da Prierio (i539> fo. 159V, cited in T u c k 1979, p. 5) is taken almost w o r d for w o r d from Antoninus. 13. ' . . . quia in facto communitatis supponitur includi consensus cuiuslibet de communitate'. T h e Scotus reference is to his discussion o f the same passage in B o o k iv o f the Sentences (dist. 15, q.2.).

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Scholasticism: survival and revival R e l y i n g o n the authority o f the canonists and — n o t a b l y — o f A q u i n a s , B i e l accepts the v i e w that this authority b e l o n g s to principes and that it b e l o n g s m o s t fully to that princeps — b e he k i n g or e m p e r o r — w h o has n o superior. E v e n subordinate authorities, it is true — i n c l u d i n g 'counts' and ' c o m m u n ities' as w e l l as 'princes' - h a v e the right to m a k e w a r o n those within their own jurisdiction w h o cannot o t h e r w i s e be reduced to order. T h r o u g h o u t principes are seen as guardians o f the c o m m o n w e a l , entrusted w i t h an authority to be used for the c o m m o n g o o d (iv.2, p p . 66—70). 14

B i e l is w e l l a w a r e , h o w e v e r , that the p o o r , and subjects in general, are often oppressed and unjustly e x p l o i t e d b y rulers, and this consideration leads to another dimension o f his t h e o r y . T h e question is again one o f restitution; but it is n o w a matter o f the d u t y o f those h o l d i n g t e m p o r a l dominium to restore w h a t they h a v e unjustly taken f r o m their subjects. T h i s o b l i g a t i o n derives, B i e l argues, f r o m the nature and basis o f t e m p o r a l authority itself. L i k e private p r o p e r t y , it is the p r o d u c t , n o t o f natural l a w or right, b u t of jus humanum. T o be legitimate (iusta dominandi auctoritas) it must be g r o u n d e d in the people's choice and consent. For B i e l this is so regardless o f the w a y in w h i c h authority m a y in one case or another h a v e been acquired — b y direct election, b y 'just w a r against infidels or rebels', b y legitimate succession, or t h r o u g h a p p o i n t m e n t b y s o m e superior jurisdictionally entitled to m a k e it: 'all these legitimate m o d e s are reducible in their origins to the choice and consent o f the p e o p l e ' ( i v . 2 , p . 85). T h i s is w h a t distinguishes principatus politicus f r o m paternal authority (the o r i g i n o f w h i c h lies in natural right). T h e ruler's authority extends to the m a k i n g as w e l l as the e x e c u t i o n o f law; but it is t h r o u g h o u t an authority to be used ad utilitatem et commodum rei publicae. U s e d for contrary, selfish purposes, it b e c o m e s tyrannical ( i v . 2 , p p . 85—6). T h u s the ruler has the right to l e v y taxes, but a just ruler w i l l restore to his subjects a n y t h i n g he has taken illegitimately. If the ruler's authority has itself been acquired illegitimately, b y usurpation, he is m o r a l l y b o u n d to surrender it — p r o v i d e d that this w i l l n o t h a v e consequences for the c o m m u n i t y w o r s e than those o f his usurpation ( i v . 2 , pp. 85—90). T h e e c h o here o f a familiar element in A q u i n a s ' doctrine is n o accident; t h r o u g h o u t this part o f his exposition B i e l i n v o k e s the authority o f St T h o m a s , either directly or t h r o u g h the m e d i u m o f A n t o n i n u s . A s to the direct question o f w h e t h e r subjects are b o u n d to 15

16

14. T h e Aquinas reference is to na nae, 40, 1. Biel's other references here are mostly to canonists, notably Hostiensis and R a y m o n d o f Penyafort. 15. In this connection Biel cites Aquinas, De regimine ludaeorum, as quoted b y Antoninus. 16. T h e r e are also direct references to Antoninus' Summa: see esp. Biel 1973—84, iv.2, pp. 93ff.

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o b e y a usurping tyrant, B i e l bases his cautiously n e g a t i v e answer directly o n A q u i n a s ' Summa. His caution is indeed e v e n greater than St T h o m a s ' ; for his c o n c e p t o f legitimate disobedience seems to e x t e n d o n l y to the case o f authority illegitimately held, n o t to that o f legitimate authority unjustly used (iv.2, p p . 1 0 4 - 5 ) . 17

T h e r e is n o t h i n g 'radical' in all this, n o r is it in any w a y c o n t r a d i c t o r y that Biel's earliest w o r k should h a v e been a Defence of Apostolic Obedience (Biel 1968). His v i e w s o n papal and conciliar authority w i l l call for b r i e f notice later. H e r e it is m o r e relevant to emphasise the absence f r o m his social and political t h i n k i n g o f any m a r k e d 'individualism'. His v i e w s are essentially ' c o m m u n i t a r i a n ' , and he does n o t seem to h a v e c o n c e r n e d h i m s e l f w i t h the p r o b l e m s o f the origins and basis o f c o m m u n i t i e s as such. H e does, it is true, refer at one point to a people as 'united' or ' m a d e o n e ' (populus adunatus), b u t there is n o account o f any process o f adunatio (Biel 1 9 7 3 - 8 4 , i v . 2 , p . 86). It has been said o f Biel's nominalist c o n t e m p o r a r y Gansfort that his 'political p h i l o s o p h y w a s permeated w i t h v o l u n t a r i s m ' and that in it 'the right o f resistance w a s g i v e n firm shape and sharply d r a w n c o n t o u r s ' ( U l l m a n n 1 9 7 5 , p . 306). C e r t a i n l y Gansfort is emphatic that ' u n w o r t h y ' rulers are to be r e m o v e d f r o m office. T h e place o f consent and election in his thinking is, again, s o m e t h i n g m o r e politically effective than a m e r e theoretical postulate: for Gansfort a p r o p e r l y constituted state is one in w h i c h supreme authority is either conferred for n o m o r e than a year at a t i m e or is at least subject to c h e c k i n g b y those w h o confer it (Gansfort 1966, p. 765, 1 9 1 7 , 11, p . 176). T h i s is the basis for a decidedly active t h e o r y o f resistance, in w h i c h k i n g s w h o d o w r o n g are n o t s i m p l y to be passively d i s o b e y e d but must be d r i v e n f r o m the throne (deberent regno deturbari: 1966, p . 766, 1 9 1 7 , 11, p p . 176—7). A t the same time there is n o simple contrast b e t w e e n rulers, w h o m a y b e c o m e tyrannical, and c o m m u n i t i e s , w h o w i l l collectively rectify matters. C o m m u n i t i e s t o o m a y err; and Gansfort insists that l a w s c o n t r a v e n i n g the l a w o f G o d , e v e n i f they h a v e been m a d e b y the consent o f the p e o p l e (communi consensu multitudinis), must in n o circumstances be o b e y e d (1966, p. 754, 1 9 1 7 , 11, p . 160). T h e need to o b e y G o d rather than m a n is p a r a m o u n t , but in the case o f m i s g o v e r n m e n t there is the usual cautionary note — resistance is permitted,

17. T h e Aquinas reference is to na nae, 104, 6. T h e k e y phrase (ad 3.) is 'si [principes] n o n habeant j u s t u m principatum sed usurpatum, vel si injusta praecipiant . . .'. T h e second clause does not figure in Biel's formulation.

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Scholasticism: survival and revival e v e n enjoined, but o n l y i f its consequences w i l l not p r o v e to be the greater evil. R e t u r n i n g to T u b i n g e n and to Biel's colleague, S u m m e n h a r t , w e find v i e w s w h i c h like those o f Gansfort, t h o u g h in a different context, m a y be regarded as individualistic. S u m m e n h a r t ' s account o f jus and dominium at the outset o f his massive Septipertitum o n contracts has been seen as an elaboration o f a ' G e r s o n i a n ' t h e o r y o f rights ( T u c k 1979, p p . 27—8). C a u t i o n is required here, h o w e v e r . W e h a v e seen already, in the case o f A n t o n i n u s , that the issues are b y n o means clearly defined. If w e l o o k briefly at a p r o m i n e n t e x p o n e n t in Paris and later in G e r m a n y o f Scotist t h i n k i n g in the late fifteenth-century, Etienne Brulefer, the same point e m e r g e s . Brulefer, like A n t o n i n u s , rehearses different v i e w s o f the relationship b e t w e e n jus and dominium and o f b o t h to proprietas — o n l y to set all these niceties aside and p r o c e e d o n the basis o f treating the three concepts as, for practical purposes, the same (Brulefer 1500, fo. 169V). In S u m m e n h a r t ' s case the debt to G e r s o n in respect o f the t h e o r y of dominium is clear e n o u g h ; but it w o u l d be a mistake to regard h i m as simply an e x p o n e n t o f 'Gerson's k i n d o f n o m i n a l i s m ' ( T u c k 1979, p. 27). It has been n o t e d already that S u m m e n h a r t ' s early formation had been in the via antiqua, not the nominalist via moderna; and t h o u g h he w a s n o d o u b t influenced b y his association w i t h B i e l , that influence again had its eclectic aspects. In S u m m e n h a r t ' s account o f l a w , as in Biel's m o r e elaborate analysis, the Scotist element is strong. L a w derives its efficacy f r o m the authority o f the l a w g i v e r ( t h o u g h for it to be a truly just l a w that authority must be g u i d e d b y w i s d o m ) ; and legislative authority b e l o n g s (once m e n h a v e a d v a n c e d f r o m a state o f life in w h i c h paternal p o w e r is sufficient) to political rulers, constituted as such b y the consent o f their subjects. S u m m e n h a r t distinguishes t w o basic forms o f political p o w e r — regal and (as w e w o u l d say) republican, the latter e x e m p l i f i e d in the city-states o f Italy. (There are verbal echoes in this passage o f A n t o n i n u s ' formulation o f the point.) T h e essential i m p o r t a n c e o f consent is illustrated b y S u m m e n hart f r o m the situation o f D a v i d before the death o f Saul: t h o u g h chosen b y G o d and anointed b y S a m u e l , his right w a s o n l y ad regnum, not yet in regno — a right to exercise r o y a l p o w e r c o u l d c o m e o n l y f r o m his acceptance b y the p e o p l e ( S u m m e n h a r t 1 5 1 3 , i.vii, sig. b 2 r A ) . S o far as private p r o p e r t y is concerned, S u m m e n h a r t fully accepts the v i e w that it is a right g r o u n d e d in h u m a n l a w . If, h o w e v e r , his analysis is c o m p a r e d w i t h Biel's (strongly Scotist) account, a point o f s o m e interest e m e r g e s . T h e necessary 'positive l a w ' , S u m m e n h a r t argues, m i g h t emanate H5

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neither f r o m paternal authority n o r f r o m political p o w e r in its ordinary sense, but f r o m 'a dictate o f c o m m o n consent'. T h i s consent is apparently envisaged as s o m e t h i n g other than the collective authority o f a politically constituted communitas or republic. T h e justice o f such a l a w w o u l d rest o n the principle volenti non Jit injuria (i.ix, s i g . c 5 r B ) . T h e r e is in this b o t h a flexible c o n c e p t o f l a w and, a r g u a b l y , a distinctly individualistic concept o f consent — t h o u g h neither, it must be said, is fully d e v e l o p e d . Despite individual differences and tendencies determined b y c o m m i t m e n t to one school o f t h o u g h t or another, the t h e o r y o f dominium, g o v e r n m e n t , and society in the late fifteenth century m a y o n the w h o l e be seen as reflecting a c o n v e r g e n c e and conflation, i f not quite a synthesis, o f elements that m i g h t initially h a v e appeared to be dialectically opposed. A sharper dialectic m a y be e x p e c t e d in controversies m o r e directly concerned w i t h the organisation and exercise o f political authority.

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T h e issue b e t w e e n conciliarist and papalist v i e w s o f authority in the church had not, o f course, sunk totally out o f sight in the half-century f o l l o w i n g the final liquidation o f the conciliar m o v e m e n t as such w i t h the dissolu tion o f the C o u n c i l o f Basle—Lausanne in 1449. Despite the effective papal v i c t o r y at that point, the conciliar t h e o r y remained alive, its arguments available for d e p l o y m e n t in limited but sometimes sharp controversies. Biel's 1462 Defensorium Obedientiae Apostolicae w a s the p r o d u c t o f one such c o n t r o v e r s y , in w h i c h G r e g o r H e i m b u r g had v e h e m e n t l y asserted the anti-papal position ( T h o m s o n 1980. p p . 1 5 - 1 7 ) . Biel's brief, then, w a s to defend papal authority; and he did so v i g o r o u s l y , a r g u i n g , for instance, that n o positive l a w c o u l d bind the p o p e and that a papal definition, c o m m a n d , or other act contrary to positive l a w must be reverently o b e y e d (Biel 1968, pp. 142—3). Y e t w h e n , t w e n t y - f i v e or thirty years later, he w r o t e his e x p o s i t i o n o f the canon o f the mass, he regarded the council, representing the w h o l e c o m m u n i t y o f believers, as the supreme tribunal in the church, h a v i n g authority o v e r all its m e m b e r s , e v e n the p o p e ; and he explicitly cited in this c o n t e x t the decree Frequens o f the C o u n c i l o f C o n s t a n c e (Biel 1 9 6 3 - 7 1 , 1 1 , p. 199). A m o d e r a t e and carefully h e d g e d conciliarism, again, had been expressed in the late 1450s b y D e n i s 1 8

18. T h e controversy, arising from a disputed election in the archdiocese o f M a i n z , is further examined b y the editors o f Biel 1968. See also B e c k e r 1988, pp. 3 4 6 - 5 2 .

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Scholasticism: survival and revival R i j k e l ( c o m m o n l y k n o w n as D e n i s the Carthusian). A r g u a b l y n o m o r e than a 'quasi-conciliarist' (Black 1979, p . 24), D e n i s at least g a v e , in his De auctoritate summi pontificis et generalis concilii ( R i j k e l 1908, p p . 531—676), an elaborate restatement o f the arguments; and in his Epistola ad principes catholicos (pp. 505-34) he is emphatic as to the culpable failure o f popes to s u m m o n a c o u n c i l subsequent to that o f Basle—Lausanne to deal w i t h the p r o b l e m s — n o t least the O t t o m a n threat — facing C h r i s t e n d o m . D e n i s R i j k e l ' s w o r k is significant in the w i d e r c o n t e x t o f fifteenthc e n t u r y intellectual history, t h o u g h that significance can o n l y be t o u c h e d o n here. O n the one hand, c o m m i t t e d as he is to the hierarchical vision o f his namesake the (pseudo-) A r e o p a g i t e , he exemplifies the i m p o r t a n c e o f Christian N e o p l a t o n i s m for the t h i n k i n g — i n c l u d i n g the political thinking — o f his age (see B l a c k 1970, p p . 57ft). A t the same time, his h e a v y reliance o n the authority o f A q u i n a s is a reminder o f the vitality o f T h o m i s t realism in the mid-fifteenth century. L o o k i n g , f r o m that point o f v i e w , at the w o r k o f the great Parisian conciliarists o f the early decades o f the century, d ' A i l l y and G e r s o n (representing as they did a different philosophical tradition), D e n i s is c o n c e r n e d to argue that their conciliarism w a s in fact consonant w i t h his o w n m o d e r a t e position. A m o r e radical interpretation o f Parisian conciliarism w a s to e m e r g e — or reappear — forty years after his death. 19

T o say that is n o t to d e n y an affinity b e t w e e n the m o d e r a t e , eclectic positions a d o p t e d b y B i e l and R i j k e l and the t h i n k i n g o f the Parisian nominalists and conciliarists o f the early sixteenth century. T h e r e is, indeed, a real continuity o f t h o u g h t . W h e n A l m a i n ' s c o m m e n t a r y o n B o o k m o f the Sentences w a s first published, p o s t h u m o u s l y , in 1 5 1 6 ( w i t h a dedication to M a i r ) , it e m b o d i e d lectures delivered in 1 5 1 2 w h i c h had a v o w e d l y f o l l o w e d Biel's l e a d . A t the same time, the direct influence o f O c k h a m is especially clear in A l m a i n ' s w o r k . N o t o n l y did he w r i t e a specific exposition o f O c k h a m ' s Octo quaestiones o n papal p o w e r : there is constant reference — n o t a l w a y s uncritical, but a l w a y s respectful - to O c k h a m t h r o u g h o u t the w o r k s A l m a i n w r o t e b e t w e e n his Moralia, first published in 1510, and his p r e m a t u r e death in 1 5 1 5 . Y e t A l m a i n also reflects the characteristic eclecticism o f the period in frequent references n o t o n l y to 20

19. It is n o t e w o r t h y that these and other writings b y R i j k e l w e r e printed in the early 1530s. 20. T h e editor was Nicholas Maillard (for w h o m see Farge 1980, pp. 2 9 5 - 3 0 1 ) ; his dedicatory epistle to Mair is reprinted in Burns 1954, pp. 9 7 - 8 . A passage in that letter m a y have given rise to the suggestion that A l m a i n had edited Biel's c o m m e n t a r y on the Sentences (cf. O b e r m a n 1967a, p. 20). It is clear, h o w e v e r , from the editorial note at the end o f the text (Almain 1 5 1 8 , fo. 107) that A l m a i n followed Biel in his 1 5 1 2 lectures: 'in tertium sententiarum profitendo Gabrielem [Biel]'.

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S c o t u s but also to A q u i n a s ; and references to A q u i n a s are particularly significant in his 'political' w r i t i n g s . T h e fact that M a i r and, especially, A l m a i n p r o d u c e d w o r k s that m a y p r o p e r l y be termed political w a s , naturally, the result o f political circumstances. T h e conciliarism they absorbed f r o m the Parisian academic tradition and especially f r o m G e r s o n c o u l d h a v e remained inert: it hardly stirs, indeed, in M a i r ' s w r i t i n g s before 1 5 1 8 . T h e precipitating factor w a s Louis X I I ' s essentially political m a n o e u v r e in b r i n g i n g together at Pisa (and later Milan) a council o f the church intended to u n d e r m i n e the authority o f the p o p e , Julius II. D e n o u n c e d as a schismatic conciliabulum, the council nevertheless asserted in practice — to the point o f declaring Julius deposed — the full r i g o u r o f conciliar theory. T h a t t h e o r y w a s to be emphatically restated during the council b y A l m a i n and after the event b y M a i r . A l m a i n ' s Libellus de auctoritate ecclesiae had been p r o m p t e d b y a sharp attack o n conciliarist principles b y T o m m a s o de V i o , later — as C a r d i n a l Cajetan to be one* o f Luther's principal adversaries; and Cajetan h i m s e l f restated his case in reply to its critics. In this p o l e m i c a l confrontation political arguments o f considerable i m p o r t a n c e w e r e a d v a n c e d . 2 2

2 3

A l m a i n ' s position — w i t h w h i c h an analysis o f the a r g u m e n t m a y c o n v e n i e n t l y b e g i n — w a s based on the c o n c e p t of dominium naturale. T h i s , its nature, and its relationship to 'civil d o m i n i o n ' are the subject-matter o f his Quaestio in vesperiis habita, w r i t t e n perhaps before — t h o u g h o n l y just before — the resurgence o f the conciliar c o n t r o v e r s y : its m a i n elements are in any case r e d e p l o y e d in the 1512 Libellus, written in response to Cajetan's De comparatione auctoritatis Papae et concilii o f 1 5 1 1 . Individual h u m a n beings, A l m a i n argues, are naturally — that is, d i v i n e l y — e n d o w e d w i t h a right to w h a t e v e r is necessary to sustain and preserve life and p r o m o t e w e l l b e i n g . T h i s right extends to the legitimate use o f force to repel force — e v e n to the killing, i f need be, o f an attacker. S o far as the proprietary aspect o f dominium naturale is concerned, A l m a i n seems to h a v e envisaged the possibility o f a f o r m o f natural appropriation g o i n g b e y o n d the simple right to take and use w h a t e v e r w a s needed to support life. A t one point, 2 4

21. Almain's De penitentia was based explicitly on Scotus' c o m m e n t a r y on dist. 15 o f B o o k iv o f the Sentences. T h e importance o f Scotist doctrine at this period is also reflected in the fact that John Mair superintended, in 1 5 1 7 - 1 8 , the first printed edition o f Scotus' Reportata parisiensia (cf. Mair 1892, p. 410). 22. For some 'stirrings' in 1 5 1 0 and 1 5 1 2 , see Burns 1 9 8 1 , p. 48 and nn. 7 7 , 78. 23. O n Mair's position and circumstances in this connection, see Burns 1 9 8 1 , p. 50 nn. 89, 90. 24. A l m a i n undertook the response at the instance o f the Paris faculty o f t h e o l o g y . For a full account see La Brosse 1965.

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Scholasticism: survival and revival certainly, he endorses the v i e w w e h a v e already seen in S u m m e n h a r t — that ' c o m m o n consent' w i t h o u t the intervention o f any other c o m m o n authority c o u l d authorise such appropriation ( A l m a i n 1 5 1 8 , In Quartum, fo. 30rA). E v e n at the natural level, indeed, there is for A l m a i n a collective or corporate as w e l l as an individual dimension: s o m e o f the 'natural rights' he has in m i n d h a v e to d o w i t h the interests o f the h u m a n race as a w h o l e — such, for instance, are the rights husbands h a v e o v e r their w i v e s ' bodies (fo. 2 6 v A ) . In general, h o w e v e r , A l m a i n ' s v i e w s o n the social dimension in h u m a n life are expressed in the c o n t e x t , n o t o f the natural order, but o f w h a t has been 'superadded' to that order since, and in consequence of, the Fall. Dominium civile has t w o elements, dominium proprietatis and dominium jurisdictionis; and A l m a i n f o l l o w s J o h n o f Paris closely in his strong emphasis o n the distinction b e t w e e n t h e m ( A l m a i n 1 5 1 8 , Expositio, i.vi, f o . y r B ) . It is the jurisdictional aspect that needs analysis i f w e are to establish the m o r e strictly political implications o f A l m a i n ' s t h e o r y . Jurisdiction is ultimately a c o e r c i v e p o w e r — it i n v o l v e s the jus gladii, the right w h e n necessary to put offenders to death. T h e r e is an evident a n a l o g y here w i t h the individual's dominium naturale; but A l m a i n makes it clear e n o u g h that jurisdictional authority is not s o m e t h i n g delegated b y individuals. N o r , o n the other hand, does it inhere as o f right in a ruler or ruling g r o u p . It is indeed a delegated p o w e r , but its source lies in the c o m m u n i t y for w h o s e corporate benefit it is to be used (see B u r n s 1983a). T h r e e questions arise f r o m this. First, w h a t is the source o f the right the c o m m u n i t y transfers or entrusts to its rulers? S e c o n d , w h a t is the nature o f the c o m m u n i t y itself and o f its relationship to its individual m e m b e r s ? T h i r d , h o w should political p o w e r be organised in order to ensure its p r o p e r use? A s to the first point, A l m a i n o n c e again is clear that the authority o f the c o m m u n i t y does not derive f r o m its individual m e m b e r s , since it is an authority they d o not, as individuals, possess. N o r can he see any other answer to the question than to say that the p o w e r in question c o m e s f r o m G o d ( A l m a i n 1 5 1 8 , Quaestio, fo. 62V, Libellus, f o . 4 6 r ) . T h e r e is a close a n a l o g y b e t w e e n individual and corporate right — an a n a l o g y e x t e n d i n g further w h e n w e note that neither the individual n o r the c o m m u n i t y can 'abdicate' this right or b e legitimately d e p r i v e d o f it. B u t it is an a n a l o g y b e t w e e n t w o parallel entities, each o f w h i c h is natural or divine in o r i g i n . In a n s w e r i n g the second question, A l m a i n makes one o f his most i m p o r t a n t references to A q u i n a s , citing h i m (both in the Quaestio and in the 149

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Libellus) for the a r g u m e n t that the c o m m u n i t y ' s right to punish capitally is a n a l o g o u s to the surgeon's cutting off 'a g a n g r e n o u s m e m b e r ' . T h e ' o r g a n i c ' v i e w here is s t r o n g l y d e v e l o p e d . A l m a i n i n v o k e s the Pauline n o t i o n o f society as a b o d y c o m p r i s i n g different m e m b e r s and insists o n the consequence that each individual is 'ordered' to the b o d y politic, serving its c o m m o n purposes as limbs and organs are subordinated to the needs o f the natural b o d y to w h i c h they b e l o n g ( A l m a i n 1 5 1 8 , Expositio, m . i , fo. 3 5 r ) . A n y k i n d o f individualism here takes second place to a s t r o n g l y 'communitarian' view. A s for the third question, one o f the c o m m u n i t y ' s basic rights is to p r o v i d e b y its o w n collective decision for its o w n g o v e r n m e n t . It m a y choose to d o this b y vesting jurisdictional p o w e r in the hands o f one m a n or o f a b o d y o f m e n ; and, i f the latter, either in a small g r o u p or in the m a n y . O f this classic Aristotelian trio o f possibilities A l m a i n — and M a i r — are quite clear that m o n a r c h y or k i n g s h i p is the best, and that, as such, it w a s surely the f o r m o f g o v e r n m e n t established b y Christ in the church. T h e a n a l o g y b e t w e e n papal and r o y a l p o w e r is elaborately d e v e l o p e d b y M a i r (see B u r n s 1981, esp. p p . 50—6). It is, h o w e v e r , crucial for the conciliarist case to s h o w that the virtues o f m o n a r c h y are c o m p a t i b l e w i t h — are, indeed, inseparable f r o m — the essential p o w e r s o f the c o m m u n i t y . In the end, n o d o u b t , the most essential o f those p o w e r s is the p o w e r to call to account and i f need be depose an erring k i n g or p o p e . T h i s f o l l o w s in particular f r o m A l m a i n ' s insistence o n the inalienability o f the c o m m u n i t y ' s natural right to safeguard its o w n w e l l - b e i n g ( A l m a i n 1 5 1 8 , Quaestio, f o . 6 2 v ) . T h e general principle is that 'the w h o l e c o m m u n i t y has p o w e r to depose the k i n g i f he rules not to the a d v a n t a g e but the destruction o f the p o l i t y ' ( A l m a i n 1 5 1 2 , sig. A i v ) . W h e n this is applied to the c h u r c h it means that ' i f such p o w e r w e r e conferred o n the p o p e that he c o u l d n o t be punished b y the w h o l e c h u r c h e v e n i f he exercised it destructively and not beneficially, then the ecclesiastical p o l i t y w o u l d be less w e l l ordered than civil society' (sig. C i v ) . A n d this is i n c o n c e i v a b l e in a p o l i t y constituted b y the legislator optimus, Christ h i m s e l f (cf. M a i r 1 5 1 8 , fo. 6 9 V A ) . M a i r again, w r i t i n g in less i m m e d i a t e l y p o l e m i c a l circumstances than A l m a i n , analyses m o r e fully s o m e o f the theoretical implications o f the a r g u m e n t . It means, he says, that there are, strictly speaking, t w o sorts or levels o f political p o w e r in a p r o p e r l y ordered c o m m u n i t y . T h e r e is, regulariter, the ordinary authority o f the ruler, supreme as he is o v e r e v e r y individual or corporate m e m b e r o f 25

25. T h e Aquinas reference is to na nae, 65, 1; and cf. Burns 1983a, p. 372 n. 14.

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Scholasticism: survival and revival the ' m y s t i c a l b o d y ' . T h a t p o w e r , h o w e v e r , is in the end essentially instrumental or 'ministerial' in character: it is, casualiter — in certain eventualities - subordinate to the collective authority o f the c o m m u n i t y . T h e c o m m u n i t y necessarily acts t h r o u g h representatives - the c o u n c i l in the case o f the church, the estates in the t e m p o r a l realm and it has a l w a y s available in its proceres, its leading m e n , those w h o s e right and responsibility it is to act for the c o m m o n g o o d (see B u r n s 1981, p p . 38-40). B o t h M a i r and A l m a i n thus emphasise the close parallelism they see b e t w e e n the ecclesiastical and the civil p o l i t y . T h e y face p r o b l e m s here, to be considered later. First, it is i m p o r t a n t to note h o w M a i r , w r i t i n g m o r e discursively than A l m a i n , and as the author o f a w o r k — his Historia Majoris Britanniae (1521) — d e v o t e d to t e m p o r a l concerns, exhibits m o r e fully the political consequences o f the t h e o r y they b o t h e m b r a c e . In this c o n t e x t it b e c o m e s clear that the c o m m u n i t y , t h r o u g h its representatives, has p o w e r s at its disposal other than the reserve p o w e r o f deposition. T h e estates, in M a i r ' s understanding o f the matter, h a v e , for instance, the j u d i c i a l or quasijudicial function o f d e t e r m i n i n g disputes o v e r the r o y a l succession; their consent is needed for the i m p o s i t i o n o f taxes; and, t h o u g h legislation in general m a y best be left to the ruler in his role as wise legislator, g u i d e d b y counsel but in the end ' l a y i n g d o w n the l a w s authoritatively' (Mair 1528, fo. 85rB, 1530, fo. 98V, 1510, fo. i o o r B ) , there are, nonetheless, matters o n w h i c h the estates — and the c o u n c i l in the case o f the church — h a v e the right and the d u t y to ' i m p o s e b i n d i n g l a w s ' o n the ruler. T h e s e l a w s are in effect 'constitutional l a w s ' prescribing specific limits to the ruler's a u t h o r i t y . T h e c o m m u n i t y ' s p o w e r to i m p o s e such l a w s is an element in w h a t m a y reasonably be called its contituent p o w e r . T h a t t e r m is all the m o r e appropriate in v i e w o f the fact that the p o w e r extends to the right o f a free p e o p l e to choose and to c h a n g e the f o r m o f g o v e r n m e n t . A n d it is just here that the t h e o r y encounters a major difficulty, d u l y seized o n b y A l m a i n ' s antagonist in 1511—12. 26

27

H a d Cajetan confined h i m s e l f to a firm restatement ( w h i c h he does, o f course, p r o v i d e ) o f the papalist v i e w o f the church as a pure m o n a r c h y under the authority o f the p o p e , his w o r k w o u l d be a g o o d deal less interesting than it is for the history o f political ideas. In fact he does m o r e . Particularly in his 1 5 1 2 rejoinder to his critics, he carries the fight directly to 26. See Burns 1 9 8 1 , pp. 4 1 - 3 ; and for 'constitutional laws', M a i r 1 5 1 0 , fo. i o i v A : 'rex non debet imponere aliquid in humeris populi ultra leges regni . . . R e x deuincitur tenere leges consuetud inales regni.' 27. M a i r 1 5 1 8 , fo. 7 0 V B : 'Populus autem liber pro rationabili causa potest policiam mutare.'

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his adversaries. In d o i n g so he directly questions their fundamental claim that the v e r y nature o f m o n a r c h y — at least in its legitimate f o r m — not o n l y a l l o w e d but required the limits discussed a b o v e . A l m a i n , for instance, argued that there w a s n o contradiciton b e t w e e n m o n a r c h y in its best f o r m and the existence o f a juridical p o w e r independent o f the ruler ( A l m a i n , 1 5 1 8 , Expositio, m . v i , fos. 41—2). T o this k i n d o f a r g u m e n t Cajetan's response is that such arrangements do impair the m o n a r c h i c a l principle. T o claim for the c o m m u n i t y the p o w e r s claimed b y the conciliarists is in effect to say that such a c o m m u n i t y is g o v e r n e d , not m o n a r c h i c a l l y , but b y a regimen popular e. N o w this cannot be true o f the church, n o r is the church in any sense a libera communitas. A l m a i n and M a i r had a c k n o w l e d g e d that the church c o u l d n o t claim a free c o m m u n i t y ' s right to change the consti tutional order, and recognised that the papal authority c o u l d not be said to derive, like that o f t e m p o r a l rulers, f r o m the consent o f the people: 'a k i n g has authority f r o m the m e n o v e r w h o m he rules . . . but the p o p e is ordained b y G o d ' (Mair 1 5 1 8 , fo. 7 o r A ) . For Cajetan this is the difference that makes all the difference. H e is ready, e v e n eager to accept that in t e m p o r a l realms the c o m m u n i t y does enjoy the p o w e r s claimed for it b y his opponents — eager because he is concerned to assert as strongly as possible the u n i q u e l y divine character o f ecclesiastical authority. In d e v e l o p i n g his a r g u m e n t he puts f o r w a r d political ideas o f s o m e i m p o r t a n c e . Cajetan insists that to determine the location o f the 'casual' p o w e r in a political system is in effect to define its constitutional character. If that p o w e r rests w i t h the people, the system is fundamentally a regimen populare. C e r t a i n l y there can be, under such a system, a f o r m o f kingship or m o n a r c h i c a l rule; but h o w e v e r p o w e r f u l that rule m a y be, it lacks the final d e t e r m i n i n g authority, and the g o v e r n m e n t a l authority it w i e l d s is o n l y w h a t Cajetan calls regimen medium (Cajetan 1582, p. 52). E l s e w h e r e Cajetan makes a similar point, using the n o w m o r e familiar term ' e x e c u t i v e p o w e r ' to describe the authority in question, and distinguishing it f r o m potestas praeceptiva. T h e latter, he says, is w h a t Aquinas calls auctoritas regiminis (Hennig 1966, p. 24). It w a s , the a r g u m e n t runs, this ' p r e c e p t i v e ' p o w e r that w a s c o m m i t t e d to Peter, and therefore to the p o p e as Peter's successor; the other apostles — and therefore their successors, the bishops — received o n l y ' e x e c u t i v e ' p o w e r . T h i s sustains Cajetan's papalist ecclesiology. In its t e m p o r a l application, the a r g u m e n t a b o u t regimen medium b o t h supports the n o t i o n o f a prior, 'constituent' p o w e r and, arguably, foreshadows B o d i n ' s crucial distinction b e t w e e n s o v e r e i g n t y and g o v e r n m e n t . Cajetan's analysis goes further. H e a c k n o w l e d g e s that there are s o m e 152

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Scholasticism: survival and revival realms in w h i c h the k i n g is, like the p o p e , ordained or appointed b y G o d , whereas in other cases r o y a l authority is conferred b y the c o m m u n i t y . T h i s , h o w e v e r , makes n o difference, in his eyes, to the r o y a l p o w e r e n j o y e d b y the k i n g : in b o t h cases, and a l w a y s , political p o w e r in the t e m p o r a l order b e l o n g s in s o m e ultimate sense to the p e o p l e . T h e i m p o r t a n c e o f this a r g u m e n t , b o t h in itself and in relation to later d e v e l o p m e n t s , is evident. Cajetan is c o n c e r n e d to m a k e as absolute a distinction as he can b e t w e e n civil and ecclesiastical authority, so as to u n d e r m i n e the conciliarist exploitation o f their supposed similarity. T h a t assimilation w a s under attack elsewhere. G i o v a n n i Franceso P o g g i o (1442—1522), for instance, in his De potestate papae et concilii (probably published in 1512), insists that the ecclesiastical order is n o t a regimen politicum but a m o n a r c h y established b y Christ ( P o g g i o 1512?, sigs. [Hiv]v—[I 3]r). Cajetan, h o w e v e r , is prepared, it seems, to push his a r g u m e n t to the point o f saying in effect that all political authority in the t e m p o r a l order is, in Sir J o h n Fortescue's t e r m i n o l o g y , politicum, e v e n if it is also in m a n y cases regale ( c f , e.g., Cajetan 1582, p . 54). 28

T h e r e is thus a curious c o n v e r g e n c e , so far as t e m p o r a l society is concerned, b e t w e e n the t w o o p p o s i n g sides in the ecclesiological debate. N e i t h e r Cajetan n o r his conciliarist opponents, for one thing, saw any place for an absolute, independent, s o v e r e i g n p o w e r in the state. A n d if, in the church, Cajetan (like another T h o m i s t t w o generations earlier, Juan de T o r q u e m a d a ) envisaged a m o r e p u r e l y m o n a r c h i c a l r e g i m e than M a i r or A l m a i n c o u l d h a v e accepted, he w o u l d doubtless h a v e agreed w i t h t h e m that a fully absolute p o w e r - suprema potestas regularis et casualis independens (Mair 1 5 1 8 , f o . 7 i r ) - b e l o n g e d , in the church, to C h r i s t alone. W h e t h e r such a p o w e r subsisted, or c o u l d subsist, in the state, and i f so w h e r e it w a s l o d g e d , w e r e questions as y e t unresolved in the political t h o u g h t o f the early sixteenth century. Cajetan's role as the leading T h o m i s t o f his generation has already been m e n t i o n e d ; but the i m p o r t a n c e o f that role in the T h o m i s t r e v i v a l w h i c h coincided w i t h the early stages o f the Protestant R e f o r m a t i o n needs further emphasis. His c o m m e n t a r i e s o n St T h o m a s ' Summa, first published b e t w e e n 1 5 1 4 and 1 5 1 9 , soon established the position as standard authorities they w e r e to retain for the best part o f 400 years after his death in 1534. In the third quarter o f the sixteenth century, h o w e v e r , the m o s t

28. This is mistakenly attributed b y B l a c k (1970, pp. 54n, 5 4 - 6 , etc., as index) to P o g g i o Bracciolini. T h e author was in fact one o f the great humanist's five legitimate sons.

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Counter-Renaissance

i m p o r t a n t and creative T h o m i s t t h i n k i n g w a s d o n e neither in Italy n o r in France but in Spain. T h e r e is, it is true, a significant c o n n e c t i o n w i t h the Paris o f M a i r and A l m a i n . M a i r — w h o incidentally o w n e d a c o p y o f Part m o f A q u i n a s ' Summa w i t h Cajetan's c o m m e n t a r i e s — had a substantial n u m b e r o f Spanish pupils, several o f w h o m also c a m e under the influence o f Peter C r o c k a e r t and contributed to the r e v i v e d study o f St T h o m a s in the 1 5 2 0 s . It w a s in this m i l i e u that Francisco de V i t o r i a and D o m i n g o de S o t o pursued their Parisian studies before returning to exert their seminal influence in the universities o f Spain. A b r i e f note o n their teaching — T h o m i s t in its essential character, y e t revealing consciousness o f the insights o f n o m i n a l i s m and (especially, i f debatably, in V i t o r i a ' s case) o f h u m a n i s m — m a y serve as a c o n c l u s i o n to this chapter. W i t h i n the f r a m e w o r k o f a firm, t h o u g h n o t entirely u n p r o b l e m a t i c , restatement o f the T h o m i s t t h e o r y o f l a w , and in particular o f natural l a w ( H a m i l t o n 1963, p p . 1 4 - 1 8 ; Skinner 1978,11, p p . 1 4 9 - 5 4 ) , V i t o r i a and S o t o e x p o u n d a v i e w o f political society strikingly similar in s o m e respects to w h a t w e h a v e seen in A l m a i n . T h u s the c o m m u n i t y is regarded as naturally e n d o w e d w i t h an inalienable right to safeguard its o w n interests — a right a n a l o g o u s to that w h i c h is e n j o y e d b y individuals (Vitoria, cit. H a m i l t o n 1963, p p . 34—5). T h i s right, h o w e v e r , can be effectively exercised o n l y b y a g o v e r n i n g authority to w h i c h the c o m m u n i t y has transferred its G o d g i v e n but c o l l e c t i v e l y inoperative p o w e r . A t this point a d i v e r g e n c e f r o m positions like those o f M a i r and A l m a i n manifests itself. It had been a conciliarist c o m m o n p l a c e that the ruler, w h i l e supreme o v e r e v e r y i n d i v i d u a l subject, w a s subordinate to his subjects as a collective b o d y — the principle maior singulia minor universis. V i t o r i a rejects that principle, h o l d i n g that in a 'true m o n a r c h y ' the k i n g 'is n o t o n l y a b o v e all individual citizens, but also a b o v e the c o m m u n i t y as a w h o l e ' ( H a m i l t o n 1963, p . 39). T h e distinction b e t w e e n 'true m o n a r c h y ' and forms o f m o n a r c h i c a l g o v e r n m e n t in states that are essentially ' p o p u l a r ' is reminiscent o f the v i e w taken b y Cajetan; b u t it is n o t w h o l l y clear w h e t h e r the t e r m 'true' implies the absolutism o f w h a t James V I and I w a s to call 'free m o n a r c h y ' . T h e idea that political p o w e r as such a l w a y s in s o m e sense inheres in the c o m m u n i t y is d e e p l y ingrained in the T h o m i s t t h i n k i n g o f the early sixteenth century. T h i s b e c o m e s especially clear w h e n V i t o r i a discusses the crucial p r o b l e m o f ' c h u r c h and state'. L i k e Cajetan he insists o n the distinction b e t w e e n an 29

30

29. D u r k a n and R o s s 1 9 6 1 , p. 128. 30. See, in addition to R e n a u d e t 1 9 5 3 , Villoslada 1938 and Farge 1980, p p . 4 2 4 - 3 1 (on Vitoria).

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Scholasticism: survival and revival ecclesiastical p o w e r conferred directly b y Christ and a civil p o w e r transferred to the ruler b y the c o m m u n i t y to w h i c h it b e l o n g s . Y e t his position is hardly one o f e x t r e m e papalism. C e r t a i n l y he rejects the conciliarist v i e w , a r g u i n g that the authority o f councils is derived, n o t f r o m their status as representing the w h o l e b o d y o f the faithful, but rather f r o m the decision o f the bishops to set u p such an authority. O n the issue b e t w e e n conciliar authority, so u n d e r t o o d , and papal p o w e r he remains deliber ately neutral ( H a m i l t o n 1963, pp.71—4). T h e Spanish D o m i n i c a n s o f this period raised issues that w e r e to be further discussed and elaborated b y their Jesuit successors, Luis de M o l i n a and Suarez, and, in the Italy o f the C o u n t e r - R e f o r m a t i o n , b y B e l l a r m i n e . T h a t p o s t - m e d i e v a l scholasticism lies b e y o n d the scope o f this chapter (cf. b e l o w , p p . 237—40, 292—7). V i t o r i a and S o t o are transitional figures; it is significant that b o t h l i v e d o n into the period o f the C o u n c i l o f T r e n t (Soto participated in it), but neither s u r v i v e d to see its conclusion. T h e u n r e s o l v e d p r o b l e m s in their t h o u g h t are perhaps s y m p t o m a t i c o f a m o r e general tension in late m e d i e v a l scholastic political theory. If w e return, finally, to M a i r , w e m a y see that tension exhibited in a n u m b e r o f w a y s . In his t h e o r y o f dominium there is the contrast b e t w e e n a w i d e - r a n g i n g individual right and a circumscribed political authority: 'the k i n g does not h a v e such unrestricted p o w e r (ita liberum dominium) o v e r his realm as I h a v e o v e r m y b i b l e ' (Mair 1 5 1 6 , f o . 7 6 r B ) . A t the same time the corporate, ' c o m m u n i t a r i a n ' authority f r o m w h i c h limits to political p o w e r are d e r i v e d still leaves the ruler free to w i e l d a w i d e - r a n g i n g c o m p e t e n c e : 'it is better to h a v e one supreme m o n a r c h in the realm, b y w h o s e w i l l all matters are g o v e r n e d , p r o v i d e d that he takes counsel o f wise m e n and then, w h e t h e r they agree or dissent, decides as he pleases' (Mair 1509, fo. 8 7 r B ) . In an age o f e x p a n d i n g r o y a l p o w e r , scholasticism yielded n o clear resolution o f the d e v e l o p i n g issue b e t w e e n 'absolutism' and 'constitutionalism'.

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II Religion, civil government, and the debate on constitutions

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6 Christian obedience and authority, 1520-1550 FRANCIS

OAKLEY

Continuities w i t h the m e d i e v a l past are n o less evident in the political ideas to w h i c h the Protestant R e f o r m a t i o n g a v e rise than in the religious and t h e o l o g i c a l c o m m i t m e n t s that characterised it. In b o t h respects, h o w e v e r , it constituted also a striking break w i t h the centuries p r e c e d i n g , and scholars h a v e d e v o t e d an e n o r m o u s a m o u n t o f attention to w r e s t l i n g w i t h the p r o b l e m o f continuities and discontinuities. B y a long-established route, the characteristic approach to M a r t i n Luther's startling departures in w o r d and deed f r o m the n o r m s o f m e d i e v a l o r t h o d o x y and the d o m i n a n t patterns o f late m e d i e v a l political t h i n k i n g sets out f r o m the decline o f the later m e d i e v a l p a p a c y into legalism, fiscalism, confusion, and c o r r u p t i o n . E n c o m p a s s i n g the onset o f the Great Schism in 1378, the e m e r g e n c e in the conciliar m o v e m e n t o f a constitutionalist opposition to the jurisdictional claims o f R o m e and in the policies o f E u r o p e a n rulers o f a set o f c o m p a r a b l e claims that o v e r l a p p e d and rivalled t h e m , that a p p r o a c h m o v e s o n to the m o r e radical challenges posed to the w h o l e hierarchical order o f the church b y such heretics as the Waldensians, Wycliffites, and Hussites. It takes special note o f the rise o f the nominalist t h e o l o g y and o f the retreat f r o m the externals o f religion reflected in the m y s t i c i s m o f G e r m a n y , the Netherlands, and E n g l a n d , as w e l l as in the later flowering o f the devotio moderna and the humanist philosophia Christi. A n d it terminates o n the e v e o f Luther's great challenge w i t h an emphasis o n the d e e p e n i n g tension b e t w e e n the intense piety — 'churchliness' e v e n — o f the populace and the increasing calcification o f the ecclesiastical establishment, and a c o n c o m i tant emphasis o n the g r o w t h o f anti-clericalism ( M o e l l e r 1965, pp. 3—31, 1966, p p . 32-44). T h e f o l l o w i n g abbreviations are used in this chapter: LW Luther's Works, ed. J. Pelikan et ai, 54 vols, marer Ausgabe) ( W e i m a r : H . B o h l a u , 1883-1983) (St Louis: C o n c o r d i a Publishing House, 1 9 5 5 - 7 6 ) WA, DB Martin Luthers Werke. Die deutsche WA Martin Luthers Werke, 92 vols, in 105 {WeiBibel ( W e i m a r : B o h l a u , 1 9 0 6 - 6 1 )

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T h i s traditional approach should be neither i g n o r e d n o r p r i v i l e g e d . It can tell us m u c h about the ease w i t h w h i c h the secular rulers o f E u r o p e w e r e able to assert a s o v e r e i g n jurisdiction o v e r their national or territorial churches, and also about the w a r m t h and enthusiasm w i t h w h i c h Luther's v i e w s w e r e initially received — especially b y the l o w e r orders in the cities o f n o r t h e r n G e r m a n y and b y those o f humanist sympathies. M a n y o f the latter, indeed, b y a 'constructive misunderstanding' they later had reason to regret ( M o e l l e r 1972, p . 29) t o o k Luther to be one o f themselves, m e r e l y a m o r e passionate and providentially effective e x p o n e n t o f their o w n Erasmian ideals. A t the same time, this approach sheds little light u p o n the religious f o r m a t i o n o f Luther himself, or u p o n the nature o f those p r o f o u n d and n o v e l v i e w s w h i c h he p r o p a g a t e d w i t h such c o n v i c t i o n , passion, and force. In c o m m o n w i t h those o f his f o l l o w e r s w h o best understood h i m , Luther w a s a g o o d deal m o r e than a m e r e critic o f the late m e d i e v a l ecclesiastical order. T h e wellsprings o f his religiosity lay less, that is, in any reaction to the m e d i e v a l C a t h o l i c system at its w e a k e s t and most decadent, than in the p r o f o u n d inadequacies he attributed to it e v e n at its strongest and m o s t pure. T o c o n v e y that point adequately it w i l l be necessary to construct a different t y p e o f interpretative c o n t e x t , one that reaches out to e m b r a c e t h e o l o g i c a l d e v e l o p m e n t s matured l o n g before the troubles that o v e r t o o k the Latin church during the fourteenth and fifteenth centuries.

i

T h e o l o g i c a l and canonistic fundamentals

Despite the fact that the historical account in w h i c h it is e m b e d d e d is o p e n to criticism at m o r e than one point, a g o o d case can be m a d e for c h o o s i n g as one's point o f departure the distinction b e t w e e n church and sect that f o r m e d part o f the sociological t y p o l o g y elaborated l o n g a g o b y Ernst Troeltsch, sociologist, historian and t h e o l o g i a n (Troeltsch i 9 6 0 , 1 , pp. 334, 340—1, 11, p . 994). B y the ' c h u r c h ' T r o e l t s c h meant the t y p e o f s o c i o religious organisation that reaches out to c o m p r e h e n d and to Christianise society as a w h o l e , and that contrives to d o so b y manifesting a willingness to c o m p r o m i s e w i t h the m o r e s it finds e m b e d d e d already in society. A s a corollary, it foregoes any rigid insistence u p o n the subjective holiness o f its individual m e m b e r s , stressing instead its holiness as an institution, locus as it is o f the regenerative w o r k i n g o f the H o l y Spirit t h r o u g h the preaching o f the W o r d and the administration o f the sacraments. W h i l e the church thus strives to include the masses, the 'sect' resigns itself 160

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Christian obedience and authority, 1320—1350 to e x c l u d i n g t h e m . Setting u p as its g o a l the a c h i e v e m e n t o f the e x a c t i n g m o r a l ideal p r o c l a i m e d b y Jesus in the S e r m o n on the M o u n t , it b e c o m e s o f necessity a v o l u n t a r y society. D e e m p h a s i s i n g its sacramental p o w e r s , it eschews, a c c o r d i n g l y , all talk o f institutional sanctity, stressing instead the subjective holiness o f its individual m e m b e r s . D r i v e n to seek the purer maintenance o f its ideals in separated c o m m u n i t i e s subsisting at the margins o f society, it awaits the future d a w n i n g o f the m i l l e n n i u m , and, sometimes, w h e n the end o f the w o r l d seems i m m i n e n t and the establishment o f the k i n g d o m o f G o d o n earth w i t h i n its grasp, it feels justified in resorting to r e v o l u t i o n a r y v i o l e n c e in order to hasten that h a p p y culmination. For T r o e l t s c h , o f course, the terms ' c h u r c h ' and 'sect' refer, n o t to concrete historical entities existing in the real w o r l d , but rather to persistent tendencies in Christianity, inextricably i n t e r w o v e n in the course o f historical events. A n d i f 'the main stream o f Christian d e v e l o p m e n t ' , Protestant as w e l l as C a t h o l i c , flowed ' a l o n g the channel prepared b y the C h u r c h - t y p e ' , n e v e r w a s it confined m o r e fully w i t h i n that channel than it w a s in m e d i e v a l E u r o p e , w h e r e the sectarian element, so strongly represented in the early church, w a s effectively marginalised, and w h e r e , in the hierarchical Latin c h u r c h presided o v e r b y its papal theocrats, the c h u r c h - t y p e w a s m o s t purely realised and m o s t coherently d e v e l o p e d . T h e v e r y coherence o f that d e v e l o p m e n t presupposed the w o r k i n g o f t w o fundamental factors. T h e first w a s the progressive transformation o f Christianity in the years f o l l o w i n g Constantine's grant o f toleration from the proscribed cult o f a suspect m i n o r i t y into the empire's official religion, and o f the church f r o m a v o l u n t a r y private organisation into a public, allinclusive society, increasingly indistinguishable in its totality f r o m w h a t w e w o u l d call the state, and possessed o f an authority b o t h political and c o e r c i v e . T h e second factor w a s the crucial doctrinal departures o f the fourth, fifth, and sixth centuries that did so m u c h to enhance in the w o r l d o f Latin C a t h o l i c i s m the d i g n i t y and i m p o r t a n c e o f the priestly hierarchy. R e f l e c t i n g the m o r e juridical approach to the c h u r c h that distinguished the t h i n k i n g o f the Latin theologians f r o m their G r e e k counterparts, and reflecting also an assessment o f man's m o r a l capacities far g l o o m i e r than that current a m o n g the theologians o f the eastern church, these distinc tively western t h e o l o g i c a l tendencies c a m e t o g e t h e r in the t h i n k i n g o f St A u g u s t i n e o f H i p p o (354—430) in such a w a y as to set the agenda for m u c h o f subsequent western t h e o l o g i s i n g , Protestant as w e l l as C a t h o l i c . T h u s , in the w a k e o f his great controversies w i t h the Donatists and Pelagians, the n o r m o f o r t h o d o x y c a m e to e m b r a c e his anti-Donatist 161

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teaching o n the church, w i t h its non-sectarian emphasis o n the objective and the sacramental, and its insistence that the authenticity and holiness o f the sacramental channels o f divine grace depended u p o n the personal m o r a l worthiness neither o f minister n o r o f recipient. His harsh v i e w s o n nature and grace, h o w e v e r , w e r e admitted o n l y w i t h modifications that served to b r i n g t h e m into line w i t h his anti-Donatist doctrine o f the church. Endorsed in the authoritative position adopted in 529 b y the C o u n c i l o f O r a n g e w a s A u g u s t i n e ' s emphasis o n the devastating i m p a c t o f A d a m ' s original sin o n the religious and m o r a l capacities o f all his descendants. A l s o endorsed w a s the assertion that w i t h o u t s o m e prior gift o f divine grace m a n can d o n o t h i n g to please G o d , since e v e n the desire to believe presupposes the prevenient w o r k i n g s o f the H o l y Spirit. B u t there w a s n o m e n t i o n o f his doctrine o f irresistible grace, and the idea that G o d had predestined s o m e m e n to d a m n a t i o n w a s r o u n d l y c o n d e m n e d . It clearly lay w i t h i n man's p o w e r , therefore, to spurn the d i v i n e advances, and it w a s suggested o n l y a little less clearly that m a n retained s o m e p o w e r freely to cooperate w i t h G o d ' s grace, and, b y an assiduous exploitation o f the sacramental ministrations o f the visible church, to d o s o m e t h i n g , at least, to further his o w n salvation. It w a s this version o f A u g u s t i n i a n i s m , p a c k a g e d and popularised in the Latin w e s t b y the influential w r i t i n g s o f P o p e G r e g o r y the Great (590—604) and u n d e r p i n n i n g the authority and prestige o f the sacerdotal hierarchy (for m o s t o f the sacraments, to be efficacious, had to be administered b y the priesthood), that w a s to f o r m the b e d r o c k o f m e d i e v a l orthodoxy. R e c o g n i s i n g the public character o f the church's authority and attaching great i m p o r t a n c e to the sacerdotal and sacramental, m e d i e v a l thinkers d e v o t e d considerable effort to the analysis o f ecclesiastical p o w e r . F r o m the twelfth and thirteenth centuries o n w a r d , canon l a w y e r s b e g a n to e m p l o y in that effort ( t h o u g h sometimes in the teeth o f t h e o l o g i c a l opposition) categories and concepts d r a w n f r o m secular legal and political t h i n k i n g . B y the e v e o f the R e f o r m a t i o n — and the formulations o f the p r o m i n e n t Parisian t h e o l o g i a n , Jacques A l m a i n , m a y be taken as representative — it had b e c o m e c u s t o m a r y to distinguish ecclesiastical p o w e r into a p o w e r o f order Whereas (potestas ordinis) and a p o w e r o f jurisdiction (potestasjurisdictionis). the f o r m e r is the truly sacerdotal, sacramental p o w e r at w h o s e heart lies the mysterious p o w e r to m a k e present in the eucharist the 'true b o d y o f 1

1.

See A l m a i n , Espositio (1706), 1 0 1 9 D - 2 5 D , I O 6 8 A - C ; Tract, de auct. eccl. (1706), 9 7 9 D - 8 9 A . For useful discussions o f the distinction, see Dictionnaire de droit canonique 1 9 3 5 - 6 5 , > PP- 1 4 8 - 5 ° * s.v. ' O r d r e en droit canonique', v u , pp. 7 7 - 1 0 8 , s.v. ' P o u v o i r s de l'église'. VI

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Christian obedience and authority, 1520—1550 C h r i s t ' , the latter is the administrative, judicial, legislative (and, therefore, magisterial) p o w e r o v e r the church, the ' m y s t i c a l b o d y o f C h r i s t ' . T h e latter p o w e r , m o r e o v e r , w a s said to be t w o f o l d in that it w a s exercised o v e r b o t h the internal and the external f o r u m . T h e f o r m e r ( w h i c h A l m a i n calls the potestas jurisdictionis inforo interiori or, sometimes, inforo poenitentiali) is the p o w e r o f administering the sacraments to the faithful, and it is d e v o t e d to the private g o o d o f the individual. It is a p o w e r exercised a b o v e all b y means o f sacramental penance and can be exercised o n l y o v e r those w h o v o l u n t a r i l y submit themselves to its s w a y . T h a t is n o t the case, h o w e v e r , w i t h the p o w e r o f jurisdiction in the exterior or public f o r u m (potestas jurisdictionis inforo exteriori et publice), w h i c h is a c o e r c i v e p o w e r exercised e v e n o v e r the u n w i l l i n g , instituted b y C h r i s t ' w i t h the purpose o f c o m p e l l i n g the faithful to live in a c c o r d w i t h the evangelical l a w s ' , and to w h i c h it pertains 'to punish sins, confer benefices, p r o m u l g a t e l a w s (constitutiones), e x c o m m u n i c a t e , degrade, confer indulgences', and so o n . Late m e d i e v a l papalists and conciliarists alike had this latter p o w e r in m i n d w h e n they spoke o f the fullness o f p o w e r (plenitudo potestatis) in the church. It is, in effect, a truly g o v e r n m e n t a l p o w e r , one closely akin to that w i e l d e d b y t e m p o r a l rulers. Because o f that, A l m a i n notes, s o m e papalists w e r e t e m p t e d to o v e r e x t e n d it to such a degree as to engross e v e r y p r e r o g a t i v e pertaining to the secular prince, w h i l e Marsilius o f Padua denied it to be a p o w e r rightfully possessed at all b y the c h u r c h . B u t , in so d o i n g , A l m a i n insists, Marsilius 'deviated f r o m the faith' (Exposition, 1706, 1037D, 1041A, On Ecclesiastical Authority, 1706, 980D). 2

3

4

ii

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A m o n g the overextensions o f the p o w e r o f jurisdiction that A l m a i n dismissed as i m p r o p e r w a s the claim that it c o u l d be used to ameliorate b y i n d u l g e n c e the c o n d i t i o n o f souls presently in p u r g a t o r y — e x c e p t , he c o n c e d e d , m e r e l y ' b y w a y o f suffrage' (On Ecclesiastical Authority, 1706, 2. N o t e that b y the mid-twelfth century theologians had b e g u n to designate the eucharist, not as the corpus Christi mysticum, but as the verum corpus Christi. T h e former term was transferred n o w to the C h u r c h . B y A l m a i n ' s day it had acquired corporational and political associations and was being used almost as a s y n o n y m for corpus morale et politicum. See Lubac 1944, pp. 1 1 7 - 3 7 ; K a n t o r o w i c z 1 9 5 7 , pp.

193-206.

3. ' . . . [ Q ] u a n t u m ad Ecclesiasticam Potestatem juridicam et publicam, quae respicit F o r u m exterius, ad quam spectat peccata punire, conferre Beneficia, Constitutiones edere, e x c o m m u n i c a r e , degredare, Indulgentias c o n f e r r e . . . ' . Espositio (1706), 1024A. 4. For an analysis o f A l m a i n ' s v i e w s on the subject, see O a k l e y 1977, pp. 111—32; for those o f the h i g h papalist, Johannes de Turrecremata, see Izbicki 1 9 8 1 , pp. 48—51.

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9 8 1 B - 3 A ) . In O c t o b e r 1 5 1 7 , o n l y t w o years after A l m a i n ' s death, it w a s at that same contested claim that M a r t i n L u t h e r levelled s o m e o f the harshest o f his N i n e t y - F i v e Theses, the articles for academic disputations that c a m e to be seen in retrospect as the o p e n i n g salvo in his b o l d attack u p o n the pretensions o f R o m e . B u t the nature o f Luther's challenge to the m e d i e v a l C a t h o l i c order p r o v e d to be a m u c h m o r e radical one than that o p e n i n g salvo m i g h t suggest. M o v e d b y a heartfelt desire to strip a w a y the a l l - t o o h u m a n accretions o f centuries, to return to the unsullied gospel o f Christ as it speaks t h r o u g h the scriptures, and e m b o l d e n e d b y a reading o f those scriptures determined in m a r k e d degree b y the travail o f his o w n spiritual crisis, L u t h e r w a s led to call into question the church's jurisdictional p o w e r in the internal n o less than the external f o r u m , the p o w e r o f order n o less than the p o w e r o f jurisdiction, reaching b e y o n d those issues, indeed, to subvert those fundamental t h e o l o g i c a l equations h a m m e r e d o u t a thousand years earlier c o n c e r n i n g the respective roles in the salvific process o f h u m a n effort and divine grace. T h a t such w a s the case b e c a m e increasingly clear to L u t h e r h i m s e l f d u r i n g the critical h a l f - d o z e n years subsequent to the posting o f his theses: years m a r k e d b y the furore that b r o k e o u t w h e n those theses w e r e trans lated into the vernacular and w i d e l y publicised, b y the disputations and interrogations that culminated in papal c o n d e m n a t i o n and imperial ban, and b y the sustained burst o f literary activity that reached its peak in 1520 w h e n he p r o d u c e d the four historic w o r k s : The Freedom of the Christian, The Babylonian Captivity of the Church, Address to the Christian Nobility, On the Papacy at Rome. S o clear w a s it, indeed, that w h e n r e p l y i n g later o n to Erasmus' tract, On Free Choice of the Will (1524), he c o n c l u d e d b y praising the latter because, 'unlike all the rest, y o u alone h a v e attacked the real issue, the essence o f the matter in dispute, and h a v e n o t w e a r i e d m e w i t h irrelevancies a b o u t the P a p a c y , p u r g a t o r y , indulgences and such like trifles' (Bondage of the Will: LW, x x x m p. 294; WA, x v i n , p. 786). T h a t reply w a s framed in the b o o k that L u t h e r h i m s e l f considered to be his best t h e o l o g i c a l w o r k . It constituted a fierce and u n c o m p r o m i s i n g l y A u g u s t i n i a n rejection o f the m o d e r a t e and characteristically humanistic case Erasmus had m a d e for a c c o r d i n g , in the process o f salvation and in response to the p r o m p t i n g o f divine grace, s o m e m o d e s t role to the free w i l l o f m a n , for attributing at least ' s o m e t h i n g to h u m a n choice w h i c h has n o t w i t h d r a w n itself f r o m the grace o f G o d ' (On Free Choice, 1969, p. 90). S u c h c r a v e n qualifications w e r e perfectly traditional, and t h e y signal the line Erasmus w a s finally c o m m i t t e d to d r a w i n g b e t w e e n h i m s e l f and 164

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Christian obedience and authority, 1520—1550 Luther. B u t the latter w a s unable to conceal his impatience w i t h t h e m . Instead, he e v o k e d A u g u s t i n e ' s harsh doctrine o f original sin and his great eschatological vision o f m a n k i n d as d i v i d e d until the D a y o f J u d g e m e n t into t w o o p p o s e d c o m m u n i t i e s , invisible here and n o w because their memberships are ineradicably intertwined, but k n o w n nonetheless to G o d . H e spoke o f a k i n g d o m o f G o d (regnum Dei) to w h i c h true Christians b e l o n g , and o f a k i n g d o m o f Satan (regnum Satanaejdiaboli) into w h i c h are gathered the rest o f m a n k i n d . B e t w e e n those k i n g d o m s , he insisted, 'there is n o m i d d l e k i n g d o m ' . T h e y are m u t u a l l y and perpetually in conflict w i t h each other (Bondage of the Will: LW, x x x m , p . 227; WA, x v m , p . 743). O n l y w i t h the D a y o f J u d g e m e n t w i l l Satan finally be routed and Christ c o m e to reign in g l o r y . U n t i l then, the h u m a n w i l l is like a beast o v e r w h i c h t w o riders contend. W e are 'captive, subject, and slave either o f the w i l l o f G o d or the w i l l o f Satan' (LW, x x x m , p. 70; WA, x v m , p. 638). If w e are fortunate e n o u g h to be 'delivered f r o m the d o m i n i o n o f darkness' it is not b y our o w n strength but b y the grace o f G o d , t h r o u g h w h i c h alone citizenship in the regnum Dei is granted. For once 'the f o r e k n o w l e d g e and o m n i p o t e n c e o f G o d are accepted' it is necessary to c o n c l u d e that ' w e are under necessity'. Indeed, w e must g o to extremes, d e n y free w i l l altogether, and ascribe e v e r y t h i n g to G o d (LW, x x x m , p p . 227, 190; WA, x v m , p p . 782, 7 1 9 ) . Despite such e x t r e m e formulations, h o w e v e r , and n o t w i t h s t a n d i n g the c o m m i t m e n t to the doctrine o f d o u b l e predestination that they u n d o u b t e d l y entail, it w o u l d be w r o n g to c o n c l u d e that the desire to safeguard the divine o m n i p o t e n c e w a s the m o t i v a t i n g force in Luther's thinking or that he subscribed to any sort o f philosophical determinism. W i t h regard to ' w h a t is beneath h i m ' , the m u n d a n e activities o f d a y - t o - d a y life, he w a s perfectly w i l l i n g to c o n c e d e free w i l l to m a n . It w a s o n l y in 'matters pertaining to salvation or d a m n a t i o n ' that he utterly denied it (LW, x x x m , p. 70; WA, x v m , p. 638). N o r w o u l d it be correct to v i e w the g r i m equations o f divine election as the p i v o t u p o n w h i c h his t h e o l o g y turned. For h i m , the doctrine o f election e v o k e d G o d ' s forgiveness rather than his w r a t h , it w a s a source o f h o p e rather than o f fear, a conclusion rather than a premise. T h a t premise lay elsewhere, in the doctrine o f justification b y faith, the principle that shaped his entire t h e o l o g y and i n f o r m e d his social and political thinking. T o that transformative insight he had attained o n l y after years o f bitter experience as a d e v o u t m o n k w h o had faithfully f o l l o w e d the m e d i e v a l prescriptions for seeking righteousness b y w o r k s , exhausting the ascetic exercises and sacramental remedies available 165

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to h i m in an anxious but ultimately unsuccessful quest for an abiding assurance o f G o d ' s forgiveness. T o such a degree did the quest fail, indeed, as he h i m s e l f tells us, that he had m o r e than once been ' b r o u g h t to the v e r y depth and abyss o f despair, so that I w i s h e d I had n e v e r been b o r n a m a n ' (LW, x x x m , p. 190; WA, x v m , p. 7 1 9 ; cf. LW, x x x m , p p . 288-9; WA, x v m , p. 783). W e h a v e it o n Luther's o w n later (and not a l w a y s reliable) testimony that the critical b r e a k t h r o u g h occurred around 1518—19, and that it i n v o l v e d the startled but ecstatic r e c o g n i t i o n that the 'justice' or 'righteousness o f G o d ' (justitia Dei) c o u l d m e a n s o m e t h i n g other than that active punishing justice associated w i t h the g r i m fact that w e are b o u n d to the prescriptions o f the O l d T e s t a m e n t l a w e v e n w h i l e , as slaves to sin, w e inevitably fall short o f those prescriptions. H e had been driven to the e d g e o f final despair w h e n his reading o f Paul's Epistle to the R o m a n s (1:16—17) had led h i m to d o u b t that the righteousness o f G o d revealed b y the gospel could be a n y t h i n g other than that punishing justice. B u t then it had d a w n e d o n h i m that the justice o f G o d revealed in the gospel must be interpreted otherwise, as the salvific gift that G o d b e s t o w s u p o n his chosen ones, as the 'passive righteousness' b y w h i c h the merciful G o d justifies us t h r o u g h faith. A n d w i t h that critical insight, Luther says, 'I felt as i f I w a s altogether b o r n again and had entered into Paradise itself t h r o u g h o p e n gates' (preface to the Latin w r i t i n g s , 1565: LW, x x x i v , p. 337; WA, LIV, p. 186). Scholars continue to w r a n g l e about the dating o f that m o m e n t and the i m p o r t a n c e to be attributed to it. S o m e h a v e pushed it b a c k as far as 1513—14. O t h e r s h a v e shied a w a y f r o m the w h o l e idea o f l i n k i n g Luther's mature doctrine o f justification b y faith w i t h any sudden epiphany, and h a v e argued instead for seeing it as the o u t c o m e o f a gradual e v o l u t i o n in his thinking across the years 1513—19. A l l w o u l d concede, h o w e v e r , that his t e r m i n o l o g y shifted s o m e w h a t across those (and later) years, posing for his c o m m e n t a t o r s v e x i n g p r o b l e m s o f interpretation. A l l w o u l d agree, further, that his t h e o l o g y u n d e r w e n t considerable d e v e l o p m e n t during that period. B u t , w h a t e v e r the case, all w o u l d also agree that his a u t o b i o g r a p h i c a l remarks accurately register the seismic nature o f the spiritual shock in the life o f the believer generated b y the b r e a k t h r o u g h to the doctrine o f justification b y faith. A l t h o u g h s o m e o f his m o r e systematic formulations e m e r g e d o n l y in subsequent w r i t i n g s , w h a t L u t h e r did as his t h e o l o g y matured during the critical years f r o m 1518 to 1522 w a s to relate the dialectic nature o f his o w n religious experience (induced b y the antinomies o f sin and grace, despair and faith, divine w r a t h and divine m e r c y ) to a c o m p a r a b l e dialectic 166

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Christian obedience and authority, 1520—1550 b e t w e e n O l d T e s t a m e n t l a w and N e w T e s t a m e n t gospel. T h e c o m m a n d ments o f the O l d T e s t a m e n t 'are intended to teach m a n to k n o w himself, that t h r o u g h t h e m he m a y recognise his inability to d o g o o d and despair o f his o w n ability', m a y learn the bitter lesson, indeed, that left to his o w n m o r a l striving there is 'in h i m s e l f n o t h i n g w h e r e b y he m a y be justified and saved' (Freedom of the Christian: LW, x x x i , p. 348; WA, v n , p. 52). Salvation c o m e s instead f r o m a b o v e , b e s t o w e d as a gratuitous gift u p o n those true Christians w h o m G o d , o f his incomprehensible m e r c y , has chosen to deliver f r o m b o n d a g e to Satan. A n d it is in the N e w T e s t a m e n t , in virtue o f Christ's great sacrifice o n the cross, that G o d reveals h i m s e l f as a f o r g i v i n g and merciful father w h o promises m a n that the justification w h i c h has eluded h i m w h i l e he struggled 'to fulfil all the w o r k s o f the l a w ' w i l l n o w be a c c o m p l i s h e d ' q u i c k l y and easily t h r o u g h faith' (LW, x x x i , p. 349; WA, VII, p. 53). It must a l w a y s be r e m e m b e r e d , o f course, that true faith reflects neither h u m a n choice n o r h u m a n a c h i e v e m e n t . It is, instead, a gift o f G o d , 'a divine w o r k in us, w h i c h changes us and makes us to be b o r n a n e w o f G o d . . . , makes us altogether different m e n in heart and spirit and m i n d and in all our p o w e r s , and it brings w i t h it the H o l y Spirit' (Preface to Romans: LW, x x x v , p. 370; WA, DB, 7, 7). T h e formula 'salvation b y grace alone t h r o u g h faith' has often been suggested as a helpful substitute for the expression 'justification b y faith'. W h a t the idea entailed w a s the a b a n d o n m e n t o f Luther's o w n earlier patristic and m e d i e v a l v i e w o f justification as a gradual and lifelong process o f effortful spiritual regeneration to be c o m p l e t e d o n l y in the n e x t w o r l d . Instead, justification b y the f o r g i v i n g l o v e o f G o d in C h r i s t w a s n o w v i e w e d as a present reality, and the Christian life o f true sanctification understood, not as a laborious sine qua non for salvation, but rather as its effect, ' G o o d w o r k s d o not m a k e a g o o d m a n , but a g o o d m a n does g o o d w o r k s . ' A n d 'as faith makes m a n a believer and righteous, so faith does g o o d w o r k s ' (Freedom of the Christian: LW, x x x i , p. 361; WA, v n , p. 613). Possessed n o w o f Christian liberty, freed f r o m the b o n d a g e o f the l a w and the c o r r u p t i n g i m p e r a t i v e to w o r k out his o w n salvation, the believer w a s liberated likewise f r o m the claims the c h u r c h had traditionally m a d e to mediate b e t w e e n h i m and his creator. Indeed, w i t h justification w h o l l y a divine gift and an instant reality c o n d i t i o n e d o n l y b y faith, the c h u r c h in its innermost essence c o u l d be n o t h i n g other than the c o m m u n i o n o f the saints, the spiritual b o d y o f the elect. A n d , in its manifestation here o n earth, that church c o u l d b e n o t h i n g other than the c o m m u n i t y o f believers, distinguishable b y the fact that in it one can find the W o r d truly preached 167

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and the sacraments r i g h t l y administered. T h o s e sacraments, m o r e o v e r , w e r e n o w o n scriptural g r o u n d s reduced in n u m b e r to t w o and interpreted, n o t as indispensable channels o f grace but s i m p l y as visible testimonies to the W o r d . A s a result, their centrality in the process o f salvation w a s denied, and, w i t h it, the a g e - o l d hierarchical o r d e r i n g o f the church. T h e dismissal as unscriptural o f the sacrament o f orders, the assertion that all true Christians share equally b y faith in Christ's kingship and priesthood, the erasure, therefore, o f the n o t i o n that the c l e r g y constituted a spiritual estate distinct f r o m the laity and superior to t h e m , the r e d u n d a n c y o f the monastic v o c a t i o n for a belief-system in terms o f w h i c h not e v e n the m o s t strenuous o f m o r a l strivings c o u l d affect one's eternal destiny — all o f these represented crucial departures f r o m the n o r m s o f m e d i e v a l o r t h o d o x y . T h e y served to obliterate the traditional distinction b e t w e e n c l e r g y and laity, to reduce the ministry to the functional status o f one d i v i n e l y ordered calling a m o n g m a n y , and to lay the foundations for a b o d y o f political t h i n k i n g m a r k e d l y different f r o m that d o m i n a n t in the centuries i m m e d i ately preceding. T h e k e y to that difference is to be found in the c o m p l e x w a y in w h i c h , at least f r o m 1522—3 o n w a r d s , L u t h e r c o n c e i v e d o f the setting in w h i c h m a n lives his life. H a d that setting been framed totally b y his vision o f the great eschatological struggle b e t w e e n the t w o w a r r i n g k i n g d o m s , w i t h the true Christians arrayed as citizens o f the regnum Dei and the rest o f m a n k i n d subjected, as b o n d s m e n o f Satan, to the regnum diaboli, things w o u l d doubtless h a v e been o t h e r w i s e . T h e n , his political t h i n k i n g m i g h t h a v e focused almost e x c l u s i v e l y u p o n the necessary o r d e r i n g in this w o r l d o f the affairs o f those w h o w e r e n o t true Christians and w h o w o u l d destroy one another w e r e they n o t c o e r c e d into s o m e semblance o f order. T h i s w a s all the m o r e likely, indeed, in that Luther, just as A u g u s t i n e before h i m , saw an intimate c o n n e c t i o n b e t w e e n the p o w e r s and principalities o f this w o r l d and the s o v e r e i g n s w a y o f the regnum diaboli o v e r the hearts and minds o f the b u l k o f m a n k i n d , i n c l u d i n g s o m e w h o m a k e an o u t w a r d profession o f Christianity but w h o are n o t destined to be n u m b e r e d in the b o d y o f the elect. T h i s again w a s all the m o r e to be e x p e c t e d in that f r o m time to t i m e he appeared to be suggesting that the c o e r c i v e p o w e r o f the t e m p o r a l g o v e r n m e n t exists o n l y to cabin and confine the citizens o f the regnum diaboli and that true Christians are n o t subject to its s w a y , or, at least, are so subject o n l y b y virtue o f the Christian l o v e that impels t h e m to a v o i d g i v i n g (by their o w n rejection o f its authority) a bad e x a m p l e to the n e i g h b o u r w h o needs the discipline o f c o e r c i v e g o v e r n m e n t . 168

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H a d this been the c o n t r o l l i n g element in his t h i n k i n g , his political teaching w o u l d h a v e been s o m e t h i n g akin to that o f those Anabaptists w h o insisted that true Christians w e r e n o t to be subject to the rule o f the t e m p o r a l s w o r d but to that o f the W o r d a b o v e . B u t it w a s n o t the c o n t r o l l i n g element. T h a t role is p l a y e d , instead, b y his crucial discrimina tion in Christian m a n o f t w o distinct natures, the c o n c o m i t a n t distinction he d r a w s f r o m 1522—3 o n w a r d s b e t w e e n the t w o orders or realms (Reiche) G o d has established for man's existence in this w o r l d , and the related (indeed, o v e r l a p p i n g ) distinction he d r a w s b e t w e e n the t w o d i v i n e l y instituted orders o f g o v e r n m e n t (Regimente) pertaining to those realms ( C a r g i l l T h o m p s o n 1980, p p . 4 2 - 5 9 ; C r a n z 1959, p p . 1 1 3 - 7 3 ) . T h e Christian, Luther insists, is at the same time b o t h righteous and a sinner (simul Justus et peccator; semper peccator, semper Justus — Lectures on Romans: Scholia: LW, x x v , p. 332 and 434; WA, LVI, p p . 343 and 442). In saying that, he means that t h r o u g h faith the Christian stands before G o d (coram Deo) as w h o l l y righteous here and n o w , because G o d o f his gratuitous m e r c y n o l o n g e r imputes his sins to h i m . In relation to G o d , he is m a d e a n e w m a n , a spiritual person, t h r o u g h Christ w h o l l y righteous. A s such, he b e l o n g s to that spiritual order or realm (das geistliche Reich) w h i c h pertains solely to the direct relationship b e t w e e n m a n and G o d . A n d , as such, he is subject o f G o d ' s spiritual g o v e r n a n c e (das geistliche Regiment), an i n w a r d g o v e r n a n c e o v e r the heart w h i c h G o d exercises in this w o r l d , n o t b y the d e p l o y m e n t o f c o e r c i v e force, but rather via the W o r d and its p r o c l a m a t i o n t h r o u g h preaching and the sacraments. E v e n in this w o r l d , as a consequence o f his c o m p l e t e justification, the Christian is g r a d u a l l y b e i n g sanctified. B u t as a Christian in this w o r l d , n o m a n can be solely a spiritual person. A s a natural creature, w i t h all the needs and proclivities pertaining to that status, he is subject to the l a w s that g o v e r n the w o r l d o f nature. Further than that, as a natural creature w h o is also a h u m a n b e i n g , he is a Weltperson, a person w h o exists in relation to others as w e l l as to G o d , and one w h o still reels under the i m p a c t o f original sin. If he has been f o r g i v e n , it is b y n o means because he is sinless, but in spite o f the sins he still, w i l l y - n i l l y , c o m m i t s . A s such a person, and n o less than his u n r e d e e m e d f e l l o w m e n , he b e l o n g s n o t o n l y to the spiritual but also to the t e m p o r a l realm (das weltliche Reich), and is subject to the d i v i n e l y instituted t e m p o r a l g o v e r n a n c e (das weltliche Regiment) that embraces the w o r l d o f h u m a n society as w e l l as o f nature, w o r k i n g , as a result, to b r i n g a b o u t a t y p e o f justice. B u t this is not, L u t h e r insists, that salvific justice w h i c h is taught b y the gospel and makes m e n righteous before G o d , for 169

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that c o m e s o n l y t h r o u g h faith. Instead, it is a civil, or 'external' justice, w h i c h concerns o n l y the o u t w a r d actions o f m e n . It is 'to be sought in offices and w o r k s ' (Whether Soldiers, too, Can be Saved: LW, XLVI, p . 95; WA, x i x , p. 625), and is taught b y reason and the natural l a w that is imprinted in the hearts o f all m e n , pagan n o less than Christian, u n r e d e e m e d as w e l l as r e d e e m e d . T h i s is the source o f the m o s t striking emphases o f Luther's political t h e o l o g y , emphases that served to w r e n c h t h i n k i n g about political life out o f the orbit in w h i c h it had r e v o l v e d during the late m i d d l e ages. F o u r in all, these emphases inserted a m a r k e d discontinuity into the history o f political t h o u g h t and set the agenda in terms o f w h i c h political thinkers, for a century and m o r e , w e r e to g o about their business. First a m o n g these emphases w a s the v e r y fact that his t h i n k i n g about political life w a s , indeed, a political theology, o n e continuous w i t h his great t h e o l o g y o f salvation, and, in c o m m o n w i t h that b o d y o f t h o u g h t , g r o u n d e d in a heartfelt w i s h to return to the pure Christian vision c o n v e y e d b y the scriptures and especially b y the Pauline epistles. T h a t he should so often e v o k e a scriptural w a r r a n t ( R o m a n s 2:14—15) for the n o t i o n that there is a natural l a w u n d e r p i n n i n g the external justice o f the t e m p o r a l order is consistent w i t h that emphasis. S o , t o o , is the fundamental and h i g h l y influential i m p o r t a n c e he attached to the authority o f the N e w T e s t a m e n t in the determination o f questions pertaining to the political life. T h e second emphasis w a s his denial to the c h u r c h o f any p o w e r that c o u l d p r o p e r l y be called jurisdictional. T h a t church, it w i l l be recalled, w a s for h i m e m b o d i e d here o n earth, n o t in the f o r m o f any hierarchically ordered sacerdotal structure, but rather o f a c o m m u n i t y o f faithful Christians in w h i c h the W o r d is truly preached and the sacraments r i g h t l y administered — preached and administered, m o r e o v e r , b y ministers neither m o r e n o r less priests than other baptised Christians. H e n c e , as early as 1520, in his Address to the Christian Nobility, Luther dismissed the canon l a w as an a l l - t o o - h u m a n t o o l o f papal exploitation (LW, XLVI, p. 1 3 1 ; WA, v i , p. 409). H e n c e , also, he insisted that the function o f ministers in the c h u r c h was as instruments o f G o d ' s spiritual g o v e r n a n c e to p r o c l a i m the gospel, to r e b u k e sin — e v e n w h e n it occurs in h i g h places — and to a d m o n i s h the faithful to live in accordance w i t h Christ's teaching. O f c o e r c i v e p o w e r they had n o n e . T h e i r role w a s one o f service; their p o w e r , n o m o r e than the p o w e r o f persuasion; their authority, the authority o f the W o r d that addresses itself to the inner hearts o f m e n . T h i r d a m o n g these emphases w a s the c o n c o m i t a n t i m p o r t a n c e 170

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attached to t e m p o r a l rulers, w h o s e standing in society he greatly enhanced. T h i s w a s n o t o n l y because he n o w saw t h e m as possessing a m o n o p o l y o n the use o f c o e r c i v e force, but also because, as the masks (larvae) behind w h i c h G o d conceals the exercise o f his t e m p o r a l g o v e r n a n c e , they are to be o b e y e d as m u c h for conscience sake as for fear. ' C i v i l l a w and the s w o r d ' , he tells us - citing the t w o biblical texts o n w h i c h he placed so e n o r m o u s and influential an emphasis — are 'in the w o r l d b y G o d ' s w i l l and ordinance' ( R o m a n s 13:1—7; 1 Peter 2:13—14; Temporal Authority: To What Extent it Should be Obeyed: LW, XLV, p p . 85-6; WA, x i , p . 247). T e m p o r a l g o v e r n m e n t is a ' r e m e d y for sin' a d i v i n e l y instituted means to maintain at least an external peace, to stave off the anarchy that threatens in a fallen w o r l d to e n g u l f society. A n d , precisely because o f its divine ordination, it is neither to be abused b y an i m m o r a l ruler c o m m a n d i n g his subjects to d o w r o n g , n o r a c t i v e l y resisted b y subjects e v e n w h e n they g r o a n under the heel o f a tyrant. E v e n tyrants are ministers o f G o d , and they m a y (as Paul points out) be instruments o f his w r a t h . S h o u l d a ruler order w h a t is i m m o r a l , w e should r e m e m b e r that 'it is n o one's d u t y to d o w r o n g ; w e must o b e y G o d ( w h o desires the right) rather than m e n ' (LW, XL, p . 125; WA, x i , p . 277). S h o u l d he be a tyrant, w h i l e it is o u r religious d u t y to disobey h i m i f he c o m m a n d s us to d o w h a t is evil, it is also our religious d u t y passively to bear the consequences o f that disobedience. T h o u g h ' w e should n o t sanction it, or lift a little finger to c o n f o r m , or o b e y ' , e v e n ' o u t r a g e is n o t to be resisted b u t e n d u r e d ' (LW, XLV, p. 125; WA, x i , p. 267). A n d that a d m o n i t i o n applies n o less to true Christians than to pagans or to the mass o f the unregenerate. A l l are equally subject to G o d ' s t e m p o r a l g o v e r n a n c e in matters external — ministers as w e l l as their flocks, Christians as w e l l as pagans (Address to the Christian Nobility: LW, XLIV, pp. 130—1; WA, v i , p p . 409—10). Christians, m o r e o v e r , are so subject n o t s i m p l y for charity's sake, to set an e x a m p l e o f obedience for their unregenerate brethren to f o l l o w , or b y w a y o f service in the d i v i n e l y ordained calling o f magistrate or soldier. T h e reason for their subjection lies, rather, in the fact that they, t o o , as Christians in the w o r l d (simul Justus ergo et peccator) need the b u r d e n o f the l a w to curb, in their dealings w i t h others, the evil p r o m p t i n g s o f their o w n sinful nature. Finally, the fourth o f these emphases w a s the firmness o f the distinction he strove to maintain b e t w e e n the spiritual and t e m p o r a l realms and b e t w e e n their respective m o d e s o f g o v e r n a n c e , as w e l l as the force o f his insistence that they n o t be confused. It had been characteristic o f m e d i e v a l thinkers after the reception o f Aristotle in the twelfth and thirteenth 171

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centuries to see the t e m p o r a l and spiritual as hierarchically related, the t e m p o r a l b e i n g ordained to the spiritual as the l o w e r to the h i g h e r end. B u t L u t h e r saw t h e m as distinct and, in a sense, parallel — c o n c e r n e d w i t h different aspects o f man's existence, e x e r t i n g different modalities o f authority, resorting to different instrumentalities o f persuasion (Temporal Authority: LW, XLV, p p . 8 8 - 9 1 ; WA, x i , p p . 2 4 9 - 5 1 ) . A n d the confusion o f the t w o (confusio regnorum) he saw v e r y m u c h as the w o r k o f the devil, w h o p r o w l s like a roaring lion seeking w h o m he m a y d e v o u r , p r o m p t i n g subjects to rebel, priests and potentates alike to abuse their legitimate p o w e r s , striving, in effect, to subvert the w h o l e d i v i n e l y ordained order o f things. T h i s accounts for the bitterness o f his attacks in The Babylonian Captivity and elsewhere o n the papal c h u r c h (indeed, the papal ' A n t i c h r i s t ' — LW, x x x v i , p. 7 2 ; WA, v i , p . 537), n o t o n l y for intruding itself i m p r o p e r l y in the d o m a i n o f t e m p o r a l g o v e r n a n c e and c l a i m i n g to be the i m m e d i a t e source o f the p o w e r that t e m p o r a l rulers w i e l d , but also for i n t r o d u c i n g into the c h u r c h o f G o d a r e g i m e o f laws, jurisdiction, and c o e r c i o n . S u c h a r e g i m e p r o p e r l y b e l o n g s to the t e m p o r a l realm alone; it has n o place in spiritual g o v e r n a n c e . T h e same factors explain his insistence o n the limits o f t e m p o r a l p o w e r , his criticism o f rulers, h o w e v e r Christian in aspiration, w h o w e n t b e y o n d their legitimate d u t y to protect the external order and peace o f the church, legislating u p o n matters essentially religious, a t t e m p t ing v a i n l y to i m p o s e beliefs u p o n their subjects, intruding u p o n the interior disposition o f the soul, and i n t r o d u c i n g into spiritual matters ( w h e r e it is for the W o r d alone to persuade) the alien c o e r c i o n o f the l a w ( C a r g i l l T h o m p s o n 1984, p p . 1 3 1 - 3 ) . In this c o n t e x t can best be u n d e r s t o o d the harshness, d u r i n g the Peasants' R e v o l t in G e r m a n y , o f his final tirade Against the Robbing and Murdering Hordes of Peasants ( M a y 1525). In his earlier Admonition to Peace (published in 1524 and before the outbreak o f extensive hostilities), w h i l e he had w a r n e d the peasants that ' t u m u l t and rebellion' c o u l d n o t be justified b y 'the fact that the rulers are w i c k e d and unjust', he had also r e b u k e d the princes for their 'stubborn perversity' and the oppression o f their rule (LW, XLVI, p p . 19 and 25; WA, XVIII, p p . 309 and 295). T h a t position w a s entirely consistent w i t h the political t h e o l o g y he had earlier delineated in his Temporal Authority: To What Extent it Should be Obeyed (1523). T h e unbalanced stridency w i t h w h i c h he finally c o n d e m n e d the peasants as 'faithless, perjured, disobedient, rebellious murderers, robbers, and blas phemers', and the brutal v i g o u r w i t h w h i c h he u r g e d the princes to 'stab, 172

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Christian obedience and authority, 1520—1550 smite, slay' t h e m , w a s n o t o n l y r o o t e d in his h o r r o r o f rebellion against the p o w e r s that be as a direct repudiation o f Paul's teaching in R o m a n s 1 3 . It also sprang f r o m the fact that he n o w saw the peasants as h o n o u r i n g and serving the d e v i l b y p r o m o t i n g the confusio regnorum, ' m a k i n g Christian f r e e d o m a c o m p l e t e l y physical matter' c l o a k i n g this 'terrible and horrible sin [of rebellion] w i t h the g o s p e l ' , and b e c o m i n g thereby 'the w o r s t blasphemers o f G o d ' (LW, x x x i x , p p . 4 9 - 5 5 ; WA, x v m , pp. 3 5 7 - 6 1 ) . S u c h w e r e the characteristic emphases, the c o n t r o l l i n g tendencies in Luther's political t h i n k i n g . T h e later history o f the Lutheran and territorial churches n o t w i t h s t a n d i n g , they help explain w h y a Sebastian Castellio, for e x a m p l e , c o u l d later o n seek support in Luther's w r i t i n g s for his o w n a r g u m e n t that n o one can be coerced into belief. T h e y also help explain w h y Erastianism n e v e r c a m e fully to d o m i n a t e the Protestant w o r l d . B u t their main i m p a c t lies elsewhere. Forcible resistance to the princes and potentates o f this w o r l d had rarely been an occasion for m o r a l anguish a m o n g late m e d i e v a l C a t h o l i c s . B u t Luther's rejection o f it as sinful transformed it for the remainder o f the sixteenth century and a g o o d l y part o f the seventeenth as w e l l into the central and critical question confronting E u r o p e a n political thinkers. A s the n e x t chapter makes clear (see b e l o w , pp. question o n w h i c h Luther h i m s e l f c h a n g e d his m i n d in 200—3), this the 1530s, t h o u g h o n l y w i t h great difficulty and in the face o f c h a n g e d political and religious circumstances in G e r m a n y . D u r i n g those later years, w i t h c o m p a r a b l e difficulty and behind a screen o f cautious qualifications, he also c h a n g e d his m i n d s o m e w h a t on other issues, p e r m i t t i n g n o w a certain degree o f c o e r c i o n e v e n in religious matters, and, m o r e b r o a d l y , enlarging the role o f the prince in the g o v e r n a n c e o f the church. B u t i f c h a n g e d circumstances p l a y e d their role in i n d u c i n g h i m to m o d i f y his fundamental positions, so t o o did the sheer difficulty he and other early reformers encountered in t r y i n g to h o l d to the firm line o f distinction he had d r a w n b e t w e e n the spiritual and t e m p o r a l Regimenté. A m o n g those early reformers s o m e , it is true - Johannes B r e n z at S c h w á b i s c h - H a l l , for e x a m p l e , or H u l d r e i c h Z w i n g l i at Z u r i c h , or M a r t i n B u c e r at Strasburg, or, indeed, the m o r e radical T h o m a s M ü n t z e r at Z w i c k a u — s h o w e d less interest in maintaining the t y p e o f separation b e t w e e n the t w o realms and the t w o systems o f g o v e r n a n c e for w h i c h L u t h e r had argued. B u t others did, and Luther's o w n change o f v i e w p o i n t w a s in s o m e measure w o r k e d out in d i a l o g u e w i t h theirs. A n d o f those early G e r m a n Lutherans w h o addressed themselves in a n y t h i n g m o r e than a fragmentary fashion to theoretical political questions, n o t a b l y Eberlin w

a

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v o n G i i n z b u r g , A n d r e a s Osiander, and Philip M e l a n c h t h o n , it w a s the last — colleague, n e i g h b o u r , b e l o v e d friend — w h o w a s closest to Luther, serving sometimes, it m a y be, e v e n as teacher rather than disciple. In the final edition o f the Loci communes, w h i c h reflected the shifts in his thinking m a d e across the years in response to c h a n g i n g religio-political circumstances, M e l a n c h t h o n rejected as 'ajudaic d r e a m and an odious error' any n o t i o n o f ' a w o r l d l y k i n g d o m o f C h r i s t ' in w h i c h ' o n l y the saints w i l l rule and w i e l d the s w o r d , b l o t t i n g out the godless and capturing all k i n g d o m s ' . T h a t had been the error o f T h o m a s M i i n t z e r , and it is a l w a y s ' v e r y harmful to portray the C h u r c h o f G o d as a w o r l d l y k i n g d o m ' possessed o f c o e r c i v e p o w e r s o f a legal t y p e . ' O n l y the w o r l d l y p o w e r ' , he says, 'should punish w i t h fist and s w o r d ' . T o that w o r l d l y p o w e r , m o r e o v e r , M e l a n c h t h o n n o w assigns a role in ecclesiastical and religious matters that goes w e l l b e y o n d a n y t h i n g he or L u t h e r had originally envisaged. W o r l d l y p o w e r , he says, 'does not m e r e l y exist to serve to satisfy the stomachs o f m e n ' , or to maintain peace, or e v e n to punish i m m o r a l acts that d o not disturb the peace. It is also ' o b l i g e d for the g o o d o f the C h u r c h to supply necessary offices, pastors, schools, churches, courts, and hospitals'. B e y o n d that, indeed, rulers are ' o b l i g e d to accept the h o l y gospel, to believe, confess, and direct others to true divine service'. T h e y must also 'prohibit, abolish, and punish' such offences as 'external idolatry, blas p h e m y , false oaths, untrue doctrine, and heresy'. A n d this means, M e l a n c h t h o n insists, citing the e x a m p l e o f s o m e o f the O l d T e s t a m e n t kings and o f such Christian rulers as Constantine, T h e o d o s i u s , and C h a r l e m a g n e , that rulers 'are o b l i g e d to have k n o w l e d g e o f the Christian doctrine and to pass j u d g e m e n t on false doctrines' (Loci communes, On Christian Doctrine, esp. 36: M e l a n c h t h o n 1965, p p . 3 3 5 - 7 ) . 5

S u c h claims reveal the distance M e l a n c h t h o n h i m s e l f had travelled since those early days w h e n his thinking had been m o r e closely aligned w i t h Luther's insistence o n the separation o f the spiritual and t e m p o r a l Regimente, and especially since the m i d - i 5 3 0 s , w h e n he had b e g u n to ascribe a 'right o f reformation' to t e m p o r a l rulers and to d e v e l o p his n o t i o n o f the prince as the praecipuum membrum ecclesiae. L u t h e r n e v e r w e n t so far, and e v e n in his last years expressed m i s g i v i n g s about the intrusion o f 5. I cite the English translation o f Manschreck 1965, pp. 260, 273. T h e original Loci communes had been published in 1521 and the greatest changes to the tract w e r e made between the late 1530s and 1555, w h e n Melanchthon altered it quite markedly and enlarged it fourfold. Manschreck's translation is based on t w o G e r m a n editions o f the 1551 version, the G e r m a n translation having been made b y Melanchthon himself. T h e 1559 Latin version o f the w o r k is printed in Melanchthon 1951—75,11.1, pp. 164-352, 11.2.

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Christian obedience and authority, 1320—1550 princely p o w e r into the affairs o f the church. B y the m i d - 1 5 3 0 s , nonetheless, h a v i n g had to confront the Anabaptist threat and the urgencies o f c h u r c h organisation in S a x o n y and elsewhere, he had c o m e to a b a n d o n 'his belief that the G o s p e l must n e v e r b e defended b y force and w a s b e g i n n i n g to replace it b y the M e l a n c h t h o n i a n doctrine that secular rulers had a d u t y to d o all in their p o w e r to p r o m o t e and defend true religion, b y force i f need b e ' ( C a r g i l l T h o m p s o n 1984, p . 1 1 7 ) . B y so d o i n g , he w a s led to marginalise the originally sectarian elements in his t h i n k i n g and to m o v e in the direction o f a c h u r c h a n s w e r i n g in its sociological dimensions to Troeltsch's ' c h u r c h - t y p e ' Christianity. B y so d o i n g , w h e t h e r w i t t i n g l y or u n w i t t i n g l y , he also lent credence to the v e r y large claims that his f o l l o w e r s and their f e l l o w travellers in the w o r l d o f the Lutheran diaspora m a d e for the religious dimension o f the r o y a l office.

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D u r i n g the early 1520s, long-established affiliations, b o t h c o m m e r c i a l and academic, helped foster the spread o f Lutheran ideas eastward to the Baltic states, w e s t w a r d to E n g l a n d , n o r t h w a r d to D e n m a r k and S w e d e n , and thence, respectively, to N o r w a y and Iceland, o n the one hand, and Finland o n the other. In all o f these countries it w a s , a b o v e all, the needs and sympathies o f the secular authorities that w e r e finally to determine the fate o f those n e w ideas. B u t o n l y in E n g l a n d , surprisingly, and, to a m u c h lesser degree, in S w e d e n , did reformers o f Lutheran sympathies p r o d u c e any significant b o d y o f w r i t i n g o n matters o f political t h e o l o g y . T h e S w e d i s h contribution, indeed, w a s slight e n o u g h , its central m o m e n t b e i n g the Kronungspredikan o f O l a u s Petri, the great reformer w h o had studied at Luther's W i t t e n b e r g f r o m 1 5 1 6 to 1 5 1 8 , w h o s e religious c o m m i t m e n t s f r o m about 1523 o n w a r d s w e r e clearly Lutheran, and w h o , w i t h his b r o t h e r Laurentius, did m o r e than a n y o n e else to shape the l i t u r g y and piety o f the S w e d i s h R e f o r m e d church. T h e Kronungspredikan w a s a s e r m o n preached at the c o r o n a t i o n o f Gustavus Vasa in 1528 — s o m e years before that k i n g finally c o m m i t t e d h i m s e l f u n a m b i g u o u s l y to a f o r m o f Lutheranism — and it understandably proffers n o systematic statement. Its message, indeed, is a rather simple one. Emphasising that kingship is 'a Christian office' (Christelegit embete) d i v i n e l y ordained for the public w e l l b e i n g , O l a u s Petri w a r n s the k i n g o f the dangers and temptations o f his position, u r g i n g h i m to rule n o t for his o w n sake but for that o f his subjects, 175

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and r e m i n d i n g h i m that his duties e x t e n d b e y o n d the securing o f t e m p o r a l peace and tranquillity to the w a t c h f u l o v e r s i g h t o f the c l e r g y o f the realm that they n o t slight their responsibility to preach the W o r d o f G o d (Coronation Sermon: 1914—17,1, p . 316). A g a i n , brandishing such w e l l - w o r n texts as Peter 2:13—14, or M a t t h e w 17:24—27, or (above all) R o m a n s 13:1—7, he lays an e v e n greater stress on the d u t y o f all subjects, c l e r g y as w e l l as laity, and in all matters that d o n o t infringe G o d ' s c o m m a n d m e n t s , to be l o y a l and obedient to the k i n g , n o t s i m p l y for fear o f punishment but for conscience sake. A n d striking the familiar Pauline t h e m e to w h i c h he was to return later o n in his great Svenska Kronik, e v e n tyrants and w i c k e d rulers are ministers o f G o d , instruments o f his w r a t h to punish those that d o evil (Swedish Chronicle: 1914—17, i v , p p . 78, 1 1 4 ) . Similar themes w e r e emphasised b y the earliest English sympathisers w i t h Lutheran ideas — m e n such as W i l l i a m R o y and W i l l i a m T y n d a l e w h o , like O l a u s Petri, had spent t i m e at W i t t e n b e r g , or S i m o n Fish and R o b e r t Barnes w h o had not, but w h o w e r e in close t o u c h w i t h the n e w t h e o l o g i c a l currents flowing in n o r t h G e r m a n y and the R h i n e l a n d . T h u s R o y ' s A Brefe Dialoge bitwene a Christen Father and his stobborn Sonne (1527), translated f r o m a G e r m a n original, stressed the d i v i n e l y ordained nature o f the t e m p o r a l ruler's authority and the g r a v i t y , therefore, o f the subject's o b l i g a t i o n to o b e y t h e m . Similarly, Fish's The summe of the holye Scripture (1529), another translation f r o m a continental original, r e p r o d u c e d almost w o r d for w o r d the section o f Luther's Temporal Authority that sets forth his teaching o n the t w o Regimenté. 6

T h a t teaching found a fairly faithful e c h o in the first version (1531) o f B a r n e s ' A supplication ... unto the most gracyous pry nee Henry e the eyght, w i t h its clear emphasis o n the separation o f the t e m p o r a l and spiritual realms and their respective systems o f g o v e r n a n c e , its insistence that kings are the ministers o f G o d in the t e m p o r a l realm and must never, therefore, be resisted b y force, its c o n v i c t i o n , nonetheless, that they must be h u m b l y d i s o b e y e d if they e x c e e d their b o u n d s and interfere in spiritual matters. For ' C h r i s t e n m e n are b o u n d e to o b e y in suffering the k y n g e s t y r a n n y , but n o t in consenting to his u n l a w f u l l c o m m a u n d e m e n t ' (Supplication: 1 5 7 3 , p . 295). A c o m p a r a b l e note is struck e v e n m o r e insistently b y T y n d a l e in The Obedience of a Christen man and how Christen rulers ought to gov erne (1528), a w o r k w h i c h denounces the intrusion o f p o p e and prelates into the t e m p o r a l

6. For these t w o w o r k s see Clebsch 1964, pp. 2 3 2 - 9 , 2 4 5 - 5 1 , and esp. 249 n. 18 for Fish's b o r r o w i n g s from Luther. C f . WA, x i , pp. 2 4 7 - 5 5 .

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realm and their engrossing o f lands, liberties, and jurisdictions as n o t h i n g other than a w i l y t y r a n n y w h i c h increaseth m o r e and m o r e daily'. T h a t t y r a n n y k i n g s should n o t hesitate to o v e r t h r o w as a d a m n a b l e d e r o g a t i o n f r o m their o w n d i v i n e l y ordained authority. W a s it n o t St Paul's teaching that e v e r y soul should for conscience sake be subject to the p o w e r s that be? F r o m that injunction neither p o p e n o r bishops can claim any e x e m p t i o n , 'for here is n o m a n e x c e p t ; b u t all souls must o b e y ' (Obedience: 1848, p p . 206, 178). Unless, o f course, w e are c o m m a n d e d to d o evil. A n d then the Christian, w h i l e necessarily d i s o b e y i n g , is called to offer n o further resistance b u t 'to suffer e v e n the bitter death for his hope's sakes, and because he w i l l d o n o e v i l ' (p. 332). W h e n the b o o k w a s d r a w n to his attention in 1529, H e n r y VIII is reported as h a v i n g found The Obedience of a Christen man 'a b o o k for m e and all k i n g s to read' ( M o z l e y 1937, p . 143). B u t it is w o r t h y o f note that all o f these early Protestant w r i t i n g s predated the failure o f his attempts to secure his m u c h - n e e d e d d i v o r c e , the consequent decision to break w i t h R o m e , and the great p r o p a g a n d a c a m p a i g n that ensued. B y the years 1534—5 Barnes, and in s o m e measure T y n d a l e t o o , had c o m e to envisage the k i n g ' s authority as minister o f G o d as e x t e n d i n g n o w b e y o n d the t e m p o r a l to encompass the spiritual. T h a t is to say, they had m o v e d f r o m their o w n earlier Lutheran emphasis o n the strict separation o f the t e m p o r a l and spiritual realms and in a direction m o r e c o n g e n i a l to the propagandists o f the r o y a l s u p r e m a c y . B u t i f that m o v e reflected at least in part a m o r e fundamental shift in their theologies a w a y f r o m a strictly Lutheran position and in a direction parallel to that taken b y Johannes O e c o l a m p a d i u s , B u c e r , and other R h i n e l a n d e r s , n o t h e o l o g i c a l concerns o f c o m p a r a b l e p r o f u n d ity can be said to h a v e perturbed the t h i n k i n g o f those r o y a l propagandists w h o s e w o r k s , w i t h the v i g o r o u s e n c o u r a g e m e n t o f T h o m a s C r o m w e l l , b e g a n n o w to d o m i n a t e the arena o f public debate. 4

7

T h e political theories o f the early English Protestants had been, after all, political theologies. T h e y had been g r o u n d e d in the n o v e l Lutheran s o t e r i o l o g y . T h e y had stressed the p r i m a c y o f faith and its rejection o f the efficacy o f g o o d w o r k s , its p r e o c c u p a t i o n w i t h the preaching o f the W o r d , its reinterpretation o f the n o t i o n o f ' c h u r c h ' , its refusal to the church thus interpreted o f a n y p o w e r to mediate via sacramental channels the divine graciousness, and its c o n c o m i t a n t denial o f a n y t h i n g other than a functional

7. This is the thesis persuasively argued b y Clebsch 1964, esp. pp. 54—65. For the shift in Barnes' political thinking see also C a r g i l l T h o m p s o n i960, pp. 1 3 3 - 4 2 .

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distinction b e t w e e n c l e r g y and laity. In contrast, the ideologists o f the r o y a l s u p r e m a c y , w h a t e v e r their novelties, laid d o w n n o challenge to the fundaments o f C a t h o l i c belief. In his responses to H e n r y VIII's c o m m e n t s o n the Bishops' Book (1537) T h o m a s C r a n m e r , it is true, already p r o t o Protestant in his doctrinal c o m m i t m e n t s , c a m e v e r y close to a c c o r d i n g to the k i n g the potestas ordinis, at least insofar as it i n v o l v e d the ordination o f priests. B u t E d w a r d F o x e , bishop o f Hereford, despite claims periodically m a d e to the contrary, did n o t . In this he w a s at one w i t h the other propagandists for the r o y a l s u p r e m a c y , w h o left in the hands o f the priestly hierarchy the sacramental p o w e r s traditionally ascribed to it. Instead, f r o m R i c h a r d S a m p s o n , F o x e , and Stephen Gardiner at the outset, to T h o m a s Starkey, C h r i s t o p h e r St G e r m a n , R i c h a r d T a v e r n e r , and Johannes B e c k i n s a u later on, they focused their attention w i t h v a r y i n g degrees o f explicitness, o n the potestas jurisdictions, and, w i t h i n it, o n the potestas jurisdictionis in foro exteriori — the truly g o v e r n m e n t a l p o w e r o v e r the church possessed in its fullness, or so the h i g h papalists claimed, b y the p o p e alone. 8

T h a t they should define the c h u r c h s i m p l y as the ' c o n g r e g a t i o n o f the faithful' and d e n y to the p o p e the ultimate possession o f the plenitudo potestatis w i t h i n it w a s n o t in itself r e v o l u t i o n a r y at all. T h e fourteenth- and fifteenth-century advocates o f the strict conciliar t h e o r y had d o n e likewise, basing their case o n the m o r e fundamental claim to the fullness o f jurisdictional p o w e r possessed b y the congregado fdelium — the universal church itself and the general c o u n c i l representing it. A n d that traditionally conciliarist position w a s clearly stated in the Henrician p a m p h l e t A declaración of a general concile w h i c h S a w a d a v i e w s as the w o r k o f one o f C r o m w e l l ' s propagandists — p r o b a b l y o f H e n r y C o l e , friend o f Starkey and Sir R i c h a r d M o r i s o n ( S a w a d a 1 9 6 1 , p p . 1 9 7 - 2 1 4 ) . B u t i f such early propagandists as the a n o n y m o u s authors o f A Glasse of the Truthe (1533) and the Articles devised by the holle consent of the Kynges moste honourable counsayle (1533) c o u l d safely e v o k e the decrees o f the C o u n c i l s o f C o n s t a n c e and Basle o n the superiority o f c o u n c i l to p o p e ( P o c o c k 1870,11, p p . 407, 526—7), or, like F o x e in his De vera differentia (1534), c o u l d bolster their attacks o n papal jurisdiction b y a less specific n o d in the direction o f conciliar authority (Foxe 1534, fos. g —g , ij —ij ), those w r i t i n g after 1536 c o u l d not. In that year P o p e Paul III had c o n v o k e d a general c o u n c i l to r

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8. T h e text o f C r a n m e r ' s responses is printed in B u r n e t 1830, iv, pp. 1 2 8 - 3 0 . T h e y are discussed in Scarisbrick 1968, pp.403-4, 4 1 5 - 1 7 . For Foxe's alleged attribution o f a potestas ordinis to the k i n g , s e e B a u m e r 1940, p.82; Morris 1953, p.54; and (more cautiously) Skinner 1978,11, p . 9 6 n . 1. B u t see to the contrary O a k l e y 1987, p p . 3 4 7 - 5 3 .

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Christian obedience and authority, 1520—1550 assemble in 1537 at M a n t u a . T h e possibility o f a council's actually responding to the pressing question o f c h u r c h r e f o r m n o w b e c a m e a live o p t i o n . A s a result, therefore, the defenders o f the r o y a l s u p r e m a c y w e r e forced to address the delicate issue o f the relationship o f the r o y a l authority to that o f a general council. T h i s they did in b o l d l y unflurried fashion, insisting, as did Starkey in his Exhortation to ... Unitie and Obedience (1540?) and the a n o n y m o u s author o f A Treatise concernynge generall councilles, The Byshoppes of Rome and the Clergy (1538), that general councils fall into the realm o f 'thinges . . . indifferent' and that their decrees are ' o f n o n e authoritie a m o n g the people in any c o u n t r e y , t y l they be c o n f i r m e d b y princely p o w e r and c o m m o n counsell' or that they c o u l d n o t l a w f u l l y be e x e c u t e d w i t h o u t the r o y a l assent (Starkey 1540, fos. 8^—9"; S a w a d a 1 9 6 1 , p. 205). B y this insistence, and b y their treatment o f the relationship o f k i n g to general c o u n c i l in the c o n t e x t o f the m o r e fundamental relationship b e t w e e n r o y a l and priestly p o w e r , these m e n revealed just h o w far b e y o n d the old conciliarist position the publicists o f the Henrician R e f o r m a t i o n had been led to g o in their attempts to defend and define the r o y a l s u p r e m a c y . W h i l e the conciliarists had denied to the p o p e the fullness o f jurisdictional p o w e r , they had n o t questioned the divine foundation o f the papal office itself. T h a t Marsilius o f P a d u a had certainly d o n e , but then he was s o m e t h i n g m o r e (or other) than a conciliarist, and it is understandable that in the w a k e o f the crucial Act in Restraint of Appeals o f 1533 C r o m w e l l should h a v e c o m m i s s i o n e d the humanist, W i l l i a m Marshall, to p r o d u c e the first English translation (1535) o f Marsilius' Defensor Pads. B y then, h o w e v e r , the attacks o n papal jurisdiction as unscriptural and usurped that had f o r m e d the b a c k b o n e o f S a m p s o n ' s Oratio (1534) had b e e n e x t e n d e d further in F o x e ' s De vera differentia. A n d they w e r e subsumed in Gardiner's De vera obedientia (1535) under the rubric o f a m o r e s w e e p i n g onslaught o n the distinction b e t w e e n the church's spiritual and the prince's t e m p o r a l g o v e r n m e n t that had f o r m e d the v e r y foundation o f the traditional ecclesiologies and political theories. 'Forsothe', Gardiner said, 'a b l y n d e distinccion and [one] full o f darkenesse' (Gardiner 1930, sig. D v i ) . If G o d 'hathe c o m m i t t e d the office o f teaching and the ministerie o f the sacraments' to s o m e , that office w o u l d appear to i n v o l v e little m o r e than a potestas ordinis, clearly n o t any true potestas jurisdictionis and certainly n o t any sort o f e x e m p t i o n f r o m the rule o f the prince, w h o is 'Prince o f all the 9

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9. See O a k l e y 1 9 7 7 , pp. 1 3 1 - 2 , arguing against B a u m e r 1 9 7 1 , pp. 1 2 - 1 5 , 265.

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p e o p l e and n o t o f parte' (sig. D v i and Eiii ). If G o d did indeed c o m m i t s o m e authority o v e r the church to the apostles and their successors, b y that c o m m i s s i o n 'that w h i c h beforehand is c o m m i t t e d o f G o d to princes is in n o wise taken a w a y e ' (sig. D v i ) . T o say, therefore, that the k i n g is 'the supreme headde o f the c h u r c h o f E n g l a n d ' i n v o l v e s n o n o v e l t y . H o w c o u l d it? T h e church o f E n g l a n d b e i n g ' n o t h i n g else b u t the c o n g r e g a t i o n e o f m e n and w o m e n o f the clergie and o f the laytie united in Christian profession', and the realm o f E n g l a n d b e i n g a Christian realm, it is really n o different than to say that he is 'headde o f the realme o f E n g l a n d e ' (sig. Di —i , Dii —ii ). A n d such b y G o d ' s w i l l he is. For, as the scriptures tell us, he is ' G o d ' s lieftenaunt', 'as it w e r e the y m a g e o f G o d u p o n earthe', u p o n o u r o b e d i e n c e to w h o m the scriptures i m p o s e n o limits and add n o t 'one sillable o f e x c e p i c i o n ' save o n l y 'the o b e d i e n c e due to G o d ' h i m s e l f (sig. Diii'-iii", D i v ' - i v " ) . r

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In all o f this, Gardiner's v i e w s are clearly in a c c o r d w i t h the famous w o r d s in w h i c h the Act in Restraint of Appeals (1533) had asserted the k i n g ' s jurisdictional o m n i c o m p e t e n c e w i t h i n the territorial boundaries o f his 'realm o f E n g l a n d ' (Tanner 1 9 5 1 , p p . 41—6). W h a t w a s i n v o l v e d w a s n o t s i m p l y the rejection o f any l i n g e r i n g papal claim to p o w e r o f a t e m p o r a l nature, or the denial to the p o p e o f a plenitude o f jurisdictional p o w e r w i t h i n the church, b u t rather the arrogation to the c r o w n o f the entire fullness o f jurisdictional p o w e r in for 0 exteriori p r e v i o u s l y w i e l d e d b y the church, and the redefinition o f the spiritual authority possessed b y the priestly hierarchy in such a w a y as to limit it to the potestas ordinis and the potestas jurisdictionis in foro interiori. T h e p o w e r o f jurisdiction in foro exteriori had traditionally included the magisterial p o w e r o f rendering b i n d i n g j u d g e m e n t s o n matters doctrinal, and Gardiner, e v o k i n g the e x a m p l e o f the O l d T e s t a m e n t k i n g s and early Christian e m p e r o r s , notes that S o l o m o n b y D a v i d ' s a p p o i n t m e n t t o o k care ' o f h o l y as spirituall maters', asserts that Justinian ' m a d e l a w e s c o n c e r n i n g the g l o r i o u s Trinitie and the catholike faith o f B i s h o p p e s ' , and concludes that 'a K y n g e o r d a y n e d o f G o d . . . should take charge o f spirituall and eternal affaires before and rather than c o r p o r a l maters' (Gardiner 1930, sig. D v i i i , Eiiii). S i m i l a r l y St G e r m a n , w h o emphasised that the c h u r c h is constituted o f laity as w e l l as c l e r g y . W h i l e d e n y i n g in An Answer to a Letter (c. 1535 - the final and m o s t radical o f his pamphlets) that parliament had the authority to grant to the k i n g such p o w e r s in things ' m e r e spirituall' as those o f consecration, absolution, administration o f the sacraments, he nonetheless asked: ' w h y should n o t the p a r l y a m e n t then w h i c h represen180

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In so a r g u i n g , o f course, and in this he stood w i t h Starkey and M o r i s o n , he w a s ascribing the headship o f the church and the fullness o f jurisdictional p o w e r to the king-in-parliament, rather than thinking in terms o f a s i m p l y personal headship, as had S a m p s o n , F o x e , and Gardiner. O n that issue the propagandists o f the r o y a l s u p r e m a c y did not speak w i t h a single v o i c e . T h e y w e r e at one a m o n g themselves, h o w e v e r , and w i t h Barnes and T y n d a l e before t h e m , in their Pauline insistence on the sinfulness o f resistance to the p o w e r s that be. T h a t insistence b e c a m e m o r e strident in the w a k e o f the n o r t h e r n uprising o f 1536 and after the publication in R o m e o f R e g i n a l d C a r d i n a l Pole's Pro ecclesiasticae unitatis defensione (1538?). For that w o r k , r e p l y i n g to S a m p s o n ' s Oratio, pressed the papal claim to headship o f the universal church, denied the r o y a l supremacy, and appealed to the E m p e r o r Charles V to c o m e to the aid o f the oppressed people o f E n g l a n d (Pole 1538?, ch. Ill, fo. l x x x i i - c x i i i ) . T h u s , in An Exhortation to styrre all Englyshe men to the defence of theyr countreye (1539) M o r i s o n dismissed the 'pestyferous P o o l e ' as 'trayterous C a r d i n a l l ' , and emphasised that the k i n g w a s ' o u r K y n g e , our ruler, b y the w y l l and ordinance o f g o d , he is g o d d i s mynister, u n t o w h o s e charge g o d hath c o m m y t t e d this realme' ( M o r i s o n 1539, sig. A v i i , Ci , C i i " ) . T h u s T a v e r n e r in his Garden of wysdome (1539) n o t e d that k i n g s 'represent u n t o us the parson e v e n o f g o d h i m s e l f ' , so that G o d 'adourneth t h e m w y t h the h o n o u r a b l e title o f hys o w n n a m e callying t h e m G o d d e s ' ( T a v e r n e r 1539, fo. 14). A n d thus, f o l l o w i n g the route f r o m r o y a l t h e o c r a c y to r o y a l c h r i s t o l o g y , another author w a s apparently m o v e d e v e n to refer to K i n g H e n r y as 'the S o n o f M a n ' ( A n o n . , cited in B a u m e r 1940, p . 86). r

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accession o f E d w a r d V I in 1547 the gates w e r e o p e n e d to the influx o f Protestant ideas into E n g l a n d , B u c e r m o v e d there and w r o t e for the guidance o f the y o u n g k i n g his De regno Christi (1550). For the Protestant ideas that n o w b e g a n to exert a d o m i n a n t influence o v e r English religious life s t e m m e d , n o t f r o m the ' e v a n g e l i c a l ' religion o f the older Lutheran sources, but f r o m the ' r e f o r m e d ' Protestantism o f the Swiss and south-west G e r m a n cities.

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T h e proponents o f the R e f o r m e d tradition l o o k e d to L u t h e r for inspiration and shared in m a r k e d degree his m o s t fundamental t h e o l o g i c a l and political c o m m i t m e n t s . T h e s e c o m m i t m e n t s entailed a political t h e o l o g y o f f o r m i d a b l e c o m p l e x i t y , and the current level o f scholarly disagreement o n the subject is really quite h i g h . N o attempt, therefore, to differentiate the political thinking o f such reformers as Z w i n g l i or B u c e r f r o m that o f Luther h i m s e l f is likely to c o m m a n d universal assent. Differences, nonetheless, there u n d o u b t e d l y w e r e — o f nuance, certainly, and s o m e t h i n g m o r e . T e m p e r a m e n t , t h e o l o g y , t i m i n g , social and political c o n t e x t — all o f these, and especially the t w o last, contributed to the e m e r g e n c e o f those differences. W h i l e Z w i n g l i , B u c e r , and C a l v i n all adhered to Luther's doctrine o f justification b y faith, it did n o t o c c u p y the central, c o n t r o l l i n g position in their theologies that it had in his. For h i m , after all, it had been g r o u n d e d in a transfiguring personal encounter w i t h G o d ' s f o r g i v i n g l o v e in Christ and had entailed a c o n c e p t i o n o f the Christian life as, a b o v e all, a free and j o y f u l o u t p o u r i n g o f gratitude to a s u p r e m e l y merciful h e a v e n l y father. For t h e m , h o w e v e r , that c o n t r o l l i n g position w a s o c c u p i e d b y s o m e t h i n g at once less experiential and m o r e theoretical, the doctrine o f G o d ' s u n c o n d i t i o n e d and c o n t r o l l i n g w i l l . T h e y saw the heart o f the Christian life, a c c o r d i n g l y , as a h u m b l e and painstaking obedience to the divine w i l l as it is revealed in the scriptures. A n d that o b e d i e n c e they saw as e x t e n d i n g , n o t o n l y to the n o r m s o f faith and o f m o r a l l i v i n g , but also, and in great detail, to matters o f ecclesiastical life, practice, and discipline. In Z w i n g l i ' s t h i n k i n g , as a result, the sharpness o f the contrast that Luther d r e w b e t w e e n the l a w and the gospel w a s b l u n t e d . B o t h are a f o r m 10

10. See esp. On Divine and Human Justice (1905-59,11, pp. 484-93). I f o l l o w here the careful analysis o f W a l t o n 1967, pp. 158-67.

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Christian obedience and authority, 1520—1550 o f l a w , the one n o less a declaration o f G o d ' s w i l l than the other, and the difference b e t w e e n t h e m is a matter o f degree, n o t o f k i n d (On Divine and Human Justice: 1905—59, 11, esp. p p . 487—93). W i t h o u t d e n y i n g t h e m , Z w i n g l i softened the harshness o f Luther's other dualisms b e t w e e n the spiritual and t e m p o r a l realms and spiritual and t e m p o r a l g o v e r n a n c e . His emphasis o n the l a w and his p r e o c c u p a t i o n w i t h the fulfilling o f G o d ' s w i l l necessitated i m m e d i a t e l y for h i m a related p r e o c c u p a t i o n w i t h the h u m a n instrumentalities w h e r e b y , in a w o r l d in w h i c h the elect and reprobate are inextricably intertwined, that w i l l w a s to be* interpreted and that l a w enforced. A n d he w a s m o v e d b y that p r e o c c u p a t i o n w i t h a degree o f u r g e n c y that the young Luther, at least, does not appear to h a v e felt. C o n s i d e r e d as the b o d y o f the elect, its m e m b e r s h i p k n o w n o n l y to G o d , the church is invisible. B u t considered as the b o d y o f all those ' w h o m a k e profession o f faith in Christ the w h o l e w o r l d o v e r ' , it is visible. A n d because that visible b o d y is a m i x e d one, n u m b e r i n g in its ranks s o m e w h o lack the gift o f faith and 'are called Christians falsely', it is 'in need o f g o v e r n m e n t for the punishment o f flagrant sinners'. A m o n g the 'shepherds in the c h u r c h ' , then, Z w i n g l i adds, ' w e m a y n u m b e r princes'. T h e i r authority 'is necessary to the completeness o f the b o d y o f the c h u r c h ' and ' w i t h o u t civil g o v e r n m e n t a c h u r c h is m a i m e d and i m p o t e n t ' (Exposition of the Faith: 1953, pp. 265—6). A g a i n s t H u g h , bishop o f C o n s t a n c e , it is true, and rejecting the n o t i o n that force c o u l d c o m p e l belief, he argued in 1522 that Christ's k i n g d o m w a s n o t o f this w o r l d ( W a l t o n 1967, p. 122). In its loftiest aspect it is an i n w a r d and spiritual k i n g d o m that d a w n s in the hearts o f the individual believer, a k i n g d o m to w h i c h n o w o r l d l y and external jurisdiction can extend, for ' m a n is not G o d , since G o d alone k n o w s the hearts o f m e n and w e k n o w t h e m o n l y b y their fruit' (Exposition of the 67 Articles: 1 9 0 5 - 5 9 , 1 1 , p. 329). In its subordinate reaches, h o w e v e r , Z w i n g l i clearly regarded that k i n g d o m as also in s o m e measure external, and in 1528, c o m m e n t i n g o n those at C o n s t a n c e w h o had objected to the magistrate's regulation o f religious practices, and e x p l i c i t l y brushing aside Luther's insistence that Christ's k i n g d o m is n o t external, he argued that Christ h i m s e l f and his apostles and disciples had c o n c e r n e d themselves w i t h external religious observances, and that so, t o o , therefore, m i g h t the magistrates o f a city (To Ambrosius Blarer: 1905—59, i x , p p . 452—4). It is true, again, that in his critically i m p o r t a n t s e r m o n o f 1523 On Divine and Human Justice and in a w a y that paralleled Luther's distinction b e t w e e n the spiritual and t e m p o r a l Reiche, Z w i n g l i contrasted the t w o forms o f justice that g o v e r n o u r c o n d u c t in this w o r l d : the divine and the h u m a n . 183

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T h e f o r m e r 'concerns o n l y the inner m a n : h o w one should l o v e G o d and one's n e i g h b o u r s ' (On Divine and Human Justice: 1 9 0 5 - 5 9 , 11, p . 484). It constitutes an inner spiritual standard the attainment o f w h i c h o n l y divine grace can m a k e possible and the observance o f w h i c h o n l y G o d can j u d g e . In relation to this d i v i n e justice and its correlative l a w all that e v e n the c l e r g y can d o is, b y p r o c l a i m i n g the G o s p e l , to delineate its n o r m s for the guidance o f their f e l l o w believers, rulers as w e l l as the p o p u l a c e at large, and to alert t h e m to the s h o r t c o m i n g s o f h u m a n justice. For this latter f o r m o f justice, and the h u m a n l a w that is g r o u n d e d in it, concerns o n l y 'the outer m a n ' . E p i t o m i s e d b y the ten c o m m a n d m e n t s and c o n c e r n e d w i t h n o m o r e than exterior c o n f o r m i t y to the divine w i l l , it relates to the realm o f civil g o v e r n m e n t (for the c l e r g y w i e l d n o separate authority), and the realm in w h i c h the sanction o f c o e r c i v e force holds s w a y . For 'the j u d g e s and rulers are servants o f G o d ' , because t h r o u g h the l a w they c o m p e l m e n to f o l l o w the dictates o f h u m a n justice; 'he w h o is n o t obedient to their justice acts also against G o d ' (11, p p . 484, 488). S o far, so g o o d . T h e g u l f b e t w e e n the t w o forms o f justice m i g h t w e l l seem c o m p l e t e . B u t Z w i n g l i then goes on to e v o k e the i m p a c t on the Christian magistrate o f the hearing o f the G o s p e l , w h i c h w i l l b r i n g h i m and his subjects 'to i n w a r d piety and greater perfection than [mere] h u m a n justice requires'. It b e i n g his office 'to carry out all things a c c o r d i n g to the divine w i l l ' , it n o w b e c o m e s his d u t y to shepherd his subjects t o w a r d s that greater perfection, to proscribe 'all that is contrary to the divine W o r d ' , to n u d g e the external religious practices o f their c o m m u n i t i e s (e.g. the divine w o r s h i p , the administration o f the sacraments) into greater c o n f o r m i t y w i t h the h i g h e r n o r m s o f divine justice (11, p p . 504, 522, 525). A n d b y so a r g u i n g , Z w i n g l i b e t r a y e d his characteristic t e n d e n c y — manifest also in the almost c o n t e m p o r a n e o u s Exposition of the 67 Articles (1523) — to detect reverberations o f h a r m o n y w h e r e L u t h e r had heard o n l y discord, to m o v e t o w a r d s reuniting w h a t L u t h e r had put asunder, and, h a v i n g discriminated so sharply the invisible c h u r c h f r o m the visible, to identify the latter w i t h the assembled civic c o m m u n i t y itself. A s he said elsewhere, w h e n the gospel is preached and all, i n c l u d i n g the magistrate, heed it, 'the Christian is n o t h i n g else than the faithful and g o o d citizen, and the Christian city is n o t h i n g other than the Christian C h u r c h ' . 1 1

1 1 . 'Sic principes vestri non turgent fastu, sic prophetae c o m m o d e , fideliter ac erudite docent, sic plebs tranquilla et doctrinam et imperium capit, ut j a m dixisse olim h o n poeniteat Christianum h o m i n e m nihil aliud esse quam fidelem, ac b o n u m c i v e m , urbem Christianam nihil quam ecclesiam Christianam esse.' Z w i n g l i , Jeremiah-Erklarungen ( 1 9 0 5 - 5 9 , x i v , p.424).

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R o b e r t W a l t o n has emphasised that b y these positions, staked out in On Divine and Human Justice and s o m e related sections o f the Exposition of the 67 Articles, Z w i n g l i s i m p l y ' m a d e explicit' w h a t had been implicit in his c o o p e r a t i o n w i t h the magistracy f r o m the b e g i n n i n g (in 1518) o f his ministry at Z u r i c h ( W a l t o n 1967, p. 224). Further, W a l t o n argues, his stance w a s v e r y m u c h in h a r m o n y w i t h the late m e d i e v a l c o m m u n a l i s t tradition at Z u r i c h in accordance w i t h w h i c h its civic g o v e r n m e n t had c o m e to w i e l d a far-reaching p o w e r o f jurisdiction o v e r the affairs o f the church. His a r g u m e n t parallels that o f B e r n d M o e l l e r , w h o , in a classic statement, claimed that for Z w i n g l i at Z u r i c h , as for B u c e r at Strasburg, the urban c o n t e x t in w h i c h they lived and w o r k e d helped m o u l d their t h e o l o g y and accounts in part for the difference b e t w e e n their political and ecclesiological t h i n k i n g and that o f Luther. ' T o understand and appreciate the characteristics o f this t h e o l o g y ' , he said, ' o n e must see it as the result o f the R e f o r m a t i o n message filtered t h r o u g h the actuality o f the free c i t y ' ( M o e l l e r 1972, p. 89). O f course, had Z w i n g l i m e t in the process o f the r e f o r m at Z u r i c h the t y p e o f f o o t - d r a g g i n g o n the part o f the civic authorities that B u c e r had periodically to c o p e w i t h at Strasburg or that C a l v i n encountered during the first phase o f his pastorate at G e n e v a , he m i g h t n o t h a v e endorsed the intrusion o f the magistrate into matters religious and ecclesiastical w i t h quite so m u c h ardour. In the De regno Christi, certainly, B u c e r g r u m b l e d that a n u m b e r o f princes or magistrates had 'accepted s o m e preaching o f the gospel o n l y in order that they m i g h t confiscate the rich properties o f the c h u r c h ' , and c o m m e n t e d sadly that a l t h o u g h 'in a great m a n y places the entire doctrine o f the K i n g d o m o f C h r i s t ' had been 'faithfully a n n o u n c e d to the p e o p l e , . . . I for one cannot say in w h a t churches it has y e t been f i r m l y accepted and Christian discipline p u b l i c l y constituted' (On the Kingdom of Christ, 1, 4: 1959, p . 2 1 3 ) . Nonetheless, e v e n in that w o r k , the ripe fruit o f reflection o n a lifetime o f r e f o r m i n g e n d e a v o u r , B u c e r v i e w e d b o t h state and c h u r c h as instrumentalities o f the d a w n i n g k i n g d o m o f G o d , and still affirmed his g u i d i n g c o m m i t m e n t to their h a r m o n i o u s integration in the c o m m o n task o f religious reform: that o f transforming their p e o p l e into ' d e v o u t and r i g h t e o u s ' citizens ' w h o r i g h t l y a c k n o w l e d g e and w o r s h i p their G o d and w h o are truly helpful t o w a r d their n e i g h b o u r s ' (On the Kingdom of Christ, 1,2: 1959, p. 180). A m o n g the t h e o l o g i c a l initiators o f R e f o r m e d Protestantism, indeed, it w a s left to C a l v i n to sound a clear note o f reserve a b o u t the role o f the t e m p o r a l authority in matters religious, to emphasise in such matters the independence and superiority o f the clerical 185

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authority, and to d o so in so forceful a m a n n e r as to m a k e that emphasis henceforth a distinguishing feature o f the R e f o r m e d tradition, e v o k i n g f r o m hostile contemporaries and m o d e r n c o m m e n t a t o r s alike s w e e p i n g comparisons b e t w e e n his G e n e v a n ideal and the triumphal papalism o f the h i g h m i d d l e ages. A t G e n e v a the facts o f the matter w e r e a g o o d deal m o r e c o m p l e x than such dramatic comparisons m i g h t suggest. B u t it is true that f r o m the m o m e n t o f his arrival there in 1536 C a l v i n placed a v e r y h e a v y emphasis o n the independence o f the ministers in the task o f i m p o s i n g a g o d l y discipline o n the inhabitants. Indeed, he p r o p o s e d an ecclesiastical ordinance that w o u l d h a v e left in clerical hands the crucial p o w e r o f e x c o m m u n i c a t i o n , and he pressed his demands so v i g o r o u s l y as to b r i n g about in 1538 his o w n dismissal and exile. E v e n w h e n he returned to G e n e v a in 1 5 4 1 , after the chastening experience o f exile and the o p p o r t u n i t y to learn at Strasburg f r o m B u c e r ' s m o r e supple tactics, w h i l e he w a s careful to signal his respect for the political s u p r e m a c y o f the city's g o v e r n i n g councils, he still pressed t h e m to p e r m i t the restoration o f ' p u r e discipline'. His persistence paid off. In 1555 he succeeded at last in g a i n i n g for the consistory o f pastors and elders — the essentially ecclesiastical o r g a n o f religious and m o r a l o v e r s i g h t — the full p o w e r o f e x c o m m u n i c a t i o n that the magistrates had p r e v i o u s l y m a n o e u v r e d b y careful qualifications to deny. His struggle for clerical independence in G e n e v a n o t w i t h s t a n d i n g , there is little reason in general, and w i t h reference to the y o u n g C a l v i n n o n e , to f o l l o w in the footsteps o f his sixteenth- and seventeenth-century critics and accuse h i m o f h a v i n g c o m p r o m i s e d Luther's c o n t r o l l i n g emphasis o n obedience to the t e m p o r a l p o w e r s that be. It is true that he did introduce a f e w a m b i v a l e n t sentences into the final (1559) edition o f his Institutes of the Christian Religion. It is also true that in the dedicatory letter to Francis I o f France w h i c h prefaced the v e r y first version o f the Institutes (published in M a r c h , 1536, prior to the start o f his first ministry in G e n e v a ) , C a l v i n w a s b o l d e n o u g h to insist that the ' K i n g w h o in ruling o v e r his realm does n o t serve G o d ' s g l o r y exercises n o t K i n g l y rule but b r i g a n d a g e ' (Institutes of the Christian Religion, prefi: i960, p . 12). In that same edition, m o r e o v e r , as in all subsequent editions o f the Institutes, he f o l l o w e d in the footsteps o f Z w i n g l i and M e l a n c h t h o n , and, for that matter, o f C i c e r o before t h e m , and in a classic passage e v o k e d the e x a m p l e o f the ephors at Sparta, w h o , he said, ' w e r e set against the Spartan k i n g s ' . ' I f there are n o w ' , he added, 'any [comparable] magistrates o f the people, appointed to restrain the wilfulness o f kings, . . . [with] such p o w e r as the three estates exercise in e v e r y realm 186

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w h e n they h o l d their c h i e f assemblies', then it is clearly their duty, as d i v i n e l y ordained protectors o f the people, to o p p o s e 'the fierce licentious ness o f k i n g s ' (iv, x x , 3 1 : i960, p . 1519). B u t such quasi-constitutionalist statements are framed b y a firm denial to private persons o f a n y right o f forcible resistance e v e n to tyrannical oppression. T y r a n t s , after all, m a y be the instruments o f G o d ' s w r a t h . A n d e v e n i f w e h a v e the d u t y to d i s o b e y i f c o m m a n d e d to d o w r o n g , w e are equally b o u n d to accept w i t h o u t recourse to v i o l e n c e the consequences o f that disobedience. S u c h statements are framed also b y a persistent emphasis o n the veneration due to t e m p o r a l rulers as G o d ' s 'vicegerents', wielders o f an authority g r o u n d e d n o t in h u m a n perversity but in 'the divine p r o v i d e n c e and h o l y ordinance', m e m b e r s o f a calling that is 'not o n l y h o l y and l a w f u l before G o d ' , but also the m o s t sacred and b y far the most h o n o u r a b l e 'in the w h o l e life o f m o r t a l m e n ' (iv, x x , 4 and 3 1 : i960, p p . 1489—90, 1518). S u c h statements are framed, again, b y an u n r e m i t t i n g insistence that the n e w g o s p e l w a s n o t 'the o p p o r t u n i t y for sedition', that Christian liberty w a s 'in all its parts a spiritual t h i n g ' , s o m e t h i n g 'to k e e p w i t h i n its o w n limits' and n o t to be misinterpreted and placed in the service o f anarchy and licentiousness (pref, m , x i x , 9, i x , x x , 1: i960, p p . 30, 460, i486). A s early as A u g u s t 1535, he set out to assure Francis I that Protestants w e r e n o t ' c o n t r i v i n g the o v e r t h r o w o f K i n g d o m s ' . A n d w i t h g o o d reason. H e w a s w r i t i n g , after all, in the i m m e d i a t e aftermath o f the Anabaptist attempt to establish b y v i o l e n t r e v o l u t i o n a n e w Jerusalem in the imperial city o f Minister — the dramatic incident w h i c h e v e n m o r e than the Peasants' R e v o l t o f 1525 suggested a c o m p r o m i s i n g link b e t w e e n Protestantism and sedition and succeeded in a l a r m i n g m o r e than the conservatives o f the day. A n d it seems clear that it is the Anabaptists and related radical reformers that he has in m i n d w h e n he subsequently excoriates the ' o u t r a g e o u s barbarity' o f those 'fanatics' and t u m u l t u o u s spirits, those 'insane and barbarous m e n ' w h o 'furiously strive to o v e r t h r o w ' the civil g o v e r n m e n t w h i c h G o d has h i m s e l f ordained for o u r w e l l - b e i n g (iv, x x , 1 - 3 : i960, p p . 1485-8).

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C a l v i n w a s at one w i t h b o t h L u t h e r and Z w i n g l i before h i m w h e n he saw the Anabaptists as b l a s p h e m o u s p u r v e y e r s o f sedition and v i e w e d the career o f M i i n t z e r and the later outburst at Minister as accurately r e v e l a t o r y o f their true intentions. T h e i r n e g a t i v e v i e w o f the radicals 187

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o f the R e f o r m a t i o n p r o v e d determinative for subsequent historical inter pretations. It is b y w a y o f reaction to a well-established d e r o g a t o r y stereotype that the scholarship o f the first half o f the present century, m u c h o f it M e n n o n i t e , strove to depict as ' n o r m a t i v e ' the 'evangelical A n a b a p tism' typified b y C o n r a d G r e b e l and his Swiss B r e t h r e n , w h o b r o k e in 1523 w i t h Z w i n g l i ' s b u d d i n g state-church at Z u r i c h and in 1525 f o r m a l l y adopted the practice o f adult baptism. S u c h earlier n o r t h G e r m a n radicals as A n d r e a s B o d e n s t e i n v o n Karlstadt at W i t t e n b e r g or M u n t z e r at Z w i c k a u w e r e d i s a v o w e d as progenitors, and it w a s emphasised that G r e b e l had r e b u k e d M u n t z e r in 1524 for his a d v o c a c y o f v i o l e n c e . Similarly, the a p o c a l y p t i c revolutionaries at Minister w e r e bracketed as aberrations f r o m the n o r m . T h e y w e r e m e r e l y fanatics o f the fringe w h o had p r o p e r l y to be dissociated f r o m the mainstream o f R e f o r m a t i o n radicalism, w h i c h w a s c o m m i t t e d quintessentially to the practices o f toleration and adult baptism, to the ideals o f pacifist non-resistance to the p o w e r s that be, and quietist separation f r o m the evils o f society at large. B u t i f this m o r e positive appraisal succeeded in i m p o s i n g a certain unity o n the t e e m i n g c o m p l e x i t i e s o f w h a t has sometimes been referred to as the 'left w i n g ' o f the R e f o r m a t i o n , o v e r the past t w e n t y years that a c h i e v e m e n t has itself been called into question. After all, e v e n H e i n r i c h B u l l i n g e r , Z w i n g l i ' s successor at Z u r i c h , and the m a n w h o s e hostile account o f A n a b a p t i s m did m u c h to establish the n e g a t i v e stereotype, perceived the diversity w i t h i n the m o v e m e n t he labelled as Anabaptist. T h e current disposition o f m a n y scholars, therefore, is simply to admit that diversity, to c o n c e d e that a m o n g the Anabaptists themselves there w a s a plurality o f traditions, to a b a n d o n as misleading the practice o f labelling all radicals as 'Anabaptists' and as futile the attempt to trace t h e m all back to a single source — w h e t h e r it be n o r t h G e r m a n or Swiss. H e n c e the tendency is to assume that 'the p r o p e r focus in the history o f A n a b a p t i s m is o n interacting g r o u p s and sects rather than o n a unified m o v e m e n t ' (Stayer 1973, p. 20). A m o n g these interacting g r o u p s and sects three principal 'families' h a v e been identified. T h e first can be traced b a c k to G r e b e l and his f o l l o w e r s in S w i t z e r l a n d , the second to Hans H u t and Hans D e n c k in south G e r m a n y and Austria, the third to M e l c h i o r H o f f m a n and Jan Matthijs in n o r t h G e r m a n y and the Netherlands. B e t w e e n and a m o n g these families there w e r e c o m p l e x cross-currents, disagreements, and affiliations, but in origin — and in s o m e measure in their particular inspiration — they appear to h a v e been distinct. W h i l e it w a s the religious and political u p h e a v a l engineered b y the magisterial reformers that liberated their o w n spiritual energies, 188

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Christian obedience and authority, 1520—1550 those energies w e r e fuelled in s o m e cases, n o t so m u c h b y the religious concerns characteristic o f the great reformers, but b y motifs o f late m e d i e v a l p r o v e n a n c e — w h e t h e r a p o c a l y p t i c , mystical, or anti-clerical, or, alternatively, b y a heartfelt desire, g r o u n d e d in a simple biblical literalism, to r e c o v e r the t y p e o f m o r a l purity seen to be characteristic o f the apostolic c h u r c h but unattainable in the n e w but already hopelessly c o m p r o m i s e d established churches o f the R e f o r m a t i o n . W i d e s p r e a d a m o n g t h e m all, t h o u g h variously g r o u n d e d t h e o l o g i c a l l y , w a s a v e r y un-Protestant emphasis o n the role o f free w i l l in the process o f salvation. Similarly, there w a s a widespread v i e w o f the visible c h u r c h o n earth as itself a v o l u n t a r y c o m m u n i t y c o m p o s e d o n l y o f the truly regenerate, o f m e n and w o m e n the v e r y quality o f w h o s e lives attested to the possession o f a conscious and transformative faith and w h o , b y accepting Christian baptism, publicly attested to their regeneration. A l o n g w i t h that w e n t also a c o n c o m i t a n t t e n d e n c y to separate not o n l y f r o m the established ecclesiastical bodies o f the day, Protestant as w e l l as C a t h o l i c , but also f r o m i n v o l v e m e n t in the c o e r c i v e instrumentalities o f political society. T h i s last t e n d e n c y w a s at first n o m o r e than that. E v e n apart f r o m those a p o c a l y p t i c spirits w h o w e r e w i l l i n g to resort to r e v o l u t i o n a r y v i o l e n c e in order to inaugurate the rule o f the saints, there w e r e other radical leaders, and in the N e t h e r l a n d s and S w i t z e r l a n d as w e l l as south G e r m a n y , w h o w e r e w i l l i n g to u r g e their f o l l o w e r s to participate in the political process in order to elect magistrates w i t h c o m p a t i b l e religious ideals, or, as in the case o f Balthasar H u b m a i e r , to endorse a vision o f the relationship o f church and state close to that o f Z w i n g l i himself. O n l y in February, 1523, in the historic formulations o f the Schleitheim Confession, did the Swiss B r e t h r e n themselves accept M i c h a e l Sattler's teaching o f non-resistant, separatist apoliticism. O n l y in the late 1530s did the f o l l o w e r s o f H u t in south G e r m a n y rally to the same standard. O n l y after the death o f M e n n o S i m o n s in 1561 did the M e n n o n i t e s , w h o traced their origins back to the Melchiorites o f n o r t h G e r m a n y and the Netherlands, fall finally into line. It w a s at the t e r m o f their d e v e l o p m e n t rather than in their origins that m o s t o f the radicals o f the R e f o r m a t i o n a c k n o w l e d g e d the Schleitheim Confession as a n o r m a t i v e statement o f their beliefs and coalesced into those apolitical Anabaptist c o n g r e g a t i o n s that manifested so clearly the features characteristic o f T r o e l t s c h ' s 'sect-type' Christianity. H e w i n g closely in their public n o less than their private lives to the N e w T e s t a m e n t ethic at its m o s t e x a c t i n g , and rejecting any attempt to d r a w f r o m the O l d T e s t a m e n t any n o r m s g o v e r n i n g their relationship to civil society, they affirmed their 189

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adhesion to the v o l u n t a r y c h u r c h o f the regenerate. E n t r y into that c h u r c h w a s to be b y adult baptism g i v e n o n l y to 'those w h o h a v e learned repentance and a m e n d m e n t o f life and w h o b e l i e v e truly that their sins are taken a w a y b y C h r i s t ' (Schleitheim Confession: W e n g e r 1945, p. 248). T h e purity o f the c o m m i t m e n t i n v o l v e d w a s to be sustained b y a stern discipline guaranteed in the last resort b y the i m p o s i t i o n o f the ban but nourished o n a d a y - t o - d a y basis b y a p o l i c y o f w i t h d r a w a l ' f r o m B a b y l o n and the earthly E g y p t ' , and f r o m ' f e l l o w s h i p w i t h . . . the w i c k e d ' ( W e n g e r , 1945, p . 249). Separation, that is, n o t o n l y f r o m 'all popish and anti-popish w o r k s and c h u r c h services, meetings and c h u r c h attendance', but also f r o m all bearing o f arms, taking o f oaths, recourse to courts o f l a w , service as magistrate, i n v o l v e m e n t in civil affairs ( W e n g e r 1945, p. 249). T h e s w o r d o f t e m p o r a l authority is certainly d i v i n e l y ordained, n o t for the regenerate, h o w e v e r , w h o h a v e n o need o f it, but for the c u r b i n g and punishment o f the w i c k e d , w h o d o . It is ordained, in effect, 'outside the perfection o f C h r i s t ' ( W e n g e r 1945, p. 250). U n l i k e Luther and Z w i n g l i , therefore, true Christians w i l l n o t accept the protection o f the s w o r d , m u c h less, like M ü n t z e r and his f o l l o w e r s , resort to it in the n a m e o f the gospel. Sattler's endorsement o f this t y p e o f non-resistant separatism, and the later rallying o f other Anabaptists to the same apolitical standard, reflect the bitter experience o f persecution and their repeated failure to gain for their reforms the sustained support o f the political authorities. B u t it bears witness also to the revulsion they themselves sooner or later c a m e to feel for the r e v o l u t i o n a r y v i o l e n c e resorted to b y M ü n t z e r in 1525 and b y the f o l l o w e r s o f Matthijs at M ü n s t e r in 1534—5. A n d t h o u g h there w a s certainly n o identity o f v i e w p o i n t b e t w e e n M ü n t z e r and the radicalised Melchiorites o f Münster, the crusading a p o c a l y p t i c i s m they b o t h shared, and their belief that the k i n g d o m o f G o d w a s finally d a w n i n g on earth, can plausibly be illustrated f r o m the Sermon before the Princes that M ü n t z e r preached at Allstedt o n 13 July 1524, in the presence o f the d u k e o f S a x o n y and his son. In c o m m o n w i t h one o f the pamphlets B e r n h a r d R o t h m a n n w a s to defence o f the N e w Jerusalem at M ü n s t e r and w r i t e later o n in 1534—5 w i t h w h i c h it shared m a n y a point in c o m m o n , M ü n t z e r ' s Sermon focused o n a m u c h - f a v o u r e d a p o c a l y p t i c text, o n N e b u c h a d n e z z a r ' s dream, and Daniel's interpretation o f the four great k i n g d o m s o f history and the final k i n g d o m w h i c h 'the G o d o f h e a v e n w i l l set up . . . w h i c h shall n e v e r be d e s t r o y e d ' (Daniel 2:44). A n n o u n c i n g that 'the spirit o f G o d is revealing to m a n y elect, pious persons a decisive, inevitable, i m m i n e n t reformation m

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Christian obedience and authority, 1520—1550 [accompanied] b y great anguish', and insisting that 'it must be carried out to c o m p l e t i o n ' , he u r g e d the princes n o t to let themselves be d e c e i v e d b y 'the false clerics and the v i c i o u s reprobates' o f the d a y (Sermon before the Princes: 1957, p p . 62, 64—5). A m o n g those false clerics, he struck out particularly at the Lutherans for teaching that 'the princes are in respect to their office a p a g a n p e o p l e . . . able to maintain n o t h i n g other than a civil u n i t y ' (p. 65). T h a t teaching ran counter to the v e r y w o r d s o f Paul h i m s e l f ( R o m a n s 13:1—4), w h o tells us that the ruler does n o t bear the s w o r d in vain, that he is the instrument G o d uses to visit his anger u p o n the w r o n g d o e r . I f ' C h r i s t ' s g o v e r n m e n t ' , therefore, is n o t to be ruined and i f the true r e f o r m is to be achieved, rulers must n o t hesitate to use the s w o r d to drive G o d ' s 'enemies f r o m the elect' (pp. 65—6), to ' w i p e o u t the godless', to p l u c k the w e e d s ' o u t o f the v i n e y a r d o f G o d ' (p. 68), to 'eliminate . . . the w i c k e d w h o hinder the G o s p e l ' (p. 65). S h o u l d they so hesitate, he w a r n e d , the s w o r d w o u l d be 'taken f r o m t h e m ' (p. 68), for 'the p o o r [laity o f the t o w n s ] and the peasants' see the a d v e n t o f the k i n g d o m far better than d o they (p. 63). A n d , as i f to underline this last point, M ü n t z e r w e l c o m e d the Peasants' R e v o l t as an a p o c a l y p t i c sign and h i m s e l f j o i n e d forces w i t h the peasants at M ü l h a u s e n . S u c h v i e w s , it is n o w clear, did n o t die w i t h M ü n t z e r . T h e y s u r v i v e d e v e n the N e w Jerusalem at M ü n s t e r and M e n n o S i m o n s ' successful efforts to lead the b u l k o f the M e l c h i o r i t e s a w a y f r o m r e v o l u t i o n a r y activism and b a c k to their originally peaceful c o m m i t m e n t s . In the late 1530s, quasiterrorists o f unrepentantly M ü n t z e r i t e c o n v i c t i o n s w e r e to be found in central G e r m a n y ; years later, the f o l l o w e r s o f Jan v a n B a t e n b u r g , w h o w a s said to h a v e taught that r o b b e r y and m u r d e r o f the o b d u r a t e l y u n c o n v e r t e d w a s n o sin, k e p t alive a f o r m o f violent M e l c h i o r i t e a p o c a l y p t i c i s m in n o r t h G e r m a n y and the Netherlands. In the course o f less than t w o decades the i m p a c t o f the Protestant R e f o r m a t i o n u p o n the political t h o u g h t o f the age had been a dramatic one indeed. It had succeeded in d i v e r t i n g the mainstream o f political thinking f r o m its established m e d i e v a l course into a c o m p l e x o f essentially scriptural channels leading, at one e x t r e m e , to the a p o c a l y p t i c justification o f r e v o l u t i o n a r y v i o l e n c e , at the other, to an e n h a n c e m e n t in status o f the t e m p o r a l authority and an e n o r m o u s emphasis o n its claims to l o y a l t y and obedience. If the f o r m e r d e v e l o p m e n t w a s the less characteristic, it w a s p o w e r f u l l y influential b y virtue o f the reactions it inspired. It ended b y n u d g i n g the Anabaptists in the direction o f non-resistant separatism — an 191

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essentially apolitical stance that m a d e its m a r k o n the history o f political t h o u g h t o n l y indirectly, and then a full century later in E n g l a n d . T h e r e the Separatists, h a v i n g first a d o p t e d f r o m their m o r e radical forebears the idea o f the c h u r c h as a free and v o l u n t a r y association o f believers b o u n d t o g e t h e r b y p r o m i s e and consent, w e r e led a m i d the t u r m o i l o f religious unrest and civil w a r to a p p l y to the civil p o l i t y that same individualistic, consensual and i m p l i c i t l y contractarian m o d e l . A t the same time, and d u r i n g the era o f R e f o r m a t i o n itself, the turbulence o f their radical brethren m a d e it e v e n harder for Lutherans and Calvinists alike, w h e n confronted in m i d - c e n t u r y w i t h increasingly m e n a c i n g political c o n ditions, to m o d i f y the absolute nature o f their original teaching o n the sinfulness o f forcible resistance to the p o w e r s that be. T h a t teaching, rather than a n y t h i n g else, w a s the fundamental doctrinal contribution m a d e b y the magisterial reformers to the d e v e l o p m e n t o f E u r o p e a n political t h i n k i n g . It w a s the failure o f those reformers to c o m m a n d for their v i e w s a universal allegiance, rather than any m o r e faithful d e d u c t i o n f r o m their doctrinal premises, that led their f o l l o w e r s to m o d i f y that original teaching. A n d w h e n finally they did so, they o p e n e d up the w a y , ironically e n o u g h , n o t to any great theoretical novelties, but rather to the r e v i v a l o f m e d i e v a l constitutionalist ideas.

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7 Calvinism and resistance theory, 1550-1580 ROBERT

M.

KINGDON

T h e second generation o f the R e f o r m a t i o n w a s d o m i n a t e d b y the f o l l o w e r s o f J o h n C a l v i n . C a l v i n , to be sure, w a s but one o f a n u m b e r o f theologians w h o p r o v i d e d intellectual leadership to the n e w t y p e o f Protestantism that e m e r g e d in these years. A n d he built u p o n a base that had already been constructed b y H u l d r e i c h Z w i n g l i in Z u r i c h , M a r t i n B u c e r in Strasburg, and others. B u t he a c h i e v e d such p r o m i n e n c e w i t h i n the m o v e m e n t , b o t h a m o n g its advocates and its opponents, that it can fairly be called C a l v i n i s t . T h i s n e w t y p e o f Protestantism w a s created in a n u m b e r o f free cities in w h a t is n o w southern G e r m a n y and S w i t z e r l a n d , and continued to bear traces o f its civic origins. It d e v e l o p e d institutions that w e r e able to penetrate into hostile parts o f E u r o p e outside o f the H o l y R o m a n E m p i r e , and thus c a m e to be the f o r m o f Protestantism m o s t c o m m o n in areas outside the G e r m a n heartland o f the m o v e m e n t . A n d it also tended to b e c o m e particularly militant, n o t hesitating to mobilise political and military forces in order to w i n its w a y . T h i s militant posture m a d e it necessary for Calvinists to d e v e l o p theories in justification o f political resistance: they did d e v e l o p such theories, s o m e b e i n g b o t h subtle and influential. In the d e v e l o p m e n t o f Calvinist resistance theory, C a l v i n himself p l a y e d a role w h i c h w a s seminal but n o t major. For the greatest political challenges to his m o v e m e n t d e v e l o p e d after his death. C a l v i n first w o n intellectual p r o m i n e n c e in 1536, w i t h the publication o f the first edition o f his Institutes of the Christian Religion, but he did n o t w i n institutional p r o m i n e n c e until 1555, the year his supporters w o n c o n t r o l o f the city o f G e n e v a , and he did n o t gain an international role until the 1560s, w h e n his f o l l o w e r s t o o k the leadership in p r o m o t i n g militant m o v e m e n t s in his native France, in the Netherlands, in Britain, and in parts o f G e r m a n y . It w a s especially at the times those f o l l o w e r s faced annihilation in the ensuing religious w a r s , m o s t 193 Cambridge Histories Online © Cambridge University Press, 2008

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particularly after the St B a r t h o l o m e w ' s massacres o f 1572 in France, that a h i g h l y articulated resistance t h e o r y w a s d e v e l o p e d . B u t this w a s l o n g after C a l v i n ' s death in 1564, and thus had to be the w o r k o f his successors.

i

K n o x and the anti-Marian resistance

W e l l before C a l v i n ' s death, h o w e v e r , o n e g r o u p o f his f o l l o w e r s d e v e l o p e d a b o d y o f resistance t h e o r y . T h e s e w e r e the English and Scottish M a r i a n exiles, refugees f r o m the E n g l a n d o f M a r y T u d o r and the Scotland o f M a r y o f Guise, resident in a n u m b e r o f R e f o r m e d cities o n the continent, including C a l v i n ' s o w n G e n e v a . L i k e m a n y i d e o l o g i c a l refugees before and since, these M a r i a n exiles spent m u c h o f their time in conspiring against the g o v e r n m e n t w h i c h had d r i v e n t h e m out, in l o o k i n g for w a y s to create a m o r e c o n g e n i a l g o v e r n m e n t that m i g h t m a k e possible their return h o m e . T h e M a r i a n exile w a s short, as exiles g o , for M a r y T u d o r sat u p o n the throne o f E n g l a n d for o n l y five years, f r o m 1553 to 1558, and f e w o f the refugees w e r e g o n e f r o m Britain for that entire period. B u t her rule w a s precarious, m a n y o f her subjects uncertain and upset, and this c o u l d o n l y e n c o u r a g e their compatriots in foreign exile to call m o s t stridently for resistance. A n u m b e r o f these exiles w r o t e political pamphlets and had t h e m printed in major Protestant publishing centres o n the continent, for circulation a m o n g f e l l o w exiles to k e e p strong their c o m m i t m e n t to the cause and for s m u g g l i n g into E n g l a n d to e n c o u r a g e subversion o f the g o v e r n m e n t . A m o n g these exiles, three w r o t e particularly interesting statements o f resistance t h e o r y . T h e y w e r e J o h n P o n e t , the f o r m e r bishop o f W i n c h e s t e r , in exile in Strasburg; C h r i s t o p h e r G o o d m a n , a f o r m e r professor at O x f o r d , in exile in G e n e v a ; and J o h n K n o x , the future leader o f the R e f o r m a t i o n in Scotland, w i t h G o o d m a n in G e n e v a . It can be a r g u e d that n o n e o f these three w a s a true Calvinist, that their theologies had been f o r m e d under the influence o f Swiss and R h e n i s h theologians w e l l before they c a m e to k n o w C a l v i n . Still they fell under his spell w h i l e o n the continent, m o s t o b v i o u s l y K n o x , and their f o l l o w e r s helped plant C a l v i n ' s t h o u g h t as the r e i g n i n g f o r m o f t h e o l o g y b a c k in Britain after the exile. F o r these reasons it is fair to call their resistance ideas an early f o r m o f Calvinist theory. T h e first o f these three to publish a political tract w a s P o n e t . His A Shorte Treatise ofPolitike Power, and of the true obedience which subjectes owe to kynges and other civile governours . . ., w a s printed a n o n y m o u s l y in 1556 in 194

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Strasburg. It w a s n o t o n l y one o f the earliest statements o f a C a l v i n i s t theory, it w a s also one o f the m o s t radical — for it called for popular r e v o l u t i o n and tyrannicide. In f o r m this treatise is d i v i d e d into eight sections, the first seven in turn e x p l o r i n g separate political questions, the last issuing a general w a r n i n g to the lords and c o m m o n s o f E n g l a n d . O f these sections, the m o s t i m p o r t a n t for an understanding o f P o n e t ' s resistance t h e o r y is n u m b e r 6, d e v o t e d to the question: ' W h e t h e r it be l a w f u l to depose an evil g o v e r n o r and kill a tyrant.' Ponet's answer is a resounding yes, d o c u m e n t e d b y m a n y e x a m p l e s o f depositions and assassinations d r a w n f r o m the O l d T e s t a m e n t , ecclesiastical history, and English history. T h e y include general uprisings, depositions b y legal process, and assassinations b y individuals. P o n e t gives the impression that a n y o n e w h o can get a w a y w i t h an act o f v i o l e n t resistance to a tyrant should. H e does n o t limit the d u t y o f resistance to any particular k i n d o f agent. S o m e o f his e x a m p l e s , h o w e v e r , d o suggest a limitation o f a sort that w a s to be i m p o r t a n t in later C a l v i n i s t t h e o r y . H e points out, for e x a m p l e , that the popes w h o w e r e deposed at the C o u n c i l o f C o n s t a n c e w e r e deposed b y the cardinals w h o created t h e m (pp. 103—5), thus intimating that the granting o f p o w e r in an election is conditional and can be r e v o k e d if that p o w e r is misused. A n d in an earlier section, n u m b e r 1, o n the origins o f g o v e r n m e n t , a classic Christian a r g u m e n t that all g o v e r n i n g p o w e r is derived f r o m G o d fleshed out w i t h an Aristotelian analysis o f the types o f g o v e r n m e n t , he points to institutions w i t h i n m a n y g o v e r n m e n t s designed to h o l d rulers to their duties, to p r e v e n t t y r a n n y . T h e s e include the ephors o f Sparta, the tribunes o f R o m e , the m e m b e r s o f the imperial ' c o u n c i l or diet' in G e r m a n y , the m e m b e r s o f the parliaments in E n g l a n d and France, all representatives o f the p e o p l e c h a r g e d w i t h k e e p i n g a check o n e x e c u t i v e p o w e r (pp. 11—12). P o n e t does n o t return to these institutions in his analysis o f resistance, h o w e v e r , so they d o n o t play a v e r y i m p o r t a n t role in his theory. Ponet's target, furthermore, is n o t so m u c h the g o v e r n m e n t o f E n g l a n d as it is her c h u r c h . T h e individuals he singles o u t for his m o s t v i o l e n t attacks are her C a t h o l i c bishops, m o s t n o t a b l y Stephen Gardiner — his C a t h o l i c rival for W i n c h e s t e r — and E d m u n d B o n n e r — w h o supervised in L o n d o n the greatest n u m b e r o f burnings o f Protestants. H e also attacks in v a g u e r terms the Spanish advisers to the queen, as foreigners seeking to force 1. Hudson 1942 includes as an appendix a facsimile reprint o f the Shorte Treatise of Politike

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E n g l i s h m e n out o f their rightful positions. B u t he n e v e r mentions M a r y T u d o r at all. A n d he makes it clear that he did not a p p r o v e o f the attempt engineered b y J o h n D u d l e y , d u k e o f N o r t h u m b e r l a n d , to substitute L a d y Jane G r e y for M a r y at the b e g i n n i n g o f her reign. T h e g o v e r n m e n t w h i c h P o n e t w a n t s to see deposed is an ecclesiastical g o v e r n m e n t ; the tyrants he w a n t s to see assassinated are its bishops. His t h e o r y , therefore, is still v e r y m u c h a part o f the general Protestant struggle against C a t h o l i c s that m a r k e d the early stages o f the R e f o r m a t i o n . It is religious; it is sectarian; it does not h a v e the m o r e political and secular significance o f later theories. T h e r e is an i m p o r t a n t shift in target in the pamphlets o f G o o d m a n and K n o x w h i c h appeared t w o years later, in 1558, f r o m the press o f Jean C r e s p i n in G e n e v a . T h e y still lambast the C a t h o l i c bishops and Spanish advisers, but their p r i m a r y target is M a r y T u d o r , and there is an almost hysterical m i s o g y n y to their a r g u m e n t . G o o d m a n is the m o r e c o m p r e h e n s i v e and the m o r e interesting o f the t w o for students o f t h e o r y . His How Superior Powers Oght to be Obeyd of their Subjects b e g a n as a s e r m o n o n A c t s 4, but w a s e x t e n d e d into a full treatise o n resistance, d e v e l o p i n g one general lesson: w e must o b e y G o d rather than m a n . It has s o m e o f the shape o f a scholastic treatise, w i t h t w o chapters, 8 and 9, raising objections to his o w n a r g u m e n t f r o m first the N e w T e s t a m e n t and then the O l d T e s t a m e n t , f o l l o w e d b y f o r m a l refutations to each. G o o d m a n w a s also radical, as radical as P o n e t , calling for p o p u l a r r e v o l u t i o n and tyrannicide. T h e unusual feature o f his a r g u m e n t is its m i s o g y n y . A p p l y i n g his general precept, that w e must o b e y G o d rather than m a n , he proceeds to argue that w e must o b e y G o d in the principles b y w h i c h w e choose rulers rather than f o l l o w our o w n fantasies. B u t those principles preclude the choice o f a w o m a n for that 'is against nature and G o d ' s ordinance' (p. 52). Just as a w o m a n is incapable o f ruling a family or h o l d i n g an inferior office w i t h i n a g o v e r n m e n t , so is she totally unfit for supreme rule. M a r y is unfit not o n l y because she is a w o m a n , furthermore, but because she is a 'bastard b y birth' (p. 97) and thus barred b y the l a w s o f inheritance f r o m rule, and is also an ' o p e n idolatress' (p. 99) w h o deserves death. F u r t h e r m o r e , this sentence can be e x e c u t e d b y a n y o n e w h o can m a n a g e it. G o o d m a n explicitly refuses to limit the right o f resistance to magistrates and inferior officers, a r g u i n g that ' c o m m o n p e o p l e also' (p. 142) must m a k e their princes o b e y G o d ' s laws. T h e v e n g e a n c e o f G o d u p o n an idolatrous c o m m u n i t y w i l l fall u p o n the 2

2. G o o d m a n ' s How Superior Powers Oght to be Obeyd (1558) is available in a facsimile reprint w i t h a brief introduction b y C . H . M c l l w a i n .

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entire c o m m u n i t y , n o t just its leaders. It is therefore the responsibility o f all to avert the calamity w h i c h the pollution o f idolatry w i l l o t h e r w i s e b r i n g u p o n the c o m m u n i t y . A g o o d e x a m p l e , says G o o d m a n , is Matathias in the b o o k s o f the M a c c a b e e s w h o ' w a s n o public person' (p. 76) yet led the r e v o l t against A n t i o c h u s that ended in the killing o f the tyrant. G o o d m a n ' s treatise, like Ponet's, is religious and sectarian, and indeed has an e v e n nastier p o l e m i c a l e d g e . B u t it does h a v e a m o r e o p e n l y political content, since its p r i m e target is the head o f state, the queen. T h e r e is an e v e n m o r e sharply d e v e l o p e d m i s o g y n y in K n o x , for K n o x spent m u c h o f his life organising resistance to the rule o f w o m e n — first M a r y T u d o r , then M a r y o f Guise as regent o f Scotland, finally her daughter M a r y Stuart. K n o x w a s also m u c h m o r e p r o m i n e n t as an actual leader o f resistance than either P o n e t or G o o d m a n . Ponet, indeed, died before he c o u l d return to E n g l a n d . B u t K n o x b e c a m e the c h i e f ideological leader o f the Protestant m o v e m e n t in Scotland, w i t h s o m e influence south o f the b o r d e r into E n g l a n d . K n o x ' s political w r i t i n g s , in consequence, h a v e s o m e o f the practical quality o f an active leader, closely adapted to the circumstances for w h i c h they w e r e written. T h e first and best k n o w n o f these w r i t i n g s is his First Blast of the Trumpet Against the Monstrous Regiment of Women ( K n o x 1846—64, iv, pp. 363-420). It is a real classic o f m i s o g y n y , elegantly organised and d e v e l o p e d w i t h a relentless scholastic l o g i c . His purpose, he tells us in the preface, is to demonstrate ' h o w a b o m i n a b l e before G o d is the E m p i r e or R u l e o f a w i c k e d w o m a n , yea, o f a traiteresse and bastard' (p. 365). H e then d e v e l o p s three separate proofs o f this proposition: the first is f r o m nature, q u o t i n g Aristotle and the C o r p u s Juris C i v i l i s to the effect that w o m e n are inherently unstable and should thus n o t possess political or judicial authority; the second is f r o m Scripture, q u o t i n g Genesis and St Paul to suggest that G o d h i m s e l f prefers that w o m e n be subject n o t o n l y to their husbands but to m e n in general; the third is f r o m order and equity, and advances an organic a n a l o g y , c o m p a r i n g society to a b o d y and m a n to its head, b a c k e d b y analogies f r o m the animal k i n g d o m . In proper scholastic fashion he then states and refutes objections d r a w n f r o m the O l d T e s t a m e n t , the N e w T e s t a m e n t , and the history o f certain other g o v e r n ments. H e concludes that it is a d u t y o f the n o b i l i t y and estates that had elected w o m e n as rulers to correct their mistake b y deposing those w o m e n . O n l y at this point does the a r g u m e n t enter the d o m a i n o f resistance theory, and the conclusion is n o t elaborated v e r y m u c h . K n o x ' s p r i m a r y target t h r o u g h o u t this treatise is M a r y T u d o r o f England, but he a c k n o w l e d g e s in 197

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passing that the a r g u m e n t also applies to Scotland, then ruled b y M a r y o f Guise, as regent for M a r y Stuart. K n o x then turns to his native Scotland and writes a n u m b e r o f pamphlets attacking its g o v e r n m e n t . T h e y are The Copy of a Letter Delivered to the Lady Marie, Regent of Scotland (first printed in 1556), The Appellation ... to the nobilitie, estates, and communaltie (of Scotland), and A Letter Addressed to the Commonalty of Scotland, all published in G e n e v a in 1558 ( K n o x 1846—64, i v , p p . 429—60, 465—520, 521—40). T h e s e three treatises take the f o r m o f appeals against a sentence issued b y the c o n v o c a t i o n o f the C a t h o l i c church o f Scotland b a c k in 1556, c o n v i c t i n g K n o x o f heresy and o r d e r i n g his e x e c u t i o n . In f o r m , therefore, they are primarily diatribes against the C a t h o l i c c l e r g y and pleas for intervention b y the secular authorities in this as in other matters o f c h u r c h business. T h e tyrants K n o x attacks are C a t h o l i c bishops and abbots, the resistance he encourages is b y l a y m e n against clerical rule. In this they are reminiscent o f P o n e t , or for that matter o f Protestant p o l e m i c in general. T h e m o s t temperate o f the three is the letter to the queen regent, M a r y o f Guise. It is polite and respectful, almost c o u r t l y in tone. T h e r e is almost n o n e o f the m i s o g y n y o f the First Blast, save for one rather condescending passage in w h i c h he expresses regret that the instability that goes w i t h her sex w i l l m a k e it impossible for her rule to last v e r y l o n g (p. 452). A b o v e all it is a plea that she intervene to lift the c o n d e m n a t i o n o f K n o x and other Protestants, e v e n t h o u g h she remains C a t h o l i c , and inaugurate a p o l i c y o f toleration for the t w o faiths. His emphasis o n the p o w e r o f a ruler to c o n t r o l religious matters led one k i n g , James V I o f Scotland and I o f England, to claim in this p a m p h l e t support for his o w n Erastian v i e w s o n the rights o f a m o n a r c h to c o n t r o l a national church, a l t h o u g h James exaggerates the point s o m e w h a t ( K n o x 1846—64, iv, p p . 4 2 5 - 8 ) . K n o x ' s a r g u m e n t is e x p a n d e d and m a d e s o m e w h a t m o r e concrete in the Appellation. H e r e he d e v e l o p s the contention that his c o n d e m n a t i o n b y the C a t h o l i c c l e r g y violated due process o f l a w , as codified b y the civil l a w y e r s , and that in any e v e n t the matter should be settled in a secular court. H e g o e s o n to argue that it is the p r i m a r y purpose o f all secular g o v e r n m e n t to see to the 'reformation o f religion . . . and punishment o f false teachers' (p. 485), and thus calls u p o n their assistance in his c a m p a i g n to rid Scotland o f its C a t h o l i c c l e r g y . H e insists that this is an o b l i g a t i o n laid b y G o d n o t o n l y u p o n kings but also u p o n all magistrates and other officers o f g o v e r n m e n t , particularly in times w h e n a k i n g fails to undertake this d u t y . In fact he argues that each and e v e r y m e m b e r o f a c o m m u n i t y is responsible for the suppression o f idolatry, his c o d e w o r d for C a t h o l i c i s m , and that G o d w i l l 198 Cambridge Histories Online © Cambridge University Press, 2008

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punish the entire c o m m u n i t y i f this is n o t done. H e f o l l o w s the scholastic format o f the First Blast in raising and then refuting a n u m b e r o f objections to this thesis. M o s t o f his e x a m p l e s o f p r o p e r suppression o f idolatry are d r a w n f r o m the O l d T e s t a m e n t , w h i c h he insists must continue to serve as a g u i d e to Christians in matters o f this sort. In an aside, he says that it is 'the d u t y o f the N o b i l i t y , Judges, R u l e r s and P e o p l e o f E n g l a n d ' to resist and put to death M a r y T u d o r , for p e r m i t t i n g the return o f ' i d o l a t r y ' to that c o u n t r y (p. 507). T h i s is the o n l y o p e n appeal to resistance in the p a m p h l e t . His target is p r i m a r i l y the C a t h o l i c c l e r g y o f Scotland, he rarely mentions its r o y a l g o v e r n m e n t , his g o a l is to persuade the lay n o b i l i t y o f the realm to j o i n his c a m p a i g n against C a t h o l i c i s m . Finally in his Letter to the Commonalty K n o x again appeals that his c o n d e m n a t i o n be lifted so that he m i g h t h a v e f r e e d o m to preach, and calls u p o n the general p o p u l a t i o n to j o i n in this c a m p a i g n . H e does n o t advise t h e m to j o i n in any f o r m o f a r m e d resistance, h o w e v e r , c o n t e n t i n g h i m s e l f w i t h asking t h e m to disobey the C a t h o l i c c l e r g y and refuse to p a y tithes and other financial dues o w e d to t h e m . A t the v e r y end o f this piece, K n o x adds an outline o f a p r o p o s e d Second Blast of the Trumpet. In this outline he promises to d e v e l o p the f o l l o w i n g propositions: (1) l a w f u l k i n g s d o n o t receive their p o w e r b y inheritance but rather b y election; (2) it is n e v e r legitimate to elect an idolater as k i n g or to any public office; (3) e v e n a p r o m i s e to an elected idolater is n o t b i n d i n g ; (4) i f an idolater has been mistakenly elected to public office, those w h o elected h i m can and should depose h i m . H e r e at last is a real resistance t h e o r y , insisting u p o n the conditional nature o f all political p o w e r , designed to justify Protestant attempts to o v e r t h r o w C a t h o l i c rulers. B u t it is o n l y an outline, w i t h o u t a n y d e v e l o p m e n t . K n o x n e v e r did get a r o u n d to w r i t i n g this treatise. T a k e n together, these pamphlets o f K n o x ' s hardly p r o v i d e a resistance t h e o r y o f a n y generality. T h e y argue for resistance to w o m e n and C a t h o l i c c l e r g y m e n , n o t to g o v e r n m e n t s in general. T h e y also did n o t h a v e m u c h influence. T h e First Blast, in particular, p r o v e d to be a considerable embarrassment to the general C a l v i n i s t c o m m u n i t y . Its a r g u m e n t s quite o b v i o u s l y applied n o t o n l y to the M a r y b u t also to Q u e e n Elizabeth I. She w a s fully a w a r e o f t h e m and n e v e r f o r g a v e K n o x or his G e n e v a n hosts for issuing this p a m p h l e t . In vain C a l v i n w r o t e to Elizabeth's c h i e f minister, W i l l i a m C e c i l , to protest that he had n o t read and certainly had n o t a p p r o v e d o f the m i s o g y n o u s w r i t i n g s published b y the English in his c i t y .

3

3. Calvinus C i c e l l i o , n.d. (probably M a r c h 1559), in C a l v i n 1 8 6 3 - 1 9 0 0 , x v n , p p . 4 9 0 - 2 .

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In vain C a l v i n ' s c h i e f lieutenant, T h e o d o r e B e z a , added a clause o n this matter to the n e x t version o f the Confession he prepared as an authoritative s u m m a r y o f the C a l v i n i s t faith, a s u m m a r y printed in m a n y editions and translations t h r o u g h o u t the rest o f the century. T h a t clause supported the occasional rule o f w o m e n , specifically d e n y i n g that the biblical texts used b y K n o x o n the subjection o f w o m e n to m e n w e r e applicable w h e n it c a m e to deciding w h o should rule a k i n g d o m . It is possible that K n o x ' s appeals to the Scots had m o r e effect. S o o n after they w e r e issued, K n o x returned to Scotland and helped the c o v e n a n t e d L o r d s o f the C o n g r e g a t i o n o v e r t h r o w the g o v e r n m e n t o f the queen regent and establish a R e f o r m e d c h u r c h o f Scotland. In this case, h o w e v e r , action really w e n t b e y o n d t h e o r y . In any case Scotland w a s peripheral to m o s t o f E u r o p e and its policies w e r e n o t f o l l o w e d closely elsewhere. 4

In general, then, these English C a l v i n i s t a r g u m e n t s for resistance, radical t h o u g h they w e r e in part, had little general i m p a c t , e v e n w i t h i n the Calvinist c o m m u n i t y . M o s t C a l v i n i s t resistance t h e o r y f o l l o w e d a v e r y different line o f d e v e l o p m e n t and built u p o n a s o m e w h a t different set o f sources. A n i m p o r t a n t ingredient in those sources w a s Lutheran.

ii

T h e d e v e l o p m e n t o f Lutheran resistance t h e o r y

It m a y c o m e as a surprise to s o m e to hear o f a Lutheran t h e o r y o f resistance, since m o d e r n Lutheranism has often been politically passive, d o c i l e l y accepting the f o r m o f g o v e r n m e n t under w h i c h it lives, w h a t e v e r that m a y be. In the early sixteenth century, h o w e v e r , there w a s a v i g o r o u s Lutheran resistance m o v e m e n t . Indeed it can be argued that this resistance m a d e possible the v e r y survival o f Protestantism. T h a t m o v e m e n t first t o o k shape in 1530, after the imperial diet in A u g s b u r g had o n c e again failed to resolve the religious split p r o v o k e d b y Luther's attack o n indulgences b a c k in 1 5 1 7 , and the e m p e r o r resolved to suppress Lutheranism b y military force. In response to that threat, a g r o u p o f Lutheran principalities and cities had organised the S c h m a l k a l d i c L e a g u e , c o m m i t t e d to defending their faith b y a r m e d force. T o justify this resort to force, l a w y e r s o n the staffs o f the t w o leaders o f this league, Hesse and S a x o n y , d e v e l o p e d resistance theories. T h e s e t w o p o w e r s still r e m e m b e r e d all t o o w e l l the Peasants' R e v o l t o f the p r e c e d i n g

4. T h e relevant passage o f Beza's Confession de la foi chrestienne (1560) is reprinted as an annexe 11 to Beza 1 9 7 1 , pp. 7 0 - 5 .

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decade, w h i c h had threatened their p o w e r a l o n g w i t h imperial p o w e r . S o they w a n t e d to be v e r y careful to d e v e l o p a resistance t h e o r y that w o u l d n o t justify r e v o l t b y a n y o n e in the general p o p u l a t i o n but w o u l d permit the r e v o l t they planned to lead. T h e y w a n t e d , in other w o r d s , to limit the right to r e v o l t to l a w f u l l y constituted i f inferior agencies in the imperial g o v e r n m e n t , to 'inferior magistrates' in the t e r m i n o l o g y o f the period. T h e Hessian a r g u m e n t w a s based u p o n an interpretation o f the imperial constitution. It b e g a n w i t h the fact that the e m p e r o r is indeed elected, b y the seven great prince-electors, supported b y the lesser princes and cities o f the empire. It then insisted that this election is conditional, granting p o w e r that is provisional and partial, n o t absolute. T h e lesser princes retain the responsibility for the p r o p e r exercise o f religion w i t h i n their realms. T h u s any e m p e r o r w h o seeks to force t h e m to c h a n g e religious p o l i c y is o v e r s t e p p i n g the b o u n d s o f his authority and forfeiting his claim to general p o w e r . In these circumstances he m a y and should be resisted, w i t h a r m e d force i f necessary. T h e S a x o n a r g u m e n t for resistance w a s based o n an appeal to the R o m a n civil l a w , specifically as recorded in that great c o m p i l a t i o n , the C o r p u s Juris C i v i l i s , then b e i n g received b y g o v e r n m e n t s all o v e r E u r o p e as a useful g u i d e to the structure and ultimate principles u n d e r g i r d i n g local systems o f l a w . It w a s based specifically o n the principle that it is a l w a y s permissible to use force to repel force, and it pointed further to clauses p e r m i t t i n g citizens to resist the orders o f a manifestly unjust j u d g e , w h o w a s n o t a p p l y i n g the l a w as he should in his decisions. T h e e m p e r o r , the S a x o n s argued, w a s b e h a v i n g like an unjust j u d g e in c o n d e m n i n g their religious policies. His orders, thus, c o u l d n o t be accepted and must be resisted (Skinner 1978, 11, p p . 195—9). Luther and the other theologians w h o p r o v i d e d intellectual leadership to this m o v e m e n t w e r e persuaded to accept these arguments, at first in a m e m o r a n d u m drafted b y L u t h e r in T o r g a u in 1530, w h i c h s i m p l y a c k n o w l e d g e d that the l a w y e r s w e r e p r o b a b l y right i f their understanding o f the nature o f the imperial g o v e r n m e n t w a s c o r r e c t , later in a n u m b e r o f publications, m o s t n o t a b l y Luther's Warnung an seine lieben Deutschen o f 1 5 3 1 . N o t h i n g c a m e o f these resistance a r g u m e n t s at the time, since the e m p e r o r b e c a m e distracted b y p r o b l e m s in other parts o f his i m m e n s e h o l d i n g s and did n o t p r o c e e d to mobilise an a r m y to suppress Lutheran Protestantism. In 1546, h o w e v e r , after Luther's death, the imperial threat did materialise and resulted in the first S c h m a l k a l d i c w a r . T h a t w a r ended 5

6

5.

L u t h e r 1883—1983, B r i e f w e c h s e l v , p . 662.

6 . Ibid.,

30, in, p p . 2 7 6 - 3 2 0 .

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in 1548, w i t h a smashing imperial v i c t o r y and w a s f o l l o w e d b y imperial decrees i m p o s i n g a religious c o m p r o m i s e o n all o f G e r m a n y , the Interims o f A u g s b u r g and L e i p z i g . M a n y Lutherans accepted these c o m p r o m i s e s , often after s o m e h a g g l i n g and modification, most n o t a b l y Philip M e l a n c h thon, Luther's most p r o m i n e n t successor. B u t a f e w o f Luther's most d e v o t e d f o l l o w e r s , the so-called Gnesio-Lutherans, refused to accept any c o m p r o m i s e , and insisted o n c o n t i n u i n g resistance to the imperial armies. T h e most i m p o r t a n t centre o f these Gnesio-Lutherans w a s the city o f M a g d e b u r g in n o r t h e r n G e r m a n y . T h i s c o m p a r a t i v e l y small and powerless city flatly refused to enforce the n e w imperial legislation or to permit the entry o f imperial commissioners. A n d it called u p o n all g o o d Lutherans to j o i n in continued resistance. T h i s position w a s explained and justified in several manifestos issued b y the magistrates and pastors o f M a g d e b u r g in 1550, most n o t a b l y a Confession o f the pastors drafted o n 13 A p r i l . T h e s e manifestos d e v e l o p e d the a r g u m e n t that inferior magistrates such as the elected officials g o v e r n i n g M a g d e b u r g had an o b l i g a t i o n to resist imperial l a w . T h e y adapted and applied the arguments earlier a d v a n c e d in the chanceries o f Hesse and S a x o n y . T h e y argued that all g o v e r n m e n t s , b o t h superior and inferior, are b o u n d to enforce certain natural laws inherent in all h u m a n society, as, for e x a m p l e , the l a w s g o v e r n i n g marriage. If the superior level o f g o v e r n m e n t seeks to legislate positive l a w s in v i o l a t i o n o f these natural laws, it must be resisted. T h e imperial g o v e r n m e n t in 1550 w a s v i o l a t i n g natural l a w s in seeking to i m p o s e u p o n M a g d e b u r g a false and idolatrous f o r m o f religion. T h e magistrates o f M a g d e b u r g , thus, had to resist this imperial initiative. 7

M a g d e b u r g ' s call to r e v o l t succeeded. T h e S c h m a l k a l d i c armies w e r e re g r o u p e d and re-vivified. T h e imperial g o v e r n m e n t w a s not able to defeat t h e m as before and finally, in 1 5 5 5 , a b a n d o n e d the effort. In the R e l i g i o u s Peace o f A u g s b u r g o f that year it w a s decided to end all attempts to i m p o s e religious unity t h r o u g h o u t the e m p i r e . Each subordinate element w i t h i n the imperial g o v e r n m e n t , each 'inferior magistrate', w h e t h e r a principality ruled b y one m a n or a city ruled b y a council, w a s permitted to choose w h e t h e r it w o u l d adopt the C a t h o l i c or the Lutheran f o r m o f w o r s h i p . T h i s c o m p r o m i s e settlement has often been described as e m b o d y i n g the principle o f 'cuius r e g i o eius r e l i g i o ' . It effectively ended the need for Lutheran resistance. T h e G n e s i o - L u t h e r a n initiative had w o n for the entire

7.

Bekenntnis Margdeburgk.j

Unter-jricht Anno

und

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vermanung 13.

der

Pfarr-jhern

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and resistance theory, 1330—1380

Lutheran m o v e m e n t a secure place w i t h i n the structure o f imperial g o v e r n m e n t . Lutherans in consequence turned to a posture o f political passivity for m u c h o f the rest o f the century. T h e S c h m a l k a l d i c r e v o l t and the t h e o r y used to justify it, h o w e v e r , gained w i d e attention in other parts o f E u r o p e . C h r o n i c l e r s and historians told and retold the story. P r o b a b l y the m o s t p r o m i n e n t o f t h e m w a s Johannes Sleidan, a d i p l o m a t w h o f o l l o w e d closely the political d e v e l o p ments o f this period, and then b e c a m e a historian. His De statu religionis et reipublicae Carolo Quinto Caesare, printed in several editions and translations f r o m 1555 on, spread w o r d o f the Lutheran struggle t h r o u g h o u t E u r o p e . It recounted the story o f the 1530 D i e t o f A u g s b u r g , o f the organisation o f the S c h m a l k a l d i c L e a g u e , o f Luther's T o r g a u m e m o r a n d u m o f 1530, o f the defeat o f the L e a g u e , and o f the heroic role o f M a g d e b u r g in its r e v i v a l . It summarises the a r g u m e n t o f the Confession o f the pastors o f M a g d e b u r g adopted in A p r i l o f 1550, for e x a m p l e , in these w o r d s : 'It is l a w f u l for an inferior magistrate to resist a superior that w o u l d constrain their subject to forsake the truth' (Sleidan 1689, p . 496).

iii

T h e C a l v i n i s t inheritance f r o m the S c h m a l k a l d i c w a r : Peter M a r t y r V e r m i g l i

T h e o l o g i a n s in the C a l v i n i s t c a m p , furthermore, b e g a n to w e a v e Lutheran a r g u m e n t s for resistance into their biblical c o m m e n t a r i e s . T h u s Peter M a r t y r V e r m i g l i , the erudite R e f o r m e d t h e o l o g i a n w h o helped introduce a C a l v i n i s t version o f the faith into E n g l a n d in the E d w a r d i a n period, and d e v e l o p e d it further b o t h in Strasburg, before and after his visit to E n g l a n d , and in Z u r i c h , in the later years o f his life, a d o p t e d a version o f the Hessian constitutional a r g u m e n t for the resistance o f inferior magistrates. It can be found in b o t h his published c o m m e n t a r i e s o n R o m a n s , first printed in Basle in 1558, and o n Judges, first printed in Z u r i c h in 1 5 6 1 . It is then repeated in further editions o f these c o m m e n t a r i e s , and a critical part o f the Judges c o m m e n t a r y is included in the p o s t h u m o u s collection o f his Common Places, a basic resource for Calvinist c l e r g y m e n t h r o u g h o u t the rest o f the c e n t u r y . In the R o m a n s c o m m e n t a r y , V e r m i g l i names the R o m a n senate and the G e r m a n C o l l e g e o f Electors as e x a m p l e s o f bodies that can resist princes ' i f they transgress the ends and limits o f the p o w e r w h i c h they h a v e r e c e i v e d ' (1980, p . 1 1 ) . In the Judges c o m m e n t a r y , in a 8

8.

V e r m i g l i 1980 c o n t a i n s the cited texts in L a t i n a n d in T u d o r E n g l i s h .

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locus a i m e d directly at the p r o b l e m o f ' w h e t h e r it be l a w f u l for subjects to rise against their prince', he again refers to the Electors o f the empire, saying that for t h e m ' u n d o u b t e d l y i f the prince p e r f o r m n o t his covenants and promises, it is l a w f u l to constrain and b r i n g h i m into order, and b y force to c o m p e l h i m to p e r f o r m the conditions and covenants w h i c h he had promised, and that b y w a r w h e n it cannot o t h e r w i s e be d o n e ' (pp. 99—100). V e r m i g l i , observe, w a s close to the M a r i a n exiles in b o t h Strasburg and Z u r i c h . Indeed, a n u m b e r o f t h e m had been his students b a c k in E n g l a n d . B u t he did n o t b u y their radical a r g u m e n t s for popular resistance. H e rather preferred the m o r e limited a r g u m e n t s o f his Lutheran n e i g h b o u r s and hosts in Strasburg, a r g u m e n t s o f w h i c h he m a y w e l l h a v e gained k n o w l e d g e f r o m his friend and c o l l e a g u e Sleidan. R e f e r e n c e s to the M a g d e b u r g defiance o f imperial authority also b e g i n to creep into C a l v i n i s t activity in this period. T h u s B e z a includes an allusion to the M a g d e b u r g resistance in a p o l e m i c against Sebastian Castellio's plea for religious liberty, first published in 1554, in Latin, then again in 1560, in French. T h e m a i n thrust o f this p a m p h l e t is to argue for the necessity o f repressing heretics as flagrant as M i c h a e l Servetus, but it not o n l y insists that a g o v e r n m e n t must suppress heresy w i t h i n its jurisdiction, it also insists that a g o v e r n m e n t must p r e v e n t the i m p o s i t i o n o f false doctrine f r o m outside its jurisdiction and it points to M a g d e b u r g as a notable e x a m p l e o f a g o v e r n m e n t w h i c h had recently acted thus to maintain pure r e l i g i o n . K n o x also used the M a g d e b u r g e x a m p l e in 1564, w h e n he presented a c o p y o f the ' A p o l o g y o f M a g d e b u r g ' to Secretary L e t h i n g t o n at a m e e t i n g o f a General A s s e m b l y o f the c h u r c h o f Scotland, as a w a y o f e n c o u r a g i n g continued resistance to the g o v e r n m e n t o f M a r y Stuart ( K n o x 1949,11, p p . 129-30). 9

T h e Lutheran t h e o r y o f resistance, as it d e v e l o p e d f r o m 1530 to 15 50, just like the M a r i a n exiles' t h e o r y o f resistance, as it w a s stated f r o m 1556 to 1558, remains p r i m a r i l y religious in nature. Each assumes its f o r m o f Protestantism is true and must be protected against C a t h o l i c repression. Each argues that its adherents h a v e a religious o b l i g a t i o n to fight for the true faith. N e i t h e r tries to m a k e an appeal across religious boundaries for support in resistance to supreme political authority. N e i t h e r tries to d e v e l o p a truly political t h e o r y o f resistance. T h a t final step w a s taken o n l y later, b y French Calvinists, f o l l o w i n g the St B a r t h o l o m e w ' s massacres. B e f o r e w e m o v e to the mature French C a l v i n i s t t h e o r y o f resistance,

9.

T h e r e l e v a n t p a s s a g e o f B e z a ' s De haereticis

a civili magistratu

puniendis,

in F r e n c h translation (1560),

is r e p r i n t e d as a n n e x e 1 t o B e z a 1 9 7 1 , p p . 6 9 - 7 0 .

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h o w e v e r , w e should note that elements o f it w e r e anticipated w e l l before the massacres o f 1572. C a l v i n himself, a l t h o u g h he usually insisted u p o n a general o b l i g a t i o n o f Christians to o b e y their rulers, briefly c o n c e d e d a f e w times a possible right o f resistance. T h e m o s t celebrated o f these concessions is to be found in a short passage near the v e r y end o f his Institutes of the Christian Religion, a r g u a b l y the most influential single synthesis o f Protestant t h e o l o g y p r o d u c e d in the sixteenth century, first published in 1536, then translated, e x p a n d e d and refined b y its author in a n u m b e r o f editions d o w n to 1560. T h a t passage reiterates his general teaching that private individuals must n e v e r resist their rulers, n o matter h o w tyrannical. B u t it then notes that in certain g o v e r n m e n t s there are institutions established to limit the p o w e r s o f kings 'as in ancient times the ephors w e r e set against the Spartan kings, or the tribunes o f the people against the R o m a n consuls, or the demarchs against the senate o f the Athenians; and perhaps . . . such p o w e r as the three estates exercise in e v e r y realm w h e n they h o l d their chief assemblies' (iv. 20. 3 1 : C a l v i n 1961,11, p. 1519). C a l v i n grants that these institutions w h i c h represent the people and w h i c h h a v e a constitutional responsibility to limit r o y a l p o w e r must fulfil that responsi bility. Similar passages calling for a limit to the exercise o f r o y a l p o w e r can be found in several o f C a l v i n ' s biblical c o m m e n t a r i e s . A l l these passages, h o w e v e r , are b r i e f and casual. T h e y d o o n l y a little to shade C a l v i n ' s general insistence o n the d u t y o f Christians to o b e y their g o v e r n m e n t s . Similarly Pierre V i r e t , a close associate to C a l v i n in the b u i l d i n g o f Protestant churches in French-speaking S w i t z e r l a n d and France itself, and perhaps an e v e n m o r e p o p u l a r preacher and publicist, observed in a p a m p h l e t entitled Remonstrances aux fideles qui conversent entre les Papistes, published in 1547, that resistance led b y inferior magistrates is sometimes legitimate: if there comes some tyrant w h o instead o f guarding those w h o m he has promised and sworn to guard and in the place o f performing the duties which his office requires of him, he deliberately tyrannizes those w h o m he owes preservation . . . [then] if such a people have an honest means o f resisting the tyranny of such a tyrant by means of their legitimate magistrates and are able by this means to avoid slavery, then they ought to follow the counsel of St Paul: . . . 'if you can gain your freedom and enjoy liberty, then avail yourself of the opportunity' [I Cor. 5:2i].

10

W e h a v e already n o t e d that B e z a , C a l v i n ' s closest associate and principal successor, included in his 1554 p o l e m i c against Castellio an a p p r o v i n g allusion to the e x a m p l e o f the magistrates o f M a g d e b u r g in d e f y i n g the 10.

S e e L i n d e r 1 9 6 6 , p. 1 3 3 , f o r E n g l i s h translation o f a n d c o m m e n t a r y o n this passage.

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imperial threat to i m p o s e u p o n their city a corrupted f o r m o f religion. B o t h these passages, h o w e v e r , like C a l v i n ' s remarks, are casual asides in w r i t i n g s d e v o t e d primarily to other purposes.

iv

T h e H u g u e n o t s and the French w a r s o f religion

M o r e e x t e n d e d analysis o f political matters f o l l o w e d these asides, partic ularly f o l l o w i n g the outbreak o f the French wars o f religion in 1562. T h a t outbreak w a s m a d e possible b y a serious decline in r o y a l authority f o l l o w i n g the p r e m a t u r e death o f K i n g Henri II in 1559, as three o f his sons succeeded h i m , the first t w o o f w h o m w e r e so y o u n g o n accession that they c o u l d not rule effectively, thus e x p o s i n g the k i n g d o m to the instability the rule o f a m i n o r k i n g almost a l w a y s entailed. Francis II ruled for a year, but real p o w e r w a s held b y m e m b e r s o f the Guise family, relatives o f his y o u n g w i f e , M a r y Stuart. H e w a s succeeded b y the e v e n y o u n g e r Charles I X , w i t h real p o w e r n o w vested in a r e g e n c y council d o m i n a t e d b y the q u e e n m o t h e r , C a t h e r i n e de M e d i c i s . Tensions b e t w e e n p o w e r f u l factions o f aristocrats j o c k e y i n g for p o w e r w e r e reinforced b y religious differences w h i c h finally e x p l o d e d into o p e n warfare, w h i c h w a s to plague France for most o f the rest o f the century, l e a v i n g m u c h o f the c o u n t r y a s m o k i n g ruin and i n d u c i n g psychic scars, traces o f w h i c h persist to this day. T h e political tracts p r o v o k e d b y the b e g i n n i n g o f these wars, h o w e v e r , are not o f great interest to students o f political theory. M o s t o f t h e m are b y Protestant apologists in the suite o f the prince o f C o n d e , seeking to justify his recourse to arms. T h e y insist o n continued Protestant l o y a l t y to the c r o w n and claim that C o n d e and his f o l l o w e r s , n o w called H u g u e n o t s b y the opposition, had g o n e to w a r o n l y to protect the k i n g d o m f r o m w i c k e d advisers to the k i n g . O n occasion they e v e n accuse these advisers o f attempting to kidnap the k i n g and his relatives, and insist that the main Protestant g o a l w a s to rescue the r o y a l family. C h i e f a m o n g the targets o f their attack w e r e m e m b e r s o f the Guise family, a b o v e all the cardinal o f Lorraine. T h e s e advisers are blasted w i t h a singular ferocity, as in Francois H o t m a n ' s p o l e m i c , Le Tigre ( 1 5 6 0 ) . B u t these early tracts explicitly d e n y any disloyalty to the c r o w n o f France and thus find n o need to justify resistance to it. In these early years o f the wars o f religion, the leaders o f the Protestant party w e r e optimistic, h o p i n g to w i n the r o y a l family to their side, h o p i n g 11

11.

Hotman's

Epistre

envoiee

C h a r l e s R e a d in H o t m a n

au tigre de la France

a p p e a r s in a f a c s i m i l e r e p r i n t w i t h c o m m e n t a r y

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to c o n v e r t all o f France to their cause. C a l v i n i s m w a s still spreading fast w i t h i n the k i n g d o m , w i n n i n g c o n t r o l o f entire cities and certain rural areas. T h e first years o f w a r d a m p e n e d that o p t i m i s m s o m e w h a t , but did n o t dash it entirely. A l l this changes in 1 5 7 2 , f o l l o w i n g the St B a r t h o l o m e w ' s massacres. In the f e w w e e k s f o l l o w i n g the assassination in Paris o f the A d m i r a l C o l i g n y , then principal leader o f the Protestant party, dozens o f additional political and military leaders w e r e killed, and thousands o f h u m b l e r Protestants w e r e m u r d e r e d . A l t o g e t h e r perhaps as m a n y as 10,000 p e o p l e w e r e put to death in a b o u t a d o z e n c i t i e s . T h e s e massacres had a shattering effect u p o n French Protestants and their allies in other countries. T h e y ended for g o o d their hopes o f w i n n i n g all o f France to their cause. T h e y c o u l d n o t be dismissed as the w o r k o f a f e w w i c k e d advisers, because they had been o p e n l y ordered b y the k i n g himself, supported b y his m o t h e r and the older o f his t w o r e m a i n i n g brothers. T h e y c o u l d n o t be dismissed as the w o r k o f a m a l e v o l e n t m i n o r i t y , because m o b s o f C a t h o l i c fanatics had taken to the streets and c h o p p e d Protestants to pieces b y the thousands. It w a s o b v i o u s to all that Protestantism in France w a s an e n d a n g e r e d m i n o r i t y w i t h o u t the resources to w i n for itself security w i t h i n the k i n g d o m . 12

T h e s e circumstances forced the Protestants o f France to d e v e l o p a n e w political t h e o r y o f resistance. T o s u r v i v e they had to resist the r o y a l g o v e r n m e n t , for it had c o m m i t t e d itself to a p o l i c y o f e x t e r m i n a t i n g Protestants. B u t they had to d e v e l o p a resistance t h e o r y that w a s in n o w a y d e m o c r a t i c , for the general p o p u l a t i o n , especially in the larger cities, had s h o w n itself quite w i l l i n g to help i m p l e m e n t a p o l i c y o f e x t e r m i n a t i o n . A n d they had to d e v e l o p a t h e o r y that w o u l d w i n the assistance o f o p p o n e n t s to the g o v e r n m e n t w h o w e r e n o t themselves Protestant, for Protestantism w a s n o w t o o w e a k a m o v e m e n t militarily to save itself. T h e s e w e r e the circumstances that led to the extraordinary flowering o f Calvinist resistance t h e o r y that f o l l o w e d the St B a r t h o l o m e w ' s massacres. M a n y o f the pamphlets f o l l o w i n g the massacres, to be sure, continued the tradition o f straightforward diatribe, n o w attacking n o t o n l y the Guises but also m e m b e r s o f the r o y a l f a m i l y . A n d , indeed, the m o s t w i d e l y circulated pamphlets, such as the Reveille-matin w h i c h appeared in several editions in just a f e w y e a r s , possess this character. T h e q u e e n - m o t h e r , C a t h e r i n e de M e d i c i s , w a s a particularly f a v o u r e d target, in part because 13

12.

S e e E s t e b e 1 9 6 8 , p . 1 9 , o n the w i d e l y v a r y i n g estimates o f n u m b e r s o f v i c t i m s (2,000 t o pp. 1 4 3 - 5 5 o n the g e o g r a p h y o f the massacres.

13.

F o r d e t a i l e d a n a l y s i s o f t h i s w o r k , s e e K i n g d o n 1 9 8 8 , c h . 4 , K e l l e y 1 9 8 1 , p p . 301—6.

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100,000);

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she w a s a foreigner, an Italian, w i t h a n u m b e r o f Italian advisers in her e n t o u r a g e . A n u m b e r o f these pamphlets accused the Italians o f i n t r o d u c i n g the w i c k e d and a m o r a l political tactics o f M a c h i a v e l l i into France. T h e m o s t d e v e l o p e d version o f that a r g u m e n t is to be found in Innocent Gentillet's Anti-Machiavel. Several o f these pamphlets, h o w e v e r , c o n tained m o r e reasoned and considered political a r g u m e n t . F o r e m o s t a m o n g t h e m w e r e H o t m a n ' s Francogallia, first published in 1 5 7 3 ; B e z a ' s Du droit des magistrats, first published in a n o n y m o u s French translation in 1574; the Vindiciae contra tyrannos, first published under the p s e u d o n y m o f Stephanus Junius B r u t u s in 1 5 7 9 . 14

H o t m a n ' s Francogallia w a s in f o r m n o t a political tract at all. It w a s rather a constitutional history o f France, w i t h particular attention to the period in w h i c h the cultures o f the G e r m a n i c Franks and the R o m a n i s e d Gauls w e r e fused to f o r m an entity distinctively French. It had clearly been in preparation for s o m e time and w a s part o f a publishing p r o g r a m m e u p o n w h i c h the great French C a l v i n i s t jurisconsult had been w o r k i n g for years. In fact it is quite likely that m u c h o f the text o f the Francogallia w a s w r i t t e n before the massacres o f 1 5 7 2 . 15

A s a w o r k o f history, H o t m a n ' s b o o k has its strengths. It f i r m l y rejects s o m e o f the m o r e e x t r a v a g a n t notions o f early French historians — that the c o u n t r y w a s first settled b y Trojans, that its earliest inhabitants spoke G r e e k . It uses m a n y o f the same early chronicles describing the barbarian invasions f o l l o w i n g the collapse o f R o m a n imperial p o w e r that m o d e r n historians o f the subject w o u l d use. B u t it is far f r o m an objective w o r k o f history. F o r H o t m a n clearly had a thesis to d e v e l o p , and he did n o t hesitate to force the facts to fit it. H e m a d e m u c h o f the elective nature o f the early Frankish m o n a r c h y and claimed to find traces o f it s u r v i v i n g to his day, a l t h o u g h he granted a g r o w i n g role to inheritance. A b o v e all he insisted u p o n the integral role w i t h i n French g o v e r n m e n t o f a P u b l i c C o u n c i l representing all elements o f the k i n g d o m ' s p o p u l a t i o n . H e found traces o f such a C o u n c i l f r o m the v e r y b e g i n n i n g and he found it persisting almost to his day, taking the f o r m o f the Estates General in the most recent centuries. T h i s C o u n c i l , H o t m a n argued, rightfully held ultimate p o w e r w i t h i n the state. It created and c o u l d depose kings, for it w a s the custodian o f the i m m u t a b l e fundamental l a w s b y w h i c h all k i n g s o f France w e r e required to g o v e r n . It had to share w i t h the c r o w n in m a k i n g the m o s t i m p o r t a n t 14.

M a s t e l l o n e 1 9 7 2 p r o v i d e s a n e x p e r t s u r v e y o f t h i s c u r r e n t o f t h o u g h t . G e n t i l l e t 1 9 6 8 is a g o o d critical edition o f the 1 5 7 6 printing o f the m o s t influential text.

15.

Hotman

1 9 7 2 is a f i n e v a r i o r u m e d i t i o n o f t h e L a t i n o r i g i n a l s w i t h a n E n g l i s h t r a n s l a t i o n .

p p . 3 8 - 5 2 f o r i n f o r m a t i o n o n t h e genesis o f this w o r k .

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decisions in g o v e r n m e n t p o l i c y , i n c l u d i n g decisions to tax, and m o s t explicitly the right to regulate religion. H o t m a n c o n c e d e d that the p o w e r o f this C o u n c i l had been attenuated in recent centuries, and b l a m e d s o m e o f this w e a k e n i n g u p o n the pernicious influence o f the R o m a n C a t h o l i c church. L a w y e r s f r o m R o m e had introduced n e w forms o f l a w and a general spirit o f litigiousness. C l e r g y m e n supported b y R o m e had usurped for themselves an entire estate w i t h i n the Public C o u n c i l . N e w courts, m o s t n o t a b l y the parlements, had sprung up, arrogating to themselves p o w e r s rightfully b e l o n g i n g to representative institutions. H o t m a n m a d e n o o v e r t attempt to apply the lessons o f his history to his o w n day. B u t they w e r e o b v i o u s to m a n y o f his contemporaries. T h e y justified resistance to r o y a l authority and to j u d i c i a l authority, p r o v i d i n g such resistance w a s led b y an institution that represented the general p o p u l a t i o n . S o o n a n u m b e r o f such institutions d e v e l o p e d , particularly in the south and w e s t o f France, generally called assemblées politiques. T h e y w e r e m a d e u p o f n o b l e m e n , b o t h Protestant and M a l c o n t e n t C a t h o l i c , b a c k e d b y representatives f r o m cities that had remained under the control o f local g o v e r n m e n t s independent o f the c r o w n . A n d these bodies mobilised a r m e d forces to b e g i n again the fight against the r o y a l g o v e r n m e n t o f France. W e e v e n h a v e record that at one o f these assemblées politiques, held in 1 5 7 3 , copies o f the Francogallia w e r e passed around and helped to c o n v i n c e the participants o f the need to return to w a r . 1 6

A n o t h e r p a m p h l e t passed around at the same assemblée for the same purpose w a s the a n o n y m o u s Du droit des magistrats w h i c h w e k n o w w a s w r i t t e n b y B e z a , then still in unpublished f o r m , a l t h o u g h soon to appear in p r i n t . It reached a similar conclusion using s o m e o f the same historical evidence as H o t m a n . In fact it is clear the t w o treatises w e r e finished in G e n e v a at the same time, and that B e z a either read H o t m a n ' s draft or discussed the subject w i t h h i m at length. B u t B e z a ' s p a m p h l e t w a s m u c h less a w o r k o f erudition and scholarship, and m u c h m o r e a tract for its times, a l t h o u g h it, t o o , s e l d o m mentions recent events. C l o s e analysis o f it, h o w e v e r , reveals that it w a s quite cleverly designed to e n c o u r a g e the v e r y p o l i c y o f resistance French Protestants and their M a l c o n t e n t C a t h o l i c allies w e r e then c o n t e m p l a t i n g . 17

B e z a ' s starting point is his claim that G o d must be o b e y e d a b o v e all

16.

R e p o r t e d b y d e T h o u i n h i s Histoire 1620 on: e.g. 1734, v u , pp.

17.

universelle

in m a n y editions in b o t h Latin and F r e n c h

from

18-19.

D e T h o u 1 7 3 4 , v u , p . 1 9 , i d e n t i f i e d , h e r e o n l y as ' u n l i v r e q u i a v o i t p a r u e n A l l e g m a g n e d u t e r n s d u siege d e M a g d e b o u r g ' , i n r e f e r e n c e t o the c l a i m o n the title p a g e o f this w o r k t o b e an e x p a n d e d reprint o f a 1550 M a g d e b u r g p a m p h l e t , in evident allusion to the

Bekenntnis.

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h u m a n authorities. T h i s means that there are times w h e n h u m a n l a w must be disobeyed, e v e n i f those w h o disobey must endure punishment, e v e n m a r t y r d o m . H e insists that individuals must n e v e r g o b e y o n d passive disobedience, i f they are faced b y a legitimate ruler turned tyrant, and includes a nasty aside against the Anabaptists for i g n o r i n g this rule. H e then proceeds to analyse types o f t y r a n n y and m a k e s use o f a classic distinction b e t w e e n tyrants w h o are usurpers and tyrants w h o are legitimate rulers. T h e tyrant w h o is a usurper, either b y illegally seizing p o w e r w i t h i n the g o v e r n m e n t under w h i c h he lives or b y i n v a d i n g a territory o v e r w h i c h he has n o legitimate claim, poses n o theoretical p r o b l e m . H e can be resisted b y a n y o n e w h o can m a n a g e the j o b and b y any means, i n c l u d i n g assassination. B u t the other t y p e o f tyrant, the legitimate ruler w h o turns sour and w i c k e d , does pose a p r o b l e m for B e z a . H e proceeds to d i v i d e the p o p u l a t i o n l i v i n g under such a ruler into three categories: (i) private individuals; (2) inferior magistrates, such as p r o v i n c i a l g o v e r n o r s and city m a y o r s , w h o share p o w e r under a k i n g ' s direction o v e r restricted local areas; (3) magistrates w h o s e constitutional d u t y it is to serve as a c h e c k or bridle o n r o y a l p o w e r . It is this sharp division into t w o types o f subordinate magistrates that is one o f the m o s t striking and useful parts o f B e z a ' s t h e o r y . T h e private individuals, o f course, are n o t a l l o w e d to resist w i t h force, but must limit themselves to passive disobedience, prayers, and repentance. T h e inferior magistrates h o l d p o w e r b y w h a t a m o u n t s to a reciprocal contract w i t h the k i n g , a contract e m b o d i e d in their oaths o f office. If any k i n g abrogates his side o f this a g r e e m e n t b y e n c r o a c h i n g o n the local responsibilities o f these magistrates, then they are free to abandon their side o f the contract requiring l o y a l t y to the c r o w n and m a y j o i n in a r m e d resistance. T h e magistrates w h o advise the k i n g , primarily t h r o u g h the Estates General, h a v e a constitutional d u t y to h o l d h i m to his responsi bilities. If he fails, they m a y organise a r m e d resistance against h i m , e v e n depose h i m i f that p r o v e necessary. T h i s part o f B e z a ' s a r g u m e n t is d e v e l o p e d in s o m e detail, w i t h proofs derived f r o m scripture, f r o m history, and f r o m l a w . H e provides s o m e thirteen ' e x a m p l e s ' o f magistrates o f this t y p e , r a n g i n g f r o m the ephors o f Sparta and the tribal chiefs o f ancient Israel to the parliament o f E n g l a n d and the Estates G e n e r a l o f France, including representative institutions f r o m P o l a n d , Spain, the H o l y R o m a n E m p i r e , and several other countries. M o s t o f these institutions, B e z a insists, play an essential role in creating kings and in advising kings, retain the right to depose kings, and certainly are entitled to lead a r m e d resistance to k i n g s i f that seems necessary and 210

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expedient. T h i s a r g u m e n t is then further supported w i t h allegations f r o m the R o m a n C o r p u s Juris C i v i l i s , w h i c h B e z a seems to equate w i t h natural l a w , i n c l u d i n g references to the l a w s o f contract, the l a w s o n inheritance, the l a w s o f marriage, and the l a w s regulating and l i m i t i n g the p o w e r s o f parents o v e r children, husbands o v e r w i v e s , and masters o v e r slaves. T o this point, B e z a ' s a r g u m e n t w o u l d seem to be a call for a m e e t i n g o f the French Estates G e n e r a l to organise opposition to the c r o w n , and in this it parallels H o t m a n . B u t B e z a then faces squarely the probability that a hostile k i n g is n o t likely to call an estates that w o u l d f a v o u r his opponents. S o B e z a then insists that in this situation it is the d u t y o f the inferior magistrates w h o oppose the p o w e r o f the tyrant to take the initiative and call an equivalent o f the estates, a representative b o d y prepared to take o n the constitutional d u t y o f organising resistance to the c r o w n laid u p o n certain advisers to the k i n g . W h a t B e z a w a s calling for w a s m u c h like the assemblées politiques s u m m o n e d b y the H u g u e n o t aristocrats o f L a n g u e d o c , soon allied w i t h the M a l c o n t e n t C a t h o l i c g o v e r n o r o f that p r o v i n c e , H e n r i de M o n t m o r e n c y - D a m v i l l e . B e z a ' s theory, therefore, precisely fitted the needs o f the C a l v i n i s t party in France at that time. It a d m i r a b l y justified the v e r y p r o g r a m m e o f resistance they w e r e c o n t e m p l a t i n g . B e z a ' s t h e o r y , h o w e v e r , w a s n o t limited in utility to that time and place. It w a s cast in such general terms that it w o u l d continue to p r o v e useful for decades to c o m e . It w a s cast, indeed, in terms so general that it c o u l d e v e n be used b y partisans o f other religious causes. T h e fact that B e z a had had to conceal his identity as the b o o k ' s author, had had e v e n to conceal the place o f its publication, helped m a k e this broader use possible. B e t w e e n 1574 and 1581, the Du droit des magistrats appeared in ten French editions, four o f t h e m w i t h i n S i m o n G o u l a r t ' s general collection o f d o c u m e n t s p r o v o k e d b y the religious warfare o f that time, the Mémoires de Vestât de France sous Charles neujiesme. A n d b e t w e e n 1576 and 1649, it appeared in about seventeen Latin translations, often b o u n d w i t h such other political classics o f the period as the Vindiciae contra tyrannos and M a c h i a v e l l i ' s Prince. F e w expressions o f C a l v i n i s t resistance t h e o r y o f this period w e r e so influential for such a l o n g period o f time. 18

19

T h e one C a l v i n i s t w o r k w h i c h clearly rivalled B e z a ' s treatise in influence w a s the one so often published w i t h it, the Vindiciae contra tyrannos. Its preface w a s dated 1 5 7 7 and it w a s planned as early as 1 5 7 5 , but it w a s n o t

18.

B e z a 1 9 7 1 , p p . x l i v - x l v , c o n t a i n s a list o f F r e n c h

19.

B e z a 1 9 6 5 is a g o o d c r i t i c a l e d i t i o n o f t h e L a t i n v e r s i o n ; p p . 2 1 - 3 c o n t a i n a list o f L a t i n e d i t i o n s .

editions.

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actually published until 1 5 7 9 , w h e n a first Latin edition appeared in Basle. T h a t w a s f o l l o w e d b y eleven m o r e Latin printings, often in c o m b i n a t i o n w i t h other w o r k s , one French translation in 1 5 8 1 , a partial English translation in 1588, and full English translation in 1648 and 1 6 8 9 . Its content makes it clear that the Vindiciae w a s prepared in the same French Calvinist circle as the Francogallia and the Du droit des magistrats. Indeed, it b o r r o w s f r o m t h e m at points: all three, for e x a m p l e , tell the story o f a fictitious oath s w o r n b y the subjects o f the k i n g o f A r a g o n at his c o r o n a t i o n to m a k e clear the provisional nature o f their a w a r d o f p o w e r to h i m (Giesey 1968). T h e identity o f the Vindiciae's author remains a m y s t e r y . T h e r e is s o m e e v i d e n c e that the author w a s H u b e r t L a n g u e t , a French Protestant w h o spent m u c h o f his career in G e r m a n y as a d i p l o m a t in the service o f the Elector o f S a x o n y . T h e r e is also s o m e e v i d e n c e that the author w a s Philippe Duplessis M o r n a y , a y o u n g e r French n o b l e m a n w h o b e c a m e an i m p o r t a n t lay leader o f the French R e f o r m e d party. T h e r e are theories about other possible authors and e v e n a b o u t collective authorship. T o m e the most p r o b a b l e hypothesis is that L a n g u e t prepared a first draft and g a v e it to his y o u n g e r friend M o r n a y , w h o then arranged for its publication, perhaps after extensively revising i t . In the years b e t w e e n the w r i t i n g o f the Du droit des magistrats and the Vindiciae, the situation had c h a n g e d s o m e w h a t for the French C a l v i n i s t party. T h e alliance they had s o u g h t w i t h the M a l c o n t e n t C a t h o l i c s had been struck and they had e v e n w o n support w i t h i n the French r o y a l family, f r o m the due d ' A l e n c o n , y o u n g e r brother to the n e w k i n g , H e n r i III. T h e i r j o i n t armies had g o n e to w a r against the r o y a l g o v e r n m e n t . F e l l o w Calvinists in the Netherlands, furthermore, had helped spark a r e v o l t against the k i n g o f Spain, rallying behind the standard o f the prince o f O r a n g e . Militant C a t h o l i c s in b o t h Spain and France had reacted b y organising their o w n forces m o r e tightly, most n o t a b l y in the first French C a t h o l i c L e a g u e . T h a t L e a g u e had d o m i n a t e d a m e e t i n g o f the Estates General in 1 5 7 6 , m a k i n g clear that this w a s not an institution likely to be o f m u c h use in organising resistance for a C a l v i n i s t party. M o r e and m o r e Calvinists found themselves r e l y i n g o n an international coalition o f p r o m i n e n t aristocrats and leaders o f g o v e r n m e n t s , b o t h Protestant and C a t h o l i c , d r a w n f r o m France, the Netherlands, Britain, and G e r m a n y , facing a similarly international coalition o f p r o m i n e n t aristocrats and 20

21

20.

M o r n a y 1 9 7 9 is a f a c s i m i l e e d i t i o n o f t h e 1 5 8 1 F r e n c h t r a n s l a t i o n , w i t h a f i n e c r i t i c a l a p p a r a t u s .

For

a list o f e d i t i o n s , s e e p p . 3 9 7 - 9 . 21.

See M o r n a y

1 9 7 9 , p p . i—v, f o r a r e v i e w o f t h e o r i e s o f a u t h o r s h i p

e n d i n g w i t h this c o n c l u s i o n .

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and resistance theory, 1330—1380

leaders o f g o v e r n m e n t s , s i n g l e - m i n d e d l y C a t h o l i c , d r a w n from France, the Netherlands, Italy, and Spain. T h e Vindiciae incorporates an attempt to adjust to this n e w situation. In f o r m the Vindiciae is a scholastic treatise, organised around four basic questions, including a n u m b e r o f formal objections w i t h responses, presenting an a r g u m e n t so carefully constructed that it does indeed resemble, as the author o f its preface claims, a g e o m e t r i c proof. It is l o n g e r and m o r e fully d o c u m e n t e d than the Du droit des magistrats, thus m a k i n g m o r e clear the sources u p o n w h i c h b o t h d r e w . T h e s e are the questions around w h i c h the Vindiciae is built: (1) M u s t subjects o b e y a prince w h o c o m m a n d s s o m e t h i n g against G o d ' s l a w ? (2) Is it l a w f u l to resist a prince w h o wishes to break G o d ' s l a w and ruin the church? (3) Is it lawful to resist a prince w h o oppresses the state? (4) M a y n e i g h b o u r i n g princes rescue the subjects o f a tyrant? T h e answers to these questions are (1) N o , (2) Y e s , (3) Y e s , and (4) Y e s . In explaining these answers, the author develops at the b e g i n n i n g a distinctive t h e o r y o f t w o contracts: a first b e t w e e n G o d and the general population, b o t h ruler and ruled; a second b e t w e e n a ruler and his subjects. L i k e all contracts, these bear m u t u a l obligations, and i f one party fails to fulfil his obligations, the other party is released f r o m his. T h u s a k i n g w h o flouts the l a w s o f G o d loses divine support as mediated t h r o u g h the leaders o f the religious c o m m u n i t y , and a k i n g w h o breaks his promises to his subjects loses the obedience they had promised to h i m . T h e longest and most interesting part o f the Vindiciae is the answer to question three, for it develops a theory o f g o v e r n m e n t and a theory o f resistance w h i c h is really secular, cut loose f r o m the religious foundations o f m u c h o f the rest o f the treatise and most o f earlier Calvinist resistance theory. It first presents an extensive analysis o f the nature o f r o y a l p o w e r , a r g u i n g f r o m several different angles that such p o w e r a l w a y s depends u p o n popular consent, a consent that is conditional and can be r e v o k e d . T h e n it turns to an analysis o f tyranny, d e v e l o p i n g in s o m e detail the classic distinction, n o w derived explicitly f r o m Bartolus, b e t w e e n the tyrant b y usurpation and the tyrant b y exercise. T h e tyrant b y usurpation poses n o p r o b l e m for the author o f the Vindiciae, any m o r e than he does for B e z a . A n y and all m e m b e r s o f the c o m m u n i t y , e v e n the 'least o f the p e o p l e ' ( M o r n a y 1979, p. 210), are permitted and e v e n o b l i g e d to resist such a tyrant. If assassination is necessary to dispose o f a usurper, no one should shrink f r o m attempting it. T h e tyrant b y exercise does pose a severe p r o b l e m , h o w e v e r , for his m i s b e h a v i o u r does not release private i n d i v iduals f r o m their o b l i g a t i o n to o b e y h i m . B u t the officers o f the k i n g d o m 213

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civil government, and the debate on constitutions

can resist this t y p e o f tyrant. In fact they h a v e an o b l i g a t i o n to resist, w h i c h the author illustrates at s o m e l e n g t h b y c o m p a r i n g it to the obligations laid u p o n a c o - t u t o r b y R o m a n civil l a w . Just as the co-tutors o f a m i n o r are o b l i g e d to restrain or replace a principal tutor w h o is b e t r a y i n g his trust b y misusing the p r o p e r t y o f their j o i n t charge, so the inferior officials o f a r o y a l g o v e r n m e n t must restrain or replace a k i n g w h o is b e t r a y i n g his trust b y oppressing his p e o p l e . In his effective use o f this and other legal analogies, as in his earlier use o f contract theory, the author o f the Vindiciae uses l a w most effectively to build resistance theory. H e builds u p o n but goes b e y o n d his Lutheran and British and French C a l v i n i s t predecessors in this respect. 22

T h e Vindiciae, like the Du droit des magistrats, distinguishes t w o types o f r o y a l officials w h o m a y lead resistance, but the distinction is n o t quite the same. O n e t y p e is again m a d e up o f inferior magistrates, local officials w i t h local or regional responsibility, like p r o v i n c i a l g o v e r n o r s and city m a y o r s . T h e other t y p e is m a d e up o f c r o w n officials w i t h national responsibility, like peers o f the realm, constables, and marshalls. Little is n o w said o f the Estates General or the v a g u e r Public C o u n c i l . Calvinists w e r e n o w clearly pinning their hopes on a s o m e w h a t different coalition o f support. Indeed, in s o m e w a y s they had returned to the earlier Lutheran f o r m u l a o f resistance b y inferior magistrates, o n l y this time p e r m i t t i n g such resistance not o n l y in the n a m e o f a religious cause but also in the n a m e o f the u r g e for freedom f r o m t y r a n n y . Finally, in its fourth question the Vindiciae contra tyrannos gives an international dimension to the C a l v i n i s t struggle for survival. F o r e i g n princes o f the true religion are u r g e d to intervene in order to rescue the oppressed subjects o f their n e i g h b o u r s . S u c h intervention is justified i f necessary to protect m e m b e r s o f the one true church, but it is also justified i f necessary to protect victims o f a m o r e secular t y r a n n y .

v

T h e deposition o f M a r y Stuart

M e a n w h i l e , events in Scotland p r o v o k e d y e t another version o f Calvinist resistance theory. In 1561 M a r y Stuart, o n the death o f her first husband, Francis II, k i n g o f France, had returned f r o m the continent to claim personally her inherited right to rule Scotland. She remained loyal, h o w e v e r , to the C a t h o l i c faith in w h i c h she had been raised and to w h i c h

22.

Giesey 1970, pp. 48-53, contains

an e x t e n d e d

commentary

on

the

s i g n i f i c a n c e o f this

allegation.

214

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legal

Calvinism

and resistance theory, 1330—1580

her French relatives o f the Guise family w e r e so c o m m i t t e d . T h i s b r o u g h t her into i m m e d i a t e conflict w i t h the Protestant r e g i m e that had been established in her absence b y the c o v e n a n t e d L o r d s o f the C o n g r e g a t i o n , assisted b y K n o x . T h a t conflict w a s softened in 1565, w h e n the queen married and m a d e k i n g L o r d D a r n l e y , but it w o r s e n e d seriously in 1567, w h e n D a r n l e y w a s m u r d e r e d and M a r y then married one o f those responsible for the k i l l i n g , the earl o f B o t h w e l l . A r e v o l t o f nobles led b y M a r y ' s natural brother, the earl o f M o r a y , led to her e x p u l s i o n f r o m the k i n g d o m , the p r o c l a m a t i o n that her infant son w a s n o w K i n g James V I , and the g r a n t i n g o f actual p o w e r to M o r a y as regent. M a r y t o o k refuge in the E n g l a n d o f Elizabeth I w h e r e she passed the rest o f her life under house arrest. T h i s v i o l e n t e x p u l s i o n o f a legitimate ruler s h o c k e d C a t h o l i c E u r o p e , m o s t o b v i o u s l y C a t h o l i c France. It embarrassed royalist E n g l a n d , in spite o f its Protestant c o m m i t m e n t s . C a t h o l i c and royalist sympathisers in Scotland, E n g l a n d , and other countries, b e g a n w o r k i n g for the restoration o f M a r y as the rightful ruler o f Scotland. M o r a y and his associates in the r e g e n c y g o v e r n m e n t o f Scotland needed a defender o f their p o l i c y . T h e y found one in G e o r g e B u c h a n a n , a brilliant humanist intellectual w h o had spent m u c h o f his career o n the continent, p r i m a r i l y in France, w i t h a b r i e f interlude in P o r t u g a l , and w h o had recently returned to his native Scotland. B u c h a n a n had earned an international reputation for a translation o f Linacre's Latin g r a m m a r and for his elegant Latin p o e m s and plays. H e had b e c o m e a Protestant, using his talents for that cause in Latin paraphrases o f the psalms and plays o n biblical t h e m e s . 23

B u c h a n a n possessed e x a c t l y the skills in c o m m u n i c a t i o n needed b y the g o v e r n m e n t o f the regent M o r a y to defend b o t h at h o m e and abroad its deposition o f M a r y Stuart. H e w a s pressed into service as a n e g o t i a t o r and a propagandist for that g o v e r n m e n t . T h i s led h i m to w r i t e three politically significant b o o k s . T h e first to be published w a s his A Detection of the Doings of Mary, Queen of Scots ( B u c h a n a n 1 5 7 1 ) . It is a b i o g r a p h y designed to b l a c k e n as t h o r o u g h l y as possible the reputation o f the deposed queen, b y m a k i n g her personally responsible for the m u r d e r o f her husband and consort, D a r n l e y , and thus to justify her deposition b y the Scots. It w a s supported b y an a p p e n d i x containing l o v e letters allegedly w r i t t e n f r o m M a r y to the m u r d e r e r B o t h w e l l and discovered in a casket o f her personal

23.

M c F a r l a n e 1 9 8 1 s u p p l i e s a f u l l b i o g r a p h y a n d , i n its a p p e n d i x A , a f u l l list o f a l l t h e e d i t i o n s o f Buchanan's works.

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valuables. T h i s e x p o s e w a s published in Latin, English, Scots, and French, w i t h m o s t o f the editions appearing in L o n d o n , b e g i n n i n g in 1 5 7 1 . It w a s designed initially to persuade the g o v e r n m e n t o f E n g l a n d to stand firm in its decision to k e e p M a r y under house arrest rather than p e r m i t t i n g her either to return to Scotland or to retire to France. It w a s used also to justify t h r o u g h o u t Britain and at the court o f France the p o l i c y o f the r e g e n t . 24

A n o t h e r o f B u c h a n a n ' s contributions to resistance t h e o r y w a s a detailed history o f Scotland, the Rerum Scoticarum Historia, u p o n w h i c h he w o r k e d m u c h o f his life a l t h o u g h it w a s first published in 1582. It w a s designed in part to find as m a n y precedents as possible for the deposition, i m p r i s o n m e n t , and e v e n e x e c u t i o n o f rulers w h o had turned t y r a n n i c a l . 25

T h e m o s t sophisticated o f B u c h a n a n ' s contributions, h o w e v e r , w a s his De jure regni apud Scotos. It is the one that deserves the m o s t attention f r o m students o f political t h e o r y . T h i s tract w a s apparently w r i t t e n shortly after the deposition o f M a r y Stuart but circulated o n l y in manuscript until its first publication in 1 5 7 9 . It w a s reissued several times b e t w e e n 1579 and 1581 b y presses b o t h in Scotland and o n the continent. It w a s published e v e n m o r e frequently in editions c o m b i n e d w i t h the Rerum Scoticarum Historia, b e g i n n i n g in 1583 and c o n t i n u i n g into the seventeenth and eighteenth c e n t u r i e s . T h e De jure regni apud Scotos w a s dedicated to the b o y k i n g , James V I , and w a s ostensibly designed to assist in his education. Its release in 1 5 7 9 , h o w e v e r , suggests c o n t i n u i n g nervousness w i t h i n the g o v e r n m e n t o f the r e g e n c y about its l e g i t i m a c y , a nervousness n o d o u b t k e p t alive b y the c o n t i n u i n g plots to assassinate Elizabeth I o f E n g l a n d and to c r o w n M a r y in her place, plots hatched a m o n g English C a t h o l i c s and e n c o u r a g e d f r o m the continent. 26

27

In f o r m the De jure regni apud Scotos is v e r y m u c h the w o r k o f a humanist. N o t o n l y is it w r i t t e n in elegant Latin but it is cast in the shape o f a Platonic dialogue, w i t h the Scottish d i p l o m a t T h o m a s M a i t l a n d , w h o had recently returned f r o m France, acting as the straight m a n , and B u c h a n a n h i m s e l f 24.

F o r its u s e i n F r a n c e , s e e K i n g d o n 1 9 8 8 , p p . 1 3 1 - 3 .

25.

G a t h e r e r , i n B u c h a n a n 1 9 5 8 , s u p p l i e s a n a n a l y s i s o f B u c h a n a n as a n h i s t o r i a n a n d e x c e r p t s f r o m b o t h t h e Rerum

Scoticarum

Historia

a n d his o t h e r w o r k s a b o u t M a r y . F o r an i m p o r t a n t ,

though

d e b a t a b l e , a c c o u n t o f B u c h a n a n ' s h i s t o r i c a l w o r k in r e l a t i o n t o his p o l i t i c a l ideas, see T r e v o r R o p e r 1966. 26.

T h e r e is n o m o d e r n e d i t i o n o f t h e De jure edition

(Edinburgh,

1579).

Translations

regni apud Scotos: into

English

B u c h a n a n 1 9 6 9 is a f a c s i m i l e o f t h e first can

be

found

in

Buchanan

1949,

by

A r r o w o o d , a n d B u c h a n a n 1964, b y M a c N e i l l , b u t n e i t h e r i n c l u d e s a full critical a p p a r a t u s a n d b o t h c o n t a i n p r o b l e m s i n t r a n s l a t i o n . S e e t h e r e v i e w s o f t h e m b y J . H . B u r n s i n t h e Scottish Review, 27.

30 ( 1 9 5 1 ) : 6 0 - 8 , 48 ( 1 9 6 9 ) : 1 9 0 - 1 .

S e e M c F a r l a n e 1 9 8 1 , p p . 5 1 2 - 1 4 , f o r a f u l l list o f t h e s e e d i t i o n s .

2l6

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Calvinism

and resistance theory, 1550—1580

presenting the heart o f the a r g u m e n t . It does n o t use the m o r e traditional scholastic shape o f m a n y o f the other Calvinist resistance tracts w e h a v e e x a m i n e d , most n o t a b l y the Vindiciae contra tyrannos. T h e dialogue f o r m had been used, to be sure, b y French C a l v i n i s t political theorists, for e x a m p l e in the Reveille-matin, but n e v e r to sustain an a r g u m e n t as c o m p r e h e n s i v e and coherent as that d e v e l o p e d b y B u c h a n a n . T h e d o c u m e n t a t i o n o f the De jure regni apud Scotos, furthermore, is h e a v i l y classical. It appeals to e x a m p l e s d r a w n f r o m G r e e k and R o m a n history and to sentiments expressed b y classical authors, almost exclusively in its first half, still h e a v i l y in its second half. In content the De jure regni apud Scotos concentrates o n t w o definitions. O n e is o f kings, the other is o f tyrants. It defines a k i n g as one w h o gains p o w e r b y popular consent, w h o rules b y l a w , and w h o is subject to l a w . B u t l a w is n o t static. It is to be m a d e and c h a n g e d b y the estates o f the realm ( M a s o n 1982, p p . 19—20); and for its interpretation and application a k i n g must h a v e a c o u n c i l o f w i s e m e n and must permit h i m s e l f to be g u i d e d b y t h e m . A tyrant, o n the other hand, seizes p o w e r unilaterally and claims that he can create l a w s and that he need n o t be b o u n d b y t h e m . H e also does not accept advice. K i n g s rule for the benefit o f their subjects. T y r a n t s rule o n l y for their o w n personal gain. T h e classic exhortations to obedience, B u c h a n a n argues, apply o n l y to true kings, n o t to tyrants. H e examines at some length the biblical injunctions to obedience, especially in the Pauline epistles, in reaching this conclusion (chs. lxii—lxx). H e also examines the lex regia, the principle o f R o m a n civil l a w e m b e d d e d in the C o r p u s Juris C i v i l i s w h i c h undergirds imperial and r o y a l claims to p o w e r (chs. xlix—1). N e i t h e r are absolute, he insists. B o t h apply o n l y to rulers w h o are legitimate. Since the rule o f tyrants is n o t legitimate, they can be deposed. It is n o t a l w a y s necessary to depose a tyrant, B u c h a n a n concedes, since a usurping tyrant can b e c o m e a ruler sensitive to his subjects' needs. B u t precedent and principle b o t h p r o v e that a tyrant can be deposed i f necessary. A tyrant can be r e m o v e d b y legal action, leading to i m p r i s o n m e n t or exile. A tyrant can be resisted b y military force. A tyrant can e v e n be assassinated, i f that is the o n l y w a y to dispose o f h i m or her. A n d the specific tyrant B u c h a n a n has in m i n d , he makes clear at the b e g i n n i n g , is M a r y Stuart. T h e r e is m u c h o f B u c h a n a n ' s theory that w a s to p r o v e useful to later generations o f theorists. Its starting point is a quick analysis o f the state o f nature before the creation o f society and g o v e r n m e n t . It includes an e m b r y o n i c version o f social contract, d r a w n explicitly f r o m the R o m a n 217 Cambridge Histories Online © Cambridge University Press, 2008

Religion,

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l a w o f contract. B u t it lacks m u c h o f the specificity o f continental Calvinist t h e o r y , failing to identify w i t h any precision institutions that are entitled to lead resistance to a tyrant and i m p l e m e n t a deposition. It implies that a k i n g ' s p r i v y c o u n c i l can restrain and depose h i m , and thus w o u l d justify regents like M o r a y . T h i s implication is n o t d e v e l o p e d , h o w e v e r . B u c h a n a n ' s t h e o r y is also m o r e radical than that o f continental Calvinists in its e n c o u r a g e m e n t o f general r e v o l t and in its endorsement o f tyrannicide. In this it reverts to the position o f P o n e t . U n l i k e his British predecessors and m o r e like his French contemporaries, h o w e v e r , B u c h a n a n presents a t h e o r y that is really secular. T h e r e is little w i t h i n the Dejure regni apud Scotos that is e x p l i c i t l y Protestant, m u c h less Calvinist. T h e r e are, to be sure, a n u m b e r o f passages attacking the tyrannical abuse o f papal p o w e r b y specified recent popes and supporting conciliarism as a better f o r m o f c h u r c h g o v e r n m e n t . B u t these passages c o u l d as easily c o m e f r o m an anti-clerical Gallican as f r o m a Protestant. B u c h a n a n ' s t h e o r y p r o v o k e d a storm o f protest, b o t h in Britain and o n the continent. Indeed it w a s in g o o d part in retort to B u c h a n a n that the Gallican polemicist W i l l i a m B a r c l a y early in the seventeenth century coined the t e r m ' m o n a r c h o m a c h ' , or k i n g - k i l l e r , to a p p l y to this entire b o d y o f resistance t h e o r y . A s B a r c l a y h i m s e l f w a s a w a r e , h o w e v e r , this t h e o r y b y 1580 had in fact d e v e l o p e d into a f o r m so general that it c o u l d be and w a s used b y m a n y w h o w e r e n o t Calvinists. T h e n e x t use o f t h e o r y o f this t y p e in France w a s b y C a t h o l i c m e m b e r s o f the L e a g u e , first against the m e d i a t i n g politique position to w h i c h H e n r i III had m o v e d , then against the Protestant and politique C a t h o l i c position o f his successor, H e n r i I V . Calvinist resistance t h e o r y s u r v i v e d to be o f use to other Calvinists, h o w e v e r , m o s t i m m e d i a t e l y in the Netherlands w h e r e the r e v o l t against Spain raged on, w e l l into the seventeenth century; n e x t in the G e r m a n E m p i r e , most c o n s p i c u o u s l y in the Palatinate, w h e r e C a l v i n i s t theorists t o o k a lead in organising the resistance to imperial authority that e x p l o d e d into the T h i r t y Y e a r s W a r , 1 6 1 8 - 4 8 ; finally in the r e v o l t o f C a l v i n i s t Puritans against r o y a l p o w e r in E n g l a n d , 1640—60. B u t those are stories for later chapters.

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8 Catholic resistance theory, Ultramontanism, and the royalist response, 1580—1620 J . H . M .

i

S A L M O N

Patterns o f c o n t r o v e r s y

T h e p r e c e d i n g chapter

has outlined the d e v e l o p m e n t o f

Huguenot

doctrines o f resistance d u r i n g the first h a l f o f the French religious w a r s . It w a s one o f the ironies o f the time that, in the second half, s o m e French Protestant writers turned to support r o y a l authority w h i l e their m o s t bitter enemies a m o n g C a t h o l i c enthusiasts o c c u p i e d the vacant g r o u n d w i t h C a t h o l i c theories o f resistance. T h e H o l y L e a g u e , in w h i c h these doctrines were evolved,

relied n o t

only upon

secular justification

of

armed

o p p o s i t i o n but also u p o n the p o w e r o f the p a p a c y to depose t e m p o r a l sovereigns and authorise

armed

opposition for religious reasons.

In

response, royalist theory was associated w i t h the tradition o f i n d e p e n d e n c e w i t h i n the Gallican church. In E n g l a n d at the same time the A n g l i c a n settlement w a s defended against Puritan pressure for further r e f o r m and a C a t h o l i c c a m p a i g n for r e c o n v e r s i o n that in one aspect w a s peaceful and n o n - p o l i t i c a l and in another w e l c o m e d papal deposition and foreign invasion. N o t surprisingly, English and French r o y a l i s m had m u c h in c o m m o n , h o w e v e r different the institutions and traditions o f the t w o countries. In the early seventeenth century a E u r o p e a n debate t o o k place o v e r the respective p o w e r s o f kings and popes w h i c h i n v o k e d and redefined ideas generated b y the French H o l y L e a g u e . T h e three principal strands in secular H u g u e n o t resistance t h e o r y w e r e also contained in the ideas o f the L e a g u e . T h e r e w e r e : l o y a l resistance to m a l e v o l e n t and M a c h i a v e l l i a n advisers w h o had usurped r o y a l authority; constitutional o p p o s i t i o n to a k i n g w h o had overstepped

limitations

defined b y l a w and history; and c o m m u n a l defiance o f a tyrant in the n a m e o f the ultimate p o w e r , or ' p o p u l a r s o v e r e i g n t y ' , o f the c o m m o n w e a l t h o v e r the ruler. W h i l e the three strands w e r e often i n t e r w o v e n , and the 219

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second served to particularise the m o r e general and contractarian terms in w h i c h the third w a s framed, they also help to distinguish three phases t h r o u g h w h i c h L e a g u e r , n o less than H u g u e n o t , t h e o r y unfolded. For the H u g u e n o t s the 'evil counsellors' m o d e had fitted the opposition o f the 1560s, constitutionalism had been appropriate to the w a r s o f 1567—70, and p o p u l a r s o v e r e i g n t y had been part o f the Protestant response to the massacre o f 1572. T h e L e a g u e b e g a n as a m o v e m e n t o p p o s i n g the favourable treaty granted the H u g u e n o t s in 1 5 7 6 . In 1584 the death o f A l e n c o n - A n j o u , heir and y o u n g e r brother to H e n r i III, the last V a l o i s k i n g , m a d e the Protestant B o u r b o n leader, H e n r i de N a v a r r e , heir p r e s u m p t i v e to the throne. W h i l e the H u g u e n o t s j o i n e d C a t h o l i c politiques in support o f r o y a l dynasticism, the L e a g u e r e f o r m e d to o p p o s e the succession o f a heretic b y reinterpreting l a w and history and p r o p o s i n g a fundamental constitutional l a w o f the catholicity o f the c r o w n . A t a m e e t i n g o f the representative Estates G e n e r a l d o m i n a t e d b y the L e a g u e in 1588, H e n r i III had the L e a g u e ' s leaders, H e n r i de Guise and his brother the cardinal de Guise, m u r d e r e d , and p r o m i n e n t deputies arrested. P o p u l a r s o v e r e i g n t y , papal deposition, and tyrannicide then b e c a m e the motifs o f L e a g u e r t h o u g h t . N a v a r r e ' s C a t h o l i c uncle, the cardinal de B o u r b o n , w a s declared k i n g and the last V a l o i s assassinated. W h e n the cardinal de B o u r b o n died in 1590, the L e a g u e p r o m o t e d the idea o f a g e n u i n e l y elective m o n a r c h y , o n l y to find its e n d e a v o u r s to choose a C a t h o l i c ruler frustrated b y the rivalries o f its o w n aristocratic leaders. A s he f o u g h t to secure his title as H e n r i I V , N a v a r r e relied increasingly u p o n absolutist doctrines o f d i v i n e right and r o y a l s o v e r e i g n t y . H e c o n v e r t e d to C a t h o l i c i s m d u r i n g a m e e t i n g o f the L e a g u e r Estates G e n e r a l in 1593, but the w a r continued because the p a p a c y w i t h h e l d absolution for t w o years and Spain p r o v i d e d military support for the remnants o f the L e a g u e . A l t h o u g h a similar pattern, dictated b y c o n t i n g e n t twists in political circumstance, m a r k e d the d e v e l o p m e n t o f b o t h Protestant and C a t h o l i c ideas o f resistance, there w e r e s o m e signal differences in secular as w e l l as in religious doctrines. W h i l e the H u g u e n o t s b e c a m e resigned to the role o f a m i n o r i t y fighting for toleration, the L e a g u e spoke m o r e authoritatively for the c o n t r o l o f the ruler b y a united C a t h o l i c people, and carried the implications o f the c o n c e p t to m o r e radical conclusions. W h i l e b o t h factions adhered to the Renaissance m o d e o f c u r i n g present c o r r u p t i o n b y restoring ancient institutions to their supposed pristine virtue, the L e a g u e b e c a m e m o r e conscious o f the utilitarian need to b e n d tradition to serve the present, to create, rather than to restore, fundamental l a w . W h i l e the 220 Cambridge Histories Online © Cambridge University Press, 2008

Catholic resistance theory t w o parties found allies in foreign p o w e r s , it w a s the L e a g u e that seemed linked to anti-national forces in H a b s b u r g imperialism and R o m a n universalism, and hence p r o v o k e d a patriotic response that w e a k e n e d its o w n unity. W h i l e H u g u e n o t s and Leaguers b o t h found partial justification for r e v o l t in Christian belief, the theocratic element in the L e a g u e created a greater tension b e t w e e n religious and secular priorities. Finally, w h i l e the t w o opposition m o v e m e n t s b o t h e x p e r i e n c e d inner social tensions, such tensions w e r e far m o r e p r o n o u n c e d w i t h i n the L e a g u e . A small but v o c a l section o f the L e a g u e r g r o u p in Paris k n o w n as the Sixteen suggested the possibility o f social r e v o l u t i o n .

ii

T h e Catholic League

T h e manifesto o f the 1576 C a t h o l i c L e a g u e had the preservation o f C a t h o l i c i s m as its ostensible objective, but it w a s essentially an aristocratic d o c u m e n t , expressing in the third o f its t w e l v e articles a certain a m b i v a l e n c e b e t w e e n past and present w i t h the d e m a n d to restore 'rights, pre-eminences, franchises and ancient liberties such as they w e r e in the time o f C l o v i s , the first Christian k i n g , and to find, i f possible, e v e n better and m o r e profitable ones under protection o f the aforesaid L e a g u e ' . T h e role o f the estates and their supposed origin in M e r o v i n g i a n G a u l b e c a m e a t h e m e w i t h i n the L e a g u e as it had been in Francois H o t m a n ' s Francogallia. In 1577, w h e n the estates w e r e m e e t i n g at Blois a circular entitled Instruction des gens des troys estats w a s passed a m o n g L e a g u e r deputies, calling for the estates to be recognised as a part o f the regular m a c h i n e r y o f g o v e r n m e n t ( B a u m g a r t n e r 1 9 7 5 , p . 59). A n analysis o f the estates that w a s m o r e objective than either the H u g u e n o t or the L e a g u e r version o f the institution w a s published at this time b y M a t t e o Z a m p i n i , an Italian jurist at the court o f H e n r i III (Degli stati di Francia, 1578). Z a m p i n i agreed that the estates had extensive p o w e r s , but he also pointed out that they w e r e o n l y c o n v e n e d at the k i n g ' s discretion, and that they had n o v o i c e in the a p p o i n t m e n t o f the ruler e x c e p t w h e n the succession w a s disputed. 1

T h e succession w a s the centre o f debate w h e n the n e w L e a g u e , b o u n d b y treaty to Philip II o f Spain and d o m i n a t e d once again b y the house o f Guise, f o r m e d in 1585. T h e manifesto, issued in the n a m e o f the cardinal de B o u r b o n , insisted, like its counterpart o f 1576, u p o n the b a n n i n g o f heresy, 1.

' D r o i t s , p r e e m i n e n c e s , franchises et libertes a n c i e n n e s telles q u ' e l l e s estoient d u t e m p s d u C l o v i s , p r e m i e r r o y c h r e s t i e n , e t e n c o r e s m e i l l e u r e s p l u s p r o f i t a b l e s si e l l e s se p e u v e n t s o u s la p r o t e c t i o n s u s d i t e . ' P a l m a - C a y e t 1 8 2 3 , p . 2 5 5 .

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enventer,

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the rights o f the aristocracy, the reduction o f taxes, and the active participation o f the estates in g o v e r n m e n t . It w e n t further, h o w e v e r , in its o p e n criticism o f the k i n g , its provisions for the third estate, and its readiness to e m p l o y force: ' W e h a v e all s o l e m n l y s w o r n and promised to use main forte and take u p arms to the end that the h o l y church o f G o d m a y be restored to its d i g n i t y as the true and h o l y C a t h o l i c religion' ( S a l m o n 1975, p. 238). T h e L e a g u e did indeed use a r m e d force to o c c u p y a n u m b e r o f t o w n s , and, w h e n H e n r i III capitulated to most o f its demands, its forces w e r e associated w i t h the r o y a l armies in the r e n e w e d w a r against the H u g u e n o t s . M e a n w h i l e a p a m p h l e t w a r w a s directed against the defenders o f N a v a r r e , w h o in 1585 had been e x c o m m u n i c a t e d b y P o p e Sixtus V . W h i l e Z a m p i n i and A n t o i n e H o t m a n , the brother o f the H u g u e n o t polemicist, defended the claims o f the cardinal de B o u r b o n to the succession in juristic treatises, m o r e general arguments w e r e a d v a n c e d b y Louis Dorleans, a barrister and m e m b e r o f the Sixteen w h o w a s later to d i s o w n his m o r e radical colleagues. In 1586 Dorleans published at least four w o r k s , in the best k n o w n o f w h i c h , Advertissement des catholiques anglois aux francois catholiques, he pretended to be a C a t h o l i c E n g l i s h m a n w a r n i n g French C a t h o l i c s o f the t y r a n n y they w o u l d h a v e to endure under a heretic. L i k e A n t o i n e H o t m a n , D o r l e a n s had the conservative instincts o f a defender o f j u d i c i a l tradition, especially the rights o f the h i g h court o f parlement, w h e r e he w a s later to b e c o m e the L e a g u e ' s advocate-general. Y e t his religious enthusiasm led h i m to adopt contrary positions, w h i c h he expressed w i t h the rhetorical skill o f one trained b y the humanist Jean D o r a t . T h e so-called Salic l a w o f the succession had been invented in the early fourteenth century, but most French jurists, Francois H o t m a n b e i n g exceptional in this respect, regarded it as c o e v a l w i t h the original Frankish m o n a r c h y ( H o t m a n 1972, p p . 97—9). T h i s w a s the fundamental l a w to w h i c h the supporters o f N a v a r r e appealed, whereas the propagandists o f the L e a g u e relied u p o n R o m a n l a w arguments about the relative p r o x i m i t y o f N a v a r r e and his uncle to H e n r i III. M o r e i m p o r t a n t to the L e a g u e r case, D o r l e a n s stressed catholicity as m o r e fundamental than antiquity. His Apologie ou defence des catholiques unis (1586) declared that the Salic l a w w a s p a g a n and must yield to later Christian principles. T h e l a w o f succession b e c a m e less i m p o r t a n t w h e n the L e a g u e b e g a n o p e n l y to espouse the doctrine o f election t h r o u g h the Estates General. T h e Sixteen adopted this v i e w as early as 1587 w h e n their clandestine organisation prepared a circular for l i k e - m i n d e d g r o u p s in other cities. T h e y and their policies e m e r g e d into the o p e n in the f o l l o w i n g year, w h e n 222

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Catholic resistance theory they installed their o w n g o v e r n m e n t in Paris after e x p e l l i n g the k i n g f r o m his capital in the day o f barricades. In a surrender m o r e abject than that o f 1585 H e n r i III declared the catholicity o f the c r o w n and the exclusion o f a heretic as fundamental l a w in his Edict o f U n i o n . T h i s did n o t entirely satisfy the L e a g u e , since it regarded the establishment or c o n f i r m a t i o n o f fundamental l a w to be the p r e r o g a t i v e o f the estates the k i n g had agreed to c o n v o k e . T h e edict w a s the subject o f D o r l é a n s ' Responce des vrays catholiques francois (1588). H e r e he referred to the crimes o f the m o n a r c h y under the first t w o dynasties, and stressed the priestly function o f the rexsacerdos, a c o n c e p t that b e c a m e widespread in 1589, w h e n the cardinal de B o u r b o n as ' C h a r l e s X ' w a s frequently likened to M e l c h i z e d e k . D o r l é a n s w r o t e o f the p a r a m o u n t role o f the estates and treated the parlement as their p e r m a n e n t abrégé, w i t h p o w e r to disallow r o y a l legislation. H e m a d e use o f the H u g u e n o t c o n c e p t o f inferior magistrates, w h o m he called regnicoles. A s the estates assembled at B l o i s the Sixteen issued a tract entitled Articles pour proposer aux estats et faire passer une loy fondamentale du royaume. W h i l e these constitutional a r g u m e n t s held the field, attacks u p o n the k i n g ' s favourites proliferated. T h e m o s t notable w a s a satire c o m p a r i n g E p e r n o n , the so-called ' a r c h i m i g n o n ' o f H e n r i III, w i t h Piers G a v e s t o n , w h o had been e x e c u t e d b y the barons under E d w a r d II (Histoire tragique et memorable de Gaverston ... iadis mignon d'Edouard II, 1588). T h e author w a s Jean B o u c h e r , the leading preacher o f the Sixteen. W h e n H e n r i III m u r d e r e d H e n r i de Guise and his brother at B l o i s B o u c h e r b e g a n to prepare the best k n o w n Leaguer exposition o f popular sovereignty. 2

After the c o u p at B l o i s B o u c h e r persuaded the t h e o l o g i c a l faculty o f the U n i v e r s i t y o f Paris to anticipate papal action b y declaring H e n r i III deposed, a decision ratified b y the parlement after that b o d y had been p u r g e d b y the Sixteen. T h e revolutionaries set u p other ad hoc institutions, soon to be counterbalanced b y the conservative custodian o f the L e a g u e r version o f the m o n a r c h y , and brother to the m a r t y r e d H e n r i de Guise, Charles de M a y e n n e . In these acts appeared the t w o sources o f tension w i t h i n the political t h o u g h t o f the L e a g u e : the relationship b e t w e e n secular and clerical jurisdiction, and the social differences b e t w e e n the aristocratic leadership o n the one hand and the b o u r g e o i s and clerical revolutionaries o n the other. B o u c h e r ' s De justa Henrici Tertii abdictione (1589) w a s in press at the time o f the regicide o f H e n r i III, and w a s adjusted to m e e t the n e w 2.

Dorléans 1588, pp. 158-9.

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situation. T h e a r g u m e n t w a s d i v i d e d into three parts: w h e t h e r church and p e o p l e m a y depose a k i n g for just cause; w h e t h e r H e n r i de V a l o i s should be deposed; w h e t h e r , p e n d i n g his actual r e m o v a l , he m i g h t be resisted in arms. B o u c h e r e x p l i c i t l y denied that the p o p e possessed 'the full and direct jurisdiction' o v e r the secular p o w e r he exercised o v e r the ecclesiastical order. H e asserted that b y g i v i n g the c h u r c h authority to depose kings he did n o t suggest that the p o p e had the p o w e r to act arbitrarily or to c h a n g e the laws o f the k i n g d o m . A s the vicar o f Christ, the p o p e w a s o b l i g e d to take note o f any occasion in a Christian state w h e n the ruler h a r m e d the c h u r c h or e n d a n g e r e d the salvation o f the p e o p l e b y fostering 'schism, perjury, and apostasy'. W h e n a d m o n i t i o n and censure p r o v e d ineffective, the p o p e should 'release the p e o p l e f r o m the b o n d o f obedience and arrange for the flock r e d e e m e d b y C h r i s t to be c o m m i t t e d to m o r e appropriate c a r e ' . T h i s w a s a cautious restatement o f the indirect p o w e r o f R o m e based o n the claim that the spiritual end w a s superior to the t e m p o r a l . 3

N o r w a s B o u c h e r , despite his activist fervour, any k i n d o f social radical. B e f o r e e x p l a i n i n g the right o f the p e o p l e to depose kings, he insisted that b y 'the p e o p l e ' he did n o t m e a n 'the undisciplined and turbulent m o b k n o w n as the m a n y - h e a d e d monster', but, rather, nobles, senators, and m e n o f virtue and integrity, 'a prudent multitude assembled b y l a w ' . T h e i r authority as the representatives o f the p e o p l e arose f r o m the original purpose o f g o v e r n m e n t . T h e f o r m o f g o v e r n m e n t w a s the p r o d u c t o f h u m a n artifice, a l t h o u g h the choice o f m o n a r c h y f o l l o w e d the m o d e l o f G o d as ruler o f the universe. M e n , w h o w e r e free b y nature, had recognised the i n c o n v e n i e n c e o f a l l o w i n g e v e r y o n e to d o as they w i s h e d , and desired a means o f enforcing c o n f o r m i t y to l a w . H e n c e they had 'consented to transfer to s o m e one person the political p o w e r they possessed i m m e d i a t e l y in themselves, and this for the sake o f the public u t i l i t y ' . B o u c h e r did n o t elaborate o n this tantalisingly b r i e f account o f the creation o f g o v e r n m e n t or o n the state o f society before it w a s established. H e intended to demonstrate the superiority o f the c o m m o n w e a l t h o v e r the k i n g , and to argue that it w a s i n c o n c e i v a b l e that a ruler created for such a purpose 4

5

3.

' . . . turn p o p u l o s o b e d i e n t i a e v i n c u l o e x i m a t , d e n i q u e o p e r a m ut alteri c o m m o d i o r i g r e x a C h r i s t o r e d e m p t u s c o m m i t a t u r ' . B o u c h e r 1 5 9 1 , 1, v , p . 1 3 .

4.

' Q u o d a n t e q u a m e x p o n i m u s , i n t e l l i g e n d u m p o p u l i n o m i n e isto l o c o n o n i n c o n d i t a m ac c o n f u s a m turbam, quae bellua m u l t o r u m

c a p i t u m est . . . sed p r o c e r u m , s e n a t o r u m , ac p r a e c i p u a

probitatis, i u d i c i i q u e ac dignitatis a u t h o r i t a t e h o m i n u m p r u d e n t e m ac iure c o a c t a m s u m i . ' Ibid., 5.

virtutis,

multitudinem

1, i x , p . 1 9 .

' M u l t i in id consenserunt, ut q u a e penes eos i m m e d i a t e politica potestas erat, ad u n u m p u b l i c i c o m m o d i c a u s a t r a n s f e r r e t u r . ' Ibid:,

1, x i i , p . 2 3 .

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aliquem

Catholic resistance theory w o u l d be a l l o w e d to betray it. Later he declared that, w h i l e the k i n g w a s invested w i t h highest authority (summum imperium), a perpetual s o v e r e i g n ty (majestas) w a s exercised o n b e h a l f o f the c o m m o n w e a l t h b y the comitia or estates. A p a r t f r o m his emphasis on the role o f the church and his suggestion o f a free state o f nature, B o u c h e r ' s m o s t o b v i o u s difference f r o m the C a l v i n i s t resistance writers w a s his l o n g and vituperative attack u p o n the character and crimes o f the k i n g . T h e theoretical sections o f this treatise offered a c o m p r e h e n s i v e synthesis o f the ideas o f his heretical precursors. H e used the same biblical, classical, and m e d i e v a l authorities as they, but his allusions, especially to classical writers, w e r e m o r e profuse and ingenious. H e cited C i c e r o ' s adage that the safety o f the people should be the supreme l a w (salus populi suprema lex esto). H e repeated the c o m m o n p l a c e that the k i n g , t h o u g h greater than the p e o p l e considered individually, w a s less than they as a w h o l e {rex maior singulis, universis minor). H e used R o m a n l a w principles o f tutorship and corporation theory. H e depicted Louis X I as the subverter o f the ancient constitution, stressed the supposed role o f the peers as arbitrators, recalled C l a u d e de Seyssel's three bridles u p o n r o y a l p o w e r , and r e m i n d e d his readers o f the chancellor's d u t y to refuse an unjust r o y a l edict. A t times he c a m e v e r y close to Francois H o t m a i l ' s vision o f the Frankish past. 'It w a s the c u s t o m o f the ancient Franks', he w r o t e , 'to salute the k i n g they elected b y raising h i m on a shield and c a r r y i n g h i m r o u n d the c a m p . ' L i k e H o t m a n , B o u c h e r explained that the Franks preferred to choose the best candidate f r o m a particular dynasty. H e repeated the passage in Francogallia citing Plutarch on the w a y a d o g or horse w a s chosen for personal qualities as w e l l as its breeding, and a v o i d e d any reproach o f plagiarism b y replacing H o t m a n ' s w o r d s w i t h s y n o n y m s . B o u c h e r ' s Dejusta Henrici Tertii abdicatione put less stress u p o n contract than De jure magitratuum and Vindiciae contra tyrannos, and there w a s n o t h i n g in the t w o C a l v i n i s t w o r k s to parallel his hint about a state o f nature. B o u c h e r did n o t f o l l o w up this remark w i t h a n y t h i n g o n a precise contract b e t w e e n ruler and ruled until m u c h later in the w o r k , w h e n he accused H e n r i III o f v i o l a t i n g public faith, and w e n t o n to say: ' M o r e o v e r public faith is necessarily conjoined w i t h the k i n g . For it depends u p o n 6

7

8

6.

' P o p u l u s s u m m u s ei i m p e r i u m d e f e r t . ' Ibid., c o m i t i a p r a e c i p u e e s s e . ' Ibid.,

7.

'Et v e t e r u m F r a n c o r u m

m o s f u i t , u t r e g e m a se e l e c t u m s u p e r c l y p e u m e l e v a t u m a c p e r

c i r c u n d u c t u m , salutarent.' 8.

i n , iii, p . 2 3 0 . ' M a i e s t a t e m r e i p u b l i c a e p e n e s o r d i n e s ac

in, v i i , p. 242.

Ibid.,

1, x v i , p . 2 9 . C f . H o t m a n

B o u c h e r 1 5 9 1 , 1, x v i i , p . 2 9 . C f . H o t m a n

1972, vi p. 232.

1 9 7 2 , v i , p. 220.

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that m u t u a l contract b y w h i c h the k i n g p l e d g e d his faith to the people, and in turn the p e o p l e p l e d g e d theirs to h i m . ' T h i s , like accounts o f the c o r o n a t i o n c e r e m o n y , w a s s i m p l y an elaboration o f the principle o f trust, and w a s inserted to s h o w that a k i n g w h o violated it b e c a m e a private citizen and m i g h t be put to death. A m o r e interesting use o f contract t h e o r y w a s the i n v o c a t i o n o f scriptural authority to p r o v e b o t h the s u p r e m a c y o f the church and the continuance o f the p o w e r o f the people o v e r the k i n g after he had been constituted. B o u c h e r claimed that 'the priest takes precedence o v e r the people, and the k i n g o v e r the individual, and the p e o p l e or k i n g d o m o v e r the k i n g ' . T o support this he q u o t e d II C h r o n i c l e s 23:16 ( P a r a l i p o m e n o n in the V u l g a t e ) : 'Jehoiada m a d e a c o v e n a n t b e t w e e n himself and all the p e o p l e and the k i n g , that they should be the L o r d ' s p e o p l e . ' T h i s , a c c o r d i n g to B o u c h e r , 'means that the k i n g is included in the people, n o t the people in the k i n g , n o r are the k i n g and the people to be seen as separate entities, but the pact is m a d e w i t h G o d b y b o t h t o g e t h e r ' . T h e tripartite contract b e t w e e n G o d , k i n g , and people in Vindiciae contra tyrannos w a s intended to s h o w that the p e o p l e m i g h t act against a k i n g w h o failed to k e e p his part o f the a g r e e m e n t . In De justa Henrici Tertii abdicatione, h o w e v e r , the point w a s not s i m p l y the superiority o f the people to the k i n g , but the superiority o f the priest to b o t h . T h e church w a s the direct creation o f G o d , the state o f h u m a n w i l l . A l t h o u g h church and p e o p l e had their separate roles in d e p r i v i n g a k i n g , the general a r g u m e n t cast the s h a d o w o f theocracy. T h e second significant L e a g u e r treatise published at this time o f crisis w a s De justa reipublicae Christianae in reges impios et haereticos authoritate (1590), c o m p o s e d after the assassination o f Henri III and directed aganst N a v a r r e . T h e author, w h o used the p s e u d o n y m G u l i e l m u s Rossaeus in a later edition, w a s p r o b a b l y the C a t h o l i c E n g l i s h m a n W i l l i a m R e y n o l d s . H e c o v e r e d the same themes as B o u c h e r , but w i t h greater depth and originality and w i t h o u t the extensive personal abuse o f De justa Henrici Tertii abdicatione. H e treated the o r i g i n o f g o v e r n m e n t in m o r e detail, discussed the collaboration o f c h u r c h and people m o r e c o n v i n c i n g l y , and differed f r o m B o u c h e r in his refusal to associate popular s o v e r e i g n t y w i t h the estates alone. 9

10

9.

' [ P u b l i c a fides] p e n d e t e n i m i d e x m u t u o c o n t r a c t u illo, q u o r e x p o p u l o f i d e m s u a m , h u i c v i c i s s i m s u a m p o p u l u s o b l i g a v i t . ' B o u c h e r 1 5 9 1 , m , iii, p . 2 3 9 .

10.

' E i u s m o d i e s t i l l u d q u o d " p e p i g i t I o i d a f o e d u s i n t e r se u n i v e r s u m q u e p o p u l u m a c r e g e m u t e s s e t p o p u l u s D o m i n i . " . . . u t e x e o i n t e l l i g a s i n p o p u l o r e g e m n o n i n r e g e ac p o p u l u m esse, n e c s e p a r a t i m a r e g e a c p o p u l o , s e d s i m u l a b u t r o q u e f a c t u m f o e d u s c u m D e o e s s e . ' Ibid.,

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1, x v i i i , p . 3 2 .

Catholic resistance theory B o t h B o u c h e r and R e y n o l d s cited G e o r g e B u c h a n a n ' s Dejure regni apud Scotos (1579) o n tyrannicide. B u c h a n a n ' s w o r k differed substantially f r o m H u g u e n o t resistance theory. H e derived g o v e r n m e n t f r o m a state o f nature and placed an active s o v e r e i g n t y inalienably in the people. T h i s had m u c h in c o m m o n w i t h the early sixteenth-century conciliarist Jacques A l m a i n , and, to less extent, w i t h A l m a i n ' s teacher J o h n M a i r , under w h o m B u c h a n a n had studied. R e y n o l d s w a s m o r e ready than D o r l e a n s and B o u c h e r to admit that a Calvinist, h o w e v e r mistaken in religion, m i g h t profess acceptable ideas about secular g o v e r n m e n t . B u c h a n a n argued that m a n k i n d had escaped f r o m a pre-social condition b y an impulse to c o m m u n a l l i v i n g , a light d i v i n e l y infused in h u m a n minds. A sense o f mutual obligation d e v e l o p e d in formed society, but there w e r e also those in w h o m self-interest d o m i n a t e d , and for this reason g o v e r n m e n t had been instituted. U n f o r t u n a t e l y , the same self-interest infected the rulers chosen b y the people, so that l a w s had to be devised to restrain t h e m . P o p u l a r authority w a s n o t delegated to the h i g h e r orders but reposed in those citizens w h o put the public welfare foremost. ' A n d so', B u c h a n a n w r o t e , ' i f the citizens are c o u n t e d not in terms o f their n u m b e r but in terms o f their worthiness, not o n l y the better, b u t also the greater part w i l l stand for liberty, m o r a l i t y , and security' ( S a l m o n 1987, p p . 138—54). B u c h a n a n did not define precisely h o w the people dealt w i t h tyrants. H i s t o r y revealed a variety o f w a y s in w h i c h the popular w i l l had b e c o m e effective. A ruler should be a free m a n ruling o v e r free m e n : a tyrant treated his subjects as slaves. A k i n g w h o subverted the society he w a s appointed to preserve and b r o k e the pactio mutua b e t w e e n h i m s e l f and his p e o p l e b e c a m e a public e n e m y w h o m e v e n private citizens c o u l d put to death. T h i s w a s the o n l y occasion w h e n B u c h a n a n m e n t i o n e d a contract in De jure regni. R e y n o l d s described an original state o f nature v e r y like B u c h a n a n ' s . Each in his w a y w a s attempting to reconcile the Aristotelian tradition (in w h i c h , m a n b e i n g b y nature a social animal, it w a s impossible to c o n c e i v e a pre-social h u m a n existence) w i t h passages in C i c e r o suggesting that m a n had once lived as a bestial, solitary, w a n d e r i n g b e i n g . T o R e y n o l d s a natural force w i t h i n m e n l i v i n g in this barbarous w a y had impelled t h e m to f o r m a society, and, once they had d o n e so, they b e c a m e conscious b o t h o f its advantages and the need to create a frame o f g o v e r n m e n t to restrain a m i n o r i t y driven b y lust and greed. St A u g u s t i n e , as w e l l as A q u i n a s , w a s a m o n g R e y n o l d s ' authorities. If G o d had e n d o w e d m e n w i t h the drive to live c o m m u n a l l y , it w a s d e p r a v i t y that o b l i g e d t h e m to devise laws. G o v e r n m e n t a l forms and measures to discipline rulers 'emanated f r o m the 227 Cambridge Histories Online © Cambridge University Press, 2008

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w i l l and approbation o f peoples' ( S a l m o n 1987, p. 149). R e y n o l d s illustrated these assertions w i t h an array o f e x a m p l e s d r a w n n o t o n l y f r o m E u r o p e and classical and biblical times but also f r o m C a l i c u t , C o c h i n C h i n a , the M o l u c c a s , and the Indians o f the N e w W o r l d . L i k e B u c h a n a n and B o u c h e r , he briefly referred to a contract o f g o v e r n m e n t and stressed the c o r o n a t i o n as a formal a c k n o w l e d g m e n t o f the ruler's obligations and the people's consent. L i k e B u c h a n a n , but unlike B o u c h e r , he refused to e n d o w the estates w i t h the ultimate s o v e r e i g n t y , w h i c h resided inalienably in the people. A l l legitimate m o n a r c h y w a s limited. Signs o f t y r a n n y w e r e taxation w i t h o u t consent, infringement o f constitutional laws, and threats to the established religion. In Christian countries, and particularly in France, w h e r e the catholicity o f the c r o w n w a s fundamental l a w , rulers must o b e y the church. T h e episcopacy must a p p r o v e popular choice in the a p p o i n t m e n t o f a k i n g , and a s y n o d , as w e l l as the p o p e , m i g h t declare a ruler a tyrant m e r i t i n g deposition. In 1591 a n u m b e r o f L e a g u e r pamphlets described the c r o w n as elective and denied the hereditary claims o f N a v a r r e . Pressure m o u n t e d to call the estates to elect a C a t h o l i c k i n g and remain a directive force in g o v e r n m e n t . A list o f articles presented b y the Sixteen to the Paris m u n i c i p a l g o v e r n m e n t p r o p o s e d that the estates should n o m i n a t e the r o y a l council, c o n t r o l taxation and the creation o f offices, and m e e t w i t h o u t the k i n g , w h o should possess n o legislative v e t o ( B a u m g a r t n e r 1975, p p . 179—82). T h e Sixteen, deserted b y their m e m b e r s w i t h i n the m u n i c i p a l elite and n o l o n g e r in c o n t r o l o f the city g o v e r n m e n t , reverted to terrorism and had to be t e m p o r a r i l y suppressed b y M a y e n n e . H o w e v e r , the L e a g u e r lieutenantgeneral needed the radicals to offset the g r o w i n g peace m o v e m e n t in his party. Despite his desire to a v o i d c o n v o k i n g the estates, w h i c h m i g h t threaten his o w n authority, M a y e n n e had finally to issue instructions for their assembly. T h e L e a g u e r estates o f 1593 m e t w i t h the express intention o f electing a k i n g . T h e y failed because o f the rivalries o f the various aristocratic candidates, the patriotic reaction against a Spanish attempt to p r o m o t e the claims o f the Infanta, and the t i m e l y a n n o u n c e m e n t o f N a v a r r e ' s conversion. T w o tensions w i t h i n L e a g u e r t h o u g h t e m e r g e d in 1593 and in the ensuing year, w h e n Paris surrendered to N a v a r r e , n o w clearly established as H e n r i I V . B o t h w e r e the products o f e x t r e m i s m , the one social and the other religious. T h e t h e m e o f social conflict w a s apparent w i t h i n royalist satire o f the L e a g u e as w e l l as w i t h i n L e a g u e r p r o p a g a n d a . T h e proceedings o f the estates w e r e m o c k e d b y a g r o u p ofpolitique sympathisers and m e n o f letters 228

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Catholic resistance theory in a manuscript secretly circulated at the time and subsequently e x p a n d e d and published as the Satyre Ménippée (1594). T h e social anarchy p r o v o k e d b y the exploitation o f the l o w e r classes in the w a r s o f the L e a g u e w a s a serious point m a d e b y this Rabelaisian burlesque. T h e fictitious speech put into the m o u t h o f the spokesman for the second estate confessed the profits derived b y the n o b i l i t y in c o n t i n u i n g the conflict at the expense o f the u n p r i v i l e g e d . A n o t h e r section o f the satire described a series o f tapestries displayed for the assembly w h i c h p o r t r a y e d as their m o t i f the c o n t e m p o r ary peasant risings and the activities o f urban radicals such as the Sixteen. Politique satire m a y h a v e e x a g g e r a t e d the l o w l y social status o f the Sixteen, but it w a s not mistaken in detecting an anti-noble bias a m o n g the revolutionaries. T h e articles submitted to the Paris hôtel de ville deplored the proliferation o f petty nobles and called for a reduction in their n u m b e r s . O u d a r t Rainsart, one o f the principals in the Sixteen's m u r d e r o f the first president o f the L e a g u e r parlement and t w o other magistrates in N o v e m b e r 1 5 9 1 , had published at that time a tract in w h i c h he d e n o u n c e d the nobility in general and suggested that their titles had been based u p o n the b r i g a n d a g e o f their ancestors (La Représentation de la noblesse hérétique sur le théâtre de France, 1591). E v e n Dorléans, w h o had b r o k e n w i t h the terrorists in the Sixteen but remained a violent critic o f N a v a r r e , reproached the vices o f the nobles o n b o t h sides in the satire he c o m p o s e d in the s u m m e r o f 1593 (Le Banquet et apresdinée du conte [sic] d Arête, 1594). }

T h e m o s t remarkable L e a g u e r d o c u m e n t attacking the elite w a s Le Dialogue d'entre le maheustre et le manant (1594), attributed to the organiser o f the 1591 murders, François M o r i n de C r o m é . So radical w e r e its opinions that the royalists published a d o c t o r e d version in w h i c h the speeches o f the labourer or manant w e r e a l l o w e d to stand as testimony o f the e x t r e m i s m o f the Sixteen ( S a l m o n 1987, p p . 264-6). T h e n o b i l i t y o f the s w o r d , the magistracy, and the episcopacy, w h e t h e r they supported N a v a r r e or M a y e n n e , w e r e all the subject o f bitter accusation for their treatment o f the u n p r i v i l e g e d . B e h i n d the lament o f the manant at the suffering o f the people lay the implication o f popular rights and the belief that c o m m o n folk alone constituted true believers and served as the agents o f divine w i l l . C r o m é suggested that the hereditary nobility be replaced w i t h an aristocracy o f virtue ( C r o m é 1977, p. 189). T h e Sixteen had appealed directly to the p o p e , as they had to the k i n g o f Spain. T h e manant represented a c o m b i n a t i o n o f social radicalism and C a t h o l i c f e r v o u r w h i c h had earlier appeared in the tracts o f Jean de C a u m o n t . 'Jesus Christ w i l l c o n q u e r ' , C a u m o n t had written. 'Jesus Christ 229

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w i l l reign. Jesus Christ w i l l be k i n g o f France' (Advertissement des advertissements, 1587, p. 30). C a u m o n t ' s La Vertu de la noblesse (1585) had been as severe an indictment o f n o b l e depravity and atheism as C r o m é ' s Dialogue. T h e preachers o f the L e a g u e — not o n l y those associated w i t h the Sixteen — often v o i c e d a kind o f theocracy, and this w a s particularly apparent in clerical reaction to the supposed h y p o c r i s y o f H e n r i I V ' s conversion. Jean Porthaise o f Poitiers published Cinq sermons . . . de la simulée conversion (1594), granting the p o p e direct p o w e r o v e r secular g o v e r n m e n t and a l l o w i n g the c l e r g y to depose a ruler for secular t y r a n n y as w e l l as heresy. T h e r e w a s a theocratic tinge to B o u c h e r ' s o w n sermons against the conversion, e v e n t h o u g h he accorded the p o p e m e r e l y indirect p o w e r (Sermons de la simulée conversion et nullité de la prétendue absolution de Henry de Bourbon, 1594). It w a s n o t until he had fled to the Spanish Netherlands after the k i n g ' s r e c o v e r y o f Paris that B o u c h e r solved the p r o b l e m o f the dual s o v e r e i g n t y o f p o p e and people. In justifying the attempted regicide b y Jean Chastel in D e c e m b e r 1594 (Apologie pour Jean Chastel, 1595), he w r o t e that the p o p e should e x c o m m u n i c a t e an unjust or heretical ruler, but the people should effect his deposition and punishment. S h o u l d it p r o v e impossible to assemble the estates for this purpose, or should the nobility p r o v e t o o corrupt to act, the people must appeal to the p o p e , w h o s e j u d g e m e n t m i g h t be e x e c u t e d b y private citizens. B o u c h e r w e n t on to defend the Jesuits w h o had been expelled b y the parlement o f Paris f r o m the area o f its jurisdiction. H e singled out for criticism the published speech against the society b y A n t o i n e A r n a u l d that had led to their c o n d e m n a t i o n . T h e c o m b i n a t i o n o f U l t r a m o n t a n i s m w i t h popular religious enthusiasm caused p r o b l e m s for the L e a g u e r magistracy, a m o n g w h o m Gallican sentiment still existed. W h e n the papal n u n c i o to the L e a g u e , C a r d i n a l Cajetan, arrived in Paris in 1590 w i t h the Jesuit R o b e r t B e l l a r m i n e in his train, the j u d g e s o f the L e a g u e r parlement w o u l d not register his bull w i t h o u t the reservation o f the Gallican liberties. T w o years later another legate, the cardinal o f Piacenza, b r o u g h t a bull c o n f i r m i n g the e x c o m m u n ication o f N a v a r r e and requiring the election o f a C a t h o l i c s o v e r e i g n . O n this occasion the j u d g e s registered the d o c u m e n t w i t h o u t qualification, and it w a s their advocate-general, Dorléans, w h o justified their action w i t h his Plaidoyé des gens du Roy (not published until 1594). D o r l é a n s supported the indirect p o w e r o f the p o p e to depose a secular ruler w h e n the latter threatened the spiritual welfare o f his subjects, but he w e n t b e y o n d this in support o f U l t r a m o n t a n i s m and denied that the procedure b y w h i c h the 230 Cambridge Histories Online © Cambridge University Press, 2008

Catholic resistance theory parlement e m p l o y e d its supervisory p o w e r s in matters o f clerical administra tion, the appel comme d'abus, c o u l d be i n v o k e d against a papal bull. T h r e e m o n t h s after delivering these opinions D o r l e a n s c o m p l e t e l y reversed h i m s e l f and spoke in the estates o p p o s i n g the c l e r g y ' s request to receive the decrees o f the C o u n c i l o f T r e n t . H e w a s in fact a m e m b e r o f a c o m m i s s i o n o f the parlement to e x a m i n e the T r i d e n t i n e articles w h i c h p r o d u c e d a t h o r o u g h l y Gallican finding. T h i s did n o t prevent the L e a g u e r estates o f 1593 f r o m a p p r o v i n g the decrees. H o w e v e r , the parlement had the last w o r d , for its subsequent declaration against the election o f a foreign prince as contrary to the Salic l a w effectively p r e v e n t e d the deputies o f the estates f r o m c h o o s i n g a candidate. T h e twists and turns in the positions o f D o r l e a n s demonstrate the L e a g u e ' s d i l e m m a b e t w e e n patriotic sentiment and extra-national loyalties.

iii

Gallicanism

Gallican sentiment, t h o u g h far f r o m u n a n i m o u s in its support o f N a v a r r e , w a s an i m p o r t a n t element in the d e v e l o p m e n t o f royalist t h e o r y in response to the L e a g u e . Ecclesiastical Gallicanism, affirming the independence o f the French c h u r c h f r o m b o t h p o p e and k i n g , had its roots in the P r a g m a t i c Sanction o f B o u r g e s in 1438. Political Gallicanism, presenting an alliance o f c h u r c h and c r o w n to limit papal authority, had been strengthened during H e n r i II's dispute w i t h R o m e in the early 1550s. A t the C o u n c i l o f T r e n t in 1562 the French c o n t i n g e n t had supported the Spanish d e m a n d that the institution o f bishops b y apostolic succession should be declared iure divino. T h e speech b y the Jesuit general D i e g o Lainez helped to defeat this proposal in f a v o u r o f the o v e r r i d i n g authority o f the successors o f St Peter. It w a s f r o m this point that the Jesuits w e r e seen as the enemies o f Gallican liberties and the p r i m e defenders o f U l t r a m o n t a n i s m . N o t h i n g in the T r i d e n t i n e decrees dealt directly w i t h the respective p o w e r s o f p o p e and k i n g , but the decrees w e r e generally v i e w e d as a threat to the Gallican independence defended b y the parlement and, on occasion, b y the S o r b o n n e . H e n r i III, w h o s e erratic piety at times induced h i m to forget Gallican traditions, personally f a v o u r e d the unqualified reception o f the decrees but the opposition o f the parlement frustrated his intentions. In 1579 the k i n g a p p r o v e d the r e f o r m i n g ordinance o f Blois, o n l y to find the p o p e resentful o f r o y a l enaction o f ecclesiastical legislation p r o m u l g a t e d under his o w n direct authority. T h e e x t r e m e to w h i c h parlementaire reaction c o u l d e x t e n d w a s demonstrated in Advertissement sur la reception et publication du concile de 231 Cambridge Histories Online © Cambridge University Press, 2008

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Trente (1583) b y Jacques F a y e d'Espesses, president-a-mortier. F a y e n o t o n l y suggested a papal plot to u n d e r m i n e regal p o w e r , but i n d u l g e d in personal criticism o f G r e g o r y X I I I (Martin 1 9 1 9 , p p . 203—6). T h e e x c o m m u n i c a t i o n o f N a v a r r e and his cousin C o n d e b y Sixtus V in 1585 c o u l d n o t but be regarded b y defenders o f political Gallicanism as another expression o f papal interference in t e m p o r a l affairs. H u g u e n o t writers, w h o turned at this time f r o m resistance theory to defence o f N a v a r r e ' s dynastic rights, c l e v e r l y catered to this Gallican reaction. Philippe Duplessis M o r n a y superintended the personal response o f the princes, w h i l e Francois H o t m a n w e n t a little t o o far to catch Gallican support in the insults he flung at Sixtus in his p a m p h l e t Brutum Fulmen. B o t h these w o r k s w e r e translated into English, since they had a ready appeal to A n g l i c a n s w h o had e x p e r i e n c e d Pius V ' s similar e x c o m m u n i c a tion o f Elizabeth in 1570 (An Answer to the Excommunication by Sixtus V, 1585; The Brutish Thunderbolt or, rather, feeble fire-flash, 1586). S o also was the politique and Gallican rebuttal o f the bull b y M i c h e l H u r a u l t (AntiSixtus, 1590). A f t e r the assassination o f H e n r i III the politique f o l l o w e r s o f N a v a r r e realised the i m p o r t a n c e o f attracting Gallican support b y emphasising the U l t r a m o n t a n e element in the L e a g u e . T h u s the politique jurist Louis Servin published his Vindiciae secundum libertatem ecclesiae Gallicanae in 1591 in answer to B e l l a r m i n e ' s defence o f the indirect p o w e r o f the p o p e (De Summo Pontifice, 1586). Servin p r o v i d e d an e x t r e m e statement o f political Gallicanism in w h i c h the p o p e w a s described as m e r e l y the chief a m o n g bishops, and the k i n g w a s so m u c h in control o f the French church that he c o u l d release h i m s e l f and others f r o m e x c o m m u n ication, Protestant t h o u g h he w a s . T h e t h e o r y o f divine right w a s clothed in dynastic m y s t i q u e b y Servin, w h o stressed the k i n g ' s descent f r o m r e m o t e G e r m a n i c ancestors, and r e m i n d e d his readers o f the original rights o f the church o f ' G a l l o - F r a n c i a ' , n o w threatened b y papal usurpation and Spanish aggression. Similar themes w e r e pursued in Philippiques contre les bulles et autres pratiques de la faction d'Espagne b y Francois de C l a r y . T h e y w e r e repeated t o o , b y Charles F a y e , brother o f F a y e d'Espesses, in the speech d e n o u n c i n g G r e g o r y X I V ' s bulls in f a v o u r o f the L e a g u e w h i c h he delivered to a sparsely attended royalist clerical assembly at T o u r s in 1591 ( S a l m o n 1987, p p . 169—70). H e i g h t e n e d rhetoric, and a history designed to s h o w r o y a l c o n t r o l o f the c h u r c h in early times and the gradual expansion o f papal a m b i t i o n , m a r k e d Gallican w r i t i n g in the embarrassing c i r c u m stance o f rule b y a heretic k i n g . T h e Gallican m y t h s about C l o v i s and the early councils w e r e treated m o r e realistically in the Traicte des libertez de 232 Cambridge Histories Online © Cambridge University Press, 2008

Catholic resistance theory Véglise gallicane, c o m p o s e d in 1591 b y the antiquarian C l a u d e Fauchet, but e v e n in this erudite w o r k the author w a s clearly pleading a cause. After H e n r i I V ' s conversion, his r e c o v e r y o f Paris, and the defection to h i m o f nearly all the L e a g u e r bishops and parlementaire j u d g e s , a triumphant Gallicanism expressed itself t h r o u g h the w o r k s o f Jacques de la Guesle, Jacques Leschassier, Etienne Pasquier, and the brothers Pierre and François P i t h o u . O f these Pierre Pithou's short treatise o n the liberties o f the Gallican church, licensed b y the reunited parlement after the k i n g ' s entry to his capital, b e c a m e the best k n o w n statement o f the principles o f political Gallicanism ( S a l m o n 1987, p. 172). T h e parlement p r o c e e d e d to decree the expulsion o f the Jesuits, w h o w e r e d e n o u n c e d before the court b y A r n a u l d as the a c c o m p l i c e s o f the w o u l d - b e regicidal assassin, Pierre Barrière. A r n a u l d ' s speech, and an earlier indictment o f the Jesuit order b y Etienne Pasquier received w i d e circulation in France and E n g l a n d (The Arrainement of the Whole Societie of the Jésuites in France, 1594; The Jésuite displayed, containing the original and proceedings of the Jesuits together with the fruits of their doctrine, 1594). C l e m e n t VIII m a d e the return o f the Jesuits and the reception o f the T r i d e n t i n e decrees conditions for his absolution o f H e n r i I V in 1595. T h e k i n g h o n o u r e d the first in 1603, but the parlement b l o c k e d fulfilment o f the accord. Y e t , w h i l e Gallicanism w a s in the ascendant, it w a s not u n a m b i g u o u s . S o m e f o r m e r m e m b e r s o f the L e a g u e had m o r e s y m p a t h y w i t h the ecclesiastical variant than they had w i t h the political. In his Traicté des libertez de Véglise gallicane (1594), A n t o i n e H o t m a n , the f o r m e r L e a g u e r , cited the conciliarists Jean G e r s o n , Pierre d ' A i l l y , and A l m a i n , and criticised the belief that k i n g s w e r e justiciable b y G o d alone.

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Gallicanism b e c a m e associated w i t h the t h e o r y o f the divine right o f kings. T h i s doctrine and the absolutist version o f s o v e r e i g n t y w e r e the hallmarks o f politique r o y a l i s m . T h e T o u l o u s a i n jurist Pierre de B e l l o y sought to answer b o t h the secular and the U l t r a m o n t a n e arguments o f the L e a g u e . His Apologie catholique (1585) w a s yet another response to N a v a r r e ' s e x c o m m u n i c a t i o n , w h i l e De Vauthorité du Roy (1587) refuted the constitutional theories o f D o r l é a n s and others. K i n g s , a c c o r d i n g to B e l l o y , held their p o w e r directly f r o m G o d , and, since they w e r e responsible to G o d alone, the p o p e had n o p o w e r to depose t h e m . H e m i g h t e x c o m m u n i c a t e , but e v e n a heretic k i n g held d i v i n e l y a p p r o v e d authority. B e l l o y denied that p o w e r w a s originally in the people and g o v e r n m e n t a h u m a n artefact, 233

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for the first k i n g s w e r e created after the Fall as patriarchs. U s i n g B o d i n ' s terms, B e l l o y described r o y a l authority as puissance souveraine, w h i c h consisted in ' g i v i n g l a w to all in general and each in particular w i t h o u t the consent or w i l l o f a n y o n e else w h a t s o e v e r ' (Allen 1 9 4 1 , p. 384). T o rebel against the i m a g e and lieutenant o f G o d w a s to rebel against G o d Himself. B e f o r e B e l l o y , the Gallicised Scot A d a m B l a c k w o o d had p r o v i d e d an original defence o f absolute m o n a r c h y . T h e first t w o parts o f his De conjunctione religionis et imperii (1575) w e r e w r i t t e n before the L e a g u e and directed at C a l v i n i s m , w h i c h B l a c k w o o d held to be inherently subversive o f m o n a r c h y . T h e third part did not appear until 1 6 1 1 and d e n o u n c e d the doctrines o f the L e a g u e as a k i n d o f C a l v i n i s m in disguise. Pro regibus apologia (1581) w a s a i m e d at his f e l l o w - c o u n t r y m a n , B u c h a n a n . It w a s replete w i t h R o m a n l a w citations to s h o w that kingship b y nature w a s unlimited and u n m i x e d . B l a c k w o o d w r o t e realistically o f the o r i g i n o f m o n a r c h y in force and m a d e little attempt to justify it in m o r a l terms. It p a r t o o k o f the attributes b o t h o f a father and o f a master o f slaves. A t the same time B l a c k w o o d , unlike B e l l o y , s h o w e d great respect for the papacy, and outlined a doctrine o f non-resistance in w h i c h religious and secular authority c o m p l e m e n t e d each other. S u c h v i e w s w e r e an inappropriate defence for r o y a l i s m in the h e y d a y o f the L e a g u e . T h e absolutist v i e w s o f B o d i n , described elsewhere in this v o l u m e , w e r e , o f course, o f great i m p o r t a n c e in this period. O n e o f his disciples, w h o chose not to put as m u c h stress u p o n divine right as B e l l o y , w a s Pierre G r é g o i r e , a civilian and c a n o n l a w y e r at P o n t - a - M o u s s o n in Lorraine. G r é g o i r e k e p t out o f the public debate w i t h the theorists o f the L e a g u e and published a detailed and exhaustive analysis o f political forms and theories at the conclusion o f the religious wars (De república, 1596). K i n g s , in his v i e w , derived their authority f r o m the p e o p l e b y an irrevocable transfer o f p o w e r , in terms o f the R o m a n lex regia. A l t h o u g h he declared m i x e d g o v e r n m e n t to be impossible under the l o g i c o f B o d i n i a n s o v e r e i g n t y , he w a s a w a r e o f B o d i n ' s distinction b e t w e e n the f o r m o f g o v e r n m e n t and the m e t h o d o f its administration, w h i c h c o u l d admit aristocratic and d e m o c r a tic elements. Since ordinary positive l a w s w e r e simply the c o m m a n d o f the sovereign, the ruler c o u l d n o t be limited b y t h e m , but he w a s restrained b y divine and natural l a w . T h e estates c o u l d be c o n v o k e d o n l y b y r o y a l authority. T h e y existed to submit grievances, to constitute regencies in r o y a l minorities, to consent to n e w taxes, and to aid in r e f o r m i n g the frame o f g o v e r n m e n t w h e n called u p o n to d o so ( C a r l y l e 1936, p. 444). G r é g o i r e w a s thus a m o d e r a t e absolutist w h o t o o k constitutional practice into 234 Cambridge Histories Online © Cambridge University Press, 2008

Catholic resistance theory account. N o Gallican, he supported publication o f the Tridentine decrees in France. H e admitted that a p o p e m i g h t depose the H o l y R o m a n e m p e r o r but he c o u l d not deprive a k i n g o f his right in a hereditary m o n a r c h y . A stronger anti-papalist stance w a s taken b y G r e g o i r e ' s successor at P o n t - a - M o u s s o n , the C a t h o l i c Scotsman W i l l i a m B a r c l a y . His v i e w s d e v e l o p e d in the course o f a c o n t r o v e r s y at the university there b e t w e e n the l a w faculty and the Jesuits. His absolutist De regno et regali potestate (1600) w a s a k i n d o f summa o f the ideas o f divine right, s o v e r e i g n t y , and Gallicanism d e v e l o p e d b y politique royalists during the later religious wars. His treatise t o o k the f o r m o f a detailed refutation o f H u g u e n o t and L e a g u e r resistance theorists, for w h o m he coined the t e r m monarchomachi. U n l i k e G r e g o i r e , he did n o t c o n c e d e original authority to the c o m m u n i t y , but believed w i t h B e l l o y that k i n g s w e r e appointed directly b y G o d and w e r e responsible o n l y to H i m . E v e n w h e n electors chose a k i n g in a n o n hereditary m o n a r c h y , they w e r e simply expressing G o d ' s w i l l and held n o constitutive p o w e r (De regno, 111, 3). M o n a r c h y b e g a n w i t h A d a m , the first patriarch, and it w a s the o n l y f o r m o f g o v e r n m e n t a p p r o v e d b y G o d . A s o v e r e i g n k i n g w a s supra ius, contra ius, extra ius. L a w s w e r e his c o m m a n d s and, insofar as they existed otherwise, served m e r e l y to take the place o f his express w i l l w h e n he w a s absent. A limitation o n kingship w a s a contradiction in terms and an invitation to anarchy. Francois H o t m a n ' s historical version o f the estates w a s a m y t h , for they depended u p o n r o y a l authority, as, indeed, did any k i n d o f p r i v i l e g e (De regno, i v , 14—18). B a r c l a y f o l l o w e d the m o n a r c h o m a c h s t h r o u g h all the standard biblical and classical texts and found answers to their arguments. Y e t , despite his indefatigable perseverance in defending r o y a l absolutism, he m a d e vital concessions to resistance t h e o r y w h i c h w e r e to be cited b y his critics t h r o u g h o u t the seventeenth century, i n c l u d i n g L o c k e himself. N o t o n l y did he a l l o w resistance to a usurper but he also admitted that a k i n g w h o handed o v e r his realm to a foreigner, or w h o flagrantly u n d e r t o o k its destruction, c o u l d be resisted in arms (De regno, 111, 8 and 16). B a r c l a y ' s l o y a l t y to k i n g and church served as a m o d e l for those royalist English C a t h o l i c s w h o o p p o s e d Jesuit influence at the end o f Elizabeth's reign. James I, w h o invited such Protestant scholars as Isaac C a s a u b o n and Joseph-Juste Scaliger to w r i t e in his anti- papal cause, also asked B a r c l a y to serve as his propagandist, but the Scot w a s t o o g o o d a C a t h o l i c to p a y the price o f his pension w i t h c o n v e r s i o n to A n g l i c a n i s m . T h i s w a s also the attitude o f his son, J o h n B a r c l a y , w h o saw t h r o u g h the press his father's p o s t h u m o u s attack against U l t r a m o n t a n i s m in general and B e l l a r m i n e in 235 Cambridge Histories Online © Cambridge University Press, 2008

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particular, De potestate Papae (1609, English version 1 6 1 1 ) . T h i s w o r k f o l l o w e d B e l l o y in m a k i n g an absolute distinction b e t w e e n the spiritual and t e m p o r a l spheres. T h e p o p e m i g h t e x c o m m u n i c a t e a ruler, but he had n o p o w e r to absolve subjects f r o m their secular allegiance. W h i l e the state served n o spiritual end, the c l e r g y w h o resided w i t h i n it w e r e subject to the civil p o w e r . T h e Jesuit opponents o f m o n a r c h y b y divine right also distinguished b e t w e e n church and state, but they did so in order to claim the indirect p o w e r o f the p o p e in t e m p o r a l affairs and to d e n y secular c o n t r o l o f ecclesiastical administration.

v

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T h e Jesuits w e r e seen as the m o s t fervent defenders o f U l t r a m o n t a n i s m and also as supporters o f secular resistance t h e o r y . In practice the society did not display the m o n o l i t h i c u n i t y its critics claimed, especially in the c o n t e x t o f the French religious wars (Martin 1973). M o s t o f their political w r i t i n g s achieved a level o f d e t a c h m e n t and abstraction s e l d o m equalled b y their opponents, but they w e r e also capable o f casuistry and dissimulation, as the English Jesuit R o b e r t Parsons demonstrated. In terms o f their t h e o r y o f natural l a w , they assumed the n e o - T h o m i s t mantle w o r n earlier in the sixteenth century b y the Spanish D o m i n i c a n s , w i t h w h o s e t h e o l o g y o f grace the Jesuit Luis de M o l i n a had decisively b r o k e n . N o r w e r e Jesuit political doctrines necessarily accepted b y the p a p a c y . Sixtus V preferred to e x c o m m u n i c a t e N a v a r r e and C o n d e in plenitudine potestatis and he so disapproved o f the indirect t h e o r y a d v a n c e d b y B e l l a r m i n e in De Summo Pontífice that he planned to place the v o l u m e o f disputations in w h i c h it w a s published u p o n the R o m a n Index. T h e t h e o r y o f the direct p o w e r o f popes o v e r k i n g s w a s a d v a n c e d b y A l e x a n d e r Carrerius in De Potestate Romani Pontificis adversus impiospoliticos (1599) and, as has been noted, it sometimes appeared in the p r o p a g a n d a o f the L e a g u e . B e l l a r m i n e ' s early w o r k s w e r e directed against the Lutherans, the humanists, and the conciliarists. In the latter respect he f o l l o w e d Lainez in maintaining the p o p e ' s m o n o p o l y o f the k e y s o f St Peter, the p o p e ' s legislative authority w i t h i n the church, and the unalterable nature o f the ecclesiastical hierarchy (Skinner 1978, 11, p p . 1 3 8 - 4 1 ) . De Summo Pontifice insisted that a Christian k i n g had a d u t y to defend the true faith under pain o f deprivation. Subjects need n o t o b e y a heretical ruler, and it w a s for the p o p e to j u d g e w h e t h e r he w a s a heretic and w h e t h e r or n o t he should be deposed. U n d e r the p s e u d o n y m o f Franciscus R o m u l u s , B e l l a r m i n e published an answer to B e l l o y ' s Apologie (Responsio ad praecipua capita 236 Cambridge Histories Online © Cambridge University Press, 2008

Catholic resistance theory Apologiae quae /also catholica inscribitur, 1587). H e also acted as a polemicist against James I's oath o f allegiance, assuming the n a m e o f Matthaeus T o r t u s in his responsio o f 1608 and using his o w n n a m e in reply to B a r c l a y ' s De potestate Papae (De potestate summi pontificis in rebus temporalibus, 1610). B e l l a r m i n e , and m o r e particularly the t w o Spanish Jesuits, M o l i n a and Francisco Suarez, e x p o u n d e d a T h o m i s t v i e w o f natural l a w in their discussion o f secular g o v e r n m e n t . N a t u r a l l a w w a s understood b y m e n t h r o u g h the rational apprehension o f it imprinted u p o n the m i n d b y the C r e a t o r , and it served as the measure o f justice in h u m a n positive l a w . M o l i n a ' s Dejustitia etjure (1592) w a s based u p o n lectures he had g i v e n in P o r t u g a l sixteen years earlier, w h i l e Suarez' De legibus ac Deo legislatore (1612) w a s the p r o d u c t o f his teaching at C o i m b r a in the m i d - i 5 9 0 s , and perhaps e v e n o f an earlier time w h e n he w a s Bellarmine's colleague at the Jesuit college in R o m e . B o t h these w o r k s v i e w e d the ruler as effectively limited in his acts and ordinances b y their consonance w i t h natural l a w . T h e interpretation o f ius naturale w a s the k e y element in the account o f the o r i g i n o f political society p r o v i d e d b y M o l i n a and Suarez. A s has been seen, R e y n o l d s attempted to reconcile Aristotelian and C i c e r o n i a n traditions in Dejusta authoritate. It w a s difficult for a theorist to c o n c e i v e a pre-social state o f nature, unless m a n w a s to be in s o m e w a y de-natured and reduced to a bestial condition. If natural m a n w e r e to be so described, then it w a s hard to explain h o w he had escaped into civilised society. Humanists w h o f o l l o w e d Stoic and C i c e r o n i a n accounts o f natural d e p r a v i t y did not, w i t h the e x c e p t i o n o f M a r i o S a l a m o n i o and B u c h a n a n , derive theories o f political o b l i g a t i o n f r o m the transition to organised c o m m u n a l l i v i n g . N o r did Protestant theorists o f resistance, B u c h a n a n again excepted, argue f r o m a state o f nature, preferring to stress pacts b e t w e e n a ruler and pre-existent c o m m u n i t y . For conciliarists, f o l l o w i n g the fifteenth-century tradition o f G e r s o n , p r o p e r t y and hence natural rights existed in the pre-social condition, and consequently the state o f nature c o u l d not be entirely barbarous ( T u c k 1979, p. 27). T h e p a r a d o x o f conciliarism, h o w e v e r , w a s that these individualistic premises w e r e lost to sight w i t h the organicist l a n g u a g e used to describe a corporate people, a m o n g w h o m individual g o o d w a s subordinate to the c o m m o n g o o d . T h e Jesuits w e r e enemies o f conciliarism, and as theorists they w e r e a w a r e o f A q u i n a s ' observation that the k i n g w a s greater than the p e o p l e as a w h o l e - a remark denied in the conciliarist and m o n a r c h o m a c h adage rex singulis maior, universis minor. T h i s w a s the p r o b l e m to w h i c h M o l i n a and Suarez achieved a c o m p r o m i s e solution. T h e t w o Jesuits w a n t e d to demonstrate that political society w a s the 237 Cambridge Histories Online © Cambridge University Press, 2008

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i m m e d i a t e creation o f m e n and served purely t e m p o r a l ends, whereas the church w a s the i m m e d i a t e creation o f G o d for h i g h e r spiritual ends. M o l i n a used the actual t e r m status naturae (Skinner 1978,11, p. 155) and asserted the absence o f political organisation after the Fall. Suárez a r g u e d in De legibus that m e n a b a n d o n e d their natural f r e e d o m to ' c o m e together b y individual w i l l and c o m m o n consent in one political b o d y , under the single b o n d o f society to aid each other t h r o u g h m u t u a l organisation for a single political end, and b y that means to b r i n g into b e i n g one mystical b o d y , w h i c h in m o r a l terms can be called an entity for its o w n sake and consequently needs a single political h e a d ' . T h e p o w e r thus created to enact positive l a w w a s vested in a g o v e r n m e n t , sometimes established in a m i x e d f o r m but m o r e often transferred to a ruler ('the single head'). B o t h M o l i n a and Suárez saw this transfer n o t as a delegation but as an alienation, and it w a s in this sense that they c o u l d agree w i t h A q u i n a s that the k i n g w a s superior to the c o m m u n i t y , w h e t h e r v i e w e d integrally or as a discrete mass o f individuals. H o w e v e r , the scholastic practice o f presenting other interpretations and pursuing qualifications and corollaries left s o m e issues in d o u b t . In the succeeding chapter Suárez made the case that G o d alone could b e s t o w p o w e r i m m e d i a t e l y , citing St Paul, R o m a n s 13:1 ('There is n o p o w e r but o f G o d : the p o w e r s that be are ordained o f G o d ' ) . H e e v e n w e n t o n to point out that, a c c o r d i n g to some, o n l y G o d c o u l d m a k e l a w , for n o one but the g i v e r o f life c o u l d take it a w a y , l a w had a divine purpose to p r o m o t e virtue and fulfil conscience, and G o d had reserved to H i m s e l f the punishment o f w r o n g d o e r s ( ' V e n g e a n c e is mine: I w i l l repay saith the L o r d ' : R o m a n s 12:19). T h e n in his n e x t b o o k (De legibus, iv, 2, p. 123), Suárez resumed his original theme, declaring that, w h i l e p o w e r m i g h t be found in the prince, it had to be b e s t o w e d b y the p e o p l e to be just. H e w e n t o n to d e v e l o p the less a m b i g u o u s attitudes to t y r a n n y and resistance to be found in his Defensio fidei Catholicae (1613), directed against James I's Apologie for the Oath of Allegiance. 11

S o m e m o d e r n c o m m e n t a t o r s h a v e depicted the thrust o f Suárez' theories as f a v o u r i n g r o y a l a b s o l u t i s m . N o one w h o reads attentively his 12

11.

' A l i o e r g o m o d o c o n s i d e r a n d a est h o m i n u m m u l t i t u d o , q u a t e n u s s p e c i a l i v o l ú n t a t e s e u c o m m u n i c o n s e n s u i n u n u m c o r p u s p o l i t i c u m c o n g r e g a n t u r u n o s o c i e t a t i s v i n c u l o , e t u t m u t u o se i u v e n t i n o r d i n e ad u n u m f i n e m p o l i t i c u m , q u o m o d o efTiciunt u n u m c o r p u s m y s t i c u m , q u o d m o r a l i t e r d i c i p o t e s t p e r se u n u m , i l l u d q u e c o n s e q u e n t e r i n d i g e t u n o c a p i t e . ' S u á r e z 1 6 1 3 a , m , 2 . 4 , p . 1 2 1 .

12.

O n t h i s q u e s t i o n s e e S k i n n e r 1 9 7 8 , 11, p p . 1 7 7 - 8 4 . A m o r e e m p h a t i c s t a t e m e n t t h a t S u á r e z m e a n t t o t a l a l i e n a t i o n is p r o v i d e d b y T u c k

1 9 7 9 , p. 56. S o m m e r v i l l e 1982, p p . 5 3 1 - 3 , criticises b o t h

S k i n n e r a n d T u c k . F o r a b a l a n c e d v i e w , albeit w i t h s o m e c o n f u s i o n , see C a r l y l e 1 9 3 6 , p p . 3 3 4 - 8 , and H a m i l t o n

1963, pp. 32-43.

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Catholic resistance theory answer to James I's Apologie can maintain this interpretation, and certainly those w h o read the Defensio at the time o f its publication had the contrary impression. Suarez asserted the right o f self-defence under natural l a w for b o t h the individual and the c o m m o n w e a l t h , and he conflated the latter w i t h contractarian doctrines o f resistance. In this respect he endorsed and elaborated the statements o f the most prestigious adversary o f K i n g James: Bellarmine actually said that the people never transfers its power to the prince without retaining it in a particular sense for use in certain circumstances. This is not a contradiction, and it does not invite the people to claim liberty as the fancy takes them . . . These circumstances are to be understood as associated either with the conditions of the prior contract or with the requirement of natural justice, for pacts and just conventions are there for a purpose. That is w h y , if the people transferred power to the king while reserving it to themselves in some grave causes and affairs, it is lawful for them so to make use of it and to preserve their right. 13

Suarez m a d e it clear that a legitimate k i n g c o u l d n o t be attacked for occasional acts o f t y r a n n y , but o n l y w h e n he threatened to destroy the c o m m o n w e a l t h and massacred its citizens. T h e n alone c o u l d a k i n g be resisted and deposed b y public authority. N o one c o u l d anticipate the decision o f the appointed j u d g e s , n o r c o u l d a n y o n e act to a v e n g e a personal w r o n g . A k i n g o n c e dethroned, or f o r m a l l y declared a heretic, c o u l d be killed b y a private m a n , w h o b e c a m e thereby the instrument o f public authority. L i k e m e d i e v a l theorists o f tyrannicide, Suarez a l l o w e d private individuals to kill a tyrant usurper (Defensio, 1 6 1 4 , vi.6—22, col. 815—22). M u c h o f the Defensio w a s d e v o t e d to the superior jurisdiction o f the p o p e , w h i c h w a s occasionally defended as a direct as w e l l as an indirect p o w e r o v e r t e m p o r a l rulers. Indeed this power is vested in the Supreme Pontiff w h o by right of his superior role has jurisdiction to reprove even the greatest kings as if they were his subjects, as shown earlier. Hence if the crimes lie in the spiritual sphere, as is the case with heresy, he can punish them directly, even to the point o f deposition from a kingdom should a king's stubbornness and the preservation o f the church's common good require it. What is more, if vices in the temporal sphere amount to sins he can also reprove by direct power insofar as they may be harmful to a

13.

' Q u o d v e r o B e l l a r m i n u s e x N a v a r r o d i x i t p o p u l u m n u n q u a m ita s u a m p o t e s t a t e m i n P r i n c i p e m transferre, q u i n e t i a m in h a b i t u retineat, ut ea in certis casibus uti possit, n e q u e c o n t r a r i u m neque fundamentum

est,

p o p u l i s p r a e b e t a d se p r o l i b i t o i n l i b e r t a t e m v i n d i c a n d u m . . . Q u i c a s u s

intelligendi sunt, v e l iuxta conditiones prioris contractus, v e l iuxta e x i g e n t i a m naturalis n a m p a c t a e t c o n v e n t a i u s t a s e r v a n d a s u n t . E t i d e o si p o p u l u s t r a n s t u l i t p o t e s t a t e m

iustitiae, in

regem

r e s e r v a n d o e a r n s i b i p r o a l i q u i b u s g r a v i o r i b u s c a u s i s a u t n e g o t i i s , i n eis l i c i t e p o t e r i t i l i a u t i , e t i u s suum conservare.' Suarez 1614, m.3.3, col. 253.

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Christian commonwealth in temporal terms, and in any event he can punish them indirectly, insofar as the tyrannical rule of a temporal prince always presents the gravest danger to the salvation of souls. 14

In the f o l l o w i n g section o f the Defensio Suárez w e n t o n to claim that the p o p e m i g h t call u p o n a Christian c o m m o n w e a l t h to r e v o l t against an oppressive ruler, just as he m i g h t order subjects w h o had p r e m a t u r e l y rebelled against a tyrant to return to their o b e d i e n c e if the m o r a l dangers o f civil w a r seemed t o o great. T h e p o p e m i g h t also authorise a foreign prince to invade the realm o f a k i n g w h o had been declared a heretic. Despite Suárez' reservations about the occasions w h e n popular r e v o l t and the exercise o f the p o p e ' s c o e r c i v e p o w e r s w e r e inappropriate, it is n o t surprising that Gallican and A n g l i c a n royalists saw his Defensio as a singularly aggressive e x a m p l e o f papalist t h e o r y . H e had m a d e the p o p e the arbiter o f natural l a w m o r a l i t y as w e l l as o f heresy, and had linked indirect to direct papal authority. T h e ideas o f Juan de M a r i a n a p r o v i d e another variant o f Jesuit political t h o u g h t . In De rege et regis institutione (1599) M a r i a n a said little about papal authority o v e r k i n g s and a great deal about popular authority o v e r the ruler. Perhaps it w a s his humanist education at the U n i v e r s i t y o f A l c a l á that led h i m to question A q u i n a s o n the k i n g ' s superiority to the c o m m u n i t y . H e w r o t e in national rather than universalist terms and, like B u c h a n a n , c o m p o s e d a history o f his c o u n t r y in w h i c h he e x e m p l i f i e d his constitu tionalist principles. W h e n he s o u g h t general premises, he postulated an explicit state o f nature, and, unlike M o l i n a and Suárez, stressed n o t natural right but the bestiality that prevailed there. In a passage resembling one in R e y n o l d s ' De iusta authoritate he described the weakness o f these s u b h u mans in contrast w i t h the p r o t e c t i v e and offensive w e a p o n s the rest o f the animal creation possessed (De rege, 1, i). T h e defencelessness o f m a n k i n d had led to the f o r m a t i o n o f social g r o u p s , w h i c h i m p o s e d rules that m e r e l y exacerbated the p r e d a t o r y habits o f their m e m b e r s . Since the rules p r o v e d as v e x a t i o u s as the vices they w e r e supposed to r e m e d y , individuals agreed w ith one another to f o r m a better organised society and appoint an r

14.

' A t v e r o i n S u m m o P o n t i f i c e est h a e c p o t e s t a s t a n q u a m i n s u p e r i o r i h a b e n t e i u r i s d i c t i o n e m

ad

c o r r i p i e n d u m r e g e s e t i a m s u p r e m o s t a n q u a m s i b i s u b d i t o s , u t s u p r a o s t e n s u m e s t . U n d e si c r i m i n a s i n t i n m a t e r i a s p i r i t u a l i , u t est c r i m e n h a e r e s i s , p o t e s t d i r e c t e i l l a p u n i r é i n r e g e e t i a m u s q u e a d d e p o s i t i o n e m a r e g n o , si p e r t i n a c i a r e g i s e t p r o v i d e n t i a c o m m u n i s b o n i E c c l e s i a e i t a p o s t u l e n t . S i v e r o v i t i a sint in m a t e r i a t e m p o r a l i , q u a t e n u s p e c c a t a sunt, e t i a m p o t e s t ilia c o r r i p e r e p e r d i r e c t a m potestatem, quatenus v e r o fuerint temporaliter n o c i v a reipublicae Christianae, indirecte poterit ea p u n i r é , q u a t e n u s t y r a n n i c u m a n i m a r u m p e r n i c i o s u m . ' Ibid.,

r e g i m e n t e m p o r a l i s p r i n c i p i s s e m p e r e t i a m est

vi.4.16, col. 819.

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saltern salutati

Catholic resistance theory administrator. In his sixth chapter Mariana said clearly w h a t royalists read into all Jesuit writers, n a m e l y that n o p e o p l e w o u l d establish a g o v e r n o r under terms that w o u l d permit h i m to oppress t h e m . C u r i o u s l y , Mariana g a v e less emphasis to the deposition o f a k i n g b y the representatives o f the c o m m u n i t y than he did to the right o f private m e n to kill a tyrant w h o prevented the assembly o f the estates or cortes (De rege, I, v i , p p . 7 5 - 7 ) . It w a s this assertion that earned Mariana his n o t o r i e t y as the prophet o f tyrannicide, and his enunciation o f the principle w a s assumed b y the enemies o f the Jesuits to be the general tenet o f the order.

vi

English C a t h o l i c i s m

Parsons also professed at times ideas differing f r o m those o f B e l l a r m i n e , M o l i n a , and Suarez. A subtle and prolific polemicist, he displayed an o p p o r t u n i s m in tune w i t h the vicissitudes o f Elizabethan C a t h o l i c i s m , and his ideas must be seen in this c o n t e x t . T h e political t h o u g h t o f C a t h o l i c s after the A n g l i c a n settlement displayed a w i d e variety o f opinion, sometimes anticipating, and sometimes f o l l o w i n g in the w a k e o f L e a g u e r and Gallican writers. In the 1560s, w h e n little pressure w a s placed u p o n recusants, a f e w C a t h o l i c intellectuals in exile offered radical criticism o f the A n g l i c a n settlement. In answer to B i s h o p J o h n J e w e l ' s defence o f the n e w r e g i m e , T h o m a s H a r d i n g ' s Confutation of a Book (1565) and other w o r k s maintained the papal p o w e r o f deposition. H e asserted that all t e m p o r a l authority w a s subordinate to the vicar o f Christ, and that, whereas priests held jurisdiction directly f r o m G o d , the office o f the ruler w a s derived f r o m the people. J o h n Rastell, also responding to J e w e l in a n u m b e r o f tracts, defended the direct authority o f popes o v e r kings and cited B o n i f a c e VIII's bull Unam Sanctam w i t h a p p r o v a l (Confutation of a Sermon, 1564). In 1570 Pius V e x c o m m u n i c a t e d Elizabeth in the bull Regnans in Excelsis, w h i c h b e g a n in terms not v e r y different f r o m those o f Boniface: He that reigneth on high, to w h o m is given all power in heaven and earth, has committed one holy, Catholic, and apostolic church, outside o f which there is no salvation, to one alone upon earth, namely to Peter, the first of the apostles, and to Peter's successor, the pope of R o m e , to be by him governed in fullness o f power. Him alone He has made ruler over all peoples and kingdoms. (Pritchard 1978, p. 11) A n e c h o o f these e x t r e m e claims w a s heard in a w o r k b y N i c h o l a s Sanders (De visibili monarchia, 1 5 7 1 ) , in w h i c h resistance w a s justified b y an original schema o f three historic stages: patriarchal authority; k i n g s ruling t h r o u g h 241 Cambridge Histories Online © Cambridge University Press, 2008

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the consent o f their subjects; and, f o l l o w i n g the incarnation, kings w h o s e p r i m e d u t y w a s to p r o m o t e the true faith under direction o f the priesthood ( H o l m e s 1982, p p . 28-9). In the decade that f o l l o w e d W i l l i a m A l l e n launched the mission for the reconversion o f E n g l a n d w i t h the priests trained in his seminary at D o u a i . F r o m 1580 Parsons and a n u m b e r o f English Jesuits trained in R o m e also t o o k part in the mission. Despite their c o m p l i c i t y in C a t h o l i c plots against the queen, A l l e n and Parsons issued pamphlets c l a i m i n g that the priests and fathers preached loyalty and non-resistance, and had r e c e i v e d papal a p p r o v a l n o t to e x e c u t e the bull. Faced w i t h the persecution and m a r t y r d o m o f their f o l l o w e r s , and a w a r e o f Spanish plans for the A r m a d a , the leaders o f the mission a b a n d o n e d the t h e o r y o f non-resistance after 1583. In response to W i l l i a m C e c i l ' s Execution of Justice in England (1583), w h i c h asserted that prosecutions w e r e for treason and n o t for religious reasons, A l l e n w r o t e his True, Sincere, and Modest Defence of the English Catholics (1584). H e defended the p o p e ' s p o w e r s o f deposition and e v e n justified the papal invasion o f Ireland in 1 5 7 9 , a l t h o u g h he continued to insist that the priests had n o t e n c o u r a g e d sedition. A l l e n depicted C a t h o l i c political doctrine as the p r o d u c t o f ' m e n o f order and o b e d i e n c e ' , w h e r e a s Protestant resistance t h e o r y a i m e d at leading ' o p i n i o n a t i v e and restless brains to raise rebellion at their pleasure under pretense o f r e l i g i o n ' (Allen 1965, p . 142). In w o r d s later to be e c h o e d b y Suarez, the sixth chapter o f his Defence expatiated o n the t h e m e that it is much to the benefit and stability of commonwealths, and specially o f kings' scepters, that the differences between them and their peoples, for religion or any other cause for which they may seem to deserve deprivation, may rather be decided by the supreme pastor o f the church, as Catholics would have it, than by popular mutiny and fantasy o f private men, as heretics desire and practice. (Allen 1965, p. 173) In subsequent w o r k s (The Copie of a Letter Concerning ... Daventrie, 1587; An Admonition to the Nobility and People, 1588) A l l e n issued an o p e n invitation to r e v o l t against a heretic queen w h o had v i o l a t e d 'the universal moral law o f Christendom'. After 1584 Parsons w a s e v e n m o r e active in j u s t i f y i n g resistance than A l l e n . His best k n o w n w o r k in this v e i n w a s A Conference about the Next Succession to the Crowne of England, published under the p s e u d o n y m o f N . D o l e m a n in 1594. In the first part o f the b o o k the fictitious civilian w h o e x p o u n d s the general principles o f m o n a r c h i c a l succession sounds v e r y like R e y n o l d s . H e describes the need for l a w , after the establishment o f 242 Cambridge Histories Online © Cambridge University Press, 2008

Catholic resistance theory c o m m u n a l life, 'to repress the insolent and assist the i m p o t e n t , else l i v i n g t o g e t h e r be m o r e hurtful than apart' (Conference, p . 7). Hereditary m o n a r c h y w a s p r o b a b l y the best k i n d o f g o v e r n m e n t , despite the wilful passions o f kings. T h i s did n o t m e a n divine right m o n a r c h y , h o w e v e r , for it w a s 'left u n t o e v e r y nation and c o u n t r y to choose that f o r m o f g o v e r n m e n t w h i c h they shall like best and think m o s t fit for the nature and conditions o f their p e o p l e ' (Conference, p . 9). Parsons said explicitly that k i n g s w e r e appointed w i t h 'potestas vicaria or delegata (Conference, p. 73). T h e y w e r e partners w i t h their p e o p l e in a contract c o n f i r m e d in the c o r o n a t i o n oath, and they w e r e controlled b y l a w s and national assemblies. If a ruler set out to destroy the c o m m o n w e a l t h instead o f a d v a n c i n g the public g o o d , his authority m i g h t be r e v o k e d , for it w a s 'not likely . . . that any p e o p l e w o u l d e v e r yield to put their lives, g o o d s and liberties in the hands o f another w i t h o u t s o m e p r o m i s e and assurance o f justice and e q u i t y ' (Conference, p . 82, cited b y Pritchard 1978, p . 20). Mariana, as noted, w a s to say e x a c t l y the same thing. L i k e Mariana, Parsons had little to say a b o u t relations b e t w e e n c h u r c h and state, apart f r o m insisting that the preservation o f religion w a s the highest priority in a c o m m o n w e a l t h . H e adapted his opinions to the occasion and the audience. W h e n he prepared a Latin version for the eyes o f the p o p e he added a n e w chapter o n papal authority o f w h i c h Suarez w o u l d h a v e entirely a p p r o v e d . ' W h e r e the public g o o d , and especially the w e l l b e i n g o f religion, requires it,' Parsons w r o t e , 'the p o p e , w i t h a pre-eminent right, can direct, restrain, c h e c k or e v e n correct and punish any civil magistrate w h a t s o e v e r i f he stubbornly strays f r o m the true path o f eternal salvation, o n a c c o u n t o f w h i c h all magistracy w a s founded, or turns others f r o m that path b y his g o v e r n m e n t ' ( H o l m e s 1982, p . 154). After the death o f C a r d i n a l A l l e n in the year A Conference w a s published, deep resentments against the Jesuits b e c a m e manifest in the internment centre for C a t h o l i c s in W i s b e c h o n the part o f the secular priests, and in the Jesuit-directed English seminary in R o m e o n the part o f the seminarians. In 1598 G e o r g e B l a c k w e l l , reputedly a puppet o f the Jesuits, w a s appointed archpriest in charge o f English seculars. T h e priests t w i c e appealed to R o m e , and o n the second occasion, w i t h the help o f the French ambassador, received s o m e satisfaction in a b r i e f f o r b i d d i n g Jesuit influence in their administration. H o w e v e r , B l a c k w e l l remained in office and the seculars w e r e ordered in the b r i e f not to continue their contacts in A n g l i c a n circles, notably w i t h B i s h o p Bancroft in L o n d o n . T h e c o v e r t liaisons o f the appellants w i t h French and English g o v e r n m e n t s revealed the 243 Cambridge Histories Online © Cambridge University Press, 2008

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c o m m o n p o l i c y o f the t w o monarchies t o w a r d s papal claims in t e m p o r a l matters. T h e eighteen tracts published b y the appellants in their cause b e t w e e n 1601 and 1603 strengthened the black l e g e n d o f Jesuit plotting and sedition, and popularised royalist doctrines. T h e appellants, w h o c o u l d n o t totally r e n o u n c e papal rights, w e r e particularly indebted to French royalist t h e o r y . S o m e o f t h e m had attended P o n t - à - M o u s s o n , and several d r a w their a r g u m e n t s f r o m G r é g o i r e and B a r c l a y . T h e i r particular target w a s Parsons' Conference. Parsons responded to s o m e o f their w o r k s b y retreating to a m o d e r a t e position w h e r e he ceased to defend secular g r o u n d s for resistance but c o n t i n u e d to u p h o l d the indirect p o w e r o f the p o p e . W i l l i a m W a t s o n w a s the m o s t o u t s p o k e n o f the appellant controversialists — so m u c h so that C h r i s t o p h e r B a g s h a w , a leading appellant and personal e n e m y o f Parsons, asked h i m to m o d e r a t e his i n v e c t i v e . W a t s o n p l a y e d u p the patriotism o f the seculars as against Parsons' Spanish sympathies, w h i c h he recognised as similar to the earlier attitudes o f the radical Leaguers in France. In Important Considerations (1601), a tract b y the seminary priest T h o m a s B l u e t to w h i c h W a t s o n added a preface, L e a g u e r resistance t h e o r y w a s attributed to the Jesuits and c o m p a r e d w i t h 'the h u f m u f Puritan p o p u l a r i t y ' o f C a l v i n i s t resistance doctrine ( S a l m o n 1959, p. 35; M i l w a r d 1977, p . 1 1 9 ) . It w a s W a t s o n w h o arranged an English version o f n e w denunciations o f the Jesuits b y Pasquier and A r n a u l d similar to those that had appeared in translation in 1594 (The Jésuites Catéchisme, 1602; A Discourse Presented of Late to the French King, 1602). T h i s aspect o f the archpriest c o n t r o v e r s y m a y serve as a reminder o f the inter-relationship o f politique and A n g l i c a n royalist t h e o r y .

vii T h e defence o f A n g l i c a n i s m U n d e r the A n g l i c a n settlement the role o f the queen as supreme g o v e r n o r o f the church w a s t h o u g h t to be jurisdictional rather than sacerdotal, and n o one e x p e c t e d her to p r o n o u n c e o n doctrine. S u c h w a s the assumption o f B i s h o p J e w e l in his Apologie ... in Defence of the Church of England (1562) and in his subsequent response to his C a t h o l i c critics. J e w e l found n o t h i n g n e w in ecclesiastical c o n t r o l b y the t e m p o r a l ruler, a r g u i n g that ' g o o d princes e v e r t o o k the administration o f ecclesiastical matters to pertain to their d u t y ' (Cross 1969, p. 139). C o n s t a n t i n e and his successors had s u m m o n e d councils o f the church, a function n o w usurped b y the bishop o f R o m e . In response to A l l e n , T h o m a s B i l s o n offered the same o p i n i o n in 244 Cambridge Histories Online © Cambridge University Press, 2008

Catholic resistance theory The True Difference between Christian Subjection and Unchristian Rebellion (1585). H o w e v e r , Puritan pressure for further reform p r o v i d e d doctrinal c h a n g e w i t h political overtones, and f r o m time to time Elizabeth t o o k a stand o n matters that w e r e m o r e than jurisdictional. In this she encountered such opposition f r o m A r c h b i s h o p G r i n d a l that she w a s o b l i g e d to suspend h i m . E v e n his successor, J o h n W h i t g i f t , w h o had refuted the publications o f the Presbyterian l o b b y before directing the repression o f Puritan forms o f w o r s h i p , suffered s o m e humiliation at her hands (Porter 1958, p p . 364—75). U n d e r l y i n g the p r o b l e m o f distinguishing b e t w e e n jurisdiction and doctrine w a s the question o f the respective legislative p o w e r s o f parliament and c o n v o c a t i o n in religious matters. It w a s the general assumption o f the queen and her archbishops that the supreme g o v e r n o r w o u l d rule the church t h r o u g h the bishops and c o n v o c a t i o n , but parliament w a s a l l o w e d to c o n f i r m the thirty-nine articles o f faith defined b y the assembly o f the church. R i c h a r d H o o k e r ' s Lawes of Ecclesiasticall Politie ( B o o k s i - i v , c o m p l e t e d in 1593) w a s an attempt to plaster o v e r the gap b e t w e e n theory and practice and to justify the w h o l e settlement in terms o f parliamentary action. His basic position w a s that, since the m e m b e r s o f the church o f E n g l a n d w e r e the same persons w h o c o m p o s e d the c o m m o n w e a l t h o f E n g l a n d , there w e r e not t w o societies but one, ministered to in respect o f their religious and secular needs b y t w o sets o f officials under one supreme governor. In his p o s t h u m o u s eighth b o o k H o o k e r p r o v i d e d a general definition o f the ecclesiastical authority o f kings: When, therefore, Christian kings are said to have spiritual dominion or supreme power in ecclesiastical affairs and causes, the meaning is that within their own precincts and territories they have an authority and power to command even in matters o f Christian religion, and that there is no higher nor greater that can in those cases overcommand them, where they are placed to command as kings. (Lawes, VIII, 2.3, p. 332) T h o s e mistaken e n o u g h to challenge the p o w e r o f the supreme g o v e r n o r w e r e o f t w o kinds, one b e l i e v i n g 'that the supreme p o w e r in causes ecclesiastical t h r o u g h o u t the w o r l d appertaineth o f divine right to the bishop o f R o m e ' , and the other declaring 'that the said p o w e r b e l o n g e t h in e v e r y national c h u r c h u n t o the c l e r g y t h e r e o f assembled' (Lawes, v m , 2.4, PP- 333—4). T h o s e in the latter c a t e g o r y claimed that k i n g and parliament had 'no m o r e l a w f u l means to g i v e order to the church and c l e r g y in those things than they h a v e to m a k e l a w s for the hierarchies o f angels in h e a v e n ' (Lawes, v m , 6.10, p. 401). T h e i r error lay in their neglect o f the principle 245 Cambridge Histories Online © Cambridge University Press, 2008

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that it w a s the consent o f all w h i c h alone g a v e l a w s their b i n d i n g force. A d m o n i t i o n s and instructions m i g h t be issued b y the c l e r g y for articles o f faith, forms o f prayer, and religious ceremonies, but these, to H o o k e r , w e r e n o t laws. ' W e are to h o l d it a thing m o s t consonant w i t h e q u i t y and reason that n o ecclesiastical l a w s are m a d e in a Christian c o m m o n w e a l t h w i t h o u t consent as w e l l o f the laity as o f the c l e r g y , but least o f all w i t h o u t consent o f the highest p o w e r ' (Lawes, v m , 6.7, p. 393). S u c h w a s H o o k e r ' s defence o f the parliamentary basis o f the c h u r c h o f E n g l a n d and o f the authority o f the supreme g o v e r n o r . T h e status o f episcopacy w a s another k e y issue. In the early years o f the settlement the bishops w e r e content to derive their authority f r o m the c r o w n , and, w h i l e they insisted u p o n the hierarchical organisation o f the church, they did n o t see a bishop as a different kind o f priest f r o m an ordinary c l e r g y m a n . In 1589 R i c h a r d B a n c r o f t responded to c o n t i n u i n g anti-episcopal sentiment w i t h a s e r m o n stressing apostolic succession. T h e r e f o l l o w e d a series o f tracts asserting the divine right o f episcopacy (Hadrian Saravia, De diver sis ministrorum Evangelii gradibus, 1590; M a t t h e w Sutcliffe, A Treatise of Ecclesiasticall Discipline, 1 5 9 1 ; T h o m a s B i l s o n , The Perpetual Government of Christes Church, 1593). W i t h i n ecclesiastical Gallicanism the doctrine o f apostolic succession had defended clerical independence against k i n g as w e l l as p o p e . In E n g l a n d it c o u l d be seen as a challenge to Erastian control, and the radical pamphleteer M a r t i n M a r p r e late pointed out that the d i v i n e right o f bishops m i g h t be inconsistent w i t h the authority o f the supreme g o v e r n o r . B a n c r o f t in his Survey of the Pretended Holy Discipline (1593) w a s careful to remark that bishops, a l t h o u g h iure divino, received their jurisdictional rights f r o m the t e m p o r a l ruler. Potential tension b e t w e e n c r o w n and episcopacy w a s minimised b y their c o m m o n front against Presbyterianism ( C o l l i n s o n 1982, p p . 1—38). Calvinist doctrines o f grace appealed to m a n y o f the bishops but C a l v i n i s t church discipline w a s anathema. It w a s also at this time that the idea o f the divine right o f kings b e g a n to be e n c o u r a g e d w i t h i n Elizabethan court circles ( S o m m e r v i l l e 1983, p p . 229—45). Saravia, the author o f one o f the w o r k s on iure divino episcopacy, also published a b o o k defending r o y a l d i v i n e right (De imperandi authoritate et Christiana obedientia, 1593). Saravia w a s a F l e m i n g naturalised in E n g l a n d w h o served for a time as professor o f t h e o l o g y at Leiden before returning to b e c o m e a canon o f C a n t e r b u r y cathedral. H e w a s a severe o p p o n e n t o f resistance theory, De imperandi authoritate b e i n g directed particularly at B u c h a n a n and R e y n o l d s . T h e doctrine o f the divine right o f 246

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Catholic resistance theory k i n g s w a s d e v e l o p e d in E n g l a n d at the same time as a c h a n g e occurred in English royalist attitudes t o w a r d s the conflict in France. Bilson's True Difference, anxious to reverse A l l e n ' s contrast in resistance t h e o r y b e t w e e n C a t h o l i c legalism and Protestant anarchy, defended the H u g u e n o t s b y asserting that they had n o t o p p o s e d the k i n g , b u t had m e r e l y supported the constitutional rights o f N a v a r r e and C o n d e , and defended themselves against unjust persecution orchestrated b y the house o f Guise. After 1584 and the c h a n g e o f front in H u g u e n o t doctrine, there w a s less need to discriminate b e t w e e n one k i n d o f resistance and another. In his Survey of the Pretended Holy Discipline, B a n c r o f t , like Sara via, c o n d e m n e d b o t h the Calvinist and the L e a g u e r versions o f resistance. T h i s w a s also the trend in politique p r o p a g a n d a , in w h i c h the divine right o f k i n g s responded to b o t h religious and secular justifications o f rebellion. M u c h o f the politique and Gallican literature, i n c l u d i n g the w o r k s o f B e l l o y , w e r e appearing in English translations in the later years o f Elizabeth ( S a l m o n 1959, p p . 174—80). T h e i r frequent citation in the w r i t i n g o f English royalists suggests that it w a s n o t James I w h o i n t r o d u c e d the t h e o r y o f divine right m o n a r c h y to E n g l a n d but that b o t h he and those English writers w h o anticipated h i m in this regard w e r e j o i n t l y indebted to French ideas. T h e c o n n e c t i o n , rather than the antagonism, b e t w e e n iure divino episcopacy and iure divino m o n a r c h y is also m o r e c o m p r e h e n s i b l e in the light o f this circumstance. In b o t h France and E n g l a n d d u r i n g the t i m e o f the L e a g u e and after, bishops w e r e the defenders o f m o n a r c h y against popes and presbyteries. James I w a s the supporter o f divine right episcopacy, and the aphorism ' n o bishop, n o k i n g , ' w h i c h he delighted in so m u c h that he used it t w i c e in o n e d a y at the H a m p t o n C o u r t conference to discredit Presbyterian influence, w a s less c o n t r a d i c t o r y than it m i g h t seem (Fincham and L a k e 1985, p p . 1 7 4 , 187).

viii

James I, the oath o f allegiance, the V e n e t i a n Interdict, and the reappearance o f French Ultramontanism

James I's political v i e w s had been plain for all to see in The Trew Law of Free Monarchies (1598) five years before he succeeded Elizabeth. J . N . Figgis described his t h e o r y o f the divine right o f k i n g s as consisting o f four propositions: m o n a r c h y w a s d i v i n e l y ordained; hereditary right w a s indefeasible; k i n g s w e r e accountable to G o d alone; and non-resistance and passive o b e d i e n c e w e r e enjoined b y G o d (Figgis 1965, p p . 5—6). James 247 Cambridge Histories Online © Cambridge University Press, 2008

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regarded the right o f Scottish k i n g s to h a v e been established b y conquest, and the d e p e n d e n c y o f existing institutions f o l l o w e d f r o m this: The kings therefore in Scotland were before any estates or ranks of men within the same, before any parliaments were holden, or laws made: by them the land distributed (which at first was wholly theirs), states erected and decerned, and forms o f government devised and established: And so it follows o f necessity that the kings were the authors and makers of the laws, and not the laws of the k i n g s . . . And according to these fundamental laws already alleged, w e daily see that in the parliament (which is nothing else but the head court of the king and his vassals) the laws are but craved o f his subjects, and only made by him at their rogation and with their advice. (James I 1918, p. 62) W h e n he faced the need to manipulate the English parliament, James m o d i f i e d these opinions, e v e n i f the concessions w e r e offered as r o y a l lectures w h i c h at first sight seemed to reassert his o v e r r i d i n g authority. T h e m o s t significant o f such occasions w a s a speech to parliament in 1610 w h e n the k i n g b e g a n : ' T h e state o f m o n a r c h y is the supremest thing u p o n earth, for kings are not o n l y G o d ' s lieutenants u p o n earth, and sit u p o n G o d ' s throne, and e v e n b y G o d H i m s e l f they are called G o d s ' (James I 1 9 1 8 , p . 307). S u c h declarations h a v e been regarded as airy rhetoric, but there is g o o d reason to take t h e m seriously. James w a s c o m p a r i n g h i m s e l f w i t h G o d as the guarantor o f the hierarchical order o f things, and he w e n t o n to i m p l y that natural l a w w a s a real limitation u p o n himself, just as G o d b o u n d H i m s e l f to His o w n ordained l a w . M o r e than this, just as there w a s a distinction b e t w e e n G o d ' s absolute and ordained l a w , so there w a s a difference b e t w e e n the k i n g ' s absolute and ordinary p r e r o g a t i v e (Greenleaf 1964, p p . 58-67; and O a k l e y 1984, p p . 9 3 - 1 1 8 ) . It w a s in the latter area that he permitted the subject's rights to be heard, e v e n i f regal p o w e r w a s the source o f the positive l a w that defined such rights. James elaborated this later in the speech w h e n he discussed the origins o f authority and constitutional l a w : So in the first original o f kings, whereof some had their beginnings by conquest, and some by election of the people, their wills at that time had served for law. Y e t h o w soon kingdoms began to be settled in civility and polity [policie], then did kings set down their minds by laws, which are properly made by the king only; but at the rogation o f the people, the king's grant being obtained thereunto. And so the king became to be lex loquens after a sort, binding himself by a double oath to the observation o f the fundamental laws of his kingdom . . . So as every just king in a settled kingdom is bound to observe that paction made to his people by his laws, in framing his government agreeable thereunto, according to that paction which 248

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Catholic resistance theory God made Noah after the deluge . . . And therefore a king governing a settled kingdom leaves off to be a king and degenerates into a tyrant, as soon as he leaves off to rule according to his laws. (James I 1918, pp. 301-10) T h e s e p r o n o u n c e m e n t s w e r e c o m p a t i b l e w i t h Trew Law but they e x t e n d e d and m o d i f i e d the t h e o r y b y placing it in the c o n t e x t o f English practice. Echoes o f the v o c a b u l a r y o f the o p p o s i n g c a m p , i n c l u d i n g w o r d s and phrases to b e found in the w r i t i n g s o f his f o r m e r tutor, B u c h a n a n , and o f his c o n t e m p o r a r y Jesuit critics, sounded in the r o y a l utterance. B u t t h r o u g h his subtle reasoning James had bent their m e a n i n g to his o w n purpose, and offered an absolutism consistent w i t h the observance o f natural and constitutional l a w . S o m e royalist statements at the time o f James' accession suggested variations on the themes preferred b y the k i n g . M o s t o f these w e r e responses to Parsons' Conference, w h i c h had p r o p o s e d the Infanta as Elizabeth's successor, a l t h o u g h Parsons himself, h o p i n g that James w o u l d authorise toleration for C a t h o l i c s , n o w supported the Scottish claimant and w a s preaching non-resistance. T h e trend o f these responses w a s to rely u p o n R o m a n l a w concepts and authorities. Sutcliffe (A Briefe Replie, 1600; A Full and Round Answer, 1604) cited the French civilians and treated Parsons as the p u r v e y o r o f the treasonable doctrines o f the L e a g u e . Sir J o h n H a y w a r d , w h o w a s associated w i t h Sutcliffe in the foundation o f Chelsea C o l l e g e (an institution to counter R o m a n p r o p a g a n d a ) , p r o d u c e d An Answer to the First Part of a Certaine Conference in 1603. H e attacked Parsons as a L e a g u e r and relied u p o n B e l l o y , a d d i n g a t h e o r y o f the irrevocable transfer o f p o w e r f r o m the p e o p l e to the k i n g . T h e S c o t Sir T h o m a s C r a i g , w h o had been a pupil o f the celebrated defender o f political Gallicanism, Charles D u M o u l i n , c o m p o s e d his Right of Succession in Latin in 1603, and q u o t e d B o d i n and B e l l o y , to w h o m his translator w a s to add B l a c k w o o d and B a r c l a y w h e n the b o o k appeared in English a century later. R o m a n l a w w a s b e c o m i n g an increasingly i m p o r t a n t ingredient in English royalist t h i n k i n g at this time, and the regius professors o f civil l a w at O x f o r d and C a m b r i d g e , A l b e r i c o Gentili and J o h n C o w e l l , w e r e distinguished representatives o f the trend. It w a s C o w e l l ' s Interpreter (1607), w i t h its absolutist interpretation o f r o y a l p r e r o g a t i v e , that w a s to be a p r i m e source o f friction b e t w e e n James I and parliament at the t i m e o f the k i n g ' s 1610 speech. T h e paranoia stimulated b y the G u n p o w d e r P l o t o f 1605 led to an act i m p o s i n g a stringent oath o f allegiance u p o n C a t h o l i c s in the f o l l o w i n g 249

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year, and this in turn b e g a n an international debate in w h i c h the k i n g w a s o n e o f the principal controversialists. T h o m a s M o r t o n ' s Exact Discoverie of Romish Doctrine (1605) appeared i m m e d i a t e l y after the plot and b l a m e d it u p o n C a t h o l i c doctrines justifying rebellion and papal deposition. T h i s w a s elaborated in A Full Satisfaction concerning a Double Romish Iniquitie (1606) w h i c h , like H a y w a r d , interpreted the lex regia to m e a n that authority had at first resided in the c o m m u n i t y and had been alienated to the ruler and his descendants. T h e indefatigable Parsons reacted to the oath w i t h A Treatise tending to Mitigation towardes Catholicke Subjectes in England (1607), and M o r t o n , n o w chaplain to the k i n g , answered it w i t h A Preamble unto an Incounter with P.R. (1608). B e f o r e Parsons returned to the debate w i t h M o r t o n in A Quiet and Sober Reckoning with M. T.(i6og), he had entered the lists against the k i n g ' s first c o n t r i b u t i o n and published The Judgment of a Catholicke English-man (1608). T h i s in turn i n v o l v e d h i m in e x c h a n g e s w i t h another o f the k i n g ' s c h a m p i o n s , B i s h o p B a r l o w . In his duel w i t h M o r t o n and B a r l o w , Parsons revealed that his a d v o c a c y o f non-resistance did n o t i m p l y his renunciation o f the indirect p o w e r o f papal deposition. His desire to score debating points led h i m into the absurdity o f p o r t r a y i n g Rossaeus as a supporter o f r o y a l authority. Identifying Rossaeus as W i l l i a m R e y n o l d s , M o r t o n m a d e the m o s t o f this piece o f e q u i v o c a t i o n ( S a l m o n 1959, P. 7 i ) . T h e e x c h a n g e s w i t h Parsons are but one e x a m p l e o f the w a y in w h i c h the c o n t r o v e r s y ramified. Its expansion to unprecedented E u r o p e a n dimensions f o l l o w e d the appearance o f James I's Apologie for the Oath of Allegiance (also entitled Triplici Nodo, Triplex Cuneus, 1607), to w h i c h the k i n g added his Premonition to all Most Mighty Monarchs (1609) and his Remonstrance for the Right of Kings (1616). T h e p a p a c y issued t w o briefs f o r b i d d i n g English C a t h o l i c s to take the oath, and, w h e n B l a c k w e l l h i m s e l f disobeyed, it w a s B e l l a r m i n e w h o published a letter o f remonstrance addressed to h i m . T h e k i n g ' s Apologie answered the briefs and the letter, m o v i n g B e l l a r m i n e to further refutation. His opinions, as w e l l as the contributions o f B a r c l a y and Suarez, h a v e already been described, and there is little m o r e to be said about the positions adopted o n b o t h sides. C a s a u b o n and L a n c e l o t A n d r e w e s , and m a n y other scholars and clerics, enlarged u p o n the k i n g ' s arguments, w h i l e the Jesuit M a r t i n B e c a n o f M a i n z w a s the m o s t prolific o f a r e g i m e n t o f papal c h a m p i o n s . T h e b e g i n n i n g s o f the c o n t r o v e r s y a b o u t the oath o f allegiance coincided w i t h an interdict i m p o s e d b y P o p e Paul V o n the republic o f V e n i c e . T h i s e x t r e m e act w a s a response to V e n e t i a n subordination o f C a t h o l i c c l e r g y to 250

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Catholic resistance theory civil jurisdiction and to the republic's limitation o f the right o f the c h u r c h to acquire p r o p e r t y . T h e c o o r d i n a t o r o f V e n e t i a n p r o p a g a n d a against the interdict w a s Fra P a o l o Sarpi, an o u t s p o k e n critic o f R o m a n c o r r u p t i o n w h o d e v e l o p e d a circle o f anti-papal correspondents a m o n g Gallicans and Protestants and w h o is best r e m e m b e r e d for his later History of the Council of Trent (1619), Sarpi rapidly put into print an Italian version o f Gerson's criticism o f the i m p r o p e r use o f papal e x c o m m u n i c a t i o n . T o this B e l l a r m i n e , a w a r e o f the dangers o f a r e v i v e d conciliarism, responded w i t h Riposta ad un libretto di Gio. Gerone (in Bellarmine 1606), and Sarpi l o o k e d to his French friends to continue the debate. Gallican sentiment had s t r o n g l y o p p o s e d the return o f the Jesuits to France in 1603 but the pleas o f A r n a u l d and Pasquier in the p r e v i o u s year had been ineffective. It received a further check w h e n the S o r b o n n e censured Servin's publication o f s o m e o f his m o r e e x t r e m e pleadings in the cause o f political Gallicanism. B u t the S o r b o n n e had less o f a quarrel w i t h the ecclesiastical variant o f Gallicanism that regained support in the aftermath o f the L e a g u e . Ecclesiastical Gallicanism m a d e m u c h o f the a r g u m e n t that papal jurisdiction had been unjustifiably e x p a n d e d since the early centuries, w h e n the p r o v i n c e s o f the church and the bishop o f R o m e h i m s e l f had f o l l o w e d the teaching o f the councils. T h i s v i e w p o i n t w a s readily adaptable to the V e n e t i a n crisis, and it w a s in this v e i n that E d m o n d R i c h e r , soon to be elected syndic o f the S o r b o n n e , answered B e l l a r m i n e and p r o d u c e d a n e w edition o f the w o r k s o f G e r s o n , t o g e t h e r w i t h excerpts f r o m d ' A i l l y , A l m a i n , and M a i r (Ioannis Gersonii doctoris et cancellarii Parisiensis opera, 1606; S a l m o n 1987, p p . 181—3). It w a s also in this period that the antiquarian justifications o f Gallicanism b y Jean du T i l l e t and C l a u d e Fauchet w e r e published, and the revised versions o f Pasquier's Recherches de la France w e r e set in print w i t h the inclusion o f his diatribes against the Jesuits. T h e s e represented the parlementaire interpretation o f the Gallican liberties, w h i c h w a s n o t in s y m p a t h y w i t h g r o w i n g U l t r a m o n t a n e o p i n i o n w i t h i n the French c l e r g y and the r e n e w e d clerical pressure to receive the T r i d e n t i n e decrees. W o r k s b y officials o f the parlement, supporting Sarpi's V e n e t i a n c a m p a i g n and equating the Gallican position w i t h that o f the c h u r c h o f V e n i c e , continued to appear. N o t a b l e a m o n g t h e m w e r e Leschassier's Consultatio (Consultatio Parisii cuiusdam de controversia inter sanctitatem Pauli Quinti et serenissimam rempublicam Venetam, 1607) and Servin's Pro libertate (Pro libertate status et reipublicae Venetorum Gallo franci ad Philenetum epistola, 1606). In this w a y the V e n e t i a n crisis fuelled the oath o f allegiance c o n t r o v e r s y 251 Cambridge Histories Online © Cambridge University Press, 2008

Religion,

civil government, and the debate on constitutions

and strengthened the alliance o f C a t h o l i c and A n g l i c a n theorists against the papalist c a m p . Events in France further e x t e n d e d the debate. T h e assassination o f H e n r i I V in 1610 seemed to c o n f i r m the w o r s t fears w h i c h the allegedly Jesuit doctrine o f tyrannicide had inspired. N o t h i n g that the k i n g ' s Jesuit confessor, Pere C o t o n , c o u l d say to e x p o s e the falsity o f the sinister reputation the society had acquired altered the popular impression. Despite the crescendo o f Gallican c o n d e m n a t i o n for the Jesuits and the papalist doctrines to w h i c h they w e r e t h o u g h t to subscribe, the r e g e n c y o f the k i n g ' s w i d o w , M a r i e de M e d i c i s , tried to find a m i d d l e w a y b e t w e e n continued clerical support for U l t r a m o n t a n i s m , w h i c h w a s manifest in m a n y spiritual reforms t h r o u g h o u t the French church, and the k i n d o f antiJesuit mania expressed b y the parlement o f Paris and a g r o u p w i t h i n the S o r b o n n e . T h e parlement had ordered the b u r n i n g o f Mariana's De rege after the m u r d e r o f H e n r i I V . In 1 6 1 1 it t o o k u p the cause o f R i c h e r , the syndic o f the S o r b o n n e , w h o had m o v e d to b l o c k a dissertation p r o c l a i m i n g the p o p e infallible and superior to c h u r c h councils. In the course o f these p r o c e e d i n g s R i c h e r published his De ecclesiastica et politica potestate maintaining that the p o p e c o u l d e x c o m m u n i c a t e but n o t depose a t e m p o r a l sovereign, that the collective b o d y o f the c h u r c h represented in a c o u n c i l alone possessed infallibility, and that the c l e r g y w e r e subject to the civil p o w e r in t e m p o r a l matters. R i c h e r ' s conciliarist position and his affirma tion o f individual clerical rights o f spiritual jurisdiction p r o v e d t o o e x t r e m e for m o d e r a t e Gallican o p i n i o n . H e received clerical censure and w a s deposed f r o m the office o f syndic o f the S o r b o n n e . E v e n the parlement w o u l d n o t entertain his appeal, but Servin, the a d v o c a t e - g e n e r a l , per suaded the court to h a v e the Jesuits declare their adherence to the first t w o o f the propositions extracted f r o m R i c h e r ' s tract. In 1613 the S o r b o n n e censured B e c a n ' s Controversia Anglicana de potestate pontijicis et regis, w r i t t e n in defence o f B e l l a r m i n e , and in the f o l l o w i n g year the parlement b u r n t Suarez' Defensio fidei Catholicae, an act anticipated in E n g l a n d . C a r d i n a l D u P e r r o n acted as the spokesman for the r e g e n c y against Gallican excess. H e readily c o n d e m n e d the doctrine o f tyrannicide, and accepted r o y a l authority as directly e m p o w e r e d b y G o d in t e m p o r a l affairs. H e felt o b l i g e d , h o w e v e r , to defend the papal right o f deposition, and resisted an attempt in the Estates General o f 1614—15 to propose a fundamental l a w p r o t e c t i n g the c r o w n against this right. James I's Remonstrance w a s a direct reply to the cardinal's speech. In this w a y events in France p r o l o n g e d the oath o f allegiance c o n t r o v e r s y . A l t h o u g h D u P e r r o n chose not to publish the c o m m e n t s he c o m p o s e d o n the Remon252

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Catholic resistance theory strance, he w r o t e a l o n g answer to a piece printed in 1 6 1 2 , in w h i c h C a s a u b o n , w i t h r o y a l guidance, had defended K i n g James' religion against the cardinal's suggestion that he w a s n o Protestant. T h i s Réplique à la Réponse w a s published p o s t h u m o u s l y in 1620 as one o f the last shots to be fired in this i d e o l o g i c a l w a r , w h i c h had lasted fourteen years and p r o d u c e d a vast quantity o f p o l e m i c a l literature ( M c l l w a i n 1 9 1 8 , p p . xlix—lxxviii; M i l w a r d 1978, p p . 1 2 8 - 3 1 ; H a y d e n 1974, p . 144). T h e papal c a m p had continued to defend the t h e o r y o f indirect p o w e r , w h i l e the supporters o f divine right m o n a r c h y had continued to accuse their opponents o f a d v o c a t i n g secular r e v o l t as w e l l as papal deposition. T h e arguments, in short, w e r e basically those expressed earlier in the c o n t e x t o f the L e a g u e , the Elizabethan defence o f A n g l i c a n i s m , and the archpriest c o n t r o v e r s y . A l t h o u g h this w a s a period o f intense religious belief, its association w i t h political conflicts pointed to increasing secularisation. T h a t the same patterns and motifs c o u l d be repeated b y states and factions o f differing religious a l i g n m e n t suggested that the real priorities in political ideals w e r e all t o o h u m a n .

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9 Constitutionalism H O W E L L

i

A .

L L O Y D

T h e idea o f constitutionalism

T h e t e r m 'constitutionalism' had n o c u r r e n c y in the political t h o u g h t o f the late fifteenth and sixteenth centuries. A nineteenth-century a u g m e n t a t i v e o f ' c o n s t i t u t i o n ' , itself derived f r o m the Latin constitutio, the t e r m signifies a d v o c a c y o f a system o f checks u p o n the exercise o f political p o w e r . S u c h a system is c o m m o n l y taken to i n v o l v e the rule o f l a w , a separation o f legislative f r o m e x e c u t i v e and f r o m j u d i c i a l p o w e r , and representative institutions to safeguard the individual and collective rights o f a p e o p l e w h o , w h i l e g o v e r n e d , are nonetheless s o v e r e i g n . A s w e shall see, ideas w h i c h w o u l d contribute to later conceptions o f that k i n d w e r e present in the t h o u g h t o f the period. B u t for those thinkers the term 'constitution', w h i c h certainly f o r m e d part o f their technical v o c a b u l a r y , c o n v e y e d a v e r y different m e a n i n g . T h e y used it first and foremost in a sense consistent w i t h the definition to be found in Justinian's l a w b o o k s , a definition w h i c h d r e w n o distinction b e t w e e n the legislative and judicial spheres: ' w h a t e v e r the e m p e r o r has determined (constituit) b y rescript or decided as a j u d g e or directed b y edict is established to be l a w : it is these that are called constitutions' (Institutes, 1.2.6). A constitution w a s an explicit declaration o f l a w b y the p r i m e political authority. H e n c e , in E n g l a n d , C h i e f Justice Fortescue's v i e w that ' w h e n customs and the rules o f the l a w o f nature h a v e been reduced to w r i t i n g and published b y the sufficient authority o f the prince and ordered to be kept, they are c h a n g e d into a constitution or s o m e t h i n g o f the nature o f statutes'. B u t 'constitution' had a w i d e r m e a n i n g and broader implications. S o 1

1.

F o r t e s c u e 1 9 4 9 , p . 3 6 ; cf. t h e t i t l e o f P i e r r e R e b u m ' s c o m p i l a t i o n o f r o y a l a c t s a n d h i s g l o s s e s u p o n t h e m : Commentaries

on Constitutions

or Royal

Ordinances.

254

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Constitutionalism m u c h w a s e v i d e n t f r o m the w r i t i n g s o f classical philosophers, not least the later Stoics w h o s e influence u p o n Renaissance h u m a n i s m w a s p r o f o u n d . B o t h C i c e r o and Seneca had w r i t t e n o f the 'constitution o f nature', and w i t h it o f the nature o f m a n , constituted o f b o d y and s o u l . B o t h had also used the term to describe the f o r m a l c o n d i t i o n o f an entire b o d y politic. M o r e o v e r , a c c o r d i n g to C i c e r o , in the case o f the R o m a n respublica the 'wisest and best-regulated c o n d i t i o n (res cum sapientissime moderatissimeque) has been laid d o w n (constituía esset) b y o u r ancestors' (De legibus, m . v . 1 2 ) . B e y o n d particular decrees, constitutions w e r e sets o f historically es tablished, e v e n fundamental, laws: they w e r e , as the Indice de la Bible put it in 1564, 'the w h o l e o f the l a w s and institutions handed d o w n b y tradition'. A n d C i c e r o had g o n e further, affirming that the o p t i m u m c o n d i t i o n w h i c h he had in m i n d w a s 'the m i x e d f o r m o f p o l i t y {temperationem reipublicae)' (De legibus, m . v . 1 2 ) . O n c e m o r e such sentiments found sixteenth-century echoes. T h u s the historian B e r n a r d du Haillan held that in principle France's f o r m o f rule i m p o s e d 'bridles' u p o n the k i n g , at least in respect o f the apparatus o f g o v e r n m e n t . T h e 'administration o f the public w e a l ' w a s ' d i v i d e d and distributed' a m o n g 'all the Estates p r o p o r t i o n a t e l y a c c o r d i n g to their c o n d i t i o n ' , an arrangement that ensured ' h a r m o n y and c o n s o n ance'. R e g r e t t a b l y , h o w e v e r , the 'beautiful order instituted in o u r m o n a r c h y is corrupted', and ' w e retain o n l y the s h a d o w o f those first fine constitutions' ( D u Haillan 1609, fos. 174V—5r). 2

3

G i v e n these and similar usages, it entails n o anachronism to describe as 'constitutionalist' c o n t e m p o r a r y ideas to the effect that p o w e r o u g h t to be exercised w i t h i n institutionally determined limits. S u c h ideas m a y be e x p e c t e d to h a v e flourished in the age o f Renaissance and R e f o r m a t i o n , o f humanist learning, o f critical and historical reappraisal o f the R o m a n texts. T h e v e r y section o f Justinian's l a w b o o k s w h e r e 'constitutions' w e r e defined b y reference to the ruler's l a w - d e c l a r a t o r y p o w e r c o u l d be construed in terms o f popular s o v e r e i g n t y . T h e r e , as m e d i e v a l publicists had r e m a r k e d and diligently p o n d e r e d , the definition stood j u x t a p o s e d w i t h a statement o f the lex regia: the source o f the e m p e r o r ' s authority lay in an act a r g u a b l y o f delegation o n the part o f the R o m a n p e o p l e (Institutes, 1.2.6). R o m a n precedents apart, the age in question saw in the sphere o f practical politics d e v e l o p m e n t s surely c o n d u c i v e to fresh b u i l d i n g u p o n constitutionalist foundations w h i c h m e d i e v a l thinkers had already laid. In the w e s t e r n

2.

C i c e r o , De

3.

C i t e d i n Trésor

finibus,

i v . 6 , 7 ; S e n e c a , Epistulae

de la langue française

morales,

x c v . 5 2 , a n d De dementia,

(1978), v i , p. 10.

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i.iii.5.

Religion,

civil government, and the debate on constitutions

E u r o p e a n realms a major feature o f such d e v e l o p m e n t s w a s a v i g o r o u s assertion o f the secular authority vis-a-vis the church. In E n g l a n d the assertion p r o c e e d e d t h r o u g h the representative assembly o f a self-sufficient ' e m p i r e ' w h o s e l a w s w e r e the w o r k o f k i n g and p e o p l e acting t o g e t h e r 'at their free liberty b y their o w n c o n s e n t ' . In France it o c c u r r e d w i t h i n a c o n t e x t o f ' G a l l i c a n i s m ' w h i c h , as e x p o u n d e d b y its leading late scholastic theoreticians, w o u l d reserve ultimate authority in the secular as in the ecclesiastical c o m m u n i t y to assemblies o f either b o d y ' s valentior pars. T h e phrase recalled the v i e w s o f Marsilius o f Padua for w h o m legislative p o w e r should rest w i t h the ' w h o l e b o d y o f the citizens or the w e i g h t i e r part t h e r e o f (Marsilius 1956,11, p. 45). W h i l e his v i e w s had an influence u p o n the m o v i n g spirits o f E n g l a n d ' s Henrician R e f o r m a t i o n (Elton 1974,11, p p . 228—9), greater influence u p o n Gallican positions w a s that o f Jean G e r s o n , a d v o c a t e o f a m o d e r a t e conciliarism and so o f the merits o f a m i x e d f o r m o f rule at least as the means o f c h e c k i n g possible m o n a r c h i c a l excesses. In Spain r o y a l p o w e r s to n o m i n a t e bishops, tax clerics, and w i e l d the f o r m i d a b l e w e a p o n o f the Inquisition sprang f r o m papal concessions w h i c h o w e d n o t h i n g to specifically Marsilian or Gersonian p r o m p t i n g s . Y e t Spanish thinkers continued to credit the p o p e w i t h 'indirect' p o w e r in the t e m p o r a l sphere — a c o n c e p t traceable to J o h n o f Paris, precursor o f Marsilius, participant in early Gallican c o n t r o v e r s y , and e x p o n e n t o f the thesis that the p o p e had a p o w e r per accidens to be used against incorrigible kings t h r o u g h the m e d i u m o f the p e o p l e f r o m w h o m the secular ruler d e r i v e d his a u t h o r i t y . 4

5

a

6

7

A n d y e t , propositions about h o w to deal w i t h an heretical or a tyrannical ruler b e l o n g to the sphere o f resistance t h e o r y rather than o f constitution alism p r o p e r l y c o n c e i v e d . T h e f o r m e r has to d o w i t h e x c e p t i o n a l circumstances, the latter w i t h the nature, scope, and distribution o f p o w e r in n o r m a l times. A m i d the upheavals and sectarian conflicts o f sixteenthcentury E u r o p e proponents o f resistance arrived, it has been claimed, at 'a recognisably m o d e r n , secularised thesis a b o u t the natural rights and original s o v e r e i g n t y o f the p e o p l e ' (Skinner 1978,11, p. 338). W h a t e v e r its m o d e r n i t y , that thesis stood o p p o s e d in the era o f Renaissance courts and princes to the t h e o r y o f regal p o w e r , reinforced in the course o f the period 4.

2 4 H e n . V I I I . c. 1 2 ; 25 H e n . V I I I , c. 2 1 .

6.

O n t h e a m b i g u i t i e s o f G e r s o n ' s p o s i t i o n , see T i e r n e y

5. F o r i n s t a n c e , B u r n s

1 9 8 1 , esp. pp. 5 8 - 9 .

1982, pp. 9 5 - 6 .

7. J o h n o f Paris 1969, p p . 1 3 8 , 9 7 , 1 1 3 , a n d I 9 7 i , p p . 1 4 - 1 5 , 1 5 6 , 103, 1 2 4 . S e e also M e l i a 1 9 7 7 , p p . 54, I96ff.

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Constitutionalism 8

b y a n e w c o n c e p t o f the state as the locus o f legislative s o v e r e i g n t y . It is in these rival theses, b o t h coherently e n o u g h expressed, that the p r i m e achievements o f sixteenth-century political t h o u g h t are m o s t o b v i o u s l y to be found. B y c o m p a r i s o n , the products o f specifically constitutionalist t h i n k i n g seem sterile and diffuse. D u Haitian's regret for the erosion o f France's 'constitutions' reflects the relative decadence o f their theoretical c o n c o m i t a n t s . D e d u c t i v e minds o f constitutionalist inclination continued eclectically to r e v o l v e positions already stated b y civilians and canonists, b y Bartolus, A q u i n a s , Isidore o f Seville, w i t h lavish infusions o f Aristotelian principles and occasional appeals t o feudal n o r m s . T h e i r chief a c c o m p l i s h m e n t w a s t o a p p l y to the k i n g d o m s o f the w e s t ideas l o n g since a d u m b r a t e d in relation to e m p i r e , church, and city-state. In a n y case, f e w m e n d e v o t e d their minds systematically and consistently to the task o f f o r m u l a t i n g political t h e o r y a l o n g constitutionalist lines. T h e elements o f constitution alism lie scattered a m o n g w o r k s , w h e t h e r academic treatises o r theses de circonstance, w h o s e authors for the most part w e r e p r e o c c u p i e d w i t h other issues and in m a n y instances altered their political opinions in the course o f their w r i t i n g careers. E v e n so, those elements remained vital ingredients in the t h o u g h t o f the time. F o r the period at issue here belongs, it has recently been argued, to a continuous tradition o f w e s t e r n t h o u g h t traceable perhaps to the f o u r teenth, perhaps to the twelfth, century o r e v e n b e y o n d (esp. T i e r n e y 1982 and Skinner 1978). In the f o r g i n g o f that tradition debates o v e r 'the proper limits o f l a w f u l l y constituted authority' w e r e f o r m a t i v e u p o n the c o n ceptual v o c a b u l a r y o f political discourse ( T i e r n e y 1982, p . 7 ) . T h u s all c o n t e m p o r a r y discussions w h i c h i m p i n g e d u p o n the relation b e t w e e n p o w e r and society necessarily d e p l o y e d at least s o m e o f the elements in question, albeit w i t h v a r y i n g degrees o f emphasis and f r o m differing perspectives. A preserve o f n o particular disciplinary^ m e t h o d o l o g i c a l or theoretical school, they figured in the w r i t i n g s o f jurisprudents and m o r a l 8.

L l o y d 1983, p p . 146—68. S t a t e m e n t s o f t y p i c a l r e g a l i s t p o s i t i o n s o c c u r i n t h e f o l l o w i n g F r e n c h o r E n g l i s h w o r k s : o n t h e k i n g as d i r e c t l y a p p o i n t e d b y G o d , G r a s s a i l l e 1538, p . 133; o n t h e k i n g as imago Dei, B u d e 1 5 5 7 , p . 69; o n m o n a r c h y as t h e n o r m t h r o u g h o u t t h e n a t u r a l o r d e r , E l y o t 1 5 3 1 , f o . 7 v ; o n t h e m o n a r c h i c a l as t h e e a r l i e s t f o r m o f r u l e , S m i t h 1982, p . 60; o n t h e p r i n c e as causa causarum,

R e b u m 1589, p . 36; o n t h e h e a d ( i . e . k i n g ) as t h e s e a t o f ' i n t e l l e c t ' a n d s o u r c e o f a l l p o w e r

i n t h e b o d y p o l i t i c , C h a s s e n e u z 1546, f o s . I32r, 284V; f o r a n a p p l i c a t i o n o f t h e N e o p l a t o n i s t c o n c e p t o f p r o c e s s i o , t o t h e s a m e e f f e c t , B o d i n 1945, p . 287; o n t h e merum imperium

as b e l o n g i n g i n a

m o n a r c h y s o l e l y t o t h e p r i n c e , B a r c l a y 1604, c i t e d b y G i l m o r e 1 9 4 1 , p p . 89, 90; f o r d e n i a l o f a l l l e s s e r j u r i s d i c t i o n s e x c e p t t h o s e r e c e i v e d t h r o u g h r o y a l concessio,

D u M o u l i n 1 6 8 1 , 1 , p . 128; o n t h e

s u b j e c t ' s d u t y o f o b e d i e n c e , G a r d i n e r 1930, p . 98.

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philosophers, scholastics and humanists, proponents o f resistance and o f absolutism alike. T h i s chapter's first m a i n section aims to extract those elements f r o m a selection o f French, English, and other western E u r o p e a n w r i t i n g s o f the period c. 1470 to c. 1600. It w i l l present t h e m in consecutive fashion, and regardless at this stage o f c o n t e x t and c h r o n o l o g i c a l variations, w i t h i n a f r a m e w o r k o f three principal themes: the origins and end o f political society; c u s t o m and the rule o f l a w ; and the distribution o f p o w e r a m o n g the organs o f m i x e d g o v e r n m e n t . A b r i e f indication o f the c o n t e x t o f political t h o u g h t in four western E u r o p e a n countries is g i v e n in sections (v) to (viii), as a preliminary in each case to a fuller statement o f the position o f one major thinker w h o , at the end o f the sixteenth century or at the o p e n i n g o f the seventeenth, exhibited s o m e claim to be r e c k o n e d a constitutionalist.

ii

T h e origins and end o f political society

K i n g s w e r e d i v i n e l y appointed. T h e p r o o f lay in scripture. Y e t it did n o t f o l l o w that G o d appointed t h e m directly, n o r that the institution o f kingship w a s c o e v a l w i t h h u m a n society. T h e 'minister' w h o m St Paul described as 'ordained o f G o d ' w a s 'a r e v e n g e r to execute w r a t h u p o n h i m that doeth e v i l ' ( R o m a n s 13:1,4). W i t h o u t the presence o f evil, therefore, there w o u l d h a v e been n o need o f k i n g s — a point implicit in A u g u s t i n e ' s w r i t i n g s as in those o f L u t h e r l o n g after h i m , for all the latter's stress u p o n the providential source o f princely p o w e r . A n d a l t h o u g h sin w a s inescapably a part o f the c o n d i t i o n o f fallen m a n , w h a t had sprung initially f r o m it w a s not necessarily kingship as the means o f chastising the w i c k e d , but political society itself. T h i s , after all, w a s w h a t A u g u s t i n e had in fact suggested, in terms e c h o e d in sixteenth-century Flanders b y his Spanish c o m m e n t a t o r Juan Luis V i v e s and in France b y the S c o t s m a n J o h n M a i r . T h e u r g e that p r o m p t e d m e n to f o r m a society o f any k i n d m i g h t itself be the p r o d u c t o f ' d i v i n e inspiration', as M a i r ' s f e l l o w S c o t and pupil G e o r g e B u c h a n a n affirmed ( B u c h a n a n 1579, p. 10). T h e p o w e r s o f political society as such m i g h t in turn be ' w h a t G o d placed in m e n ' , as Jacques A l m a i n , another o f M a i r ' s pupils, m a i n t a i n e d . Y e t it remained the case that the p e o p l e w e r e prior to their m o n a r c h i c a l ruler and possessed the capability o f participating in his a p p o i n t m e n t . A s M a i r h i m s e l f indicated, k i n g s w e r e 9

10

9. 10.

r

V i v e s 1 7 8 2 - 9 0 , v , p p . 2 2 9 , 2 7 6 - 7 , 3 8 8 - 9 ; M a i r 1 5 1 9 , f o . c , c o l . 2. A l m a i n , De

auctoritate,

i n G e r s o n 1 7 0 6 , 11, c o l . 9 7 8 .

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Constitutionalism ' i n t r o d u c e d ' b y a ' p e o p l e ' , already f o r m e d into a ' p o l i t y ' , and had p o w e r s ' c o n c e d e d b y t h e m ' . T h e r e w a s scriptural e v i d e n c e for this; and a l t h o u g h M a i r chose to e x c e p t the Israelites f r o m his analysis, others found that the same applied to G o d ' s chosen p e o p l e . A people, once politically f o r m e d , existed as a ' c o m m u n i t y ' . T h e c o m m u n i t y c o u l d be interpreted as a corporate entity: in A l m a i n ' s v i e w it existed 'as one b o d y o f w h i c h all are m e m b e r s one o f the other'. T h i s w a s the entity that 'gives authority to the prince', an authority w h i c h 'is first in the c o m m u n i t y ' . T h e thesis d r e w u p o n corporation t h e o r y rooted in R o m a n l a w . A people and its p o w e r as a corporate w h o l e w e r e distinguishable f r o m and greater than a mere assemblage o f individuals. G o d remained the ultimate source o f that p o w e r . W e r e this not so, the Spanish Jesuit Luis de M o l i n a explained, and w e r e the c o m m u n i t y ' s existence dependent u p o n the concurrence o f 'the parts f r o m w h i c h it is f o r m e d into o n e ' , it w o u l d h a v e had f r o m the time o f its f o r m a t i o n 'no authority' o v e r those o f ' i t s cohabitants w h o m i g h t not h a v e w i s h e d to offer a g r e e m e n t to it', n o r subsequently o v e r any n e w arrivals ( M o l i n a 1602—3, 1, col. 1 1 5 ) . O f course, the c o m m u n i t y had m a n y o f the attributes o f a natural association t o o . ' M o s t h a r m o n i o u s w i t h nature', it w a s , w r o t e the Spanish D o m i n i c a n Francisco de V i t o r i a , 'self-sufficing' and ' o f all societies that in w h i c h m e n most easily m a y obtain necessities'. M a n c o u l d not exist 'in solitude'; and obedience to the 'public p o w e r ' w a s consistent w i t h 'natural l a w ' . B u t it w a s an error to argue f r o m the assumption that m a n w a s 'created free'. Political society as such did not consist simply o f 'each individual'; it did n o t exist for the sake o f ' p r i v a t e utility'; and it had not originated as an ' i n v e n t i o n o f m a n ' . Possessing its p o w e r ' b y divine ordinance', it ' e m b r a c e d its citizens w i t h that p o w e r , as i f they w e r e the m e m b e r s o f one b o d y , in order to preserve the w h o l e u n i m p a i r e d ' (Vitoria 1 9 3 3 - 6 , 11, p p . 17&-83). 11

1 2

B u t other thinkers did not shrink f r o m a d d u c i n g the agreement o f its m e m b e r s as a c o n d i t i o n o f the c o m m u n i t y ' s formation. S o m e suggested that the a g r e e m e n t a m o u n t e d to a contractual undertaking. It sprang, a c c o r d i n g to the Spanish Jesuit Juan de Mariana, f r o m men's r e c o g n i t i o n o f a need 'to bind themselves w i t h others in a c o m p a c t o f society (societatis foedereY (Mariana 1605, p. 16). H e n c e the origins o f ' r o y a l and princely p o w e r ' w h i c h b e g a n , as the R o m a n patrician M a r i o S a l a m o n i o declared,

r

1

11.

M a i r 1 5 1 9 , f o s . c i i i , c o l . I — ciii ', c o l . i ; cf. f o r i n s t a n c e , G o o d m a n

12.

A l m a i n , Quaestio

resumptive!,

i n G e r s o n 1 7 0 6 , 11, c o l s . 9 6 3 - 4 .

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1 5 5 8 , p. 4 8 .

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' b y the c o m p a c t s o f m e n ' w h o m ' G o d created equal' (Salamonio 1544, fo. n r ) . C o m p a c t s rested u p o n v o l u n t a r y and rational consent. W e l l - w o r n foundation m y t h s indicated the relevance o f these conditions to the m a k i n g o f political society and, taken in conjunction w i t h assumptions about h u m a n nature, served also to s h o w h o w it w a s that legitimate g o v e r n m e n t t o o k various forms. S u p p l e m e n t i n g Aristotle w i t h Plato, the English civilian Sir T h o m a s S m i t h recounted h o w different forms o f ' c o m m o n w e a l t h ' had e m e r g e d f r o m the initial rule o f the 'great grandfather' o v e r an e x p a n d i n g domestic society. C o m m o n w e a l t h s , w h e t h e r aristocratic or democratic, c o u l d be accounted 'natural' insofar as they c o n f o r m e d w i t h 'the nature o f the p e o p l e ' ; y e t e v e r y c o m m o n w e a l t h w a s 'the c o m m o n d o i n g o f a m u l t i t u d e o f free m e n collected together and united b y c o m m o n accord and covenants a m o n g themselves' (Smith 1982, p p . 57—64). In Jean B o d i n ' s v i e w , w h i l e m a n w a s naturally gregarious he f o r m e d associations ' b y his o w n v o l i t i o n ' . K i n g s h i p arose w h e n 'the full liberty o f e v e r y o n e ' w a s 'handed o v e r b y the separate citizens to o n e ' ( B o d i n 1945, pp. 2 1 3 - 1 4 , cf. p. 29). A t the v e r y least, the process i n v o l v e d s o m e exercise o f that 'deliberate c h o i c e ' w h i c h Aristotle r e c k o n e d a p r i m e requisite o f political j u s t i c e . B u t n o w h e r e w a s that requisite a c c o m m o d a t e d m o r e persuasively to humanist minds than in C i c e r o ' s foundation m y t h . Far f r o m e x h i b i t i n g an ineluctable sociability, m e n in the state o f nature had w a n d e r e d severally abroad 'in the m a n n e r o f beasts', until at last s o m e eloquent speaker persuaded t h e m to recognise the benefits o f h a v i n g ordered institutions. \hus political society o w e d its origins neither to divine intervention nor to natural expansion f r o m a domestic base so m u c h as to the t r i u m p h t h r o u g h rhetoric o f reason o v e r a p p e t i t e . E v e n so, it remained the case that reason had led a g o o d m a n y people to o p t for m o n a r c h i c a l rule. T h e act w a s surely decisive: a deliberate transfer o f collective p o w e r and a c o m m i t m e n t thereafter absolutely to o b e y . In the i m a g e r y o f proponents o f regal p o w e r , the k i n g w a s identified w i t h 'intellect' to w h i c h 'appetite' as e x e m p l i f i e d elsewhere in the b o d y politic had a l w a y s to d e f e r . Y e t , g i v e n that the c o m m u n i t y w a s the i m m e d i a t e source o f the ruler's authority, it c o u l d be held o n a n u m b e r o f g r o u n d s that b y the act in question o n l y a limited p o w e r w a s transferred to h i m . First, a 13

14

15

13.

A r i s t o t l e , Nicomachean

Ethics,

14.

C i c e r o , De inventione,

i . i i . S e e , f o r i n s t a n c e , S t a r k e y 1871, p . 5 3 ; A l c i a t o , Opera

Tuck

Iiub4-iii2ai8,

1134316-1134bi8. (1546), cited b y

1979, p . 36.

15. F o r i n s t a n c e . C h a s s e n e u z 1546, f o s . I32r, 284V. F o r a c o n s t i t u t i o n a l i s t v a r i a t i o n o n t h i s t h e m e , w i t h t h e ' r e a s o n a b l e a p p e t i t e ' i d e n t i f i e d as a m e a n c o n t r i b u t i n g a c t i v e l y t o t h e c o n d u c t o f ' p o l i t i c a n d r e g a l ' r u l e , s e e L e R o y 1598, p . 26.

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Constitutionalism people c o u l d scarcely transfer to its k i n g a p o w e r greater than it itself possessed. A s S a l a m o n i o c o n c l u d e d f r o m e x a m i n i n g the case o f the R o m a n p e o p l e and the lex regia, the authority o f the prince 'cannot be m o r e and stronger than w h a t the p e o p l e itself can d o ' (Salamonio 1544, fo. i6r). S e c o n d l y , the p e o p l e m i g h t not h a v e transferred all o f its p o w e r to its ruler. B y M o l i n a ' s assessment, w h i l e princes exercising p o w e r ' c o n c e d e d to t h e m b y the c o m m o n w e a l t h ' must be o b e y e d , there m i g h t still be matters w h i c h continued to 'depend u p o n the a p p r o v a l o f the p e o p l e ' ; and a l t h o u g h 'the k i n g remains superior n o t o n l y to each part o f the c o m m o n w e a l t h , but also to the c o m m o n w e a l t h as a w h o l e so far as the p o w e r c o n c e d e d to h i m extends', i f he 'should w i s h to assume p o w e r not c o n c e d e d to h i m the c o m m o n w e a l t h w o u l d certainly be able to resist h i m ' . T h i r d l y , and most i m p o r t a n t l y for constitutionalist positions, e v e n in the exercise o f the p o w e r that w a s in fact ' c o n c e d e d ' the k i n g remained, in S a l a m o n i o ' s phrase, 'not the lord (dominus)\ but 'the minister o f those w h o c o m m i t themselves to his c h a r g e ' (Salamonio 1544, fos. I3r, 17V). 1 6

T h e significance o f those g r o u n d s b e c a m e especially apparent w h e n account w a s taken o f w h y m e n had been persuaded to submit themselves to rulership at all. It w a s evident to S m i t h that the descendants o f the original ruler had d o n e so precisely in order to 'defend themselves', and 'to save the politic b o d y t o o ' (Smith 1982, p p . 60, 62). T h e 'especial defence and safety o f the w h o l e b o d y ' w e r e the p a r a m o u n t concerns o f 'all just and l a w f u l forms o f empires', a c c o r d i n g to the French Aristotelian Louis L e R o y . Self-preservation w a s not o n l y a rational concern for a collectivity o f people. It c o u l d also be seen as e v e r y individual's private right under natural l a w . A s V i t o r i a put it, ' e v e r y m a n has b y natural l a w the p o w e r and the right (ius) to defend h i m s e l f , there b e i n g ' n o t h i n g m o r e natural than to repel force w i t h force' (Vitoria 1933—6,11, p. 182). A correspondence c o u l d a c c o r d i n g l y be u r g e d b e t w e e n the position o f the individual and the position o f the c o m m u n i t y as a w h o l e . L i k e V i t o r i a a student at Paris t h o u g h m o r e closely attuned to the ideas o f G e r s o n , their precursor there A l m a i n expressed the concept o f a natural ius in terms o f dominium, a. term w h i c h in the usage o f such Parisian legists as Charles D u M o u l i n related rather to legally verifiable p r o p e r t y rights. T o A l m a i n e v e r y m a n had a 'natural dominium', defined as a 'facultas or p o w e r ' rooted in 'natural l a w ' 1 7

16.

M o l i n a 1 6 0 2 - 3 , 1 , col. 1 1 8 ; further discussion o f the relative superiority o f k i n g and c o m m o n w e a l t h as a w h o l e o c c u r s b e l o w , p . 2 7 2 .

17.

L e R o y 1598, p. 26, contrasting such f o r m s o f rule w i t h 'lordly' g o v e r n m e n t w h e r e the w e r e t r e a t e d as s l a v e s .

26l

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people

Religion,

civil government, and the debate on constitutions

w h e r e b y ' e v e r y o n e is b o u n d to k e e p h i m s e l f in b e i n g ' . T h i s dominium included 'the p o w e r to strike d o w n an assailant' and w a s 'inalienable'. A n equivalent facuhas appertained to the c o m m u n i t y as a w h o l e . In A l m a i n ' s v i e w that entity derived its p o w e r f r o m G o d and not f r o m its individual m e m b e r s . Nevertheless, it w a s as an entity equally b o u n d to preserve itself. W h e n it 'constituted' a k i n g it ' c o n c e d e d ' to h i m its 'right o f the s w o r d ' . B u t the concession c o u l d not be absolute: n o m o r e alienable b y a people than b y an individual, the right continued to inhere in the c o m m u n i t y itself. S h o u l d the k i n g ' s b e h a v i o u r r e d o u n d to the 'destruction' o f the c o m m u n i t y , he forfeited his p o w e r and m i g h t be r e m o v e d . A n d in any case, the dominium w h i c h he e n j o y e d in relation to that p o w e r w a s ' m e r e l y that o f an administrator (solum ministeriale)', T h e situation o f such a k i n g c o m p a r e d p o o r l y w i t h that o f the potentate w h o m regalists described as s e l f - m o v i n g , h i m s e l f c o n c e d i n g to lesser magistrates jurisdictional p o w x r w h i c h f l o w e d o n l y f r o m h i m and o f w h i c h , as D u M o u l i n maintained, n o n e o f t h e m m i g h t h a v e dominium. A n d e v e n in its n a r r o w e r proprietary sense that same term had constitutionalist implications. F r o m D u M o u l i n ' s account o f it the k i n g , t h o u g h d i v i n e l y appointed, e m e r g e d as n o o u t r i g h t proprietor o f public p o w e r in his realm. W h a t he c o u l d and did c o n c e d e to others w a s dominium o f a kind, in the sense o f a right o f use (utile dominium concedere possit). W h a t he h i m s e l f retained w a s dominium directum w h i c h included the p o w e r to intervene should a jurisdiction be neglected or abused. B u t he c o u l d not 'altogether alienate or abdicate or, as they say, m a k e e x p r o p r i a t i o n o f territories, h o n o u r s or jurisdictions'. T h e s e remained indissociably the ' m e m b e r s ' o f the realm itself. T h e k i n g , as its 'head', c o u l d not 'subsist' w i t h o u t them; and should he attempt to alienate t h e m e v e n o n the strength o f his 'certain understanding and proper m o t i o n ' , he w o u l d be ' m u r d e r e r o f his o w n official d i g n i t y ' ( D u M o u l i n 1681, i, p p . 78—9). T h e position b o r e u p o n the question o f the realm's fundamental l a w s . It also tallied w i t h A l m a i n ' s insistence u p o n the c o m m u n i t y ' s inalienable rights, t h o u g h D u M o u l i n c o n c e i v e d o f the ' g o o d s and rights (iura) o f the k i n g d o m and the c o m m o n w e a l t h ' in specifically different legal terms. A n d he t o o c o n c l u d e d that the k i n g , w h o stood in relation to those rights 'like a husband in respect o f his wife's d o w r y ' , w a s 'not accounted dominus or proprietor o f his [sic\. k i n g d o m , but administrator 18

X9

18.

A l m a i n , Quaestio

resumptive*,

i n G e r s o n 1 7 0 6 , 1 1 , c o l s . 9 6 1 - 4 ; cf. De auctoritate,

in G e r s o n 1 7 0 6 , n, c o l .

9 7 8 . S e e a l s o B u r n s 1 9 8 3 ; a n d , f o r V i t o r i a ' s r e f u s a l t o e q u a t e jus w i t h dominium,

T u c k 1979, p. 47.

O n t h e G e r s o n i a n t h e o r y o f n a t u r a l r i g h t s , see T u c k 1 9 7 9 , p p . 2 5 - 7 . 19.

D u M o u l i n 1 6 8 1 , 1 , p. 1 3 5 . C f . o n the m a r r i a g e a n a l o g y K a n t o r o w i c z 1957, pp. 2 2 1 - 3 , and H a n l e y 1983, pp. 83-5.

262 Cambridge Histories Online © Cambridge University Press, 2008

Constitutionalism O f course, there w e r e k i n g s w h o had gained s i m p l y b y force o f arms p o w e r o v e r the p e o p l e w h o m they ruled. A c o n q u e r e d p e o p l e doubtless submitted to ' l o r d l y ' g o v e r n m e n t as L e R o y described it - t h o u g h e v e n they, a c c o r d i n g to Fortescue, accepted subjugation in order to be ' p r o t e c t e d ' f r o m other possible assailants. T o that extent they shared a c o m m o n aim w i t h any people w h o 'incorporated themselves into a k i n g d o m in n o other w a y (non alio pacto)' than ' b y their o w n c h o i c e ' . A n d e v e n an u n c o n q u e r e d p e o p l e ' w i s h i n g to erect itself into 'a b o d y politic' had a l w a y s 'to place in authority one m a n for the g o v e r n m e n t o f all that b o d y ' w h i c h o t h e r w i s e w o u l d resemble 'not a b o d y but a trunk'. In the case o f such a p e o p l e , h o w e v e r , the k i n g l y head ' w a s set u p for the guardianship (ad tutelam) o f the l a w s o f the subjects and o f their bodies and g o o d s , and to this end he has p o w e r flowing forth f r o m the p e o p l e itself, so that it is n o t permitted to h i m to h a v e d o m i n i o n (dominari) o v e r his p e o p l e b y any other p o w e r ' (Fortescue 1949, p p . 28, 34, 30, 32). H e r e w e r e pregnant terms s o m e m o r e fructiferous than others, in Fortescue's usage. Dominium for his purposes meant g o v e r n m e n t a l authority, pace its ethical and proprietary connotations. N o r did his use of pactum necessarily denote that specifically contractual relationship b e t w e e n k i n g and p e o p l e w i t h w h i c h scholastic thinkers w e r e sufficiently familiar and o f w h i c h radicals such as B u c h a n a n w o u l d m a k e v i g o r o u s p l a y . B u t the significance o f the t e r m tutela w a s unmistakable. T h e c o n c e p t o f the ruler as guardian o f the realm and o f his people's w e l l - b e i n g had for centuries b e e n a c o m m o n p l a c e o f juristic t h o u g h t (instances in U l l m a n n 1 9 8 1 , p . 500). O n C i c e r o ' s authority S a l a m o n i o w o u l d define the t e r m in relation to princes as 'the administra tion (procuratio) o f the c o m m o n w e a l t h , for the benefit o f those w h o are entrusted and n o t o f the ones b y w h o m the trust is held' ( S a l a m o n i o 1544, fo. 26v). A s in the m a r r i a g e a n a l o g y , the k i n g as tutor w a s o n c e m o r e , and literally, administrator o f his charge. 20

21

Cast, then, as administrator and as minister n o t directly o f G o d but o f the realm or o f the p e o p l e w h o 'transferred' p o w e r to h i m , the k i n g w a s subject to legal constraints. F u r t h e r m o r e , the c o m m u n i t y ' s interests — rather than his o w n — in w h i c h he w a s b o u n d to use his p o w e r w e r e identifiable w i t h the end o f political society itself. F o r scholastics and humanists alike, Aristotle had persuasively formulated that final cause 22

20.

B u r n s 1985, p p . 7 9 7 , 788 n. 43.

21.

B u c h a n a n 1 5 7 9 , p . 96: ' m u t u a i g i t u r r e g i c u m c i v i b u s est p a c t i o ' .

22.

T r a n s m i t t i t ' , in F o r t e s c u e 1 9 4 9 , p . 30, h o l d i n g t h a t p o w e r thereafter r e s i d e d 'in t h e h e a d a n d all t h e m e m b e r s t o g e t h e r ' ; ' t r a n s t u l i t ' i n S a l a m o n i o 1 5 4 4 , f o . 5 5 V , a r g u i n g t h a t it r e m a i n e d w i t h t h e universus

populus.

ultimately

S t r i c t l y , t h e i d e a o f t r a n s f e r e n c e m a r r i e d i l l w i t h t h e t u t o r i a l p r i n c i p l e : it

w a s n o t f r o m the w a r d that a g u a r d i a n r e c e i v e d his a u t h o r i t y ( L l o y d 1 9 8 1 a , p . 6 7 ) .

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w h i c h i n v o l v e d far m o r e than m e r e preservation: 'the end o f the state is the g o o d life' (Politics, i28ob39). E v e n B o d i n , critical e n o u g h o f Aristotle, endorsed that position: c o m m o n w e a l t h s w e r e established 'for the sake o f l i v i n g w e l l ' ( B o d i n 1945, p. 276). ' L i v i n g w e l l ' signified c o n c e r n for the c o m m o n g o o d as distinct f r o m individual w e l l - b e i n g . M e n should not live, as the E n g l i s h m a n T h o m a s S t a r k e y put it, 'to their o w n pleasure and profit, w i t h o u t regard to the w e a l o f their c o u n t r y ' . A n d a l t h o u g h the c o m m o n g o o d had its material side, w h a t it m e a n t a b o v e all to Starkey as to generations o f scholastic and humanist thinkers w a s maintenance o f ' p e a c e ' , a v o i d a n c e o f 'discord', p r o m o t i o n o f ' c o n c o r d and u n i t y ' w i t h i n the c o m m o n w e a l t h as a w h o l e . F o r the sake o f this true end m e n should cultivate ' v i r t u e ' and a p p l y it 'to the c o m m o n profit and u t i l i t y ' . ' V i r t u e ' , indeed, m i g h t be cultivated to best purpose w i t h o u t benefit or o t h e r w i s e o f k i n g s at all: in a r e g i m e o f ' l i b e r t y ' , o f republican s e l f - g o v e r n m e n t , and so o f fulfilment o f the individual in 'political life' t h r o u g h action as o p p o s e d to c o n t e m p l a t i o n . B u t to the English humanist, w h a t e v e r the desirability o f such activity, 'the m o t h e r o f all v i r t u e ' w a s that m e n should be 'obedient to reason' — the efficient cause o f h o w political society first c a m e to be (Starkey 1540?, fo. 5r). A n d this line o f discussion led, as in the case o f the m o n a r c h i c a l adminstrator, to the conclusion that political life and g o v e r n m e n t w i t h it must be c o n d u c t e d under the l a w . For 'the laws, w h i c h be sincere and pure reason', Starkey affirmed, 'must rule and g o v e r n the state, and n o t the prince after his o w n liberty and w i l l ' (Starkey 1 8 7 1 , p. 181). 23

24

hi

C u s t o m and the rule o f l a w

T h e proposition that the c o m m o n g o o d w a s the end o f political society w a s applicable also to l a w . ' T h e end o f l a w is the c o m m o n g o o d , u p o n w h i c h o u r happiness depends': thus the Spanish D o m i n i c a n D o m i n g o de S o t o , in terms faithful to the traditions o f T h o m i s t A r i s t o t e l i a n i s m . B u t l a w w a s n o m e r e instrument for political use in pursuit o f a c o m m o n g o o d w h i c h at 25

23.

S t a r k e y 1 8 7 1 , p p . 2 , 46—50, 5 - 6 ; S t a r k e y 1 5 4 0 ? , s i g . a . i j v , e t c . O n t h e i d e a o f pax

et concordia

in pre-

h u m a n i s t t h o u g h t , S k i n n e r 1986; I a m g r a t e f u l t o P r o f e s s o r B u r n s f o r d r a w i n g this i t e m to

my

attention. 24.

' A f f e c t i o n ' f o r ' l i b e r t y ' o r ' s e l f - g o v e r n m e n t (del vivere

libero)'

w a s the k e y to the 'greatness w h i c h

R o m e a t t a i n e d a f t e r f r e e i n g i t s e l f f r o m its k i n g s ' ( M a c h i a v e l l i , Discorsi, locus classicus De officiis,

11.2: 1 9 5 0 , 1 , p p . 3 6 1 - 2 ) . T h e

f o r t h e a m b i g u i t i e s o f S t o i c d o c t r i n e o n t h e a c t i o n / c o n t e m p l a t i o n a n t i t h e s i s is C i c e r o ,

i . x l i i i - x l i v . S e e a l s o P o c o c k 1 9 7 5 , p . 1 1 4 a n d passim;

and, for comparative c o m m e n t

the positions o f L e o n a r d o B r u n i , A l m a n n o R i n u c c i n i and others, R u b i n s t e i n 25.

Soto

1569, fo. 5V, e m p l o y i n g

A r i s t o t l e , Nicomachean

Ethics,

for

'happiness'

the

1 1 2 9 b ; A q u i n a s , Summa,

characteristic

Thomist

ia i i a e , 9 0 . 2 .

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on

1968.

term

beatitudo.

Cf.

Constitutionalism any time m i g h t b e ill-advisedly c o n c e i v e d . B y that same tradition, l a w w a s a measure o f h u m a n acts in relation t o justice — a p r o p e r t y w h i c h , to Aristotle as t o Plato, w a s essential to the v e r y existence o f the political c o m m u n i t y . A n d a l t h o u g h A u g u s t i n e had appeared to d e n y the latter proposition, he t o o h a d p r o n o u n c e d justice to b e a necessary constituent o f l a w , so that — as S o t o o n c e m o r e repeated — an unjust l a w w o u l d b e a contradiction in t e r m s . It f o l l o w e d that l a w , p r o p e r l y c o n c e i v e d , afforded a people its surest means o f attaining a c o n d i t i o n at o n c e o f c o m m o n g o o d and o f justice. S o Fortescue, D u M o u l i n and others m o r e e n a m o u r e d than they o f R o m a n i s t precepts c o u l d cheerfully adopt the t i m e - h o n o u r e d formula o f the Digest for their s u m m a r y definitions o f l a w : 'the art o f the g o o d and the j u s t ' . A g a i n , Justinian's l a w b o o k s yielded g r o u n d s for u r g i n g the exercise o f political authority in accordance w i t h l a w and n o t s i m p l y b y its means, so that, as D u M o u l i n c o m m e n t e d w i t h a p p r o v a l , 'imperial edicts o r mandates against justice o r the l a w s are n o t v a l i d ' ( D u M o u l i n 1681, in, p . 589). N o w r i t e r d r e w the constitutionalist implications o f such positions m o r e plainly than C l a u d e de Seyssel, h i m s e l f a c o m m e n t a t o r u p o n the R o m a n texts and a self-confessed admirer o f his Bartolist predecessors in the field (Seyssel 1 9 8 1 , p . 9). Stressing, like Starkey, the desiderata o f ' c o n c o r d ' and ' u n i t y ' a m o n g the citizens, Seyssel found that these depended u p o n ' o b e d i e n c e to the k i n g ' (Seyssel 1961a, p p . 127, 167). B u t r o y a l p o w e r w a s regulated b y three 'bridles' — ' r e l i g i o n ' , 'justice', and 'police'. Each o f these in turn w a s tied to the maintenance o f l a w . A n d so, in sum, the 'public g o o d ' in the case o f that ' m o s t civil and best-constituted (mieux policieY m o n a r c h y o f France rested four-square u p o n l a w s 'established in such a w a y that they can scarcely b e b r o k e n and annulled' (Seyssel 1961a, p p . 120, 9 9 - 1 0 0 , 1 1 5 ) . 2 6

27

28

2 9

B u t s i m p l y to insist u p o n the maintenance o f l a w w a s to obscure i m p o r t a n t issues. T h e r e w e r e varieties o f l a w , as A q u i n a s had s h o w n (Summa, ia пае, 9 1 ) . It w a s true that all o f t h e m d e r i v e d in s o m e degree f r o m G o d ' s eternal l a w , ' p r i m e right reason', and, in the English c o m m o n l a w y e r 26. A q u i n a s , Summa,

i a п а е , 90.1, 2, 95.2, 9 7 . 1 . A r i s t o t l e , Nicomachean

125заз<5-8. P l a t o , Republic, 27.

A u g u s t i n e , De civitate est

dei, i i . 2 1 , a n d x i x . 2 4 , De libero arbitrio,

Ethics,

ii35ai,

i . v i . 1 9 {iuris atque iniuriae

Politics,

regula).

i.33. S o t o 1569, f o . 1 5 Г (lex iniusta

поп

lex).

28. Digest, 29.

s.427. C f . C i c e r o , De legibus,

1 . 1 . 1 ; F o r t e s c u e 1949, p . 8; D u M o u l i n 1681, 1, p . 835.

T h e k i n g must live 'in accordance w i t h l a w and the Christian religion'; he w a s appointed 'primarily to maintain a n d d o justice', a n d so h e must g o v e r n t h r o u g h ' g o o d laws, customs and ordinances'; a n d police,

a c o n c e p t w h i c h e m b r a c e d m a t t e r s a s v a r i o u s as t h e p r e s e r v a t i o n o f t h e s o c i a l h i e r a r c h y ,

the taking o f counsel a n d the practice o f trade, again w a s indissociable f r o m 'laws, ordinances a n d p r a i s e w o r t h y c u s t o m s ' ( S e y s s e l 1961a, p p . 1 1 6 , 150—1, 154).

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C h r i s t o p h e r St G e r m a n ' s phrase, ' s y n o n y m o u s ' w i t h justice. T h e eternal l a w w a s b y definition i m m u t a b l e . A g a i n , the first principles o f the l a w o f nature w e r e ' w r i t t e n in the heart and so impossible to b l o t out n o r e v e n to alter in relation to place or t i m e ' (St G e r m a n 1974, p p . 8, 14). B u t b e l o w such strata in the hierarchy o f laws c a m e others w h e r e c h a n g e and diversity w e r e indeed admissible. A q u i n a s had admitted that 'secondary precepts' o f the l a w o f nature, t h o u g h deduced f r o m its first principles, m i g h t 'nevertheless be c h a n g e d o n s o m e particular occasions' (Summa, ia nae, 94.5). H u m a n l a w s must be m o r e changeable still. M o r e specific than natural laws, they nonetheless consisted in statements o f general rules; and, as Aristotle had noted, particular cases w e r e b o u n d to o c c u r w h e r e r i g o r o u s l y to apply those rules w o u l d be to perpetrate injustice (Nicomachean Ethics, H 3 7 a 3 i — H 3 8 a 3 ) . O n e w a y o f t e m p e r i n g 'the r i g o u r o f the l a w ' lay in supplementing its rules w i t h ' e q u i t y ' w h i c h St G e r m a n explained in terms o f the principle o f epikeia: 'an e x c e p t i o n b y divine or natural l a w f r o m the general rules o f h u m a n l a w . . . w h i c h e x c e p t i o n is tacitly understood in all general rules o f positive l a w ' (St G e r m a n 1974, p . 96). T o resort to ' e q u i t y ' w a s not to alter the l a w itself: rather, it wss to ensure that the just intention o f the l a w be fulfilled despite the frailty o f its letter. Nevertheless, the v e r y principle o f the hierarchical relationship b e t w e e n natural and h u m a n l a w testified to the latter's mutability. F o r ' h u m a n l a w ' , in S o t o ' s w o r d s , 'is derived f r o m natural l a w b y h u m a n reason, d e r i v i n g the species f r o m the genus'. A n d h u m a n reason w a s inherently imperfect, w h i l e h u m a n affairs w e r e perpetually in flux. T h e r e f o r e , S o t o c o n c l u d e d , 'because h u m a n reason does n o t sufficiently foresee all future things, to this extent l a w itself is m u t a b l e ' . W h o , then, m i g h t d o the altering? H e r e the T h o m i s t dicta, especially w h e n c o u p l e d w i t h civilian m a x i m s , seemed to point to a regalist answer. A n act o f l a w i n v o l v e d c o m m a n d : h o w e v e r beneficent and just its end, l a w , to be efficacious, must be i m p e r a t i v e (Summa, ia nae, 92.2). S m i t h c o u l d equate it w i t h 'the ordinance o f that part w h i c h d o t h c o m m a n d ' (Smith 1982, p. 50). 'In truth', declared M o l i n a , himself a c o m m e n t a t o r u p o n A q u i n a s ' ethical w r i t i n g s , 'the b i n d i n g force o f positive l a w springs f r o m the c o m m a n d and w i l l o f the one c o m m a n d i n g ' ( M o l i n a 1602—3, h c o l . 10). Surely the ' o n e c o m m a n d i n g ' must be the m o n a r c h i c a l ruler. T h e 'force o f l a w ' , as the Digest statement o f the lex regia had it, lay in ' w h a t has satisfied the prince' (Digest, 1.4.1.1). O f course, p o w e r o f c o m m a n d w a s n o t 30

30.

S o t o 1 5 6 9 , f o s . 17V, 2 6 v ; c f . A q u i n a s , Summa,

i a n a e , 9 7 . 1 (responsio

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2).

Constitutionalism confined to the k i n g alone. A m o n g others w h o exercised it w e r e n o b l e m e n h o l d i n g fiefs and able, as e v e n the regalist B a r t h e l e m y de Chasseneuz recognised, 'to m a k e edicts and statutes w i t h i n the limits' o f their jurisdictions (Chasseneuz 1528, fo. 377r). B u t a l t h o u g h in a sense such n o b l e m e n w e r e t a n t a m o u n t to 'princes', it w a s b y virtue o f the k i n g ' s concession that they e n j o y e d b o t h the fiefs and the p o w e r s in question. M o r e o v e r , their 'edicts' had o n l y a limited application, c o u l d not prevail against the k i n g ' s o w n legislative acts, and, strictly, w e r e n o t to b e accounted ' l a w s ' at all. S o B o d i n argued, w i t h a degree o f emphasis w h i c h led h i m in due course to formulate a definition o f l a w purely in terms o f 'the c o m m a n d m e n t o f the s o v e r e i g n ' ( B o d i n 1583, p. 2 1 6 ; cf. 1945, p. 1 7 7 ) . B u t f e w c o n t e m p o r a r y thinkers w o u l d f o l l o w the theorist o f legislative s o v e r e i g n t y quite so far. W h i l e c o m m a n d w a s a necessary p r o p e r t y o f l a w , it w a s n o t sufficient for l a w to exist. C i v i l i a n m a x i m s , for all their voluntarist and absolutist implications, had l o n g since been interpreted to demonstrate a distinction b e t w e e n l a w as such and the ruler's w i l l . T h a t the prince w a s lex animata signified to dialecticians the presence at least o f inanimate l a w , separate f r o m his c o m m a n d . T h a t he held all rights (iura) 'in the casket o f his b r e a s t ' meant his possessing k n o w l e d g e — certaine science, in the t e r m i n o l o g y o f the enabling clause in French r o y a l acts — o f rights w h i c h need n o t h a v e originated w i t h h i m and o f w h i c h he must take full account in positing or activating l a w s o f his o w n . W h e t h e r or n o t such rights w e r e 'natural' to m e n , they c o u l d certainly be categorised w i t h a range o f qualities w h i c h should appertain to l a w s . Isidore o f Seville had p r o v i d e d a seminal list o f those qualities; and early m o d e r n jurists continued w i t h A q u i n a s to construct their analyses around i t . W h i l e justice and ' c o m m o n utility' w e r e conspicuous in Isidore's formula, it specified as w e l l that positive l a w s should be 'in accordance w i t h the c u s t o m o f the c o u n t r y ' . A n d this last d r e w attention to a ' g r o u n d o f l a w ' quite other than the ruler's w i l l and o f central constitutionalist i m p o r t a n c e . It indicated h o w the people, for all that they had transferred p o w e r to the ruler, nevertheless retained extensive means o f regulating their o w n affairs in at least quasi-legislative fashion. For c u s t o m w a s m a d e b y the people. It differed radically f r o m positive laws, w h i c h derived their force f r o m 3 1

32

33

31.

M a x i m i n Novellae,

32.

M a x i m d e r i v s e d f r o m C o d e , v i . 2 3 . 1 9 . 2 (toto iure quod nostris

1 0 5 . 2 . 4 ; cf. K a n t o r o w i c z 1 9 5 7 , p p . 1 3 4 - 5 . est scrinis

constitutum);

cf. P o s t 1 9 5 3 ,

p.311. 33.

I s i d o r e , Etymologiarum,

v . x x i (Patrologia

Latina,

LXXXII, p. 203). St G e r m a n

1974, p. 27; RebufFi

1 6 1 3 , p . 1 6 ; S u a r e z 1 6 1 2 , p p . 3 iff.

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civil government, and the debate on constitutions

instantaneous acts whereas c u s t o m , r e m a r k e d B o d i n , 'gains its force little b y little, and o v e r l o n g years b y a c o m m o n consent o f all' ( B o d i n 1583, p . 222). T h e element o f consent w a s vital, as B a r t o l u s had stressed and as the T o u l o u s e jurist Jean de C o r a s accepted: c u s t o m w a s 'that w h i c h the established practices o f m e n h a v e b r o u g h t in b y the tacit consent o f the citizens' (Coras 1603, qu. Fell 1983, 1, p. 1 1 7 n. 15). Indeed, o w i n g to that element c u s t o m w a s t a n t a m o u n t to a contractual a g r e e m e n t . E c h o i n g Bartolus m o r e appreciatively, S a l a m o n i o c o u l d define it as 'a kind o f c o m p a c t (pactio), i f it is c o n c l u d e d b y the citizens' c o m m o n c o n s e n t ' . L i k e w i s e , D u M o u l i n c o u l d refer to it as the pactum commune civium; and, as he observed elsewhere, 'the substance and basis o f all contracts begins f r o m and consists in the c o n c u r r e n c e and consent o f the c o - c o n t r a c t i n g parties' ( D u M o u l i n 1 6 8 1 , 11, p. 680, iv, p. 402). 34

L o n g debated, the proposition remained contentious that i m p e r a t i v e l a w should be c o m p a t i b l e w i t h consensual c u s t o m despite the d i v e r g e n c e o f their sources. T h e difference b e t w e e n t h e m m i g h t in a measure be reduced b y detecting, w i t h V i t o r i a , a contractual element e v e n in l a w that emanated f r o m the ruler's w i l l . A c c o r d i n g to the D o m i n i c a n , ' a l t h o u g h the establishing o f l a w is a matter for the w i l l o f the k i n g , it is n o t a matter for his w i l l w h e t h e r he is b o u n d or n o t b o u n d thereby: just as in the case o f pacts, for w h o e v e r enters freely into pacts is still b o u n d b y t h e m ' (Vitoria 1933—6,11, p . 206). B u t it w a s one thing to contend that a ruler w a s b o u n d b y his o w n laws, quite another to h o l d that his l a w - m a k i n g p o w e r w a s limited b y c u s t o m , and y e t another to demonstrate w h e t h e r and h o w the Isidorean requirement should be satisfied. T h e simplest solution w a s to dismiss that requirement altogether. T h u s the Parisian legist Etienne Pasquier, asserting that c u s t o m must a l w a y s g i v e w a y to l a w : ' l a w b e i n g m a d e b y the prince and c u s t o m b y the people, a c u s t o m w h i c h runs directly counter to l a w is n e v e r admissible' (Pasquier 1 7 2 3 , 1, c o l . 1092). O t h e r thinkers w e r e n o t so sanguine. S o t o analysed the p r o b l e m b y taking up Isidore's o w n differentiation b e t w e e n w r i t t e n and u n w r i t t e n c u s t o m , and l i n k i n g it w i t h different forms o f rule. U n w r i t t e n c u s t o m 'has the force o f l a w ' . In a republic, c u s t o m p r o m u l g a t e d as l a w ' b y the consent o f the c o m m o n w e a l t h ' w o u l d coincide w i t h 'the usage o f the p e o p l e ' . U n d e r princely rule, h o w e v e r , ' c u s t o m is n o t l a w o f i t s e l f , but depended for its 'interpretation' u p o n 'the w i l l o f the prince'. T h e r e f o r e , ' l a w is n o t m o v e d a c c o r d i n g to c u s t o m ' — and y e t 'it should n o t conflict w i t h the c u s t o m o f the 34.

S a l a m o n i o 1 5 4 4 , f o . 19V, i n e f f e c t a p p l y i n g B a r t o l u s ' o w n a d a p t a t i o n o f t h e D i g e s t p h r a s e ( 1 . 3 . 3 5 : conventio

civium)

to s h o w that c u s t o m w a s equivalent to l a w . O n Bartolus' contribution and

s i g n i f i c a n c e o f ' c o n s e n t ' in his i n t e r p r e t a t i o n ,

U l l m a n n 1962, p. 7 1 4 and

passim.

268 Cambridge Histories Online © Cambridge University Press, 2008

the

Constitutionalism country'

(Soto 1569, fos. 14V—15V, 2JT—v).

W h i l e the position

was

a m b i v a l e n t , it i m p l i e d a potentially useful analytical distinction b e t w e e n the substance o f a measure and its m o t i v e force, c o m p a r a b l e w i t h the difference b e t w e e n inanimate and animate l a w . B u t g i v e n , as the Spanish fiscal Castillo de B o b a d i l l a argued, that the k i n g m i g h t be assumed 'to confirm

all reasonable

customs',

then

'the

custom

o f the

country

o v e r c o m e s the statute and has m o r e force than l a w ' (Castillo de B o b a d i l l a 1597, 1, p . 568). In any case, the converse o f Pasquier's bald assertion w a s equally tenable, e v e n in Paris. T h e r e Pierre Rebuffi, d e v o t i n g to Isidore's f o r m u l a an extensive gloss, c o u l d p r o p o u n d that 'a r o y a l edict m a d e against c u s t o m has n o force'. It w a s true that the ruler c o u l d dispense w i t h c u s t o m in particular cases. B u t such enactments w e r e in effect ones rather o f equity than o f l a w , for l a w w a s b y definition general. A n d , in general, l a w s that ran counter to c u s t o m endangered the c o m m u n i t y ' s w e l l - b e i n g - the end o f political society, and o f l a w itself. For, as R e b u f f i argued, 'a m a n cannot be b o u n d b y l a w in such a w a y that he alone in the society o f others w o u l d h a v e contrary rules o f b e h a v i o u r and live a c c o r d i n g to t h e m . T h e r e f o r e , a l a w against the c u s t o m o f the inhabitants is cancelled b y the contrary c u s t o m ' (Rebuffi 1 6 1 3 , p p . 9, 3 3 - 4 ) . O n e means o f a v o i d i n g confrontation b e t w e e n l a w and c u s t o m lay in assigning each to a distinct sphere. A c c o r d i n g to the D i g e s t , the public w a s distinguishable f r o m the private sphere o f affairs, ius publicum

f r o m ius

privatum (Digest, 1 . 1 . 1 . 2 ) . Hailed b y D u M o u l i n a 'the prime and supreme division o f jurisprudence', it tallied w i t h his o w n association o f c u s t o m w i t h contractual agreements b e t w e e n particular parties. T o the private sphere b e l o n g e d 'contracts, wills, dues and obligations for l a n d h o l d i n g , inheritance practices' — all matters c o n c e r n i n g individual or family affairs and therefore subject to ' w h a t the usage o f m e n a l l o w s ' ; and a g o o d k i n g w o u l d be 'neither capable n o r desirous n o r mindful o f d e r o g a t i n g f r o m it' ( D u M o u l i n 1 6 8 1 , 1 , p p . 738, 22,11, p . 7 3 1 ) . T h e public sphere i n v o l v e d , as the legist L o u i s C h a r o n d a s L e C a r o n explained, matters ' w h i c h concern the c o n d i t i o n o f the c o m m o n w e a l t h (V estât de la république) and n o t o f each one in particular'. It included the ' a u t h o r i t y ' and 'jurisdiction' o f ' m a g i s t r a t e s ' , the m a n a g e m e n t o f ' w a r , peace', and military recruitment — all things ' w i t h o u t w h i c h the public estate cannot subsist and endure' (Le C a r o n 1607, pt i, col. 60). T h e s e matters, m o r e o v e r w e r e subject to the ruler's p r e r o g a t i v e p o w e r and therefore to his e d i c t s .

35.

T h i r e a u 1980,

p p . 2 3 7 - 9 . C f . S m i t h 1982, p p . 85-8,

35

B u t a l t h o u g h attempts at

the t e r m i n o l o g y alluding to the

d i s t i n c t i o n b e t w e e n the ruler's ' a b s o l u t e ' a n d his ' o r d i n a r y '

power.

269 Cambridge Histories Online © Cambridge University Press, 2008

traditional

Religion,

civil government, and the debate on constitutions

specific differentiation b e t w e e n the public and the private sphere had a bearing u p o n the question o f m i x e d g o v e r n m e n t , they did n o t suffice to resolve the difficulty o f the relation b e t w e e n c u s t o m and the ruler's l a w . A s D u M o u l i n h i m s e l f a c k n o w l e d g e d , c u s t o m e m b r a c e d 'all things w h i c h concern the necessities o f civil and h u m a n life' — a point implicit in Rebuffi's observation on 'rules o f b e h a v i o u r ' w h i c h g o v e r n e d h o w m e n lived 'in the society o f o t h e r s ' . C o r a s summarised the p r o b l e m succinctly: 'that w h i c h is o f public utility bears u p o n the c o n v e n i e n c e o f individuals', w h i l e 'that w h i c h principally concerns the utility o f private persons is linked b y consequence to the utility o f the c o m m o n w e a l t h ' . In his o p i n i o n it f o l l o w e d that the ruler's l a w must be preferred to c u s t o m , for public should a l w a y s take precedence o v e r private c o n c e r n s . Y e t it c o u l d be argued to the contrary that c u s t o m not o n l y had a justifiable relevance to the c o n d u c t o f public affairs, but e v e n had shaped the p r i m e elements o f public l a w . 36

37

38

T h o s e elements w e r e the 'fundamental l a w s ' . In France they related to properties w h i c h D u M o u l i n had ascribed to the realm in terms of dominium (see a b o v e , p. 262). T h e ruler c o u l d not alienate any part o f the territories and rights o f the r o y a l d o m a i n ; n o r c o u l d he devise the realm at w i l l , for the c r o w n must descend b y p r i m o g e n i t u r e in the male line, and females w e r e barred f r o m the r o y a l succession. A r g u i n g f r o m the w r i t i n g s o f ' a l l the old historians o f o u r Francogallia', the radical François H o t m a n maintained that each o f these 'definite l a w s ' sprang f r o m 'established and ancient c u s t o m ' . E v e n the m o r e absolutist but n o less historically m i n d e d B o d i n o f the République cited w i t h a p p r o v a l e v i d e n c e that the k i n g d o m ' s l a w s o f succession w e r e r o o t e d in the 'ancient c u s t o m ' o f the Franks ( B o d i n 1583, p. 983). T o these elements other historians w o u l d add further 'beautiful l a w s ' b y w h i c h the k i n g d o m w a s 'established' and w h i c h together constituted its 'police' ( D u Haillan 1609, fo. i o v ) . P a r a d o x i c a l l y , the m o r e n u m e r o u s those elements, the greater the possibility o f ascribing at least s o m e o f t h e m to k i n g s 'acting o f their o w n v o l i t i o n ' ( D u Haillan 1609, fos. 172V, 170V; cf. P o c o c k 1957, p. 17). Y e t all such l a w s i m p o s e d limits u p o n r o y a l p o w e r ; and the d o m i n a n t tradition o f t h o u g h t in sixteenth-century France 39

36.

D u M o u l i n 1 6 8 1 , 1 , p . 2 2 . F o r R e b u f f i , see a b o v e , p . 2 6 9 ; a n d , f o r ' m i x e d g o v e r n m e n t ' , b e l o w , p p . 2 3fT. 7

37. 38.

C o r a s 1 6 0 3 , q u . i n F e l l 1 9 8 3 , 1, p . 1 9 8 n . 2 2 , a l s o p . 1 9 7 . A c o n c e p t certainly present in the sixteenth c e n t u r y , t h o u g h the t e r m itself m a y perhaps be later in t h e c a s e o f F r a n c e . S e e H a n l e y 1 9 8 3 , p . 5 0 n . 4; b u t c f . L e m a i r e 1 9 0 7 , d a t i n g t h e t e r m ' s to Leaguer propaganda

39.

Hotman

o f the 1570s. For England, G o u g h 1955, p. 12.

1 9 7 2 , p p . 4 5 8 - 7 8 (a n e w c h a p t e r i n t h e 1 5 8 6 e d i t i o n ) .

270

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introduction

Constitutionalism a c c o u n t e d at least for those p r i m e 'fundamental l a w s ' o n the basis o f E n g l a n d , w h i c h boasted n o c u s t o m a r y usage ( C h u r c h 1941, p p . 83—93). c o m p a r a b l e array o f ' d e f i n i t e l a w s ' , the c o n c e p t o f fundamental l a w w a s nonetheless familiar, and e v e n m o r e far-reaching. In his l e n g t h y discourse u p o n the ' g r o u n d s o f English l a w (fundamenta legis anglie)\ St G e r m a n g a v e greatest p r o m i n e n c e to 'general customs o f old time used t h r o u g h o u t the r e a l m ' w h i c h 'in the proper sense are called the c o m m o n l a w ' . T h e s e w e r e w h a t underpinned the exercise o f public authority as w e l l as the c o n d u c t o f private affairs. T h u s , w h i l e continental jurists m i g h t locate the jurisdiction o f courts in the public sphere and derive t h e m f r o m acts o f institution or concession b y the ruler, in E n g l a n d 'the c u s t o m o f the realm is the source and foundation (fundamentum) o f the various courts in that r e a l m ' (St G e r m a n 1974, p p . 7 2 , 44, 46, and 30—77 passim). A n d it w a s in the light o f the 'reason' o f the c o m m o n l a w that j u d g e s in those same courts interpreted e v e n the public enactments o f k i n g - i n - p a r l i a m e n t ( G o u g h 1955, p p . 18—21). In the case o f E n g l a n d it seemed evident that o v e r the public and private spheres alike the rule o f c u s t o m prevailed, at least in the sense o f the rational principles o f the c o m m o n l a w . m

C u s t o m , then, rested u p o n the c o n c u r r e n c e o f the p e o p l e concerned, had a bearing u p o n the c o m m o n g o o d , and w a s itself a foundation o f l a w . It f o l l o w e d that the altering o f l a w f r o m time to time must call for s o m e reference to the people. F r o m Fortescue o n w a r d s English thinkers endorsed this conclusion to the full. W h a t Starkey chose to call 'the civil l a w ' consisted o f ' c u s t o m and l a w ' taken together; and this l a w , unlike the g i v e n l a w o f nature, 'taketh effect o f the o p i n i o n o f m a n ' and 'resteth w h o l l y in his consent' (Starkey 1 8 7 1 , p p . 1 5 , 1 2 1 , cf. 1540?, fos. 7 i r , 73r~4r). O n the continent, m o r e o r t h o d o x civilians c o u l d also arrive at an a d v o c a c y o f consent, t h o u g h b y a different route. T h e m a x i m quod omnes similiter tangit ab omnibus comprobetur originally specific to the c o n d u c t o f j o i n t guardianship in R o m a n l a w , had passed t h r o u g h the hands o f m e d i e v a l canonists and conciliarists to graduate f r o m a p r i v a t e - l a w rule o f p r o c e d u r e into a 'principle o f public l a w ' ( C o n g a r 1958, p p . 2 1 1 - 1 2 , 258). R a d i c a l s such as H o t m a n in France or J o h n Junius de J o n g h e in the Netherlands v o u c h e d it to w a r r a n t the v i e w that matters c o n c e r n i n g the w e l l - b e i n g o f the p e o p l e as a w h o l e should be 'decided u p o n ' b y their 'counsel and 4 0

40.

C o d e , v i . 5 9 . 5 . 2 . A s has often b e e n r e m a r k e d ,

the c a n o n l a w adaptation

o f the f o r m u l a in

t h i r t e e n t h - c e n t u r y Liber Sextus

c a m e c l o s e r t o s t i p u l a t i n g c o n s e n t : quod omnes tangit debet ab

approbari

n , c o l . 1 1 2 2 , regula

(Corpus

iuris canonici,

iuris,

xxix).

271

Cambridge Histories Online © Cambridge University Press, 2008

the

omnibus

Religion,

civil government, and the debate on constitutions

41

a u t h o r i t y ' . In early m o d e r n constitutional t h o u g h t , h o w e v e r , the quod omnes tangit f o r m u l a figured less frequently than another w h i c h fifteenthc e n t u r y conciliarists had again r e v i v e d in the w a k e o f earlier civilians: rex T h i s m a x i m gained added significance b y major singulis minor universis. association w i t h the doctrine that the ruler w a s an administrator w h o obtained his authority f r o m the p e o p l e as a w h o l e . Matters that t o u c h e d the v e r y f o r m and survival o f the entity entrusted to h i m o u g h t certainly to be referred afresh to its consent. T h u s Mariana, rejecting the o p i n i o n o f his f e l l o w Jesuit M o l i n a , repeatedly i n v o k e d the m a x i m in question to p r o v e the k i n g ' s inability w i t h o u t 'the consent and definite decision o f the w h o l e p e o p l e ' to alter l a w s g o v e r n i n g the r o y a l succession and the ' f o r m o f r e l i g i o n ' t o o (Mariana 1605, p p . 68, 70, 7 1 - 3 , 81). T a x a t i o n also, t h o u g h in a sense separable f r o m the fundamental l a w s as such, w a s nonetheless linked w i t h the issue o f the c o m m u n i t y ' s preservation. A s S o t o o b s e r v e d , w h i l e the ' c o m m o n w e a l t h has transferred its p o w e r to the prince' its m e m b e r s had not transferred to h i m 'their o w n material resources {proprias facultatesY; and y e t it m i g h t b e 'necessary' for h i m 'to m a k e use o f these 'for the p r o t e c t i o n o f the c o m m o n w e a l t h ' (Soto 1569, f o . 107V). H e had, therefore, in the v i e w o f the French chancellor M i c h e l de L ' H ô p i t a l , to ask his 'subjects' that they 'should consent' to extraordinary subventions, his p r i m e justification for d o i n g so b e i n g the 'necessity' o f the defence o f the realm. 42

4 3

44

T h u s , a l t h o u g h h u m a n l a w w a s m u t a b l e and doubtless — in a m o n a r c h y — d e r i v e d its force f r o m the k i n g , he c o u l d act o f his o w n v o l i t i o n o n l y to a limited degree. S o m u c h f o l l o w e d f r o m the doctrine o f the rule o f l a w : the doctrine that p o w e r should be exercised in accordance w i t h a n o r m a t i v e system w h i c h had as its end the g o o d o f the c o m m u n i t y . W i t h i n the system positive h u m a n l a w f o r m e d a stratum b o u n d e d and c o n d i t i o n e d b y the 41.

H o t m a n 1 9 7 2 , p . 2 9 6 ; J u n i u s d e j o n g h e , Discours the significance o f H o t m a n ' s taking

'counsel',

distinguished

see P a s q u i e r

more

(1574), in K o s s m a n n and M e l l i n k 1974, p. 124. F o r

use o f the m a x i m , G i e s e y 1 9 7 2 . O n the i m p o r t a n c e o f the 1 7 2 3 , 1, c o l . 8 1 ; S e y s s e l

1961a,

p. 133. Continental

c i r c u m s p e c t l y than their E n g l i s h counterparts

between

'consent'.

king's

thinkers

'consultation'

and

(

42.

T i e r n e y 1 9 7 5 , p. 246, for the m e d i e v a l d e v e l o p m e n t o f the

43.

A b o v e , p . 261 - t h o u g h a c c o r d i n g to M o l i n a the k i n g c o u l d n o t alter the succession l a w s for these

maxim.

c o n c e r n e d 'the w h o l e c o m m o n w e a l t h ' ; a n d e v e n 'the c o m m o n w e a l t h itself c a n n o t d o it' after the r e a l m ' s first i n s t i t u t i o n : 44.

1 6 0 2 - 3 , 11, c o l . 2 7 7 .

L ' H ô p i t a l 1 8 2 4 - 6 , 1 , p . 3 9 2 , 11, p p . 1 6 3 - 5 . O t h e r s m a t t e r s o f p o l i c y w h e r e c o n s e n t m i g h t b e d u e i n c l u d e d m o n e t a r y m u t a t i o n . C f . S m i t h 1 9 8 2 , p . 86, a s s i g n i n g this t o the k i n g ' s ' a b s o l u t e p o w e r ' , w i t h D u M o u l i n 1 6 8 1 , v i , p . 1 1 9 , h o l d i n g t h a t it s h o u l d b e d o n e ' n o t b y t h e p r i n c e a l o n e i n a monarchy

. . . b u t also a c c o r d i n g to the consent a n d u s a g e o f the p e o p l e , and the c u s t o m

commerce'.

272

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of

Constitutionalism imperatives o f d i v i n e l y instituted and natural l a w on the one hand and the customs o f the c o m m u n i t y o n the other. T h e limitations u p o n r o y a l p o w e r w e r e consistent w i t h a c o n c e p t o f a m i x e d constitution or e v e n o f d i v i d e d s o v e r e i g n t y : that k i n g and people should act j o i n t l y in certain areas o f rule or, mutatis mutandis, that each respectively w a s n o w supreme and n o w subordinate. S u c h ideas, as B o d i n and others recognised, w e r e beset b o t h w i t h l o g i c a l and w i t h practical difficulties. L o g i c at least w a s better satisfied b y the thesis that kings w e r e administrators and n o t proprietors o f p o w e r for their use o f w h i c h they stood a l w a y s answerable under the l a w to w h o e v e r had appointed t h e m . A l t e r n a t i v e l y , it c o u l d be argued that the k i n g h i m s e l f w a s head and therefore part o f the c o m m u n i t y w h i c h as a w h o l e stood supreme. Insofar as his use o f p o w e r w a s limited b y that w h o l e or b y the legitimate roles o f its other m e m b e r s , this meant n o t a division o f s o v e r e i g n t y so m u c h as a m i x t u r e or distribution o f g o v e r n m e n t a l functions. B u t to present any a r g u m e n t purely in such terms as these w a s to rely u p o n m e r e a n a l o g y and abstraction. If a p e o p l e had a collective constitutional role, b y means o f w h a t organic institution m i g h t they perform it? If g o v e r n m e n t a l functions w e r e to be distributed, w h a t w e r e the organs that should exercise t h e m , and the constitutional significance o f the relations o f those organs to one another and to the k i n g ? W h i l e s o m e o f these questions m i g h t be easily answered, together they t o o confronted w o u l d - b e constitutionalists w i t h considerable difficulties. 45

iv

M i x e d constitution or m i x e d g o v e r n m e n t

In the k i n g d o m s o f western E u r o p e it w a s o b v i o u s that n o t all o f the people c o u l d participate directly in constitutional or in collective g o v e r n m e n t a l affairs. A l m a i n summarised the difficulty: 'the c o m m u n i t y is n o t able easily to c o m e t o g e t h e r r e g u l a r l y ' . T h e solution, h o w e v e r , w a s equally plain: 'it should delegate [its authority] to another or to others w h o can easily a s s e m b l e ' . H o l d e r s o f delegated authority w e r e t a n t a m o u n t to proctorial representatives. G i v e n that their principals had assigned t h e m full p o w e r (plena potestas), a principle w h i c h again had crept under canonist influence f r o m private l a w into the c o n d u c t o f public affairs, they c o u l d p e r f o r m w h a t e v e r those principals or constituents w e r e c o m p e t e n t to d o as i f the latter had been present (Post 1943, p p . 363-4; cf. B r o w n 1972, and b e l o w , 46

45.

See b e l o w , pp. 2 8 1 - 2 , for H o o k e r ' s

46.

A l m a i n , Quaestio

resumptiva,

opinion.

i n G e r s o n 1 7 0 6 , 11, c o l . 9 6 5 .

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p. 293). H e n c e the civilian Smith's elucidation o f the position o f the English parliament. Its 'consent' w a s 'taken to be e v e r y man's consent' because ' e v e r y E n g l i s h m a n is intended to be there present, either in person or b y procuration and attorneys'. W h i l e A l m a i n had t h o u g h t in corporationist terms o f the c o m m u n i t y and its p o w e r s o f delegation, S m i t h b y his phrasing a d u m b r a t e d an individualistic c o n c e p t i o n o f the basis o f parlia m e n t a r y authority. B u t w i t h those phrases he c o u p l e d the v i e w that parliament 'representeth and hath the p o w e r o f the w h o l e realm, b o t h the head and the b o d y ' (Smith 1982, p. 79). H a c k n e y e d e n o u g h , the m e t a p h o r nonetheless i n v o k e d an alternative idea o f representation, less legal than metaphysical t h o u g h r o o t e d once m o r e in m e d i e v a l ecclesiology ( K a n t o r o w i c z 1957, p p . 206—7). P r o p e r l y constituted representatives together M e e t i n g as an 'epitomised' or e m b o d i e d the corpus mysticum reipublicae. assembly o f estates in the presence o f the k i n g , they m a d e actual w h a t must otherwise remain an abstraction. T h e y g a v e substance to the qualities and collective w i l l w h i c h appertained to the people not severally, but as a corporate w h o l e . 47

T h e people, then, had institutional means o f p e r f o r m i n g w h a t e v e r role or function that should b e l o n g to t h e m . Y e t regalists m i g h t reply that the essence o f the realm w a s sufficiently represented b y the k i n g in person. W a s he not the head o f the corporate entity in question? W a s not the head the seat o f reason — the v e r y m e d i u m o f a people's attaining to its political f o r m , and o f that form's retention (see a b o v e , n. 8 and p. 260)? B u t the person o f the k i n g w a s a c o m p l e x p h e n o m e n o n . D u M o u l i n explained that w h i l e 'the majesty and d i g n i t y contained in the c o m m o n w e a l t h ' w e r e indeed 'represented' b y the prince, they appertained to his 'intellectual person' as distinct f r o m his 'private person'. A n d w h i l e that 'private person' w a s 'the o r g a n and instrument o f the said intellectual person', other organs also ' f o r m part o f the m y s t i c person o f the prince' ( D u M o u l i n 1681, v i , p p . 513—14, 408). Indeed, that plurality o f ' r e p r e s e n t a t i v e s ' c o u l d be seen to function w i t h the k i n g h i m s e l f as the realm's j o i n t guardians, ensuring that ' w h a t touches all' should be ' a p p r o v e d b y all' in the m a x i m ' s root civilian sense. A m o n g those other organs w a s the r o y a l council, w h i c h the regalists Chasseneuz and Charles de Grassaille described in concert as 'part o f the prince's person'. If he w a s lex animata, his councillors 'are the soul o f the prince (anima principis) and m a k e the k i n g r e i g n ' (Chasseneuz 1546, fo.

47.

Vindiciae

contra tyrannos:

M o r n a y 1 9 7 9 , p p . 62, 228. F o r D u M o u l i n ' s and H o t m a n ' s citations o f the

i d e a as e x p r e s s e d b y J e a n d e T e r r e R o u g e i n 1 4 1 8 / 1 9 , G i e s e y i 9 6 0 , p . 1 5 8 .

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Constitutionalism 148Í, c o l . 2; Grassaille 1538, p. 166). A m o n g t h e m , t o o , w e r e m e m b e r s o f the j u d i c i a r y : those o f the Paris parlement saw themselves as a 'mystical b o d y . . . representing the person o f the k i n g ' , and their court as 'the k i n g ' s true seat, authority, magnificence and majesty' (qu. M a u g i s 1913—16,1, p . 375). A c o m p a r a b l e status c o u l d be claimed for the Estates G e n e r a l itself. In respect o f that assembly D u M o u l i n repeatedly g r o u n d e d his o p i n i o n u p o n a declaration o f C h a r l e m a g n e ' s successor ' L o u i s the Pious, first French e m p e r o r o f that n a m e ' . O n that e v i d e n c e it w a s 'certain that the majesty, splendour and virtue o f the e m p i r e resides rather in the assembly o f the m e m b e r s o f the estates o f the e m p i r e than in the sole head taken separately, or in the o r g a n i c person o f the e m p e r o r ' ( D u M o u l i n 1681, iv, p. 5 1 4 , cf. p. 418). H o w e v e r , m e r e l y to identify such candidates for association w i t h the ruler's person w a s n o t e n o u g h to clarify their respective constitutional roles. In v i e w o f the doctrine o f the rule o f law, the position o f the j u d i c i a r y and o f the people's representative assembly lay especially o p e n to discussion. In E n g l a n d the discussion w a s m u t e d . Fortescue m i g h t insist u p o n the independence o f the j u d g e s w h o w o u l d a p p l y the l a w w i t h o u t fear or f a v o u r ' e v e n i f the k i n g should c o m m a n d the contrary b y his letters or b y w o r d o f m o u t h ' (Fortescue 1949, p . 126). Later j u d g e s m i g h t incautiously p r o n o u n c e that the c o m m o n l a w as interpreted in the courts ' d o t h c o n t r o l acts o f parliament and sometimes shall adjudge t h e m to be void'. B u t S m i t h ' s contribution carried greater c o n v i c t i o n : that in E n g l a n d 'the m o s t h i g h and absolute p o w e r ' resided in parliament w h i c h c o u p l e d legislative w i t h j u d i c i a l authority, a b r o g a t i n g ' o l d l a w s ' , m a k i n g ' n e w ' , and ' g i v i n g j u d g e m e n t ' b e t w e e n 'private m a n and private m a n ' (Smith 1982, p p . 78, 89). In France these issues excited keener debate. O n the question o f the j u d i c i a r y ' s independence Seyssel o u t b i d Fortescue: j u d g e s o f the par lements w e r e 'perpetual and it is n o t in the p o w e r o f kings to depose t h e m ' . F u r t h e r m o r e , their courts ' w e r e instituted principally for this end and purpose o f bridling the absolute p o w e r that k i n g s w o u l d use'. B u t all this fell w i t h i n the c a t e g o r y o f 'distributive j u s t i c e ' . A s to collective matters c o n c e r n i n g the c o m m u n i t y as a w h o l e , b o t h L e R o y and D u Haillan seemed to postulate a separation o f p o w e r s b e t w e e n the parlements and the estates, the one dealing w i t h 'particular causes', the other w i t h 'great affairs' and 'general c o m p l a i n t s ' (Le R o y 1598, p. 230; D u 4 8

49

48. 49.

C o k e ' s n o t o r i o u s w o r d s o n D r B o n h a m ' s c a s e , 1 6 0 6 (8 C o k e R e p o r t s ( 1 6 5 8 ) , p . 1 1 8 ) . S e y s s e l 1 9 6 1 a , p p . 1 1 7 - 1 8 . C f , S e y s s e l 1 9 6 1 b , p . 81 w h e r e h e c r e d i t e d ' t h e s o v e r e i g n c o u r t s ' w i t h 'inappellable and final c o g n i z a n c e ' o f 'all o r d i n a n c e s c o n c e r n i n g the interests o f parties'.

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Haillan 1609, fos. 184V—5r). T h e v i e w a p p r o x i m a t e d to the alleged distinction b e t w e e n the private and the public sphere o f l a w . A t least in respect o f the parlements it c o u l d c o m m e n d itself to L ' H ô p i t a l w h o held that the 'function (estât)' o f those ' s o v e r e i g n courts' w a s strictly 'to adjudicate differences b e t w e e n subjects and to administer justice' ( L ' H ô p i t a l 1824—6, 11, p p . 12—13, 60—6). B u t , as D u Haillan h i m s e l f noted, the Paris parlement claimed also a legislative function ( D u Haillan 1609, fo. i 8 2 v ) . Its leading m e m b e r s asserted as m u c h , in direct response to the chancellor ( L ' H ô p i t a l 1824—6,11, p p . 17—18; H a n l e y 1983, p. 1 5 1 ) . T h e authority o f Pasquier w a s o n the magistrates' side: the court ' w a s a l w a y s intended for public affairs and verification o f edicts' — a p r o c e d u r e w h e r e b y k i n g s submitted to 'the civility o f the l a w ' , and the people at large ' o b s e r v e w i t h o u t c o m p l a i n t ' any act so verified (Pasquier 1723, 1, cols. 64, 66). A n d y e t those w h o u r g e d the significance o f such institutions themselves shrank f r o m the ultimate constitutionalist implications o f their o w n a r g u ments. In the last resort the role o f the k i n g h i m s e l f w a s o v e r r i d i n g . ' T o rule', a n n o u n c e d S m i t h in his w o r k ' s o p e n i n g sentences, w a s 'to h a v e the supreme and highest authority o f c o m m a n d m e n t ' . A n d e v e n in parliament 'the last and highest c o m m a n d m e n t ' appertained to 'the prince' w h o 'is the life, the head and the authority o f all things that be d o n e in the realm o f E n g l a n d ' . Seyssel w a s n o less emphatic: n o t w i t h s t a n d i n g the parlementas functions, the k i n g must a l w a y s preserve 'his s o v e r e i g n t y and pre e m i n e n c e o v e r all his subjects, o f w h a t s o e v e r d i g n i t y , estate, or c o n d i t i o n they m a y be, w i t h o u t a l l o w i n g his p o w e r to be lost or usurped in any m a n n e r w h a t s o e v e r ' (Seyssel 1961a, p. 1 5 7 ) . D u Haillan dismissed objections that his statements adduced traditional Aristotelian r e c o m m e n d ations o f a m i x e d constitution w i t h supreme authority either shared or d i v i d e d a m o n g m o n a r c h i c a l , aristocratic, and d e m o c r a t i c elements. For ' w e d o n o t say at all that France is a state (estât) c o m p o s e d o f three m o d e s o f g o v e r n m e n t , n o r d i v i d e d in three, each h a v i n g its o w n absolute and equal p o w e r ' . T h e k i n g 'is absolutely r o y a l , monarchical, and s o v e r e i g n , bearing all the marks o f absolute p o w e r and s o v e r e i g n t y ' ( D u Haillan 1609, fo. 171Г). A s for separation o f p o w e r s , L ' H ô p i t a l described h o w the k i n g h i m s e l f g a v e 'justice to each and e v e r y o n e ' and w a s 'legislator' t o o . F u r t h e r m o r e , he c o u l d d o these things in assemblies o f estates as w e l l as in 50

50.

S m i t h 1 9 8 2 , p p . 4 9 , 7 8 , 88; c f . B o d i n 1 5 8 3 , p . 1 4 1 , m a i n t a i n i n g English parliament

that, f o r all t h e a c t i v i t i e s o f t h e

a n d t h e c o n s e n t t h a t it e x p r e s s e d , ' t h e e n t i r e s o v e r e i g n t y b e l o n g s

without

division to the k i n g s ' , and that parliamentary 'consent' in n o w a y d e r o g a t e d f r o m the r o y a l p o w e r of

'command'.

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Constitutionalism r o y a l séances o f the parlements ( L ' H ô p i t a l 1824—6, 1, p. 380). T h e latter's legislative pretensions m i g h t in s o m e measure be a c c o m m o d a t e d w h e n the m o n a r c h held his lit de justice assembly to deal w i t h matters o f public or constitutional l a w . O n those s o l e m n — and infrequent — ritualistic occasions, magistrates in the setting o f their court deliberated w i t h the k i n g , peers, and other dignitaries o f the realm u p o n affairs t o u c h i n g w h a t Francis I termed 'the entire universal m o n a r c h y o f the k i n g d o m ' . B u t L ' H ô p i t a l did not hesitate to use such an occasion to stress that the k i n g w a s as m u c h overseer o f justice as m a k e r o f ordinances for the public w e a l . 51

E v e n so, a unitary f o r m o f constitution w i t h supreme authority vested c o m p r e h e n s i v e l y in the m o n a r c h w a s n o bar to a m i x e d f o r m o f g o v e r n m e n t w i t h orderly distribution o f functions a m o n g the m e m b e r s o f political society. In the case o f E n g l a n d , a c c o r d i n g to S m i t h , lords and c o m m o n e r s f r o m the y e o m a n r y u p w a r d s participated in g o v e r n i n g the c o u n t r y at large: each 'hath his part and administration in j u d g e m e n t s , corrections o f defaults, in election o f offices'. A n d yet, 'I cannot understand that our nation hath used any other and general authority in this realm neither aristocratical n o r democratical, but o n l y the r o y a l and k i n g l y majesty' (Smith 1982, p p . 7 7 , 56). In the case o f France, D u M o u l i n found e n l i g h t e n m e n t in the remainder o f Louis the P i o u s ' declaration to the estates. T h e 'ministry' o f the realm — as distinct f r o m its 'majesty' — w a s ' d i v i d e d in parts, so that each one o f y o u in his place and order m a y be recognised to h a v e a part o f our ministry'. B u t e v e n 'in this ministry the highest place m a y be seen to consist in our p e r s o n ' . Considerations o f order dictated that 'public c o m m o d i t i e s , honours, and charges' be ' d i v i d e d a c c o r d i n g to the c o n d i t i o n o f e v e r y estate', w r o t e L e R o y ; for e v e r y political society 'is c o m p o s e d o f degrees or estates, as it w e r e parts, w h i c h estates must be held in c o n c o r d b y a due p r o p o r t i o n o f each to other, e v e n as the h a r m o n y in music' (Le R o y 1598, pp. 263—4). T h e musical a n a l o g y correlated in turn w i t h that elaborate n u m b e r m y s t i c i s m so b e l o v e d o f Renaissance N e o p l a t o n i s t metaphysicians. ' H a r m o n i c a l proportion' m i x e d the 'arithmetical' and ' g e o m e t r i c a l ' proportions w h i c h w e r e appropriate respectively to democratic and aristocratic 'forms o f g o v e r n m e n t ' ( B o d i n 1583, p. 1 0 1 7 ; cf. L e R o y 1598, p. 241). B u t , as B o d i n 52

51.

H a n l e y 1 9 8 3 , p p . 7 5 , 1 6 7 — 9 ; c f . t h e a u t h o r ' s c l a i m t h a t t h e e m e r g e n c e o f t h e lit de justice the s i x t e e n t h c e n t u r y m a r k e d 'a n e w t h e o r y o f the a n c i e n t c o n s t i t u t i o n , separating

a s s e m b l y in

constitutional-

legislative a n d j u d i c i a l a u t h o r i t y ' (p. 1 7 2 ) . 52.

D u M o u l i n 1 6 8 1 , 1 1 , p . 5 3 7 : a l t h o u g h t h e s y n t a x is c o n v o l u t e d it d o e s n o t s e e m i n t e n d e d t o a p p l y 'division' to the 'highest place'. H o t m a n q u o t e d the s a m e extract, b u t n o t the earlier part o f the d e c l a r a t i o n ( a b o v e , p . 2 7 5 ) : see H o t m a n

1 9 7 2 , p p . 2 9 4 - 6 , 346.

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insistently explained, 'the constitution o f a c o m m o n w e a l t h 'Vestât d'une république) is different f r o m its g o v e r n m e n t and administration' ( B o d i n 1583, pp. 273, 1050, etc.). ' H a r m o n i c a l ' distribution o f g o v e r n m e n t a l functions w a s fully c o m p a t i b l e w i t h a 'pure' and ' w e l l - o r d e r e d m o n a r c h y ' . In such a m o n a r c h y the ' s o v e r e i g n prince', w h o w a s 'as the intellect', also represented the ' u n i t y ' f r o m w h i c h 'depends the u n i o n o f all n u m b e r s ' , so that f r o m his p o w e r 'all others [orderly] depend'. A n d w h i l e those dependent 'estates' r i g h t l y ' h a v e a part in offices, benefices, judicatures, and h o n o u r a b l e charges' and so f o r m e d 'a pleasant h a r m o n y ' , the prince's 'majesty' suffered ' n o m o r e division than u n i t y i t s e l f . 53

So the regalist position c o m f o r t a b l y a c c o m m o d a t e d the desiderata o f m i x e d g o v e r n m e n t w i t h their attendant reciprocity o f g o v e r n m e n t a l w i t h social order. A g a i n s t that position one thinker at least s u m m o n e d up e n o u g h c o n v i c t i o n to prescribe a f o r m o f rule calculated 'to restrain f r o m the prince such h i g h authority' and e q u i p p e d w i t h institutions g r o u n d e d u p o n all the m a i n constitutional elements: that the k i n g w a s appointed b y the people and remained their minister, subject to l a w , subordinate to the c o m m u n i t y as a w h o l e , and dependent at all times u p o n its counsel and consent. N o t content m e r e l y to argue for the popular origins o f kingship, Starkey u r g e d the merits o f elective m o n a r c h y . E v e r y k i n g in turn should be 'chosen b y free election o f the citizens in the c o u n t r y ' , able to ' m a k e h i m a prince and h i m ' t h a t is a tyrant so to depose' (Starkey 1 8 7 1 , p p . 102, 107, 167). O n c e appointed, his use o f p o w e r should be regulated b y a system o f checks and balances. T h e system consisted in a series o f councils: one to attend u p o n the k i n g h i m s e l f so that w i t h o u t its 'authority' he 'should d o n o t h i n g pertaining to the state o f his realm'; another to act as w a t c h d o g o v e r the former, to choose its m e m b e r s and to 'represent the w h o l e state'; and a parliament to elect and authorise the latter c o u n c i l in turn whilst n o t itself m e e t i n g e x c e p t u p o n s o m e great occasion (ibid., p p . 169—70, 182). T h e scheme postulated s o m e division o f functions. In addition to distributing offices, the k i n g ' s c o u n c i l should act as an administrative tribunal; and for its part the c o u n c i l o f 'state' should deal w i t h foreign affairs. B u t the distinguishing feature o f S t a r k e y ' s prescription for a ' m i x e d state' w a s his explicit intention to ensure that in it n o ' o n e part hath full a u t h o r i t y ' and so 53.

B o d i n 1 5 8 3 , p p . 2 6 4 , 1 0 5 6 - 7 , p r e f e r r i n g P l a t o ' s t o A r i s t o t l e ' s v i e w o f ' u n i t y ' w h i c h 'is n o t a n u m b e r at a l l , n o r t o b e r a n k e d a m o n g t h e n u m b e r s ' . T h e w o r d ' o r d e r l y ' w a s i n s e r t e d b y R i c h a r d K n o l l e s i n h i s 1 6 0 6 t r a n s l a t i o n o f t h e République

( B o d i n 1962, p. 7 9 1 ) , a version based u p o n b o t h the French

and Latin texts and r i g o r o u s l y faithful to

neither.

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Constitutionalism that each principal 'part' should act continually as a c h e c k u p o n the d o i n g s o f the rest (ibid., p p . 170, 1 8 1 ) . A c o m m u n i t y w i t h faulty institutions, S t a r k e y believed, must lack material w e l l - b e i n g . His strictures u p o n E n g l a n d ' s social and e c o n o m i c needs reverberated in the w r i t i n g s o f other ' c o m m o n w e a l t h m e n ' (see Jones 1970). B u t his specific proposals for constitutional e m e n d a t i o n — the proposals o f an enthusiast for positive r e f o r m b y means o f strong and effective rule — remained a dead letter, unpublished in his lifetime and for centuries afterwards. W h i l e the elements o f constitutionalism w e r e grist to the mill o f o u t r i g h t resistance theorists, m o r e m o d e r a t e thinkers w h o also entertained t h e m f o u g h t shy o f s e e m i n g to emasculate the k i n g in n o r m a l times — o f a d v o c a t i n g a g e n u i n e distribution o f p o w e r a m o n g institutional structures in a manner that w o u l d reduce h i m to the status o f a m e r e e x e c u t i v e . E v e n Mariana, m o m e n t a r i l y inclined to ascribe just such a status to kings and n o m o d e r a t e in his advice for r e m o v i n g tyrants, 'freely' a l l o w e d 'supreme regnal p o w e r in the k i n g d o m to exist in all things w h i c h b y the practice o f the p e o p l e , b y established c u s t o m and b y settled l a w are permitted to the w i l l o f the prince'. In these respects, ' w h e t h e r military affairs or declaring l a w to the subjects or creating c o m m a n d e r s and magistrates', the k i n g w a s greater 'not o n l y than individuals, but also than the w h o l e ' . It w a s true that matters such as taxation and the fundamental l a w s w e r e 'reserved' to the w h o l e p e o p l e 'or those w h o administer its parts, m e n o f the first rank chosen f r o m all the orders', w h e n they 'assemble in one place'. B u t for the rest, and manifest t y r a n n y apart, 'there is n o one w h o should resist [the ruler] n o r e x a m i n e the reason for his c o n d u c t ' (Mariana 1605, p p . 70, 7 2 - 3 ; cf. Skinner 1978, 11, p p . 3 4 6 - 7 ) . S u c h ideas w e r e better attuned than S t a r k e y ' s to the prevailing m o o d as western E u r o p e a p p r o a c h e d the age o f absolutism.

v

England: H o o k e r

In E n g l a n d successful r o y a l g o v e r n m e n t rested h e a v i l y u p o n the c o o p e r a tion o f n o b l e and landed elites in the c o m m u n i t i e s o f the realm: m e n w h o in the course o f the sixteenth century, w e r e acquiring an intensified i n v o l v e m e n t in r o y a l administration at the local level and at least the rudiments o f a legal education as w e l l . T a u g h t at the Inns o f C o u r t as distinct f r o m the universities w h e r e continental l a w y e r s g o t their s c h o o l ing, E n g l a n d ' s r e m a r k a b l y unified c o m m o n l a w differed in vital respects 279

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f r o m E u r o p e a n traditions so permeated w i t h civilian influences. A fundamental difference lay in the extent to w h i c h c o m m o n l a w procedures r e v o l v e d around the role o f the lay j u r y . A s w i t h legislative procedure, the o u t c o m e o f legal process h i n g e d u p o n the prior approbation o f representa tives o f the c o m m u n i t i e s concerned. It w a s here, in the m o d e o f establishing p r o o f t h r o u g h j u r y trial t o g e t h e r w i t h the m o d e o f establishing statute t h r o u g h parliamentary assent, that Fortescue discerned the distin guishing characteristic and surest guarantee o f the English f o r m o f rule as dominium politicum et regale. In his v i e w , a principal m a r k o f the excellence o f that f o r m o f rule lay in its continuity and lack o f change: since its foundation 'the realm has been ruled c o n t i n u o u s l y b y the same customs as it is n o w ' (Fortescue 1949, p . 38). Y e t the T u d o r r e g i m e in due course carried t h r o u g h changes so significant in their effects u p o n the secular and ecclesiastical institutions o f the realm as to a m o u n t , it has been argued, to a r e v o l u t i o n (Elton 1953). A t least o n the religious front, the changes in question w e r e successively and directly shaped b y the m o n a r c h ' s o w n predilections — a d e t e r m i n i n g factor i m p l i c i t l y a c k n o w l e d g e d in the assumptions o f Stephen Gardiner and E d w a r d F o x e that w h a t must replace the authority o f R o m e w a s a personal r o y a l s u p r e m a c y o v e r the ecclesia E v e n so, English political thinkers remained steadfast w i t h anglicana. Fortescue in canvassing the themes o f consultation, consent, and the rule o f l a w . In the years o f the M a r i a n reaction those themes reinforced the version o f resistance t h e o r y presented b y the C a l v i n i s t J o h n P o n e t : that kingship w a s 'an office u p o n trust', that k i n g s o u g h t 'to be obedient and subject to the positive l a w s o f their c o u n t r y ' , that the m a k i n g o f l a w s required 'the consent o f the p e o p l e ' w h i c h had historically to be s o u g h t in 'parliaments', and that ' m e n m a y r e v o k e their proxies and letters o f attorney w h e n it pleaseth t h e m : m u c h m o r e w h e n they see their proctors and attorneys abuse' those delegated p o w e r s (Ponet 1556, sig. C . v i j . b , B . v j . b , G . v j ) . 54

F r o m the C a l v i n i s t standpoint the Elizabethan religious settlement r e m o v e d the need for e x t r e m e s o f resistance, t h o u g h n o t for pressure to r e m o d e l yet again a c h u r c h 'but halfly r e f o r m e d ' . In order to vindicate that settlement w i t h its endorsement o f the r o y a l s u p r e m a c y and to disarm its Puritan critics, R i c h a r d H o o k e r b e g a n in 1593 to publish his eight b o o k s Of W h i l e m u c h o f the w o r k dealt in the Lawes of Ecclesiasticall Politie. 55

54.

r

r

G a r d i n e r 1930, p p . 1 1 4 - 1 6 , 1 5 6 , etc; F o x e 1548, fos. lxiiii , l x x i , etc. O n the E l i z a b e t h a n settlement o f r e l i g i o n as t h e p r o d u c t o f t h e q u e e n ' s i n t e n t i o n s , J o n e s 1 9 8 2 .

55.

A l l r e f e r e n c e s a r e b y K e b l e ' s d i v i s i o n s o f H o o k e r ' s c h a p t e r s , as g i v e n i n t h e B e l k n a p P r e s s e d i t i o n ( 1 9 7 7 - 8 2 , ed. S p e e d Hill).

280

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Constitutionalism t h e o l o g i c a l c o n t r o v e r s y , it e x a m i n e d afresh the familiar themes o f T u d o r political literature. H o o k e r ' s treatment o f those themes w a s philosophically m o r e ambitious and m o r e systematic than those o f any o f his English contemporaries. H e claimed ' c o h e r e n c e ' for his treatment, w i t h the ' m o r e general meditations' o f the earlier portions illuminating and reciprocally illuminated b y the 'specialities' o f the later (Preface, 7.6—7,1.1.2). A u t h o r i t y c a m e ultimately f r o m G o d . In s o m e cases H e appointed kings directly. In others — as, e v i d e n t l y , the English case — H e left m e n 'free' to ' m a k e choice o f their o w n g o v e r n o r ' (vm.2.5; cf.1.10.4). Nevertheless, 'all g o v e r n m e n t w a s instituted' for the ' c o m m o n g o o d ' , goodness b e i n g the 'perfection' to w h i c h all things 'incline' (vm.3.4; 1.5.1-2). T h e ' m o s t certain t o k e n o f evident g o o d n e s s ' w a s 'the universal consent o f m e n ' (1.8.3). B u t the f r e e d o m and consent in question w e r e scarcely matters o f m e n ' s u n t r a m m e l l e d v o l i t i o n . T h e y w e r e driven to m a k e their choice o f g o v e r n o r b y consequence o f ' n a t u r a l inclination, w h e r e b y all m e n desire sociable life and f e l l o w s h i p ' (1.10.1). For social life w a s a theatre o f ' m u t u a l grievances, injuries and w r o n g s ' ; and f r o m this c o n d i t i o n m e n had n o escape, 'but o n l y b y g r o w i n g u n t o c o m p o s i t i o n and a g r e e m e n t a m o n g s t themselves, b y ordaining s o m e k i n d o f g o v e r n m e n t public, and b y y i e l d i n g themselves subject thereunto' (1.10.4). E v e n so, it w a s f r o m 'the w h o l e entire b o d y politic' and b y its consent that such a k i n g as E n g l a n d ' s received his ' p o w e r o f d o m i n i o n ' (vm.3.2). T h e same principle o f consent applied to the church, v i e w e d as a 'natural society' (1.15.2). R e s o r t i n g , as in his teleological account o f ' g o o d n e s s ' , to Aristotelian metaphysics, H o o k e r argued that ' c h u r c h ' and ' c o m m o n w e a l t h ' w e r e 'names b e t o k e n i n g accidents unabstracted'; and such names ' b e t o k e n n o t o n l y those accidents but also, together w i t h t h e m , the subjects w h e r e u n t o they c l e a v e ' ( v m . 1 . 5 ; cf. Gardiner 1930, p p . 92ff). T h e 'subjects' in question w e r e the m e m b e r s o f the society o f E n g l a n d : ' w i t h us one society is b o t h the c h u r c h and c o m m o n w e a l t h ' ( v m . 1 . 7 ) . A n d just as the entire ' c o m m o n w e a l t h ' m i g h t b e s t o w ' d o m i n i o n o v e r i t s e l f u p o n a k i n g , so t o o ' b y h u m a n r i g h t ' m i g h t a Christian k i n g receive 'supreme p o w e r in ecclesiastical affairs' (vm.3.1). T h e question arose, in w h a t sense did ' d o m i n i o n ' or 'supreme p o w e r ' appertain to the m o n a r c h ? W h i l e it w a s true that 'the k i n g t h r o u g h his supreme p o w e r m a y d o sundry great things h i m s e l f , there w e r e other things, such as altering 'the nature o f pleas' or o f courts, w h i c h he 'alone hath n o p o w e r to d o ' . Y e t it did n o t f o l l o w that the p o w e r in question w a s divided. H o o k e r w a s at pains to stress h o w 'inconveniences m a y g r o w 281

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w h e r e states are subject u n t o sundry supreme authorities'. R a t h e r , the p o w e r o f the k i n g w a s limited b y l a w : 'unto all his p r o c e e d i n g s ' , H o o k e r insisted, 'the l a w itself is a rule' (vm.3.1—4). B u t l a w s in turn w e r e mutable. Elaborating u p o n the T h o m i s t account o f the hierarchy o f laws, H o o k e r argued that e v e r y level o f h u m a n l a w and e v e n divine l a w t o o 'containeth sundry b o t h natural and positive l a w s ' . T h e latter w e r e 'changeable a c c o r d i n g as the matter itself is c o n c e r n i n g w h i c h they w e r e first m a d e ' . T h e m a k i n g and altering o f divine l a w w a s the p r o v i n c e o f ' G o d H i m s e l f (1.15.1, 3). A s for h u m a n laws, the principle o f universal consent in respect o f that ' g o o d n e s s ' w h i c h w a s the 'end' o f society and g o v e r n m e n t applied equally to them: for l a w s w e r e the means o f rendering social and g o v e r n m e n t a l actions 'suitable, fit and correspondent u n t o their end' (1.2.1). M e n should ' m a k e their o w n l a w s ' (vm.6.5). W h a t e v e r the ' p o w e r o f d o m i n i o n ' w h i c h a c o m m u n i t y first possessed and then m i g h t transfer to its k i n g , the 'principal use' o f ' p u b l i c p o w e r ' w a s 'to g i v e l a w s u n t o all that are under i t ' ; and 'diligent care' should be taken that 'the c o m m o n w e a l t h d o n o t clean resign u p herself and m a k e o v e r this p o w e r w h o l l y into the hands o f any o n e ' . T h a t p o w e r o f m a k i n g l a w s 'should b e l o n g to the w h o l e , not to any certain part o f a political b o d y ' (vin.6.1, 5). A n d in E n g l a n d 'the b o d y o f the w h o l e r e a l m ' w a s 'the parliament' w h e r e , ' a l t h o u g h w e be not personally ourselves present, n o t w i t h s t a n d i n g our assent is, b y reason o f others agents there in o u r b e h a l f (1.10.8). 56

T h e r o y a l s u p r e m a c y thus e m e r g e d as a s u p r e m a c y o f k i n g - i n parliament. W h i l e the functions o f g o v e r n m e n t w e r e divided, it w a s there, in parliament, that a unified s u p r e m a c y o f p o w e r seemed to lie. B u t , at considerable cost to the coherence o f his treatment, H o o k e r w a s not content to leave the matter there. E v e n t h o u g h the k i n g ' s position c o u l d be described as one o f ' d e p e n d e n c y ' u p o n 'the w h o l e entire b o d y p o l i t i c ' , the degree o f his d e p e n d e n c y remained tenuous. It sprang f r o m that initial ' c o m p o s i t i o n and a g r e e m e n t ' w h i c h m e n had m a d e ' a m o n g s t themselves', and their ' o r d e r i n g s o m e k i n d o f g o v e r n m e n t public' to escape the consequences o f their natural sociability (1.10.4). H e n c e , at least in the English case, k i n g s ' w e r e first instituted b y a g r e e m e n t and c o m p o s i t i o n m a d e w i t h t h e m o v e r w h o m they reign, h o w far their p o w e r m a y lawfully e x t e n d ' (vm.3.3). H e r e w a s the l a n g u a g e o f contract, and w i t h it a possibility o f distinguishing a social f r o m a g o v e r n m e n t a l c o m p a c t , and the latter in turn f r o m an a g r e e m e n t w i t h a k i n g . Y e t H o o k e r did n o t pursue such distinctions, either in anticipation o f his seventeenth-century suc57

56.

1 . 1 6 . 5 ; cf. B o d i n

57.

VIII.3.2, citing the ' m a i o r singulis universis m i n o r '

1 5 8 3 , p . 2 2 1 , o n t h e 'first m a r k o f

sovereignty'. formula.

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Constitutionalism 58

cessors into the sphere o f social contract and individual natural r i g h t s , or e v e n w i t h his o w n contemporaries into the realms o f resistance t h e o r y . Considerations o f c o m p a c t m i g h t serve to elucidate the origins o f r o y a l g o v e r n m e n t . T h e y a m o u n t e d to v e r y little b y w a y o f offering practical restraints u p o n a k i n g . A g r e e m e n t s or c o m p o s i t i o n s o f w h a t e v e r k i n d c o u l d scarcely h a v e the status o f contract unless they w e r e legally enforceable. N o means o f e n f o r c e m e n t figured in H o o k e r ' s account o f the k i n g ' s position. O n the contrary: after the m o n a r c h ' s first institution, the initiative lay plainly w i t h h i m . For k i n g s succeeded one another not ' b y the v o l u n t a r y deed o f the p e o p l e ' , but b y hereditary right. A n d w i t h the passage o f time those first 'articles o f c o m p a c t ' w e r e m o s t l y 'either clean w o r n out o f k n o w l e d g e , or else k n o w n u n t o v e r y f e w ' (vm.3.2—3). It w a s true that subsequently they w e r e supplemented b y 'positive l a w s ' w h i c h , like all laws, w e r e acts o f 'public o b l i g a t i o n ' . E v e n so, and for all the emphasis u p o n parliamentary consent, in the m a k i n g o f l a w s the k i n g had 'chiefest s w a y ' (vm.6.7). T h a t s w a y m i g h t appear to i n v o l v e n o m o r e than a p o w e r o f v e t o , 'the right o f e x c l u d i n g any k i n d o f l a w w h a t s o e v e r it be before establishment. T h i s d o t h b e l o n g u n t o k i n g s as k i n g s . ' B u t the establishment o f l a w s w a s itself an act o f predominantly royal p o w e r : 'that w h i c h establisheth and m a k e t h t h e m is p o w e r , e v e n p o w e r o f d o m i n i o n , the chiefty w h e r e o f a m o n g s t us resteth in the person o f the k i n g ' (vin.6.11—12). A n d that legislative s u p r e m a c y w a s c o u p l e d w i t h j u d i c i a l s u p r e m a c y , such that l a w itself afforded n o justification for resisting the k i n g and n o redress against h i m i f he should abuse his p o w e r in defiance o f all the principles w h i c h H o o k e r had laid d o w n . H o w e v e r disturbing the conclusion, it c o u l d not be denied. It rested u p o n the v e r y l a w s o f nature as e x p o u n d e d in Aristotelian physics. F o r 'as there c o u l d be in natural bodies n o m o t i o n o f any thing unless there w e r e s o m e w h i c h m o v e t h all things and continueth u n m o v a b l e , e v e n so in politic societies there must be s o m e unpunishable or else n o m a n shall suffer punishment'. T h e k i n g w a s that u n m o v e d m o v e r : and h i m 'therefore n o m a n can h a v e l a w f u l l y p o w e r and authority to j u d g e ' (vm.9.2).

vi

France: C o q u i l l e

In contrast to his English cousins, the k i n g o f France had an e v e r - g r o w i n g multitude o f quasi-bureaucratic officials to exercise authority in his n a m e . In n o sector o f r o y a l g o v e r n m e n t w a s b u r e a u c r a c y better d e v e l o p e d than in 58.

Cf. D'Entreves 1939, pp. 128-31; Cargill T h o m p s o n

1972, pp. 40-3.

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the administration o f justice w i t h its hierarchy o f courts and its host o f magistrates and praticiens, so m a n y o f t h e m university-trained in utroque jure. T h e size and influence o f the magistracy sprang f r o m the procedures o f the l a w itself, geared in r o y a l courts to inquisitorial m o d e s o f p r o o f as distinct f r o m the j u r y - c e n t r e d m e t h o d s o f the English c o m m o n l a w . Critics o f the r e g i m e d e n o u n c e d the magistracy as 'hangers-on and flatterers o f r o y a l t y ' , u p o n w h o m k i n g s c o u l d rely 'to be a c c o m m o d a t i n g to their schemes', pace the s o v e r e i g n courts' m u c h - v a u n t e d function o f j u d i c i a l r e v i e w o f r o y a l acts ( H o t m a n 1972, p p . 520, 504). T h e parlements' response to r o y a l edicts o f pacification d u r i n g the civil w a r s o f the sixteenth century scarcely w a r r a n t e d such denunciations. E v e n so, Parisian juristic o p i n i o n w a s indeed shifting decisively a w a y f r o m the conciliarist v i e w s w h i c h attended early sixteenth-century r o y a l expeditions into Italy, and t o w a r d s that endorsement o f regal p o w e r in the public sphere at w h i c h such thinkers as Charles L o y s e a u w o u l d arrive in the reign o f H e n r i I V ( R e n a u d e t 1953, p p . 547, 549; L l o y d 1981b). A n d yet, n o t w i t h s t a n d i n g this appearance o f concentration in official hands and ultimately in the hands o f the k i n g , p o w e r in late V a l o i s France remained diffused a m o n g the multiple c o m p o n e n t s o f an essentially pluralist system. R o y a l office-selling served to perpetuate and to institutionalise patrimonial attitudes t o w a r d s g o v e r n m e n t and its tasks. S u c h attitudes w e r e r o o t e d in feudal values w h i c h in turn persisted, associating j u d i c i a l and political authority w i t h possession o f land in the f o r m o f fiefs and status in the f o r m o f lineage. M o r e o v e r , p r o v i n c i a l and local assemblies o f estates flourished in various quarters o f the realm, offsetting the relative failure o f their national counterparts and testifying, in conjunction w i t h the presence o f p r o v i n c i a l parlements and the active survival o f seigneurial courts, to the decentralised character o f the French p o l i t y . N o w h e r e w a s that character m o r e plainly e v i d e n t than in the sphere o f private law. Efforts at redaction o f the k i n g d o m ' s multifarious customs stopped far short o f realising Parisian jurists' hopes for a unified droit commun coutumier. A n d the customs p r o v i d e d , to the m i n d o f the procureurgénéral o f the d u c h y o f N e v e r s , a clinching p r o o f o f the people's constitutional standing vis-à-vis their k i n g . W r i t i n g m a i n l y in the last t w o decades o f the sixteenth century, G u y C o q u i l l e p r o d u c e d n o r o u n d e d statement o f his political t h o u g h t , but scattered his ideas about his n u m e r o u s w o r k s . R i c h in historical and legal 5 9

59.

A l l r e f e r e n c e s a r e t o C o q u i l l e ' s c o l l e c t e d Œuvres

( 1 7 0 3 ) . In v o l . 1 p a g e s , p r i n t e d in t w o c o l u m n s , are

n u m b e r e d c o n s e c u t i v e l y t h r o u g h o u t . V o l . 11, p r i n t e d l i k e w i s e , f a l l s i n t o t w o p a r t s , t h e n u m b e r i n g o f e a c h p a r t b e g i n n i n g a f r e s h a t p . 1. R e f e r e n c e s t o v o l . 1 t h u s g i v e p a g e f o l l o w e d b y n u m b e r s ; a n d t o v o l . 11, p a r t , p a g e , a n d c o l u m n

numbers.

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column

Constitutionalism materials, they w e r e relatively innocent o f philosophical content, h e a v i l y conservative in tone, and n o t infrequently s e l f - c o n t r a d i c t o r y . But C o q u i l l e ' s central ideas rested f i r m l y e n o u g h u p o n t w o bases. T h e first w a s his c o n v i c t i o n that maintenance o f the rights o f the feudal n o b i l i t y w a s vital to a stable p o l i t y and necessary to the 'prosperity' o f kingship itself. T h e peers o f the realm w e r e the vehicle w h e r e b y at the c o r o n a t i o n the people c o n c l u d e d w i t h their k i n g 'a m u t u a l o b l i g a t i o n ' , m a d e 'as i f b y stipula t i o n ' ; and it w a s they w h o c o n v e n e d p r o v i n c i a l estates f r o m w h i c h deputies w e r e sent to the Estates G e n e r a l (1.282.i). A p a r t f r o m these h i g h constitutional functions, it w a s to the n o b i l i t y at large, ' b o r n and raised in greatness' and 'stimulated b y the e x a m p l e o f their ancestors', that the k i n g s o f France had ' c o m m u n i c a t e d hereditarily part o f their [ o w n ] greatness and a u t h o r i t y ' (n.ii.130.1). A n d a l t h o u g h the k i n g w a s 'true s o v e r e i g n ' , there w e r e , nonetheless, degrees o f ' s o v e r e i g n t y ' — a t e r m w h i c h in this c o n n e c t i o n , and despite B o d i n ' s efforts, C o q u i l l e continued to interpret in a specifically feudal sense. D e r i v i n g it ' f r o m the Latin supremus\ he applied it to positions o f superiority in the feudal hierarchy, such that 'the seigneur suzerain or s o v e r e i g n ' had ' m a n y others seigneurs subject to h i m , and these subject seigneurs h a v e other seigneurs subject to t h e m ' and so m i g h t be a c c o u n t e d ' s o v e r e i g n ' in their turn (n.ii. 154.2). T h e s e relationships, w i t h the distribution o f s o v e r e i g n t y w h i c h they entailed, w e r e geared to tenure o f land (11. i. 41.2). H a l f a century after D u M o u l i n had attacked the position that jurisdictional rights appertained inherently to feudal patrimonies, C o q u i l l e persisted in h o l d i n g that 'the right to exercise justice' b e l o n g e d 'inseparably to the seigneurie and fief, so that 'it is said in France that judicial rights are patrimonial to the s e i g n e u r s ' . B y virtue o f those rights, seigneurs c o u l d n o t o n l y adjudicate b e t w e e n private litigants, but also ' c o m m a n d ' and ' m a k e b y - l a w s ' in respect o f public concerns (11.i.38.2). R o y a l courts and their agents strove persistently to encroach u p o n the rights in question (11.i.307.2, 309.2). In d o i n g so they abraded 'the ancient constitution (établissement) o f this k i n g d o m ' w h i c h had placed 'the p o w e r o f justice in the hands o f the second estate' (1.282.1). T o leave that p o w e r in seigneurial hands w a s a surer guarantee o f the w e l l - b e i n g o f local 60

61

62

60.

For instance:

'the

government

o f this k i n g d o m

is a t r u e m o n a r c h y

w h i c h has n o n e o f

characteristics o f d e m o c r a c y n o r o f a r i s t o c r a c y ' (1.276. i ) ; 'the ancient c o n s t i t u t i o n o f the république,

m i x i n g d e m o c r a c y w i t h a r i s t o c r a c y a n d m o n a r c h y ' (11.ii. 1 2 5 . 2 ) . A g a i n :

the

French

consultation

w i t h the Estates G e n e r a l w a s ' o f the essence o f the c r o w n ' ( n . i i . 1 2 5 . 1 ) a n d 'in certain cases the estates 1

h a v e p o w e r a n d a u t h o r i t y o f g r e a t e r p o w e r a n d e f f e c t i v e n e s s t h a n o f c o u n s e l l i n g t h e k i n g ' ( 1 . 2 7 7 . ); '[the estates h a v e ] n o part n o r c o n n e c t i o n w h a t s o e v e r w i t h a n y t h i n g t o d o w i t h

government'

(1.276, 1 - 2 ) . 61.

1 . 2 3 0 . 2 , a l l u d i n g t o t h e v e r b a l c o n t r a c t stipulatio Orleans.

62.

in R o m a n l a w w h i c h C o q u i l l e had studied

D u M o u l i n 1 6 8 1 , 1, p p . 1 2 7 - 9 ; C o q u i l l e , 1 . 3 4 0 . 2 , i i . i . 7 . 1 .

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at

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c o m m u n i t i e s than to assign it to s o m e 'hired creature (personnage emprunte) w h o is m e r c e n a r y and w h o has n o purpose n o r a i m o f special friendship t o w a r d s those to w h o m he renders l a w ' (1.279. i ) . C o q u i l l e ' s t h e o r y o f l a w furnished the second basis o f his t h o u g h t . Its b e d r o c k w a s the customs. Emphasis u p o n these led h i m to accentuate the p o p u l a r origins o f r o y a l g o v e r n m e n t and the role o f the p r o v i n c i a l estates. It also led h i m to distinguish b e t w e e n three categories o f l a w in a manner w h i c h again i m p l i e d a distribution o f s o v e r e i g n t y , t h o u g h this time in a legislative sense. A t the realm's 'first constitution (etablissementy it w a s 'the p e o p l e ' w h o had 'established k i n g s ' . T h e y had d o n e so ' b y w a y o f j o i n t a g r e e m e n t (compromis), in order to a v o i d the confusion w h i c h w o u l d arise i f in any affair o f i m p o r t a n c e it should be necessary to seek the o p i n i o n o f all'. B u t the p e o p l e 'did n o t transfer all p o w e r indiscriminately and absolutely (incommutablement) to the k i n g s ' . R a t h e r , they retained 'the right to establish l a w o v e r themselves: w h i c h are the customs and u n w r i t t e n l a w ' w h e r e b y the people's 'intercourse, transactions, and other affairs are regulated' (n.ii.125.1, 1.280.2). A l t h o u g h Parisian legists regarded the customs as 'entirely local', they w e r e in fact ' o u r true civil and c o m m o n l a w in e v e r y p r o v i n c e ' . T h e ' p r i m e m o v e m e n t ' o f this 'civil l a w w a s in the w i l l o f the p e o p l e o f the three orders and estates o f the provinces b y tacit consent' (1.280.2). It did n o t f o l l o w that in the m a k i n g o f the customs the k i n g had n o part to play. T h e p r o v i n c i a l estates are 'assembled b y the authority o f the k i n g ' . T h i s w a s a m a r k o f his 'supreme s o v e r e i g n t y ' (11.ii. 125.2). O n c e that assembly had declared the customs, 'the authorisa tion o f t h e m b e l o n g s to the k i n g ' once m o r e , for it w a s he w h o 'breathes life into the l a w ' (1.280.2, cf. 1.445, 11.i.1.1). Nevertheless, 'it is indeed the people w h o m a k e the l a w ' and 'the m a k i n g o f l a w is a right o f s o v e r e i g n t y ' (11.ii. 125.2). S e c o n d l y , there w e r e 'general l a w s and ordinances for the universal police o f the realm'. T h e m a k i n g o f these w a s 'one o f the principal rights o f the majesty and authority o f the k i n g ' . L a w s o f this kind w e r e 'published and verified in the parlemenf — a necessary part o f the process o f p r o m u l g a t i o n , for ' o t h e r w i s e the p e o p l e are n o t b o u n d b y t h e m ' (n.ii.2.1). B u t the parlement w a s n o 'partner (compagne)' in the r o y a l p o w e r , and its function remained s i m p l y to 'exercise justice in particular cases, and n o t to m a k e l a w s ' (1.281.2). T h e r e existed a third c a t e g o r y , o f ' p e r p e t u a l laws, i m p o r t a n t for the state o f the realm'. T h e s e w e r e a matter for the Estates General. For the purpose o f its assembly, 'the p o w e r o f all the people is 63

63.

1 1 . i . 2 3 9 . 1 , 2 3 8 . 2 ; cf. i i . i . 1 . 1 a n d 1 . 2 8 6 . 1 , e t c .

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Constitutionalism transferred' to the 'deputies' w h o m e t in the presence o f the k i n g , the princes o f the b l o o d , and other dignitaries (n.ii.2.1, 1.281.2). It w a s an assembly w h e r e the k i n g ' s ' s o v e r e i g n t y ' and that o f the p e o p l e e v i d e n t l y stood c o m b i n e d in a single gathering. C o q u i l l e ' s three forms o f l a w corresponded in s o m e degree to a differentiation b e t w e e n the private and the public sphere, w i t h funda mental l a w s p r o v i d i n g the third c a t e g o r y . B u t such a distinction w a s incidental to his main intention, and in any case w a s n o t sustained. A l t h o u g h the k i n g ' s 'rights o f majesty' in respect o f the k i n g d o m ' s 'universal police' e x t e n d e d also to p o w e r s in respect o f w a r and other affairs, the customs c o u l d equally be described as ' l o i x politiques' (1.280.2). W h a t mattered m o s t in C o q u i l l e ' s system w a s the 'reciprocal' relationship b e t w e e n k i n g and p e o p l e , seen rather as interdependent and interacting parts o f the realm's 'political and m y s t i c a l b o d y ' than as discretely s o v e r e i g n in antithetical spheres (1.230.2, 2 7 7 . 1 , 281.2, etc). T h u s , the p e o p l e w e r e the source o f their k i n g ' s legislative authority and must h a v e k n o w l e d g e o f his acts, w h i l e he in turn w a s necessary to the actualisation o f the l a w - m a k i n g potential w h i c h they themselves retained. T h e difficulty for France, and the cause o f ' m a n y inconveniences and disadvantages', had been the inclination o f k i n g s for a century or m o r e to ' c o m m a n d m o r e absolutely', n e g l e c t i n g to s u m m o n the estates, licensing intrusions u p o n seigneurial jurisdictions, generally setting constitutionalist principles at n a u g h t (1.280.1). F o r this C o q u i l l e had n o r e m e d y to offer b e y o n d regret for the n o n - o b s e r v a n c e o f those principles and reminders f r o m his p r o v i n c i a l perspective that they retained a greater relevance to France's g o v e r n m e n t than his Parisian counterparts seemed any l o n g e r disposed to acknowledge.

vii

T h e Netherlands: Althusius 64

In 1604, the year after the publication o f his Politica methodice digesta, the Calvinist Johannes Althusius settled in east Friesland as syndic o f E m d e n . East Friesland f o r m e d part o f the empire; y e t t o w n and p r o v i n c e had close ties w i t h the D u t c h . T h e Politicals enlarged second edition w a s dedicated to one o f the republic's c o m p o n e n t parts, the States o f Friesland, w h i c h Althusius e x t o l l e d for the ' p r a i s e w o r t h y e x a m p l e o f y o u r o w n and o f the

64.

A l l r e f e r e n c e s a r e b y c h a p t e r a n d s e c t i o n n u m b e r s as g i v e n i n t h e H a r v a r d P o l i t i c a l C l a s s i c s e d i t i o n (1932, ed. Friedrich), reprinted f r o m the third edition o f 1 6 1 4 .

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other provinces confederated w i t h y o u ' in ' w a r against the most p o w e r f u l k i n g o f Spain' (Preface, p. 8). In that w a r the rebels had taken their principal stand u p o n a contractual v i e w o f rulership, historically b a s e d . Charters and treaties had been c o n c l u d e d f r o m time to time b e t w e e n the several p r o v i n c e s and their respective dukes and counts. P r o m i n e n t a m o n g such agreements w e r e B r a b a n t ' s Blijde Inkomst o f 1356 and the Groot-Privilege o f 1477, b o t h o f w h i c h affirmed that o b e d i e n c e to the ruler w a s conditional u p o n his and his agents' o b s e r v i n g provincial and local 'privileges, rights, customs, and u s a g e s ' . For the rebels, the contents o f these and related d o c u m e n t s w e r e t a n t a m o u n t to a w r i t t e n constitution; indeed, w h a t w a s recorded there a p p r o x i m a t e d to s o v e r e i g n t y itself (cf. K o s s m a n n 1 9 8 1 , p. 12). E v e n so, its defence resided in the p e o p l e not as a multitude o f individuals, but as a corporate b o d y actualised t h r o u g h the representatives o f their c o m m u n i t i e s . T h e o b v i o u s candidates for that representational role w e r e the m e m b e r s o f the States General. Y e t as Francis V r a n c k , pensionary o f G o u d a , explained in 1587, it w a s in fact the 'boards o f t o w n magistrates and councillors, together w i t h the corporation o f nobles, [ w h o ] u n d o u b t e d l y represent the w h o l e state and the w h o l e b o d y o f the inhabitants'. T h e constitution o f the D u t c h republic as it e m e r g e d f r o m the struggle w i t h Spain abundantly warranted that v i e w . Its affairs w e r e effectively in the hands o f those v e r y boards, assemblies o f patricians, w h o controlled not o n l y their o w n t o w n s , but also the m e m b e r s h i p o f p r o v i n c i a l states and, b e y o n d t h e m , the States General as w e l l . A n d a l t h o u g h Althusius c o m p o s e d his treatise in the light o f the constitution rather o f the e m p i r e than o f those provinces, the ideas w h i c h it presented had an o b v i o u s appeal to the latter. 65

66

67

68

Althusius g r o u n d e d his system u p o n the principle oiconsociatio (i.2). M e n as individuals w e r e not 'adequately e q u i p p e d b y nature' to be 'selfsufficient'. T h e y w e r e therefore 'led and as it w e r e i m p e l l e d ' to adopt 'the s y m b i o t i c life'; and this i n v o l v e d 'the b o n d o f a uniting and associating c o m p a c t (pactum)' (i.3—4, 6). In such a life there had to be a differentiation o f 65.

A m p l e documentation

in K o s s m a n n a n d M e l l i n k 1 9 7 4 .

66.

Blijde

Entree)

Inkomst

pp. 9 5 - 1 2 1 ;

(Joyeuse Groot-Privilege

(both

Brabantine

(Brabantine

and

Latin texts) printed

text) in D e B l e c o u r t and Japiske

in V a n B r a g t

1956,

1919, pp. 3-7. I

grateful to m y c o l l e a g u e Professor P . D . K i n g for m u c h help w i t h translating the latter

am

document;

and to Professor E . H . K o s s m a n n o f G r o n i n g e n for bibliographical advice on political thought

in

the N e t h e r l a n d s prior to the r e v o l t . T h e constitutional f o u n d a t i o n s o f the N e t h e r l a n d s s y s t e m are usefully discussed in V a n U y t v e n and B l o c k m a n s 1969 and in B l o c k m a n s 1983. 67.

T h e r e n d e r i n g o f t h e quod omnes

tangit f o r m u l a i n a r t i c l e s d r a f t e d f o r a g r e e m e n t w i t h t h e A r c h d u k e

M a t t h i a s i n 1 5 7 7 is i n d i c a t i v e , omnes pp. 3 1 1 - 1 2 .

68.

Corte

verthoninge

becoming

'communities

(GemeynteY:

see Griffiths

( 1 5 8 7 ) , in K o s s m a n n a n d M e l l i n k 1 9 7 4 , p . 278.

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1968,

Constitutionalism political roles. T h e ' c o m m o n and perpetual l a w ' o f all associations w a s that s o m e should be 'rulers' or 'superiors' and others 'subjects' or 'inferiors'. T h i s again w a s consistent w i t h 'the l a w and arrangement o f nature': i f ' a l l w e r e equal and each should w i s h to rule others b y his o w n w i l l ' , the consequence w o u l d be 'discord' and the 'dissolution o f society' (i.n—12, 37). T h u s , a l t h o u g h Aristotelian analytical m e t h o d o l o g y indicated 'the efficient cause o f political consociatio to be the consent and c o m p a c t (pactum) o f the c o m m u n i c a t i n g citizens', such a formation had its roots rather in 'necessity' than in those citizens' free and v o l u n t a r y acts as individuals (i.29, 33). H o w e v e r , f r o m classical jurisprudence it transpired that ' b y natural l a w all m e n are e q u a l ' . It f o l l o w e d that m e n c o u l d l a w f u l l y be subject to n o one ' e x c e p t b y their o w n consent and v o l u n t a r y deed'. A c c o r d i n g l y , they must 'transfer to another their rights' to w h i c h n o one else c o u l d h a v e legal claim ' w i t h o u t just title received f r o m their o w n e r (domino)' (xviii.18). T h u s to that initial c o m p a c t w a s added a 'reciprocal contract', b u t this time b e t w e e n the political ' b o d y ' already constituted and w h a t e v e r party it p r o c e e d e d to adopt as its ruler, the rights in question b e i n g those o f the p e o p l e as a w h o l e (xix.7, i x . 3 , 5, 12, etc., x v i i i . i o ) . In such a contract the ' o b l i g a t i o n ' o f the ' p r o m i s o r ' or ruler ' c o m e s first (as customarily happens w i t h m a n d a t o r y contracts)' (xix.7). F ° the people w a s 'prior' and 'superior to its g o v e r n o r s ' , just as ' e v e r y constituting b o d y is prior and superior to w h a t it constitutes' (xviii.8, 92, x x x i i i . 2 0 , etc.). E v e n so, ruler and people alike w e r e subject to the rule o f l a w : ' l a w presides o v e r all and singular, it is a b o v e and superior to all' (xviii.94). ' C o m m o n l a w (lex communis)' as set out in the D e c a l o g u e 'explains the c o m m o n l a w o f nature to all peoples'. B y ' p r o p e r l a w ' it w a s 'adapted to s o m e particular p o l i t y ' , and w i t h i n e v e r y p o l i t y there w e r e 'special l a w s ' for particular regions and for g r o u p s w i t h i n those regions: such l a w s w e r e formulated b y ' c o m m o n a g r e e m e n t ' (xxi.29, 30, i x . 7 , i v . 1 7 , vi.43, 17). F u r t h e r m o r e , a c o m m o n w e a l t h as a w h o l e m i g h t h a v e its 'fundamental l a w ' w h i c h 'is n o t h i n g other than certain covenants (pacta)' to w h i c h its m e m b e r s subscribed (xix.49). ' C o m m o n consent' a c c o r d i n g l y i n f o r m e d the legal structure o f e v e r y political society w i t h i n a f r a m e w o r k o f divine and natural l a w ; and w i t h o u t l a w 'neither household n o r city n o r c o m m o n w e a l t h n o r the w o r l d itself can stand' (x.8). 69

r

T a k i n g these considerations as a x i o m a t i c , Althusius proceeded to describe political society as an ascending series o f corporate g r o u p s . A l l w e r e 'political', t h o u g h t w o w e r e 'simple and private': the 'domestic 69.

x v i i i . 1 8 . C f . D i g e s t , L . 1 7 . 3 2 ; a l s o C i c e r o , De

legibus,

i.x.30.

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society' o f household or kinship g r o u p , 'seedbed o f all s y m b i o t i c f o r m e d b y parti associations' (iii.42, ii.1.14,); and the 'collegium', cipants in the same o c c u p a t i o n 'solely t h r o u g h their pleasure and w i l l ' (iv.i). P u b l i c association consisted o f the city, the p r o v i n c e , and the realm or c o m m o n w e a l t h (respublica). Each f o r m e d one ' b o d y ' , the ' m e m b e r s ' o f w h i c h w e r e g r o u p s o c c u r r i n g b e l o w it in Althusius' schema (v. 10, vii.29, i x . 3 , 5, 12, etc.). T h u s , the m e m b e r s o f the p r o v i n c e w e r e 'its so-called orders and estates, or major collegia', w h i l e the m e m b e r s o f the realm w e r e 'cities, provinces, and regions' and 'not individual m e n n o r families n o r collegia'. Each public association had its head w h o administered its affairs and 'represents' it (v.25, viii.53, xix.98). Each had also its assembly — city senatus, p r o v i n c i a l conventus, general concilium for the realm at large (v.50, viii.64, xviii.56) — w h i c h 'represents' its m e m b e r s h i p and so, in effect, the entire people o f its z o n e o f influence (v.55, viii.5, x v i i . 5 7 ) . T h e head had c o e r c i v e p o w e r o v e r individuals and the several m e m b e r s w i t h i n his jurisdiction (v.49, viii.61, x x i v . 3 2 , x x v i i . 2 7 ) . B u t , major singulis, he w a s minor universis (v.49, viii.67, x v i i i . 7 1 ) . A n d , further, the principle quod omnes tangit dictated that his legislative proposals be subject to r e v i e w b y the relevant b o d y o f representatives (xvii.60, v . 5 9 , viii.64ff, xviii.68). A t the level o f the realm matters w e r e c o m p l i c a t e d b y the role ascribed to 'ephors'. Distinct f r o m the concilium, they w e r e 'in the likeness o f a guardian bearing and representing the person o f the w h o l e p e o p l e ' w h o 'resemble a w a r d or m i n o r ' in their charge ( x v i i i . n , 12). U l t i m a t e l y the ephors' role w a s t a n t a m o u n t to that o f the inferior magistrates o f Calvinist resistance t h e o r y w h i c h , Althusius t h o u g h t , w a s exemplified in the D u t c h R e v o l t (xviii.83, cf.75; xxxviii.28—45, 55). B u t as guardians the ephors w e r e entrusted w i t h p o w e r s o f administration. A l t h o u g h the authority o f the united m e m b e r s o f the realm e x c e e d e d theirs, theirs c o l l e c t i v e l y w a s greater than its head's or supreme magistrate's (xviii.25—9, 73). T h e y controlled h i m b y l a w ; and it w a s they w h o r e v i e w e d his administrative decrees, w h i l e the concilium dealt w i t h such ' g r a v e affairs' as taxation, fundamental l a w s , and the rights o f ' s o v e r e i g n t y (maiestas)' ( x v i i i . 5 1 , 68, x v i i . 5 6 ) . S o v e r e i g n t y , for Althusius as for B o d i n , w a s 'indivisible' and consisted chiefly in legislative p o w e r . B u t , unlike B o d i n . 'I can in n o wise ascribe this supreme p o w e r to a k i n g or optimates.' T h e s e had o n l y its 'administration 10

70.

v i i i . 2 , i x . 5 . I n t h e first e d i t i o n , p r i o r t o A l t h u s i u s ' m o v e t o E m d e n , t h e ' p r o v i n c e ' d i d n o t r a n k as a f u l l y - f l e d g e d ' p u b l i c a s s o c i a t i o n ' . I n r e s p e c t o f t h e ' r e a l m ' . A l t h u s i u s u s e d t h e t e r m s regnum respublica

m o r e o r less i n t e r c h a n g e a b l y , d e c l a r i n g t h a t h e c o u l d find n o r e a s o n f o r

between them

(ii.3).

29O Cambridge Histories Online © Cambridge University Press, 2008

and

distinguishing

Constitutionalism and exercise b y concession f r o m the associated b o d y ' to w h i c h the p o w e r in question must a l w a y s b e l o n g (ix.19, 16, 22, 23, 18). E v e n so, the constitution o f e v e r y realm w a s in s o m e sense ' m i x e d ' . It e x e m p l i f i e d m o n a r c h y , n o t s i m p l y in the shape o f the supreme magistrate, but w h e n the concilium w a s ' d e e m e d to be as one v o i c e and w i l l ' . It e x e m p l i f i e d d e m o c r a c y t h r o u g h the ' m a n y v o i c e s ' contained in that same assembly, and aristocracy b y virtue o f the 'intermediate magistrates' ( x x x i x . 1 4 ) . T h e system w a s one o f checks and balances: ' w h a t is m o n a r c h i c a l in the c o m m o n w e a l t h keeps w i t h i n b o u n d s o f d u t y and conserves w h a t is aristocratic and d e m o c r a t i c ' w h i c h , in turn, 'checks w h a t is m o n a r c h i c a l ' ( x x x i x . 1 5 ) . It also i n v o l v e d a separation o f functions b e t w e e n its a d m i n i strative institutions: 'a k i n g has charge and rules in those things for w h i c h he has received the p o w e r o f ruling and g o v e r n i n g , n o t in those w h i c h h a v e been reserved to the p o w e r and j u d g e m e n t o f the ephors' (xviii.99). T h e separation e m e r g e d m o s t n o t i c e a b l y in respect o f ecclesiastical administra tion. T h e church had its o w n structure and its distinct responsibility for 'those things' w h i c h ' c o n c e r n eternal life and salvation' (viii.16, x x v i i i . 5 ) . B u t the secular magistrates, p r o v i n c i a l and supreme, had also their responsibility for the 'inspection, defence, m a n a g e m e n t , and direction o f ecclesiastical affairs' ( x x x v i i i . 5 ) . T h e s e exhibited 'therefore a dual a d m i n i stration', one for the magistracy and one for ' c h u r c h ministers', w h e r e b y 'each directs and submits to the other, and w h e r e b y each assists the other in the separate administration entrusted to its c h a r g e ' (xxviii.5). B u t these G e n e v a n arrangements had still to d o w i t h administration: the c h u r c h as such, b y the w i l l o f G o d and ' b y the religious c o v e n a n t ' c o n c l u d e d b e t w e e n H i m and 'the m e m b e r s o f the realm', w a s ' c o m m i t t e d to the w h o l e people w h o m its ministers, ephors, and supreme magistrate represent' ( x x v i i i . 1 5 , 18). A n d yet, w h i l e s o v e r e i g n p o w e r w a s a p r o p e r t y o f the people, those to w h o m they 'transferred' it (transtulit: x v i i i . i o , 56, etc.) had also its reality. M e r e administrator t h o u g h he m i g h t f o r m a l l y be, the supreme magistrate had the authority to identify just causes o f w a r , to c o i n m o n e y and assess its value, and generally to exercise all those rights w h i c h thinkers had traditionally linked w i t h majestas ( x x x v . 5 , x x x i i . 3 1 ) . It w a s b y his 'sole w i l l that the l a w o f a city is constituted', f r o m h i m that the 'administration and p o w e r ' o f p r o v i n c i a l heads 'is c o n c e d e d ' and w i t h it their capacity 'to g i v e force o f l a w ' to the decisions o f p r o v i n c i a l assemblies (v.42, viii.53, 65). E v e n the general concilium, a l t h o u g h 'all public affairs o f the realm are laid before it', had n o automatic right o f assembly, b u t depended for its 291 Cambridge Histories Online © Cambridge University Press, 2008

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s u m m o n s u p o n the supreme magistrate once m o r e (xvii.57, x x x i i i . 5 ) . W h i l e it fell to the ephors to constitute h i m in office, the supreme magistrate m i g h t succeed to that office b y 'hereditary or successive' right, a p r o c e d u r e w h i c h had m u c h to c o m m e n d it (xviii.64, x i x . 2 5 , 74—91). A s for the ephors themselves, A l t h u s i u s ' elaborate description o f h o w they w e r e 'elected b y the consent o f the w h o l e p e o p l e ' carried the significant rider that ' s o m e t i m e s ' the 'supreme magistrate or optimates h a v e the p o w e r ' to elect t h e m . W h a t mattered w a s that ephors be persons ' w h o h a v e great political p o w e r (potentia) and w e a l t h ' so that 'the maior et sanior pars o f the p e o p l e prevails' (xviii.59, 60, 62). L i k e w i s e at the level o f the city, the senatus w a s a collegium ' o f the soundest select m e n ' w h o m i g h t 'be elected b y the senatus' itself (v. 54, 60). T h e r e m a i n i n g citizens w e r e 'inferior' and 'the subjects o f the w h o l e or o f those w h o represent it' —just as 'the individual people o f the realm b y themselves are the subjects and servants o f their administrators' (v.26; x v i i i . 1 5 ) . A l l this tallied at least w i t h the letter o f that Aristotelian principle w h i c h Althusius had adduced at the outset: in e v e r y political association, b y natural l a w , s o m e must c o m m a n d and other o b e y (Politics, 1254ai—3). W i t h ceaseless reiteration o f constitutionalist m a x i m s , he e x p l o r e d his corporatist vision o f political society, intent u p o n reconciling as intimately as possible forms o f association w i t h forms o f rule. B u t for practical purposes, and doubtless to the satisfaction o f the D u t c h , the system w h i c h e m e r g e d f r o m that e x p l o r a t i o n w a s distinctly oligarchic; and it left o p e n the d o o r for a p o w e r f u l m o n a r c h r e m o v a b l e o n l y i f he should transgress t o o o u t r a g e o u s l y the requirements o f the rule o f l a w .

viii

Spain: Suárez

T h e p o w e r o f Spain's rulers rested first and foremost u p o n the k i n g d o m o f Castile, the d r i v i n g force in the unification o f the Iberian peninsula. T h e r e the k i n g seemed e q u i p p e d to rule in authoritarian fashion, t h r o u g h a c o u n c i l reduced in m e m b e r s h i p to consist m a i n l y o f letrados and b y means o f a proliferation o f officials c o m b i n i n g administrative w i t h j u d i c i a l responsibilities at e v e r y level. M o s t authoritarian o f all w a s the Castilian c r o w n ' s practice o f e m p i r e in its colonies o f the N e w W o r l d , w h e r e native p e o p l e w e r e treated as subjugate inhabitants o f the k i n g ' s private d o m a i n and granted to encomenderos w i t h utter disregard o f their indigenous institutions (Parry 1940, p. 7 1 ) . In A r a g ó n and the provinces o f C a t a l o n i a and V a l e n c i a federated w i t h it, h o w e v e r , traditions o f contractual m o n a r c h y continued to i n f o r m political attitudes. T h o s e traditions, 292

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Constitutionalism encapsulated in the famous A r a g o n e s e oath o f allegiance (see Giesey 1968), found institutional expression t h r o u g h assemblies o f the cortes and t h r o u g h other distinctive organs established to safeguard regional and local franchises. E v e n in Castile, resentment t o w a r d s the alleged m i s g o v e r n m e n t o f H a b s b u r g - i m p o r t e d officials flared into rebellion in 1520, the rebel leaders taking their stand u p o n defence o f the customs w h i c h earlier rulers had ratified (fueros) and calling for regular meetings o f representative assemblies w i t h deputies (procuradores) firmly answerable to their constitu ents (Perez 1970, p. 546). Despite the defeat o f the comuneros, the principle that procuradores w e r e strictly mandatories and n o t plenipotentiaries on the English m o d e l s u r v i v e d to facilitate a r e v i v a l o f the Castilian cortes later in the century ( T h o m p s o n 1982, p p . 39—40). A n d e v e n the A m e r i n d i a n s found their defenders, principally in the shape o f the D o m i n i c a n B a r t o l o m é de Las Casas w i t h his insistence that the system o f encomienda breached b o t h fundamental and natural l a w and e x p o s e d the k i n g to the charge that 'he w h o uses authority b a d l y is n o t w o r t h y to rule' (Las Casas 1 9 5 7 - 8 , v , p p . 9 7 - 8 ; cf. M a r a v a l l 1972, 1, pp. 338-9). S u c h ideas c o u l d continue to strike chords in a Spain w h e r e , a l t h o u g h the intellectual climate w a s g r o w i n g less favourable to critical political t h o u g h t , the universities w e r e e x p a n d i n g apace, their t h e o l o g y faculties increasingly penetrated b y T h o m i s t influences, their l a w faculties attracting in m o u n t i n g n u m b e r s the sons o f n o b l e m e n and prospective r o y a l officials, to f o l l o w a c u r r i c u l u m m o d e l l e d u p o n the Bartolist school o f B o l o g n a ( K a g a n 1981, p p . 140—4). W h e r e teachers o f the calibre o f V i t o r i a and S o t o held s w a y , pupils c o u l d scarcely remain indifferent to the central questions o f ethics and jurisprudence. 71

N o teacher surpassed the Jesuit Francisco Suárez in e x p l o r i n g those questions o n the basis o f the T h o m i s t tradition and the m e t h o d s o f scholastic disputation. Suárez' political ideas, e x p o u n d e d most fully in his w e r e rooted in his p h i l o s o p h y o f lectures On Laws and God the Lawgiver, l a w . L a w as such w a s 'a certain measure o f m o r a l acts' (i.i.5). It w a s thus a measure o f right (ius), defined as 'a certain m o r a l p o w e r (facultas) w h i c h e v e r y individual has, either o v e r his p r o p e r t y or o v e r w h a t is o w e d to h i m ' (1.Ü.4— 5). R i g h t , h o w e v e r , w a s reciprocally a measure o f l a w , in turn definable as 'a c o m m o n , rightful (iustum) and stable precept w h i c h has been 12

71.

F o l l o w i n g the early sixteenth-century i m p a c t o f Erasmian h u m a n i s m , o n w h i c h Bataillon 1950 r e m a i n s the classic s t u d y .

72.

A l l references are to the C o i m b r a e d i t i o n o f 1 6 1 2 , cited hereafter b y b o o k , chapter, and section numbers.

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sufficiently promulgated' (n.xvii.2, i.xii.5). Neither term contained the other's full meaning; yet law implied right, and right implied the possibility of law (11.iii.12, i.ii.passim). Law was divisible, Thomist fashion, into several categories.73 Human law, though indirectly an 'effect' of the eternal law, was 'something created and temporal' and 'gets its force and efficacy immediately from the will of the human legislator' (n.iv.8). Like all law, human law proceeded from a superior to an inferior: it was 'established by the free will of someone having power to command' (i.v.[24J, ii.ii.9, 6). But the human legislator's power of command was not arbitrary. His freedom in this regard was limited by the 'ground and essence of law that it should prescribe what is just'. Here justice signified the good of the community: for, by the same token, it was 'of the ground and substance of law that it be made for the common good' (i.ix.2, i.vii.i). Furthermore, the element of command was not dissociable from an element of consent: 'the consent of the people is needed in some way for all law' (vn.xii.i). All this, however, was bound up with the question of how the human community was formed and how the human legislator obtained his power. Here Suarez began from the Aristotelian commonplace that man 'naturally and rightly craves to live in a community' (m.i.3, cf.12). Even so, a community's formation remained 'dependent upon human volition', for men were 'naturally free' (ii.xvii.9, m.iii.6). Not until they were 'bound together by some compact (aliquo foedere)' did they form a community as distinct from a mere multitude (i.vi. 19). As with Hooker and Althusius, the opportunity arose to investigate that 'moral bond (morale vinculum)' in terms of an initial social contract. No more disposed than they to pursue the matter, Suarez hurried on to the question of political authority. While the community once formed might be 'imperfect, or domestic', a 'perfect' community had the 'capability of political government' which meant that it exhibited 'political power' (m.i.3, Lvi.19, m.ii.3). That power, quite distinct from the 'power of dominion' held by the head of a domestic community, consisted chiefly in the authority to legislate (i.viii.5, m.i passim). The power resided in the community itself and not in its individual members.74 Nor did it spring from several members: 'this power does not react in human nature until men are gathered together into one perfect 73. i.iii.5—21. The eternal law was 'not promulgated' except through 'some divine or human law' (11.iv.10); and, while both divine and natural law indicated the 'divine will' (11.vi.13), natural law resided 'in the reason', in 'the actual judgement of the mind' (n.v.12, 14). 74. m.iii.i, dismissing a syllogism which purported to prove the contrary.

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Constitutionalism c o m m u n i t y and are politically united' (m.iii.6). Y e t the p r o o f w a s analogical. Just as m a n 'has p o w e r o v e r h i m s e l f and o v e r his faculties and m e m b e r s for their use,' so t o o , 'directly b y natural l a w , the 'single mystical b o d y ' o f the c o m m u n i t y as a w h o l e 'has p o w e r and g o v e r n m e n t o v e r itself and consequently has p o w e r o v e r its m e m b e r s also' (m.iii.6, in.ii.4, cf. Suarez 1 6 1 3 b , m . v . i i ) . W h a t the c o m m u n i t y did w i t h its p o w e r b y w a y o f establishing a f o r m o f rule w a s a matter o f ' h u m a n counsel and decision' ( m . i v . i ) . It m i g h t itself retain 'supreme legislative authority', but this w o u l d lead to 'infinite confusion and b i c k e r i n g ' ( v n . x i i . i , m . i v . i , cf. 8). It m i g h t consign o n l y s o m e o f its p o w e r to a prince, w i t h the result that 'the m o n a r c h y w o u l d not be perfect, but m i x e d and d e m o c r a t i c ' ; this, h o w e v e r , 'is not ordinarily the case' (vn.xiii.5, cf. m . i v . i ) . T h r o u g h accidents o f title 'several k i n g d o m s ' m i g h t find themselves to be 'under the same k i n g ' , each requiring that ' p r o v i s i o n be m a d e for it b y its o w n l a w s ' (i.vii.14) - circumstances s t r o n g l y reminiscent o f the c o n d i t i o n o f the Spanish realms. A l l in all, Suarez w a s o f the o p i n i o n that ' m o n a r c h y ' or rule ' b y one head' afforded 'the best' f o r m o f ' p o l i t i c a l g o v e r n m e n t ' . N e v e r t h e less, the source o f the m o n a r c h ' s p o w e r w a s an act o f transfer o n the part o f the c o m m u n i t y as a w h o l e , expressive o f its ' o w n consent' ( m . i v . i , in.iii.7). In transferring its p o w e r to a k i n g , a c o m m u n i t y did not deliver itself into 'despotic servitude'. T h e transfer w a s m a d e 'under o b l i g a t i o n , the conditions under w h i c h the first k i n g received the k i n g d o m f r o m the c o m m u n i t y ' . T h o s e conditions c o u l d be described in terms o f a 'pact or a g r e e m e n t (pactum vel conventio)' (m.i.7, m . i v . 3 , 5). T h e y consisted, h o w e v e r , n o t so m u c h in specific articles o f contract as in b r o a d a g r e e m e n t as to the ensuing m o d e o f rule. T h e k i n g should 'rule politically (politiceY . H e w h o ruled o t h e r w i s e ruled tyrannically. In e x t r e m e circumstances such a ruler m i g h t l a w f u l l y be deposed — t h o u g h o n l y w h e n threatened w i t h its o w n destruction should a c o m m u n i t y resort to deposition. In such a case 'the c o m m o n w e a l t h as a w h o l e , and b y the public and c o m m o n deliberation o f the citizens and nobles', m i g h t call the tyrant to account before a 'public c o u n c i l ' . E v e n then, deposition required papal endorse m e n t . ' T o punish' w a s 'an act o f jurisdiction' and so ' o f a superior'; and to that extent the p o p e , w h o had direct p o w e r to punish the spiritual offences o f m e n o f all degrees, had indirect p o w e r also o v e r tyrannical princes (Suarez 1 6 1 3 b , v i . i v . 1 5 , 1 2 , 17). In n o r m a l circumstances the position o f the c h u r c h itself constituted a limitation u p o n the ruler's p o w e r . T h e c h u r c h 75

75.

S u a r e z 1 6 2 1 : de charitate,

D i s p . x m , sect, viii.2.

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was autonomous and independent: 'a lay prince cannot bind clerics by his express will' (Suarez 1612, vii.xvi.n). As for his lay subjects, despite their transference to him of the power to make law, they continued collectively to possess a residual capacity to nullify his acts. Custom was established through repeated performance of 'voluntary acts' on the part 'of the community as a whole' or 'of the greater part' of its members, over a period of time sufficient to manifest 'the consent of the people' (vn.i.8, 12). And a reasonable custom which was also prescriptive, 'if it should be contrary to a law, abrogates that law' (vii.i.12, vn.xviii. 14). Indeed, in order to abrogate a law the ruler's tacit connivance at 'the resistance of the people' was enough. Thus law in effect could be made by 'the people joined with its head' in a manner where the king's role was scarcely more than passive (vii.xviii.20, xiv.4). So Suarez' position accommodated significant elements of the constitutionalist tradition. But the balance of his arguments leaned decisively the other way. The king was not to be seen as administrator or tutor of the realm; nor was his relation to public authority one of delegation. The community's act of transfer endowed him with full legal title to political power and cast him as its 'proper owner {proprius dominusy (iii.iv.9). The minor universis principle was dismissed: 'the power having been transferred to the king, he is thereby made superior even to the kingdom that gave it'.76 Whatever the people's residual law-making capability, there was no question of limiting the king's own legislative power on the strength of custom. His express injunction sufficed for 'forbidding a custom contrary to it', whether retrospectively or prospectively; and sometimes he might 'dispense' even from 'precepts of the natural law' (vn.vii.5, 11.xiv.11). Manifest tyranny aside, there existed no legal machinery to enforce constraints upon him: kings were not bound by the coactive force even of their own laws, although they ought to 'call to mind the directive constraint of the laws' (111.xxxv.28, cf, 15). As for his subjects as individuals, the king by virtue of his power might, 'to the extent necessary for obligatory government', override their rights 'even if such a right (ius) has been positively given by nature' (11.xiv.18). Pace the language of rights, what must take precedence was the interest of the community as a whole: 'the common good is preferred to private good whenever they cannot exist at the same time' (i.vii.14). And the former was identifiable with the king 76. m.iv.6. Cf., however, Suarez 1621: de charitate, Disp. xm, sect, viii.2: in circumstances of manifest tyranny 'the whole commonwealth is superior to the king'.

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Constitu tiona lism himself. ' T h e g o o d o f the prince qua prince', o b s e r v e d Suarez portentously, 'is r e c k o n e d the c o m m o n g o o d , since he h i m s e l f is the c o m m o n and public person' (i.vii.i i ) . In sum, the thrust o f Suarez' arguments as the seventeenth century o p e n e d w a s t o w a r d s the s u p r e m a c y and licensed e n c r o a c h m e n t o f the public o v e r and u p o n the private sphere at the behest o f the m o n a r c h ' s w i l l — and so t o w a r d s a b s o l u t i s m . 77

77.

A sense o f the

distinctiveness and

relative i m m u n i t y

o f the private

from

the public

sphere

n o n e t h e l e s s r e m a i n e d : f o r i n s t a n c e , it w a s ' m o s t a b s u r d ' o f ' c e r t a i n j u r i s t s ' t o a r g u e t h a t ' t e m p o r a l k i n g s can, b y their o w n absolute p o w e r and arbitrary v o l i t i o n , alter rights o f o w n e r s h i p p r o p e r t y o r u s u r p t h o s e rights f o r t h e m s e l v e s " ( n . x i v . 1 5 ) .

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over

10 Sovereignty and the mixed constitution: Bodin and his critics J U L I A N

H.

F R A N K L I N

T h e account o f s o v e r e i g n t y in the w o r k o f Jean B o d i n w a s a major event in the d e v e l o p m e n t o f E u r o p e a n political t h o u g h t . B o d i n ' s precise definition o f supreme authority, his determination o f its scope, and his analysis o f the functions that it logically entailed, helped turn public l a w into a scientific discipline. A n d the vast system o f c o m p a r a t i v e public l a w and politics p r o v i d e d in his Les Six Livres de la République (1576) b e c a m e the p r o t o t y p e for a w h o l e n e w literary genre, w h i c h in the seventeenth century w a s cultivated m o s t in G e r m a n y . B u t B o d i n ' s a c c o u n t o f s o v e r e i g n t y w a s also the source o f m u c h confusion, since he w a s primarily responsible for i n t r o d u c i n g the seductive but erroneous n o t i o n that s o v e r e i g n t y is indivisible. It is true, o f course, that e v e r y legal system, b y its v e r y definition as an authoritative m e t h o d o f resolving conflicts, must rest u p o n an ultimate legal n o r m or rule o f r e c o g n i t i o n , w h i c h is the guarantee o f unity. B u t w h e n B o d i n spoke about the unity o f s o v e r e i g n t y , the p o w e r that he had in m i n d w a s n o t the constituent authority o f the general c o m m u n i t y or the ultimate c o o r d i n a t ing rule that the c o m m u n i t y had c o m e to recognise, but the p o w e r , rather, o f the ordinary agencies o f g o v e r n m e n t . H e advanced, in other w o r d s , a t h e o r y o f ruler s o v e r e i g n t y . His celebrated principle that s o v e r e i g n t y is indivisible thus meant that the h i g h p o w e r s o f g o v e r n m e n t c o u l d n o t be shared b y separate agents or distributed a m o n g t h e m , but that all o f t h e m had to be entirely concentrated in a single individual or g r o u p . T h i s thesis w a s controversial e v e n as applied to the m o r e consolidated kingships o f France, Spain, and E n g l a n d , and it w a s hopelessly at odds w i t h the constitution o f the G e r m a n E m p i r e and other monarchies o f eastern E u r o p e and Scandinavia. Y e t so seductive w a s the idea o f indivisibility that it remained a celebrated issue a m o n g academic jurists for at least a halfcentury after B o d i n w r o t e . A n d e v e n after the error w a s e x p o s e d , a r o u n d 298 Cambridge Histories Online © Cambridge University Press, 2008

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the end o f the first quarter o f the seventeenth century, it lingered o n in one f o r m or another. In this chapter I shall deal o n l y w i t h the earlier and m a i n phase o f the c o n t r o v e r s y . I shall try to explain h o w B o d i n ' s t h e o r y o f s o v e r e i g n t y c a m e about and h o w his confusion as to indivisibility w a s cleared up in the course o f the debate o n the locus o f s o v e r e i g n t y in the German Empire.

i

B o d i n ' s doctrine and its limitations

T h e idea that concentration o f p o w e r in the ruler is an essential c o n d i t i o n o f the state as such m i g h t seem at first sight to h a v e been absolutist in its inspiration, and B o d i n , w h e n he published the final version o f his political doctrine in 1 5 7 6 , indeed a r g u e d that the k i n g o f France had all the p o w e r that a g o v e r n m e n t c o u l d l e g i t i m a t e l y exercise and that apparent restraints o n r o y a l p o w e r w e r e n o t constitutional requirements, but m e r e re c o m m e n d a t i o n s o f prudence and g o o d g o v e r n m e n t (Franklin 1973, p p . 54ff). Y e t the earlier history o f B o d i n ' s t h o u g h t suggests a s o m e w h a t different genesis. In his Methodus adfacilem historiarum cognitionem (1566), B o d i n w a s n o t an absolutist, or w a s at least evasive o n that subject, and his interest in the t h e o r y o f s o v e r e i g n t y w a s clearly technical and quasiacademic (Franklin 1973, p p . 35flE). In the earliest phase o f his career as an aspiring teacher at the l a w school o f T o u l o u s e , B o d i n had apparently undertaken to identify those p o w e r s o f a s o v e r e i g n that c o u l d n o t also b e held as a right o f office b y ordinary magistrates (Franklin 1973, p p . 23—5). T o say that a magistrate 'held' or 'had' a p o w e r b y his right o f office had been taken, b y m o s t m e d i e v a l jurists, to m e a n that he c o u l d exercise that p o w e r a c c o r d i n g to his o w n discretion and w i t h o u t direct reliance o n the k i n g so l o n g as he remained w i t h i n w h a t e v e r legal limits m i g h t a p p l y . N o t all p o w e r s w e r e or needed to be held this w a y , o f course. T h e public officer m i g h t be acting solely o n delegated p o w e r subject to i m m e d i a t e control. B u t b y m e d i e v a l notions, that sort o f officer w a s little better than a servant. H i g h officers o f state, w h o exercised s o m e degree o f merum, or pure, imperium, held their imperium b y right. A n d since the merum imperium c o u l d include v e r y h i g h p o w e r s o f the state, this c o n c e p t i o n o f the right o f office w a s naturally associated w i t h a decentralised administration. W i t h the g r o w i n g consolidation o f p o w e r in the French and other 1

1.

F o r a n h i s t o r i c a l s u r v e y o f t h e i s s u e of merum

imperium

in m e d i e v a l and p o s t - m e d i e v a l legal theory

g o i n g b a c k t o t h e t h i r t e e n t h c e n t u r y , see G i l m o r e 1 9 4 1 .

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Renaissance monarchies, this v i e w o f office w a s increasingly attacked, and m o s t strenuously o f all b y A n d r e a A l c i a t o , the great Italian legal humanist o f the early sixteenth century, w h o held that the possession o f merum imperium b y right o f office w a s a c o r r u p t i o n o f R o m a n civil l a w , that e v e r y p o w e r in the state, other than (abusive) feudal grants, w a s m e r e l y a right o f exercise derived b y delegation f r o m the prince (Alciato 1582, cols 2gff). T h i s o p i n i o n w a s o b v i o u s l y favourable to r o y a l p o w e r . A n d g i v e n B o d i n ' s constant preference for strong m o n a r c h i c a l authority, one m i g h t h a v e e x p e c t e d h i m to w e l c o m e A l c i a t o ' s v i e w . B u t B o d i n w a s also an erudite and cautious legal craftsman and t h r o u g h o u t his career he constantly attempted to reconcile the n e w idea o f r o y a l d o m i n a n c e w i t h the French j u r i d i c a l tradition o f w h i c h he w a s a great admirer and connoisseur. A g a i n s t A l c i a t o , a c c o r d i n g l y , and the w h o l e tradition o f juridical interpretation in w h i c h he stood, B o d i n held that b y the c u s t o m a r y rule o f public l a w in France, h i g h magistrates c o u l d h o l d the merum imperium b y right o f office at least to the extent o f i m p o s i n g capital punishment. B u t against the m e d i e v a l e x p o n e n t s o f this v i e w , he did n o t include those prerogatives that c o u l d m a k e the magistrate a partner or rival o f his prince. T h e s e c o u l d n o t be 'held', but c o u l d be exercised b y delegation o n l y ( B o d i n 1 9 5 1 b , p p . 1 7 4 - 6 , 1 9 6 1 , p p . 432ft). U n l i k e A l c i a t o and his f o l l o w e r s , a c c o r d i n g l y , B o d i n d i v i d e d the merum imperium into a (minor) part that c o u l d be held b y magistrates and a (major) part held o n l y b y the prince. A n d b y this conservative route he w a s led, ironically, to a n e w and theoretically m o m e n t o u s question as to the character o f s o v e r e i g n t y . H e n o w s o u g h t to determine those p o w e r s that c o u l d not be held b y magistrates, but o n l y exercised, i f the prince w a s to be a c c o u n t e d s o v e r e i g n . A l t h o u g h this topic had sometimes been t o u c h e d u p o n b y other jurists o f the time, B o d i n w a s to treat the question in a m o r e fundamental and systematic w a y than a n y o n e before h i m . H e n o w p r o c e e d e d to derive the necessary rights, or ' m a r k s ' , o f s o v e r e i g n t y f r o m the c o n c e p t o f s u p r e m a c y itself. T h e question that he asked, in other w o r d s , w a s w h a t prerogatives a political authority must h o l d exclusively if it is n o t to a c k n o w l e d g e a superior or equal in its territory. B o d i n ' s first reflections o n this question almost surely g o b a c k to his early career as an academic jurist at the U n i v e r s i t y o f T o u l o u s e ( w h i c h he left in 1559 after failing to secure a permanent appointment). B u t the scope and depth o f his investigation w a s decisively shaped b y a far-reaching m e t h o d o l o g i c a l c o m m i t m e n t that carried h i m w e l l b e y o n d the c o n v e n 300

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tional a p p r o a c h to legal studies. A t s o m e point o f his T o u l o u s a n period, B o d i n c o n c l u d e d that issues o f legal t h e o r y c o u l d n o t be settled in the traditional fashion o f the m e d i e v a l civil l a w y e r s b y appeal to R o m a n n o r m s alone. T h e use o f h i g h p h i l o l o g i c a l technique in the study o f the R o m a n l a w b y the great French school o f legal h u m a n i s m had prepared the w a y for a m e t h o d o l o g i c a l r e v o l u t i o n in w h i c h B o d i n b e c a m e a leading figure. T h e humanists, rejecting the m e d i e v a l style o f scholastic exegesis, had attempted to get b a c k to the original m e a n i n g o f the R o m a n texts, and to r e c o v e r the u n d e r l y i n g system o f the C o r p u s Juris. B u t the further they w e n t , the m o r e critical they b e c a m e o f R o m a n l a w itself. T h e C o r p u s Juris, to list their m a i n complaints, seemed i n c o m p l e t e in m a n y areas, and most especially in public l a w ; Justinian had often been cryptic and inaccurate in representing the best o f R o m a n legal t h o u g h t ; m a n y rules, s o m e o f w h i c h seemed basic to the system, w e r e peculiar to the R o m a n state and obsolete for France; the C o r p u s Juris had n o t been arranged as a logically coherent system, and c o u l d n o t b e reduced to a system because o f its defects and omissions. T h e intellectual authority o f R o m a n l a w w a s thereby shaken, and this had a n u m b e r o f i m p o r t a n t repercussions (Franklin 1963, p p . 36ff). O n e o f these w a s a n e w appreciation o f domestic legal c u s t o m (Franklin 1973, p p . 37fF; cf. K e l l e y , 1970). B u t an additional motif, especially strong in B o d i n , w a s the idea o f r e m e d y i n g déficiences in the system o f R o m a n l a w b y consulting the materials o f universal history (Franklin 1963, p p . 59ff). T h i s in large part w a s the t h e m e o f his Methodus ad facilem historiarum cognitionem. T h e o n l y w a y , says B o d i n in the preface, to construct a truly universal legal science is to c o m p a r e 'all the l a w s o f all, or the m o s t famous, states and to select the best v a r i e t y ' . A f e w years earlier, perhaps w h i l e he w a s still at T o u l o u s e , he had p r o d u c e d a grandiose design for this c o m p a r i s o n w i t h his Juris universi distributio or System of Law in its Entirety, and the Methodus presents a preliminary statement o f his findings for the area o f public l a w in its v e r y l e n g t h y chapter v i . In this fashion an enterprise that v e r y likely started as an e n q u i r y into the specific prerogatives o f the ancient R o m a n e m p e r o r s and the k i n g s o f France w a s transformed into a study o f s o v e r e i g n t y in e v e r y kind o f state. In B o d i n ' s design, the basis for c o m p a r i n g states, and e x p l a i n i n g their schemes o f public l a w , w a s to determine and describe the locus o f s o v e r e i g n t y in each. H e w a s thus required to w o r k o u t c o m m o n principles o f s o v e r e i g n t y that w o u l d a p p l y to democracies and aristocracies as w e l l as monarchies, and to variants o f each o f these in different times and places. 301

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O n e consequence o f this w a s a c o m p r e h e n s i v e and general definition o f the rights o f s o v e r e i g n t y . T h e C o r p u s Juris offered virtually n o t h i n g o n the t h e o r y o f public p o w e r s since it w a s primarily a scheme o f private l a w . A n d the lists o f regalian p o w e r s used in feudal l a w w e r e m a i n l y catalogues o f particular privileges. In B o d i n ' s Methodus, h o w e v e r , the essential rights are distinguished and reduced to five main heads: And so having compared the arguments o f Aristotle, Polybius, Dionysius [of Halicarnassus], and the jurists — with each other and with the universal history of commonwealths — I find that supremacy in a commonwealth consists of five parts. The first and most important is appointing magistrates and assigning each one's duties; another is ordaining and repealing laws; a third is declaring and terminating war; a fourth is the right of hearing appeals from all magistrates in last resort; and the last is the power of life and death where the law itself has made no provision for flexibility or clemency. (Bodin 1951b, pp. 174-5) T h i s classification is n o t quite as m o d e r n as it seems. It b e c o m e s clear in the République that B o d i n thinks o f the legislative p o w e r ( w h i c h he n o w puts first a m o n g the rights o f s o v e r e i g n t y ) as a v e r y general p o w e r to c o m m a n d , so that it implicitly includes all others. H e n c e the m o d e r n distinction b e t w e e n legislation, as the m a k i n g o f a rule, and e x e c u t i o n , as the application o f a rule, is n o t y e t fully grasped, and that confusion w e shall see is costly. A n d y e t B o d i n makes a v e r y i m p o r t a n t , and e v e n decisive, step t o w a r d s an adequate account o f public p o w e r s . A second consequence o f B o d i n ' s c o m p a r a t i v e enterprise w a s his celebrated claim that s o v e r e i g n t y is indivisible, w h i c h he seems to h a v e c o m e to o n l y at this point. In seeking to determine the f o r m o f state for ancient R o m e and certain other classical republics traditionally reputed m i x e d , B o d i n w a s finally led to ask, in strictly juridical terms, for the locus o f s o v e r e i g n t y in a m i x e d constitution — in a constitution, that is, w h e r e i n the s o v e r e i g n w a s said to be c o m p o u n d e d o f m o n a r c h y , aristocracy, and d e m o c r a c y , or any t w o o f these. T h u s put, the question w a s c o m p l e t e l y n e w , since P o l y b i u s , and other e x p o n e n t s o f the m i x e d constitution, t h o u g h t o f it m o r e as a balance o f effective influence than as a legal formula for partnership in s o v e r e i g n t y . A n d B o d i n ' s answer w a s that, b e y o n d the three simple forms o f state, n o fourth had existed, or c o u l d e v e n be i m a g i n e d ' ( B o d i n 1 9 5 1 b , p. 1 7 7 ) . T h e difficulty w i t h a m i x e d constitution, in other w o r d s , w a s n o t m e r e l y prudential or political. A s B o d i n saw it, the unity o f a legal system seemed 302

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logically to require the unification o f p o w e r in a single ruler or single ruling g r o u p (Franklin 1 9 7 3 , p p . 23ÍÍ). T h i s o p i n i o n is, o f course, mistaken. A p a r t f r o m federal decentralisation, w h i c h I leave aside for the purpose o f this chapter, a constitution can be m i x e d either b y sharing or b y distribution. W h e r e s o v e r e i g n t y is shared, the o u t c o m e is a c o m p o u n d p o l y a r c h y , the m e m b e r s o f w h i c h , each retaining its identity w i t h i n the w h o l e , are the k i n g , the senate, and the people, or any t w o o f these, w h o m a y participate w i t h different w e i g h t s in different g o v e r n m e n t a l functions. T h e idea o f such a c o m p o u n d is not a l w a y s easy to i m a g i n e . T h e President o f the U n i t e d States, for e x a m p l e , is, b y virtue o f his v e t o , a m e m b e r o f the legislature a l o n g w i t h the t w o houses o f C o n g r e s s . Y e t it is hard to i m a g i n e an act o f legislation as the ' w i l l ' o f such a c o m p l e x entity, and m o r e n o r m a l to think o f it as an act o f C o n g r e s s subject, w i t h i n certain limits, to a p p r o v a l b y the President. W h e r e the constitutional principles o f m i x t u r e are w e l l understood, this w a y o f speaking does not lead to theoretical confusion. B u t in the sixteenth century the m i x e d constitution had n o t yet been e x p l o r e d j u r i d i c a l l y , and w h e r e it o c c u r r e d it w a s the l e g a c y o f traditional restraints and ad hoc adaptations that w e r e n o t reflected in the legal t e r m i n o l o g y . In the limited monarchies o f E u r o p e , the k i n g w a s still addressed as s o v e r e i g n e v e n t h o u g h he m i g h t require the consent o f the estates or other b o d y for the c o n d u c t o f s o m e o f his affairs, and c o m m e n t a t o r s o n the ancient R o m a n republic often passed o v e r the traditional claims o f the senate to a legislative veto. H e n c e jurists o f the sixteenth century w e r e readily misled. T h e m i x e d systems o f their o w n time or o f the past w e r e hard to grasp as authentic partnerships in s o v e r e i g n t y , w h i l e the mixtures they i m a g i n e d and t r i u m p h a n t l y p r o v e d to be impossible w e r e irrelevant. B o d i n , for e x a m p l e , assumes that the o n l y sense in w h i c h a constitution m i g h t be m i x e d b y sharing w o u l d be to g i v e each o f the partners the entirety o f p o w e r simultaneously, w h i c h is o f course j u r i d i c a l l y absurd: But to institute the dominion of one, together with that of the few, and also with that o f the many, simultaneously, is not only impossible but cannot even be imagined. For if sovereignty is by its nature indivisible, as w e have shown above, h o w can it be allotted to one and to all at the same time? The first mark o f sovereignty is to give law to all in general and to each in particular, and to command them. But will the citizens yield to being bound against their will when they, in turn, are empowered to coerce the person w h o commands them? If they 303

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willingly obey their majesty collapses; and yet if both parties refuse to be commanded, and there is no one obeying or commanding, it will be anarchy rather than a commonwealth, which is worse than the crudest tyranny. 2

A second w a y o f m i x i n g constitutions (as distinct f r o m sharing) is b y distributing the rights o f s o v e r e i g n t y to different partners separately. T h i s entails express or i m p l i e d c o o r d i n a t i n g rules b y w h i c h the p o w e r s thus separated, and a b o v e all the legislative p o w e r , are adjusted to each other's functions. It supposes, m o r e specifically, that the legislature, a l t h o u g h supreme in m a k i n g rules, cannot a p p l y t h e m and cannot c o n t r o l directly that authority w h i c h is constitutionally charged w i t h e x e c u t i o n . B u t this possibility w a s also difficult to recognise at the time that B o d i n w r o t e . In the best k n o w n e x a m p l e o f ' m i x t u r e ' , w h i c h w a s the classical R o m a n republic, the highest forms o f e x e c u t i v e and j u d i c i a l p o w e r w e r e j o i n e d w i t h the legislative in the people, so that it w a s technically n o t m i x e d in this respect. In E u r o p e a n monarchies e x e c u t i v e and legislative p o w e r w e r e linked in the person o f the k i n g . Indeed, e v e n L o c k e , m u c h later on, w h o r e c o m m e n d e d the separation o f e x e c u t i v e and legislative p o w e r and had an e x a m p l e o f it in the English constitution, still t h o u g h t that the f o r m e r w a s naturally subject to the latter, and that the e x e c u t i v e independence o f the English k i n g h i n g e d on his legislative v e t o . W i t h o u t that v e t o , L o c k e believed, the t w o houses o f parliament w o u l d be entitled to m a k e and u n m a k e executives at w i l l ( L o c k e i960, p p . 4 1 4 - 1 5 ) . B o d i n ' s attempt to s h o w that distribution must be futile as a scheme o f m i x t u r e thus seems to start b y h o l d i n g that all other p o w e r s w o u l d be in conflict w i t h the p o w e r to m a k e l a w . A n d as t h o u g h to c o m p l i c a t e the issue, he adds, alongside the legislative, another all-inclusive p o w e r (as B o d i n interprets it), w h i c h is the right o f taking oaths o f fealty. T h e

2.

B o d i n 1 5 8 6 , 1 1 . 1 , p . 1 7 6 . T h e p h r a s e ' a s w e h a v e s h o w n a b o v e (ut ante a demonstravimusY

in this

q u o t a t i o n p r o b a b l y refers t o I.IO, especially p p . 1 4 9 - 5 0 , w h e r e B o d i n , f o l l o w i n g B a l d u s a n d C y n o d a P i s t o i a , o b s e r v e s p o r t e n t o u s l y t h a t a s o v e r e i g n c a n n o t s h a r e h i s p o w e r w i t h a s u b j e c t a n d still r e m a i n a s o v e r e i g n . T h e i m p l i c a t i o n s e e m s t o b e t h a t s h a r i n g s o m e h o w c a n c e l s s o v e r e i g n t y as s u c h , as o p p o s e d t o a l t e r i n g o n l y t h e p e r s o n s w h o h o l d it. T h i s i n t e r p r e t a t i o n is c o n f i r m e d b y t h e p a s s a g e just

quoted.

In t h e F r e n c h v e r s i o n , t h e o r i g i n a l o f w h i c h g o e s b a c k t o 1 5 7 6 , t h e r e s u l t o f t h i s a t t e m p t t o m i x b y s h a r i n g is d e s c r i b e d as d e m o c r a c y . ' A n d w h a t i n d i v i d u a l c a n g i v e t h e l a w , i f h e is h i m s e l f c o n s t r a i n e d t o t a k e it f r o m t h o s e t o w h o m h e g i v e s it? T h e c o n c l u s i o n f o l l o w s n e c e s s a r i l y t h a t , i f n o one

in particular

has

the

power

to

make

c o m m o n w e a l t h is d e m o c r a t i c ' République,

law, and

the

power

b e l o n g s t o all t o g e t h e r ,

11.1 ( 1 9 6 1 , p . 2 5 4 ) . O n e p o s s i b l e i n t e r p r e t a t i o n

the

o f this

c r y p t i c p a s s a g e is s u g g e s t e d b y A r n i s a e u s ' c o m m e n t s o n s h a r i n g , b e l o w p . 3 2 1 . T h e k e y c l a u s e i n B o d i n ' s p a s s a g e w o u l d t h e n b e ' . . . [if] t h e p o w e r b e l o n g s t o a l l . . . ' a n d t h e e r r o r w o u l d t h e n c o n s i s t in n o t seeing that 'all' d o n o t participate equally or e v e n directly, that the p e o p l e and the aristocracy v o t e as

corporations.

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b r e a k d o w n o f the attempted distribution f o l l o w s f r o m the conflict b e t w e e n these t w o p o w e r s , w i t h o u t e x c l u d i n g resistance also arising f r o m the independent claims o f all the rest. B u t n o matter h o w the picture is construed, it is evident e n o u g h that B o d i n is innocent o f any n o t i o n o f constitutional coordination o f c o - e q u a l parts. Let us produce, if that is possible, or at least let us imagine, a commonwealth in which the people would have the power to create magistrates, dispose of the public treasury, and to decide on life and death; while the nobility would be assigned the right of making laws, deciding war and peace, and levying taxes; and the citizens, collectively as well as individually, would be obliged to render an oath of fealty or homage to the king without exception of any other person, and the king, w h o is above all the other magistrates, would hear appeals in the last instance. B y this method the rights o f sovereignty will seem to be divided three ways: - the aristocrats and nobles will claim a part, the democrats and commoners a part, and the king will also claim a part - as a result of which a blend of royal power, aristocracy and democracy will seem to exist. But I deny that this ever was or can be done. For the aristocrats and nobility, w h o have the supreme power of making law - the power, that is, of laying commands and prohibitions on everyone - will use it to control the commoners and the prince, and will forbid homage to be rendered to the prince, while the prince will have bound everyone to swear to him and will permit obedience to no one but himself. And as each will vigorously wish to defend his o w n rights and not give up those he would assume, this arrangement will be incompatible with the nature of government in that the same actor that has the highest right of command would be forced to obey another w h o is yet his subject. This makes it clear that where the rights of sovereignty are divided between the prince and his subjects, a state o f confusion must result in which the issue o f supreme authority will always be decided by the force o f arms until the highest power is in one man, in a few, or in the entire body of citizens. 3

B o d i n w a s thus confused about indivisibility, his greatest p r o b l e m s c o m i n g in t r y i n g to s h o w that s o v e r e i g n t y c o u l d n o t be shared. His attempts to s h o w that it w a s u n d i v i d e d in the R o m a n and other constitutions c o m m o n l y regarded as m i x e d depended o n a certain misunderstanding o f their institutions. H e failed to recognise the i n d e p e n d ent legislative function o f the senate w h i c h thus shared p o w e r w i t h the p e o p l e in the earlier phase o f the R o m a n constitution, and o v e r l o o k e d the p o w e r s o f analogous councils in other ancient and m o d e r n city-states. O n 3-

B o d i n 1 5 8 6 , 1 1 . 1 , p . 184. S e e also the s e n t e n c e w h i c h f o l l o w s d i r e c t l y after the passage o n the s h a r i n g o f s o v e r e i g n t y p r e v i o u s l y q u o t e d : ' B u t i f the p e o p l e are g i v e n the p o w e r o f m a k i n g the l a w s a n d creating the magistrates,

w h i l e all o f the r e m a i n i n g

p o w e r s are a l l o w e d to the senate or

the

m a g i s t r a t e s , it w i l l h a v e t o b e a c k n o w l e d g e d t h a t t h e s t a t e is p o p u l a r . F o r t h e p o w e r g i v e n t o t h e s e n a t e a n d t h e m a g i s t r a t e s is e n t r u s t e d t o t h e m o n l o a n a n d c a n b e t a k e n b a c k a t t h e command'

( 1 5 8 6 , 11.1, p . 1 7 6 ) .

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the other hand, in treating c o n t e m p o r a r y E u r o p e a n kingships, the thesis o f u n d i v i d e d s o v e r e i g n t y w a s sustained b y a v o i d i n g any clear definitions o f the scope o f public p o w e r . O n l y thus c o u l d B o d i n account for the constitutional realities o f the French kingship w i t h o u t a c k n o w l e d g i n g that s o v e r e i g n t y w a s shared. For despite the centralisation and g r o w t h o f r o y a l p o w e r in the Renaissance, m e d i e v a l notions o f limited g o v e r n m e n t still lingered o n in French constitutional opinion. C o m m e n t a t o r s in the main tradition g o i n g back to C l a u d e de Seyssel, held that the k i n g o f France, a l t h o u g h s o v e r e i g n and the source o f all authority, w a s e x p e c t e d to act a c c o r d i n g to the l a w and not to c h a n g e it w i t h o u t the advice o f s o m e semi-independent council like the h i g h court, or parlement o f Paris (Seyssel 1981, pt 1, chs. viii—xii, p p . 49—58). B o d i n not o n l y accepted these restraints o n r o y a l p o w e r , but g a v e t h e m e v e n greater scope and w e i g h t . H e held that a k i n g o f France c o u l d n o t c h a n g e well-established l a w w i t h o u t the consent o f the provincial or general estates, and that decrees in conflict w i t h that l a w c o u l d be refused enforcement b y the parlements (Franklin 1973, p p . 34ft). T h e admission o f these limitations seems at first sight to b e in glaring conflict w i t h B o d i n ' s claim that s o v e r e i g n t y u n d i v i d e d w a s vested in the k i n g . B u t w h e n he w r o t e the Methodus, B o d i n w a s implicitly w o r k i n g w i t h a concept o f limited s u p r e m a c y . A k i n g ' s authority, a c c o r d i n g l y , c o u l d be s o v e r e i g n yet less than absolute. H e c o u l d be b o u n d b y fundamental l a w in the broader sense o f well-established c u s t o m , w h i c h he c o u l d not c h a n g e w i t h o u t consent. B u t i f his regular p o w e r s w e r e n o r m a l l y sufficient for the c o n d u c t o f affairs and if n o t h i n g c o u l d be d o n e apart f r o m his initiative, he seemed nonetheless to be supreme. B y such criteria a p r o p e r m o n a r c h like the k i n g o f France c o u l d be distinguished f r o m the d o g e o f V e n i c e or the e m p e r o r o f G e r m a n y , w h o w e r e little m o r e than figureheads, and m i g h t e v e n be deposed for cause. T h e r e is a certain c o m m o n sense to this relaxed c o n c e p t i o n o f s u p r e m a c y , and it m i g h t be r o u g h l y w o r k a b l e . B u t as the use o f it in later writers s h o w s , it is ultimately t o o flexible. T h e distinction b e t w e e n fundamental and ordinary l a w ( w h i c h parallels the distinction b e t w e e n constituent and ordinary s o v e r e i g n t y ) is legitimate, and indispensable, in constitutional t h e o r y . B u t w h e r e the scope o f ' f u n d a m e n t a r b e c o m e s t o o indefinite and broad, the utility o f s o v e r e i g n t y as a juridical concept is u n d e r m i n e d . B o d i n w o u l d h a v e done better, therefore, to h a v e defined the ruler's s o v e r e i g n t y as absolute (except w i t h respect to the l a w o f nature and 4

4.

W h i c h w a s o n c e m y o w n o p i n i o n : F r a n k l i n 1 9 7 3 , p p . 3 8 - 4 0 . B u t see G i e r k e 1 9 6 6 , p . 1 6 1 .

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fundamental l a w m o r e n a r r o w l y defined), and h a v e c o n c e d e d that its functions w e r e d i v i d e d a m o n g the k i n g , the parlements, and the estates. B u t the incoherence in B o d i n ' s t h e o r y o f s o v e r e i g n t y w a s to be eliminated in a different w a y . B y 1 5 7 6 , w h e n his République appeared, he had c o m e to the conclusion that s o v e r e i g n t y w a s absolute, b y w h i c h he m e a n t that a truly s o v e r e i g n authority must h a v e all the p o w e r that a state c o u l d l e g i t i m a t e l y exercise. T o this extent the clarification o f his doctrine w a s reasonable e n o u g h . B u t since B o d i n continued to insist that s o v e r e i g n ty w a s indivisible, he c o n c l u d e d , necessarily b u t w r o n g l y , that there had to exist in e v e r y c o m m o n w e a l t h a single individual or g r o u p in w h i c h the entire p o w e r o f the state w a s concentrated. F u r t h e r m o r e , since he had n e v e r d o u b t e d that the k i n g o f France w a s truly s o v e r e i g n , it n o w seemed utterly clear that the k i n g o f France w a s absolute. A n d this applied to k i n g s o f E n g l a n d and o f Spain as w e l l . B o d i n w a s p r o b a b l y led to this revised idea o f s o v e r e i g n t y b y t w o considerations. O n e , almost surely, w a s further reflection o n the l o g i c o f indivisibility, a thesis w h i c h had earlier been m o r e or less intuitive. H e must n o w h a v e recognised that i f there w e r e legitimate acts o f g o v e r n a n c e w h i c h a k i n g c o u l d n o t p e r f o r m w i t h o u t the consent o f the estates or parlement then these consenting agents must h a v e a share in his authority. H e n c e , consistent w i t h the principle o f indivisibility, he had to c o n c l u d e that s o v e r e i g n t y w a s absolute, that the exercise o f supreme authority c o u l d n o t b e restrained w i t h i n its territory b y any independent agent. B u t B o d i n w o u l d h a v e been c o n f i r m e d in this conclusion b y another, m o r e political, c o n c e r n w i t h the issue o f resistance to a t y r a n t - k i n g . A t the time o f the Methodus he had m a n a g e d to a v o i d this question. T e n years later, h o w e v e r , in the midst o f recurrent civil w a r s , the right o f resistance w a s p u b l i c l y asserted b y the o p p o n e n t s o f the c r o w n , and B o d i n , alarmed, construed it as a recipe for a n a r c h y . B u t the v e r y k e y to resistance doctrine w a s the set o f restraints o n r o y a l p o w e r that B o d i n had earlier been inclined to admit. H e must n o w h a v e seen, at least intuitively, that b i n d i n g restraints u p o n the ruler i m p l i e d s o m e sense in w h i c h the c o m m u n i t y w a s h i g h e r than the k i n g and w o u l d h a v e p o w e r to act against a tyrant. It w o u l d h a v e been seen to f o l l o w , therefore, that the absolute p o w e r o f the k i n g o f France and o f e v e r y other p r o p e r s o v e r e i g n w a s n o t o n l y an analytic truth but the v e r y foundation o f political stability ( B o d i n 1 9 6 1 , Preface). 5

T h e o u t c o m e , a c c o r d i n g l y , o f B o d i n ' s revised idea o f s o v e r e i g n t y w a s 5.

O n F r e n c h r e s i s t a n c e t h e o r y s e e F r a n k l i n (eel.) 1 9 6 9 ; a n d s e e S k i n n e r 1 9 7 8 , n , c h . 7 - 9 , o n t h e m o r e g e n e r a l d o c t r i n a l a n d political setting for assertions o f a r i g h t o f resistance a n d r e v o l u t i o n in the period.

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systematic elimination, in the République, o f all enforceable limitations on the k i n g ' s authority. T h i s is n o t to say that there w e r e n o restrictions morally. B o d i n strenuously insisted that absolute kings w e r e subject to the l a w o f nature - that they w e r e b o u n d to respect the liberty and p r o p e r t y o f free subjects, and that they w e r e o b l i g a t e d b y contracts entered into w i t h private citizens. B o d i n e v e n m a n a g e d to h o l d that, e x c e p t in emergencies, n e w taxation required the consent o f the estates i f it w a s n o t to be a m e r e taking o f the subject's p r o p e r t y . B u t for violations o f the l a w o f nature the k i n g w a s answerable to G o d alone, and w a s n o t required, in construing it, to h a v e a p p r o v a l f r o m the courts or the estates. B o d i n b e l i e v e d that a prudent k i n g w o u l d heed the remonstrations o f the parlement and he r e c o m m e n d e d that the estates be frequently consulted. B u t these w e r e in n o w a y b i n d i n g obligations. T h e y w e r e m e r e r e c o m m e n d a t i o n s o f h u m a n i t y and prudence (Franklin 1973, p p . 79ff; B o d i n 1 9 6 1 , p p . i49ff). B o d i n continued to b e l i e v e that a k i n g w a s also ' b o u n d ' b y c u s t o m a r y fundamental l a w . B u t this d o m a i n o f l a w , w h i c h had been left v a g u e l y b r o a d in the Methodus, w a s n o w n a r r o w e d d o w n to t w o arrangements one prescribing the rule o f succession to the throne, the other f o r b i d d i n g alienation o f the r o y a l d o m a i n w i t h o u t consent. B o t h rules w e r e designed to k e e p the state intact, rather than to limit the r o y a l right o f g o v e r n a n c e . T h e i r guarantee, m o r e o v e r , w a s s i m p l y that attempted alterations or alienations b y a sitting k i n g w o u l d be d i s a l l o w e d u p o n his death. H e n c e neither the l a w o f nature n o r fundamental l a w c o u l d justify a challenge to absolute authority or resistance to a sitting k i n g (Franklin 1 9 7 3 , p p . 70—9). T h i s systematic elimination o f b i n d i n g institutional restraints w a s a distortion o f constitutional practice. B u t g i v e n the elements o f a m b i g u i t y in the French tradition, the break w a s n o t easy to detect. T h e o b l i g a t i o n o f the k i n g to k e e p existing l a w had a l w a y s been presented tactfully. In the 15 60s the o b t a i n i n g o f consent before c h a n g i n g well-established l a w w a s considered to b e the n o r m a l and u n v a r y i n g practice, b u t the i n v o c a t i o n o f absolute authority had n o t b e e n totally e x c l u d e d . T h e right o f the estates had n o t been specified precisely in the older c o m m e n t a t o r s ; and there w a s e v e n s o m e uncertainty attaching to the status o f the parlements (see C h u r c h 1 9 4 1 , ch. 3). T h e y did n o t quite assert a v e t o o n r o y a l legislation, so m u c h as a right o f c o n t i n u e d remonstration until such time as their complaints w e r e heeded. H e n c e B o d i n ' s c h a n g e in 1576 w o u l d n o t h a v e been o b v i o u s to m a n y o f his readers, and B o d i n h i m s e l f must h a v e regarded his position in the République as a m e r e clarification o f a doctrine he had a l w a y s held. A s B o d i n presented it, h o w e v e r , the idea o f absolute kingship w o u l d n o t 308

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h a v e seemed threatening to m o d e r a t e contemporaries, and m i g h t h a v e e v e n been attractive. In one w a y or another he had m a n a g e d to account for almost all the limitations that had been traditionally considered indispen sable. A n d a l t h o u g h he had u n d e r m i n e d the legal force o f checks u p o n the k i n g , he still e x p e c t e d t h e m to operate as in the past. H e confidently believed that the complaints and administrative pressures o f the magistrates w o u l d restrain i m p u l s i v e rulers and he optimistically e x p e c t e d that the political value o f the estates w a s sufficient to assure their consultation. B o d i n ' s account o f s o v e r e i g n t y w o u l d thus h a v e appeared to be c o m p a t i b l e w i t h civilised and l a w - a b i d i n g g o v e r n m e n t . Y e t it seemed to p r o v i d e an ironclad defence against any justification o f resistance f r o m b e l o w , w h i c h w a s to r e c o m m e n d it strongly in the troubled circumstances o f the later sixteenth century ( B o d i n 1 9 6 1 , 11.5, pp. 2976*).

ii

T h e question o f s o v e r e i g n t y in the constitution o f the G e r m a n E m p i r e

H e n c e , despite its basic error, B o d i n ' s t h e o r y o f s o v e r e i g n t y w a s received not o n l y in France b u t in Spain and E n g l a n d also, w h e r e it w a s e v e n less consistent w i t h constitutional realities. In the e p o c h o f resurgent r o y a l i s m that f o l l o w e d the religious w a r , it w a s neither safe n o r patriotic to question the l o g i c o f s o v e r e i g n t y . Jurists w h o continued to insist o n the b i n d i n g force o f limitations generally abstained f r o m challenge. T h e y simply d o c u m e n t e d limits o n the k i n g w h i l e maintaining an attitude o f reverence, and catalogued the legal precedents w i t h o u t speculation on the locus and character o f s o v e r e i g n t y . It w a s o n l y in the G e r m a n E m p i r e , w h e r e the m o n a r c h w a s universally and e v e n officially a c k n o w l e d g e d to be limited, that B o d i n ' s central thesis posed an inescapable challenge to academic jurisprudence. A n d e v e n here the issue w a s n o t clearly j o i n e d until the first decade o f the seventeenth century. B e f o r e this time the o n l y k n o w l e d g e a b l e answer to B o d i n seems to h a v e c o m e f r o m the French jurist, V i n c e n t C a b o t , w h o briefly yet lucidly set forth four formulas b y w h i c h a m i x e d constitution c o u l d be instituted. I shall not pursue these points further, since it is enough to have shown that there can be a mixed state and that it can come about in four ways, as is evident from what I have said. First, if one partner has one kind of supreme power, and another another; as when the king may constitute magistrates at his discretion, the aristocrats decide as to war and peace, and the people make the laws. Next, if they [all] have the same power but not with respect to the same persons, as in the 309

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R o m a n republic where, as I said, the punishment of crimes committed in Italy was in the senate if they were done by provincials and in the people if by citizens. Further, if they [all] have the same power over the same persons, but one cannot act without the other; as if the prince could not establish magistrates, make law or complete any other act of supreme power without the senate and the people. Last, if one can do some things alone, and cannot do other things without consent, while the others alone cannot do anything. (Cabot 1752, p. 623) Y e t this first, v e r y p r o m i s i n g attempt w a s destined to h a v e little influence. A p a r t f r o m a passing reference to P o l a n d , there is n o c o m m e n t o n any E u r o p e a n m o n a r c h y that m i g h t h a v e sparked a c o n t r o v e r s y . A l m o s t all o f the illustrations are d r a w n f r o m ancient R o m e . C a b o t , furthermore, does not diagnose the basis o f B o d i n ' s confusions, or offer an alternative t h e o r y o f s o v e r e i g n t y , w h i c h alone w a s calculated to dispel the belief in indivisibility. C a b o t , in short, w a s n o t y e t part o f a c o n t i n u i n g debate; his ideas w e r e n o t d e v e l o p e d further b y h i m s e l f or noted, e x c e p t occasionally, b y later writers. A m o n g G e r m a n writers, o n the other hand, the issue raised b y B o d i n w a s m o r e i m m e d i a t e and urgent. T h e e m p e r o r w a s m o r e drastically restricted in his p o w e r than any o f the k i n g s o f western E u r o p e . Political p o w e r w a s decentralised a m o n g the individual 'estates' o f the e m p i r e — most epecially the Electors and the territorial princes, but also the cities w h i c h held directly o f the e m p e r o r . A n d largely to guarantee these local privileges, limitations o n the e m p e r o r b y institutions representing the estates w e r e extensive and j e a l o u s l y enforced. N o t o n l y w a s the e m p e r o r b o u n d to m a k e n o l a w w i t h o u t the consent o f the estates assembled in a diet, but s o m e o f his highest e x e c u t i v e and judicial functions w e r e j o i n t l y exercised w i t h representatives o f the estates in general or w i t h the S e v e n Electors w h i c h , as the most preeminent estates, often acted o n b e h a l f o f all. A p p o i n t m e n t to vacant fiefs o f the e m p i r e thus required consent o f the estates, and cases in w h i c h an estate w a s a party under imperial l a w w e r e heard not in the prince's court but in the h i g h court o f the e m p i r e in w h i c h the estates shared jurisdiction w i t h the e m p e r o r . M o s t o f these arrange ments, a l o n g w i t h others, w e r e recorded in capitulations w h i c h had been undertaken b y emperors at the time o f their election and w h i c h thus afforded authoritative texts o f fundamental l a w . T h e recesses, or o r d i n ances, w h i c h e m b o d i e d the legislation agreed to in a diet w e r e often enacted in the n a m e o f estates together w i t h the e m p e r o r . 6

6.

T h e t e r m 'estates' in G e r m a n u s a g e often refers to the i n d i v i d u a l s h a v i n g i n d e p e n d e n t p o w e r s in the e m p i r e , a l t h o u g h s o m e t i m e s a l s o t o g r o u p s o f i n d i v i d u a l s h a v i n g a c o m m o n s t a t u s (as i n ' t h r e e e s t a t e s ' ) . In w h a t f o l l o w s t h e p r i m a r y m e a n i n g w i l l u s u a l l y b e c l e a r f r o m t h e c o n t e x t .

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In the sixteenth century, furthermore, these limitations w e r e generally accepted b y the legal c o m m e n t a t o r s . It is sometimes suggested in the secondary literature that opinions on the status o f the e m p e r o r , w h o w a s regularly a C a t h o l i c H a b s b u r g , w e r e d i v i d e d a l o n g confessional lines — that C a t h o l i c s tended to m a g n i f y the office w i t h the Calvinists tending to be m o r e militant on the rights o f the estates and the Lutherans h e w i n g to a conciliatory m i d d l e course. S u c h differences n o d o u b t existed o n the level o f attitudes and p r o g r a m m e s . B u t as to the basic facts o f the G e r m a n constitution there seems to h a v e been little disagreement, at least a m o n g the m o r e e m i n e n t and influential legal c o m m e n t a t o r s . Since all o f t h e m w e r e either professors at territorial universities or councillors to territorial princes and imperial cities, or b o t h o f these at once, they w e r e hardly inclined to question the rights o f the estates. In the first t w o decades o f the seventeenth century, their accounts o f constitutional restraints, n o t o n l y in outline but also in detail, w e r e pretty m u c h the same. A l l agreed, m o r e o v e r , that an e m p e r o r w h o defied restraints c o u l d be f o r m a l l y deposed for t y r a n n y . T h e r e m o v a l o f W e n c e s l a s in 1400 w a s generally taken w i t h o u t question as a precedent. Y e t these same c o m m e n t a t o r s w e r e b y n o means w i l l i n g to e m b r a c e B o d i n ' s conclusion that, strictly speaking, the G e r m a n E m p i r e w a s n o l o n g e r a m o n a r c h y in any sense at all. B e g i n n i n g w i t h the G o l d e n B u l l and then w i t h various electoral capitulations o f the fifteenth century, the e m p e r o r , a c c o r d i n g to B o d i n , had b e c o m e utterly subject to the assembled estates, w h i c h , h a v i n g acquired all the legislative p o w e r , c o u l d c o m m a n d the l a w as they saw fit and depose the e m p e r o r i f he p r o v e d u n w i l l i n g to c o m p l y . T h e e m p e r o r still retained the titles and h o n o u r s o f a k i n g . B u t the G e r m a n E m p i r e , like the k i n g d o m s o f D e n m a r k , S w e d e n , and P o l a n d , w a s neither a m o n a r c h y , n o r y e t a m i x e d constitution, b u t a principate. T h e prince in these systems w a s but the first citizen and chief magistrate o f an aristocratic state, w h o w a s p r o p e r l y c o m p a r e d w i t h the d o g e o f V e n i c e , n o t a s o v e r e i g n ruler like the k i n g o f France ( B o d i n 1961,11.6, p p . 32 iff, 11.1, p p . 262, 270). G e r m a n jurists and humanists w r i t i n g around 1600, h o w e v e r , w e r e n o t y e t ready to m a k e a cipher o f the e m p e r o r . T h e territorial estates still l o o k e d to the e m p i r e for their c o m m o n defence and for the settlement o f disputes a m o n g t h e m , for w h i c h purpose the e m p e r o r ' s initiative w a s needful, since the diet w a s primarily an instrument o f limitation rather than o f g o v e r n a n c e . S o m e independence o f p o w e r in the e m p e r o r thus seemed residually useful; and in an age o f resurgent r o y a l i s m m o n a r c h i c a l status for the e m p e r o r seemed also to be requisite for G e r m a n d i g n i t y . H e n c e , 311 Cambridge Histories Online © Cambridge University Press, 2008

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B o d i n ' s equation o f the e m p e r o r and the d o g e o f V e n i c e w a s offensive to patriotic and feudal sensibilities. N o t all the c o m m e n t a t o r s o f all the different regions w e r e equally sensitive in this respect, but n o n e had reason to defend B o d i n , w h i l e m o s t had reason to o p p o s e h i m . Indeed, w i t h the o n e e x c e p t i o n o f H e n n i n g Arnisaeus, and that o n l y partial, all the leading writers o f the early 1600s insisted that the G e r m a n e m p e r o r w a s a true m o n a r c h in s o m e sense or another. B y thus asserting b o t h m o n a r c h y and the right o f the estates, the G e r m a n s w e r e d r a w n into conflict w i t h B o d i n ' s theses o n the indivisibility o f s o v e r e i g n t y . T h e constitutional circumstances f a v o u r i n g such a c o n frontation w e r e also present in other monarchies o f central and n o r t h e r n E u r o p e , w h i c h B o d i n had also characterised as principates. B u t it w a s o n l y in G e r m a n y that an intellectual culture existed w h i c h f a v o u r e d theoretical elaboration o f the issues. T h e first t w o decades o f the seventeenth century m a r k e d the i n t r o d u c t i o n o f schools o f public l a w in various sections o f the e m p i r e . B e g i n n i n g a b o u t 1600 a mass o f brochures, dissertations, and treatises b e g a n to appear o n politics and public l a w in general and G e r m a n public l a w particularly, in w h i c h the analysis o f s o v e r e i g n t y w a s inevitably a central t o p i c . B y the m i d d l e 1620s, as w e shall see, a satisfactory t h e o r y o f m i x e d constitutions w a s finally presented (see b e l o w p p . 323fi). B u t this w a s o n l y after m u c h confusion and a n u m b e r o f false starts, a r e v i e w o f w h i c h w i l l help to indicate the difficulties o f the p r o b l e m and the i m p o r t a n c e o f its resolution. T h u s Johannes Althusius, a l t h o u g h k n o w n as a critic o f B o d i n , endorsed his v i e w o n indivisibility. B o d i n ' s real error, for Althusius, w a s his attribution o f absolute p o w e r to the ruler, w h i c h the latter rejected as b o t h i m m o r a l and inaccurate. A n absolute p o w e r , he agreed, c o u l d indeed be found in e v e r y c o m m o n w e a l t h . B u t for Althusius, here as so often transmitting the m o n a r c h o m a c h position, that p o w e r w a s inalienably vested in the people and w a s held b y the ruler o n l y as a delegated p o w e r subject to conditions. T h i s distinction b e t w e e n the constituent p o w e r o f the p e o p l e and the ordinary p o w e r o f the ruler, or, as it w o u l d soon be called, b e t w e e n real and personal majesty, w a s an a d v a n c e in the t h e o r y o f s o v e r e i g n t y . B u t it did n o t dispose o f the issue o f indivisibility. For w h e r e , 7

7.

O n t h e d e v e l o p m e n t o f s c h o o l s o f p u b l i c l a w i n t h i s p e r i o d , t h e c l a s s i c a l a c c o u n t is S t i n t z i n g 1 8 8 0 - 4 , i . i 5 . 4 f T . A b r i e f b u t e x c e l l e n t r e c e n t a c c o u n t is H o k e 1 9 6 8 , p p . 1 7 - 3 9 . F o r t h e h i s t o r y o f d o c t r i n e t h e c l a s s i c a l a c c o u n t is S t i n t z i n g 1 8 8 0 - 4 , n . 1 7 ; G i e r k e 1 9 6 6 passim; concise m o d e r n

s u r v e y see H o k e

and Gierke 1957. For a

1968, p p . 5 4 - 9 3 , 1 5 2 - 6 4 . A full t r e a t m e n t o f the h i s t o r y

d o c t r i n e s o f s o v e r e i g n t y i n G e r m a n t h o u g h t is G r o s s 1 9 7 3 , c h s . 1 - 5 .

312

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of

Sovereignty

and the mixed

constitution

as in G e r m a n y , the prince w a s limited b y l a w , he required the consent o f the estates not o n l y for changes in the constitution, but for ordinary acts o f legislation, f r o m w h i c h it f o l l o w e d , o n Althusius' o w n account, that the f o r m o f state, or personal majesty, w a s m i x e d . A n d indeed w h e n Althusius c a m e to consider 'the forms o f supreme magistrate' in the v e r y last chapter o f his treatise, he w a s b o u n d to admit that the G e r m a n E m p i r e , like the French m o n a r c h y , contained an element o f aristocracy. Y e t he w a s still u n w i l l i n g , or perhaps unable, to understand such a kingship as prevailed in G e r m a n y as a m i x e d constitution, and felt justified in calling it a m o n a r c h y since that w a s the c o m p o n e n t w h i c h he t o o k to be p r e d o m i n a n t . Therefore, the kingdom of Germany or of France is a monarchy, even though the power o f the emperor or king is limited by the high court (parlamento) and the councils o f the realm. I have not denied this [monarchical status] in ch. 14 as Arnisaeus thinks, in his Doctrina Politica, ch. 8. For even though there is something of aristocracy in this French and German monarchy, or kingdom, that does not mean that it ceases to be a monarchy. For the forms o f commonwealth are to be judged from the preeminent, prevailing, and predominant part. (Althusius 1932, ch. 39, p. 404) Institutional restraints u p o n the k i n g are thus treated as moderations o f the r o y a l principle rather than as alterations o f the f o r m . In practice n o systems ever is, or can be, pure, and all three c o m p o n e n t s o f m o n a r c h y , aristocracy, and d e m o c r a c y w i l l a l w a y s be present, e v e n t h o u g h one o f t h e m predominates and gives the state its n a m e . T h i s a d m i x t u r e o f c o m p o n e n t s , furthermore, is desirable as w e l l as u n a v o i d a b l e , since it w o r k s against abuse o f p o w e r , and the best arrangement, indeed, is a ' t e m p e r e d ' m o n a r c h y m o r e or less as in the G e r m a n E m p i r e (ch. 39, p. 405). B u t in a d m i t t i n g this t e m p e r i n g o f forms, Althusius does not a c k n o w l e d g e m i x t u r e in the strict sense o f the sharing or distribution o f the rights o f (personal) s o v e r e i g n t y . Indeed, he c o m e s close to rejecting it explicitly in a critical c o m m e n t o n C a b o t ' s four suggestions. 'I d o not a p p r o v e these m i x t u r e s ' , says Althusius, 'nor d o use and practice a d m i t t h e m , e x c e p t insofar as the p e o p l e in the election o f a k i n g or supreme magistrate has reserved certain p o w e r s to itself. T h a t sort o f m i x t u r e is the best, as I h a v e said. A n d such is t h o u g h t to h a v e existed in the Spartan c o m m o n w e a l t h ' (ch. 39, p. 405). T h e p r o b l e m in Althusius is n o t that his account is w r o n g , but that the concepts o f p r e d o m i n a n c e and t e m p e r i n g are non-technical and imprecise. Political p r e d o m i n a n c e does not e x c l u d e legal division o f the rights o f s o v e r e i g n t y , since the p o w e r s m a y be shared unequally and in such a w a y 313 Cambridge Histories Online © Cambridge University Press, 2008

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that one o f the parties is situated m o r e strategically for the a d v a n c e m e n t o f its policies. C o n v e r s e l y , e v e n w h e r e s o v e r e i g n t y is legally concentrated in a single individual or g r o u p , the pattern o f effective influence need n o t correspond. A n d w h e r e , as in G e r m a n y , the t e m p e r i n g o f m o n a r c h y depended o n b i n d i n g rules, as Althusius clearly t h o u g h t , the limitation is n o t m e r e l y political but also constitutional, and the system is a m i x t u r e in one or m o r e o f the w a y s discriminated b y C a b o t . It thus appears that A l t h u s i u s ' distinction b e t w e e n a t e m p e r e d kingship and a m i x e d constitution s i m p l y cannot be technically maintained. In any e v e n t it c o u l d hardly be stretched to c o v e r the G e r m a n e m p e r o r . T h e 'certain p o w e r s ' that the p e o p l e had reserved, in G e r m a n y as w e l l as Sparta, w e r e so far-reaching as to threaten the v e r y n o t i o n o f the e m p e r o r ' s ' p r e d o m i n a n c e ' n o matter h o w construed. T h e point is m a d e against Althusius b y Arnisaeus, w h o w a s B o d i n ' s shrewdest and m o s t independent f o l l o w e r a m o n g the G e r m a n c o m m e n t a t o r s . Arnisaeus, t o o , felt c o n strained to admit the existence o f impurities and deviations in simple forms o f states, but o n l y insofar as they did n o t c o m p r o m i s e the v e r y f o r m . Althusius, he t h o u g h t , w a s one o f those w h o had been t o o permissive in describing the m o n a r c h y o f France. A l o n g w i t h the H u g u e n o t resistance theorists, he had a c k n o w l e d g e d reservations o f p o w e r to the people that r e m o v e d France f r o m the ranks o f m o n a r c h y : A similar error is to be found in Junius Brutus, Vindiciae contra tyrannos, in Hotman's De antiq.jur. Gallo, and in Althusius' Politica, c. 14, all of which exclude the French kingdom from the class of monarchies in that the first law o f the kingdom as Hotman reports it in ch. 23 of his De antiq.jur. is that nothing bearing on the general condition of the kingdom can be decided by the king without authorisation o f the public council. 8

9

U n l i k e Althusius, B a r t h o l o m a e u s K e c k e r m a n n w a s w i l l i n g to admit n o t o n l y t e m p e r e d forms o f state but fully m i x e d constitutions in w h i c h each o f the partners had an equal role. Y e t he t o o w a s n e v e r led to break w i t h B o d i n o n the indivisibility o f s o v e r e i g n t y . K e c k e r m a n n seems to h a v e t h o u g h t o f m i x t u r e as a t e m p e r i n g o f a simple f o r m , w h i c h had been carried as far as it c o u l d g o . B u t t e m p e r i n g or m o d e r a t i o n , n o matter w h e t h e r the dose t h e r e o f w a s large or small, did not suggest to h i m , any

8.

T h i s r e f e r s t o De antiquo

9.

Arnisaeus 1606, v m , pp. 1 5 9 - 6 0 . For Althusius' embarrassed e d i t i o n o f h i s Politica

jure

regni

Galliae,

a posthumous edition o f Hotman's

Francogallia.

d e n i a l o f this c h a r g e in the

third

s e e p . 3 1 3 a b o v e . A r n i s a e u s , it m a y b e n o t e d , a c h i e v e d c o n s i s t e n c y i n h i s o w n

c r i t e r i o n o f m o n a r c h y o n l y b y i n t e r p r e t i n g a l l o f H o t m a n ' s l i m i t a t i o n s o n t h e k i n g o f F r a n c e as royal courtesies.

3H

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Sovereignty

and the mixed

constitution

m o r e than to Althusius, a genuine sharing o f the rights o f majesty. Searching for a looser, m o r e ' B o d i n i a n ' solution, K e c k e r m a n n b e l i e v e d that he had found it in a distinction b e t w e e n state and g o v e r n m e n t introduced for this purpose b y n o n e other than B o d i n himself. B o d i n , he claimed, had ultimately b a c k e d a w a y f r o m his strict rejection o f the m i x e d constitution. H e 'does n o t d e n y ' , says K e c k e r m a n n , 'that one f o r m m a y be tempered b y another in its m o d e o f g o v e r n m e n t , as w h e n a m o n a r c h y is aristocratic in its m o d e o f g o v e r n m e n t , or e v e n d e m o c r a t i c . B u t this is the v e r y thing w e w a n t , n a m e l y that the simple forms o f c o m m o n w e a l t h can be m o d e r a t e d b y each other' ( K e c k e r m a n n 1608, n.iv, p. 560). T h i s , h o w e v e r , is a serious misrepresentation o f B o d i n for w h o m the f o r m o f g o v e r n a n c e is not a modification o f the f o r m o f state. T h e f o r m o f g o v e r n m e n t , as distinguished f r o m the state, is rather the pattern b y w h i c h the s o v e r e i g n distributes offices a m o n g the various classes o f his subjects. Since the p o w e r s o f these offices and the right to h o l d t h e m are at the discretion o f the s o v e r e i g n , at least in strictest l a w , the f o r m o f g o v e r n m e n t , n o matter h o w desirable, is not a constitutional requirement. A l t h o u g h B o d i n does n o t put it e x a c t l y in such w o r d s , his m e a n i n g is abundantly clear: W e will thus hold it for settled that the state o f a commonwealth is always simple even if the [form of] government is contrary to the [form of] state. Thus monarchy is altogether opposite to a popular state, and yet sovereignty can be vested in a single prince w h o governs democratically, as I have said. This will not, however, introduce mixing {confusion) o f a popular state with monarchy, which are indeed incompatible, but rather o f monarchy with popular government, which is the most stable monarchy o f all. 10

W i t h K e c k e r m a n n , o n the other hand, there is n o distinction b e t w e e n the distribution o f offices as an ordinary rule and as a constitutional requirement. His m o d e l o f a m o n a r c h y g o v e r n e d aristocratically is the French system as it is described b y Francois H o t m a n , the Vindiciae contra tyrannos, and Althusius; and this is also his m o d e l for the G e r m a n E m p i r e o n w h i c h his c o m m e n t s are tactfully o b l i q u e ( K e c k e r m a n n 1608, n.iv, p. 563). H e n c e K e c k e r m a n n , like m a n y other writers after h i m , c o u l d eat his cake and h a v e it t o o . H e speaks o f a m i x e d constitution. H e describes a m i x e d constitution. B u t b y m i s a p p l y i n g B o d i n ' s t e r m i n o l o g y , he is able to a v o i d speaking o f d i v i d e d s o v e r e i g n t y , and s o m e h o w manages to think o f the state as m o n a r c h y . H e m e r e l y fails to notice that the terms 'state' and 10.

B o d i n 1 9 6 1 , 1 1 . 7 , p . 3 3 9 , and c o m p a r e 1586,11.7, p.234, for a slightly m o d i f i e d v e r s i o n in the Latin. See also 1 9 6 1 , p p . 1 0 1 3 - 1 4 .

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' g o v e r n m e n t ' , in B o d i n ' s usage, refer to different levels o f authority, the first to the o w n e r s h i p o f p o w e r and the second to the exercise t h e r e o f in accordance w i t h the o w n e r ' s w i l l . K e c k e r m a n n , therefore, admitted m i x t u r e but failed to see the implications for the t h e o r y o f s o v e r e i g n t y . A solution similar to K e c k e r m a n n ' s w a s also p r o p o s e d b y H e r m a n n K i r c h n e r , the humanist and historian, w h o w a s a m o n g the m o s t creative theorists o f s o v e r e i g n t y in the first quarter o f the seventeenth century. K i r c h n e r ' s Respublica (1608) is the locus classicus for the principle o f d o u b l e majesty or the distinction b e t w e e n constituent p o w e r and the ordinary p o w e r o f the state. T h a t distinction is virtually present in B o d i n , w h o speaks, in his République, o f fundamental l a w s o n the succession to the throne and o n the inalienability o f d o m a i n that an i n c u m b e n t ruler cannot alter e v e n t h o u g h he is absolute for all ordinary purposes. Althusius, citing this as an implicit r e c o g n i t i o n o f the p e o p l e as the source o f all authority, already spoke in passing of duplex majestas, or d o u b l e m a j e s t y . B u t he regularly preferred to reserve the t e r m s o v e r e i g n t y or majesty for the constituent p o w e r o f the p e o p l e and to describe the p o w e r c o n c e d e d to the g o v e r n m e n t as potestas administrationis. W i t h K i r c h n e r the distinction is m o r e clearly d r a w n and generalised in w h a t w a s to b e c o m e the standard t e r m i n o l o g y . T h e r e w a s in e v e r y c o m m o n w e a l t h , he held, a majestas realis, or constituent s u p r e m a c y , w h i c h a l w a y s remains in the p e o p l e as the source o f all authority, and majestas personalis, or ordinary s u p r e m a c y , w h i c h is delegated to the prince, or g o v e r n m e n t , o n w h a t e v e r terms the p e o p l e m a y prescribe. 11

G i v e n the sharpness o f this and other formulations in K i r c h n e r , w e m i g h t e x p e c t h i m to h a v e read B o d i n correctly as to state and g o v e r n m e n t , and to describe the latter m e r e l y as administrative arrangements enacted b y the holder o f (personal) majesty. Y e t w h e n he offers an account o f the m i x e d constitution, K i r c h n e r makes the same mistake as K e c k e r m a n n . ' B u t y o u w i l l easily settle the issue', he informs his reader, ' i f y o u h o l d that the state o f a c o m m o n w e a l t h differs f r o m the principle o f g o v e r n m e n t and m o d e o f administration, as did B o d i n , indeed, w h e n he saw that he had trapped himself. For he a v o w e d it to be possible that the state c o u l d be r o y a l and y e t be g o v e r n e d d e m o c r a t i c a l l y ' (Kirchner 1 6 1 4 , p. 53). K i r c h n e r then g o e s o n to describe the m o d e r n G e r m a n E m p i r e as a 11.

C o m m e n t i n g o n B o d i n ' s u n w i t t i n g admission o f an ultimate layer o f s o v e r e i g n t y o n w h i c h the k i n g ' s is b a s e d , h e c o m m e n t s ' . . . e v e n a c c o r d i n g t o B o d i n t h e r e is a d o u b l e m a j e s t y o f t h e k i n g d o m a n d o f t h e k i n g . . . ' ( 1 9 3 2 , c h . 9 , p . 9 3 ) . B u t t h e t e r m duplex from

majestas

could have been

Kirchner.

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borrowed

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m o n a r c h y t e m p e r e d b y an aristocratic plan o f g o v e r n m e n t . ' A n d y e t ' , he says, the advice and consent of the aristocratic element, which serves the empire as rowers do a ship, takes nothing from its royal keel . . . and does not diminish the authority of the royal power in promulgating laws but only graces and augments it . . . And this is evidenced by the opinion of Bodin himself, w h o contends that the French kingdom is absolutely monarchical, . . . although they never granted their kings absolute authority uncontrolled by law but rather tempered the course o f royal governance with the advice and consent o f assemblies and convocations, of the parlements and o f the peers o f France. (p. 54) T h a t K i r c h n e r here is t h i n k i n g o f consent as a b i n d i n g requirement is indicated n o t o n l y b y his choice o f w o r d s but b y his citation o f H o t m a n as his p r i m e authority o n French procedures (pp. 54, 94). A n d later on, the rule for G e r m a n y — as for E n g l a n d , Spain, and France — is said to be 'that the k i n g m a y decide n o t h i n g pertaining to the state o f the k i n g d o m as a w h o l e w i t h o u t the authority o f the public c o u n c i l ' (p. 94). Y e t K i r c h n e r s o m e h o w m a n a g e d to persuade h i m s e l f that B o d i n t o o c o u l d be listed a m o n g those w h o ratified this formula. In B o o k m, ch. 1 o f the République, B o d i n held that a w e i g h t y senate is indispensable to a w e l l - o r d e r e d m o n a r c h y . K i r c h n e r cites this chapter w i t h o u t considering B o d i n ' s express insistence that the p r o p e r role o f a senate is advice and n o t h i n g m o r e (p. 54). B y loose and careless use o f B o d i n ' s distinction b e t w e e n state and g o v e r n m e n t , K i r c h n e r felt able to account for m i x t u r e w h i l e still i g n o r i n g the divisibility o f s o v e r e i g n t y , and to speak o f the e m p i r e as an aristocratically g o v e r n e d m o n a r c h y b y glossing o v e r the question o f a partnership in s o v e r e i g n authority. W a s personal majesty vested solely in the e m p e r o r ? If so, h o w does one account for b i n d i n g limitations in his m o d e o f g o v e r n a n c e ? O r i f personal majesty w a s shared b e t w e e n the e m p e r o r and the estates, w h y , then, should the e m p i r e be called a m o n a r c h y ? G i v e n the looseness o f the t e r m i n o l o g y , K i r c h n e r ' s distinction b e t w e e n state and g o v e r n m e n t a l l o w e d such questions to be bypassed. So loose w a s it, indeed, that the distinction c o u l d be used to d r a w the v e r y opposite conclusion! K i r c h n e r had intended to account for m i x t u r e and w a s so understood b y other writers o f the time. B u t w i t h just the slightest twist, his distinction b e t w e e n state and g o v e r n m e n t c o u l d be m a d e to s h o w that the G e r m a n m o n a r c h y w a s pure and e v e n absolute, yet still w i t h o u t d e n y i n g the facts o f the imperial constitution! T h i s , indeed, w a s the purpose for w h i c h K i r c h n e r ' s a r g u m e n t o n m o d e r a t e d m o n a r c h y w a s m o s t often used. A n d one o f the main architects o f that adaptation w a s 317 Cambridge Histories Online © Cambridge University Press, 2008

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D a n i e l O t t o w h o w a s a m o n g the m o s t prolific and ingenious c o m m e n tators o n the t h e o r y o f s o v e r e i g n t y and the constitution o f the e m p i r e in the first quarter o f the seventeenth century. In an article o f 1620, ' A n m i x t u s detur reipublicae status?' ('Is T h e r e such a T h i n g as a M i x e d State?'), O t t o denies that K i r c h n e r , any m o r e than the others w h o defended m i x t u r e , h a v e found a rationale, and he then proceeds to turn the distinction b e t w e e n state and g o v e r n m e n t against t h e m . T h e f o r m o f state, he observes, denotes the essence and substance o f a c o m m o n w e a l t h ; the f o r m o f administration m e r e l y indicates its quality. B u t a change o f qualities, or accidents, does not affect the essence o f a thing, so that B o d i n w a s perfectly consistent in c o n c e d i n g the possibility o f m i x t u r e in administration w h i l e d e n y i n g it in the state itself. It thus f o l l o w s that K i r c h n e r , K e c k e r m a n n , and others w h o defended m i x t u r e in this w a y h a v e b e g g e d the question. A n d O t t o felt able to c o n c l u d e , triumphantly, that the e m p i r e w a s a simple m o n a r c h y ! Since all o f this is so, w e confidently conclude that the modern empire is a monarchical state, and a simple one at that, because not even a particle of the imperial majesty is shared with the princes of the empire . . . And although in some areas the state is tempered by aristocratic principles, it cannot on that account be called aristocratic or mixed . . . It is clear enough from what has been said that the mode of administration does not change the form of state. (Otto 1620, p. 652) B u t O t t o ' s dissent f r o m K e c k e r m a n n and K i r c h n e r is simply a different conclusion f r o m the same mistake as to the distinction b e t w e e n state and g o v e r n m e n t . W i t h B o d i n , the function o f those w h o assist the s o v e r e i g n t y in g o v e r n a n c e is m e r e l y to advise or to carry out his orders. T h e consent o f the estates in G e r m a n y , h o w e v e r , w h i c h e x t e n d e d to almost all the great affairs o f state, w a s a constitutional requirement — a fact w h i c h O t t o h i m s e l f does not deny, but rather o p e n l y admits! For although there are many rights o f majesty that the emperor cannot exercise without the approval and consent of the imperial estates - as is evident from imperial capitulations and from that clause so constantly used in imperial recesses, darüber wir uns mit ihnen und sie hindwiderumb mit uns verglichen - yet nevertheless monarchical power is not removed. For what really counts, is whether the rights of supreme majesty are constrained, or detracted from. The first of these surely diminishes absolute power, but does not always cancel the existence of a supreme magistrate. The second leaves no [supreme] magistrate at all, because there can be no [supreme] magistrate w h o is lacking in the rights of sovereignty. (p. 653) T h e s o v e r e i g n t y o f the e m p e r o r is thus held to be constrained but not defective, diminished in its absoluteness but still supreme. Y e t s o v e r e i g n t y constrained in matters o f ordinary l a w is s o v e r e i g n t y shared, especially 3i8 Cambridge Histories Online © Cambridge University Press, 2008

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w h e n it is limited as t h o r o u g h l y and p e r v a s i v e l y as it w a s in the G e r m a n E m p i r e . It thus turns out that O t t o ' s talk a b o u t essence and qualities, substances and accidents, as applied to state and g o v e r n m e n t , uses distinctions w i t h o u t a difference since the 'qualities' w e r e prescribed and the 'accidents' constitutionally required. T h e r e are t w o other assertions c o n n e c t e d w i t h O t t o ' s v i e w o f the e m p e r o r ' s s o v e r e i g n t y that should perhaps be m e n t i o n e d briefly. O n e is the a r g u m e n t that the feudal tenure o f the G e r m a n princes and the oath o f fealty attached thereto i m p l y subjection to the e m p e r o r and are inconsistent w i t h their possession o f a share o f s o v e r e i g n t y . Y e t O t t o does n o t d e n y , and does n o t w i s h to d e n y , the hereditary status o f the princes or the collective right o f the estates. T h e l a n g u a g e o f subjection in the oaths that he cites is thus at odds w i t h well-established constitutional n o r m s , and should h a v e been regarded as m o s t l y c e r e m o n i a l (p. 6 5 1 ) . T h e second contention, m o r e curious for m o d e r n readers, is that the e m p e r o r ' e n j o y e d ' or s o m e h o w ' m a d e use o f absolute authority. B y this l a n g u a g e O t t o does n o t intend to d e n y constitutional limitations o n the e m p e r o r . L i k e other c h a m p i o n s o f a G e r m a n m o n a r c h y before h i m , he means m e r e l y that there are still certain areas o f g o v e r n m e n t in w h i c h the e m p e r o r can act alone w i t h o u t consent and at his o w n discretion. O t t o s u g g e s t i v e l y notes that such p o w e r is the residual expression o f an authority that w a s plenary in ancient R o m a n times. B u t he has n o intention o f d e n y i n g that this 'absolute' authority has been n a r r o w e d in its scope and strictly delimited b y l a w . ' W e turn n o w ' , he says, in another o f his essays, to our Romano-German Emperor, and we ask whether he can still be considered absolute {an etiamnum solutus dici possit). The basis of doubt is that the emperor cannot exercise the rights o f majesty without consent o f the Electors and the estates . . . The basis o f decision is that the absolute power conceded (legibus soluta potestas concessa) to the emperor has never been taken back in toto, either tactily or expressly . . . Hence he still enjoys that power. . . t 2

12.

' A n p r i n c e p s l e g i b u s sit s o l u t u s ? ' ( 1 6 1 6 , p . 5 1 9 ) . T h i s u s e o f ' a b s o l u t e ' is a l s o t o b e f o u n d i n G o t t f r i e d A n t o n i u s a n d T h e o d o r R e i n k i n g . In t h e c o u r s e o f a c o m p l e x p o l e m i c w i t h H e r m a n n V u l t e i u s a n d his f o l l o w e r s , A n t o n i u s a s s u m e d t h e p o s i t i o n o f a c h a m p i o n o f m i x t u r e in the G e r m a n c o n s t i t u t i o n , the v e r y p o i n t o f w h i c h w a s to s h o w that the e m p e r o r h a d 'absolute' p o w e r in s o m e respects. ' W h a t e v e r w a s c o n c e d e d to the e m p e r o r s b y R o m a n l a w , and has n o t s u b s e q u e n t l y b e e n

taken

b a c k t a c i t l y o r e x p r e s s l y , t h e y still e n j o y a n d u s e . . . In R o m a n l a w , h o w e v e r , t h e p o w e r c o n c e d e d t o t h e e m p e r o r s w a s a b s o l u t e . . . n o r c a n it b e s h o w n t h a t it w a s e v e r t a c i t l y o r e x p r e s s l y t a k e n b a c k c o m p l e t e l y . T h e r e f o r e , t h e y still e n j o y a n d u s e t h a t p o w e r ' (De potestate

Imperatoris,

in A n t o n i u s

1 6 1 4 , p . 6 2 5 ) . F o r t h e p o s i t i o n o f V u l t e i u s , w h o as e a r l y as 1 5 9 9 a t t e m p t e d , a l m o s t a l l u s i v e l y , t o e x p l a i n t h e G e r m a n c o n s t i t u t i o n b y t h e s t a t e - g o v e r n m e n t d i s t i n c t i o n , s e e Ad titulos de iurisdictione

etforo

competenti,

Codicis

qui

sunt

p . 5 1 1 ( o n n i . x x i v . 1 .i o f C o d e ) . F o r b r i e f s u m m a t i o n s o f t h e d e b a t e ,

w h i c h is o f t e n t o o c o n f u s e d f o r e a s y s u m m a r y , s e e S t i n t z i n g 1 8 8 0 - 4 , 1. P P - 4 6 2 - 3 , 11, p . 3 9 ; H o k e 1 9 6 8 , p . 2 3 ; G r o s s 1 9 7 3 , p p . 1 3 8 - 4 1 . R e i n k i n g k ( 1 6 3 1 , 1, classis similar to those o f A n t o n i u s and O t t o to glorify the

i i i . x i i i , n o . 25—9) u s e s

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O t t o ' s case for the s o v e r e i g n t y o f the G e r m a n e m p e r o r thus depends n o t so m u c h o n a misrepresentation o f the constitutional relationships as on a m b i g u i t y o f terms. B u t it must n o t be t h o u g h t that this cluster o f e q u i v o c a t i o n s w a s peculiar to h i m . It w a s an attractive d e v i c e for patriotic c o m m e n t a t o r s w h o h o p e d to strengthen allegiance to the empire b y e n h a n c i n g the s y m b o l o f the e m p e r o r . T h u s all the a r g u m e n t s w e h a v e n o t e d in O t t o are also to be f o u n d in T h e o d o r R e i n k i n g w h o s e loyalist treatise o n the e m p i r e c o n t i n u e d to be republished w e l l into the eighteenth century. 13

B u t the confusion o f this period o n the m i x e d constitution w a s not o n l y the result o f sentimental or patriotic attachment to the principle o f m o n a r c h y in the G e r m a n constitution. For there w e r e at least t w o v e r y h i g h l y sophisticated legal c o m m e n t a t o r s w h o fully recognised the sharing o f s o v e r e i g n t y in the G e r m a n constitution y e t c o u l d o n l y think o f it as a p o l y a r c h y rather than a m i x t u r e . T h e p r o b l e m here w a s n o t that they failed to understand the legal relations a m o n g the partners o f a m i x e d constitution. It w a s rather their inability to see that a m i x e d s o v e r e i g n w a s a c o m p o u n d c o r p o r a t i o n in w h i c h at least one o f the m e m b e r s w a s itself a corporate b o d y . T h e y thus assumed, mistakenly, that constitutions like the classical R o m a n or the c o n t e m p o r a r y G e r m a n w e r e p r o p e r l y described as (simple) polyarchies. T h u s Arnisaeus clearly recognised that in the early period o f the classical R o m a n republic the legislative p o w e r w a s shared b e t w e e n the senate and the people. In B o d i n , as w e h a v e noted, the formula b y w h i c h the senate authorised and the people decided w a s denied or misinterpreted. B u t Arnisaeus treats this as a m o d e o f m i x t u r e , or rather o f attempted m i x t u r e , in w h i c h 'the same right o f majesty is g i v e n separately to t w o or m o r e estates, but to each one in a different w a y ' , so that neither has the w h o l e o f it (Arnisaeus 1606, viii, p. 163, cf. 1 6 1 5 , n.vii, p . 875). A n d a l t h o u g h he believed that such a system is likely to be unstable for political reasons, he does n o t find sharing or conjoint o w n e r s h i p o f s o v e r e i g n t y to be f o r m a l l y inconsistent w i t h the c o o r d i n a t i o n o f political authority. B u t for this v e r y reason, ironically, he refuses to admit that s o v e r e i g n t y held conjointly is a f o r m o f m i x e d constitution. In a m i x e d constitution, he assumes, the rights o f s o v e r e i g n t y m a y w e l l be separated and the separated rights distributed to different partners - w h i c h , indeed, is to construct a

13.

S t i n t z i n g 1 8 8 0 - 4 , Hi p . 40. F o r parallels t o O t t o ' s e v a s i o n s in R e i n k i n g see, a m o n g o t h e r places, e s p e c i a l l y : 1 6 3 1, 1, classis,

i i . i , n o s . 56, 89, 1 3 7 , "196.

320

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c o m p o u n d s o v e r e i g n . B u t he believes that i f a constitution is to be m i x e d b y means o f sharing, this can o n l y be i f the entirety o f any p o w e r or set o f p o w e r s is granted to each o f the partners in the same w a y at the same time! T h i s , o f course, is a juridical absurdity w h i c h is, h o w e v e r , absent from the R o m a n scheme o f legislation since p o w e r there w a s shared conjointly b y the senate and the people. B u t h o w , then, is that arrangement to be classified? For Arnisaeus it is s i m p l y a version o f p o l i t y in Aristotle's sense because it seeks to balance the interests o f the nobles and the c o m m o n e r s b y g i v i n g equal w e i g h t to each. Y e t in this [Roman] arrangement there is no mixture o f commonwealths since neither the senate nor the commoners control the rights o f majesty, but these are handed to each o f them conjointly. Since, then, patricians and plebeians rule in equal measure, h o w else portray this state than as a polity (Rempublicam in specie)? For it is not the mode o f administration (modus dispensationis) but the degree o f domination (gradus dominationis) that constitutes the form of a commonwealth, and so long as the commoners and the nobles participate on an equal basis, they join together into a true and legitimate commonwealth. A n example may be taken from the R o m a n republic, the gradual degeneration of which into a democracy after the introduction of the tribunes is beyond all d o u b t . . . and yet the distinction between the power (potestatem) o f the commoners and the authority (authoritatem) of the senate did not cease to exist up to the change o f regime, or up to the age of Livy, Florus, and D i o . (1615, p. 876). B u t this expansion o f the c o n c e p t o f a p o l i t y leads to confusing ambiguities. In a constitution m i x e d b y sharing, like the R o m a n , the constituent elements are separate corporations, each o f w h i c h casts its v o t e independently o f the other. In the idea o f p o l i t y as it is found in Aristotle, o n the other hand, s o v e r e i g n t y is located in a single assembly w h e r e i n all participate as individuals a l t h o u g h certain v o t i n g procedures are adopted to p r o m o t e a balanced o u t c o m e . It is thus a k i n d o f m o d e r a t e d e m o c r a c y w h i c h , at least in its juridical principle, is v e r y different f r o m a m i x e d constitution. Arnisaeus, indeed, is not u n a w a r e o f the difference b e t w e e n v o t e b y order and v o t e b y head. S p e a k i n g o f p o l i t y (respublica in specie), he notes the difficulty o f maintaining the equality o f nobles and people ( w h i c h is the v e r y m e a n i n g o f polity) w h e r e v o t i n g is individual, and then continues: Since it might not be possible in this manner to keep the patricians and the commoners within the confines o f a shared commonwealth because the com moners would be preponderant, Aristotle points out another w a y in Politics iv, chs. 8—9, which he calls mixin [mixing], or blending of oligarchy and democracy, and in which he locates the nature of the polity (reipublicae in specie). If all the citizens are 321

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admitted to the suffrage on a man by man basis, the majority may crush the minority, as has been said. But if the entire order of patricians is accorded a right equal to that of the entire order of commoners, without regard to the weight of numbers, then a form o f shared commonwealth comes about in which the commoners can do no more than the nobility by virtue of their great numbers. There is, moreover, a distinction between this commonwealth and a mixed system, as w e will show more fully in c.vi, sec. i, since in a mixed commonwealth the rights of sovereignty are distributed among all the parts of the commonwealth, whereas in this they remain in all of them undivided, so that the first is a compound and this one mixed in such a way that it does not deviate from simplicity in its essence, given that to admit all the citizens into the government o f the commonwealth on an equal footing (aequo jure) is the sign o f a simple not a compound commonwealth. In a compound the king, the aristocrats, and the people each have different rights, but in this form all citizens of either order are regarded as having one and the same right. Aristotle, Politics iv ch. 9, has proposed both techniques since in either case all the citizens are admitted to partnership in the commonwealth, except in one way conjointly, in the other by separate rights (divisim). W e will speak of both ways in our chapter on the mixed commonwealth. But here w e will briefly note some things than can help to understand the polity. In this commonwealth, therefore, the order of the nobility — whether it has obtained this prerogative by virtue, by wealth, or by excellence o f birth - ought to be distinguished from the order of the commoners so that in deliberations the opinion of a whole order may be heard, not that of individuals. (1615, n.v, pp. 825—6). Arnisaeus here treats v o t i n g b y order as but one m o r e device o f political m o d e r a t i o n , rather than as a separate juridical f o r m . His concept o f p o l i t y , b y thus e m b r a c i n g b o t h a simple and a c o m p o u n d p o l y a r c h y , can refer to t w o quite different things, and b e c o m e s imprecise and a m b i g u o u s in its meaning. O n the other hand, w h e n he is dealing w i t h the distribution o f p o w e r s , Arnisaeus can b e accurate. H e describes the G e r m a n constitution as a mixture o f aristocracy and m o n a r c h y (with the monarchical element held preponderant in his a c c o u n t o f 1606, and the aristocratic in his a c c o u n t o f 1615) (1606, p . 183, 1 6 1 5 , n . v i . 5 , p . 1084). B u t the element o f mixture here admitted is merely the reservation to the e m p e r o r o f certain residual e x e c u t i v e p o w e r s , w h i c h produces a separation, or distribution, o f p o w e r s b e t w e e n the e m p e r o r and the diet. T h i s Arnisaeus regards as an authentic and e v e n desirable division o f the rights o f s o v e r e i g n t y . B u t insofar as there are p o w e r s that are shared, or held conjointly, he calls the o u t c o m e aristocracy since, for the reasons w e h a v e g i v e n , he can h a v e n o other t e r m for it. Just as the partnership o f nobles and people is ' p o l i t y ' , so that o f k i n g and nobles is ' a r i s t o c r a c y ' . 14

14.

T h i s is e v i d e n t f r o m t h e c o n t e x t as i n 1 6 1 5 , n . v i . 5 , p . 1 0 7 3 . A n d i n t h e s a m e p l a c e t h e r e is a c r i t i c a l c o m m e n t o n P a u r m e i s t e r w h i c h s e e m s t o a g r e e t h a t t h e t e r m a r i s t o c r a c y is p r o p e r l y a p p l i e d t o t h e e l e m e n t o f s h a r i n g in the G e r m a n

constitution.

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N o less surprising, and similarly misleading, is the account b y T o b i a s Paurmeister, w h o s e De jurisdictione Imperii Romani is o n e o f the most acute and influential treatises o f this period o n G e r m a n public l a w . Paurmeister had n o difficulty in recognising the shared jurisdiction o f independent partners as an arrangement in w h i c h each o f the partners had a v e t o . S p e a k i n g o f the empire, he says, The supreme power o f the empire . . . is distributed in t w o halves, one of which is held by Caesar, the other by the estates collectively. A division of this sort once existed between Caesar and the people, for Suetonius, writing about Caesar, notes that the power of the popular assemblies was divided [between them] — although in this case through separated areas of jurisdiction (sed pro partibus divisis). But now the entire power o f the empire, except for the power o f bestowing special rights and privileges, is shared, without divided jurisdiction {pro partibus indivisis), between the emperor and the estates. The half that belongs to the estates is distributed as three-sixths, of which the Electors have one, the Princes another . . . and the senate of the imperial cities the third. (Paurmeister 1608, n.ii, no. 20, pp. 342-3) B u t a l t h o u g h this idea o f fifty-fifty sharing is later repeated in refuting B o d i n ' s claim that s o v e r e i g n t y in the G e r m a n constitution w a s entirely vested in the princes and the delegates o f the cities, Paurmeister does not g o o n to a criticism o f B o d i n o n the m i x e d constitution (11.ii. n o . 34, p p . 356—7). O n the contrary, in B o o k 11, chapter i, he classifies the imperial system as an aristocracy or kind o f o l i g a r c h y in accordance w i t h a classification w h i c h holds that all regimes m a y be d i v i d e d d i c h o t o m o u s l y into the rule o f a f e w (oligarchy) and the rule o f m a n y ( d e m o c r a c y ) (n.i, nos. 7—9, 11—12, p p . 322, 324). T h i s classification, m u c h like Arnisaeus', is n o t e x a c t l y w r o n g , but it does n o t express, or e v e n hint at, the fact o f m i x t u r e in the G e r m a n constitution, and m i g h t be readily taken to d e n y it. T h e terms o l i g a r c h y or aristocracy, then as w e l l as n o w , w o u l d ordinarily c o n v e y the idea o f a p o l y a r c h y in w h i c h those entitled to participate w o u l d v o t e not b y c o r p o r a t i o n but b y head, and it w o u l d therefore fail to indicate that the e m p e r o r in the G e r m a n constitution had an independent share. hi B e s o l d and the m i x e d constitution A clear understanding o f the sharing o f s o v e r e i g n t y and an adequate f o r m u l a for the G e r m a n constitution appear o n l y w i t h the w o r k o f C h r i s t o p h B e s o l d , w h o w a s the first to formulate the c o n c e p t o f a c o m p o u n d p o l y a r c h y . B e s o l d seems to h a v e put f o r w a r d this c o n c e p t i o n in the first decade o f the seventeenth century and then to h a v e w o r k e d o u t the implications in the course o f a running debate w i t h O t t o . His earlier statements are virtually inaccessible. B u t w e are fortunate in h a v i n g w h a t 323 Cambridge Histories Online © Cambridge University Press, 2008

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seems to be a c o m p l e t e as w e l l as final version o f his v i e w s in the f o r m o f an article, ' D e reipublicae statu m i x t o \ in a collection o f his w r i t i n g s (1626). B e s o l d begins b y o b s e r v i n g that truly pure forms o f state are almost n e v e r encountered in reality. B u t in contrast w i t h Althusius, this does not lead h i m to p r o p o s e that all systems be considered as virtually simple, but rather to insist that the m i x e d constitution is the m o s t c o m m o n f o r m o f state, and particularly so in m o d e r n E u r o p e , in the monarchies o f w h i c h the k i n g is usually the prince o f a m i x e d constitution (Besold 1626, p. 2 1 1 ) . T h e m i x t u r e o f a constitution, furthermore, cannot be c o m p r e h e n d e d b y the distinction b e t w e e n state and g o v e r n m e n t , since the f o r m o f g o v e r n m e n t exists de facto at the ruler's discretion, not as a de jure constitutional requirement. ' A n d surely i f a c o m m o n w e a l t h is defined n o t b y l a w but b y the m o d e o f g o v e r n a n c e , then a master w h o embraces his servant in filial l o v e w o u l d be his father n o t o n l y in affection but in l a w , w h i c h n o one w i l l readily assert' (p. 2 1 1 ) . B e s o l d here refers a p p r o v i n g l y to O t t o ' s criticism o f K i r c h n e r and others w h o held similar v i e w s . B u t unlike O t t o he is c o m p l e t e l y clear o n the difference b e t w e e n arrangements o f administrative c o n v e n i e n c e and requirements o f fundamental l a w : And if a king most often follows the advice o f the estates o f his realm and o f the leading men among his people, the mode of ruling is no doubt aristocratic. But this is not to say that the form o f the commonwealth is mixed unless it appears that sovereign power is shared with them in some degree. That happens only if the estates have the faculty not only o f advising but also and at the same time of preventing and prohibiting; and the prince is bound to abide by their counsel or dissent. (p. 213) B y i g n o r i n g this difference, O t t o has m a n a g e d to c o n c l u d e that a k i n g c o u l d be constrained in his authority and the state remain a simple m o n a r c h y . B u t i f a prince requires the consent o f others for the ordinary c o n d u c t o f affairs, it makes n o sense to speak as i f he ruled alone. ' H e [ O t t o ] thinks it to be a point o f great i m p o r t a n c e ' , B e s o l d c o m m e n t s , ' w h e t h e r the rights o f a supreme authority are constrained or taken a w a y , etc., w h i c h I d o n o t d e n y . For i f they are constrained it is a m i x t u r e , and i f taken a w a y a pure aristocracy' (pp. 212—13). T h u s the rights o f s o v e r e i g n t y had to be capable o f b e i n g shared, B o d i n i a n objections n o t w i t h s t a n d i n g . T h e core o f these objections, as they had been elaborated and refined b y O t t o in an attack u p o n B e s o l d and others, w a s that the logical consequence o f sharing s o v e r e i g n t y w a s to annihilate it altogether. A n d B e s o l d ' s m a i n contribution w a s to formulate the consequence o f sharing as the institution o f a c o m p o u n d p o l y a r c h y : 324 Cambridge Histories Online © Cambridge University Press, 2008

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It is never possible he [Otto] says, either in nature or even in imagination for supreme authority or majesty to be shared with an inferior and still remain supreme. It remains supreme, I answer, but not in one individual. It is rather in the whole body, or corporation, of those w h o rule (archonton) but in such a way that it is not distributed equally among the parts. The prince will be conceded some large degree of eminence (which will be larger, of course, than what the doge has in the Venetian commonwealth) or else it will be an aristocracy. (p. 212) T h e p o l y a r c h i c o u t c o m e , furthermore, does not require that the k i n g and the estates be equal partners. It can also exist w h e r e the k i n g enjoys preeminence and is the focus o f political allegiance. In a m i x e d constitution ' s o v e r e i g n t y is in the corporation (collegium) e v e n t h o u g h the head o f that corporation, as often happens, m a y be a b o v e the other m e m b e r s in a variety o f w a y s ' , and a l t h o u g h the oath o f allegiance m a y be rendered to the prince, it need not entail obedience to h i m outside his particular jurisdiction (p. 212). E v e n the e m e r g e n c y p o w e r o f the prince, i f such indeed exists, applies o n l y to occasions that are foreseen b y l a w and c u s t o m (p. 220). T h e c o m p o n e n t s o f the p o l y a r c h y , finally, are not individuals but orders, o n w h i c h account it m a y be distinguished f r o m d e m o c r a c y . Arnisaeus, B e s o l d notes, refused to a c k n o w l e d g e the sharing o f s o v e r e i g n t y as m i x t u r e : And there seems to be some room for doubt here since a state of this kind, where all three forms of commonwealth are commingled without separation of the rights of sovereignty, may seem rather to be democracy. But in a democracy the majority decides; here the king, the nobles, and the commoners constitute three orders, and cast three votes, so that the majority of the people cannot preempt the others. (p. 227) In r e p l y i n g to O t t o o n the m i x e d constitution B e s o l d is thinking o f s o v e r e i g n t y shared b e t w e e n t w o or m o r e partners in a c o m p o u n d p o l y a r c h y . B u t w h e n he goes o n to the G e r m a n constitution, he notes that a state is also m i x e d w h e n different rights o f s o v e r e i g n t y are assigned to different agents. His purpose here is to account for the reservata o f the G e r m a n e m p e r o r , such as the right o f hearing certain fiscal and feudal cases in his o w n tribunal as w e l l as certain rights in foreign affairs and the c o n d u c t o f warfare, w h i c h he c o u l d still exercise w i t h o u t the consent o f the Electors or estates. O t t o does not reach this issue because he m a n a g e d to believe that all the rights o f s o v e r e i g n t y b e l o n g e d to the e m p e r o r alone. W i t h B e s o l d , o n the other hand, the rights o f s o v e r e i g n t y shared b y the e m p e r o r and the estates b e l o n g e d to a c o m p o u n d b o d y that was juridically distinct from the e m p e r o r alone so that the issue o f separated p o w e r s w a s readily confronted. 325

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If B e s o l d is b r i e f o n separation, it is largely because the issue had already been resolved b y Arnisaeus, w h o at least in this respect had b r o k e n cleanly w i t h B o d i n . T h e parts o f s o v e r e i g n t y are in s o m e sense indivisible, Arnisaeus had observed, since n o one o f t h e m can be exercised w i t h o u t the c o o p e r a t i o n o f the others. B u t this is not to say that these parts, a l t h o u g h functionally inseparable, cannot be vested in separated agents so l o n g as they are harmonised and coordinated b y fundamental l a w . For there are a number of powers and rights the union of which produces complete sovereignty. And although it is impossible for sovereignty as a whole and in its entirety to be shared among several agents, there is nothing to prevent its parts from being separated and distributed to several agents such that there is a fragment of sovereignty in each of them, and yet in the body as a whole complete and supreme sovereignty results from the union of the fragments of sovereignty coming together into one. (Arnisaeus 1606, viii, pp. 164—5) B o d i n ' s mistake w a s that he not o n l y failed to see this need for harmonisation but g a v e such scope to certain parts o f s o v e r e i g n t y that they s w a l l o w e d all the rest: He [Bodin] concedes rights to the particular components such as carry with them the entirety of majesty, and this may not be done as w e said a little while ago. Thus the power to make law on all topics cannot be given to some one component because power over everything goes with it. N o r can subjects be obligated to the king in all respects in this mixed commonwealth, because to do this is to lay the supreme power in the king's lap. (p. 166). P r o p e r l y delimited and coordinated, therefore, the rights o f s o v e r e i g n t y can be distributed a m o n g separate agents. A n d this is also the conclusion in B e s o l d , w h o praises m i x t u r e o f this sort as c o n d u c i v e to political stability: The mixed state admits of many variations. Sometimes the rights o f majesty are divided, as when the king has some of them and the senate some, or the optimates some and the commoners some. Sometimes they are shared, as when the king does not have them without the senate or the senate without the king, or when the commoners and the nobles enjoy them simultaneously. Sometimes the supreme power is tempered in other ways [outside of mixture]. In the first kind of mixed state, the rights of majesty are separated and different ones are assigned to different estates. This mixture seems to be the most finely balanced harmony, for some powers are best exercised by one person, such as the power of judging and imposing punishments, while there are others in which the participation of the orders or estates could hardly be denied without inequity. The right of undertaking a war is one of these perhaps, as well as others of a similar order. (Besold 1626, p. 213) 15

15.

B e s o l d , it m a y b e n o t e d , d e a l s w i t h t h e G e r m a n c o n s t i t u t i o n m a i n l y as a n e x a m p l e o f d i s t r i b u t i o n . H e is n o t q u i t e w i l l i n g o p e n l y t o list it u n d e r ' e p h o r i s t i c ' m o n a r c h i e s i n w h i c h s o v e r e i g n t y is s h a r e d b u t d o e s n o t r u l e t h a t o u t ( p . 2 1 6 ) . P o l a n d is h i s first e x a m p l e o f s h a r e d s o v e r e i g n t y , a f o r m

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much

Sovereignty

and the mixed

constitution

Besold's refutation o f B o d i n and his f o l l o w e r s w a s thus c o m p l e t e o n all the main themes o f indivisibility. A n d a l t h o u g h he is perhaps indebted to Arnisaeus for his a c c o u n t o f separation, his f o r m u l a t i o n o f the m o r e controversial principle o f sharing seems to be original as w e l l as l u m i n o u s , and so decisive for a m o d e r n r e a d e r . B u t in order to understand the difficulty o f this question for contemporaries and their reluctance to a c k n o w l e d g e sharing as a f o r m o f m i x t u r e , it is w o r t h s h o w i n g h o w O t t o , at least, attempted to maintain his v i e w in the teeth o f B e s o l d ' s a r g u m e n t . 16

T h e r e had been, as w e h a v e said, a n u m b e r o f e x c h a n g e s b e t w e e n O t t o and B e s o l d , and to a m o d e r n reader the first version o f B e s o l d ' s De statu reipublicae mixto, w h i c h must h a v e appeared a b o u t 1620, should h a v e left the question settled. B u t O t t o in a last reply to B e s o l d c o m p l a i n e d that the question had been b e g g e d . In his De maiestate imperii et imperantis o f 1623, O t t o contends that the c o n c e p t o f a c o m p o u n d p o l y a r c h y is n o t a m i x t u r e since p o w e r is in the w h o l e and n o t the parts, and that it precludes the distribution o f p o w e r to the parts w h i c h , O t t o seems to think, is B e s o l d ' s o w n criterion for m i x t u r e : In response to m y [earlier] argument Besold replies that supreme authority continues [after sharing] but in a corporate body or college of rulers (archonton) rather than in one person. T o which I reply that there is no mixture here and that this state in no way differs from a polyarchy, in which sovereignty is attributed to all collectively rather than to all as individuals. But let us go on. Even though (you say) the rights of majesty are entirely in the corporation, they can nonetheless be so divided that the king has some of them, and the senate some, or the aristocrats some and the commoners some; and the senate does not have them without the king, or the commoners and the nobles assert them simultaneously. But I reject this. If the rights of majesty are assigned to the corporation as such in a polyarchic state, I simply do not see h o w the same can be assigned to the individual parts. (Otto 1623, p. 31) O t t o ' s confusion here is t w o f o l d . In the first place, he blurs the difference b e t w e e n a simple and a c o m p o u n d p o l y a r c h y . T h i s appears to be the same sort o f error that w e saw in Arnisaeus. B u t it is n o w m o r e surprising, since it c o m e s after B e s o l d ' s clarification. In the second place, O t t o utterly confuses distribution o f the rights o f s o v e r e i g n t y — in w h i c h s o m e rights g o to one partner and others to another — w i t h sharing o f the rights o f s o v e r e i g n t y — in w h i c h the partners act together. B u t these t w o m o d e s o f m i x t u r e are clearly r e c o m m e n d e d , h e s a y s , b y A l t h u s i u s , t h e Vindiciae reservata,

contra

tyrannos,

Buchanan, and H o t m a n .

The

o n e s h o u l d a l s o n o t e , a r e s i n g l e d o u t b y A n t o n i u s t o s h o w t h a t t h e e m p e r o r is t r u l y a

m o n a r c h . See a b o v e p . 3 1 9 n . 1 2 . A n d t h e y are cited b y K e c k e r m a n n a o n e indication that

the

m o n a r c h i c a l e l e m e n t p r e d o m i n a t e s in the G e r m a n m i x t u r e : 1608, n.iv, pp.57ofF. 16.

F o r a n o t h e r c o n t e m p o r a r y a c c o u n t s e e F r a n t z k e 1 6 2 1 , w h i c h is a c o m p e t e n t a n a l y s i s o f t h e s h a r i n g and distribution o f the rights o f majesty, and seems to be d e p e n d e n t o n B e s o l d and Arnisaeus.

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and expressly distinguished in the passage f r o m B e s o l d O t t o paraphrases (see p . 326). B e s o l d n e v e r suggests that the same rights o f s o v e r e i g n t y c o u l d be shared and d i v i d e d a m o n g the same partners at the same time that w o u l d o f course be l o g i c a l l y absurd. W i t h the appearance, in B e s o l d , o f a theoretically decisive account o f the divisibility o f s o v e r e i g n t y in a m i x e d constitution, w e b r i n g this chapter to a close. T h i s is n o t to suggest that all o f B e s o l d ' s conclusions w e r e i m m e d i a t e l y or universally taken u p . A l m o s t to the end o f the eighteenth century, there w e r e theorists w h o continued to treat the o b l i g a t i o n o f a k i n g to obtain consent to legislation as s o v e r e i g n t y limited rather than s o v e r e i g n t y shared (Gierke 1957, p . 154). A n d there w e r e s o m e w h o f o l l o w e d P u f e n d o r f in h o l d i n g that the several rights o f s o v e r e i g n t y c o u l d n o t be separated, so that the G e r m a n and e v e n the English constitution w e r e to be regarded n o t as p r o p e r states in w h i c h s o m e individual or b o d y ruled, but as irregular systems w h i c h w e r e held t o g e t h e r m e r e l y b y c o m i t y a m o n g independent p a r t s . Y e t such resistance n o t w i t h s t a n d i n g , a change o f perspective occurs a r o u n d the end o f the first quarter o f the seventeenth century o n w h i c h B e s o l d ' s influence, a l t h o u g h often indirect and difficult to measure, w a s n o d o u b t considerable (Gierke 1957, p . 118). A r o u n d that time the G e r m a n e m p i r e is deliberately e x p o u n d e d as a m i x e d consti tution, in s o m e t h i n g close to B e s o l d ' s usage o f that term, b y authoritative c o m m e n t a t o r s o n G e r m a n public l a w (see esp. H o k e 1968, pt 11). A n d a m o n g theorists o f s o v e r e i g n t y , there is an u n b r o k e n succession, starting w i t h B e s o l d , in w h o m the sharing o f s o v e r e i g n t y as w e l l as the distribution o f its parts are correctly identified as m o d e s o f m i x t u r e that are ultimately consistent w i t h the c o o r d i n a t i o n o f g o v e r n m e n t a l functions (Gierke 1957, p p . 1 5 5 - 6 , 1966, p . 170ft). 17

17.

Pufendorf 1934, pp. ioi6ff,

1038-9, 1769, ii.vii.9, pp. 6 9 3 - 5 , n.viii.12, pp. 706-8; G i e r k e 1957,

pp. 154-5.

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II

Utopianism J . C .

i

D A V I S

Christian social m o r a l i t y and the best state

In the fifty years after its first publication in 1 5 1 6 , T h o m a s M o r e ' s Utopia appeared in ten further Latin editions and in French, D u t c h , English, G e r m a n , and Italian translations. W i d e s p r e a d and p r o f o u n d as its influence w a s , its a m b i v a l a n c e generated b o t h Utopian and anti-utopian imitators. In other w o r d s , the spread o f M o r e ' s fictional d e v i c e — the ' d i s c o v e r y ' o f an ideal society — w a s n o t a l w a y s Utopian in its political t h o u g h t and the Utopian impulse proper w a s not necessarily derived in the profoundest sense f r o m the imitation o f a model. T h e fifteenth-century rediscovery o f Plato and Plutarch stimulated the early m o d e r n 'best state' exercise and e n c o u r a g e d a debate o n constitutions w h i c h replicated the seed-bed o u t o f w h i c h the classical Utopia had sprung (Logan 1983; Ferguson 1975, p . 28; M a n u e l and M a n u e l 1979, p p . 9 5 - 1 0 0 ) . B u t some aspects o f civic h u m a n i s m and o f R e f o r m a t i o n t h o u g h t endorsed and broadened the idea o f social r e d e m p t i o n t h r o u g h individual m o r a l performance, typified for the late m i d d l e ages b y the M i r r o r o f Princes tradition (Skinner 1978,1, p p . 126—35). Still others gradually excited a vast o u t p o u r i n g o f millennial expectation, especially o n the Protestant side o f the R e f o r m a t i o n divide. T h e s e t w o traditions o f discourse about social idealisation - b y individual m o r a l effort or b y a millennial and literal coup de grace — w e r e quantitatively m u c h m o r e i m p o r t a n t in early m o d e r n E u r o p e than the r e e m e r g e n t Utopian m o d e w h i c h existed in d i a l o g u e w i t h t h e m . It is helpful, therefore, to distingish utopianism as a f o r m o f social idealisation. If w e define Utopia as the e n v i s a g i n g o f a best commonwealth, o r ideal 1

1. D a v i s 1 9 8 1 a , c h . 1, 1 9 8 4 a ; c f . S a r g e n t 1 9 7 9 , I n t r o d u c t i o n ;

Pissavino 1985.

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society, o f sinful h u m a n beings in a fallen w o r l d w i t h o u t benefit o f divine a g e n c y , then M o r e m a y be said to h a v e reinaugurated the exercise. H e did so in a multi-faceted w o r k designed not o n l y to reconcile scholasticism w i t h h u m a n i s m , expedience or prudence w i t h virtue, Stoic and Epicurean w i t h Christian values, but also to counsel his f e l l o w Christian humanists against the self-indulgence o f criticism w i t h o u t praxis, satire w i t h o u t responsibility. Implicitly, the Utopia said that the task o f translating an agreed and correct set o f values into political practice i n v o l v e d m u c h m o r e than m o r a l exhortation. D i d others attempt the Utopian exercise in the same vein; in simple and a d m i r i n g imitation o f H y t h l o d a e u s rather than M o r e ; under the influence — as M o r e w a s — o f the monastic m o d e l ' s attempt to subdue sin in a social context; or for other reasons? T h e answers are, o f course, various. T h e frame w h i c h holds that variety together is not utopianism itself but the strenuous search for w a y s o f pursuing the best state/good life exercise o f the ancients so as to m a k e p r e d o m i n a n t l y Christian social m o r a l i t y effective. It w o u l d be w r o n g to see this as purely N e o p l a t o n i c in inspiration (Goldie 1983; cf. W h i t e 1982). It w a s far t o o eclectic for that and in its Utopian f o r m o w e d m u c h to the scholastics' emphasis o n l a w and institutions ( L o g a n 1983, pp. 7 5 - 7 ) . A considerable b o d y o f literature t h r o u g h o u t the period continued to see the best state/good life exercise as a m o r a l one, a matter o f w i l l , and hence tended in the direction o f the perfect m o r a l c o m m o n w e a l t h , h o w e v e r that m o r a l i t y w a s defined. A t one end o f the spectrum w a s M a c h i a v e l l i ' s analysis o f the p r o b l e m ofbuono ordini in an age o f corruption w i t h his resultant stress on h u m a n w i l l . C l o s e r association w i t h Christian aspiration, h o w e v e r , p r o d u c e d such w o r k s as Joannes Ferrarius M o n t a n u s ' A Work touching the Good Ordering of a Commonweal ( 5 5 9 ) w i t h its attempt to reconcile Stoic, Platonic and Christian concerns. T h e message remained simple: as ungodliness caused c o r r u p t i o n so godliness w a s the essential path to social perfection. Injunctions f r o m scripture, perhaps additionally f r o m the classics, w e r e the basis for social harmonisation via individual m o r a l r e n e w a l (e.g. Filippe 1584; Caraffa 1688). In the mid-sixteenth century Gaspar Stiblin, disgusted w i t h corrupt monasteries and d e c a y e d societies, called for m o r a l r e n e w a l and a social discipline o f austerity, asceticism, and r i g o r o u s ethics (Stiblin 1555; cf. Firpo 1963). F r o m the early seventeenth century Lipsian n e o - S t o i c i s m p o w e r f u l l y reinforced this tradition and extended its m o r a l exhortation f r o m princes to bureaucrats and standing armies (Oestrich 1982, Part 1, esp. p. 50). B y the later seventeenth century, writers in this m o d e w e r e I

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Utopianism b e g i n n i n g to attenuate the Christian m o r a l basis o f social r e n e w a l b y depicting perfect m o r a l c o m m o n w e a l t h s based o n natural or rational principles, buttressed i f necessary b y rational rather than revealed religion (e.g. Gilbert 1700). U n d e r s t a n d a b l y , in a hierarchical and almost u n i v e r s ally m o n a r c h i c a l society, the m o s t prolific f o r m o f w r i t i n g w a s that w h i c h focused o n the m o r a l responsibilities and p e r f o r m a n c e o f princes and their advisers. A n t o n i o de G u e v a r a ' s Relox de lesprincipes (1529) m a y t y p i f y this perfect prince literature. T h e education o f the prince and his advisers w a s frequently seen as a prerequisite o f their perfect rule but it w a s m o r a l , rather than prudential, education w h i c h w a s stressed. In this sense, Erasmus' The Education of a Christian Prince (1516) fits into this tradition and w e should r e m e m b e r that M o r e ' s Utopian fiction o f the same year m a y in part be read as a critique o f attitudes behind that w o r k . In a republican, rather than imperial or monarchical, setting the focus shifted f r o m the m o d e l e m p e r o r or prince to the virtuous aristocracy. S o the ideality o f T r a i a n o B o c c a l i n i ' s ideal V e n i c e w a s sustained b y an aristocracy w h i c h invariably g a v e preference to public g o o d o v e r private interest and did so, not because o f any peculiar institutional constraints, but because o f their e x e m p l a r y m o r a l character (Boccalini 1706, A d v i c e s v , x x v ) . Nevertheless, in a century, the seventeenth, w h e n hierarchy w a s challenged f r o m b o t h a b o v e and b e l o w and the aspirations o f m o n a r c h y c a m e under attack, there w a s a tendency to shift f r o m reciting the m o r a l precepts fit for princes to analysing the legal and institutional f r a m e w o r k necessary to sustain princely perfection. It w a s necessary to m o u l d the people's manners ' b y W h o l s o m e L a w s ' and to model royal government 'by good Policy'. A s w e m o v e f r o m the M i r r o r o f Princes to regulated m o n a r c h y idealised, w e m a y observe that the greater the doubts about h u m a n m o r a l performance, the harsher the sanctions i n v o k e d . Eberlein's Wolfaria (1521) v e r g e d o n the hysterical w i t h its demands for the d r o w n i n g o f drunkards, public e x e c u t i o n o f adulterers, and decapitation o f those w h o taught 'any prayer but the L o r d ' s p r a y e r ' (Eberlein 1521). T h e ' p r o f o u n d P e a c e ' o f G e o r g e Psalmanazar's idealised F o r m o s a w a s based on violent and harsh punishments severely e x e c u t e d (Psalmanazar 1704, p p . 1 6 3 - 6 , 2 1 4 ) . In a M a c h i a v e l l i a n sense, it w a s recognised that severity w a s necessary i f corrupt customs w e r e to be o v e r c o m e in creating a virtuous society, but c u s t o m c o u l d appear stronger than force. For P a o l o Paruta the true f o r m o f 2

3

2.

G u e v a r a 1529; Furio C e r i o l 1570?; Torres 1596; B e l l a r m i n e 1 6 1 9 ; Santa M a r i a 1650; Saavedra Fajardo

3.

1 7 0 0 ; Salici 1 6 2 7 ; M e n d o 1 6 6 2 . F o r F a j a r d o ' s n e o - S t o i c i s m , see O e s t r i c h 1 9 8 2 , p . 103.

B a r n e s 1 6 7 5 ; s e e a l s o F e n e l o n 1 7 0 1 ; V a i r a s s e D ' A l l a i s 1 7 0 2 ; Antiquity

Reviv'd

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1693; R . H .

1660.

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g o v e r n m e n t w a s that ' b y w h i c h p e o p l e l i v i n g in peace and union, m a y w o r k righteously, and obtain civil Felicity'. B u t ' i m m o d e r a t e A u t h o r i t y ' and violent sanctions w o u l d o n l y unbalance the c o m m o n w e a l t h i f the p r o b l e m o f c u s t o m w e r e n o t addressed. in a well-ordered City, the Laws ought to be confirmed by the Manners and Education o f the Citizens, the which is o f more force to make men honest, than is the fear o f punishment; nay, from hence Actions arise according to true Honesty and Vertue; for they proceed from a vertuous Habit, which is only acquired by Exercise. For this ' g o o d institutions o f life' w e r e necessary and Paruta's w o r k b e c a m e a search for institutionally w e l l - b a l a n c e d c o m m o n w e a l t h s in the P o l y b i a n sense (Paruta 1657, esp. p p . 1 , 3 , 1 1 ) . T h e search for the best c o m m o n w e a l t h w o u l d result then in c o m p e n d i a o f c o m p a r a t i v e constitutionalism or, m o r e or less fictive, political gazetteers. T h e k n o w l e d g e associated w i t h such e n c y c l o p a e d i c enterprises c o u l d be i m a g i n e d as incorporated in the miracle l a w m a k e r — S o l o n , L y c u r g u s , U t o p u s — w h o s e skills in constitutional architecture w e r e such as to e n g e n d e r n e w forms o f b e h a v i o u r as if they had been ancient c u s t o m (see Paruta 1657, p . 1 1 , on L y c u r g u s ) . T h e point, h o w e v e r , w a s to establish g o o d customs b y appropriate institutions and this approach linked utopianism w i t h constitutionalism in an a m b i v a l e n t relationship. If w e take constitutionalism to be c o n c e r n e d w i t h the setting up o f institutional contrivances to enable g o v e r n m e n t to p r o c e e d w i t h o u t personal dependence in a w o r l d o f deficient actors, then utopianism has, w i t h constitutionalism, a c o m m o n purpose. T h a t is the p r e v e n t i o n o f c o r r u p t i o n associated w i t h anti-social viciousness, o f the pursuit o f selfinterest against the collective interest, and o f the effects o f sheer laxity and i g n o r a n c e . H o w e v e r , whereas constitutionalism seeks to limit the anti social effects o f these things in order that politics m a y continue, policies be chosen, adapted or a b a n d o n e d in pursuit o f the c o m m o n g o o d , utopianism stops that pursuit o f p o l i c y . Its constitutional engineering is d e e m e d so c o m p l e t e that there is n o l o n g e r any need for p o l i c y . 4

T h e p e r c e i v e d obstacles to the a c h i e v e m e n t o f an ideal society w e r e sin and pride, fortuna, and the ironies o f m o r a l inefficiency. In the ideal o f heroic m o r a l p e r f o r m a n c e and efficiency — the perfect m o r a l c o m m o n w e a l t h — these w e r e o v e r c o m e b y e x e m p l a r y m o r a l performance. In the m i l l e n n i u m they w e r e o v e r c o m e b y the s w o r d o f justice and j u d g e m e n t in the hands o f a returned redeemer and his saints. In A r c a d i a or C o c k a i g n e social p r o b l e m s dissolved in individual satisfaction or satiation. In all four 4.

E . g . S a n s o v i n o 1 5 7 8 ; C a v a l c a n t i 1 8 0 5 ; B o t e r o 1 6 5 9 ; Treasurie

1613-19.

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Utopianism cases the obstacles w e r e o v e r c o m e or brushed aside. In Utopia they persisted and must be contained rather than abolished. H u m a n beings remained recalcitrant in their pride, sinfulness, and e g o t i s m . D e v i a n c e w a s n o t o n l y a necessary feature o f Utopia, it w a s essential if the efficacy o f Utopian controls w e r e to be realised ( F o x 1969). Isolation w a s one recourse against fortuna but watchfulness, discipline, and c o n t r o l w e r e also necessary. T i g h t discipline and severely circumscribed choice reduced the g a p between m o r a l intention and m o r a l consequences but n e v e r entirely eliminated it. In Utopia social p r o b l e m s w e r e contained, n o t dissolved or o v e r c o m e , and the Utopian approach to c o n t a i n m e n t w a s therefore holistic, systemic, and continuous. E v e r y aspect o f life must be regulated in a coordinated w a y . Institutions, educational p r o g r a m m e s , legal sanctions, and c u s t o m must c o n v e r g e to the desired end, and all o f these processes must operate impersonally and continuously. O n e o b v i o u s m o d e l for such an operation w a s the m e d i e v a l monastic ideal and this is reflected in the Utopias o f M o r e , C a m p a n e l l a , Franceso D o n i , Eberlein, and J o h a n n V a l e n t i n A n d r e a e (Seibt 1980; L a p o u g e 1973; C o l e m a n 1982; S e g u y 1 9 7 1 ) . W h a t is distinctive a b o u t the Utopian writers o f the early m o d e r n period is that they project this totalism o f discipline and c o n t r o l o n to society at large. T h e i r cue is Solonic: 'I h a v e m a d e laws, for the g o o d m a n and the bad alike, and shaped a rule to suit each case, and set it d o w n ' (Ferguson 1 9 7 5 , p. 44). T h e i r inspiration is frequently classical but, w e must ask, w h a t is the c o n t e m p o r ary intellectual b a c k g r o u n d to this w a y o f s o l v i n g the p r o b l e m o f social idealisation? O n e dimension o f the recurrent Renaissance exercise o f fusing the scholastic and the humanist w a s the search for an institutional c o n t e x t for virtue. In his Utopian variant, M o r e , in i m p l i e d criticism o f the effective limits o f the m o r a l e x h o r t a t i o n and satire typical o f the w o r k o f his humanist friends, envisaged an institutional grid w i t h i n w h i c h virtue w a s e m b o d i e d and to a large degree predetermined. C e n t r a l to the final configuration, h o w e v e r , w a s the question: w h a t is virtue? T h e r e w a s a hiatus b e t w e e n the Christian humanist answer that virtue w a s the realisation o f the philosophia Christi, o b s e r v i n g a preset, fixed, m o r a l c o d e t h r o u g h acting in charity to G o d and m a n , and the civic humanists' answer derived f r o m Aristotle and B o e t h i u s that virtue w a s s o m e t h i n g realised and defined in action b y the operation o f h u m a n w i l l in a civic setting ( P o c o c k 1975, Part 1). In the f o r m e r case, i f all acted a c c o r d i n g to the c o d e as interpreted for their social role, the ideal society o f the perfect m o r a l c o m m o n w e a l t h w o u l d be realised; but this did m e a n suspending belief in the irremediable sinfulness o f h u m a n i t y . In the latter, or civic humanist, 333 Cambridge Histories Online © Cambridge University Press, 2008

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case the prospect o f a polarisation b e t w e e n g o o d citizen and g o o d man, in the Christian sense, b e g a n to o p e n up; a polarisation w h i c h b e c a m e identified w i t h the w r i t i n g s o f M a c h i a v e l l i . M o r e attempted in the Utopia to resolve the g o o d m a n / g o o d citizen, m o r a l i t y / e x p e d i e n c y issue b y s h o w i n g that the pursuit o f a rational self-interest, i n c l u d i n g that o f a carefully defined pleasure (Surtz 1957; M o r e 1965, Introduction, Part 1, b y J.H. H e x t e r ) , and the pursuit o f virtue c o u l d be reconciled in a w o r l d o f less than perfect and less than m o r a l l y heroic individuals. B u t virtue w a s predetermined and M o r e did n o t leave sinful h u m a n s l i v i n g in a deficient natural order to struggle unaided for m o r a l a c h i e v e m e n t and social h a r m o n y . R a t h e r a grid o f institutional regulation, bureaucratic sur veillance, and educational socialisation l o c k e d virtue o n to the people, rulers and ruled alike, and dealt w i t h t h e m w h e n they threatened to elude its grasp. T h e m o r a l p h i l o s o p h y o f M o r e ' s U t o p i a n s w a s central to his w h o l e design, and social m o r a l i t y has remained the issue central to utopianism. T h e m o m e n t at w h i c h this sort o f choice again b e c a m e relevant w a s , h o w e v e r , a m o m e n t in the broader intellectual history o f the late Renaissance. For Utopia reemerges as a means o f s o l v i n g or restating an intellectual p r o b l e m ; its initial function is in the realm o f ideas not o f praxis. T h e desire to g i v e coherence, i f not synthesis, to the currents o f n e o - S t o i c , scholastic, and humanist t h o u g h t , w i t h the r e a w a k e n i n g o f Christian social aspiration as catalyst, is the b a c k g r o u n d out o f w h i c h the idea o f Utopia sprang. It has repeatedly been argued that other elements contributed to that m o m e n t : the transition f r o m feudalism to capitalism (e.g. M a r i n 1984, pp. 153, 1 9 8 - 9 ) ; the d i s c o v e r i n g o f the N e w W o r l d (Levin 1970, p. 68); state b u i l d i n g , gross instability, and the perceived inadequacies o f curial politics. A l l o f these appear a m o r e tangible seed-bed but in fact turn out to be b o t h difficult to grasp and hard to relate to the concerns o f specific Utopias. W h a t is clear is the radical nature o f Utopia's e m e r g e n c e in the realm o f political t h o u g h t . It ran athwart the political languages o f the sixteenth and seventeenth centuries; rejecting i m m e m o r i a l i s m , cutting across constitutionalism, a b a n d o n i n g patriarchalism, classical republican ism and order theory, and turning its b a c k on ideas o f s o v e r e i g n t y . A s w h a t G o e t h e called a ' p e d a g o g i c p r o v i n c e ' , it w a g s its finger at other m o d e s o f t h o u g h t . A s 'a figure in discourse', it is ' w r i t t e n and i m a g i n e d w i t h i n the discourse w h i c h criticises it' and w h i c h it, in turn, criticises. 5

5.

F o r G o e t h e see S t e r n 1 9 8 0 - 1 , p . 99; M a r i n 1 9 8 4 , p . x x i .

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ii

H o l y experiments in a fallen w o r l d

T h e r e w e r e , o f course, a n u m b e r o f alternative discourses in this period to w h i c h Utopian constructs m i g h t relate and w e m a y distinguish types o f Utopia a c c o r d i n g l y . M o r e ' s Utopia identified itself, in the text as w e l l as in the prefatory and appended letters and verses, as a p r o d u c t o f a humanist concern w i t h literature, l a n g u a g e , and m o r a l p h i l o s o p h y . B u t the axis o f the w o r k is the suggestion that there is a c o n c e i v a b l e social ideal in w h i c h fallible h u m a n s live in a society o f m o r a l d i g n i t y and w o r t h w i t h o u t the aid o f revelation and that, m o r e o v e r , such an ideal cannot be arrived at b y m o r a l effort in a curial c o n t e x t or e v e n b y the legislative effort ( M o r e 1965, p. 103) o f g o o d m e n s t r u g g l i n g in a corrupt w o r l d . H o w e v e r i m a g i n a t i v e , fictional, or satiric the device, therefore, M o r e has to suggest w a y s in w h i c h political and social arrangements c o u l d be m a d e w h i c h w o u l d c o n d u c e to that end. H e had to think t h r o u g h s o m e o f the fundamental issues o f politics, but not all o f t h e m . For, w h i l e he had to w o r k with fallible h u m a n material, he did n o t h a v e to w o r k through it. T h e first stage in the solution o f the p r o b l e m w a s a w o r k o f supreme artifice: the creation o f an artificial island b y m a n u a l e x c a v a t i o n . T h e second w a s to construct a constraining social and institutional order w h i c h w o u l d o b l i g e fallible h u m a n beings to b e h a v e in w a y s c o m p a t i b l e w i t h social h a r m o n y and m o r a l i t y . H u m a n beings a l w a y s acted reasonably in pursuing their interests as defined b y circumstance. T h e point w a s , therefore, to reconstruct social circumstance so as to reconcile private and c o m m u n a l interest. A c c o r d i n g l y , since private p r o p e r t y inspired o n l y private interest, c o m m u n a l p r o p e r t y must be substituted for it ( M o r e 1965, p p . 237—9). T h e institutional, legal, and educational apparatus o f Utopia w a s carefully designed, in extension o f this, to g u i d e flawed individuals into better social performance. O r g a n i s a t i o n and a bureaucratic order w e r e perfected to this end and this w a s the essential perfection o f Utopia. Individual citizens c o u l d fail to meet the required standards, and punishments, i n c l u d i n g slavery and death, must be sustained to c o n t r o l and c o n d i t i o n b e h a v i o u r . B e y o n d this the system o f c o n t r o l and c o n d i t i o n i n g w a s seen as total in its s w e e p . A l l acts and relationships w e r e subject to control. A l l w e r e public; n o n e private (Davis 1981a, p p . 5 2 - 4 ) . 6

A l m o s t a century later, C a m p a n e l l a ' s City of the Sun pursued the same themes. Private p r o p e r t y w a s the source o f self-love. ' W h e n self-love is

6.

F o r a l t e r n a t i v e a p p r o a c h e s t o c a t e g o r i s a t i o n see M a n u e l a n d M a n u e l 1 9 7 9 ; T h o m a s 1 9 8 5 ; S h k l a r 1969; Hansot

1974; Holstun

1987.

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destroyed, o n l y c o n c e r n for the c o m m u n i t y remains' ( C a m p a n e l l a 1981, p. 39). B u t the attack e x t e n d e d b e y o n d the p r i v a c y o f p r o p e r t y to sexuality and to personal characteristics such as generosity, fortitude, diligence, and so o n (ibid., p p . 22, 28-33). In these respects, the differences b e t w e e n M o r e and C a m p a n e l l a w e r e ones o f degree and detail rather than substance. T h e m o s t significant contrast b e t w e e n the t w o related to science and scientific k n o w l e d g e . C a m p a n u l a ' s ideal city w a s in f o r m a h u g e m e m o r y system w i t h all scientific k n o w l e d g e depicted o n its concentric walls. Scientific k n o w l e d g e w a s already c o m p l e t e and c o u l d be k e p t in ' o n l y one b o o k ' . T h e r e w a s n o m e n t i o n o f scientific research. M o r e o v e r , science, associated b y C a m p a n e l l a w i t h astrology, w a s the k n o w l e d g e o f natural l a w and regularity. L i k e r i g i d l y enforced civil l a w it countered the appearance that the w o r l d w a s ruled b y chance, a realm o f c o n t i n g e n c y . M o r e ' s U t o p i a n s a l l o w e d for miracles ' w h i c h o c c u r r e d w i t h o u t the assistance o f nature' ( M o r e 1965, p . 137). C a m p a n e l l a ' s m a d e n o such a l l o w a n c e . Francis B a c o n affords y e t another contrast w i t h C a m p a n e l l a , for, w h i l e the latter assumed the existence o f a finite and c o m p l e t e b o d y o f scientific k n o w l e d g e at the service o f the Utopian state, B a c o n attempted to portray an ideal society in w h i c h scientific activity remained a c o n t i n u i n g activity. B u t this, as B a c o n recognised, w a s to e m b r a c e the freedom, fortuity, and p o w e r o f scientific d i s c o v e r y w i t h i n a f r a m e w o r k o f total c o n t r o l m a d e necessary b y the aberrance o f individuals. B a c o n ' s scientists w e r e thus a m b i g u o u s l y depicted as m o r a l paragons charged w i t h adjudicating on the apparently miraculous but also liable to cheat and lie, and therefore subject to the same controls as other citizens ( B a c o n 1627, p. 43). In the New Atlantis these contradictions c o m e h o m e to roost and they h a v e d o g g e d the scientific Utopia ever since; either Utopia controls science or science subverts Utopia (Davis 1984b; T h o m a s 1985, p. 167). Nevertheless, g i v e n the early m o d e r n c o m m o n p l a c e that science, as k n o w l e d g e , w a s p o w e r , it is remarkable that so little political theorising, other than the Utopian, attempted to c o m e to terms w i t h science in the period ( M a n u e l and M a n u e l 1979, p. 2 1 3 ) . 7

B a c o n ' s f o l l o w e r s c o u l d escape the tensions generated in his unfinished Utopian exercise b y transferring his scientific aspirations to a millennial c o n t e x t ( W e b s t e r 1 9 7 5 ; T u v e s o n 1964). T h e r e w a s an element o f this, t o o , in the pansophist aspiration o f a chain o f scientific and religious figures running f r o m G i o r d a n o B r u n o t h r o u g h C h r i s t o p h e r B e s o l d , J o h a n n 7.

C a m p a n e l l a 1 9 8 1 , p p . 1 8 - 2 0 , 60. O n this t h e m e see D a v i s 1984a.

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Utopianism Heinrich A l s t e d , and A n d r e a e to L e i b n i z (Hall 1972; M a n u e l and M a n u e l 1979, Part in). It w o u l d be mistaken to overemphasise the Utopian f o r m o f this, as it w o u l d the hermetic content (Vickers 1979). T h e millennial element, m o r e e v i d e n t in so m u c h o f this p o s t - R e f o r m a t i o n e x c i t e m e n t and despair, c o u l d readily lead to a perfect m o r a l c o m m o n w e a l t h o r an A r c a d i a n h a r m o n y . In this context, it w a s a Protestant emphasis o n g o d l y

discipline w h i c h w a s more likely to lead to Utopia. A t its loudest and most punitive, this can b e seen in Eberlein's Wolf aria (1521), in more s o phisticated f o r m in A n d r e a e ' s Christianopolis (1619). B o t h o f these Lutheran

Utopias confronted the p r o b l e m o f h o w the godly society could b e established in a sinful and chaotic w o r l d . N o t surprisingly, the answer c a m e to l o o k r e m a r k a b l y monastic, o r in A n d r e a e ' s case, and despite the religious differences, w a s m o d e l l e d o n w h a t he saw as 'the guidance o f social life' in G e n e v a ( M o n t g o m e r y 1973, 1, p p . 4 3 - 4 ; A n d r e a e 1 9 1 6 , p p . 1 3 , 2 7 - 8 ) . A c c e p t i n g the l o n g haul facing Lutheran r e f o r m in his day, A n d r e a e placed elaborate stress o n education. U n d e r C o m e n i a n influences, this t h e m e flourished again in m i d - s e v e n t e e n t h - c e n t u r y E n g l a n d . S a m u e l G o t t ' s Nova Solyma (1648) attempted to reconcile millenarian and Utopian impulses b y setting an ideal society o f c o n v e r t e d J e w s in the H o l y Land, itself a s y m b o l o f the Last D a y s . B u t his w o r k , and his education theory, w a s riven b y tensions b e t w e e n the self-rule appropriate to the saints and the g o d l y discipline necessary to the natural m a n . Despite strenuous efforts to d e v e l o p an educational t h e o r y and practice w h i c h c o u l d free the o n e and constrain the other, the tensions remained (Davis 1981a, c h . 6). O n e approach to resolving those tensions w a s the w i t h d r a w a l o f the saints into a h o l y e x p e r i m e n t . In an a m b i e n c e o f sectarian proliferation and e x p e r i m e n t , m i d - s e v e n t e e n t h - c e n t u r y E n g l a n d s a w a scattering o f sectt y p e , small c o m m u n i t y experiments and w r i t i n g s . F r o m the first it w a s recognised that e c o n o m i c viability w a s -a critical p r o b l e m for such experiments. S o Peter C o r n e l i u s P l o c k h o y ' s A Way Propounded (1659?), p r o p o s i n g equality, had to elaborate detailed e c o n o m i c arrangements for the p r o d u c t i o n and distribution o f g o o d s w i t h i n his society and in c o m m e r c e w i t h a w i d e r w o r l d . T h i s w a s also a feature o f J o h n Betters' Proposals for Raising a College of Industry (1695). Bellers s a w his proposed c o m m u n i t y as b e i n g financed o n a j o i n t - s t o c k basis and in m a n y w a y s anticipated the idealised organisation o f the p r o t o - f a c t o r y as set forth, for e x a m p l e , in the Law Book o f the C r o w l e y i r o n w o r k s in north-east E n g l a n d ( P l o c k h o y 1659?; Bellers 1695, ! 9 ^ 7 ; Flinn 1957; D a v i s 1981a, c h . 1 1 ) . A variant o n this resolution o f the tensions b e t w e e n the Christian liberty 337 Cambridge Histories Online © Cambridge University Press, 2008

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o f the saved and the g o d l y discipline o f all c o u l d be observed in the w r i t i n g s o f Gerrard W i n s t a n l e y . In his w r i t i n g s o f 1648—9 W i n s t a n l e y envisaged universal r e d e m p t i o n and the dissipation o f forms o f social control. B e t w e e n 1649 and 1652 he m o v e d from small c o m m u n i t y experiments — the D i g g e r s — o f w h o s e actual organisation w e k n o w v e r y little but w h i c h w e r e c o n c e i v e d in a spirit o f millenarian expectation, to a v e r y detailed set o f proposals for a m u c h broader scheme to be sponsored, as he h o p e d , b y C r o m w e l l . The Law of Freedom (1652) p r o p o s e d a c o m m u n i s t i c society for all those w i l l i n g to settle o n waste and c o m m o n land plus the confiscated estates o f the k i n g , church, and royalists. C o m m o n w e a l t h ' s g o v e r n m e n t w o u l d be set up w i t h o u t c o m m e r c e , under, continuous supervision and subject to ' L a w s for e v e r y occasion and almost for e v e r y action that m e n d o . ' Sin, 'unreasonable i g n o r a n c e ' , and covetousness m a d e l a w necessary. T r u e f r e e d o m w a s not to be confused w i t h c o m m e r c i a l freedom, liberty o f preaching, sexual freedom, or inequality. 'True Commonwealth's Freedom liesin thefree Enjoyment of the Earth' (Winstanley I 9 4 i , p p . 5 1 5 , 5 1 9 , 528-9). A l l these things w e r e to be subject to c o n t r o l and supervision. W i n s t a n l e y m o v e d , therefore, f r o m the r e d e m p t i o n o f all and their consequent liberty, to a vision o f society l o c k e d in battle w i t h covetousness and w a y w a r d n e s s , c o m p r e h e n s i v e in its pursuit o f g o d l y discipline. Peter C h a m b e r l e n ' s The Poore Mans Advocate (1649), w i t h its proposal to settle the p o o r , o n w h a t W i n s t a n l e y called c o m m o n w e a l t h s land, to b e c o m e self-supporting and relieve the propertied o f tax burdens, m a y be read as an ironic counterpoint to the m o r e c o m p r e h e n s i v e proposals o f The Law of Freedom ( C h a m b e r l e n , 1649). 8

A n attempt to reconcile Protestant aspirations and classical republican ism o f a P o l y b i a n / M a c h i a v e l l i a n kind w a s m a d e in the French Utopia o f 1616, Histoire du Grand et Admirable Royaume d'Antangil (Lachevre 1933). Set south o f Java, the island o f A n t a n g i l w a s d i v i d e d into 120 p r o v i n c e s and, in decadic fashion, into g r o u p s o f households, parishes, and t o w n s . A C o u n c i l o f State o f three wise, prudent, and experienced m e n f r o m each p r o v i n c e advised the k i n g and a senate o f 100 great and w i s e m e n . T h e wickedness o f m e n m a d e a m o n a r c h necessary but kings themselves w e r e subject to c o r r u p t i o n and viciousness. B a l a n c e w a s therefore necessary; a k i n g as a c h e c k o n o l i g a r c h y , a senate as a c h e c k o n t y r a n n y . T h e system w a s described in the i m m e n s e detail typical o f the early m o d e r n Utopia, 9

8.

F o r t h e d i s p u t e o v e r w h e t h e r W i n s t a n l e y s a w t h e n e e d f o r r e p r e s s i o n as p e r m a n e n t s e e D a v i s 1 9 7 6 ; Hill 1986.

9.

L a c h e v r e 1 9 3 3 , c h s . i n , i v , v . 'il n e s'est v e n a u c u n b o n R o y e n q u a t r e o u c i n q c e n t s a n s ' p . 4 3 .

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Utopianism w i t h special emphasis o n military and j u d i c i a l organisation and o n education. T h e idealisation o f a m i x e d constitution c o u l d focus o n an existent state, usually a city-state, as in L u d o v i c o Z u c c o l o ' s m y t h o f San M a r i n o or Gasparo C o n t a r i n i ' s o f V e n i c e ( M a n u e l and M a n u e l 1979, p p . 151—3).The m o s t elaborate attempt to recast the classical republican ideal for a large rural society w a s James H a r r i n g t o n ' s Oceana (1656). B u t H a r r i n g t o n ' s emphasis w a s ultimately n o t so m u c h o n the f r e e d o m w i t h w h i c h participating citizens should be e n c o u r a g e d to exercise their civic responsi bilities as o n m a k i n g the republic inviolable to sin and corruption; 'it is the d u t y o f the legislator to presume all m e n w i c k e d ' (Harrington 1977, p . 290). T o reconcile p o w e r and authority; the one, the f e w , and the m a n y ; the bearing o f arms and the exercise o f citizenship, H a r r i n g t o n d e v e l o p e d a constitutional apparatus o f such c o m p l e x i t y that the m a c h i n e r y w a s all. Participation w a s reduced to privatised ritual rather than social interaction (Davis 1981a, ch. 8, 1981b). W h i l e J . G . A . P o c o c k has identified as n e o H a r r i n g t o n i a n those w h o s o u g h t to free H a r r i n g t o n ' s t h o u g h t f r o m the m a c h i n e r y and reestablish a participatory ideal, others, in Utopian v e i n , continued the elaboration o f constitutional contrivances (Davis 1981a, ch. P > H a r r i n g t o n ' s p r o b l e m and his response 9; P o c o c k 1975, chs. 1 2 - 1 4 ) . to it w e r e integral to the p r o b l e m o f a P o l y b i a n balance in a society w h e r e a k i n g had been e x e c u t e d for a t t e m p t i n g to subvert the laws, w h e r e the threat o f a ^militarily based o l i g a r c h y w a s real, and w h e r e the spectre o f popular anarchy or antinomian excess appeared equally real. m

a r t

In the c o n t e x t o f the Italian city-states a m o r e aristocratic, i f equally Utopian, version o f the classical republic c o u l d be pursued. In Francesco Patrizi's La Cittafelice, citizenship w a s limited to the leisured — military c o m m a n d e r s , magistrates, and priests. Slaves and the c o m m o n people w e r e to be carefully controlled. L e o n Battista A l b e r t i , in a sense, p r o v i d e d the architectural setting for this two-class society w i t h different designs for the rural h o u s e h o l d and the city. L u d o v i c o A g o s t i n i , in his La Repubblica Imaginaria, insisted o n the o b l i g a t i o n o f all, i n c l u d i n g nobles and scholars, to w o r k , b u t political participation w a s restricted to the nobility w h o w e r e e x p e c t e d to respond in terms o f the highest paternalistic m o r a l standards ( M a n u e l and M a n u e l 1979, p p . 1 7 0 - 2 , 1 7 4 - 5 ) . A t this point, Utopia, concentrating o n the m o r a l standards o f an ideal aristocracy, begins to m e r g e w i t h a perfect m o r a l c o m m o n w e a l t h , and m a y be seen as an extension o f the municipal courtesy b o o k , w e a n i n g the aristocrats f r o m a c o m m u n i t y o f h o n o u r to a c o m m u n i t y o f civility ( C u r t i n 1985). 339

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G r o w i n g k n o w l e d g e o f the N e w W o r l d stimulated not o n l y the ' d i s c o v e r y ' o f ideal societies but the sense o f a tabula rasa o n w h i c h n e w forms o f ideal society c o u l d be depicted. A l m o s t a l w a y s the initial f o r m u l a t i o n w a s A r c a d i a n . F r o m C h r i s t o p h e r C o l u m b u s t h r o u g h Peter M a r t y r V e r m i g l i to B a r t o l o m e de Las Casas the e x p e c t e d encounter w a s w i t h n o b l e savages inhabiting a g o l d e n age, the simplicity and innocence o f w h i c h w e r e to be contrasted w i t h E u r o p e a n civilisation and sophistry (Levin 1970, p . 68). In 1 5 1 6 , the year o f the Utopia, Las Casas planned to c o m p l e t e the m o d e l o f C u b a , Hispaniola, San Juan, and Jamaica b y adding Christianity. In the 1530s V a s c o de Q u i r o g a , seeing that c o n t e m p o r a r y E u r o p e a n customs w e r e n o t appropriate for the G o l d e n A g e , re c o m m e n d e d the implementation o f M o r e ' s Utopian design. In the first h a l f o f the seventeenth century the Jesuits in B r a z i l , U r u g u a y , A r g e n t i n a , and P a r a g u a y s o u g h t in their reductions to maintain the innocence o f the natives t h r o u g h a paternalistic and m o r a l l y controlled c o m m u n i s m . Spain's first fictional Utopia, Sinapia (c. 1682), still reflected faith in a paternalistic, p r i m i t i v e c o m m u n i s m , w i t h a purified Christianity p r o v i d i n g strong m o r a l guidance. B u t , in the same w o r k , m i x e d forms o f g o v e r n m e n t w e r e appearing w i t h an elected prince and magistracy as w e l l as careful separation o f judicial, military, and religious offices ( C r o 1979; C a r a v a g l i a 1981). R u n n i n g t h r o u g h the multifarious depictions o f social ideality in a N e w W o r l d setting are contrasting themes o f A r c a d i a n p r i m i t i v i s m and Utopian constraint. B y the later seventeenth century, m i x e d g o v e r n m e n t forms c a m e to p r e d o m i n a t e in the latter. A s early as 1594, R i c h a r d B e a c o n , addressing the p r o b l e m s o f E n g l a n d ' s 'first c o l o n y ' , Ireland, c o u l d settle that t h e m e in a M a c h i a v e l l i a n meditation o n the r e f o r m o f the Irish w h i c h is in m a n y w a y s a striking anticipation o f H a r r i n g t o n ( B e a c o n 1594). B u t , closer to the tabula rasa o f the N e w W o r l d , greater e x t r e m e s c o u l d , at least at first, be c o n t e m p l a t e d . N o w h e r e is the transition in terms o f ideality better expressed than in the early history o f V i r g i n i a . D e s c r i b e d in 1606 as 'Earth's o n l y Paradise' ( D r a y t o n 1606), V i r g i n i a ' s A r c a d i a n status soon slipped into d a m n a t i o n t h r o u g h the wilfulness and sinfulness o f m e n . B y 1609, quarrelling, faction, disorder, disease, famine, and retaliation b y the natives had reduced the c o l o n y to chaos. O f 900 w h o had e m i g r a t e d to V i r g i n i a o n l y 60 s u r v i v e d . B e t w e e n 1609 and 1 6 1 1 Sir T h o m a s Gates, T h o m a s W e s t and Sir T h o m a s D a l e elaborated a series o f rules for the c o l o n y w h i c h w e r e codified and edited b y W i l l i a m Strachey in 1 6 1 2 as Lawes Divine, Morall and Martiall. G o d l y discipline pursued the devil in 340

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Utopianism V i r g i n i a w i t h a v e n g e a n c e . Impiety, b l a s p h e m y , and insubordination b e c a m e capital offences. Sabbatarianism and a r e g i m e o f daily w o r s h i p w e r e strictly enforced. T r a d e , the disposition o f property, prices, and h y g i e n e w e r e closely controlled. Discipline in the wilderness paid close attention to w o r k , tools, trade w i t h the natives, and m o r a l order generally (Strachey 1612). A similar pattern^ m a y be observed in P l o c k h o y ' s proposals for the D u t c h c o l o n y o f the N e w Netherlands in the 1660s (Harder and Harder 1952, ch. 4 and pp. 174—204). In p o s t - R e s t o r a t i o n E n g l a n d a m o r e aristocratically detached attitude to the possibilities o f colonial s e l f - g o v e r n m e n t c o u l d be taken. T h i s is reflected in the consti tutions devised for N e w Jersey in the 1660s and 1670s, all c o m b i n a t i o n s o f Leveller and H a r r i n g t o n i a n ideals ( B o y d 1964). T h e C a r o l i n a constitution o f 1669, w h i c h appears to h a v e been w r i t t e n b y J o h n L o c k e , w a s m o r e directly classical-republican and H a r r i n g t o n i a n in inspiration, but the most elaborate exercise o f this t y p e w a s the 1683 scheme for the g o v e r n m e n t o f Pennsylvania. 10

A l w a y s there w a s a tendency for Utopia to blur into other ideal society forms. T h e c o n v e n t i o n s o f the Utopian genre m i g h t be maintained but there c o u l d be a subversive softening o f focus w i t h regard to substance. form O n e sees this, for e x a m p l e , in Joshua Barnes' Gerania (1675), Utopian, in fact A r c a d i a n ; or b y the early eighteenth century in S i m o n Berington's Memoirs of Sigr. Gaudentio di Lucca (1737) depicting a society u n t o u c h e d b y the Fall and ruled, in familial bliss, b y natural l a w (Barnes 1675; B e r i n g t o n 1737). m

A s w e h a v e seen, and as Fenelon's Telemachus w o u l d remind us, Utopia, especially in its monarchist forms, c o u l d spill o v e r into perfect m o r a l c o m m o n w e a l t h or s o m e t h i n g a p p r o a c h i n g the M i r r o r o f Princes tradition. T h e m e r e existence o f the perfect Utopian l a w g i v e r - Utopus, S o l a m o n a , O l p h a e u s M e g a l e t o r — w o u l d appear to c o n f i r m this. W a s this the Utopian concession to the final dependence o f things social o n g o o d nature and g o o d w i l l : the chink in the Utopian armour? O r , w a s the Utopian l a w g i v e r G o d ? If this w e r e so, the l a w s o f Utopia w o u l d be divine or natural l a w . Utopia w o u l d be a realm o f grace, transcending sin, not a w o r l d o f contrivance l o c k e d in battle w i t h sin. In A r c a d i a and C o c k a i g n e the l a w g i v e r w a s unnecessary because e v e r y o n e g a v e l a w s to themselves. In the perfect m o r a l commonwealth, the l a w w a s not g i v e n but taken as g i v e n and e v e r y o n e 10.

The

Two

Charters

granted

by King

Charles

lid to the Proprietors

of Carolina

(n.d.), British L i b r a r y 1061

g 10; F r a n k l i n 1 7 4 0 . F o r J o h n E l i o t ' s earlier e x p e r i m e n t s w i t h I n d i a n self-rule in his ' p r a y i n g t o w n s ' o f N e w E n g l a n d see H o l s t u n

1987.

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o b e y e d it. T h e r e w a s n o s o v e r e i g n legislator a b o v e the l a w because he created it. In the m i l l e n n i u m , G o d w a s the l a w g i v e r , hence its fulfilment w a s universal. In Utopia, the l a w g i v e r w a s necessary because l a w c o u l d n o t c o m e f r o m G o d or nature. It must h a v e a source in h u m a n w i l l , b u t , since all humans w e r e deficient in w i l l , it had to c o m e f r o m a fictionalised h u m a n w h o escaped the n o r m a l limitations ascribed to the Utopian individual. It is not, h o w e v e r , the matter o f l a w g i v i n g w h i c h distinguishes Utopia b u t the designing o f ordini, mechanisms o f an institutional kind, bureaucratic procedures and sanctions w h i c h check the propensity to disregard, breach, or subvert l a w s . Christianity p r o v i d e d a m o r a l c o d e and the Utopian said that w a s n o t e n o u g h . T o b e efficient in the elimination o f wickedness, it w a s necessary to d o m o r e than p r o n o u n c e rules and leave it to the exercise o f h u m a n free w i l l . U t o p u s w a s a system designer, n o t primarily a l a w g i v e r or a p r o n o u n c e r o f m o r a l m a x i m s . In this sense, o w i n g little to G o d , nature, or tradition, Utopia w a s a kind o f sacrilege ( L a p o u g e 1973) and a pre-Christian fictional setting c o u l d be d e p l o y e d to offset this. In o u r period, a l t h o u g h these strands h a v e a m o r e continuous existence, the early struggle o f utopianism w a s w i t h the efficacy o f simple m o r a l r e n e w a l , in the m i d d l e period w i t h a Christian millennialism, and in the later w i t h a g r o w i n g A r c a d i a n i s m resting its faith in natural l a w . U t o p i a n t h o u g h t o n l y takes o n historical m e a n i n g i f placed in the c o n t e x t o f ideal society alternatives, for it represents a choice b e t w e e n c o m p e t i n g m o d e s o f social idealisation. T h e choice m a y s e l d o m be c o m p l e t e l y or u n a m b i v a l e n t l y m a d e b u t m a n y ideal society theorists o f the early m o d e r n period saw themselves as actively confronting such a decision. Robert B u r t o n , for e x a m p l e , in his approach to his o w n Utopian exercise, rejected A r c a d i a n i s m , millennial transformation, and the perfect m o r a l common w e a l t h . B e y o n d this, Utopia can be seen as a k i n d o f limiting case in respect o f all the cardinal issues o f early m o d e r n political t h o u g h t . If constitutional ism, for instance, w a s the attempt to find institutional contrivances and procedures w h i c h w o u l d legitimate and mitigate the risks o f rule b y imperfect h u m a n agents, then utopianism is close to the constitutional enterprise. W h a t distinguishes it is its radical v i e w o f that undertaking. H o w e v e r antique its fictive constitution, Utopia has a l w a y s been created w h o l e at o n e particular point in time. It is n o t i m m e m o r i a l or c o n f i r m a t o r y o f c u s t o m . R a t h e r , as Utopians frequently insisted, l a w s w e r e n o t to be m o u l d e d to m e n b u t m e n w e r e to be m o u l d e d b y and to the l a w s . In Utopia 11

n.

B u r t o n 1 9 3 2 , 1, p p . 9 6 - 7 , 1 0 2 , 1 0 6 , 1 3 0 - 6 , 11, p p . 1 8 9 , 2 0 2 ; D a v i s 1 9 8 1 a , c h . 4 .

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Utopianism fortuna w a s c o n q u e r e d b y the establishment o f predictability, m o r a l m e a n i n g , and efficiency. Citizens lost their capacity for virtu but the republic n o l o n g e r ran the risk o f corruption. E q u a l l y , Utopia jeopardised the bases o f m o n a r c h y . K i n g s w e r e n o m o r e than bureaucrats — o n c e the great l a w g i v e r had d o n e his w o r k . U t o p i a reversed the p r o b l e m o f politics in a providential order b y e n d i n g the play o f particular p r o v i d e n c e in its changeless perfection and also b y e n d i n g politics. T o the issue o f w h e t h e r there c o u l d be a l a n g u a g e o f politics separable f r o m that o f private m o r a l i t y , Utopia p r o v i d e d a brusque answer b y its simultaneous termina tion o f politics and elimination o f the private. U t o p i a c o u l d take the classical aspirations o f h u m a n i s m and the monastic/sect-type aspirations, o n b o t h sides o f the R e f o r m a t i o n divide, reconcile t h e m , and set t h e m w i t h i n limits. Later, as in Antangil or Oceana, it absorbed military aspirations t o o . W h e n c h a n g e b e c a m e a natural l a w , Utopia, because o f its fixity o f purpose and structure, ceased to be a l i m i t i n g case in political t h o u g h t . T h e m o r e recently m o d e r n vision has been o f the m i l l e n n i u m or time perfected, w i t h or w i t h o u t its precedent cataclysm, or o f A r c a d i a , space, and nature perfected. W e continue to talk about Utopia o n l y because w e fail to distinguish it. It is not appropriate to reduce the history o f early m o d e r n utopianism to transitions in e c o n o m i c or social structure, to the r e v i v a l o f Platonism or to a single set o f linguistic c o n v e n t i o n s , since the social b a c k g r o u n d s out o f w h i c h it sprang w e r e so diverse and the intellectual affinities o f its progenitors w e r e so eclectic and diverse. T h e i m p o r t a n c e o f early m o d e r n Utopian t h o u g h t is n o t in w h a t it can tell us about the contexts and paradigms w i t h i n the confines o f w h i c h m u c h early m o d e r n political t h o u g h t is held to h a v e taken place. R a t h e r , its usefulness is in o p e n i n g up for us the potentialities o f early m o d e r n political t h o u g h t g i v e n the a d o p t i o n o f certain liberating and constraining c o n v e n t i o n s . In this period, Utopia flourished alongside perfect m o r a l c o m m o n w e a l t h , m i l l e n n i u m , A r c a d i a , and C o c k a i g n e . It did so as a p r o f o u n d criticism not o n l y o f existing society but also o f the other ideal society alternatives. Its e m e r g e n c e reflected a n e w sense o f the history o f collective Christian m o r a l effort and a disillusionment w i t h the apparent n a i v e t y o f the Christian humanists' faith in m o r a l r e n e w a l based o n pure scriptures. B y the seventeenth century its disillusionment w a s directed m o r e at the future prospects and present dangers o f millennialism. Later in that century Utopia's confrontational focus shifted to a r e n e w e d A r c a d i a n i s m and an e m b r y o n i c faith in progress. It is easy to overestimate the extent to w h i c h 343

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the aspirations o f the classical Utopia w e r e displaced in the early m o d e r n p e r i o d (Shklar 1969; Hansot 1974; cf. D a v i s 1984a) and to underestimate the continuity o f f o r m flowing t h r o u g h into the period o f m o d e r n utopianism. O n l y in the fugal c o n t e x t o f its counterpoint w i t h other ideal society forms does Utopia's history take o n a d y n a m i c .

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12

Absolutism and royalism J.P.

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S O M M E R V I L L E

T h e m e a n i n g o f absolutism

T h e purpose o f this chapter is to describe the m a i n tenets o f absolutist and royalist t h i n k i n g in the seventeenth century. T h a t century, w e are often told, saw the m a k i n g o f absolutism, especially in France. T h e r e , the Estates General fell into disuse after 1 6 1 5 , and its demise b r o u g h t death to the principle that taxation requires the consent o f the taxed. In the 1620s Louis X I I I subdued the H u g u e n o t s in a crusade w h i c h harnessed militant C a t h o l i c i s m to the service o f the m o n a r c h y . In the 1630s w a r w i t h Spain led to a massive increase in the c r o w n ' s military capacity — and troops c o u l d be used to suppress insurrection at h o m e as w e l l as to defeat enemies abroad. T h e i n t r o d u c t i o n o f intendants b r o u g h t local g o v e r n m e n t under central control, and this d e v e l o p m e n t w a s g i v e n added impetus w h e n the intendants assumed military p o w e r s . After the t e m p o r a r y setback o f the Fronde, r o y a l p o w e r resumed its progress, and in the latter decades o f the century French absolutism entered its g o l d e n age. Louis X I V c o m p l e t e d the w o r k o f R i c h e l i e u and M a z a r i n . In 1673 the parlement o f Paris w a s f o r m a l l y d e p r i v e d o f the right to remonstrate against r o y a l edicts before registering t h e m . In 1682 the D e c l a r a t i o n o f the c l e r g y o f France u n a m b i g u o u s l y asserted the independence o f k i n g s f r o m papal c o n t r o l in t e m p o r a l matters. Elsewhere events often ran a similar course. In 1660 the D a n i s h Estates m e t for the last time. In 1680 the S w e d i s h R i k s d a g engineered a constitutional r e v o l u t i o n w h i c h effectively i n t r o d u c e d absolutism. In Prussia the Great Elector taxed w i t h o u t consent and used troops to enforce his w i l l . B y the end o f the century, w e m i g h t argue, absolutism w a s m a d e or in the m a k i n g in m o s t E u r o p e a n states. E v e n in E n g l a n d its t r i u m p h sometimes l o o k e d likely, and w a s averted o n l y b y the e x e c u t i o n o f one 347 Cambridge Histories Online © Cambridge University Press, 2008

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k i n g and the deposition o f another. E v e n in republics — H o l l a n d , V e n i c e — there w e r e those w h o expressed absolutist ideas. Plainly, r o y a l p o w e r increased in m a n y E u r o p e a n countries. N e v e r t h e less, the e n f o r c e m e n t o f the k i n g ' s w i l l required the c o o p e r a t i o n o f local elites. T h e need to secure the support o f p r o v i n c i a l notables placed stringent limitations u p o n the k i n g ' s effective f r e e d o m o f action. G r o w i n g awareness o f this truth has led s o m e historians to call for radical refinement o f current conceptions o f absolutism. A n d r e w L o s s k y , for e x a m p l e , has a r g u e d that 'one must invent a c o n c e p t o f " l i m i t e d a b s o l u t i s m " to describe the rule o f Louis X I V (Lossky 1984, p . 15). Perhaps 'absolutism' is a term o f little value for analysing seventeenth-century political practice. W o r s e still, its use m a y foster the mistaken beliefs that k i n g s ruled in an arbitrary and despotic fashion (or at least that they c o u l d h a v e d o n e so i f they had pleased), and also that the political structures o f E u r o p e a n states c o n f o r m e d to a single model. A r g u a b l y , there are also p r o b l e m s in using the t e r m 'absolutist' to describe seventeenth-century t h e o r y (as distinct f r o m practice). James D a l y has demonstrated that in E n g l a n d there w a s n o single, settled idea o f absolute m o n a r c h y ( D a l y 1978). C o n t e m p o r a r i e s used the t e r m in a variety o f w a y s . It m i g h t be t h o u g h t that a point o f substance underlies this perception a b o u t usage: there w a s n o a g r e e m e n t o n the nature o f absolute m o n a r c h y because there w e r e n o absolutists. In fact, as w e shall see, there w e r e absolutists in E n g l a n d as o n the continent. W h a t e v e r m a y be true about practice, 'absolutist' does usefully describe a distinctive set o f ideas, current in m u c h o f E u r o p e . A n understanding o f these ideas illuminates the intentions and therefore the practice o f k i n g s and statesmen in the seventeenth century. Let us b e g i n w i t h s o m e definitions. Absolutists w e r e thinkers w h o held that the prince is accountable to G o d alone for his actions w i t h i n his realm, that his c o m m a n d s o u g h t to be o b e y e d b y his subjects p r o v i d e d that they d o n o t conflict w i t h divine p o i t i v e or natural l a w , and that he (and those acting o n his c o m m a n d ) o u g h t n e v e r to b e resisted actively b y his subjects. A prince c o u l d be a n y specific person or persons, for t h o u g h absolutists generally preferred m o n a r c h y to aristocracy and d e m o c r a c y , they s e l d o m claimed that it w a s the o n l y valid f o r m o f g o v e r n m e n t . T h e r e are, indeed, difficulties w i t h this — and a n y — definition o f absolutism. T h e reason is that there w a s n o single absolutist t h e o r y . R a t h e r , there w e r e several different traditions o f t h o u g h t w h i c h , in the seventeenth century, w e r e used to free rulers f r o m accountability to their subjects. O n e such tradition w a s the idea 348

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o f the divine right o f kings w h i c h p r o p o s e d that all rulers (whether kings or not) derived political p o w e r directly f r o m G o d . C e r t a i n l y , m a n y absolutists adopted this t h e o r y . B u t others derived the ruler's p o w e r f r o m an irreversible grant b y the people. M o r e o v e r , s o m e thinkers w h o d r e w the k i n g ' s p o w e r i m m e d i a t e l y f r o m G o d believed that the k i n g alone c o u l d n o t validly c h a n g e h u m a n laws; they cannot therefore be classed as absolutists (e.g. C o k e , Reports, v n , fos. 12b—13b; i v , preface, p . x i x ) . A n o t h e r point o n w h i c h absolutists disagreed w a s the nature o f the relationship b e t w e e n r o y a l p o w e r and the spiritual p o w e r o f the church. For e x a m p l e , W i l l i a m B a r c l a y and P a o l o Sarpi adopted conflicting v i e w s o n this question, t h o u g h their general political positions w e r e so close that it seems sensible to call t h e m b o t h absolutists (see W o o t t o n 1983, p p . 58—9 for their v i e w s on church—state relations). T h o u g h absolutists differed o n i m p o r t a n t questions they did all l o o k to the prince as the supreme m a k e r and interpreter o f h u m a n laws (at least in t e m p o r a l matters), and they held that the prince c o u l d n o t be deposed b y the church or b y his subjects. R o y a l i s t s , b y contrast, cannot easily be defined in terms o f any coherent doctrines. T h e t e r m royalist w a s used in E n g l a n d in the 1620s sometimes to m e a n r o y a l absolutist (Sibthorp 1627, p p . 1 3 , 16), and sometimes (seemingly) to m e a n s o m e o n e w h o supported the k i n g ' s financial policies (Russell 1979, p. 152). It w a s not, h o w e v e r , until the 1640s that the w o r d c a m e into w i d e usage, and then it usually denoted an adherent o f the k i n g in the C i v i l W a r . A n u m b e r o f the k i n g ' s m o s t famous propagandists in the 1640s w e r e absolutists, t h o u g h they generally toned d o w n their claims for popular c o n s u m p t i o n . B u t a g o o d m a n y o f C h a r l e s ' supporters (including Falkland and E d w a r d B a g s h a w ) rejected absolutist t h i n k i n g . It w o u l d be u n w i s e to i m p o s e any great intellectual consistency o n English royalists o f the C i v i l W a r period. Perhaps r o y a l i s m is best defined m e r e l y as a tendency to support the k i n g in the political controversies o f the day. N o t all royalists w e r e absolutists. N o r w e r e all absolutists royalists. In the C i v i l W a r m a n y parliamentarians claimed that there w a s , or at least o u g h t to be, an absolute s o v e r e i g n in e v e r y state, t h o u g h they denied that s o v e r e i g n t y w a s vested in the k i n g in E n g l a n d . In this chapter, h o w e v e r , it is w i t h advocates o f r o y a l absolutism that w e shall be primarily concerned. A r m e d w i t h these definitions, w e are n o w in a position to investigate the nature and d e v e l o p m e n t o f absolutist t h i n k i n g in the seventeenth century. W e shall concentrate particularly on France and E n g l a n d . T h e r e are differences o f detail in the a r g u m e n t s put f o r w a r d b y absolutists in these 349

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t w o countries. B u t a great m a n y o f the fundamental absolutist contentions w e r e v o i c e d equally b y thinkers t h r o u g h o u t E u r o p e and o n b o t h sides o f the confessional d i v i d e b e t w e e n Protestants and C a t h o l i c s . T h e first major episode in the history o f seventeenth-century absolutist t h o u g h t w a s the c o n t r o v e r s y o v e r church—state relations that resulted f r o m the Interdict o f V e n i c e and f r o m the almost simultaneous enactment o f James I's oath o f allegiance in 1606. In this c o n t r o v e r s y a n u m b e r o f French and V e n e t i a n C a t h o l i c s sided w i t h English (and French and G e r m a n ) Protestants. Similar international and cross-confessional alliances recurred later in the century. In 1644 the H u g u e n o t S y n o d o f C h a r e n t o n c o n d e m n e d the actions o f their English co-religionists in taking up arms against the k i n g (Galland 1928, p. 110), and in 1690 b o t h Pierre B a y l e (in his Avis important; cf. Y a r d e n i 1985, pp. 332—3) and J a c q u e s - B é n i g n e Bossuet (Cinquième avertissement; extracts in Bossuet 1966, pp. 83—5) d e n o u n c e d Pierre Jurieu's notions o f popular s o v e r e i g n t y . Bossuet's a r g u m e n t s illustrate a further point about absolutist t h i n k i n g in the seventeenth century, n a m e l y its essential lack o f d e v e l o p m e n t . C h a n g e s o f emphasis did indeed occur. B u t the u n d e r l y i n g a r g u m e n t s remained, for the m o s t part, static. Let us b e g i n b y e x a m i n i n g these arguments.

ii

S o v e r e i g n t y and m o n a r c h y

T h e t w o m a i n objectives o f absolutist writers w e r e to defend the independence o f the prince f r o m foreign (and especially papal) jurisdiction in t e m p o r a l matters, and to end constraints u p o n his rule at h o m e . B o t h objectives w e r e c o m m o n l y achieved b y the assertion o f the B o d i n i a n doctrine o f s o v e r e i g n t y . S o v e r e i g n t y w a s sometimes treated as a logically necessary feature o f e v e r y state, but m o r e frequently it w a s p o r t r a y e d as the o n l y practical alternative to anarchy, and ( g i v e n the nature o f man) m a y h e m . T h e prince alone should possess c o e r c i v e p o w e r w i t h i n the state, said Bossuet, ' o t h e r w i s e all is confusion and the state returns to anarchy' (Politique tirée des propres paroles de l'Ecriture sainte, 4, 1, 3, in Bossuet 1966, p . n i ) . T o d i v i d e s o v e r e i g n p o w e r w o u l d be to u n d e r m i n e the peace o f the c o m m o n w e a l t h and to infringe the biblical precept that n o one should serve t w o masters (Politique tirée, 4, 1, 3, in Bossuet 1966, p p . 112—13). 'It is impossible', declared the O r a t o r i a n Jean Senault in 1 6 6 1 , 'to divide authority and k e e p the peace' (Senault 1 6 6 1 , p. 24). ' W i t h o u t k i n g s ' , p r o n o u n c e d H . D u B o y s in 1604, ' h u m a n life w o u l d be n o t h i n g but confusion and disorder' ( D u B o y s 1604, p. 23). ' T a k e S o v e r a i g n t y f r o m the face o f the earth', said the E n g l i s h m a n R o b e r t B o l t o n in 1 6 2 1 , 'and y o u 350 Cambridge Histories Online © Cambridge University Press, 2008

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turne it into a C o c k p i t . M e n w o u l d b e c o m e cut-throats and Canibals one u n t o another . . . W e should h a v e a v e r y hell u p o n earth, and the face o f it c o v e r e d w i t h b l o o d , as it w a s o n c e w i t h w a t e r ' ( B o l t o n 1635, p . 10). A g r e e m e n t b e t w e e n p e o p l e w a s possible o n l y i f they submitted to a single g o v e r n m e n t w h i c h united t h e m all, said Bossuet, for e v e n A b r a h a m and L o t c o u l d n o t agree, t h o u g h they w e r e g o d l y m e n (Politique tirée, 1, 3, in Bossuet 1966, pp.71—2). T h e necessity o f s o v e r e i g n t y , then, w a s d e d u c e d f r o m contentions a b o u t h u m a n nature and m a n k i n d ' s objectives, and n o t m e r e l y f r o m the abstract c o n c e p t o f the state. T h i s is a point o f s o m e i m p o r t a n c e , for it explains w h y the advent o f B o d i n i a n s o v e r e i g n t y did n o t lead absolutists to a b a n d o n theorising in terms o f G o d ' s l a w s and man's purposes. T h e c o n c e p t o f s o v e r e i g n t y w a s itself underpinned b y attitudes t o w a r d s h u m a n nature and needs: in order to fulfil G o d ' s purposes and his o w n goals, m a n required the protection o f an absolute s o v e r e i g n . T h i s applied e v e n in the state o f innocence, and there people w e r e naturally ready to o b e y . A f t e r the Fall, h o w e v e r , pride led to disobedience, and c o e r c i o n b e c a m e necessary (Baricave 1 6 1 4 , p . 453; D o n n e 1 6 1 0 , p. 83). U n l i m i t e d and indivisible s o v e r e i g n t y w a s necessary to the security o f the state. It mattered little w h e t h e r a c o m m u n i t y in w h i c h s o v e r e i g n t y w a s d i v i d e d c o u l d strictly be classified as a state. T h e i m p o r t a n t point about such a c o m m u n i t y w a s that it c o u l d n o t l o n g survive. A c c o r d i n g to Hadrian Saravia (a native o f Flanders w h o spent his later years in E n g l a n d defending the Protestant establishment against the criticisms o f the m o n a r c h o m a c h s ) , m i x e d g o v e r n m e n t spelled d o o m for any c o m m u n i t y (Saravia 1 6 1 1 , p p . 1 6 3 - 4 ) . opinion o f Moise A m y r a u t , a Huguenot divine, the English C i v i l W a r resulted f r o m the fact that s o v e r e i g n t y had been d i v i d e d b e t w e e n the k i n g and parliament; in France, b y contrast, the k i n g alone w a s s o v e r e i g n and the state secure ( A m y r a u t 1650, p. 143). ' N o prudent m a n doubts', said Isaac C a s a u b o n (a H u g u e n o t w h o defended V e n i c e at the time o f the Interdict, and w h o later w e n t to E n g l a n d w h e r e he served James I in his political controversies w i t h C a t h o l i c s ) , 'that the w e l l b e i n g o f the c o m m o n w e a l t h cannot be p r o v i d e d for unless there exists in it a single s o v e r e i g n ; w h e t h e r it be ruled b y one m a n , as in a m o n a r c h y ; or b y m o r e , as in an aristocracy or d e m o c r a c y . For e v e n in these latter forms s o v e r e i g n t y is u n d i v i d e d ' ( C a s a u b o n 1607, pp. 89—90). m

t

n

e

1

1. 'Pro certo et confesso ponimus . . . & de q u o n e m o prudens dubitat: saluti R e i p . consuli aliter non posse, quam si unus n u m e r o in ilia sit Principatus: sive ille ab unico sustineatur, ut in statu monarchico: sive a pluribus, ut in optimatu, vel p o p u l a n statu, n a m & in istis, unus est n u m e r o Principatus.'

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Stable states, it c o u l d be presumed, had pure forms o f g o v e r n m e n t m o n a r c h y , aristocracy, or d e m o c r a c y . T h e f o r m w a s defined b y the locus o f s o v e r e i g n t y . S o a k i n g w h o s e p o w e r w a s limited w a s n o true m o n a r c h . W h e r e the p e o p l e c o u l d call their rulers to account, said M a r c ' A n t o n i o D e D o m i n i s (a V e n e t i a n w h o l i k e w i s e served James I in his anti-papal polemics), the state w a s a d e m o c r a c y ( D e D o m i n i s 1620, p . 5 3 1 ; the reference to m i x e d g o v e r n m e n t at p . 921 should be interpreted in the light o f this passage). A g a i n , a k i n g w h o held his p o w e r f r o m the p o p e w a s n o true s o v e r e i g n . T h e k i n g s o f E n g l a n d , said C a r d i n L e B r e t , had a l w a y s d e r i v e d their p o w e r f r o m the c h u r c h o f R o m e . T h e y had, in consequence, n e v e r possessed s o v e r e i g n t y (Le B r e t 1632, p. 10). O f the three pure forms o f g o v e r n m e n t m o n a r c h y w a s generally d e e m e d the best. T h i s thesis w a s defended o n b o t h empirical and metaphysical g r o u n d s . M o n a r c h y u p o n earth corresponded m o s t closely to G o d ' s rule o v e r the universe, to the eagle's d o m i n i o n o v e r birds (Poisson de la B o d i n i é r e 1597, p . 7; V e r s t e g a n 1622, p p . 142—3), and to the g o v e r n m e n t o f that p u z z l i n g l y feminine m o n a r c h the queen b e e o v e r the h i v e - a m o d e l c o m m o n w e a l t h . S u c h analogies, underpinned b y a N e o p l a t o n i c c o n c e p t i o n o f the universe as a hierarchy, in w h i c h each part w a s related to all the others b y similitude or correspondence, featured in absolutist w r i t i n g s t h r o u g h o u t the century (the use o f similitudes in earlyseventeenth-century English t h o u g h t is emphasised in G r e e n l e a f 1964, p p . 1—94, and in D a l y 1974, p . 19). N e o p l a t o n i c preconceptions w e r e b y n o means i n c o m p a t i b l e w i t h a r g u m e n t s f r o m history and experience, for history w a s interpreted in the light o f ethical and metaphysical p r e s u p p o sitions. B o d i n has sometimes been seen as a political scientist, but it is clear that his m e t h o d o l o g y , e v e n i f it w a s o v e r t l y i n d u c t i v e , relied in practice u p o n deductions f r o m first principles p r o v i d e d b y his w o r l d v i e w : t h e o r y determined w h a t B o d i n found in history (Parker 1 9 8 1 , pp.257—63). Bossuet's Discours sur Vhistoire universelle w a s l i k e w i s e saturated w i t h p r e c o n c e i v e d notions about the past, and n o t least w i t h providentialist ideas (e.g. Bossuet 1966, p p . 5 5 - 8 ) . 2

It is likely that the use o f analogies and o f scriptural citations b y absolutist writers decreased in the course o f the seventeenth century, w h i l e appeals to reason b e c a m e c o m m o n e r . T h e extent o f these changes should not, h o w e v e r , be e x a g g e r a t e d . In 1661 Senault still accepted the h a c k n e y e d idea 2. T h e ruling bee was s h o w n to be a queen in Butler 1609, but was generally treated as male until m u c h later. Mandeville still talked o f the k i n g o f the bees in the early eighteenth century (Mandeville 1924, 1, p. 17 and elsewhere).

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that m a n is a m i c r o c o s m o f the universe, and used analogies w i t h other parts o f creation to m o u n t arguments about h u m a n society (Senault 1 6 6 1 , p p . 2 - 4 ) . A t the end o f the century Bossuet c o m p l e t e d his major political w o r k — the Politique dree des propres paroles de VEcriture sainte — in w h i c h he o v e r t l y d r e w political conclusions f r o m the B i b l e . O n the other hand, reason features strongly in the absolutist arguments o f early seventeenthcentury writers. In 1649 C l a u d e de Saumaise did indeed claim that b y appealing n o t to e x a m p l e s but to 'reason' he had d e v e l o p e d a ' n e w k i n d o f a r g u m e n t ' (Saumaise 1650, p. 314). In fact, neither Saumaise's m e t h o d o l o g y n o r his specific a r g u m e n t s w e r e in the least original. Scriptural e x a m p l e s had l o n g been regarded as c o m p a t i b l e w i t h reason — the l a w o f nature. Scripture and natural l a w , said J o h n M i l t o n in reply to Saumaise, did ' e x a c t l y agree', and he declared that this had a l w a y s been his o p i n i o n ( M i l t o n 1931—40, V I I , p . 267). B o t h the B i b l e and reason served as guides to God's law. G o d ruled the universe t h r o u g h laws. S o m e o f these w e r e positive, a p p l y i n g o n l y at a particular time and place. E x a m p l e s w e r e the judicial and c e r e m o n i a l l a w s o f M o s e s — w h i c h G o d had g i v e n to the J e w s o f the O l d T e s t a m e n t — and the l a w s o f grace, w h i c h had been revealed to C h f istians, and w h i c h spelled out the nature and p o w e r s o f the Christian church. O t h e r divine l a w s w e r e natural, a p p l y i n g eternally and deducible f r o m manifest truths about h u m a n nature. B y o b e y i n g the l a w s o f nature m e n c o u l d p r o m o t e their o w n t e m p o r a l welfare and thereby acquire the leisure to pursue the h i g h e r g o a l o f spiritual felicity. O b e d i e n c e to natural l a w did not, h o w e v e r , lead p e o p l e to salvation, for fallen m a n c o u l d be saved o n l y b y G o d ' s grace. Protestants w e r e d i v i d e d f r o m C a t h o l i c s o n the t h e o l o g y o f grace, but this did n o t prevent t h e m f r o m agreeing o n the contents o f the l a w o f nature. It w a s in the l a w o f nature — reason - that political principles w e r e g r o u n d e d . T h a t is w h y religious opponents w e r e so often able to unite in their political theorising. 3

T h e purpose o f the l a w o f nature w a s to lead m a n k i n d to t e m p o r a l welfare. T h e p r o m o t i o n o f the public g o o d w a s a major m o r a l d u t y . ' T h e g o a l o f a l a w f u l k i n g ' , said Senault, 'is public utility' (Senault 1 6 6 1 , p. 18), and C a s a u b o n l i k e w i s e placed the utmost w e i g h t u p o n the o b l i g a t i o n 'to 3. English absolutist ideas on natural law are discussed in S o m m e r v i l l e 1986b, pp. 1 2 - 1 7 , 20—1, 29-30. K e o h a n e , 1980. p. 304, argues that theories o f natural law w e r e 'almost absent from French political discourse in the first half o f the seventeenth century'. This is difficult to sustain, for the l a w o f nature was often used quite unselfconsciously b y French writers, e.g. Marteliere in 1610 (Marteliere 1612, pp. 45, 48); Balzac in his Prince o f 1631 (Balzac 1665, 11, p. 85). O n other occasions it was treated more elaborately, e.g. b y R i c h e r in c. 1617 (Richer 1692, pp. 68-70).

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consult the public w e a l ' ( C a s a u b o n 1607, p. 89; cf. R e f u g e 1633, p. 399). A t the same time natural l a w w a s held to i m p o s e certain specific and absolute duties, summarised in the ten c o m m a n d m e n t s . W h a t should be d o n e i f adherence to one o f these duties led to public disaster? T h e answer w a s that it c o u l d not. O b e d i e n c e to G o d ' s c o m m a n d m e n t s w a s a l w a y s beneficial, w h i l e divine p r o v i d e n c e w o u l d invariably visit calamity u p o n those w h o disobeyed, e v e n i f the intention o f such disobedience w a s to p r o m o t e the public g o o d . ' I m p i e t y is the cause o f all the misfortunes o f states', said Senault, w h i l e piety g a v e security to m o n a r c h s and felicity to their k i n g d o m s (Senault 1 6 6 1 , pp. 1 7 5 , 162; cf. L e v e r 1608, p. 1). B y o b e y i n g G o d ' s c o m m a n d m e n t s , k i n g s c o u l d p r o m o t e the welfare o f their subjects. T h e k i n g w a s accountable to G o d for his actions. Bossuet r e m i n d e d kings that it w a s horrible sacrilege to misuse the p o w e r s that G o d had granted t h e m {Politique tirée, 3, 2, in Bossuet 1966, p. 150). Jean de la B r u y è r e stressed the onerousness o f the k i n g ' s task: he w a s responsible to G o d in all his actions for the welfare o f his subjects, and i g n o r a n c e c o u l d n e v e r excuse h i m (La B r u y è r e 1966, p. 249). L e B r e t underlined the ' r i g o u r o f the penalties' w i t h w h i c h G o d w o u l d punish rulers w h o failed to d o their d u t y (Le B r e t 1632, p. 698). It w a s true that a k i n g w h o w a s accountable to his people w a s n o true k i n g (Saumaise 1650, p. 3 1 5 ; H a y w a r d 1603, p. 36) and that sovereigns w e r e responsible to G o d alone (Le B r e t 1632, p. 9; Charles I 1628, p. 9). B u t the fact that rulers w e r e not subject to any t e m p o r a l authority b y n o means i m p l i e d that their misdeeds w o u l d g o unpunished: they were subject to the a w f u l majesty o f G o d . T h e idea that sovereigns are subject o n l y to G o d w a s central to absolutist t h o u g h t . It w a s often but not a l w a y s a c c o m p a n i e d b y the n o t i o n that sovereigns derive their p o w e r i m m e d i a t e l y f r o m H i m . T h e r e w a s w i d e a g r e e m e n t o n the contention that G o d has constructed h u m a n nature in such a w a y that g o v e r n m e n t is necessary for m a n k i n d . ' G o v e r n m e n t ' , said B o l t o n (in a passage w h i c h he cribbed f r o m the F r e n c h m a n Pierre C h a r r o n ) , 'is the p r o p and pillar o f all States and K i n g d o m s , the c e m e n t and soule o f h u m a n e affairs, the life o f society and order, the v e r y vitall spirit w h e r e b y so m a n y millions o f m e n doe breathe the life o f c o m f o r t and peace; and the w h o l e nature o f things subsists' ( B o l t o n 1635, p. 10; C h a r r o n 1604, p. 266). G o v e r n m e n t , considered abstractly, w a s the d i v i n e l y appointed instrument b y w h i c h p e o p l e c o u l d achieve the t e m p o r a l goals o f their nature. S o g o v e r n m e n t w a s , in s o m e sense, the w o r k o f G o d . It did n o t f o l l o w , h o w e v e r , that the p o w e r s o f particular g o v e r n o r s w e r e d e r i v e d directly f r o m G o d . For it w a s arguable that G o d had at first granted 354

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political authority to e v e r y independent multitude, and that k i n g s (or aristocracies) had arisen o n l y w h e n the s o v e r e i g n p e o p l e transferred authority to one (or a f e w ) m e n . A r g u a b l y , t o o , the transference had taken place o n conditions stipulated b y the p e o p l e . If the prince infringed these conditions, p o w e r w o u l d revert to the people. T h e notions that k i n g s w e r e subject to contractual limitations w h i c h had been i m p o s e d u p o n t h e m b y an originally s o v e r e i g n people, and that they m i g h t be resisted or e v e n deposed i f they i g n o r e d these limitations, w e r e rejected b y absolutists. S o m e argued that the k i n g ' s p o w e r w a s n o t in fact derived f r o m an act o f transference b y the p e o p l e . T h e original multitude m i g h t , perhaps, h a v e appointed the person(s) o f its ruler(s), but those rulers d r e w their authority f r o m G o d alone. A husband's p o w e r o v e r his w i f e and children w a s natural, for G o d had, as it w e r e , imprinted husbandly and fatherly p o w e r in h u m a n nature. T h e w i f e ' s consent m a d e a particular m a n her husband, b u t it w a s G o d alone w h o g a v e p o w e r to husbands and fathers ( D e D o m i n i s 1620, p p . 5 2 7 - 8 ; D i g g e s 1643, p. 1 1 3 ) . In the same w a y , r o y a l and papal p o w e r w e r e often held to stem directly f r o m G o d , t h o u g h k i n g s m i g h t at first h a v e been elected b y the people, and popes still w e r e elected b y cardinals. In b o t h cases, election n o m i n a t e d the person o f the ruler but did not transfer p o w e r to h i m (Barret 1612, p. 28; B u c k e r i d g e 1614, p. 2 9 1 ; Marsilius 1606, p . 205). T h e k i n g ' s p o w e r w a s derived f r o m G o d alone, and it w a s , therefore, to G o d alone that he w a s accountable for its exercise. T h i s t h e o r y o f the origins o f g o v e r n m e n t w a s c o m m o n t h r o u g h o u t the seventeenth century. A c c o r d i n g to o n e version o f it, r o y a l and paternal p o w e r w e r e not just similar (in that b o t h w e r e derived f r o m G o d alone), b u t identical. In other w o r d s , the p o w e r o f any independent father o v e r his offspring was r o y a l p o w e r . C o n v e r s e l y , the authority o f a k i n g o v e r his subjects was patriarchal. B y identifying r o y a l w i t h patriarchal p o w e r , writers w e r e able to harness c o n v e n t i o n a l social t h e o r y — w h i c h emphasised the d i v i n e l y appointed d u t y o f children to o b e y their fathers - to the k i n g ' s cause. T h e y w e r e also able to demolish the claim that the first states had been independent, s e l f - g o v e r n i n g c o m m u n i t i e s . For, i f patriarchal p o w e r w a s k i n g l y , it f o l l o w e d that the first fathers — and in particular A d a m — had been kings. M o n a r c h y , then, w a s the original f o r m o f g o v e r n m e n t . W h i l e m a n y writers, b o t h o n the continent and in E n g l a n d , claimed that r o y a l p o w e r w a s derived i m m e d i a t e l y f r o m G o d , others accepted the n o t i o n that the c o m m u n i t y had at first been s o v e r e i g n , and yet deduced absolutist conclusions f r o m this premise. T h e y argued either that the c o m m u n i t y ' s transference o f p o w e r to a ruler had been unconditional, or 355

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that the k i n g ' s p o w e r had arisen b y conquest ( w h i c h w a s m o r a l l y equivalent to an absolute transference), or, finally, that the consequences o f any attempt to enforce contractual limitations u p o n a ruler w e r e likely to be so unpleasant that it o u g h t a l w a y s to be a v o i d e d . T h e idea that r o y a l p o w e r arose f r o m a grant b y the p e o p l e had been w i d e l y v o i c e d in France d u r i n g the wars o f religion, and b o t h H u g u e n o t s and Leaguers had d r a w n radical implications f r o m it. In the seventeenth century the same idea continued to flourish but w a s increasingly used to absolutist ends. O n e o f the main d e v e l o p m e n t s in C a t h o l i c i d e o l o g y during the seventeenth century lay precisely in the increasing conservatism w i t h w h i c h the idea o f an original transference o f p o w e r w a s interpreted. In France this d e v e l o p m e n t w a s c o n n e c t e d to the h i g h l y successful equation o f anti-absolutist ideas w i t h Protestantism b y r o y a l propagandists. In 1 6 1 4 Jean B a r i c a v e , a French cleric, published a w o r d - b y - w o r d refutation o f the H u g u e n o t Vindiciae contra tyrannos. A c c o r d i n g to B a r i c a v e it w a s W y c l i f , Luther, and C a l v i n w h o had first i n t r o d u c e d the idea that subjects m a y l e g i t i m a t e l y take u p arms against their prince. H e admitted that s o m e C a t h o l i c s had adopted similar v i e w s , but insisted that they d e r i v e d their ideas f r o m Protestants (Baricave 1 6 1 4 , p p . 1 5 , 9 1 ) . T h e intention o f Calvinists in France, he claimed, w a s to introduce republican ism, o n the m o d e l o f G e n e v a and the U n i t e d P r o v i n c e s (Baricave 1 6 1 4 , p. 1 5 3 ; other French e x a m p l e s are discussed in Parker 1980, p p . 155—6; the e m p e r o r Ferdinand II l i k e w i s e equated Protestantism w i t h disloyalty: Evans 1979, p . 68). It w a s b y H u g u e n o t ideas that H e n r i I V ' s C a t h o l i c assassin Francois R a v a i l l a c had been influenced. T h e Jesuit Juan de Mariana's doctrines o n resistance had been j u s t l y c o n d e m n e d in France, and yet they w e r e less n o x i o u s than the teachings o f the Vindiciae (Baricave 1614, p p . 9 1 , 2 4 1 ) . B a r i c a v e ' s arguments w e r e paralleled b y those o f English Protestants, w h o l i k e w i s e c o n d e m n e d the resistance theories o f b o t h papist and Puritan m o n a r c h o m a c h s , but w h o g a v e priority to the papists ( O w e n 1610; M a x w e l l 1644, p p . 1 2 - 1 5 ; N a l s o n 1677, p . 201; B r a d y , q u o t e d in C l a n c y 1964, p . 196). In b o t h countries the equation o f religious h e t e r o d o x y w i t h anti-absolutist political ideas w a s a regular part o f royalist polemics. In E n g l a n d , h o w e v e r , the identification o f p o p e r y w i t h rebellion n e v e r p r o v e d fully c o n v i n c i n g for, f r o m the 1620s o n w a r d s , the opponents o f absolutism persuasively a r g u e d that p o p e r y w a s in fact linked to arbitrary g o v e r n m e n t — and the French experience c o n f i r m e d their thesis. B a r i c a v e decried the i g n o r a n c e o f p e o p l e w h o did n o t k n o w that G o d grants popes and k i n g s their authority, using those w h o elect t h e m m e r e l y 356

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'to designate and n a m e the person' (Baricave 1614, p. 343). Princes received their p o w e r i m m e d i a t e l y f r o m G o d : there w a s n o intermediary b e t w e e n G o d and the k i n g . Despite B a r i c a v e ' s suspicions, m a n y Protestant thinkers maintained precisely the same position, w h i c h w a s v o i c e d b y the H u g u e n o t national s y n o d in 1 6 1 7 (Hesperien 1 6 1 7 , p p . 5—6). T h e o r i e s o f legitimate resistance w e r e rarely articulated b y French Protestants in the seventeenth century (Parker 1 9 8 1 , p p . 1 5 6 - 9 , 1983, p p . 1 1 1 - 1 2 ; the period after 1685 and the resistance theorist Jurieu are discussed in D o d g e 1947). T h e idea o f the divine right o f kings w a s not confined to any single religious or professional g r o u p . A c c o r d i n g to the jurist Jean D o m a t 'it is i m m e d i a t e l y f r o m G o d that princes h o l d their p o w e r ' ( D o m a t 1705, 11, p. 142). T h e Gallican bishop Pierre de M a r c a declared that the n o t i o n o f an original transference o f p o w e r f r o m the people to the k i n g w a s not o n l y anarchic but also contrary to scripture, w h i c h made it plain that 'royal p o w e r is i m m e d i a t e l y conferred b y G o d u p o n each k i n g ' . K i n g s m i g h t at first h a v e been elected — t h o u g h e v e n here G o d inspired the electors — but their authority s t e m m e d directly f r o m G o d as the author o f the l a w o f nature (Marca 1 6 4 1 , p. 147). In V e n i c e Sarpi similarly affirmed that 'in t e m p o r a l matters absolute princes are subject to n o n e but G o d , from w h o m their p o w e r is i m m e d i a t e l y d e r i v e d ' (Sarpi 1606, p. 633). T h e V e n e t i a n D e D o m i n i s w r o t e at l e n g t h in f a v o u r o f the same thesis, taking issue w i t h the Jesuit Suarez' arguments for original transference. In D e D o m i n i s ' opinion, it w a s blasphemous to suggest that G o d had at first set up d e m o c r a c y , the w o r s t f o r m o f g o v e r n m e n t ( D e D o m i n i s 1620, pp. 919—20). W h e n D e D o m i n i s c a m e to E n g l a n d in 1 6 1 6 , such ideas had already been circulating there for s o m e time. James I held that kings derive their p o w e r from G o d alone, t h o u g h the person o f the k i n g had o n occasion been determined b y popular election (Tanner 1930, pp. 1 5 - 1 6 ) . T h o m a s M o r t o n ( w h o defended James I's oath o f allegiance against Catholics) f o l l o w e d the V e n e t i a n Johannes Marsilius in distinguishing sharply b e t w e e n the origins o f a k i n g ' s title and the source o f his authority: 'the title u n t o an authority is not w i t h o u t the meanes o f m a n , but the authority it selfe is i m m e d i a t e l y f r o m G o d ' ( M o r t o n 1 6 1 0 , 1, p. 246; Marsilius 1606, p. 205). A c c o r d i n g to Lancelot A n d r e w e s , k i n g s d r a w their p o w e r f r o m G o d alone, and in s o m e cases at least (Saul, D a v i d ) their persons had also been appointed b y H i m ( A n d r e w e s 1610, p p . 18, 2 1 ) . Sir R o b e r t Filmer, w h o s e father-in-law w a s A n d r e w e s ' predecessor as bishop o f E l y , held that G o d first g a v e A d a m k i n g l y p o w e r , but he a c k n o w l e d g e d that not all later kings w e r e A d a m ' s 357

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direct descendants. P r o v i d e n c e c o u l d change the ruling dynasty and e v e n the f o r m o f g o v e r n m e n t . Y e t , b y w h a t e v e r means the ruler acquired his title, his p o w e r w a s still f r o m G o d alone (Filmer 1949, p. 62). iii

Patriarchalism

Filmer confirmed his thesis about the divine origins o f r o y a l authority b y equating k i n g l y and paternal p o w e r . M a n y writers argued that r o y a l and fatherly p o w e r w e r e analogous, and that the fifth c o m m a n d m e n t enjoined obedience to magistrates as w e l l as to parents. Filmer w e n t further, c l a i m i n g that the p o w e r o f any sovereign ruler w a s identical w i t h the p o w e r o f an a u t o n o m o u s father — and virtually e v e r y o n e agreed that fathers derive their p o w e r f r o m G o d alone (Filmer 1949, p. 62). T h e first father w a s , o f course, A d a m , w h o had ruled o v e r the w h o l e w o r l d b y right o f fatherhood (Filmer 1949, p . 58). Later kings held p o w e r w h i c h w a s , like A d a m ' s , fatherly, w h e t h e r their title to it arose ' b y election, donation, succession or b y any other means' (Filmer 1949, p. 106). Since A d a m had been a k i n g the n o t i o n o f original popular s o v e r e i g n t y stood refuted, and n o place w a s left 'for such i m a g i n a r y pactions b e t w e e n K i n g s and their people as m a n y dream o f (Filmer 1949, p. 57). Filmer's Patriarcha w a s first published in 1680, t w e n t y - s e v e n years after its author's death. T h e date o f c o m p o s i t i o n o f the b o o k remains uncertain, t h o u g h the n o t i o n that it w a s written after the outbreak o f the English C i v i l W a r is difficult to sustain ( D a l y 1983; T u c k 1986). Fortunately, the precise date is o f relatively m i n o r historical interest, since the political doctrines expressed in it w e r e m o s t l y unoriginal. M a n y o f its most famous contentions w e r e v o i c e d b y theorists o f the Jacobean period and, indeed, b y the Elizabethan Saravia. Saravia w a s b o r n in Flanders, but b e c a m e naturalised as an E n g l i s h m a n in 1568, and w a s a translator o f K i n g James' A u t h o r i s e d V e r s i o n o f the B i b l e . His De imperandi authoritate was published b y the r o y a l printer in 1593 as an antidote to the w r i t i n g s o f C a t h o l i c and especially Protestant m o n a r ches m a chs. In it Saravia struck at the doctrine o f original freedom, declaring that ' b y nature m e n are not b o r n free, since ' b y the l a w o f nature the son is in the p o w e r o f his father' (Saravia 1 6 1 1 , p. 125). H e i n v e i g h e d against those w h o praised liberty 'as i f the highest happiness o f h u m a n life w e r e to be found in it'; in reality, desire for freedom arose f r o m self-love, the root o f all evil and the cause o f A d a m ' s d o w n f a l l (Saravia 1 6 1 1 , p. 1 1 9 ; a v e r y similar passage is in Filmer 1949, p. 53). 4. 'Homines natura non nascuntur liberi.' 'Naturae lege films familias in patris est potestate'.

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Scriptural history, said Saravia, m a d e it clear that m a n k i n d ' s original condition had n o t been one o f freedom: 'the true origin o f political authority is taught b y sacred history, w h i c h s h o w s that g o v e r n m e n t w a s not the i n v e n t i o n o f m a n but the constitution o f G o d and nature, and that the first g o v e r n m e n t s w e r e paternal (Saravia 1 6 1 1 , p. 167). T h e B o o k o f Genesis demonstrated that political p o w e r existed f r o m the v e r y b e g i n n i n g o f m a n k i n d ' s history. Saravia c o n c l u d e d that 'fatherly p o w e r w a s k i n g l y , that is to say supreme, a m o n g s t the first authors o f the h u m a n race, w h e t h e r w e l o o k at those centuries o f the first age before the F l o o d , or at those w h i c h f o l l o w e d under N o a h and his sons and grandsons; and b y the l a w o f nature fathers w e r e princes o v e r their descendants' (Saravia 1 6 1 1 , p. 167). T h e p o w e r o f a father (and k i n g ) included the right to n o m i n a t e his successor, but i f he failed to d o so succession p r o c e e d e d b y p r i m o g e n i t u r e (Saravia 1 6 1 1 , p. 167). G o d c o u l d , h o w e v e r , alter these arrangements. P r o v i d e n c e c o u l d c h a n g e the f o r m o f g o v e r n m e n t or the person(s) o f the g o v e r n o r (s). In e v e r y state, h o w e v e r , the p o w e r o f the ruler w a s the same, and c a m e f r o m G o d alone (Saravia 1 6 1 1 , p. 160). The^ ideas that r o y a l p o w e r is essentially patriarchal, and that the first fathers w e r e kings o v e r their subjects (and children) w e r e relatively c o m m o n in early seventeenth-century E n g l a n d . Patriarchal and regal rule, said A n d r e w e s , w e r e ' b o t h one in effect' ( A n d r e w e s 1 6 1 0 , p. 13). B i s h o p J o h n B u c k e r i d g e , D e a n T h o m a s Jackson, and B o l t o n each said m u c h that w a s later to be regarded as characteristic o f Filmer ( S o m m e r v i l l e 1986b, p. 3 1 ) . T h e o n l y i n n o v a t o r y aspect o f Filmer's patriarchal t h e o r y is the thoroughness w i t h w h i c h he expressed it. N o r w a s his treatment o f other questions original. H e did indeed derive r o y a l p o w e r f r o m G o d alone, and parted c o m p a n y w i t h Sir J o h n H a y w a r d , B a r c l a y and A d a m B l a c k w o o d on this matter ( D a l y 1979, p p . 20—1). Y e t , in d o i n g this, he found h i m s e l f in a g r e e m e n t w i t h a vast n u m b e r o f other thinkers. A g a i n , Filmer held that r o y a l p o w e r w a s not limited b y any h u m a n authority or l a w . In this he agreed w i t h such theorists as his friend Peter H e y l i n , and the civil l a w y e r J o h n C o w e l l , b o t h o f w h o m w r o t e before 1640 ( H e y l i n 1637, p. 156; C o w e l l 1607, sig. 2 Q i a ) . 5

6

Later, w h e n C i v i l W a r came, a n u m b e r o f royalists argued that His

5. ' E x sacra historia docetur vera imperii o r i g o , & quod non h o m i n u m fuerit inventio, sed D e i & naturae constitutio, & prima imperia fuisse paterna.' 6. 'patriam potestatem regiam, hoc est, s u m m a m fuisse apud p r i m o humani generis authores, sive secula prioris aevi ante aquarum inundationem spectemus, sive quae post secuta sunt sub N o a h o , & ipsius natis ac nepotibus: & Patres illos iure naturae principes fuisse e o r u m quos procrearunt'.

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Majesty w a s , in fact, limited b y h u m a n l a w s . T h i s w a s the position o f B a g s h a w , a c o m m o n l a w y e r w h o s e v i e w s o n the origins o f g o v e r n m e n t resembled Filmer's, but w h o nevertheless subordinated the r o y a l w i l l to the c u s t o m a r y l a w o f the land ( D a l y 1979, p p . 178—9; B a g s h a w 1660, p p . 101—6). S o m e o f the k i n g ' s propagandists also claimed that Charles w a s limited b y English l a w , and at times i m p l i e d that this w a s an arrangement w h i c h the m o n a r c h alone c o u l d neither j u s t l y n o r v a l i d l y alter ( F e m e 1642, p. 1 5 , 1643, p . 6; D i g g e s 1642, p. 1 2 , 1643, p p . 1 0 , 64, 128). It is not surprising that such publicists emphasised the m o d e r a t i o n o f the k i n g ' s cause, for their task w a s to persuade the u n c o m m i t t e d to side w i t h K i n g Charles. Y e t they w e r e often v e r y imprecise o n just h o w r o y a l p o w e r w a s limited, and it is arguable that i f pressed most o f t h e m w o u l d h a v e agreed w i t h Filmer's v i e w s . It has been said that the 'bizarre' system o f Filmer's Patriarcha left 'no e c h o in the French literature o f the t i m e ' ( L a c o u r - G a y e t 1898, p. 463). Filmer's system w a s n o t bizarre, but it is, s e e m i n g l y , true that n o fully d e v e l o p e d patriarchalist t h e o r y o f g o v e r n m e n t w a s v o i c e d in seventeenthcentury France. Nevertheless, elements o f such a t h e o r y are to be found in a n u m b e r o f French writers. Elie M e r l a t , for e x a m p l e , held that fathers and masters originally possessed the p o w e r to inflict the death penalty u p o n their children and servants (Merlat 1685, p. 55). B a r i c a v e attempted to refute contractualist accounts o f the origins o f g o v e r n m e n t b y s h o w i n g that A d a m and N o a h had been kings and that kingship therefore existed f r o m the b e g i n n i n g o f time (Baricave 1614, p p . 354, 4 5 1 ) . Bossuet declared that 'all m e n are b o r n subject', since their fathers h a v e p o w e r o v e r t h e m , and he held that states d e v e l o p e d f r o m families (Politique tiree, 2 , 1 , in Bossuet 1966, p. 104). Senault asserted that 'the first fathers w e r e kings o f their children, just as the first k i n g s w e r e fathers o f their subjects'. ' M o n a r c h y ' , he said, 'is almost as old as the w o r l d i t s e l f , for A d a m had been k i n g in Eden (Senault 1 6 6 1 , p. 22). N o n e o f these authors, h o w e v e r , placed any great w e i g h t u p o n these patriarchalist propositions, and s o m e contradicted patriarchalism b y distinguishing b e t w e e n r o y a l and paternal p o w e r (e.g. B a r i c a v e 1 6 1 4 , p. 561). Systematic patriarchalism flourished in E n g l a n d but not France. T h e reasons for this are obscure. Filmer's o w n influence p r o b a b l y had little to d o w i t h the popularity o f the theory in E n g l a n d . Patriarchalism was a r g u a b l y m o r e popular before than after Filmer, and f e w writers q u o t e d h i m (specific examples o f Filmer's influence are discussed in S c h o c h e t 1975, pp. 163, 165, 1 7 5 , 185, 202-3, but e v e n here the e v i d e n c e is n o t a l w a y s conclusive). O f course, patriarchalism w a s a 360

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variant o f the divine right o f kings. In other w o r d s , patriarchalists held that kings derive their p o w e r f r o m G o d alone. In France m a n y absolutists did not subscribe to this v i e w . A h i g h p r o p o r t i o n o f legal thinkers, and o f theologians, continued to maintain that r o y a l p o w e r arose f r o m an act o f transference b y the people.

iv

C o n t r a c t , conquest, and usurpation

W h e n D e D o m i n i s attacked the political theories o f R o b e r t B e l l a r m i n e and Suarez, he argued that e v e r y ruler derived his p o w ^ r f r o m G o d alone, and c o n c l u d e d that k i n g s are e x e m p t f r o m papal control. E d m o n d R i c h e r agreed w i t h the conclusion but rejected the premise. R i c h e r , w h o had been syndic o f the S o r b o n n e until his ultra-Gallican v i e w s led to his dismissal, b r o a d l y f o l l o w e d the teachings o f Jean G e r s o n and Jacques A l m a i n o n the origins o f g o v e r n m e n t . R o y a l p o w e r , he said, w a s derived f r o m the p e o p l e and not f r o m G o d alone, so D e D o m i n i s ' t h e o r y w a s mistaken ( R i c h e r 1692, p p . 1 5 4 - 5 ) . Y e t , he maintained, the V e n e t i a n w a s correct to c o n d e m n the v i e w s o f such m e n as Suarez. T h e fact that the p e o p l e had once possessed p o w e r did n o t i m p l y that they c o u l d ever r e c o v e r it. P u b l i c tranquillity w o u l d be u n d e r m i n e d i f princes c o u l d be resisted b y their subjects. K i n g s w e r e , in consequence, irresistible, and accountable to G o d alone. O n e private individual c o u l d use force to defend h i m s e l f against attack b y another, but n o individual c o u l d ever use force against the k i n g . For the death o f the k i n g w o u l d doubtless cause public h a r m , w h i l e G o d ' s l a w o f nature required that w e p r o m o t e the public g o o d ( R i c h e r 1692, p p . 159, 133). C a r d i n a l D u P e r r o n strongly disagreed w i t h R i c h e r ' s v i e w s o n church—state relations. W h e n the third estate attacked the p o p e ' s claims to p o w e r in temporals in the Estates General o f 1 6 1 4 - 1 5 , D u P e r r o n spoke in f a v o u r o f the papal position. His political t h e o r y w a s U l t r a m o n t a n e , and its principles w e r e not far r e m o v e d f r o m those o f L e a g u e r resistance theorists. D u Perron, h o w e v e r , w a s careful to tone d o w n the practical implications o f his thinking, and the same holds g o o d o f most U l t r a m o n t a n e theorists in the years after the assassination o f H e n r i I V . T h e parlement o f Paris c o n d e m n e d Mariana's De rege, w h i c h had a l l o w e d resistance b y private individuals in special circumstances. After 1 6 1 0 , the Jesuits and their allies tried to distance themselves f r o m the ideas o f Mariana. Suarez h e a v i l y qualified popular rights o f resistance but nevertheless incurred the w r a t h o f the parlement o f Paris, w h i c h c o n d e m n e d his Defensio jidei in 1 6 1 4 . O t h e r 361

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U l t r a m o n t a n e s w e r e still m o r e circumspect than Suârez, and m a n y disguised the anti-absolutist implications o f their contractualism. T h e English author o f The Image o/Bothe Churches (possibly James Pateson) w a s so cautious on the subject o f resistance that he can be read as an absolutist. H e spent m u c h space o n s h o w i n g that Calvinists w e r e seditious, and q u o t e d B o d i n o n s o v e r e i g n t y (Pateson 1623, p . 218). Y e t there is little in his b o o k w h i c h f o r m a l l y contradicts the ideas o f the C a t h o l i c m o n a r c h o m a c h s . T h e Protestant contractualist H u g o Grotius published his De Jure Belli ac Pads at Paris in 1625. T h i s w o r k is sometimes regarded as an unoriginal re-hash o f neo-scholastic (and especially Suârezian) ideas (Edwards 1981, p p . 148—55). Since R o u s s e a u , it has also c o m m o n l y been seen as a major text o f early m o d e r n absolutist t h i n k i n g (Rousseau, Du contrat social, ch. 2). In a sense, it is b o t h , for neo-scholastic authors b e c a m e increasingly absolutist in the seventeenth century. Grotius w a s n o t the o n l y c o n t e m p o r a r y jurist to t o y w i t h absolutist notions. Absolutist ideas b e c a m e increasingly influential a m o n g s t French jurists in the late sixteenth and early seventeenth centuries, t h o u g h a n u m b e r o f these writers continued to trace the origins o f r o y a l p o w e r to a grant b y the people. L e B r e t ' s De la souveraineté du Roy o f 1632 set out w h a t was virtually the officiai i d e o l o g y o f the g o v e r n m e n t o f R i c h e l i e u and M a z a r i n ( B o n n e y 1978, p p . 26, 1 1 5 ) . L e B r e t insisted that the k i n g had a m o n o p o l y o f legislative p o w e r (Le B r e t 1632, p p . 6 4 - 7 5 ) . P o p u l a r acclamation o f the s o v e r e i g n at the time o f the c o r o n a t i o n did n o t i m p l y that r o y a l p o w e r w a s in any sense dependent o n the people, for kings w e r e accountable to G o d alone. T h e c o r o n a t i o n c e r e m o n y w a s useful in g i v i n g the people an o p p o r t u n i t y to pay h o m a g e to a k i n g w h o m G o d had set o v e r t h e m ; it did not indicate that kingship w a s elective (Le B r e t 1632, p. 27). Y e t the people had originally been s o v e r e i g n . T o prevent the rich and p o w e r f u l f r o m abusing their positions 'the first m e n . . . established kings, and g a v e t h e m s o v e r e i g n authority o v e r t h e m ' (Le B r e t 1632, p p . 3—4). O n c e kings had been instituted, h o w e v e r , they b e c a m e s o v e r e i g n legis lators (Le B r e t 1632, p . 64). L e B r e t used the B o d i n i a n c o n c e p t o f s o v e r e i g n t y to s h o w that e v e n i f k i n g s had at first derived their p o w e r s f r o m the people, they w e r e n o w accountable to G o d alone. B o d i n i a n s o v e r e i g n t y a l l o w e d absolutist conclusions to be d r a w n f r o m contractualist premises. T h e p e o p l e had at first been sovereign, said the Jansenist Pierre N i c o l e , and the prince's p o w e r arose f r o m a popular grant, but n o w kings ' h o l d their p o w e r f r o m G o d alone' ( N i c o l e 1670, p. 186). T

Saumaise c o n d e m n e d the English Independents for e x e c u t i n g Charles I, 362

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and for setting u p the ' n e w monster o f military g o v e r n m e n t ' (Saumaise 1650, p. 328). H e held that the idea o f perpetual popular s o v e r e i g n t y , w h i c h underlay the Independents' actions, w a s a recipe for anarchy (Saumaise 1650, p. 320). A k i n g w h o c o u l d be j u d g e d b y his subjects w a s u n w o r t h y o f the n a m e o f k i n g , for kings are b y definition accountable to G o d alone (Saumaise 1650, p p . 314—15). T h e English claimed that salus populi had justified C h a r l e s ' e x e c u t i o n , but their reasoning w a s faulty. T h e safety and welfare o f the p e o p l e w a s , indeed, the purpose o f g o v e r n m e n t . It did n o t f o l l o w , h o w e v e r , that k i n g s c o u l d ever be resisted or deposed. Indeed, w h a t f o l l o w e d w a s the precise reverse: since salus populi w a s so i m p o r t a n t a g o a l , kings w e r e irresistible. For w e c o u l d n e v e r e x p e c t a single m o m e n t o f peace in the state if royal p o w e r w e r e revocable (Saumaise 1650, pp. 333—4). ' T h e same reason w h i c h demands that the p e o p l e should n o t be w i t h o u t a ruler, also demands that the ruler should n o t be c h a n g e d ' (Saumaise 1650, p. 335). S o the original transference o f p o w e r f r o m the p e o p l e to the prince w a s irreversible (Saumaise 1650, p p . 333, 335). Saumaise vested original s o v e r e i g n t y in the p e o p l e as a w h o l e , and not in individuals. M o s t theorists likewise denied that individuals had ever held political p o w e r , and displayed little interest in the pre-political c o n d i t i o n o f m a n k i n d . A n e x c e p t i o n w a s Bossuet, w h o s e account o f the origins o f g o v e r n m e n t w a s h e a v i l y indebted to H o b b e s . Bossuet denied that the p e o p l e had been s o v e r e i g n before the institution o f kings. R a t h e r , anarchy had prevailed in that state, w h i c h w a s , indeed, a c o n d i t i o n o f perpetual w a r o f all against all. T o escape f r o m a situation in w h i c h ' e v e r y o n e is master and n o one is' individuals therefore r e n o u n c e d their n o x i o u s natural liberty, w h i c h led o n l y to fear and confusion. T h i s renunciation o f liberty w a s not, h o w e v e r , a renunciation o f s o v e r e i g n t y : to suggest otherwise w a s 'to confuse the independence w h i c h e v e r y m a n has in a state o f anarchy, w i t h s o v e r e i g n t y ' . Manifestly, w h e r e e v e r y o n e w a s independent, n o one w a s s o v e r e i g n (Cinquième avertissement, in Bossuet 1966, p p . 83—5). Bossuet's use o f H o b b e s illustrates the point that w i t h v e r y m i n o r alterations the doctrines o f Leviathan c o u l d be m a d e to l o o k quite traditional. In effect, Bossuet's t h e o r y w a s little different f r o m c o n v e n t i o n a l divine right t h i n k i n g . T h e p e o p l e nominated their s o v e r e i g n b y r e n o u n c i n g their natural liberty, w h i l e he alone k e p t his. T h e y did n o t transfer s o v e r e i g n t y to h i m for they had n e v e r possessed it. In 1643 the English royalist pamphleteer D u d l e y D i g g e s likewise posited an original state o f c o m p l e t e liberty in w h i c h w e all had 'an unlimited p o w e r to use our abilities, a c c o r d i n g as w i l l did p r o m p t ' ( D i g g e s 1643, p . 2). T h e misery o f 363

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this condition, he held, w o u l d soon persuade p e o p l e that it w a s rational to r e n o u n c e their native liberty b y agreeing 'not to resist p u b l i q u e authority' ( D i g g e s 1643, p p . 5—6). Y e t w h o e v e r held this public authority d e r i v e d the right o f e x e c u t i n g criminals n o t f r o m the p e o p l e but f r o m G o d alone. In D i g g e s ' t h e o r y the original p e o p l e are constrained b y natural l a w to institute g o v e r n m e n t . T h e y d o this b y g i v i n g u p their right to defend themselves against attack b y s o m e specific person(s) w h o m they thus effectively designate as their ruler(s). T h e ruler's c o e r c i v e p o w e r , h o w e v e r , stems f r o m G o d alone. T h e idea that princes m a y n o t be actively resisted b y their subjects w a s , o f course, utterly c o n v e n t i o n a l a m o n g s t royalists and absolutists. T h e o n l y n o v e l feature o f D i g g e s ' approach w a s that he posited a state o f original liberty. T h i s served t w o functions, neither o f w h i c h contributed m u c h o f substance to his t h e o r y . First, it underlined just h o w unpleasant life w i t h o u t g o v e r n m e n t w o u l d be. S e c o n d l y , it a l l o w e d h i m to score an i m p o r t a n t p o l e m i c a l point against his parliamentarian adversaries. T h e y claimed to be fighting for their native liberty; D i g g e s s h o w e d that native liberty w a s anarchy ( D i g g e s 1643, p p . 1—2). D i g g e s ' intentions w e r e p o l e m i c a l . T h e same goes for other royalist pamphleteers such a H e n r y F e m e , H e n r y H a m m o n d , and Sir J o h n S p e l m a n . T h e r e w e r e , o f course, differences b e t w e e n t h e m , but these propagandists had a great deal in c o m m o n . A l l used a w i d e variety o f arguments in order to w i n the debate w i t h parliament. D i g g e s , for instance, appealed to patriarchalism ( D i g g e s 1642, p. 5, 1643, p p . 61—2), the c o n c e p t o f s o v e r e i g n t y ( D i g g e s 1643, p p . 31—2, 59), the n o t i o n o f an irreversible original transference o f p o w e r ( D i g g e s 1642, p p . 1—2, 68—9), and conquest ( D i g g e s 1643, p p . 81, 1 1 6 ) . T h e s e elements recur in v a r y i n g proportions in royalist w r i t i n g s t h r o u g h o u t and after the 1640s. T h e N o r m a n conquest p r o v i d e d R o b e r t B r a d y w i t h a basis for absolutist claims in 1681 ( B r a d y 1681; discussed in P o c o c k 1957, pp. 195—9). In the 1640s conquest featured in the w o r k n o t o n l y o f D i g g e s but also o f F e m e ( F e m e 1643, p . 32; Sharp 1983, p p . 97—102). L i k e D i g g e s , he held that W i l l i a m o f N o r m a n d y had c o n q u e r e d E n g l a n d , and that the conquest had g i v e n h i m a valid title to the c r o w n . T h e idea that conquest, at least in a just w a r , gives the v i c t o r absolute s o v e r e i g n t y o v e r the vanquished w a s w i d e l y accepted o n b o t h sides o f the C h a n n e l . Since the c o n q u e r o r c o u l d put the defeated p o p u l a t i o n to death, the a r g u m e n t ran, it w a s o n l y reasonable that he acquire absolute rights o v e r it i f he chose to spare it (Bossuet, Cinquième avertissement, in Bossuet 1966, pp.270—1). Saumaise claimed that unless conquest conferred title, n o c o n t e m p o r a r y prince c o u l d call his k i n g d o m 364

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his o w n . E n g l a n d , he said, had been c o n q u e r e d b y Saxons, D a n e s , and N o r m a n s (Saumaise 1650, p p . 366, 367). For Saumaise, o f course, the fact that a k i n g w a s a c o n q u e r o r i m p l i e d little about his authority. A l l k i n g s held s o v e r e i g n p o w e r . S o c o n q u e r o r s held n o m o r e p o w e r o v e r their subjects than other princes. T h e y m i g h t h a v e f e w e r m o r a l obligations, but that w a s a different matter. In E n g l a n d , s o m e absolutists asserted that the c o u n t r y had been c o n q u e r e d b y W i l l i a m but, like Saumaise, placed little w e i g h t u p o n this contention. S u c h m e n include James I, Saravia, and, indeed, D i g g e s and F e m e (James I 1 6 1 6 , p . 202; Saravia 1 6 1 1 , p . 288). O t h e r s - H a y w a r d , W i l l i a m F u l b e k e , C o w e l l — a r g u e d a rather stronger case, c l a i m i n g that the current m o n a r c h w a s an absolute ruler because the r o y a l line b e g a n w i t h a c o n q u e r o r ( S o m m e r v i l l e 1986b, p p . 68—9). T h e s e three w e r e civil l a w y e r s , and civil l a w texts recorded that political p o w e r at first b e l o n g e d to the people, w h o later decided to transfer it to a prince. T h i s left o p e n the possibility that in E n g l a n d they had transferred it o n certain conditions, l i m i t i n g the k i n g ' s p o w e r . A r g u a b l y it w a s to close off this possibility that H a y w a r d and the rest stressed conquest. For conquest, civil l a w y e r s agreed, left the k i n g absolute. M o s t absolutists, h o w e v e r , relied o n arguments other than that f r o m conquest. M o s t anti-absolutists w e r e a w a r e o f this. T h e question o f w h e t h e r W i l l i a m o f N o r m a n d y had acquired the throne o f E n g l a n d b y l a w f u l succession or b y conquest n e v e r lay at the centre o f political debate in the seventeenth century (contrasting v i e w s on this question are to b e f o u n d in P o c o c k 1957, pp.42—5, 53—5; Skinner 1965; W a l l a c e 1968, p p . 2 2 - 6 ; Dzelzainis 1983, p p . 4 3 , 6 1 ) . V i c t o r y in battle w a s a sign o f G o d ' s favour. P r o v i d e n c e c o u l d change the r o y a l line b y transferring it to a successful invader or rebel. G o d m a d e k i n g d o m s , said Bossuet, and c o u l d g i v e t h e m to w h o m e v e r H e chose (Bossuet 1966, p . 58). T h e implication o f this thesis w a s that hereditary right is n o t indefeasible, and m o s t absolutists admitted this. It w a s easy to accept that an o m n i p o t e n t deity m i g h t depose one m o n a r c h and set another in his place. It p r o v e d less easy to reach a g r e e m e n t o n h o w subjects w e r e to recognise that G o d had in fact c h a n g e d their s o v e r e i g n . S o m e authors a r g u e d that a usurping line acquired l e g i t i m a c y after it had been in p o w e r for a century, or for three generations ( D a l y 1979, p . 1 2 i n ; Barret 1 6 1 2 , p p . 417—18). In the ecclesiastical canons o f 1606, h o w e v e r , the represent atives o f the English c l e r g y affirmed that a usurping r e g i m e b e c a m e legitimate as soon as it w a s ' t h r o u g h l y settled'. James I t o o k e x c e p t i o n to this clause w h i c h w o u l d h a v e sanctioned any successful rebellion ( O v e r a l l 365

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1844, p. 5 1 , preface p p . 6—9). Y e t the idea that a usurper's g o v e r n m e n t b e c o m e s valid o n c e it has been effectively established continued to be influential in E n g l a n d , particularly in the c o n t r o v e r s y o v e r the E n g a g e m e n t o f 1649, and again after the G l o r i o u s R e v o l u t i o n . In 1690 A r c h b i s h o p Sancroft published the canons o f 1606, and s o o n afterwards W i l l i a m S h e r l o c k d r e w o n t h e m to justify the rule o f W i l l i a m and M a r y (Goldie 1980, p . 514). T w o m a i n arguments w e r e used to justify the claim that a usurper b e c a m e a legitimate k i n g i f he established his rule. T h e first w a s that success testified to divine a p p r o v a l , and this providentialist doctrine w a s regularly expressed b o t h at the time o f the E n g a g e m e n t C o n t r o v e r s y and again after 1688. T h e second a r g u m e n t linked protection w i t h obedience. A prince w h o failed to protect his subjects, so the reasoning w e n t , forfeited his claims to their allegiance. C o n v e r s e l y , a usurper w h o did protect a p e o p l e acquired a right to their obedience. In 1645 W i l l i a m B a l l declared that 'it is an A x i o m Politicall, w h e r e there is n o protection there is n o subjection' (Ball 1645, p. 14). H e claimed that i f k i n g or parliament failed to protect the people's rights, they m i g h t defend t h e m b y force. T h e m a x i m that 'as protection d r a w s subjection, so subjection d r a w s protection a l o n g w i t h it' w a s also used b y R o b e r t Austine in 1644 to justify parliament's use o f force (Austine 1644, p. 2), but it w a s n o t until the E n g a g e m e n t C o n t r o v e r s y b e g a n in 1649 that the idea really c a m e into its o w n . In 1651 H o b b e s g a v e forceful expression to the theory, e m p l o y i n g it to defend obedience to the c o m m o n w e a l t h (Skinner 1972). Absolutist thinking in the early seventeenth century w a s d i v i d e d and often imprecise o n e x a c t l y w h a t constituted a valid title to the c r o w n . In E n g l a n d after 1649 s o m e erstwhile royalists w e r e thus able to a c c o m m o d a t e themselves to the n e w r e g i m e w i t h o u t sacrificing their old principles. Providentialists c o u l d construe the c o m m o n w e a l t h as providentially ordained. Consistent supporters o f Stuart rule, o n the other hand, m i g h t find themselves forced to alter their doctrines. Filmer is an e x a m p l e . In Patriarcha he claimed that P r o v i d e n c e c o u l d change the line o f succession, and e v e n the f o r m o f g o v e r n m e n t (Filmer 1949, p. 62). Later, he c h a n g e d his m i n d o n b o t h points. In the Directions for obedience to government in dangerous or doubtful times (1652), Filmer argued that 'a usurper can n e v e r gain a right f r o m the true superior', but that a m o n g s t usurpers the earliest had the best title (Filmer 1949, p. 234). O n e o b v i o u s implication o f these principles is that i f genealogists discovered the heir o f A d a m (the first legitimate ruler), or o f s o m e ancient usurper, the claim o f the Stuarts to the throne o f E n g l a n d w o u l d be u n d e r m i n e d . In challenging the title o f the 366 Cambridge Histories Online © Cambridge University Press, 2008

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c o m m o n w e a l t h , Filmer constructed a r g u m e n t s w h i c h n o t o n l y c o n tradicted his earlier t h e o r y but also cast d o u b t o n the claims o f the Stuarts, and, indeed, o f e v e r y ruling house in E u r o p e . T h e Directions w a s appended to Observations upon Aristotles politics touching forms of government, in w h i c h Filmer claimed that there w a s o n l y one f o r m o f g o v e r n m e n t , n a m e l y m o n a r c h y . O n c e m o n a r c h y had been abolished in E n g l a n d , Filmer decided that n o n - m o n a r c h i c a l forms o f g o v e r n m e n t w e r e invalid.

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T h e case o f Filmer illustrates that civil w a r led to i d e o l o g i c a l shifts a m o n g s t E n g l i s h m e n . It is sometimes difficult to tell h o w far such shifts w e r e cosmetic rather than substantial. P r o p e r t y p r o v i d e s an e x a m p l e . B e f o r e the C i v i l W a r , l a w y e r s and clerics in the k i n g ' s service often vindicated His Majesty's right to, take his subjects' g o o d s w i t h o u t their consent in w h a t he d e e m e d to be a case o f necessity. F r o m 1640 o n w a r d s , h o w e v e r , C h a r l e s ' propagandists emphasised r o y a l respect for rights o f p r o p e r t y , and the necessity o f consent. It w a s n o t the k i n g , they said, but the so-called parliament w h i c h threatened the subject's p r o p e r t y ( D i g g e s 1642, p. 97). After the R e s t o r a t i o n , t o o , m a n y royalists w r o t e c i r c u m s p e c t l y on the question o f p r o p e r t y . C l a r e n d o n , for e x a m p l e , dissented f r o m H o b b e s ' n o t i o n that sovereigns m i g h t take a subject's g o o d s at w i l l , and r e m i n d e d h i m o f ' t h e ill consequence w h i c h must attend the v e r y i m a g i n a t i o n that the N a t i o n had lost its P r o p r i e t y ' ( H y d e 1676, p . 109). T h e C i v i l W a r demonstrated that E n g l i s h m e n w e r e fond o f their p r o p e r t y , and c o u l d g r o w v i o l e n t i f it w e r e subverted. M a n y p o s t - R e s t o r a t i o n royalists b o r e this lesson in m i n d , t h o u g h s o m e continued to assert that the m o n a r c h had absolute p o w e r o v e r the p r o p e r t y o f subjects (Leslie 1709, p. 42). In later seventeenth-century E n g l a n d royalists g r e w increasingly reluct ant to assert the k i n g ' s right to tax w i t h o u t consent. In France, b y contrast, the n o t i o n that taxation ordinarily requires consent w a s swiftly eroded. B o d i n f a m o u s l y insisted that k i n g s had a d u t y to obtain the consent o f their subjects before they levied taxes, t h o u g h he admitted that this rule lost its force in emergencies ( B o d i n 1962, pp.663—5). H e l o o k e d to the Estates General as the appropriate institution to v o t e taxes in France. After 1615 this institution fell into disuse. E v e n before then m a n y theorists had a b a n d o n e d the idea that consent is n o r m a l l y needed to validate r o y a l levies. N e i t h e r Charles L o y s e a u n o r Pierre de L ' H o m m e a u d e e m e d consent necessary ( C h u r c h 1 9 4 1 , p . 328; o n L o y s e a u see G i l m o r e 1950). B a r i c a v e claimed that the k i n g c o u l d c o m m a n d e e r the resources o f his 367 Cambridge Histories Online © Cambridge University Press, 2008

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subjects in order to preserve the state. O n l y necessity and the public g o o d c o u l d justify sovereigns in seizing g o o d s . Y e t e v e n i f they had n o such justification, the subject c o u l d n e v e r resist. Later, L e B r e t v i g o r o u s l y rejected the idea that princes m a y take their subjects' g o o d s arbitrarily. H e insisted that a k i n g o u g h t n o t to pursue his o w n personal a d v a n t a g e at the expense o f his people. T h e public g o o d , h o w e v e r , t o o k precedence o v e r private interests. S o the k i n g c o u l d l e v y taxes w i t h o u t consent w h e n e v e r the public g o o d required such a course (Baricave 1614, p p . 573, 576; L e B r e t 1632, p p . 6 3 2 , 634, 637). Louis X I V h i m s e l f held that k i n g s h a v e 'the full and free disposition o f all the g o o d s possessed b y ecclesiastics as w e l l as l a y m e n ' , to use a c c o r d i n g to the needs o f their state (Louis X I V i860, 1, p. 209). H e did n o t b o t h e r to m e n t i o n the old idea that taxation requires consent. N o r did Senault, t h o u g h he w a s careful to stress that m o n a r c h s h o l d n o p r o p e r t y in their subjects' g o o d s , and that they are b o u n d to rule in the public interest. O n l y necessity c o u l d justify taxation, he said, and a prudent k i n g w o u l d explain to his subjects w h y taxes w e r e necessary — or risk rebellion. Senault criticised French taxation not because the k i n g i g n o r e d consent but because his levies fell disproportionately u p o n the p o o r , causing hardship (Senault 1 6 6 1 , p p . 3 5 0 - 1 , 3 5 4 - 6 ) . Fénelon likewise attacked the disastrous effects o f r o y a l policies rather than the k i n g ' s right to finance t h e m w i t h o u t consent (Fénelon 1920, p p . 1 4 3 - 5 7 ) . French theorists claimed that the subject held p r o p e r t y in his lands and g o o d s . In an arbitrary or seigneurial m o n a r c h y , they argued, the k i n g alone possessed p r o p e r t y . In France, h o w e v e r , r o y a l rule w a s absolute and n o t arbitrary. T h a t is to say, the k i n g c o u l d n o t j u s t l y take his subjects' possessions at w i l l . Seigneurial m o n a r c h y w a s regarded as contrary to Christian principles (Bossuet, Politique tirée, 8,2, in Bossuet 1966, p. 1 1 5 ; La B r u y è r e 1966, p . 247). Just occasionally, authors affirmed that the p e o p l e o f France held o n l y usufruct and not full p r o p e r t y ( C h u r c h 1 9 4 1 , p p . 259—60; L a c o u r - G a y e t 1898, p. 428). M o s t l y , h o w e v e r , thinkers insisted that the s o v e r e i g n c o u l d tax o n l y w h e n public necessity d e m a n d e d . Since the k i n g w a s irresistible this stipulation w a s e v i d e n t l y unenforceable. T h e doctrine that necessity justifies taxation w a s m o r e easily s w a l l o w e d w h e n the necessity w a s o b v i o u s — as it w a s in France in the 1630s. A m o n g s t theorists, h o w e v e r , the thesis had w o n w i d e f a v o u r w e l l before the w a r w i t h Spain, and its v o g u e continued e v e n after v i c t o r y b e g a n to l o o k likely. In 1640 a conseiller o f the parlement o f Paris argued that there w a s n o necessity, since Louis XIII's troops w e r e victorious e v e r y w h e r e . H e w a s 368

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arrested and exiled ( B o n n e y 1978, p . 1 1 6 ) . A t the t i m e o f the Fronde, the idea that taxation requires consent w a s indeed r e v i v e d , but thereafter it faded rapidly. In E n g l a n d , o n the other hand, the same idea flourished partly, at least, because there w a s n o o b v i o u s e m e r g e n c y in the 1630s w h e n Charles I levied Ship M o n e y . B e f o r e 1640, English clerics frequently vindicated the k i n g ' s right to tax w i t h o u t consent, and specific levies w e r e validated in famous legal testcases. T h e legal decisions w e r e sometimes based o n n a r r o w technical g r o u n d s , and occasionally r o y a l rights o v e r p r o p e r t y w e r e justified b y reference to the N o r m a n conquest. Saravia, for e x a m p l e , stated that after W i l l i a m the C o n q u e r o r had obtained the lands o f E n g l a n d b y right o f w a r he graciously restored possession o f t h e m to their f o r m e r o w n e r s , but 'reserved to h i m s e l f direct d o m i n i o n ' o v e r t h e m (Saravia 1 6 1 1 , p. 288). D i g g e s likewise a r g u e d that the C o n q u e r o r had granted his subjects o n l y the utile dominium o f the land, h i m s e l f retaining direct d o m i n i o n ( D i g g e s 1643, p p . 9 1 , 1 1 6 ) . T h e m a i n a r g u m e n t in favour o f extra-parliamentary taxation, h o w e v e r , w a s n o t based o n any particular reading o f m e d i e v a l history. A s in France, absolutists claimed that the prince's p o w e r to rule in the public interest included a p o w e r to take his subjects' g o o d s w h e n necessity d e m a n d e d . T h e s o v e r e i g n alone w a s the j u d g e o f necessity ( S o m m e r v i l l e 1986b, p p . 1 6 0 - 3 ) . T h e f t w a s prohibited b y the eighth c o m m a n d m e n t . In the public interest, absolutists a l l o w e d the prince to take g o o d s w i t h o u t consent. W e r e they c o n d o n i n g a breach o f divine l a w for the sake o f p r o m o t i n g the c o m m o n g o o d ? U n d e r Charles I, the claim w a s sometimes advanced that for 'reason o f state' the k i n g c o u l d p e r f o r m actions w h i c h w o u l d o t h e r w i s e be unjustified, and similar assertions w e r e c o m m o n l y m a d e in R i c h e l i e u ' s France. T h o s e w h o expressed such opinions occasionally d r e w their ideas f r o m M a c h i a v e l l i . A n e x a m p l e is Louis M a c h o n , w h o prepared a defence o f M a c h i a v e l l i at R i c h e l i e u ' s request ( C h u r c h 1972, p p . 4 1 6 - 3 0 ; M a c h o n and Gabriel N a u d e are discussed in T h u a u 1966, p p . 318—50). E v e n M a c h o n , h o w e v e r , w a s anxious to reinterpret M a c h i a v e l l i ' s v i e w s in order to m a k e t h e m c o n f o r m to traditional Christian m o r a l i t y . M a c h o n ' s w o r k remained unpublished, and m o s t theorists w e r e m o r e cautious about praising the Florentine's ideas. A r g u a b l y , s o m e nevertheless fell under his spell. H o w e v e r , it is far f r o m clear that the g r o w t h o f talk about 'reason o f state' a m o n g s t absolutists in the early seventeenth c e n t u r y bears witness to an 7

7. 'directo sibi d o m i n i o reservato'.

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increase in M a c h i a v e l l i ' s influence or, indeed, to any significant c h a n g e in m o r a l thinking. T w o points are i m p o r t a n t here. First, so-called traditional m o r a l i t y itself placed great w e i g h t u p o n the public g o o d . S e c o n d l y , most theorists w h o w r o t e in favour o f ' r e a s o n o f state' w e r e careful to stress that the sovereign's p o w e r w a s limited b y his Christian duties. In 1625 t w o Jesuit pamphleteers attacked French foreign p o l i c y , c l a i m i n g that it irreligiously placed n a r r o w national interests before the C a t h o l i c cause ( C h u r c h 1972, pp. 1 2 1 - 3 ) . In the later 1620s and 1630s a n u m b e r o f French C a t h o l i c s likewise l o o k e d askance at R i c h e l i e u ' s alliances w i t h heretics against Spain, the c h a m p i o n o f C a t h o l i c i s m , and accused the C a r d i n a l o f M a c h i a v e l l i a n practices: like M a c h i a v e l l i , R i c h e l i e u subordinated Christian m o r a l i t y to the public safety. S u c h accusations should not be taken t o o seriously. D e v o u t , Hispanophile Catholics themselves g a v e a v e r y h i g h priority to the maintenance o f the public g o o d . O f course, they denied that 'the least sin against G o d m a y be c o m m i t t e d for the welfare o f the c o m m o n w e a l t h " ( C o q u a e u s 1610, p. 493). S o m e held, h o w e v e r , that actions c o u l d cease to be sinful i f they w e r e performed in a g o o d cause. ' S u c h is the force o f the public g o o d ' , said the English priest E d w a r d W e s t o n , 'that at its b i d d i n g m a n y things are rendered g o o d and lawful w h i c h w o u l d otherwise, o f their o w n natures, be found contrary to right reason' ( W e s t o n 1 6 1 3 , p. 240). Jesuits (and other C a t h o l i c moralists) w e r e capable o f e v a d i n g the m o r e rigid o f G o d ' s c o m m a n d m e n t s b y reclassifying their contents. M e n t a l reservation w a s distinguished f r o m l y i n g , for e x a m p l e , and permitted if the cause w e r e just. T h e effect o f this d e v e l o p m e n t w a s to a l l o w acts w h i c h had p r e v i o u s l y been classified as l y i n g , p r o v i d e d that they led to public or at least private benefit. In 1625 the English Benedictine J o h n Barnes c o n v i n c i n g l y argued that some o f the casuists placed such great emphasis u p o n the public g o o d that their teaching w a s indistinguishable f r o m M a c h i a v e l l i ' s (Barnes 1625, p. 106). M a n y o f such casuists w e r e Jesuit opponents o f R i c h e l i e u ' s foreign policy. 8

9

R i c h e l i e u and his propagandists in fact insisted that statesmen should scrupulously abide b y the demands o f Christian m o r a l i t y ( C h u r c h 1972, esp. p. 501). ' T r u e reasons o f state d o not clash w i t h the m a x i m s o f religion', said Jean de Silhon, and in 1661 Senault argued that piety and prudence 8. 'pro salute Reipublicae n o n licet ne m i n i m u m quidem peccatum in D e u m committere'. 9. ' I m o tanta vis tantumque est i m p e r i u m boni publici, et alti dominii, eius causa, in cives, ut ad illius m a n d a t u m multa reddantur bona ac legitima, quae alioquin naturis suis a recta ratione aliena invenirentur.'

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w e r e fully c o m p a t i b l e (Silhon q u o t e d in C h u r c h 1972, p . 164; Senault 1 6 6 1 , p p . 123—5). F e w authors denied that there w e r e u n c h a n g e a b l e m o r a l rules b y w h i c h the prince w a s b o u n d to abide. His d u t y to g o v e r n in the public interest did, indeed, force h i m to i g n o r e h u m a n positive l a w s w h e n they c a m e into c o m p e t i t i o n w i t h the c o m m o n g o o d . S o m e precepts, h o w e v e r , w e r e eternally b i n d i n g . T h e k i n g ' s w i l l did n o t define w h a t w a s just e x c e p t in cases w h e r e superior l a w s w e r e silent (Baricave 1 6 1 4 , p . 505). T h e l a w s o f G o d w e r e to be o b e y e d in preference to the prince's decrees. If a subject knew that the s o v e r e i g n ' s edict w a s contrary to a divine injunction, he w a s b o u n d to o b e y G o d and n o t the k i n g . W h e r e he m e r e l y suspected that the prince's c o m m a n d w a s unjust, h o w e v e r , he had an o b l i g a t i o n to g i v e the k i n g the benefit o f the d o u b t , and a further o b l i g a t i o n to o v e r c o m e his conscientious scruples, and so a v o i d o b e y i n g half-heartedly (Le B r e t 1632, P. 193). K i n g s sinned i f their orders c o n t r a v e n e d the l a w s o f G o d and nature. Since G o d ' s l a w required that they k e e p their promises, they also sinned i f they b r o k e h u m a n l a w ( w h i c h they p r o m i s e d to u p h o l d at the time o f their coronation) — unless, o f course, the public g o o d necessitated such action. T w o other varieties o f l a w w h i c h i m p o s e d limitations u p o n m o n a r c h s w e r e fundamental l a w and the canons o f the church. French absolutists g a v e especial emphasis to fundamental l a w , w h i c h b o u n d the k i n g n o t to alienate the r o y a l d o m a i n , and w h i c h (as Salic l a w ) g o v e r n e d succession to the throne. Perhaps i n t r o d u c e d into France in the 1570s, the t e r m fundamental l a w soon acquired a E u r o p e a n v o g u e . It l o n g remained imprecise, h o w e v e r , and w a s interpreted a c c o r d i n g to each w r i t e r ' s theoretical predilections. Absolutists sometimes assimilated it to the l a w o f nature. J e r o m e B i g n o n , for e x a m p l e , held that Salic l a w w a s d r a w n ' f r o m nature i t s e l f and B o d i n also declared that g o v e r n m e n t b y w o m e n w a s contrary to the l a w o f nature ( B i g n o n 1 6 1 0 , p . 254; B o d i n 1962, p. 746). O t h e r s g a v e it scriptural warrant, for Christ had said that the lilies (meaning the c r o w n o f France) did n o t toil or spin, and this e v i d e n t l y meant that labourers and w o m e n w e r e e x c l u d e d f r o m the succession ( B a c o n 1 6 7 1 , 11, p . 227; Senault 1661, p . 44). A third possibility w a s that Salic l a w had been instituted b y an originally s o v e r e i g n p e o p l e before it transferred authority to a m o n a r c h ( N i c o l e 1670, p . 186; L e B r e t 1632, p p . 3 2 - 3 ) . Perhaps the o n l y consistent element in absolutist interpretations o f fundamental l a w s is that they w e r e construed as strengthening the c r o w n . L i k e B o d i n , Jean S a v a r o n affirmed that the k i n g held o n l y the usufruct o f 37i

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the r o y a l lands in France, and insisted that an inalienable d o m a i n w a s essential to strong m o n a r c h i c a l p o w e r (Savaron 1620, p p . 10—11; o n B o d i n see B u r n s 1959). S a v a r o n w a s attacked for these v i e w s , w h i c h suggested that the k i n g w a s subject to l a w s i m p o s e d u p o n h i m (Savaron 1620, p . 12), and others preferred to construe this limitation on the r o y a l w i l l as m o r a l , n o t legal, in nature. B a r i c a v e , for instance, a r g u e d o n l y that the k i n g ought n o t to alienate the d o m a i n w i t h o u t just cause, and stressed that he w a s its true proprietor (Baricave 1 6 1 4 , p p . 590, 610). A g a i n , Bossuet held that fundamental l a w in general had o n l y directive force o v e r the prince. T h e k i n g c o u l d v a l i d l y abrogate any l a w — fundamental or o t h e r w i s e — t h o u g h he c o u l d d o so sinlessly o n l y w h e n the public g o o d dictated. In the case o f fundamental l a w s it w a s u n l i k e l y to be wise to abrogate t h e m , for they w e r e precisely those l a w s u p o n w h i c h the stability o f society depended (Politique tiree, 4 , 1 , 3 - 4 , in Bossuet 1966, p p . 1 1 1 - 1 4 ; 1,4,8, in Bossuet 1967, p p . 28-9). F u n d a m e n t a l l a w placed o n l y m i n o r restrictions o n r o y a l p o w e r . A r g u a b l y , m o r e serious limitations w e r e i m p o s e d u p o n the k i n g ' s f r e e d o m o f action b y the ecclesiastical authority o f the c h u r c h . In E n g l a n d , o n l y the m o s t e x t r e m e o f Erastian theorists denied that the c l e r g y possessed spiritual authority i n d e p e n d e n t l y o f the prince. M o s t writers held, indeed, that clerics c o u l d n o t exercise such p o w e r w i t h o u t r o y a l licence; but spiritual p o w e r itself, they said, w a s g i v e n i m m e d i a t e l y to c h u r c h m e n b y G o d and n o t b y the k i n g . In France, m a n y thinkers granted the c l e r g y still w i d e r p o w e r s . Ecclesiastical Gallicans questioned the rights o v e r the church w h i c h the k i n g had gained in the C o n c o r d a t o f B o l o g n a . U l t r a m o n t a n e C a t h o l i c s w e r e reluctant to c o n d e m n the indirect deposing p o w e r o f the p o p e , and in 1 6 1 4 - 1 5 it w a s the c l e r g y w h o t o r p e d o e d the third estate's article o n this matter in the Estates General. B y tolerating h i g h clericalist t h i n k i n g a m o n g c h u r c h m e n the French c r o w n ensured that zealous C a t h o l i c i s m w a s equated w i t h l o y a l i s m (see Parker 1983, p . 50, and for a central E u r o p e a n parallel Evans 1979, p p . 65—6). A g a i n , the survival o f U l t r a m o n t a n e ideas a m o n g s t the c l e r g y benefited the c r o w n b y fusing anti-clericalism w i t h absolutism. In 1639 Pierre D u p u y published a collection o f treatises w h i c h emphasised r o y a l p o w e r in ecclesiasticals. T h e b o o k w a s c o n d e m n e d b y the A s s e m b l y o f the C l e r g y , and a D o c t o r o f the S o r b o n n e w r o t e a reply to it. In 1640 the parlement o f Paris in turn c o n d e m n e d the D o c t o r ' s w o r k ( M a r t i m o r t 1953, p. 99; L a c o u r - G a y e t 1898, p . 360). T h a t same year m e m b e r s o f the English parliament attacked the c l e r g y ' s canons largely because o f the absolutist 372

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doctrines w h i c h they p r o p o u n d e d . In E n g l a n d , absolutism c a m e to be equated w i t h the n a r r o w sectional interests o f the c l e r g y . In France, b y contrast, it w a s anti-absolutist ideas w h i c h w e r e identified w i t h private interests. A s the century progressed the French c l e r g y themselves shifted g r o u n d until b y 1682 they u n a m b i g u o u s l y rejected the papal deposing p o w e r and other U l t r a m o n t a n e ideas ( M a r t i m o r t 1953, pp.461—74). Clerics also aided absolutism's cause b y presiding o v e r the ritual in w h i c h m o n a r c h s t o u c h e d (and hopefully cured) scrofulous patients. T h i s r o y a l p o w e r w a s supernatural and served to m a r k k i n g s out f r o m ordinary mortals. James I w a s n o t o r i o u s l y sceptical about his ability to cure the K i n g ' s Evil, but other thinkers t o o k the ritual m u c h m o r e seriously. James' chaplain W i l l i a m T o o k e r claimed that it w a s f r o m English m o n a r c h s that the kings o f France had derived their talents in this area — a thesis staunchly rejected b y the sieur de Lancre in 1623 ( T h u a u 1966, p . 24). Senault spoke o f the k i n g ' s miraculous p o w e r to cure scrofula, c l a i m i n g that it w a s acquired w h e n His Majesty was anointed (Senault 1 6 6 1 , pp. 86, 1 0 0 - 1 ) . ' T h e r e is', he said, ' s o m e t h i n g supernatural about m o n a r c h y ' (Senault 1 6 6 1 , p . 24), and others agreed, but it seems likely that the m a g i c a l qualities o f kingship b u l k e d larger in popular sentiment than in the considered reflections o f theorists. In E n g l a n d , the r o y a l t o u c h w a s in h i g h d e m a n d in the second half o f the seventeenth century. D u r i n g t w o decades Charles II laid a hand u p o n an average o f m o r e than t w e l v e sufferers per day ( T h o m a s 1973, p. 228). P o p u l a r belief in the m a g i c a l p o w e r s o f m o n a r c h s does n o t seem to h a v e declined in the late seventeenth century. A m o n g s t English theorists, absolutist ideas did g r o w less p o p u l a r t o w a r d s the end o f the century. T h i s w a s not, h o w e v e r , because o f the g r o w t h o f scepticism. T h e main alternatives to absolutist t h i n k i n g w e r e just as vulnerable to sceptical attack. N o r did absolutism fade because its opponents w o n the p o l e m i c a l debate, w h a t e v e r W h i g publicists m i g h t claim. A n y explanation o f the failure o f absolutism in E n g l a n d must take full account o f the ineptitude o f James II and his father, and a r g u a b l y it w a s r o y a l i n c o m p e t e n c e w h i c h later led F r e n c h m e n to f o l l o w the English e x a m p l e . T h e k i n g ' s actions helped to c o n v i n c e his subjects o f the truth o f one o f the ideologies w h i c h rivalled absolutism. In E n g l a n d during the early seventeenth century the m o s t i m p o r t a n t o f these ideologies centred o n the ancient constitution and the c o m m o n law.

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13 England: ancient constitution and common law CORINNE

C.

WESTON

A n e w history centring o n l a w and g o v e r n m e n t , pervasive respect for c o m m o n l a w , and an increasingly confident and aggressive H o u s e o f C o m m o n s — this c o n g r u e n c e o f elements nourished in Stuart E n g l a n d the doctrine o f an ancient constitution. T h e authors o f the n e w history w e r e usually c o m m o n l a w y e r s w i t h scholarly interests, often referred to as legal antiquaries, w h o interpreted the historical past f r o m the standpoint o f their o w n day. A s s u m i n g the antiquity o f E n g l i s h m e n ' s rights and liberties and their constant assertion t h r o u g h the centuries, they ransacked historical records for the requisite e v i d e n c e and interpreted their findings in light o f c o m m o n l a w . T h e i r list o f rights and liberties, c o m p o s i n g in toto the ancient constitution, p r o v e d surprisingly protean, r a n g i n g f r o m f r e e d o m o f speech in parliament to its regular meetings and, after civil w a r directed political t h o u g h t into n e w channels, e v e n legal rights concerned w i t h parliamentary representation and the role o f the H o u s e o f C o m m o n s in l a w m a k i n g — subjects little scrutinised in the pre-1642 political w o r l d . W h e t h e r the h u m a n source o f these rights and liberties w a s the k i n g or c o m m u n i t y b e c a m e a leading question in Stuart political t h o u g h t . A c c o r d i n g to the Jacobean H o u s e o f C o m m o n s , reasoning f r o m c o m m o n l a w , the rights and liberties o f the c o m m o n s o f E n g l a n d , e n j o y e d f r o m time i m m e m o r i a l , w e r e an inheritance f r o m their ancestors, a statement m a k i n g the c o m m u n i t y their h u m a n source. James I's rejoinder expressed i m p a T h e research was supported (in part) b y a grant from P S C - C U N Y Research A w a r d P r o g r a m o f T h e C i t y University o f N e w Y o r k . A version o f a portion o f this chapter was presented on 3 April 1986 at the Folger Institute Center for History o f British Political T h o u g h t , w h i c h is supported b y grants from the Research Programs Division o f the National E n d o w m e n t for the Humanities (an independent federal agency), the John B e n S n o w M e m o r i a l Trust, the G e o r g e W a s h i n g t o n University, and the E x x o n Education Foundation. I wish also to thank D r J.H. Baker, St Catharine's C o l l e g e , C a m b r i d g e , for his kindness in reading this chapter and g i v i n g valuable suggestions. For the v i e w s here expressed I alone am responsible.

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England: ancient constitution and common law tience w i t h 'anti-monarchical' w o r d s a b o u t ancient liberties unless it w e r e added that he and his ancestors had granted t h e m ; but the k i n g p l e d g e d , o f his o w n w i l l , to respect privileges e n j o y e d b y l o n g c u s t o m and l a w f u l precedent. T h i s l a n g u a g e b e s p o k e the political t h e o r y o f order d o m i n a n t in early Stuart E n g l a n d b y w h i c h the k i n g , as G o d ' s vicegerent, w a s the h u m a n source o f political p o w e r and authority and hence o f ancient rights and liberties. In this e x c h a n g e o f opinions, reflective o f d i v e r g e n t ideologies, w e r e seeds o f a dispute that endured to the G l o r i o u s Revolution.

i

T h e c o m m o n l a w m i n d and the ancient constitution

T h a t the doctrine o f the ancient constitution is recognised as a distinctive c o m p o n e n t o f Stuart political t h o u g h t is due largely to J . G . A . P o c o c k ' s Ancient Constitution and the Feudal Law (1957), w h i c h h i g h l i g h t e d the role o f a c o m m o n l a w o u t l o o k in shaping that doctrine and ensuring its w i d e reception. ' B e l i e f in the antiquity o f the c o m m o n l a w ' , he writes, ' e n c o u r a g e d belief in the existence o f an ancient constitution, reference to w h i c h w a s constantly m a d e , precedents, m a x i m s and principles f r o m w h i c h w e r e constantly alleged, and w h i c h w a s constantly asserted to be in s o m e w a y i m m u n e f r o m the k i n g ' s p r e r o g a t i v e a c t i o n . ' T h e source o f that doctrine w a s Sir E d w a r d C o k e , w h o s e Reports, published in eleven parts in 1600—15, d Institutes of the Laws ofEngland (1628-44) contain the legal and historical ideas l i n k i n g ancient constitution and c o m m o n l a w . T h e Reports supplied l a w cases for generations o f students, and the Institutes w a s a great legal t e x t - b o o k . T h e i r p o p u l a r i t y c o u l d o n l y h a v e been enhanced b y the great prestige o f an author w h o w a s at one time speaker o f the Elizabethan H o u s e o f C o m m o n s , successively chief justice o f the c o m m o n pleas and k i n g ' s bench, and p r o m i n e n t parliamentary leader. T o W i l l i a m P r y n n e , and countless others, C o k e w a s 'that eminent patron and pillar o f the c o m m o n l a w . . . w h o s e quotations . . . are generally received, and relied o n b y a m e r e implicit faith, as infallible oracles, n o t o n l y b y m o s t y o u n g students and professors, but m o s t ancient sages o f the l a w in their 1

a n

1. P o c o c k 1987, p. 46. This w o r k , w h i c h first appeared in 1957, was reissued in 1987 w i t h additional chapters in w h i c h P o c o c k has expanded and in some instances refined his earlier position. O t h e r w o r k s on the ancient constitution include Butterfield 1944; G o u g h 1961; Hill 1958, pp. 50-122; Nenner 1977; Smith 1987. O n progress in w r i t i n g history, see K e n y o n 1984, pp. 5 - 1 7 . T h e terms 'antiquaries' and 'historians' w e r e used interchangeably in the seventeenth century.

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a r g u m e n t s and resolutions; y e a b y m a n y m e m b e r s o f parliament in their debates and conferences' (Prynne 1669, ' T o all Ingenuous R e a d e r s ' , p . 3). C o k e w a s the oracle o f the l a w , that l a w o f t w o kinds: c o m m o n l a w and statutory l a w , the first sometimes described as u n w r i t t e n l a w , the second as w r i t t e n l a w . T h e latter is the p r o d u c t o f a legislating parliament consisting o f the k i n g and t w o houses, w h i c h c o u l d m a k e n e w l a w s or alter, repeal, or enforce the old, whereas c o m m o n l a w is usually defined in terms o f ancient customs and described as a c u s t o m a r y or traditional l a w w i t h deep m e d i e v a l roots, n o t w i l l e d b y a legislator b u t declared b y r o y a l j u d g e s in c o m m o n l a w courts, and already ancient w h e n declared. B o t h influenced political t h o u g h t ; but it w a s c o m m o n l a w that g a v e ancient constitutional ism its distinctive flavour. T w o m a i n conclusions pertinent to this discussion flowed f r o m this l a w : n o t all ancient customs f o r m e d part o f c o m m o n l a w , w h i c h w a s an earned and demonstrable status; and the adjective ' i m m e m o r i a l ' w a s confined to ancient customs w i t h that status. B y itself antiquity w a s n o t e n o u g h . T h e authoritative statement is in the First Part of the Institutes (1628), often referred to as ' C o k e o n Littleton', w h e r e it is explained that customs attain force o f l a w b y title o f prescription. T h i s c o m m o n l a w principle b e c a m e conspicuous in Stuart discourse w h e n it w a s applied to ancient customs e m b o d y i n g rights and liberties. If these customs w e r e to be a l l o w e d b y the c o m m o n l a w , they must be in a c c o r d w i t h reason and G o d ' s w i l l expressed in the scriptures. B u t other criteria w e r e m o r e p r o m i n e n t in political a r g u m e n t . B e f o r e customs c o u l d be d e e m e d prescriptive, they had to h a v e existed before (or b e y o n d ) time o f m e m o r y w i t h o u t w r i t t e n record to the contrary. Stuart polemicists used the date o f R i c h a r d I's c o r o n a t i o n , 3 S e p t e m b e r 1 1 8 9 , to d i v i d e time before m e m o r y f r o m time o f m e m o r y . T h e y considered that in a legal sense w h a t e v e r w a s before 1 1 8 9 , so far as customs w e r e concerned, w a s before time o f m e m o r y ; w h a t e v e r w a s since that time w a s said to b e w i t h i n time o f m e m o r y . Sir T h o m a s Littleton, w r i t i n g in the fifteenth century, reported that s o m e found a title o f prescription at c o m m o n l a w ' w h e r e a c u s t o m , or usage, or other thing, hath been used for time w h e r e o f m i n d o f m a n runneth not to the contrary (a tempore cujus contraria memoria hominum non existit)\ that is, before time o f m e m o r y . T o be d e e m e d prescriptive, customs must also h a v e been exercised regularly and constantly before and after 1 1 8 9 ; usage must h a v e been l o n g , continued, and peaceable w i t h o u t the interruption, for e x a m p l e , o f a N o r m a n conquest (1 Institutes, lib. 2 cap. 10, section 170). If these conditions w e r e met, a c u s t o m a r y usage w a s established that 376

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England: ancient constitution and common law demonstrated tacit consent; and the rights and liberties i n v o l v e d w e r e a l l o w e d b y the c o m m o n l a w . T h e influence o f these rules o f l a w g o v e r n i n g prescription in the m u c h studied and often-cited ' C o k e o n Littleton' b e c a m e e v e n stronger, i f this is possible, w h e n C h i e f Justice H e n r y R o l l e — m e m b e r o f a circle that included J o h n Selden and C h i e f Justice M a t t h e w Hale — included t h e m in his Abridgment (1668). L i k e C o k e , R o l l e w a s active in early Stuart parliaments, sitting in all o f t h e m f r o m 1614 to 1629. T h i s w o r k , t h o u g h t to h a v e been c o m p l e t e d before 1640, has a l e n g t h y section o n prescription, w h i c h is peppered w i t h allusions to ' C o k e o n Littleton'. Hale, w h o edited R o l l e ' s Abridgment, t o o k the same v i e w o f prescription, as did W h i g polemicists o f the late seventeenth c e n t u r y . T w o related declarations o f the Jacobean H o u s e o f C o m m o n s , the Form of Apology and Satisfaction (1604) and the Protestation (1621) reveal the role o f prescription in early Stuart political t h o u g h t . T h e first dealt w i t h the source o f parliamentary privileges, the second, specifically, w i t h the issue o f f r e e d o m o f speech in parliament; b o t h reflected the v i e w that p a r l i a m e n tary privileges w e r e the ancient and u n d o u b t e d birthright and inheritance o f English subjects and i m p l i e d that these w e r e held b y an ancient right independent o f the K i n g , contrary to James' e m p h a t i c claim that he and his ancestors w e r e the source o f privilege. T h e matter w a s i m p o r t a n t since a d e r i v e d authority w a s considered inferior to an original one. In m a k i n g the point P r y n n e q u o t e d w i t h a p p r o v a l f r o m M a r i o S a l a m o n i o that ' e v e r y creator is o f greater p o w e r and authority than its creature and e v e r y cause than its effect' (Prynne 1643, p p . 3 5 - 6 ) . A l t h o u g h the Apology is i m p o r t a n t in its o w n right, it is v i e w e d here in the c o n t e x t o f the 1621 p r o c e e d i n g s . A t that time the respected antiquary, W i l l i a m H a k e w i l l , read f r o m it to the H o u s e o f C o m m o n s and n u m e r o u s speakers f o u n d in it the m o d e l to be adopted. H a r k i n g b a c k to the earlier episode hints in itself at c u s t o m a r y usage, and this c o m m o n l a w principle determined the course o f action to be f o l l o w e d . C h r i s t o p h e r B r o o k e , recorder o f Y o r k and substantial m e m b e r o f the house, w e n t to the heart o f the matter: ' W e h o l d o u r privileges b y prescription and prescription is inheritance.' A n o t h e r report had h i m asserting: ' W e h a v e our privileges 2

2. W h a r a m 1 9 7 2 , pp. 2 6 2 - 5 ; Hale 1971, pp. 3 - 4 ; R o l l e 1668, pp. 2 6 4 - 7 2 . T h e same v i e w o f 1189 is in B r o o k e 1 5 7 3 , fo. 149V. T h e date is from Stat. W e s t . i.e.39 (Hale 1 9 7 1 , p. 4; Pollock and Maitland 1968, 1, p. 168). For the opinion that only a ' g o d l y and rational' custom could b e c o m e part o f c o m m o n law, see S o m m e r v i l l e 1986a, pp. 2 5 4 - 5 , 1986b, pp. 9 2 - 4 . W i l l i a m Petyt supplies a prime example o f a representative W h i g c o m m o n l a w y e r and antiquary w h o relied on R o l l e (Weston and Greenberg 1 9 8 1 , p. 342 n. 16). See also T y r r e l l 1694, PP- 5 8 5 - 6 , 5 9 1 .

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and liberties b y prescription time out o f m i n d . ' W i l l i a m N o y w a s practical: 'Let us use w h a t s o e v e r liberties w e h a v e hitherto used . . . T o use our liberties is the best maintenance o f our liberties.' A n d Serjeant A s h l e y , chairman o f the grand c o m m i t t e e that prepared the Protestation, offered in s u m m a r y : ' A legal use breedeth a right; and [is] as g o o d , as a legal grant.' A c t i n g like a court, the H o u s e o f C o m m o n s o n 18 D e c e m b e r a p p r o v e d the Protestation and ordered its inclusion in its j o u r n a l , there to remain as o f record. T h e k i n g ' s studied response revealed full awareness o f the threat to the theoretical basis o f m o n a r c h y w h e n in the presence o f his p r i v y c o u n c i l he tore out the offending pages and in a p r o c l a m a t i o n dissolving parliament t o o k the e x c e p t i o n a l step o f justifying p u b l i c l y his c o n d u c t . M e m b e r s had entered a protestation for their liberties in l a n g u a g e that m i g h t serve in the future to invade m o s t o f his rights and prerogatives. H e then w e n t b e y o n d w o r d s , punishing such ring-leaders as C o k e , H a k e w i l l , Sir R o b e r t Phelips, and J o h n P y m . L i k e it or not, m e m b e r s o f parliament felt c o m p e l l e d to assert their rights and privileges in this situation. T h e g o v e r n i n g rule w a s that the l a w aids the vigilant, n o t those w h o slumber o n their rights; and n e g l i g e n c e in asserting a right, in conjunction w i t h lapse o f time, c o u l d m e a n its loss or a b a n d o n m e n t . N o such risk attended the k i n g ' s p r e r o g a t i v e because o f the principle nullum tempus occurrit regi. Since time did n o t run against h i m , a right w h i c h he failed as s o v e r e i g n to exercise w a s n o t lost t h r o u g h inaction or omission. H e c o u l d n o t be v i e w e d as failing to act because cares o f g o v e r n m e n t t o o k up his time, and he o u g h t n o t to suffer f r o m his officers' n e g l i g e n c e . T h e lines w e r e d r a w n in the famous w o r d s o f the Apology, q u o t e d in 1621 b y H a k e w i l l , Phelips, and P y m , that 'the p r e r o g a t i v e o f princes m a y easily and d o daily g r o w ; the privileges o f the subject are for 3

3. Hexter 1978, pp. 24-43; T a n n e r 1930, pp. 274-95; Commons Debates 1621,1935, v i , p. 238 (Brooke), 1, p. 664 (Ashley), p. 666 ( N o y ) , p. 667 (Hakewill). p. 240 ( N o y ) ; Journals of the House of Commons, See also Nicholas 1766,11, pp. 332-3. M o d e r n scholars usually focus on precedent rather than on a sequence or pattern o f precedents. Consult Gardiner 1965, 1, p. 182, for the distinction in the Apology b e t w e e n Q u e e n Elizabeth and James I; and ibid., iv, pp. 255—7, for the queen's attempts to restrict freedom o f speech in parliament and Gardiner's conclusion that customary usage was on the side o f the C o m m o n s . A s for the practice b y w h i c h the speaker at the beginning o f parliament petitioned the k i n g to enjoy the privileges o f the house during that parliament, the authors o f the Apology stated: ' O u r m a k i n g o f request in the entrance o f parliament to enjoy our privilege is an act only o f manners, and doth w e a k e n our right no m o r e than suing to the k i n g for our lands b y petition'. See also H a k e w i l l , CJ 1, p. 667; Glanville 1 7 7 5 ; Nicholas 1766, 11, p. 338; A t k y n s 1689, pp. 2 1 - 2 , 33; Judson 1964, pp. 258-9. H o w customary usage was determined can be seen in Debates, 1610, 1862, p. 73; Glanville H a k e w i l l 1641, pp. 34-93; T h o m a s Hedley in Parliamentary 1775, passim; Sir R o b e r t H o l b o u r n e in the Ship M o n e y case, H o w e l l 1809-28, m, cols. 1007-10. H o l b o u r n e considered that danegeld must be accepted w i t h o u t protest if the l e v y w e r e to b e c o m e a practice: ibid., cols. 1000-1. Hakewill's speech against impositions in 1610, printed in 1641, ran on the same lines. See also W e s t o n and Greenberg 1981, pp. 1 4 2 - 5 .

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England: ancient constitution and common law the most part at an everlasting stand. T h e y m a y be b y g o o d p r o v i d e n c e and care preserved; but, b e i n g once lost, are n o t r e c o v e r e d but w i t h m u c h disquiet'. B y 1628, w i t h the Petition o f R i g h t at centre stage, the m a i n c o n c e r n w a s national liberties; and parliamentary leaders relied o n M a g n a Carta, w i t h six supporting statutes, to justify their position. T h i s v e r y c o m p l i c a t e d episode is not easily fitted into an account o f a prescriptive ancient constitution, or so it first appears. For the events at R u n n y m e d e w e r e c o m f o r t a b l y w i t h i n time o f m e m o r y ; and despite C o k e ' s assertion that M a g n a C a r t a had been c o n f i r m e d t h i r t y - t w o times, this mattered less because the confirmations had ceased in the early fifteenth century. Y e t spokesmen for the H o u s e o f C o m m o n s w e r e uninterested in Charles I's offer to c o n f i r m M a g n a C a r t a once m o r e , preferring instead to include in the Petition their o w n definition o f ancient liberties. T h i s display o f confidence c o u l d h a v e been r o o t e d in the belief that M a g n a C a r t a w a s a statute and as such required n o further confirmations. B y the late thirteenth century it held p r i m a c y o f place in l a w y e r s ' private collections o f statutes, and in the m i d d l e o f the sixteenth century it circulated as the 'first statute' in the predecessors o f the Statutes at Large. B u t the single fact that M a g n a C a r t a w a s not seen in the seventeenth century as a statute in the m o d e r n sense renders it m o r e likely that the authors o f the Petition o f R i g h t w e r e thinking in terms o f prescription. For that d o c u m e n t w a s usually described not as m a k i n g l a w but as declaring and c o n f i r m i n g c o m m o n l a w . W i t n e s s the r e m a r k o f J o h n Glanville, spokesman for the H o u s e o f C o m m o n s in a conference w i t h the L o r d s . T h e y w e r e r e l y i n g , he stated, ' u p o n the g o o d old statute called M a g n a Carta, w h i c h declares and confirms the ancient c o m m o n l a w s o f the liberties o f E n g l a n d ' . Pressed to identify these laws, he w o u l d h a v e turned to the l a w s o f E d w a r d the Confessor (1042—66) - printed in W i l l i a m 4

5

4. Russell 1979, p. 56; Hexter 1978, pp. 3 7 - 8 , 41; Commons Debates 1621,11, p. 501. Phelips declared on 12 D e c e m b e r : ' W e are put upon rocks, either to discontent his majesty, or lose our liberties' (ibid., p. 514). C h i t t y 1820, p. 379. S o m m e r v i l l e 1986b, pp. 1 7 3 - 4 . C o n r a d Russell dismisses the Protestation as 'a powerless piece o f paper, a last vain protest by a dyning parliament' (Russell 1979, p. 142). M o r e likely, parliamentary leaders considered that they had succeeded in their main objective o f placing their affirmation o f parliamentary privilege on record; and James' response suggests that this was his estimate, too. B u t Russell also notes that C o k e in 1628 - in the tense situation preceding Charles I's second answer to the Petition o f R i g h t - called for a reading o f the Protestation (Russell 1979, p. 379). For a v i e w o f early Stuart England different from Russell's, see H e x t e r 1978; R a b b and Hirst 1981. 5. Commons Debates 1628, m, p. 565. See also H e d l e y in 1610, quoted in S o m m e r v i l l e 1986b, p. 98. T h a t Glanville differentiated b e t w e e n a statute declaring law (Magna Carta) and one m a k i n g n e w Debates 1628, in, pp. 565-6. U n l i k e the latter, M a g n a Carta, because it law appears in Commons declared c o m m o n law, was not subject to the king's dispensing p o w e r .

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L a m b a r d e ' s Archaionomia, sive De Priscis Anglorum Legibus (1568) (cited hereafter as De Priscis Anglorum Legibus) — and to the c o r o n a t i o n charter and laws o f H e n r y I (1100—35), w h i c h added to the reputation o f E d w a r d ' s laws. In c o m p i l i n g S a x o n l a w s L a m b a r d e used Leges Edwardi Confessoris, a m e d i e v a l l a w b o o k that F . W . M a i t l a n d considered bad and u n t r u s t w o r t h y , w i t h characteristics suggestive o f a political p a m p h l e t . B e that as it m a y , this version o f the Confessor's l a w s b e c a m e the standard authority in the l o n g period b e t w e e n the first publication o f Priscis Anglorum Legibus and the 1680s, w h e n it c a m e under fire in circumstances to b e related. W e r e these l a w s statutes in the m o d e r n sense or 'ancient c o m m o n l a w s ' , as G l a n v i l l e had posited? C o k e , c o m m e n t i n g o n one o f t h e m , w r o t e as i f the Confessor's l a w s w e r e the p r o d u c t o f a legislating parliament; but a formidable obstacle hindered this conclusion. T h e parliament rolls, w h e r e the l a w s should h a v e been recorded, w e r e n o w h e r e to be found. Y e t it w a s w i d e l y assumed that the records had in fact existed, so firm w a s the c o n v i c t i o n that parliaments w e r e i m m e m o r i a l . Scholars as assiduous as P r y n n e and as learned as Selden w r o t e o f the 'missing' parliament rolls. P r y n n e , keeper o f the T o w e r records after the R e s t o r a t i o n , reported the absence o f legal records f r o m W i l l i a m I to the first year o f K i n g J o h n . T h e y w e r e 'utterly lost'. A n d Selden placed the matter in perspective, w r i t i n g ' T h e proper place o f the l a w s as w e l l o f those times (as o f ours) w a s in their rolls o f parliaments, all w h i c h are lost.' A l s o attesting the h i g h value placed o n the parliament rolls w a s the abundance o f theories a b o u t their fate. T h e i r loss w a s due to n e g l i g e n t keepers or to h i g h officials failing to return t h e m after b o r r o w i n g t h e m for special occasions, or e v e n to the iniquity o f the times w h e n K i n g J o h n and H e n r y III w a r r e d w i t h their barons or Lancastrians w i t h Y o r k i s t s . T h e prevailing parties c o u l d h a v e suppressed records injurious to their respective parties. A n d then there w a s the reprehensible R i c h a r d II, said to h a v e 'defaced and razed' the parliament rolls. 6

7

T h i s w a s the situation confronting the antiquaries, w h o influenced speakers in parliament or w e r e a m o n g t h e m ; and o u t o f their solution e m e r g e d the line o f reasoning that G l a n v i l l e f o l l o w e d in 1628. L a c k i n g the essential legal records to establish that the Confessor's laws w e r e actually

6. 4 Institutes, p. 36 ( c o m m e n t i n g on the law o f tithes in the Confessor's laws); Selden 1672, pt 11, p. 590; Prynne 1657a, preface; S t o w e M S S (British Library) 543, f o s . 7 0 - 5 . See also Pollock and Maitland 1968,1, pp. 9 7 - 1 0 6 , esp. p. 103; and Sir Francis Ashley's M i d d l e T e m p l e autumn reading, 1616, on the 'statute' o f M a g n a Carta, ch. 29 ( T h o m p s o n 1948, p p . 2 8 5 , 287—8). 7. Johnson 1693, pp. 5 1 - 4 ; A t w o o d 1690, p. 34; Prynne 1657a, preface, n.p.; Lambarde 1957, p. 136.

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England: ancient constitution and common law statutes, Stuart scholars c o n c e r n e d a b o u t rights and liberties had n o alternative e x c e p t to w o r k f r o m historical materials such as m e d i e v a l chronicles and annals and to apply c o m m o n l a w reasoning to w h a t e v e r e v i d e n c e o f such rights and liberties existed in the historical record. N o w h e r e w a s the influence o f c o m m o n l a w reasoning m o r e apparent than in their accounts o f the N o r m a n conquest. M i n i m i s i n g the elements o f force and c o m p u l s i o n in 1066 or else stressing a post-conquest political a c c o m m o d a t i o n b e t w e e n the C o n q u e r o r and his n e w subjects, reaffirmed b y H e n r y I's c o r o n a t i o n charter, they denied an interruption at the conquest in the c u s t o m a r y usage o f S a x o n rights and liberties. T h e salient point w a s that these had crossed the great divide in the l a w s o f h o l y K i n g E d w a r d , or St E d w a r d , as C o k e t e r m e d h i m . N o t so m u c h their g i v e r as their preserver in the w a k e o f the Danes, he w a s described as repairing, embellishing, and c o n f i r m i n g t h e m . B u t m o r e than this. P i c k i n g and c h o o s i n g f r o m the great heap o f his predecessors' laws, he w a s praised as the creator o f c o m m o n l a w , indeed, as its father. Stuart E n g l i s h m e n , u n a w a r e that E d w a r d ' s l a w s w e r e a p o c r y p h a l , perceived in M a g n a C a r t a their reincarnation; and associating the great charter o f English liberties w i t h the m o s t sanctified o f S a x o n kings — he w a s canonised in 1161 — they b r o u g h t forth the astonishing c o m m o n l a w cult o f h o l y E d w a r d ' s laws. H o w great an influence the cult exerted appears f r o m the bishop o f L i n c o l n ' s speech in the H o u s e o f L o r d s in 1628. R e c o r d i n g its i m p o r t , a listener w r o t e : ' H e conceives that b y lex terrae [the l a w o f the land] is meant the l a w s o f E d w a r d the confessor.' T h e bishop's c o m m e n t w o u l d h a v e been perfectly intelligible to an audience c o n v i n c e d that in 1215 the ancient customs in the Confessor's l a w s — and hence English rights and liberties — w e r e still a l l o w e d b y the c o m m o n l a w , their security assured b y the events at R u n n y m e d e . 8

H o w c o u l d this be demonstrated? C o n t e m p o r a r y explanation d r e w on the repeated confirmations o f E d w a r d ' s l a w s in the great charters o f N o r m a n and early A n g e v i n k i n g s . It is u r g e d here that this historical process, a m p l y d o c u m e n t e d in the m e d i e v a l record, meant t o the m e n o f 1628 that the liberties in those l a w s had continued to be exercised in postconquest E n g l a n d . A n d , further, that the habit o f associating the c o m m o n law principle o f prescription w i t h the confirmations provides the p r i m e explanation for their omnipresence and pride o f place in Stuart political 8. Commons Debates 1628, II, p. 333; V , pp. 172, 321 C o k e 1777, I V , pp. x - x i ; Johnson 1693, p. 54; P r y n n e 1657a, preface, n.p.. R a p h a e l Holinshed's Chronicles, first published in 1577, nourished the assumption that the Confessor was father o f c o m m o n law.

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literature. T h a t is, this historical process w a s w i d e l y p e r c e i v e d as the legal m e c h a n i s m b y w h i c h rights and liberties e m b o d i e d in ancient customs had retained the l e g i t i m a c y and force o f c o m m o n l a w in the dangerous years after the N o r m a n conquest. T h e standard a c c o u n t o f the confirmations to w h i c h e v e r y o n e turned is in the preface to C o k e ' s Eighth Reports, w h e r e he dwells on the m a n n e r in w h i c h W i l l i a m the C o n q u e r o r consolidated his h o l d o n the k i n g d o m . H e had earlier called u p o n t w e l v e o f the m o s t discreet and w i s e m e n o f each shire to declare the Confessor's laws; and f r o m their declarations, w h i c h he a m e n d e d w i t h baronial advice, W i l l i a m had c o m p o s e d his o w n M a g n a Carta, 'the g r o u n d w o r k o f all those that after f o l l o w e d ' . C a l l i n g attention to similar confirmations b y H e n r y I, K i n g Stephen, H e n r y II, and K i n g John, C o k e w r o t e o f the ancient laws and liberties c o n f i r m e d at R u n n y m e d e that these w e r e 'partly in . . . the charter o f K i n g H e n r y , and partly taken out o f the ancient laws o f K i n g E d w a r d ' . A d d i n g these confirmations to those o f M a g n a C a r t a and treating that d o c u m e n t as a declaratory statute, the c o m m o n l a w m i n d confidently linked the Confessor's laws w i t h the Petition o f R i g h t , h o l y E d w a r d w i t h Charles I, S a x o n w i t h Stuart liberties. 9

W h e r e , after all, w a s there to be found a m o r e solid and c o n v i n c i n g b o d y o f e v i d e n c e for c u s t o m a r y usage than that displayed b y the repeated confirmations o f the Confessor's laws, w i t h M a g n a C a r t a magnificent in support? A n d h o w better to p r o v e that S a x o n and Stuart liberties in a legal sense w e r e one and the same? W i t n e s s this recital o f confirmations, in w h i c h M a g n a C a r t a w a s pivotal, the d r u m b e a t o f the confirmations as conse quential as the rights and liberties b e i n g confirmed. T h a t d o c u m e n t , writes a m o d e r n scholar,

9. C o k e 1777, iv, fos. i v - x . See also T w y s d e n 1849, pp. 40-4, 5 7 - 8 ; Commons Debates 1628, 11, PP-333~~4; F o x 1956, p p . 5 3 , 6 1 ; P o c o c k 1987, pp. 4 2 - 5 . For the persistence o f these v i e w s throughout the century, see Petyt 1680a, 'Preface', pp. 3 4 - 5 , and A Collection of State Tracts 1705, pp. 520, 5 7 5 - 9 7 . T h e lengths to w h i c h C o k e ' s statement could be taken can be seen in C o o k e 1682, reprinted under a different title in 1689. T h a t the Confessor's laws c o m m a n d e d w h a t looks like an inordinate amount o f attention in Stuart England had m u c h to do w i t h their use in the generation before M a g n a Carta. J . C . Holt tells h o w the barons at R u n n y m e d e pressed their reform p r o g r a m m e on K i n g John in the name o f the Confessor's laws and H e n r y I's coronation charter; and he finds a parallel b e t w e e n this earlier m o v e m e n t , extensively discussed b y medieval annalists and chroniclers, and that in the early seventeenth century before the C i v i l W a r . B o t h in 1215 and in 1642 rebellion was 'prefaced b y an antiquarian m o v e m e n t w h i c h sought restraint o f the c r o w n ' . Holt 1965, pp. 96-8, 1 3 3 - 7 , 9%S, pp. 1 3 - 1 7 . Indeed, medieval political literature was so abundant in Stuart England, its message so germane, that its presence alone is almost e n o u g h to explain w h y the c o m m o n law cult o f the Confessor's laws became the core o f the Stuart doctrine o f the ancient constitution. I

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England: ancient constitution and common law played a key role as the most celebrated link in the chain whereby the liberties o f immemorial antiquity were confirmed and passed on to future generations. For Magna Carta did nothing new. It simply did what William I had allegedly done when he confirmed the laws o f the Confessor; what Henry I had done in his coronation charter; what Edward I was to do when he confirmed the charters in 1297; and what parliament was to ask Charles I to do in 1628 when it presented him with the Petition o f R i g h t . 10

T h e c o r o n a t i o n oath, b e g i n n i n g w i t h E d w a r d II ( 1 3 0 7 - 2 7 ) , l i k e w i s e confirmed the Confessor's laws; and it p e r f o r m e d , a c c o r d i n g l y , m u c h the same function as the confirmations o f the charters. A s late as 1690, W i l l i a m A t w o o d w r o t e o f 'the confessor's laws, received b y W i l l i a m I and continued d o w n w a r d s b y the c o r o n a t i o n oath required to this v e r y d a y ' . T h a t the authors o f the Petition o f R i g h t t h o u g h t in these terms appears f r o m P y m ' s famous speech o f 4 June 1628. After n o t i n g that durable c o m m o n w e a l t h s often r e f o r m e d and r e c o m p o s e d themselves a c c o r d i n g to their first ordinance, he discerned the 'plain footsteps' o f the ancient constitution in S a x o n E n g l a n d . Its principles, o u t l i v i n g the N o r m a n conquest, i m p o s e d limitations u p o n W i l l i a m the C o n q u e r o r ; i f his successors defied t h e m , still the N o r m a n k i n g s restored the ancient constitution b y issuing charters and statutes reaffirming its principles. T o P y m , 'the petitions o f the subjects u p o n w h i c h those charters and acts w e r e founded w e r e e v e r petitions o f right, d e m a n d i n g their ancient and due liberties, not suing for any n e w ' . S u c h remarks reflect a juridical not an historical cast o f m i n d , and in this respect as in the a r g u m e n t itself he w a s representative o f the H o u s e o f C o m m o n s in the 1620s. 11

1 2

T h e same theme, m o r e specifically stated, runs t h r o u g h Hale's c o m m e n t later in the century. In his v i e w M a g n a C a r t a , the C h a r t e r o f the Forest, and m o s t o f the k i n g ' s grants to his p e o p l e w e r e 'not so m u c h n e w grants o f n e w liberties but restitutions o f those v e r y liberties w h i c h b y the p r i m i t i v e and 10. A s h t o n 1979, pp. 1 8 - 1 9 , 360 n. 9; Sir D u d l e y D i g g e s ' speech, Commons Debates 1628,11, pp. 333-4, v, p. 172. See also A Collection of State Tracts 1705, pp. 5 9 1 - 2 . 1 1 . A t w o o d 1690, p. 103. In another passage he writes o f ' t h e Confessor's l a w received b y W i l l i a m I and continued d o w n w a r d s as the noblest transcript o f the c o m m o n l a w ' . Ibid., p. 73. 12. K e n y o n 1966, p. 17. T h e speech was g i v e n three days before Charles I accepted the Petition. P y m ' s v i e w s are further described in S o m m e r v i l l e 1986a, pp. 253-4, 5 $ - P r y n n e e v o k e d the same theme in his reading on the Petition at Lincoln's Inn, 17 February 1662, and, in addition, called u p o n one o f the Confessor's laws k n o w n as the 'office o f a k i n g ' ( S t o w e M S S 302, fos. 47rT, but esp. 57V-58). In 1623 and 1624 P y m was m e m b e r o f the c o m m i t t e e o f privileges and elections. Its chairman was Glanville, and the membership also included C o k e , D i g g e s , N o y , Phelips, and Selden. T h e reports o f the c o m m i t t e e point to a preoccupation w i t h prescription as the basis for settling the representation o f b o r o u g h s and determining their electoral qualifications (Glanville 1 7 7 5 , passim; CJi, p.7i7)2

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radical constitution o f the English g o v e r n m e n t w e r e o f right b e l o n g i n g to t h e m ' . H e c a m e to the point. ' S u c h w e r e the grants o f K i n g W i l l i a m o f the l a w s o f E d w a r d the confessor, the grant o f the great charters b y K i n g J o h n , H e n r y 3, E d w a r d the ist, the Statutes de T a l l a g i o n o n c o n c e d e n d o & divers others w h i c h w e r e the original rights and liberties o f the subject.' T h e s e rights and liberties, w h i c h had g r o w n out o f a reciprocal contract b e t w e e n k i n g and subjects, w e r e e m b o d i e d for the most part in acts o f parliament and parliamentary concessions w h e r e i n the subjects granted such things to the k i n g as aids and supplies and he in turn granted t h e m l a w s and liberties. B u t these acts o f parliament before time o f m e m o r y w e r e not like statutes after 1189: they w e r e part o f the c o m m o n l a w , d r a w i n g their strength f r o m ' m e r e i m m e m o r i a l usage or c u s t o m ' . T h e r e w a s 'as great reason to c o n c l u d e t h e m to be parts o f the original and p r i m i t i v e institution o f the English g o v e r n m e n t by their long usage & frequent concessions & confirmations of princes in so long and continued series of time, as if an authentic instrument of the first articles of the English government were extant [italics a d d e d ] ' (Hale 1966, p. 5 1 1 , 1 9 7 1 , p p . 4 , 1 7 ) . T h e ancient constitution w a s , then, a S a x o n constitution, for w h i c h T a c i t u s stood warrant, its ideas and institutions as old as the n a m e o f E n g l a n d e v e n if s o m e proponents, n o t a b l y C o k e , pushed t h e m further b a c k in time. Either w a y , l a w and g o v e r n m e n t had b e g u n before time o f m e m o r y , and there had been c u s t o m a r y usage o f rights and liberties. Little w o n d e r that parliamentary leaders, historians and polemicists, w i t h this historical record in m i n d , placed the subject's rights and liberties o n the same foundation as the r o y a l p r e r o g a t i v e : b o t h w e r e a l l o w e d b y the c o m m o n l a w . T h i s point o f v i e w w a s nourished b y the g r o w i n g interest in S a x o n studies and old English l a w displayed in the publication o f another historical record shedding light o n the Confessor's laws. T h i s was Selden's edition o f E a d m e r ' s annals, w h i c h contained w h a t w e r e described as the laws and rights that W i l l i a m assured the people o f E n g l a n d after the conquest. T h e y w e r e said to be m u c h the same as the Confessor had o b s e r v e d . Selden published these so-called l a w s o f W i l l i a m I in 1623 w i t h supportive extracts f r o m the a n o n y m o u s Lichfield chronicle and the w r i t i n g s o f Ingulphus o f C r o y l a n d . M o r e o v e r , t w o n e w editon o f De Priscis Anglorum Legibus w e r e published in 1644. O n e o f t h e m , to w h i c h Sir R o g e r T w y s d e n contributed, contained the l a w s o f the Confessor, W i l l i a m I, and H e n r y I — an arrangement suggesting continuity at the conquest. C o n t e m p o r a r i e s also gleaned historical data about the Confessor's l a w s f r o m such m e d i e v a l historians and annalists as M a t t h e w 384

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England: ancient constitution and common law Paris, R o g e r o f W e n d o v e r , R o g e r de H o v e d e n , and H e n r y de K n i g h t o n . Interpreting these materials had its o w n difficulties; t o o often interpretation suffered f r o m defective linguistic skills and i g n o r a n c e o f political feudalism, t h o u g h remarkable progress w a s m a d e in b o t h areas during the c e n t u r y . T h e l a w s themselves dealt w i t h protection o f the church, p a y m e n t o f tithes, fines for criminal offences, the definition o f danegeld, and the like - a farrago o f items f r o m w h i c h Stuart E n g l i s h m e n fashioned legal and constitutional principles o f w i d e application. T h u s the makers o f the Petition o f R i g h t , r e l y i n g o n these laws, asked the k i n g to refrain f r o m the practice o f forced loans and other financial exactions w i t h o u t parliament ary consent, arbitrary i m p r i s o n m e n t , c o m p u l s o r y quartering o f troops o n the civilian p o p u l a t i o n , and martial l a w in peacetime. A f t e r civil w a r introduced n e w c o m p l e x i t i e s into political t h o u g h t and n e w issues surged to the front, the antiquity o f the H o u s e o f C o m m o n s b e c a m e , for reasons to be seen, the object o f e n q u i r y . Supporters o f that house, insisting o n its i m m e m o r i a l character, appealed to the l a w o f tithes (De Apibus) in De Priscis Anglorum Legibus, often cited as c. 8, fo. 139. It ran a prosperous course. T e r m e d that ' m i g h t y l a w ' b y the W h i g E d w a r d C o o k e , it had been enacted 'a rege, baronibus, & p o p u l o ' , translated as ' b y the k i n g , his barons, and his p e o p l e ' . O n this p e g w e r e h u n g t w o h i g h l y i m p o r t a n t prescriptive rights: the right in the c o m m o n s o f E n g l a n d to parliamentary representation and that o f the H o u s e o f C o m m o n s to an equal share in l a w m a k i n g w i t h the k i n g and the H o u s e o f L o r d s . T h e popularity o f this enacting clause o w e d m u c h to C o k e , w h o cited it in his influential Fourth Part of the Institutes (1644). It w a s i n v o k e d in m a n y quarters — in the w r i t i n g s o f N a t h a n i e l B a c o n at the end o f the 1640s, B u l s t r o d e W h i t e l o c k e in the late 1650s, the W h i g s W i l l i a m P e t y t and Sir R o b e r t A t k y n s in the 1680s. E v e n the H i g h T o r y historian, Sir W i l l i a m D u g d a l e , the m o s t eminent medievalist o f his generation, c o n c l u d e d f r o m it that parliamentary representation had surely existed in s o m e f o r m before 1 1 8 9 . 13

14

13. K l i g e r 1952, passim; K e n y o n 1984, pp. 1 3 - 1 7 . See also P r y n n e 1657b, pp. 3 1 3 - 2 1 , for an account o f the Confessor's laws and supporting b i b l i o g r a p h y . D i g g e s traced parliaments to the Saxons and cited Tacitus (Commons Debates 1628,11, p. 334). So did L a m b a r d e 1957, pp. 126—7; H a k e w i l l 1641, Discourse of the Uniformity of the Government of England p. 128. Nathaniel B a c o n ' s An Historical ( 1 6 4 7 - 5 1 ) made S a x o n England the major source o f Stuart political institutions (Weston and G r e e n b e r g 1981, pp. 66—7). T h e Saxons are said to have laid the foundations o f c o m m o n law in of D u g d a l e 1666, p. 4. A n d see T w y s d e n 1849, pp. 13, 1 1 9 - 2 7 , 134; T y r r e l l 1694, p. 584; Collection State Tracts 1705, p. 321. Selden's v i e w s are discussed in Christianson 1984, pp. 276—308, esp. pp. 278-80, 306—8, 311 n. 34. A l s o see S o m m e r v i l l e 1986b, p p . 9 0 , 100—4, d n. 9 above. a n

14. 4 Institutes, p. 36. See also Institutes (1642), p. 442 (marginal note). A n d see C o o k e 1682, p. ci; B a c o n 1 6 4 7 - 5 1 , 1, p. 59; W h i t e l o c k e 1766, 11, p. 140; Petyt 1680a, 'Preface', p. 1 1 ; A t k y n s 1689, p. 25; D u g d a l e 1666, p. 15. T h a t C o o k e was insisting on customary usage appears in pp. xlv—xlvi.

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A s h i g h in favour, t h o u g h for a different reason, w a s the Confessor's l a w k n o w n as the 'office o f a k i n g ' , cited as c. 17 in De Priscis Anglorum Legibus. Its w i d e audience w a s due to its p r o v e n a n c e , to be sure, but also to its inclusion in J o h n F o x e ' s Acts and Monuments, k n o w n as the ' B o o k o f M a r t y r s ' , w i t h a circulation second o n l y to the B i b l e . First published in English in 1563, it w a s frequently reprinted and early placed in churches, and other public places. A t the end o f the seventeenth century an estimated 10,000 copies w e r e available to eager readers, and this says n o t h i n g o f the n u m b e r s reached b y w a y o f the pulpit. C i t e d in conjunction w i t h the radical quotation k n o w n as ' B r a c t o n and Fleta', the c o r o n a t i o n oath, and t w o h i g h l y influential m e d i e v a l treatises, the Mirror of Justices and the Modus tenendi Parliamentum, the 'office o f a k i n g ' b e g a n : The king, because he is the vicar of the highest king, is appointed for this purpose, to rule the earthly kingdom, and the Lord's people, and, above all things, to reverence his holy church, to govern it, and to defend it from injuries; to pluck away wicked doers, and utterly to destroy them: which, unless he do, the name of a king agreeth not unto him, but he loseth the name of a king. Further, he w a s to preserve the lands, rights, and liberties o f the c r o w n , establish g o o d l a w s and customs, d o justice w i t h the counsel o f his proceres — a w o r d l o n g translated to denote b o t h lords and c o m m o n s — and act in all things w i t h g o o d advice and p r e m e d i t a t i o n . T h i s l a w , e x c e e d i n g l y useful in a century rife w i t h suspicion o f popish plots, w a s attractive generally to theorists w i t h a c o m m u n i t y - c e n t r e d v i e w o f g o v e r n m e n t . P r y n n e put it to g o o d use, as did the pamphleteers o f the Exclusion Crisis (1679—81) and the G l o r i o u s R e v o l u t i o n . T h e y perceived in the 'office o f a k i n g ' one o f the v e r y f e w pieces o f historical e v i d e n c e for an original contract, w h i c h their political enemies challenged t h e m to p r o d u c e . A c c o r d i n g to a radical W h i g , ' E n g l i s h m e n n e v e r b e l i e v e d that the k i n g o f E n g l a n d c o u l d violate the laws and o v e r t u r n the state at his pleasure, w i t h o u t m a k i n g h i m s e l f thereby liable to punishment. [This] clearly appears f r o m the l a w s o f St E d w a r d ' (A Collection of State Tracts, 1705, p. 506). A n o t h e r w r o t e w i t h James II's policies in m i n d : ' T h a t n o b l e 15

15. T h e 'office o f a k i n g ' is in all editions o f De Priscis Anglorum Legibus. See, too, Foxe 1843-9, и, pp. 89-91; Prynne 1643, pp. 36-7, 43-4, 47, 5 1 - 6 ; Prynne 1657b, p. 320; A t w o o d 1690, pp. 28-9; Sheringham 1660, pp. 4 1 - 2 , 53-4; T y r r e l l 1694, pp.697, 7 0 4 - 1 0 , 760; n. 12 above. Sir Henry Spelman also k n e w it (Pocock 1987, p. 184). It had a medieval b a c k g r o u n d (Holt 1965, pp. 48, 79, 1985, p. 13). T h e Bracton and Fleta quotation is discussed in W e s t o n and Greenberg 1981, pp. 62, 7 8 - 9 , passim. See also W e s t o n 1984, pp. 85-104; Collection of State Tracts 1705, pp. 303, 419, 506; State tracts 1692-3, Part 11, pp. 270, 493. For the w o r d 'proceres' see T w y s d e n 1849, p. 122; B r a d y 1684, 'Glossary', p. 57; T y r r e l l 1694, p. 376.

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England: ancient constitution and common law transcript o f the original contract, the confessor's l a w , . . . s h o w s , that i f a k i n g does not answer the true end for w h i c h he w a s chosen, he loses the n a m e , or ceases to be k i n g . ' B u t if the ancient constitution w a s in truth a S a x o n constitution, h o w to explain references in political literature to perpetual rights and liberties? Here, again, resort must be had to the principle o f prescription. T h e s e rights and liberties pertained to the H o u s e o f C o m m o n s , explained A t k y n s , c o m m o n l a w j u d g e and W h i g historian, i f that house has 'been ever f r o m the b e g i n n i n g o f the g o v e r n m e n t a part and m e m b e r o f the parliament'. T h e w o r d ' e v e r ' s i m p l y meant that the house had m e t regularly since time before m e m o r y , that is, before 1 1 8 9 ; and despite the reference to the ' b e g i n n i n g o f the g o v e r n m e n t ' , it technically had n o b e g i n n i n g . A s Hale stated, w h a t e v e r w a s before time o f m e m o r y w a s supposed ' w i t h o u t a b e g i n n i n g , or at least such a b e g i n n i n g as the l a w takes notice o f ; and T w y s d e n , discussing parliamentary representation, reported that a c u s t o m was n o c u s t o m i f it had a b e g i n n i n g ; that is, i f it b e g a n w i t h i n time o f m e m o r y . A t k y n s also assigned the H o u s e o f C o m m o n s 'a perpetual b e i n g , to speak in the l a n g u a g e o f the l a w ' . C o n s e q u e n t l y its rights and liberties, easily extrapolated to m e a n English liberties, w e r e independent o f the k i n g : they w e r e derived f r o m the original constitution o f the g o v e r n m e n t . T h e situation must be v e r y different i f the H o u s e o f C o m m o n s b e g a n w i t h i n time o f m e m o r y ; its p o w e r s and privileges w e r e at risk if they w e r e ' b y the m e r e [pure] grace and i n d u l g e n c e o f p r i n c e s ' . H a p p i l y , n o p r o b l e m existed on this score. It w a s usual to consider that a right or liberty had existed before 1189 i f it w e r e present in the m e d i e v a l records w i t h the expressions 'time out o f m i n d ' , 'in all times past', ' o f old times', ' f r o m time w h e r e o f the m e m o r y o f m e n runs not to the contrary', and the like; and d e e m i n g the right perpetual in a legal sense, the n e w historians and Stuart publicists w r o t e o f it as h a v i n g ' e v e r ' existed, ' a l w a y s ' , and 'for all t i m e ' . 1 6

17

T h i s legal parlance m a y h a v e shaped P o c o c k ' s version o f the ancient constitution in cardinal respects. Despite the alteration in his v i e w expressed in 1987, w h e n his Ancient Constitution (1957) w a s reprinted w i t h a ' R e t r o s p e c t ' , his remarks in the 1950s — in an influential article o n D r R o b e r t B r a d y as w e l l as in his Ancient Constitution — o u g h t to be briefly 16. A t w o o d 1690, p. iv. T h e r e is material on the original contract, in ibid., pp. 28-39; Collection of State Tracts 1705, pp. 136-8, 303, 325, 419, 5 7 6 - 9 1 , esp. 577, 591. T h e most extreme use o f this argument is in chapter viii o f John Milton's regicide tract, ' A Defence o f the People o f England' (1651). T h e matter is discussed at some length in Greenberg 1989. 17. A t k y n s 1689, p. 17; Hale 1971, p. 4; T y r r e l l 1694, pp. 584-9; Herle 1643, p. 17; A t w o o d 1681, p. 10; T w y s d e n 1849, p. 126.

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recapitulated because o f their p o w e r f u l i m p a c t . A s c r i b i n g to C o k e and his disciples 'a t h e o r y o f the l a w ' s u n c h a n g i n g c o n t i n u i t y ' , he indicates that their interest in c o m m o n l a w as fundamental l a w w a s greater than in parliament as a m o d e r n legislature actively m a k i n g n e w l a w . A n d he writes o f c o m m o n l a w y e r s c a r r y i n g the doctrine o f an i m m e m o r i a l l a w or parliament to the point o f d e n y i n g that these had originated b y h u m a n action or at a fixed t i m e lest they be subject to a h u m a n s o v e r e i g n , that is, the k i n g . Y e t Stuart historians w e r e m o r e a w a r e o f c h a n g e in their l a w s than the P o c o c k o f the 1950s a l l o w s . E v e n C o k e , t h o u g h less historically m i n d e d than a Selden or T w y s d e n , recognised that c o m m o n l a w w a s n o t i m m u t a b l e w h e n he b r o u g h t it w i t h i n the p u r v i e w o f courts and parliament. H e also displayed m o d e r n i t y in o u t l o o k w h e n he differentiated b e t w e e n m a k i n g and declaring l a w and asserted the h i g h p o w e r o f statutes vis-a-vis c o m m o n l a w . T h i s is n o t the place to discuss his v i e w o f parliament e x c e p t to indicate that he and contemporaries, t o o , had a strong interest in early parliaments, the latter, at least, b y n o means reluctant to date their b e g i n n i n g s . T h e chronicles o f early Stuart E n g l a n d cited as the first parliament H e n r y I's great c o u n c i l at Salisbury in 1 1 1 6 , the phrase 'first parliament, 1 1 1 6 ' t y p i c a l l y appearing in the m a r g i n . In short, the attributes assigned b y P o c o c k to Stuart historians are explicable in terms o f their legal understandings but are n o t apposite w i t h regard to their historical scholarship. W h e n C o k e ' s disciples w r o t e as i f customs or l a w s or institutions had ' e v e r ' existed - w h i c h they certainly did - they w e r e in all l i k e l i h o o d m a k i n g use o f legal l a n g u a g e . B y the end o f the century they w o u l d h a v e been h a p p y , indeed, to establish that the m o d e r n parliament had existed before 1 1 8 9 . N o m o r e w a s t h o u g h t necessary or e v e n desirable. 1 8

19

In P o c o c k ' s hands the emphasis in Stuart E n g l a n d on the great antiquity r a

18. P o c o c k 1951, pp. 189—90, 1987, pp. 36, 37, 153, 189—90, 234-5. F ° sense o f h o w P o c o c k ' s w o r k is construed, see K e n y o n 1984, p. 23; Pallister 1971, p. 35. Evidence is m o u n t i n g , h o w e v e r , that the minds o f the antiquaries w e r e m o r e richly stocked than he allows and that they w e r e better historians: Sharpe 1979, pp. 224-5; Pallister 1 9 7 1 , p. 32; Pawlisch 1985, pp. 1 6 1 - 7 5 ; T h o m p s o n 1948, pp. 360—1; Christianson 1984. See also K e l l e y 1974, pp. 2 4 - 5 1 , 1976, pp. 143-6; B r o o k s and Sharpe 1976, pp. 1 3 3 - 4 2 . 19. See nn. 18 a b o v e and 21 b e l o w ; Pallister 1 9 7 1 , p. 47; T h o m p s o n 1948, p. 260; Evans 1938, pp. 206-21; S o m m e r v i l l e 1986b, pp. 9 1 , 96; W e s t o n 1972, p. 417 n. 17; H a k e w i l l 1641, pp. 126-8; T y r r e l l 1694, p. 584. S o m m e r v i l l e 1986a, pp. 2 5 1 - 5 , questions P o c o c k ' s version o f an i m m e m o r i a l c o m m o n law but does not associate customary usage w i t h Stuart interpretations o f the N o r m a n conquest. H o w e v e r , he rightly objects to P o c o c k ' s proposition that in the age o f C o k e 'to admit to a conquest was to admit an indelible stain o f sovereignty u p o n the English constitution'. T h a t strain, o f course, could be erased.

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England: ancient constitution and common law o f c o m m o n l a w flows into a widespread acceptance o f a fundamental l a w restrictive o f k i n g and parliament alike. Charles II's R e s t o r a t i o n and the R e v o l u t i o n o f 1689 w e r e 'efforts to restore the fundamental l a w , rather than to establish the s o v e r e i g n t y o f king-in-parliament'; and w h e n parliament claimed s o v e r e i g n t y , it did so as guardian o f a fundamental l a w , w h i c h it had n o t m a d e . T h e transition f r o m this claim to the assertion that parliament w a s s o v e r e i g n w a s ' b o t h i n c o m p l e t e and largely unrealized' ( P o c o c k 1987, pp. 4 9 - 5 0 , 234). A similar o u t l o o k pervades C . H . M c l l w a i n ' s High Court of Parliament (1910), w h e r e it is contended that the m e d i e v a l v i e w o f l a w m a k i n g as declarative o f fundamental l a w persisted in the seventeenth century. If this means that those w h o reasoned in this w a y had n o sense o f m a k i n g n e w l a w , parliament b e c o m e s a h i g h court rather than a m o d e r n legislature and fundamental l a w a barrier to legal s o v e r e i g n t y . A s earlier noted, C o k e distinguished b e t w e e n declaring old law and m a k i n g n e w ; but the ideas derived f r o m M c l l w a i n are nonetheless often sanctioned b y reference to C o k e ' s j u d g e m e n t in B o n h a m ' s case (1606) that w h e n a statute w a s 'against c o m m o n right or reason, or repugnant, or impossible to be p e r f o r m e d ' , c o m m o n law could 'control it and adjudge such acts to be v o i d ' . T h e m o r e usual o p i n i o n t o d a y is that he was a d v a n c i n g a principle o f strict statutory interpretation c o m p a t i b l e w i t h the h i g h authority o f p a r l i a m e n t . 20

M o r e o v e r , generalisation about fundamental l a w in Stuart E n g l a n d is tricky because the term is so elusive. A s used b y P o c o c k , it w a s less influential than he suggests, e v e n before 1642. For one thing, there was familiarity w i t h Jean B o d i n ' s doctrine o f legal s o v e r e i g n t y in his République (1576), a w o r k k n o w n to T u d o r scholars that w a s studied at C a m b r i d g e and available in n u m e r o u s French and Latin editions prior to its publication in English in 1606. B o d i n m a d e authority the central feature o f his system o f politics. D e f i n i n g s o v e r e i g n t y as the most h i g h , absolute, and perpetual p o w e r o v e r the citizens and subjects o f a c o m m o n w e a l t h , he emphasised as the chief m a r k o f s o v e r e i g n t y the p o w e r to g i v e laws and c o m m a n d to all in general and to e v e r y o n e in particular. W h o e v e r m a d e l a w possessed the further p o w e r s o f a b r o g a t i n g , declaring, and correcting it. W a s , then, the 20. G o u g h 1961, pp. 30—47: G o u g h ' s conclusion is based on Samuel T h o m e ' s 1938 article on B o n h a m ' s case. For more recent scholarship, see, for example, Gray 1972. G r a y believes that C o k e ' s opinion, delivered orally as j u d g e , did not advocate a doctrine o f judicial review though he came closer to this v i e w w h e n he reported the decision in the preface to his Eighth Reports. He also adduces fresh evidence to demonstrate that contemporaries understood C o k e to be advancing a doctrine o f judicial review, but recognises that ' C o k e had no specific quarrel w i t h the supremacy o f parliament, and that on balance his writings strongly upheld it' (ibid., pp. 36, 49, and passim).

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English k i n g , w h o c o u l d not repeal a l a w w i t h o u t the t w o houses, a B o d i n i a n l a w g i v e r ? T h e answer w a s affirmative: despite this limitation he was an absolute s o v e r e i g n w i t h n o c o m p a n i o n s in l a w m a k i n g . T h o u g h the t w o houses seemed to h a v e great liberty, their role w a s limited e v e n in l a w m a k i n g ; they proceeded b y w a y o f supplication and request to the k i n g , and he had a c o m p l e t e p o w e r o f v e t o . N o r w a s his l a w - m a k i n g p o w e r diminished b y exercising it in parliament. T h e k i n g w a s m u c h greater in such assemblages w h e r e his people a c k n o w l e d g e d h i m as their s o v e r e i g n e v e n t h o u g h he c o n c e d e d m o r e at these times than usual ( W e s t o n 1972, p p . 413-H). B o d i n ' s influence e x p a n d e d during the C i v i l W a r , but e v e n earlier there w e r e elements c o n d u c i v e to this line o f t h o u g h t . Witness the h i g h regard for statutes in 1628 w h e n parliamentary leaders preferred this m o d e o f b i n d i n g Charles I to a petition o f right. T h a t they t h o u g h t in terms o f a m o d e r n legislating parliament w a s equally apparent w h e n their political allies a m o n g the antiquaries scoured the m e d i e v a l record for evidence o f early parliaments. ' N o n e o f t h e m ' , remarks a m o d e r n scholar, 'seems to be a w a r e o f any difficulty in the idea o f enacted l a w in their o w n time or the time o f I n e . ' C o n v e r s a n t w i t h the laws that S a x o n kings had m a d e w i t h their w i t e n a g e m o t s , they w e r e at least as interested in l a w m a k i n g as in c o m m o n l a w v i e w e d as fundamental l a w ; and they m a y w e l l h a v e w o n d e r e d w h a t the promised restitution o f the Confessor's laws a m o u n t e d to i f the w i t e n a g e m o t , the sacred anchor and sanctuary o f English liberties, as one writer put it, had not survived the conquest (Petyt 1680a, 'Preface', p. 40). A n d there w a s their o b v i o u s interest in the Mirror of Justices and the Modus tenendi Parliamentum, p r i m e sources for S a x o n l a w and g o v e r n m e n t that e n c o u r a g e d the self-confidence o f the Stuart H o u s e o f C o m m o n s . O n l y a w o r d about the Mirror is possible here despite its i m p o r t a n c e in polemical literature. L o n g attributed to A n d r e w H o r n , t h o u g h the attribution is n o w considered v e r y doubtful, it circulated in manuscript after 1550 but w e n t unpublished until 1642, appearing in English for the first time in 1646. Its doctrine that the k i n g had ' c o m p a n i o n s ' in parliament, w h o w e r e to hear and determine complaints about ' w r o n g s done b y the kings . . . and their special ministers' appealed greatly to parliamentarians, 21

2 1 . Evans 1 9 3 8 , p. 2 1 7 . C o k e ' s recognition that statutes overruled c o m m o n law is in i Institutes, lib. 2 , cap. 1 0 , sect. 1 7 0 , 2 Institutes proem, n.p., and pp. 2 0 - 1 , 4 Institutes, p. 3 6 . O t h e r contemporary views are H a k e w i l l 1 6 4 1 , p. 9 8 ; Holbourne in H o w e l l 1 8 0 9 - 2 8 , in, cols. 9 7 8 , 9 7 9 , 9 8 2 , 1 0 9 0 - 1 . See also T h o m p s o n 1 9 4 8 , p. 3 6 0 ; Judson 1 9 6 4 , pp. 8 5 - 6 .

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England: ancient constitution and common law w h o also w e l c o m e d the statement that K i n g Alfred had p r o v i d e d as 'perpetual usage' that parliaments meet at least t w i c e a y e a r . Y e t the Mirror w a s a lesser authority for parliamentary history than the Modus, w r i t t e n about the same time but m u c h earlier o n the political scene, fitting easily and naturally into the confirmations o f the charters and b e c o m i n g their mainstay. T h e o n l y s u r v i v i n g m e d i e v a l treatise o n parliament, it w a s published in English b y J o h n H o o k e r in 1572, in a w o r k entitled The Order and Usage of the Keeping of a Parlement in England, w h i c h w a s inserted into the 1587 edition o f R a p h a e l Holinshed's Chronicles. It appeared in another English edition in 1 6 4 1 , this one attributed to H a k e w i l l and said to h a v e been c o m p l e t e d b y 1610. T h e Modus w a s w e l l k n o w n to the Elizabethan society o f antiquaries, w h o s e m e m b e r s after d e v o t i n g a m e e t i n g to the antiquity o f parliaments w e r e apparently planning another on parliament ary privileges w h e n the society c a m e to an abrupt end under James I, n o t in the circumstances an altogether surprising d e v e l o p m e n t . B y this time the treatise w a s e x p a n d i n g into the w o r l d o f politics. M e m b e r s cited it in the 1621 H o u s e o f C o m m o n s , and n o less a personage than Sir J o h n Eliot read f r o m it to the house in 1628. 22

T h e r e w e r e actually t w o ' M o d u s e s ' , an English and an Irish one, each w i t h a distinctive p r o e m relevant to the c o m m o n l a w cult o f the Confessor's laws. D e a l i n g w i t h a period o f the highest i m p o r t a n c e to the c o m m o n l a w m i n d , they seemed to p r o v i d e conclusive e v i d e n c e o f a parliament w i t h a H o u s e o f C o m m o n s , its c o m p o s i t i o n the same as its Stuart counterpart, that had continually existed f r o m the Confessor to H e n r y II ( 1 1 5 4 - 8 9 ) . T h e author o f the Modus, impressively k n o w l e d g e a b l e in the w a y s o f parliament, furnished a detailed account o f that institution, telling about summonses to parliament, its c o m p o s i t i o n , procedure, p o w e r s , business, etc. T h e treatise w a s surprisingly favourable to parlia ment, especially the H o u s e o f C o m m o n s . If the k i n g w a s at first sight the principal figure in parliament as its head, b e g i n n i n g , and end — caput, principium, & finis Parliamenti ran the quotable tag — still his role w a s in cardinal respects subordinate to the t w o houses. H e c o u l d not dissolve parliament until he had answered his subjects' petitions — a point m a d e b y C o k e , P y m in the Short Parliament o f 1640, P r y n n e during the C i v i l W a r , and radical pamphleteers in the 1680s. T h e H o u s e o f C o m m o n s w a s the 22. H o r n 1895, pp. 7—8. T h e popularity o f the Mirror in Stuart England is noted b y K l i g e r 1952, p. 1 2 1 . It was used in conjunction w i t h the notorious Bracton and Fleta quotation: Prynne 1643, pp. 36-7; Petyt 1680a, 'Preface', pp. 4 0 - 1 ; A t w o o d 1690, pp. 3 4 - 5 ; T y r r e l l 1694, p. 697.

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superior house; w i t h the k i n g it e v e n constituted a legal parliament in the absence o f the L o r d s . T h e Modus w a s as i m p o r t a n t to C o k e ' s account o f parliament as M a g n a C a r t a to his c o m m e n t s on c o m m o n l a w . A s early as 1593, as speaker o f the H o u s e o f C o m m o n s , he called its m e m b e r s ' attention to the treatise; and its reputation g r e w apace w h e n he included the p r o e m to the English Modus, w r i t t e n in Latin, in the famous preface to his Ninth Reports (1613). Its message, translated into English, w a s b r e a t h t a k i n g l y g e r m a n e : 23

Here is described the manner in which the parliament of the king of England and o f his Englishmen was held in the time o f King Edward, the son of King Ethelred, which manner was related by the more distinguished men o f the kingdom in the presence of William, duke of Normandy, conqueror and king of England: by the conqueror's o w n command, and through his approval it was used in his times and in the times of his successors, the kings o f England. (Pronay and Taylor 1980, p. 80; see also ibid., p. 56) C u s t o m a r y usage had been o b s e r v e d since W i l l i a m and his successors had held parliament in the m a n n e r o f the Confessor; and to cap it all, the c o m p o s i t i o n o f their parliaments w a s that o f C o k e ' s o w n day. H e possessed the Modus 'in a fair and v e r y ancient w r i t t e n hand' and in it 'the assembly o f the kings, the lords, and c o m m o n s , a c c o r d i n g to the m a n n e r continued to this day, is set d o w n ' . T h e phrase conventus nobilium & sapientum, etc. in early m e d i e v a l records encompassed b o t h houses o f parliament (Reports, 1 7 7 7 , v, fos. *iv—*iv verso). C o k e returned to the Modus in the Fourth Part of the Institutes, w h i c h , a l o n g w i t h the prefaces to the Eighth and the Ninth Reports, supplied contemporaries w i t h the history o f their political s y s t e m . M u c h o f his earlier statement w a s replicated in the Fourth Part, but he also explained that H e n r y II had e x p o r t e d the Modus to Ireland as a m o d e l for the Irish parliament, and C o k e n o t e d its effects on the makers o f 24

2 3 . Reports 1 7 7 7 , v, fos. * i v - * v ; 4 Institutes, p. 1 1 . Elizabeth R e a d Foster notes that whatever the v i e w o f m o d e r n historians, the Modus 'had long been considered an authoritative guide to the past w h e n Stuart Englishmen took it u p ' (cited in Pronay and T a y l o r 1 9 8 0 , pp. 5 4 - 5 ) . H o o k e r is discussed in S n o w 1 9 7 7 . O t h e r s w h o o w n e d or had access to the Modus include Glanville, Selden ( w h o questioned its authority for the Confessor's reign), Petyt, and the Elizabethan society o f antiquaries w h o met from 1 5 7 2 to 1 6 0 4 and in 1 6 1 4 , and whose papers were published in D o d d e r i d g e 1 6 5 8 and reprinted in 1 6 7 9 and 1 6 8 5 . T h e Modus was discussed under 'parliament' in John C o w e l l ' s Interpreter ( 1 6 0 7 ) and John Minsheu's Guide into Tongues ( 1 6 1 7 ) . B o t h appeared in n e w editions before the C i v i l W a r . See also Prynne 1 6 4 3 , p. 3 1 ; Proceedings of the Short Parliament 1 9 7 7 , p. 1 4 9 ; Commons Debates 1628, 11 pp. 3 0 6 - 7 ; State Tracts 1 6 9 2 - 3 , Part 1, p. 1 6 5 and Part 11, pp. 2 2 2 - 3 . 2 4 . For the influence o f the preface to the Ninth Reports, see the Priviledges and Practice of Parliaments (n.p. 1 6 4 0 ) , pp. 1 - 2 . Written as early as 1 6 2 0 - 1 , it was printed in 1 6 2 8 , 1 6 4 0 , 1 6 4 1 , and 1 6 8 0 . See also Baxter 1 6 5 9 , p p . 4 5 8 , 4 7 9 - 8 0 . A l t h o u g h he r e c o m m e n d e d in addition Bacon 1 6 4 7 - 5 1 and Prynne 1 6 4 3 , still he t h o u g h t it not really necessary for the cause in hand to prove 'the antiquity o f their (parliament's] being, or their p o w e r ' .

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England: ancient constitution and common law M a g n a C a r t a . T h e i r familiarity w i t h its contents w a s evident w h e n ancient reliefs o f entire earldoms, baronies, and k n i g h t s ' fees w e r e reduced in accordance w i t h a m o u n t s in the treatise. H e also pointed to provisions early m a d e for regular meetings o f parliament, listing as the appropriate statutes E d g a r c. 5, 4 E d w . 3 c. 14, and 36 E d w . 3 c. 10, the last-named p r o v i d i n g for annual p a r l i a m e n t s . L a m b a r d e ' s Archeion (1635), c o m p l e t e d as early as 1 5 9 1 , added to the reputation o f the Modus w h e n he n a m e d it Modus tenendi Parliamentum tempore Regis Edward filii Ethelredi and reported that it c o u l d be seen 'in m a n y hands'. Less c o m m i t t e d to it than C o k e , t h o u g h their c o m m e n t s ran on the same lines, L a m b a r d e g a v e a m u c h m o r e polished and coherent account o f the relationship b e t w e e n title o f prescription and the c o n c e p t o f an i m m e m o r i a l H o u s e o f C o m m o n s . T h e s e aspects o f Archeion m a d e it the tract par excellence on the ancient constitution before the C i v i l W a r and help to explain the great popularity o f L a m b a r d e ' s c o m m e n t s later in the century, as does the continued circulation o f De Priscis Anglorum Legibus. B y 1601 he w a s keeper o f the records in the T o w e r o f L o n d o n , and he has been described as the prince o f legal antiquaries. L i k e C o k e he e m p l o y e d an a r g u m e n t for an i m m e m o r i a l H o u s e o f C o m m o n s that relied on the d e c a y e d c o n d i t i o n o f certain b o r o u g h s in T u d o r E n g l a n d . A s s u m i n g their greater prosperity w h e n first created, L a m b a r d e turned to S a x o n E n g l a n d as a place o f suitable circumstances. A s he put it, the 'interest' that b o r o u g h s had in parliament g r e w ' b y an ancient usage before the conquest, w h e r e o f they cannot s h o w any b e g i n n i n g ' . H e also discussed 'a contrary usage in the self-same t h i n g ' , illustrated b y b o r o u g h s o f ' a n c i e n t demesne' — a m e t h o d o f p r o o f k n o w n to C o k e . Since they w e r e e x e m p t e d f r o m sending burgesses to parliament and contributing to the w a g e s o f knights representing counties, there must h a v e been a parliament. W h e r e o t h e r w i s e w o u l d less p r i v i l e g e d b o r o u g h s send their burgesses? 25

26

A n d w h a t about the N o r m a n conquest? H a d the S a x o n parliament, w i t h its H o u s e o f C o m m o n s , s u r v i v e d that cataclysmic event? After all, c u s t o m a r y usage w a s essential for title o f prescription, and it w o u l d be o f little avail to find a H o u s e o f C o m m o n s in S a x o n E n g l a n d i f it w a s b r o u g h t 25. 4 Institutes, pp. 9, 12 C o k e referred readers to 2 Institutes, pp. 7-8 for the relationship between the Modus and Henry I's coronation charter. T h e L o n g Parliament ordered the publication o f the Fourth Part. See Husband 1643, p. 709, for the statement in the declaration o f 26 M a y : 'It is well k n o w n that the laws for holding a parliament once a year lay asleep for a long time (yet the practice was no argument against the right).' 26. Lambarde 1957, pp. 132-3; A t k y n s 1689, p. 18. Selden, too, w r o t e o f seeing numerous copies o f the Modus (Selden 1631, p p . 7 3 9 , 743).

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to an end in 1066. L i k e m a n y contemporaries L a m b a r d e explained a w a y the conquest. E v i d e n c e o f a full parliament c o u l d be found in H e n r y I's coronation charter w i t h his promise to restore the l a w o f E d w a r d the Confessor and a c k n o w l e d g e m e n t that he had been c r o w n e d b y the c o m m o n council o f the realm. It was a w k w a r d that the m e m b e r s o f that c o m m o n council w e r e referred to as barones, a choice o f l a n g u a g e that seemed to preclude a H o u s e o f C o m m o n s ; but L a m b a r d e explained that the G e r m a n s had translated barones as freemen and M a t t h e w Paris had applied the w o r d to L o n d o n ' s citizens. T h i s meant that 'barons o f the r e a l m ' included b o t h lords and c o m m o n s , and L a m b a r d e considered the matter settled conclusively w h e n H e n r y I c o u p l e d this l a n g u a g e w i t h the w o r d s ' c o m m o n c o u n c i l ' , signifying parliament. A t this j u n c t u r e L a m b a r d e m a d e a contribution to the doctrine o f the ancient constitution on lines m u c h like those d e v e l o p e d after 1642 b y parliamentarian writers. N o t o n l y did he find a prescriptive right o f representation b y w h i c h the c o m m o n s o f E n g l a n d (that is, the counties and b o r o u g h s ) returned m e m b e r s to the H o u s e o f C o m m o n s (a right independent o f the k i n g ) , he also w r o t e o f the k i n g and the t w o houses as 'three estates' and ascribed the v o i c e o f the t w o houses in parliament to prescription. T h a t this v o i c e meant that the t w o houses shared the l a w m a k i n g p o w e r w i t h the k i n g could be seen f r o m the enacting clauses o f statutes, w h e r e it w a s stated 'that the k i n g , his nobility and c o m m o n s , did ordain and enact the s a m e ' . L a m b a r d e w a s asserting that the shares o f the lords and c o m m o n s in l a w - m a k i n g had a source independent o f the k i n g — these w e r e 'radically' f r o m the c o m m u n i t y , as contemporaries w o u l d h a v e said - and he w a s i m p l y i n g , m o r e o v e r , that the t w o houses w e r e equal partners in l a w m a k i n g w i t h the k i n g . T h e g r o w t h in specificity and this particular pattern o f political ideas m a d e L a m b a r d e ' s Archeion o f great interest during the remainder o f the century, especially after large-scale debate erupted o v e r the antiquity o f the H o u s e o f C o m m o n s and its role in l a w - m a k i n g ; and o n such occasions his n a m e w a s linked w i t h C o k e ' s . Y e t , w h e n all is said and done, the doctrine o f the ancient constitution was less influential in p r e - C i v i l W a r E n g l a n d than the political theory o f order espoused b y James I . A l t h o u g h it appeared at times as if the t w o sets o f ideas coexisted h a r m o n i o u s l y e v e n w i t h i n the m i n d o f a C o k e or a P y m , 27

28

2 7 . Lambarde 1 9 5 7 , pp. 134—5, 1 3 8 - 4 0 . Archeion may have been written in part as a response to the episode in w h i c h Arthur Hall described the House o f C o m m o n s as a n e w c o m e r to parliament but was obliged to recant (Mendle 1 9 8 5 , pp. 5 8 - 9 , 1 0 3 - 4 ) . 2 8 . W e s t o n and Greenberg 1 9 8 1 , passim. See also Greenleaf 1 9 6 4 ; Russell 1 9 6 5 .

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England: ancient constitution and common law these w e r e nonetheless i n c o m p a t i b l e ; and the period o f personal rule, w h i c h ancient constitutionalists d e e m e d illegal, hardly lessened the sense o f g r i e v a n c e so evident in the 1620s. It is not coincidental that the Short Parliament, u n c o m m o n l y p r e o c c u p i e d w i t h parliamentary privileges, insisted o n redress o f grievances before supply, n o r that the first statute enacted b y the L o n g Parliament w a s the triennial act. A l s o passed at this time w a s the act for abolishing Ship M o n e y , w h i c h c o n d e m n e d the j u d g e m e n t against J o h n H a m p d e n as contrary to the Petition o f R i g h t and p r o v i d e d that all points o f that d o c u m e n t be in force. T h e n there w a s the act abolishing star c h a m b e r , w h i c h q u o t e d M a g n a C a r t a and four o f the six supporting statutes ( T h o m p s o n 1948, p p . 369-70). A t this time, t o o , H a k e w n T s English edition o f the Modus appeared. M o r e o v e r , the L o n g Parliament v e r y early p r o v i d e d for the r e c o v e r y o f C o k e ' s papers, confiscated at his death b y Charles I, and on the day o f the earl o f Strafford's e x e c u t i o n (12 M a y 1641) ordered their publication. In this w a y the last three v o l u m e s o f the Institutes reached the public. C o k e ' s c o m m e n t a r y on M a g n a C a r t a is in the Second Part (1642), w h i l e parliament occupies the first and longest chapter o f the Fourth Part. W h a t e v e r h a r m o n y existed b e t w e e n the order theory and ancient constitutionalism disappeared w i t h the advent o f the A n s w e r to the N i n e t e e n Propositions (June 1642). In this singularly influential declaration, the k i n g , at least p u b l i c l y , turned his back o n his father's position w h e n he described 'the ancient, equal, h a p p y , w e l l - p o i s e d and n e v e r e n o u g h c o m m e n d e d constitution o f the g o v e r n m e n t o f this k i n g d o m ' . T h e h u m a n source o f this ancient constitution w a s n o t the k i n g , as James had averred, but the earlier experience o f E n g l i s h m e n — an admission that w h a t contemporaries termed the ' o r i g i n a l ' o f g o v e r n m e n t and l a w w a s the c o m m u n i t y and the v e r y point put f o r w a r d b y the authors o f the Apology and Protestation. O f equal interest w e r e C h a r l e s ' observation that there w a s a m i x t u r e o f m o n a r c h y , aristocracy, and d e m o c r a c y in the g o v e r n m e n t , w h i c h c o u l d be seen w h e n the 'three estates' o f k i n g , lords, and c o m m o n s m a d e law j o i n t l y , and his repeated references to his 'share' in that i m p o r t a n t p o w e r , fast b e i n g seen as the s o v e r e i g n p o w e r . R e j e c t i n g the N i n e t e e n Propositions as unacceptable o n the g r o u n d that they threatened social and political h a r m o n y , the k i n g repeated the famous d i c t u m : ' N o l u m u s leges A n g l i a e m u t a r i ' ( ' W e d o n o t w i s h that the laws o f E n g l a n d be c h a n g e d ' ) . 29

2 9 . Sharp 1 9 8 3 , p. 4 0 ; Weston 1 9 6 5 ; Weston and Green berg 1 9 8 1 , passim. K e y portions o f the A n s w e r are in W e s t o n 1 9 6 5 , pp. 2 5 9 - 6 5 ; K e n y o n 1 9 6 6 , pp. 2 1 - 3 3 , 1 9 8 6 , pp. 1 8 - 2 0 . T h e king's remarks ought not to be confused w i t h the earlier v i e w s o f j o h n P o n e t j o h n A y l m e r , T h o m a s C a r t w r i g h t ,

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' C o o r d i n a t i o n ' and the royalist response

W h a t e v e r Charles I's intentions, the A n s w e r o p e n e d the d o o r to a host oi radical political ideas injurious to the kingship that flourished in the atmosphere o f civil w a r . F o r e m o s t a m o n g t h e m w a s a coordination principle in l a w m a k i n g that b e c a m e almost at o n c e the hallmark o f a r e m o d e l l e d ancient constitution. Its author w a s the relatively obscure Puritan c l e r g y m a n , Charles Herle; the pertinent tract his Fuller Answer to a Treatise Written by Doctor Feme ( D e c e m b e r 1642). Inspired b y the k i n g , Herle w r o t e o f the m o n a r c h y or highest p o w e r in the k i n g d o m as c o m p o u n d e d o f three coordinate estates — k i n g , lords, and c o m m o n s — w h o m n o subordinate authority c o u l d resist. T h i s m i x t u r e , w h i c h Charles I had applauded, meant that the t w o houses w e r e coordinate w i t h the k i n g and in n o i m p o r t a n t w a y subordinate to h i m : they w e r e 'a c o - o r d i n a t i v e part in the m o n a r c h y or highest principle o f p o w e r ' because they shared in l a w m a k i n g . It w a s n o t e n o u g h to insist o n a c o o r d i n a t i o n in l a w m a k i n g : there w a s also the need to explain the original frame o f the coordinate g o v e r n m e n t o f the three estates in parliament. T h a t g o v e r n m e n t had been consented to and c o n t r i v e d b y the p e o p l e in its first constitution and had been c o n f i r m e d b y 'constant c u s t o m time . . . out o f m i n d , w h i c h . . . a m o u n t s to a l a w , w h e r e i n the rule is Quod non disprobatur presumetur, it cannot be d i s p r o v e d f r o m taking place u p o n all occasions, therefore it is to be presumed to h a v e continued f r o m the b e g i n n i n g ' ( W e s t o n and G r e e n b e r g 1 9 8 1 , p p . 5 2 - 8 ; H e r l e 1642, revised edn, p. 4). A n y o n e u r g i n g o t h e r w i s e b o r e the b u r d e n o f proof; unless he c o u l d demonstrate that confirmation had n o t taken place o n all occasions, the ancient constitution, the c o o r d i n a t i o n principle at its core, w a s prescriptive. T h e s w e e p o f a pen had placed the k i n g beside the t w o houses o n the same political plane. A s Hale noted, the great mistake w a s in m a k i n g h i m but one o f three estates. If he w e r e one o f three estates, and n o t their head, 'it w e r e to m a k e a c o - o r d i n a t i o n and a k i n d o f parity b e t w e e n h i m and t h e m ' . Hale's o w n v i e w w a s v e r y different: the three estates w e r e the lords Sir T h o m a s Smith, and R o b e r t Parsons. T h e y too described the g o v e r n m e n t as a mixture o f monarchy, aristocracy, and d e m o c r a c y , but they did not single out l a w m a k i n g as the exemplar o f the mixture and allot equal shares in that p o w e r to king, lords, and c o m m o n s . N o r were they Anglorum enunciating a modern theory o f legal sovereignty, though perhaps Smith's De República should be excepted from this generalisation. M e n d l e 1985 is an account o f the b a c k g r o u n d to the A n s w e r differing in critical respects from that in W e s t o n 1965 and W e s t o n and Greenberg 1981. C f . 304 5 S o m m e r v i l l e 1986b, pp. 1 7 4 - 5 , 187 n. 7 1 , and W e s t o n and Greenberg 1981, pp. 282-4 n. 13. n

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England: ancient constitution and common law spiritual, lords temporal, and c o m m o n s , the k i n g their s o v e r e i g n head (Hale 1976, p . 13). T h o s e w h o reasoned this w a y treated the k i n g in parliament as the s o v e r e i g n l a w m a k e r , a role that permitted his retention o f the r o y a l prerogatives a c k n o w l e d g e d to be his before the C i v i l W a r . T h i s b e c a m e the royalist position b y the late 1640s: but others such as Philip H u n t o n , f o l l o w i n g Herle o n such vital points, placed s o v e r e i g n t y in k i n g , lords, and c o m m o n s in parliament ( W e s t o n and G r e e n b e r g 1 9 8 1 , p p . 58—61). A s the principle o f parity b e c a m e the foremost consideration, s o m e writers, n o t i n g that t w o estates w e r e m o r e than one, subordinated the k i n g to the t w o houses, a line o f a r g u m e n t that P r y n n e d e v e l o p e d ingeniously in his h i g h l y successful Soveraigne Power of Parliaments (1643). It w a s second o n l y to Herle's Fuller Answer in the history o f the c o o r d i n a t i o n principle. P r y n n e w o r k e d f r o m the A n s w e r , certainly, but in particular f r o m the declaration o f the L o n g Parliament o f 2 N o v e m b e r 1642 and f r o m the Mirror, the Modus, the preface to C o k e ' s Ninth Reports, and 'office o f a k i n g ' in the Confessor's laws, the confirmations o f the charters, the c o r o n a t i o n oath, and the like ( W e s t o n and G r e e n b e r g 1981, p p . 61—6; see P r y n n e 1643, p p . 32, 3 6 - 7 , 4 1 - 3 , 5 1 - 3 , 56, etc.). T h i s assimilation o f the k i n g ' s constitution w i t h the c o m m o n - l a w cult o f the Confessor's l a w s accelerated w i t h the publication o f the Fourth Part of the Institutes. R e g i s t e r e d w i t h the c o m p a n y o f stationers on 6 A u g u s t 1644, it p r o v i d e d the A n s w e r w i t h the appropriate historical b a c k g r o u n d b y reinforcing and s u p p l e m e n t i n g C o k e ' s earlier discussion o f parliament. T h e confluence o f these i m p o r t a n t political ideas p r o d u c e d a p r o f o u n d and lasting c h a n g e in political t h o u g h t . If ever a marriage w a s m a d e in heaven b e t w e e n t w o sets o f political ideas, it w a s this u n i o n b e t w e e n the c o o r d i n a t i o n principle, sprung f r o m the A n s w e r to the N i n e t e e n P r o p o sitions and c a r r y i n g the sanction o f a k i n g soon to be a r o y a l m a r t y r , and an i m m e m o r i a l H o u s e o f C o m m o n s , supported b y the authority o f the greatest l a w y e r o f the age. F e w d o u b t e d the i m m e m o r i a l character o f the kingship and H o u s e o f L o r d s , but the H o u s e o f C o m m o n s w a s vulnerable o n this score. For a g o l d e n m o m e n t this w a s n o source o f apprehension. T h e redoubtable C o k e , r e l y i n g o n the Modus and e v o k i n g the l a w o f tithes, and L a m b a r d e in De Priscis Anglorum Legibus and Archeion had seen to that. In c o n t e m p o r a r y parlance, then, the three estates o f k i n g , lords, and c o m m o n s , g i v e n their equal shares in l a w m a k i n g , their i m m e m o r i a l character, and the h u m a n source o f their p o w e r s , w e r e coordinate, coeval, and coessential; and in their united voices w a s the s o v e r e i g n p o w e r o f the k i n g d o m . A t this j u n c t u r e c o m m o n l a w b e c a m e clearly subservient to the 397

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m o d e r n theory o f parliamentary s o v e r e i g n t y , its p r i m a r y role thenceforth one o f demonstrating that a s o v e r e i g n parliament, in w h i c h k i n g , lords, and c o m m o n s m a d e l a w as three coordinate estates, had existed on a constant basis time out o f m i n d . Despite the seeming p a r a d o x ancient constitutiona lists w o u l d y n o w c o m b i n e c o m m o n - l a w l a n g u a g e and reasoning w i t h the a d v o c a c y o f the m o d e r n t h e o r y o f parliamentary s o v e r e i g n t y . A s political debate centred o n the citadel o f p o w e r , discussion entered n e w territory; and m u c h w a s said about the prescriptive right o f the c o m m o n s to representation in parliament and the nature o f the l a w - m a k i n g process. T o A t w o o d , the right o f c o m i n g to parliament w a s an established liberty in 1 2 1 5 , and T w y s d e n w r o t e s i m i l a r l y . B u t there w e r e those in the royalist ranks w h o found this proposition unacceptable; and one o f the m o s t respected a m o n g t h e m harked back to the implications o f the N o r m a n conquest. C o n q u e r o r s , he pointed out, did n o t a l l o w such coordinations or admit so m a n y sharers in the rights o f s o v e r e i g n t y as w a s b e i n g fantasised. N o r w a s there a m o n g the Confessor's laws a n y t h i n g that c o u l d ' g i v e the least c o l o u r or pretence for such a c o - o r d i n a t i o n as is c o n c e i t e d ' . 30

31

T h e spearhead o f the royalist response w a s the a n o n y m o u s Freeholders Grand Inquest (1648), the m o s t formidable anti-coordination tract o f the century. T h e practice until recently has been to assign the Freeholders to Sir R o b e r t Filmer o n the strength o f a m o d e r n edition o f his w r i t i n g s edited b y Peter Laslett in 1949. T h i s theory o f authorship has seemed reasonable because the Freeholders circulated in the late seventeenth century in Filmerian collections. E v e n then there w a s a dissident v o i c e . N o less an authority than A n t h o n y W o o d assigned the tract w i t h o u t reservation to Sir R o b e r t H o l b o u r n e , a royalist w h o m o v e d in circles close to the c r o w n in C i v i l W a r O x f o r d . In the early t w e n t i e t y century G . K . Fortescue, editor o f the T h o m a s o n tracts, agreed w i t h W o o d ; and J . W . A l l e n , an authority on early Stuart tracts, denied Filmer's authorship. Y e t t h o u g h Laslett's attribution seemed to settle the matter, the c o n t r o v e r s y w a s r e n e w e d in the 30. A t w o o d is quoted in Pallister 1 9 7 1 , p. 3 6 ; T w y s d e n 1 8 4 9 , pp. 1 2 6 - 7 , 134—5 (for the confluence o f ideas see ibid., pp. 1 3 , 3 3 , 4 0 - 4 , 5 7 - 9 , 8 2 - 6 , 1 1 9 - 2 5 , 1 2 6 - 8 , 1 3 4 , etc.); Baxter 1 6 5 9 , pp. 4 5 6 - 9 0 ; Weston 1 9 6 5 , pp. 7 3 - 4 , 1 0 7 - 9 , 1 1 2 ; W h i t e l o c k e 1 7 6 6 , 1, pp. 1 7 9 - 9 8 , 3 6 6 - 8 0 , 4 2 3 - 3 2 and 11, pp. 4 3 - 5 7 , 1 1 1 - 3 9 , 1 4 0 , 1 6 8 , 25 1, 2 5 5 , 3 0 8 - 1 1, 33 1 - 8 . Both T w y s d e n and W h i t e l o c k e are thought to have written in the 1650s. See also A Collection of State Tracts 1 7 0 5 , pp. 5 0 6 - 7 , and A c h e r l e y 1 7 5 9 . Pocock sees a union o f ancient constitutionalism with James Harrington's Oceana ( 1 6 5 6 ) : resulting neo-Harringtonianism is said to be a vital element in the 'country' i d e o l o g y in Charles II's reign and afterwards (Pocock 1 9 7 5 , pp. 4 0 6 - 2 2 ; Pocock, in Harrington 1 9 7 7 ; Pocock 1 9 8 5 ) . 3 1 . Sheringham 1 6 6 0 , pp. 5 3 , 5 4 - 5 . This was written within the context o f the 'office o f a king'. See of the also ibid., pp. 4 1 - 2 . T h e tract was first published in Paris under the title A Remonstrance Unlawfuhiesse of the War ( 1 6 5 2 ) .

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England: ancient constitution and common law 1980s. For reasons g i v e n elsewhere, it is assumed here that H o l b o u r n e w a s author o f the Freeholders. T h e tract is remarkable for the strategy e m p l o y e d to counter Herle and P r y n n e . H o l b o u r n e w o u l d demonstrate t w o main propositions: (1) n o coordination m a r k e d the l a w - m a k i n g process and (2) there w a s n o prescriptive right in the c o m m o n s o f E n g l a n d to representation in parliament. T o d o so, he turned to r o y a l writs o f s u m m o n s to parliament and enacting clauses o f statutes for e v i d e n c e o f an inequality a m o n g k i n g , lords, and c o m m o n s that must m a k e impossible any claim o f parity or c o o r d i n a t i o n in l a w m a k i n g . T h e y could also be utilised to p r o v e that the H o u s e o f C o m m o n s had reached W e s t m i n s t e r w i t h i n time o f m e m o r y . T h e t w o ideas reinforced each other: i f there w a s n o prescriptive right to representation, n o c o o r d i n a t i o n m a r k e d l a w m a k i n g . After all, h o w c o u l d a H o u s e o f C o m m o n s , arrived at W e s t m i n s t e r w i t h i n time o f m e m o r y , associate o n equal terms in the i m p o r t a n t area o f l a w m a k i n g w i t h the k i n g and H o u s e o f Lords, b o t h accepted as i m m e m o r i a l ? T h e c o n t e m p o r a r y value system permitted o n l y the denial that the H o u s e o f C o m m o n s w a s in these circumstances a g e n u i n e l y independent estate o f parliament, c o o r d i nate w i t h the k i n g and the H o u s e o f Lords. If it was n o t a coordinate estate, there w a s n o coordination in l a w m a k i n g ; and s o v e r e i g n t y , u n d i v i d e d and unshared, resided in the k i n g alone. 32

B u t w h a t o f the pervasive and hitherto unchallenged assumption that the H o u s e o f C o m m o n s had a l w a y s f o r m e d part o f the c o m m o n council o f the k i n g d o m ? H o l b o u r n e n o w t o o k deliberate aim at the doctrine o f the ancient constitution, w r i t i n g that e v e n t h o u g h early writs m a d e n o m e n t i o n o f calling knights, citizens, and burgesses to parliament, s o m e m i g h t think their c o m i n g so c u s t o m a r y as to m a k e this unnecessary. T o clarify the w r i t and satisfy those w h o t h o u g h t the c o m m o n s ' a l w a y s ' part o f the c o m m o n c o u n c i l he w o u l d insist 1. That anciently the barons of England were the common council of the kingdom. 2. That until the time of Hen. 1 the commons were not called to parliament. 3. Though the commons were called by Hen. 1 yet they were not constantly called, nor yet regularly elected by writ until Hen. 3 time. For the first point H o l b o u r n e found parliaments a m o n g the Saxons but not w i t h a H o u s e o f C o m m o n s ; and he was explicit that parliaments after the conquest contained n o such house. Q u o t i n g from H e n r y I's coronation 32. T h e authorship o f the Freeholders

is discussed in Weston 1 9 8 0 , 1 9 8 7 ; Daly 1 9 8 3 .

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charter, he found that W i l l i a m I had a m e n d e d the Confessor's l a w s w i t h the consent o f his barons; but unlike L a m b a r d e , he translated barones to denote earls and bishops w i t h o u t the c o m m o n s . A n d in another passage he resisted the t e m p t a t i o n to include the c o m m o n s under the t e r m proceres. 33

T h e other t w o points are treatable as one. H o l b o u r n e w o u l d grant the presence o f c o m m o n s in parliament before time o f m e m o r y but not in a f o r m recognisable to Stuart E n g l a n d . A l l the people o f the k i n g d o m w e r e called in H e n r y I's reign, and multitudes came, but the k i n g had legislated o n l y w i t h barons in the c o m m o n council. M o r e o v e r , H o l b o u r n e lays special emphasis o n the point that, e v e n w h e n the c o m m o n s w e r e called, this w a s neither constant nor based o n regular election until H e n r y Ill's reign. N o t until 1265 (49 H e n . 3), the year o f the earliest extant w r i t o f s u m m o n s to knights o f the shire, w a s the representative b o d y o f the k i n g d o m established. O n l y then w a s there c u s t o m a r y usage o f represent ation; that w h i c h H e n r y III ' b e g a n a little before his death, E d w a r d I and his successours constantly o b s e r v e d and c o n t i n u e d ' . 34

T h e s e conclusions w e r e replete w i t h implications. A H o u s e o f C o m m o n s founded w i t h i n time o f m e m o r y w a s o b v i o u s l y n o t i m m e m o r i a l ; and the c o o r d i n a t i o n principle w o u l d h a v e to discarded. T h e k i n g w h o s e writs had s u m m o n e d representative elements to parliament w a s the founder and master o f such a house. Inferior to the k i n g and H o u s e o f L o r d s , w h o s e l o n g e v i t y w a s n o t in question, it was at best a j u n i o r partner in an arrangement that required three equal partners i f the coordination principle w a s to h a v e viability. In the n e w circumstances c o n t r o v e r s y about the h u m a n source o f political p o w e r and authority in the state must be settled in the k i n g ' s favour. N o t o n l y the rights and privileges o f the H o u s e o f C o m m o n s w e r e at risk; so w a s the position o f parliament itself. Six m o n t h s after the publication o f the Freeholders, royalist defeat at Preston set in m o t i o n events that led to Charles I's e x e c u t i o n and the p r o c l a m a t i o n o f a republic w i t h o u t k i n g and H o u s e o f Lords. In these disjointed times the tract m i g h t w e l l h a v e slipped f r o m sight w i t h o u t the support f o r t h c o m i n g f r o m P r y n n e . A p p a l l e d at the k i n g ' s fate and adamantly o p p o s e d to the Levellers and c o m m o n w e a l t h m e n , w h o in his 3 3 . H o l b o u r n e 1 6 4 8 , pp. 6 - 1 0 . T h e account in this chapter revises that in W e s t o n and Greenberg 1 9 8 1 , pp. 1 2 8 , 1 4 5 - 7 ; 3 1 9 n. 9 , w h e r e Prynne receives credit that belongs to Holbourne. T h e latter was w o r k i n g from Selden's edition o f Eadmer's annals, in w h i c h the Confessor's laws, as approved and amended b y W i l l i a m I, are printed. Holbourne did not disclose whose ideas he was attacking, but see the appraisal in Prynne 1 6 6 2 , p. 2 3 0 . 3 4 . Holbourne 1 6 4 8 , p. 1 4 . T h e Freeholders has a surprisingly lengthy section on parliamentary privilege sympathetic to James I (ibid., pp. 50—64).

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England: ancient constitution and common law v i e w had u n d e r m i n e d the m o n a r c h y and destroyed it, he set out to restore k i n g , lords, and c o m m o n s as three coordinate estates but w i t h special safeguards to restrain the H o u s e o f C o m m o n s . T h e result w a s a series o f major political tracts that for t w e n t y years, in season and out, kept alive the ideas in the Freeholders. It w a s an altogether extraordinary performance. B u t P r y n n e ' s contribution w a s m o r e extensive than this w h e n , c l i n g i n g tenaciously to the c o o r d i n a t i o n principle, he nevertheless dealt it a severe b l o w b y p r o d u c i n g massive e v i d e n c e that there w a s n o H o u s e o f C o m m o n s before 1 1 8 9 . O n e o f his m e t h o d s w a s to adopt a definition o f time o f m e m o r y w h i c h imparted a v e r y different time sense to phrases in m e d i e v a l records such as 'time out o f m i n d ' , 'in all times past', etc. ( W e s t o n and G r e e n b e r g I 9 8 i , p . 141). S o great w e r e his services to the c r o w n that he w a s appointed keeper o f the T o w e r records at the R e s t o r a t i o n , and in the grand c o n t r o v e r s y o v e r legal s o v e r e i g n t y that raged during the remainder o f the century his n a m e w a s g r o u p e d w i t h ' m o d e r n writers' o n g o v e r n m e n t w h o s e w r i t i n g s affrighted supporters o f the ancient constitution. A s early as February 1648 P r y n n e ' s retreat f r o m radicalism was manifested in an attack on C o k e ' s sponsorship o f the Modus so savage, p r o l o n g e d , and ultimately successful that p r o - c o u r t writers such as B r a d y and his f e l l o w H i g h T o r y historians felt n o need to deal w i t h the subject. If the Modus w e r e to g o , the best s u r v i v i n g e v i d e n c e f r o m the m i d d l e ages for an i m m e m o r i a l H o u s e o f C o m m o n s w o u l d vanish w i t h consequences devastating for the doctrine o f the ancient constitution. P r y n n e also demonstrated at l e n g t h an inconsistency in representation after 49 H e n . 3 that w r o u g h t h a v o c w i t h the accepted idea o f an ancient right in the c o m m o n s o f E n g l a n d to representation in parliament. T h i s a r g u m e n t has received e x t e n d e d consideration elsewhere ( W e s t o n and G r e e n b e r g 1981, ch. 5), but n o t his critique o f the Modus. W h a t P r y n n e did w a s m o u n t a successful attack o n the credibility o f the p r o e m to the English Modus b y d e n y i n g that the treatise w a s an authority for the Confessor's reign and that the C o n q u e r o r and H e n r y II had accepted it. N o r , despite C o k e , had it influenced the makers o f M a g n a C a r t a . 35

For one thing, the historical record revealed that for hundreds o f years there w e r e n o knights and burgesses in parliament; o n l y the k i n g and his nobles. T h i s w a s so despite 'the spurious pretended ancient ( t h o u g h in truth late ridiculous) treatise, styled Modus tenendi Parliamentum on w h i c h Sir 35. For B r a d y ' s reaction see n. 36 b e l o w . A n obvious exception to this generalisation is the aged Fabian Philipps, w h o s e last major tract is understandable only in these terms. Philipps 1687, p p . 6 7 3 , 6 8 8 - 9 5 , 6 9 8 - 7 0 , and passim.

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E d w a r d C o k e and others most r e l y ' (Prynne 1658, p. 20, 1664, pp. 552, 553—4). T h e Modus was replete w i t h anachronisms i f associated w i t h the Confessor's reign. T h u s the w o r d ' p a r l i a m e n t u m ' , w h i c h appeared 148 times and w a s present in almost e v e r y line besides the title, w a s n e w in H e n r y Ill's reign, and it w a s strange to find it u n a c c o m p a n i e d w i t h such c o n t e m p o r a r y terms for parliament as concilium, concilium magnum, commune concilium, etc. N o t i n g that the first clause in the treatise appeared to h a v e been transcribed f r o m M a g n a C a r t a , w h e r e commune concilium w a s the term for parliament, he c o n c l u d e d that the Modus, rather than inspiring M a g n a Carta, as C o k e believed, had been w r i t t e n at a later date. T h e r e w a s also the t r o u b l e s o m e matter o f parliamentary writs. A c c o r d i n g to the Modus, the k i n g had issued t h e m to the wardens o f the C i n q u e Ports to s u m m o n t w o barons f r o m e v e r y port and to sheriffs and others to s u m m o n t w o knights f r o m each c o u n t y and t w o citizens and burgesses f r o m e v e r y city and b o r o u g h , but P r y n n e w a s unable to find an historical record o f such writs before 49 H e n . 3. N o r w e r e the sums paid to such representa tives, as recorded in the Modus, consonant w i t h k n o w n facts. Despite statements about sums allotted for this purpose, for e x a m p l e , to the barons o f the C i n q u e Ports, n o such writs w e r e issued until E d w a r d I's reign. His a r g u m e n t c o n c l u d e d o n a triumphant note: 'I suppose n o antiquary or l a w y e r can p r o d u c e one precedent o f any parliament or great council held in E n g l a n d or Ireland a c c o r d i n g to this Modus, either before, at, or since the conquest, in any o f our histories, parliaments, close rolls, records, or journals.' B u t i f there w e r e n o representatives in parliament before 1 1 8 9 , h o w to explain their absence? T h e stage w a s set for the necessary historical explanation w h e n D u g d a l e m a d e available to T o r y scholarship a c o m p l e t e printing o f Sir H e n r y Spelman's Glossarium Archaeologus, k n o w n as the Glossary. T h e first v o l u m e , published in 1626, reached the letter ' L ' but the second, published in 1664 for the first time, included under ' P ' an article on parliament entitled ' P a r l a m e n t u m ' that p r o v e d o f h i g h value to the court. Since D u g d a l e had financial assistance f r o m t w o e x t r e m e l y p o w e r f u l political figures, L o r d C h a n c e l l o r C l a r e n d o n and B i s h o p Gilbert S h e l d o n 36

36. Prynne 1664, pp. 5 6 7 - 8 . See the general discussion, pp. 553-608, esp. 559~6o. T h e repercussions are in T y r r e l l 1694, PP- 378, 380, 1696-1704,111, Part 11, pp. 7 1 - 2 . S e e n . 35 above. B r a d y ' s reaction is in S t o w e M S S 366, fo. 2 v . A l t h o u g h he was influenced as well b y Selden, it was Prynne's discussion, Writs, that led B r a d y to write admiringly in particular, in the fourth v o l u m e o f his Parliamentary that Prynne was ' v e r y full and hath clearly confuted this Modus and proved it an imposture in this piece, and also in his animadversions upon the 4th Institutes'.

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England: ancient constitution and common law (soon archbishop o f C a n t e r b u r y ) , p r o b a b l y m o r e than scholarly patronage w a s at w o r k . Spelman's reputation for disinterested scholarship and his d i s c o v e r y o f political feudalism w o u l d m a k e it possible to e x p l o i t the N o r m a n conquest o n b e h a l f o f a B o d i n i a n kingship. W h a t he did w a s set forth the m a i n lines o f a feudal kingship after 1066 that w a s t h o r o u g h l y i n c o m p a t i b l e w i t h the historical vision o f the ancient constitutionalists. A t its centre w e r e the lord—vassal relationships b y w h i c h the k i n g granted landed estates (fiefs) to his vassals ( N o r m a n military m e n ) , w h o o w e d h i m in return military service and court duty. A s his tenants in capite, they attended his curia regis, the nearest equivalent in the feudal w o r l d to an early parliament. N o r w a s there a substantial class o f freeholders to serve as electors or m e m b e r s o f a H o u s e o f C o m m o n s , and he reported in a m u c h q u o t e d sentence that there w a s n o sign o f c o m m o n s in parliament 'ab ingressu G u l i e l m i I. ad excessum Henrici 3'. Y e t S p e l m a n left the ancient constitution o t h e r w i s e intact b y accepting the idea that W i l l i a m had c o n f i r m e d the Confessor's laws, and he s o u g h t to reconcile his findings generally w i t h the confirmations o f the charters ( P o c o c k 1987, p p . 1 1 1 - 1 6 ) . Profiting f r o m the Glossary, D u g d a l e published t w o major w o r k s associating political feudalism w i t h parliamentary history: Origines Juridiciales (1666), w h i c h passed t h r o u g h three editions b y 1680, and his Baronage of England (1675). His main contribution in the political sense w a s in Origines Juridiciales w h e r e he advanced a n e w version o f parliamentary representation before 1189. In m u c h o f w h a t he w r o t e he f o l l o w e d the lines m a r k e d out b y C o k e and L a m b a r d e . F r o m C o k e he t o o k the standard account o f the confirmations o f the charters, w h i c h ensured c u s t o m a r y usage o f the ancient rights and liberties in the Confessor's l a w s for the period f r o m W i l l i a m I to M a g n a C a r t a and thence to E d w a r d I; f r o m L a m b a r d e , the conclusion that there had indeed been parliamentary representation before 1 1 8 9 . W o r k i n g f r o m Archeion and De Priscis Anglorum Legibus, he found the l a w o f tithes decisive. It had been m a d e 'a rege, baronibus, & p o p u l o ' . A t this point, h o w e v e r , he departed f r o m the W h i g s , w h o equated ' p o p u l o ' w i t h the H o u s e o f C o m m o n s . N o t so. A c c o r d i n g to D u g d a l e tenants in capite represented their sub-vassals in the c o m m o n c o u n c i l and m o d e r n representation w a s b o r n almost o v e r n i g h t in 49 H e n . 3. T h i s w a s to c o n c e d e a parliamentary representation before 1189, but not in a f o r m acceptable to C o k e ' s and L a m b a r d e ' s disciples. H a u n t e d b y the vision o f an early H o u s e o f C o m m o n s fully capable o f serving as a coordinate estate in l a w m a k i n g , they w e r e less than grateful; as one o f t h e m 403

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said: they w e r e b e i n g asked to accept 'a fancied w a y o f b e i n g represented b y such as they n e v e r chose, tenants in capite, b y military s e r v i c e ' . 37

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L i k e a m o d e r n j a c k h a m m e r b r e a k i n g up a p a v e m e n t , these repeated b l o w s at the doctrine o f an ancient constitution w e r e t o o m u c h to endure in silence. B y the time o f the E x c l u s i o n Crisis its supporters w e r e likely to be Shaftesbury W h i g s t h o u g h the doctrine w a s b y n o means confined to that party. T h e leading W h i g polemicist w a s P e t y t , the c o m m o n l a w y e r and legal antiquary w h o w o u l d figure p r o m i n e n t l y in the w e l l - k n o w n B r a d y c o n t r o v e r s y . A n e x p o n e n t o f a shared parliamentary s o v e r e i g n t y , he considered that the n e w v i e w o f the N o r m a n conquest endangered the idea o f an i m m e m o r i a l H o u s e o f C o m m o n s . W i t h S p e l m a n and D u g d a l e in m i n d he w r o t e that t h o u g h the C o n q u e r o r had g o t the imperial c r o w n o f E n g l a n d and i n t r o d u c e d several arbitrary laws, such as n e w tenures, y e t he had not m a d e such an absolute conquest, n o r had the k i n g d o m received so universal a c h a n g e as ' m o d e r n authors' had published to the w o r l d , as i f b y a general confederacy and w i t h o u t e x a m i n a t i o n o f the truth. T h e y had fathered u p o n this ' r e v o l u t i o n ' all the alterations they c o u l d i m a g i n e (Petyt 1680a, 'Preface', p p . 17—18). In this atmosphere P e t y t collected materials for a b r o a d defence o f c o o r d i n a t i o n . Y e t his e x t r e m e l y influential Antient Right of the Commons of England Asserted did n o t appear until 1680, directly after the republication o f the Freeholders Grand Inquest. T o establish an i m m e m o r i a l H o u s e o f C o m m o n s P e t y t relied, n o t on the Modus, but o n the early fourteenth-century case o f the burgesses o f St A l b a n s . It w a s said to p r o v i d e a m p l e p r o o f that cities, and b o r o u g h s at this time w e r e sending m e m b e r s to parliament b y a general c u s t o m or l a w that had originated time out o f m i n d . T h e burgesses had petitioned E d w a r d II to send t w o representatives to parliament o n the g r o u n d that this w a s c u s t o m a r y practice 'in all f o r m e r times'; and m a k i n g use o f this phrase and other l a n g u a g e in the petition as a point o f departure, P e t y t established to 37. D u g d a l e 1666, pp. 4 - 1 8 ; A t w o o d 1 6 8 1 , p. 4; see also the 'Preface'. A c c o r d i n g to D u g d a l e , the modern parliament began in 49 Hen. 3 w h e n S i m o n de M o n t f o r t in the king's name s u m m o n e d knights and burgesses to parliament for the first time. This explanation for the 'revolution o f 1265', as W h i g s derisively termed it, had been initially popularised by Prynne, w h o assumed, h o w e v e r , that Henry III issued the necessary writs. T o explain the change in historical terms was to strengthen the court case; to attribute it to a rebellious baron, w i t h memories o f civil w a r and interregnum still fresh, was to minimise parliament: D u g d a l e 1666, p. 18, 1 6 7 5 , pp. 7 5 6 - 7 (de Montfort). Prynne w o r k e d from James H o w e l l ' s Cottoni Posthuma ( H o w e l l 1 6 5 1 , pp. 345, 346).

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England: ancient constitution and common law his o w n satisfaction a continuity o f representation b e t w e e n R i c h a r d I and E d w a r d II. Still short o f his g o a l o f g o i n g ' h i g h e r ' than R i c h a r d I, as the 1189 rule required, he turned to ' B r a c t o n ' . Since the latter's reputation as a great j u d g e w a s at its height in H e n r y Ill's reign, presumably his lifetime spanned R i c h a r d ' s and John's reigns. Fortunately he had left a record o f the rule b y w h i c h parliament m a d e l a w in his lifetime and in 'ages before': it revealed that there had been representation in the process. A measure had the force o f l a w i f it w e r e justly declared and a p p r o v e d b y the council and consent o f the great m e n [the H o u s e o f Lords] and b y the general consent o f the c o m m o n w e a l t h [expressed in the H o u s e o f C o m m o n s ] , the authority o f the k i n g p r e c e d i n g ' . T h e decisive statement had c o m e from the admired ' B r a c t o n ' , and P e t y t w a s deeply chagrined b y B r a d y ' s failure to deal squarely w i t h i t . 38

P e t y t w a s chary o f the w o r d ' c o o r d i n a t i o n ' , w h i c h w a s b e i n g linked in political literature w i t h the death o f Charles I, preferring l a n g u a g e that stressed the 'shared' quality o f l a w m a k i n g . In Petyt's v i e w the people had had a share in their public councils since the b e g i n n i n g o f their history. T h u s the Britons had called their parliament ' k y f r - y - t h e n ' because their laws w e r e ordained there. M u c h m o r e w a s k n o w n about the Saxons, w h o had b r o u g h t their l a w s and g o v e r n m e n t f r o m G e r m a n y . Tacitus w a s authority for the fact that the c o m m o n s f o r m e d part o f their w i t e n a g e m o t s . After the c o u n t r y w a s reunited under a Christian m o n a r c h y , E n g l i s h m e n had kept their ancient w i t e n a g e m o t s or parliaments, w h e r e Saxons m a d e laws and m a n a g e d the great affairs o f the k i n g and k i n g d o m . A n d r e l y i n g on De Priscis Anglorum Legibus, P e t y t reported that the Confessor had reformed and c o n f i r m e d ancient S a x o n l a w s and also m a d e n e w ones. N o r c o u l d there be any d o u b t about the role o f the H o u s e o f C o m m o n s in legislation. P e t y t w o u l d supply authorities f r o m w h i c h it w a s 'apparent and past all contradiction that the c o m m o n s in those ages w e r e an essential part o f the legislative p o w e r , in m a k i n g and ordaining laws, b y w h i c h themselves and their posterity w e r e to be g o v e r n e d ' . T h e w i t e n a g e m o t had s u r v i v e d the N o r m a n conquest, and n o t w i t h standing W i l l i a m ' s h i g h p o w e r and severe policies, the c u s t o m a r y usage o f parliaments persisted. T h i s c o u l d be seen from the confirmations o f the charters and the e v i d e n c e in De Priscis Anglorum Legibus. W o r k i n g from the edition o f 1644, to w h i c h T w y s d e n had contributed, P e t y t reported

38. Petyt 1680a, 'Discourse', pp. 1 - 4 4 , 1 2 3 - 6 , ' A p p e n d i x ' , pp. 1 4 7 - 8 ; 1681, p. 14, 1739, pp. x i i i - x i v . See also T y r r e l l 1694, pp. 3 0 9 - 1 2 , 344, esp. 3 1 2 .

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that W i l l i a m had early issued a M a g n a C a r t a granting and c o n f i r m i n g the Confessor's laws. O n e o f t h e m w a s said to reveal that the k i n g c o u l d legislate o n l y w i t h the consent o f the c o m m o n council o f the k i n g d o m . H e also found that W i l l i a m ' s M a g n a C a r t a had m u c h in c o m m o n w i t h K i n g John's and other great charters. T h e y p r o v i d e d for the 'restitution and declaration o f the ancient c o m m o n l a w and right o f the k i n g d o m ' , w o r d s that to P e t y t ensured the continuance o f parliament. A s he said, ' W h a t could the promised restitution o f the laws o f E d w a r d the confessor signify, if their w i t e n a g e m o t , or parliament . . . w a s destroyed and b r o k e n ? ' Since the S a x o n parliament contained a H o u s e o f C o m m o n s , P e t y t considered that all his authorities and reasons p r o v e d c o n c l u s i v e l y that the c o m m o n s had votes and a share in l a w m a k i n g in the g o v e r n m e n t s o f the British, the Saxons, and the N o r m a n s . T h e y w e r e an essential part o f the g o v e r n m e n t before and after the N o r m a n conquest, and the same generalisation applied to the H o u s e o f Lords. P e t y t also placed an unlimited l a w - m a k i n g p o w e r in parliament; on this point he left n o d o u b t o f his m o d e r n o u t l o o k , w r i t i n g : ' W h e n any doubts and differences o f opinions arose a m o n g s t l a w y e r s , c o n c e r n i n g w h a t the c o m m o n l a w w a s in points o f great and w e i g h t y importance, such doubts and differences w e r e b y the ancient course and practice declared and settled, not b y the j u d g e s o f W e s t m i n s t e r Hall, but b y the l a w - m a k i n g p o w e r o f the k i n g d o m . ' 3 9

A formidable adversary n o w intervened o n the side o f the court. T h i s w a s D r B r a d y , master o f C a i u s C o l l e g e , C a m b r i d g e , and r o y a l physician to Charles II and James II, w h o s e historical w r i t i n g s w e r e m u c h indebted to the historical scholarship o f H o l b o u r n e , P r y n n e , S p e l m a n , and D u g d a l e t h o u g h he clearly excelled t h e m in the use to w h i c h he n o w put a hardearned understanding o f political feudalism and its distinctive v o c a b u l a r y . If his erudition has to be a c k n o w l e d g e d , still his e x a m i n a t i o n o f early English history w a s a l w a y s subservient to the larger cause o f placing a legal s o v e r e i g n t y in the Stuart kingship. W h a t he did w a s set out to establish that the c o m m o n s o f E n g l a n d did not constitute an estate in parliament before 49 H e n . 3 and that earlier freemen, as the t e r m w a s understood in his day, had n o share in l a w m a k i n g unless they w e r e represented b y tenants in chief. B u t he w e n t further than this b y p r o m u l g a t i n g a f u l l - b l o w n conquest theory w i t h implications for the seventeenth century: the N o r m a n 39. Petyt 1739, pp. 1 0 - 1 2 , 45, 6 6 - 7 , 1680a, 'Preface', pp. 3 - 1 2 , 3 2 - 4 0 , 54, 7 3 - 4 , 'Discourse', pp. 1 2 3 - 4 , ' A p p e n d i x ' , pp. 146—7; Tyrrell 1694, pp. 3 2 6 - 7 . Clearly parliamentary privilege was a subject dear to Petyt, w h o printed the Apology and Protestation in his Jus Parhanientavium and long extracts from the debates o f 1621. O n another occasion he reprinted the Petition o f R i g h t : 1680b, pp. 1 2 6 - 3 7 .

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England: ancient constitution and common law conquest meant that the Stuart k i n g w a s s o v e r e i g n on the lines that B o d i n had m a d e familiar. B r a d y w a s insistent that there had been a genuine conquest, f o l l o w e d b y the introduction o f a feudal k i n g d o m that precluded a shared l a w - m a k i n g p o w e r before time o f m e m o r y . T h e c o m b i n a t i o n o f military conquest w i t h an arbitrary p o w e r in the k i n g as sole l a w m a k e r rendered B r a d y ' s historical w r i t i n g s h o r r e n d o u s to the advocates o f an ancient constitution. S o fierce w a s his assault on that doctrine that he seemed to an early eighteenth-century W h i g 'the v e r y learned a d v o c a t e o f slavery'; and 100 years after his death e v e n conservative polemicists shunned h i m as a Stuart apologist o f illiberal and absolutist sympathies. T h e y preferred the researches o f a p r e - C i v i l W a r S p e l m a n or S e l d e n . T h a t B r a d y had an i d e o l o g i c a l interest in the N o r m a n conquest appears f r o m his account o f W i l l i a m after Hastings. W h o e v e r n o t e d his actions in d r a w i n g his a r m y about W e s t m i n s t e r at the time o f his coronation, his construction o f fortresses and castles in L o n d o n , and his 'dictating l a w s ' must believe that his intention w a s to rule b y the s w o r d f r o m the first. T h e phrase 'dictating l a w s ' stands out. A f t e r w i n n i n g E n g l a n d b y the s w o r d , the C o n q u e r o r had i m p o s e d N o r m a n feudal l a w o n his subjects to establish his mastery o v e r the defeated k i n g d o m and p r o v i d e unmistakable p r o o f o f its subjugation; and B r a d y discussed the laws that W i l l i a m deliberately i m p o s e d at this time. T h e thrust o f the a r g u m e n t w a s plain: the C o n q u e r o r was, as the c o n t e m p o r a r y phrase w e n t , the ' o r i g i n a l ' or h u m a n source o f the l a w . T h e r e w a s n o l a w independent o f W i l l i a m and his successors in this period o f time so critical to title o f prescription. T o take up this position was to depart sharply f r o m C o k e , w h o , B r a d y stated, had i g n o r e d the entrance o f a n e w and foreign l a w at the conquest that b e c a m e the English law. H e had w r i t t e n as if c o m m o n l a w had g r o w n u p w i t h the first trees and grass, 'abstracting it f r o m any dependence u p o n , or creation b y the government'. B u t w a s C o k e w h o l l y mistaken? W h a t o f the repeated confirmations o f the Confessor's laws, so w e l l attested in historical accounts? H a d these n o t ensured the continuity o f S a x o n l a w and g o v e r n m e n t after 1066, and did this not m e a n that S a x o n l a w and g o v e r n m e n t , in a legal sense, had a life independent o f the c r o w n , e x a c t l y w h a t C o k e had claimed? B r a d y w o u l d 40

41

40. Weston 1972, pp. 4 2 5 - 7 ; W e s t o n and Greenberg 1981, pp. 1 8 7 - 9 2 ; B r a d y 1684, ' T h e Introduction' and also ' A n A n s w e r to M r Petit's B o o k ' , pp. 11 (margin), 16, ' A n A n s w e r to . . . Argumentum Antinormanicum, pp. 2 5 1 - 2 ; St A r m a n d 1 7 2 5 , p. 89; Lee 1982, p. 175 n. 54. 41. B r a d y 1684, ' A n A n s w e r to M r Petit's B o o k ' , pp. 1 3 - 1 4 , ' A n A n s w e r to . . . Argumentum Antinormanicum, p. 237; B r a d y 1685, 'General Preface', p. xlvii, 'Preface to the N o r m a n History', pp. 1 5 5 - 6 , 157-

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admit that W i l l i a m had indeed c o n f i r m e d the Confessor's l a w s but n o m o r e than this. D w e l l i n g at l e n g t h o n the c o m m o n - l a w cult o f the Confessor's laws he b r o k e n e w g r o u n d b y u n d e r m i n i n g the credibility o f L a m b a r d e ' s collection o f those laws; the account o f W i l l i a m ' s M a g n a C a r t a as detailed b y C o k e and supported b y Selden's edition o f E a d m e r ' s annals, Ingulphus o f C r o y l a n d , and the Lichfield chronicle; and the c u s t o m a r y interpretation o f H e n r y I's c o r o n a t i o n charter and M a g n a C a r t a itself. N o r did he o v e r l o o k the enacting clause in the l a w o f tithes. Far f r o m b e i n g a m i g h t y l a w , it w a s an u n c o u t h expression used o n one occasion o n l y and but slender p r o o f o f a H o u s e o f C o m m o n s in S a x o n parliaments that shared the l a w - m a k i n g p o w e r . B y itself ' p o p u l u s ' signified neither great n o r little people but o n l y laity, and it o u g h t to be interpreted a c c o r d i n g to the usage and practice o f the time. T h e Confessor's l a w s w e r e n o m o r e than penal laws, w h i c h W i l l i a m I had selected, a p p r o v e d , and published b y c o m m a n d , d o i n g so for the benefit o f his N o r m a n but n o t his S a x o n subjects. M o r e o v e r , he had added to the Confessor's laws, n o t s i m p l y corrected t h e m . T h e message w a s stark: the b u l k o f English l a w after 1066 had c o m e from N o r m a n d y w i t h the C o n q u e r o r ; and post-conquest c o m m o n l a w was substantially feudal l a w . C o n t r a r y to C o k e , ancient English k i n g s had planted early English l a w , and in another passage B r a d y w r o t e o f this action as taken w i t h the assistance and advice o f their great councils in all ages as they found it expedient. T h e y had acted in response to the petition and request o f their p e o p l e . 42

B r a d y w o u l d also establish that there w e r e n o elements in these great councils c o r r e s p o n d i n g to the t w o houses o f parliament. T h e r e w a s n o t e v e n an independent n o b i l i t y , m u c h less a counterpart to the freeholders o f Stuart E n g l a n d that w o u l d m a k e possible a H o u s e o f C o m m o n s o f the kind envisaged b y P e t y t and his friends. T h e social and political conditions illuminated b y D o m e s d a y B o o k w o u l d n o t permit the p e o p l e (the t w o houses) to be l a w m a k e r s , as t r o u b l e s o m e m e n p r o c l a i m e d . A f t e r 1066 a N o r m a n military class held land o f the k i n g , to w h o m its m e m b e r s o w e d military and court d u t y ; and the curia regis w a s n o m o r e than a tenurial c o u n c i l o f tenants in chief. A f t e r first accepting D u g d a l e ' s version o f early representation, B r a d y decided it w a s ' p r o b a b l e the c o m m o n s w e r e n o t at all represented before 49 H . 3'. Subjugated E n g l i s h m e n , m i r e d in serfdom, 42. B r a d y 1685, 'General Preface', pp. x l v i i - x l v i i i , 1684, ' A n A n s w e r to M r Petit's B o o k ' , pp. 14, 1 6 - 1 7 , 20, 29, 3 1 , ' A n A n s w e r to . . . Argumentum Antinormanicum\ pp. 2 5 6 - 6 9 , esp. 262 (see also pp. 296-8); 1684, 'Glossary', pp. 2 4 - 6 . His discussion o f M a g n a Carta is described b e l o w .

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England: ancient constitution and common law w e r e outside this political w o r l d : they w e r e not the ones w h o attended the curia regis or contended for the 'liberties' in r o y a l charters; n o indeed. T h e liberi homines n a m e d there w e r e N o r m a n military m e n or their descendants and their sub-vassals, and the liberties in contention w e r e for the most part relaxations o f r i g o r o u s exactions and usages o f feudal l a w relating to fiefs held o f the C o n q u e r o r and his successors. If that l a w w a s t o o harsh for tenants in military service, o n l y the k i n g , as its source, c o u l d adjust or correct i t . A s for St A l b a n s , it t o o w a s part o f feudal arrangements. T h e burgesses had not prescribed to c o m e to parliament ' m e r e l y as from a b o r o u g h , but as f r o m a t o w n that held in chief o f the k i n g , and this service was incident to their t e n u r e ' . S o m u c h for the idea o f a right at c o m m o n law to representation in m e d i e v a l parliaments and the concept o f an immemorial House o f C o m m o n s . 43

44

T h e final b l o w w a s the T o r y historian's use o f the great charters to demonstrate the B o d i n i a n character o f the early English kingship. T h e s e w e r e statutes, the k i n g their o n l y m a k e r — a generalisation applicable e v e n to M a g n a Carta, so l o n g the e x e m p l a r o f the Confessor's laws, its role so p i v o t a l in the confirmations o f the charters. A t B r a d y ' s hands a w h o l e n e w frame o f reference w a s taking shape. T h e authority o f M a g n a C a r t a w a s n o w said to be due to the k i n g ' s grace, the point b e i n g that K i n g J o h n w a s the sole l a w m a k e r w h e n he granted the demands o f the N o r m a n military m e n and their ecclesiastical allies. A s S p e l m a n had written, ' w h a t w a s determined b y the k i n g and council in that age, and c o n f i r m e d b y his seal had w i t h o u t d o u b t the force o f l a w ' . B u t did not this suggest that l a w m a k i n g w a s a shared p o w e r ? N o t at all. T h e role o f the great council was limited to m a k i n g charters at the stage w h e n these w e r e o n l y petitions and requests. T o be sure, the barons had offered K i n g J o h n a schedule o f terms that he w a s in n o position to reject; yet the fact remained that the authority o f M a g n a C a r t a w a s due to its b e i n g a r o y a l grant, c o n f i r m e d b y r o y a l seal. T h e o n l y legal sanction required b y the rebellious barons w a s the k i n g ' s assent: the tenor o f all r o y a l charters w a s ' w e grant, w e c o n f i r m , w e g i v e for us and our heirs, to t h e m and their heirs, etc.'. It w a s the k i n g ' s 43.

44.

Brady 1685, 'General Preface', pp. x x v - x x v i i i , l x v i i - l x v i i i , 1684, ' T h e Epistle to the C a n d i d R e a d e r ' , n.p., ' A n A n s w e r to M r Petit's B o o k ' , pp. 1 7 - 1 8 , 'Animadversions upon . . . Jani Antinormanicum\ pp. 252, 2 5 5 , 256, Anglorumfades Nova', p. 169, ' A n A n s w e r to . . . Argumentum 2 6 5 - 6 . A n d see 'Glossary', pp. 50—4. For the shift in his v i e w o f representation before 49 Hen. 3, see Brady 1684, ' T h e Introduction', n.p., ' A n A n s w e r to M r Petit's B o o k ' , p. 1 1 2 (margin). Brady 1684, p. 38. In this connection see, too, the c o m m e n t on Brady's Historical Treatise of Cities and Burghs or Boroughs (1690) in W e s t o n and Greenberg 1981, pp. 1 8 5 - 6 ; Smith 1987, pp. 2 5 - 6 .

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p o w e r and authority alone that g a v e life to the charters: they contained n o such phrase as ' b y authority o f parliament', w o r d s arousing B r a d y ' s indignation ( B r a d y 1685, pp. x x x i v , xli—xlii, xlviii; T y r r e l l 1694, P- 7 9 ) T h e o u t c o m e o f the G l o r i o u s R e v o l u t i o n determined the f o r m o f legal s o v e r e i g n t y that w o u l d prevail, and in this c o n t e x t it is irrelevant that B r a d y ' s historical scholarship w a s superior to that o f supporters o f the doctrine o f an ancient constitution. T o g e t h e r , Charles I and C o k e had p r o v i d e d that constitution w i t h sanctions o f the most august kind; and w h i l e the reputation o f the Modus had been injured, it was not out o f the political wars and it w o u l d be generations before Spelman's Glossary replaced the political understandings generated b y that treatise. In 1689 time still ran on the side o f the ancient constitution. A t the R e v o l u t i o n , B r a d y g a v e up his position as keeper o f the T o w e r records to P e t y t , w h o held it for the rest o f his days. P o c o c k writes graphically that 'it is possible to regard the fall o f James II as a t r i u m p h on the plane o f historical t h o u g h t for the c o n c e p t o f the ancient constitution; . . . in the m i c r o c o s m o f the t o w e r records office the R e v o l u t i o n meant the fall o f B r a d y and the substitution o f P e t y t ' ( P o c o c k 1987, p. 229; D i c k i n s o n 1977, pp. 7 7 - 8 3 ) . O n the political plane it signalled the fall o f a theory o f B o d i n i a n s o v e r e i g n t y and the final r e c o g n i t i o n that legislative s o v e r e i g n t y resided in k i n g , lords, and commons. I

T h e shift in political p o w e r meant that B r a d y ' s scholarship w o u l d m a k e its w a y o n l y gradually, but that it w a s far a d v a n c e d b y the m i d - e i g h t e e n t h century appears f r o m D a v i d H u m e ' s History of England (1762). W h e n he w r o t e , the R e v o l u t i o n was secure, and the m o d e r n idea o f progress w a s replacing the doctrine o f an ancient constitution. D r a w i n g o n S p e l m a n , D u g d a l e , and B r a d y , as he turned to a consideration o f the antiquity o f the H o u s e o f C o m m o n s , H u m e explained that n o one d o u b t e d but that the k i n g and his great barons c o m p o s e d early parliaments. The only question seems to be with regard to the commons, or the representatives of counties and boroughs; whether they were also, in more early times, constituent parts of parliament? This question was once disputed in England with great acrimony; but such is the force of time and evidence, that they can sometimes prevail even over faction, and the question seems, by general consent, and even by their own, to be at last determined against the ruling party. It is agreed that the commons were no part of the great council, till some ages after the conquest; and that the military tenants alone of the crown composed that supreme and legislative assembly. (Hume 1762, 1, p. 407; Dickinson 1977, pp. 140-2.) 410

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England, ancient constitution and common law T h e epitaph w a s premature o n l y i f one reads into it that the doctrine o f the ancient constitution w a s c o m p l e t e l y dead. Several generations w o u l d h a v e to pass for that result to be a c h i e v e d . B u t as H u m e ' s c o m m e n t a r y indicates, b y the time that he w a s w r i t i n g , it w a s really all o v e r . A turning point had indeed been reached. 45

45. T h e appeal o f the S a x o n constitution persisted for another t w o centuries, but the c o m m o n law argument seems to have lost ground steadily during the eighteenth century ( B u r r o w 1 9 8 1 , pp. 1 8 - 3 5 , 100-2). For the theme o f the S a x o n constitution consult Smith 1987 passim, but esp. pp. 2 8 - 4 1 , 50-4, 5 7 - 6 3 , 8 0 - 1 0 2 , 1 1 3 - 2 2 , 1 3 7 - 4 0 ; Lee 1982, pp. 1 6 7 - 7 9 . Smith accepts P o c o c k ' s sharp distinction b e t w e e n ' C o k e a n i m m e m o r i a l i s m ' and a S a x o n or G o t h i c constitution, as described in K l i g e r 1952; P o c o c k 1987, pp. 5 6 - 8 . Signs o f the c o m m o n law argument are in Squire 1745; A c h e r l e y 1759; B r e w e r 1 9 7 6 , pp. 2 6 0 - 1 ; Peters 1 9 7 1 ; C o l b o u r n 1965 passim, but esp. pp. 7, 2 1 - 3 9 , and A p p e n d i x 11. Petyt's reasoning was perpetuated in the essay on parliament in Giles (1729). In an eleventh edition b y 1 7 9 7 , it contained still another Jacob, A New Law Dictionary discussion o f the case o f the burgesses o f St Albans.

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14 Leveller democracy and the Puritan Revolution DAVID

i

W O O T T O N

T h e Leveller m o v e m e n t

T h e Levellers w e r e a political m o v e m e n t united around the p r o g r a m m e o f the first A g r e e m e n t o f the P e o p l e (3 N o v e m b e r

1647; W o l f e

1944,

1

pp. 2 2 3 - 3 4 ) . T h a t A g r e e m e n t is the first proposal in history for a w r i t t e n constitution based o n inalienable natural rights. It e m b o d i e d three essential principles. T h e first,

though

a m b i g u o u s l y expressed,

w a s taken

contemporaries to be that any p r o p e r t y qualification for the

by

franchise

should be abolished: e v e n the p o o r should h a v e the right to v o t e . T h e second w a s that the representative assembly should h a v e supreme authority in m a k i n g l a w , a p p o i n t i n g magistrates, and c o n d u c t i n g foreign p o l i c y : the k i n g , i f any, w a s to be accountable to his subjects. T h e third principle w a s that the p o w e r s o f g o v e r n m e n t be limited b y the principles o f natural justice. T h i s meant, first, that all l a w s must a p p l y equally to all subjects: there must be n o p r i v i l e g e d estate or c o r p o r a t i o n . T h i s also i m p l i e d the illegality o f all m o n o p o l i e s . S e c o n d , all subjects had the right to f r e e d o m o f conscience, entitling t h e m to dissent f r o m any established state religion. T h i s also i m p l i e d a right to f r e e d o m o f expression. T h i r d , conscription w a s banned: subjects c o u l d n o t b e c o m p e l l e d to serve in an a r m y i f they disapproved o f the cause for w h i c h it w a s to fight, a l t h o u g h they c o u l d be c o m p e l l e d to pay taxes. Finally, all l a w s 'must be g o o d , and not e v i d e n t l y destructive to the safety and w e l l - b e i n g o f the p e o p l e ' . T h i s implied b o t h the right o f juries to refuse to enforce bad l a w , and an ultimate right o f r e v o l u t i o n : i f the people's representatives b e t r a y e d their trust, the nation as a w h o l e c o u l d assert its ultimate s o v e r e i g n t y .

1. For a fuller discussion o f the Leveller m o v e m e n t , see A y l m e r 1975; and, on C i v i l W a r radicalism in general, D o w 1985.

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It is hard for us, at this distance in time, to grasp h o w r e v o l u t i o n a r y this d o c u m e n t w a s . A l l E u r o p e a n societies o f the time had privileged estates and corporations, all placed limits (often v e r y n a r r o w ones) u p o n religious w o r s h i p and expression, all e x c l u d e d the p o o r f r o m political life, and all but a f e w w e r e ruled b y hereditary monarchs w h o claimed an absolute authority o v e r the lives and estates o f their subjects. T h e Levellers w e r e not m e r e l y seeking to establish in E n g l a n d freedoms that existed elsewhere, in H o l l a n d or in V e n i c e , but to establish for the first time freedoms w h i c h (outside a m y t h i c a l historical past, that o f A n g l o - S a x o n England) never had existed, and w e r e not to c o m e into existence for o v e r three centuries. T h e A g r e e m e n t thus poses in an acute f o r m a c o m m o n historical p r o b l e m : read in w h a t appears to us to be its natural sense it seems a r e m a r k a b l y m o d e r n d o c u m e n t . T h i s m o d e r n i t y must either be explained, or be s h o w n to be illusory. T h e r e is, at first sight, n o t h i n g about the origins or education o f the Leveller leaders themselves w h i c h helps to explain the n o v e l t y o f the A g r e e m e n t ( A y l m e r 1970). T h e i r b a c k g r o u n d s are precisely w h a t one m i g h t e x p e c t for the political leaders o f a m o v e m e n t w h i c h claimed to speak for people w h o had previously had no v o i c e in politics: men w h o m J o h n Lilburne described in 1653 as 'the hobnails, clouted shoes, the private soldiers, the leather and w o o l l e n aprons, and the laborious and industrious people in E n g l a n d ' (£708(22), p. 1 5 ) . T h e Leveller leaders w e r e on the l o w e r fringes o f the social and educational elite, w i t h e n o u g h in c o m m o n w i t h the poorer classes and small businessmen to act as their spokesmen, but at the same time w i t h the social and educational confidence w h i c h w o u l d m a k e t h e m potential leaders. These w e r e m e n w h o had b o t h w o r n leather or w o o l l e n aprons and sat at school desks. Perhaps half o f t h e m could read Latin and h a l f c o u l d not, half w e r e the sons (usually y o u n g e r sons) o f g e n t l e m e n and half w e r e not. In this respect they straddled the major social and educational divides o f the nation. B u t p r o b a b l y all w e r e in some sense L o n d o n e r s and had had s o m e experience o f trade or w a g e d labour. 2

L o n d o n w a s o f g r o w i n g i m p o r t a n c e in the e c o n o m i c and political affairs o f the nation. T h e street demonstrations o f L o n d o n apprentices and small merchants had ensured b o t h the e x e c u t i o n o f Strafford in 1641 and the

2. I cite C i v i l W a r pamphlets w h i c h are in the T h o m a s o n collection and have not been recently reprinted b y the catalogue numbers o f G . K . Fortescue, Catalogue of the Pamphlets, Books, Newspapers and Manuscripts Relating to the Civil War, the Commonwealth and Restoration, collected by George Thomason, 1640-61 (London: British M u s e u m , 1908). These w o r k s do not appear in the bibliography, w h i c h does, h o w e v e r , list m o d e r n collections.

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failure o f C h a r l e s ' attempts to regain control o f L o n d o n thereafter. T h e i r political support had p r o v i d e d a basis for the strategy o f appealing d o w n w a r d s to the people e m b o d i e d in parliament's G r a n d R e m o n s t r a n c e o f N o v e m b e r 1641 and had m a d e it possible for the supporters o f parliament to gain control o f the c o m m o n council in D e c e m b e r 1641. T h e military support o f their trained bands had turned back the k i n g ' s forces at T u r n h a m G r e e n in N o v e m b e r o f 1642. T h e financial support they continued to p r o v i d e t h r o u g h taxation was the precondition for parliament's survival. T h i s w a s the w o r l d , on the fringes o f the political life o f the g e n t r y elite, in w h i c h the Leveller leaders acquired their political skills: Lilburne, for e x a m p l e , had been active in the demonstrations o f 1641 (Pearl 1 9 6 1 ; M a n n i n g 1976; L i n d l e y 1986). In 1641 support f r o m outside parliament m a d e possible the success o f the radicals in the C o m m o n s . In the late 1640s the Levellers must h a v e h o p e d a n e w alliance w i t h m e m b e r s o f the g e n t r y elite w o u l d strengthen their hand. T h e y did receive s o m e support f r o m the republican M P H e n r y M a r t e n , the future regicide M P J o h n Hutchinson, and C o l . T h o m a s R a i n s b o r o u g h , son o f a v i c e - a d m i r a l and M P . H o w e v e r , the crucial n o v e l t y o f the Levellers' strategy, f r o m the m o m e n t they appeared as a political m o v e m e n t in 1646 until their final destruction as a unified force b y C r o m w e l l in 1649, was that they sought to mobilise support around a p r o g r a m m e w h i c h had little to offer the political establishment, and to negotiate w i t h established authorities on a basis o f equality in an attempt to h a v e that p r o g r a m m e accepted. T h e precondition for success was the creation o f an a u t o n o m o u s and i n f o r m e d political culture a m o n g s t their supporters, a culture w h i c h w o u l d stabilise and orientate a mass m o v e m e n t deprived o f establishment leadership. H e n c e the u r g e n c y w i t h w h i c h the Leveller leaders published p a m p h l e t after pamphlet, w r i t i n g in the crisp l a n g u a g e o f e v e r y d a y speech and seeking to tie indissolubly together general principles and specific grievances. O n l y in a society w h e r e Puritanism and c o m m e r c e had e n c o u r a g e d the spread o f literacy a m o n g s t the c o m m o n people c o u l d such a political c a m p a i g n h a v e offered any prospect o f success. O n l y w h e r e censorship o f the press, generally so effective in early m o d e r n E u r o p e , had b r o k e n d o w n could political leaders seek to express the values and interests o f the politically dispossessed. O n l y w h e r e the a n o n y m i t y o f m a r k e t relations had m a d e possible independence o f expression w i t h o u t fear o f e c o n o m i c sanction c o u l d merchants and artisans afford to lay claim to their rights. O n l y w h e r e petitions, street demonstrations, and v o l u n t a r y military 414

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service s h o w e d s o m e prospect o f c h a n g i n g the course o f political events o n l y under conditions o f civil w a r — c o u l d such a strategy seem w o r t h undertaking. Y e t f r o m the b e g i n n i n g the Leveller m o v e m e n t w a s flawed b y three fatal weaknesses. First, m u c h o f its support derived f r o m t w o a g g r i e v e d g r o u p s : the religious sects, w h o w a n t e d toleration; and the rank and file o f the N e w M o d e l A r m y , w h o w a n t e d fair treatment (in particular they w a n t e d their b a c k - p a y and protection against prosecution for offences, such as horse stealing, c o m m i t t e d in time o f w a r ) . T h r o u g h o u t the period o f L e v e l l e r strength the Presbyterian majority in the C o m m o n s w a s hostile to b o t h toleration and the a r m y ; but in 1649 C r o m w e l l w a s able to break the back o f support for the Levellers b y offering limited toleration to the sects and regular pay to the soldiers. S e c o n d , the basis o f the Leveller p r o g r a m m e w a s a l w a y s a call for elections. B u t the practical situation after b o t h the first and second C i v i l W a r s w a s that popular hostility — e v e n in L o n d o n , w h e r e support for the Levellers w a s most extensive — to w a r taxation and centralised g o v e r n m e n t w o u l d h a v e led to the electoral defeat o f the radicals and the cause they stood for. C r o m w e l l , H e n r y Ireton, and the officers o f the N e w M o d e l A r m y w e r e eventually w i l l i n g to accept the Leveller arguments for the use o f force against parliament and for the prosecution o f the k i n g ; but the Levellers had n o effective strategy for consolidating p o w e r and preparing the g r o u n d for elections. T h e y w e r e w i l l i n g to see the t e m p o r a r y exclusion o f k n o w n royalists f r o m the electorate, but not the p o s t p o n e m e n t o f elections themselves and the establishment o f military dictatorship. T h e y thus had n o strategy for handling the transition f r o m r e v o l u t i o n a r y w a r to peaceful settlement. T h i r d , the Levellers k n e w f r o m the b e g i n n i n g that n o matter w h a t support they c o u l d muster a m o n g the rank and file o f the a r m y , the officers distrusted the egalitarianism o f their constitutional proposals. Y e t they never prepared effectively for a trial o f strength w i t h the officers. A t W a r e , in N o v e m b e r 1647, a Leveller-inspired m u t i n y b y t w o regiments w a s easily o v e r a w e d b y Fairfax and C r o m w e l l and one mutineer w a s e x e c u t e d . A t B u r f o r d , in M a y 1649, a second m u t i n y w a s o v e r w h e l m e d , and three mutineers w e r e e x e c u t e d . N e i t h e r uprising w a s adequately prepared; the t i m i n g o f b o t h w a s m o r e c o n v e n i e n t for C r o m w e l l than for the Leveller m o v e m e n t . T h e L e v e l l e r m o v e m e n t n e v e r acquired any independent military strength. T h e s e three weaknesses reflect, as w e shall see, the distaste o f Lilburne and 415

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W i l l i a m W a l w y n for the arts o f political c o m p r o m i s e and the techniques o f military force. In order better to understand the failure o f the Leveller m o v e m e n t w e need to l o o k m o r e closely at their c o n c e p t i o n o f political activity.

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H . N . Brailsford (1873—1958) w r o t e , in his p o s t h u m o u s w o r k , The Levellers and the English Revolution, 'to o u r generation fell the g o o d fortune o f re d i s c o v e r i n g the L e v e l l e r s ' (1961, p. x i ) . T h i s remark points up a n u m b e r o f p r o b l e m s that b e d e v i l the study o f the Levellers. In the first place they had in their o w n day and for subsequent generations n o standing as serious political thinkers. T h e y did n o t w r i t e in Latin, q u o t e authorities, or define their o w n relationship to established traditions o f political t h e o r y . S e c o n d , to claim for t h e m an i m p o r t a n t role in the events o f the C i v i l W a r is to adopt a v i e w o f those events w h i c h is o p e n to dispute, for earlier historians found it easy to o v e r l o o k t h e m . Lastly, i f the Levellers w e r e i m p o r t a n t to Brailsford's generation, that is surely because they seemed to speak in peculiarly m o d e r n accents to the preoccupations o f the day: their message w a s one o f political and social equality, and it is n o accident that they w e r e rediscovered b y the first generation o f historians to see universal suffrage and the c o m i n g to p o w e r o f socialist and c o m m u n i s t parties. W h e n Brailsford w a s b o r n , there w a s not a single self-styled d e m o c r a c y in the w o r l d , or a single socialist g o v e r n m e n t . W h e n he died, t h r o u g h o u t E u r o p e and the English-speaking w o r l d a great part o f the reforms that Eduard Bernstein, w h o m Brailsford singled out as 'the forerunner o f us all' (p. xiii) in Leveller scholarship, and fellow social democrats had c a m p a i g n e d for had c o m e , in the years after the S e c o n d W o r l d W a r , to be a p p r o v e d b y politicians o f b o t h left and right. T h e rediscovery o f the Levellers coincided w i t h the t r i u m p h o f d e m o c r a c y , and the welfare state. T h e last decade has seen a decline in the historiographical fortune o f the Levellers. A v i e w o f the C i v i l W a r as the first - i f least t h o r o u g h g o i n g - o f the revolutions o f the m o d e r n w o r l d has been rejected as anachronistic, and the C i v i l W a r , it is n o w argued, is better understood as a conservative rebellion o f the p r o v i n c e s against the innovations o f central g o v e r n m e n t , or as the last o f E u r o p e ' s religious wars ( M o r r i l l 1976, 1984). In such a c o n t e x t the Levellers appear once m o r e as marginal figures: based in L o n d o n , but resolutely opposed to political centralisation; sectarian in their origins, but o u t s p o k e n advocates o f toleration in a w o r l d o f confessional 416

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strife. D o they deserve a central place in the history o f political theory? T h i s question, w h i c h n o one w o u l d h a v e paused to ask before Brailsford's birth, and w h i c h he and his contemporaries felt confident they c o u l d answer, has b e c o m e inescapable w i t h i n a f e w decades o f his death. In a n s w e r i n g it, it is i m p o r t a n t to r e m e m b e r that anachronism, w h i c h is often treated as b e i n g m e r e l y the danger o f m a k i n g the past seem m o d e r n , is in fact b o t h the Scylla and the C h a r y b d i s o f the historian's v o y a g e . O n the one hand there is p r o c h r o n i s m , w h i c h invents changes before they really happened; on the other there is parachronism, w h i c h blindly insists that current events h a v e yet to occur. If Brailsford's generation struck the r o c k o f p r o c h r o n i s m , the most recent generation has tended to overstress our distance f r o m the past and underestimate the rapidity o f change, for fear o f reading the present into the past. In order to steer a course b e t w e e n these t w o dangers w e must b e g i n b y l o o k i n g at the Levellers t h r o u g h the eyes o f contemporaries. T h o m a s E d w a r d s w a s a leading Presbyterian minister w h o m a y c o n v e n i e n t l y personify the values that generations other than Brailsford's h a v e taken to be at the heart o f the parliamentarianism o f the English C i v i l W a r . D u r i n g 1646 he published, under the running title o f Gangraena, three attacks o n 'the errors, heresies, blasphemies, and pernicious practices o f the sectaries o f this t i m e ' (1977, title-page, pt 1). His purpose w a s to u p h o l d Calvinist t h e o l o g i c a l o r t h o d o x y and social and constitutional conservatism against the radicals w h o w e r e seeking to take advantage o f the political and religious divisions w i t h i n the g e n t r y establishment. W h e n the first part o f Gangraena appeared the N e w M o d e l A r m y w a s already assured o f military v i c t o r y o v e r the k i n g . B y m i d - y e a r the k i n g had surrendered and, at the end o f the year, w h e n the final part appeared, peace w i t h the k i n g , o n the terms o f the N e w c a s t l e Propositions, seemed near. A conservative, Presbyterian majority in parliament appeared to be o n the v e r g e o f b r i n g i n g the w a r to a conclusion fairly close to that w h i c h P y m had envisaged w h e n w a r b e g a n in 1642: the national church reformed, the p o w e r s o f the m o n a r c h p e r m a n e n t l y restricted. T h r e e years later, h o w e v e r , the k i n g w a s to be e x e c u t e d and a republic declared, w h i l e the c h u r c h remained d i v i d e d , so d i v i d e d that religious toleration w a s one o f the f e w l o n g - t e r m consequences o f the I n t e r r e g n u m . T h e w i n t e r o f 1646 and the spring o f 1647 saw the Great R e b e l l i o n , the attempt to defend the constitutional reforms o f 1641 w h i l e grafting on to t h e m religious reforms unacceptable to the k i n g , slide into r e v o l u t i o n . E v e n as the fighting w a s taking place the parliamentary side had fallen into 417

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disagreement o v e r the nature o f the church reform it w a n t e d , and o v e r the extent to w h i c h toleration should be a l l o w e d to those unable to accept a national church settlement. M i l i t a r y v i c t o r y b r o u g h t h o m e the unpleasant truth that the o u t c o m e o f the religious conflict depended on the terms o f the constitutional settlement. Constitutional conservatism meant P r e s b y terian v i c t o r y ; o n l y constitutional radicalism c o u l d save the Independents and the sects. A s a result the g a n g r e n e that E d w a r d s had set out to attack n o t o n l y t o o k hold, but for the first time directly threatened the survival o f the traditional b o d y politic. If the L o n g Parliament had at first stood united against the k i n g o v e r constitutional questions, and had then d i v i d e d o v e r questions o f religion, constitutional questions w e r e n o w once m o r e to the fore; but this time the threat to parliament's survival c a m e not f r o m the k i n g , but f r o m the populace and the a r m y , and parliament found itself not united but divided. Gangraena, mirrors this transition f r o m constitutional consensus to political r e v o l u t i o n . T h e g a n g r e n e o f the first t w o parts is the g a n g r e n e o f heresy, w h i c h E d w a r d s wishes to see rooted out. T h e sectaries, w h o plead for toleration and w h o g o so far as to attack the v e r y n o t i o n o f a state church, are his enemies, a m o n g s t their n u m b e r m e n such as Lilburne, W a l w y n and R i c h a r d O v e r t o n . B u t b y the time the third part appeared in D e c e m b e r E d w a r d s w a s a w a r e o f a n e w e n e m y : religious divisions a m o n g s t the parliamentarians w e r e n o w b e g i n n i n g (for the first time) to seem less i m p o r t a n t than fundamental disagreements o v e r the constitution o f the k i n g d o m . H e a n n o u n c e d his n e w preoccupations as f o l l o w s : The reader shall find in this book the sectaries' design and practise not to be only corrupting religion . . . but to be against magistracy and civil government . . . opposing settled government, and bringing an anarchy and confusion into church and state . . . they have in terrninis, in divers pamphlets and some sermons, declared against monachy and aristocracy, and for democracy: they have expressed themselves in such a manner concerning that that they make it no other than an anarchy, making all alike, confounding o f all ranks and orders, reducing all to Adam's time and condition and devolving all power upon the state universal and promiscuous multitude, w h o m they make the creator and destroyer of kings, parliaments and all magistrates at their mere pleasure, without tying them to any rule, or bounding them by any laws. (Preface, pt m) E d w a r d s m i g h t j u s t l y claim, o n the strength o f these w o r d s , to h a v e been the first discoverer o f the Levellers. T h e p r i m e targets in part in o f Gangraena w e r e the m e n w h o w e r e later to be recognised as the leaders o f the Leveller party; his main c o m p l a i n t against t h e m w a s that in the past six m o n t h s they had adopted a radical political egalitarianism w h i c h s h o w e d 418

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n o respect for the constitution. W h e r e his earlier attacks had m e t w i t h n o less than five indignant rebuttals and satirical denials f r o m W a l w y n , the future Leveller, alone, part in w a s m e t almost w i t h silence. E v e n Lilburne, w h o c o u l d n e v e r resist an a r g u m e n t , w a s b o u n d to admit that E d w a r d s ' account o f his v i e w s w a s largely correct: his defence w a s m e r e l y that such radicalism w a s a reasonable deduction f r o m the parliament's principles (£373(1); cf. Sharp 1988). T h e A g r e e m e n t o f the P e o p l e , o f 3 N o v e m b e r 1647, must h a v e seemed the clearest possible confirmation o f E d w a r d s ' charges, and it w a s during that m o n t h that the t e r m ' L e v e l l e r ' c a m e into use to identify the position he had described (Brailsford 1 9 6 1 , p . 309). Political theories are inseparable f r o m the v o c a b u l a r y w i t h w h i c h they are expressed. For E d w a r d s the v i e w s o f the Levellers implied a rejection o f all established l a w , and a return to a lawless equality w h i c h c o u l d have existed o n l y before sin entered Eden. H e claimed their v i e w s w e r e in conflict w i t h the constitution (the need to preserve w h i c h they denied) and w i t h biblical revelation (the v e r y necessity for w h i c h they seemed to question b y i n v o k i n g a prelapsarian innocence and equality). B u t he had n o positive l a n g u a g e w i t h w h i c h to describe t h e m . Significantly, he c o u l d n o t call t h e m 'revolutionaries' or ( w i t h o u t periphrasis) 'democrats': he c o u l d not b e g i n to think o f t h e m in the terms that c a m e naturally to Brailsford's generation. N o r , for that matter, c o u l d they think o f themselves in those terms. Here lies a central p r o b l e m for the study o f the Levellers. ' R e v o l u t i o n ary' and ' d e m o c r a t ' are terms w h i c h i m p l y a measure o f self-consciousness: y o u cannot be one, any m o r e than y o u can be a ballet dancer or a darts player, i f y o u d o not k n o w that that is w h a t y o u are. A n d yet E d w a r d s ' description reads transparently to us as a description o f revolutionaries and democrats. M u c h o f the history o f ideas consists in rendering clear w h a t is at first obscure. In cases such as this, h o w e v e r — and this is w h e r e our assessment o f the Levellers has to differ f r o m that o f Brailsford's generation — it is necessary first to render w h a t seems simple, c o m p l e x ; w h a t seems transparent, o p a q u e . Let us take first the t e r m ' r e v o l u t i o n a r y ' , w h i c h I h a v e already applied to the Levellers several times. M o s t m e n in the seventeenth century believed that l e g i t i m a c y w a s a p r o d u c t o f precedent, o f tradition, o f history, and t o o k it for granted that the decisions o f their ancestors must p r o p e r l y determine their o w n actions. In all the E u r o p e a n rebellions o f the m i d seventeenth century the rebels claimed to be defending traditional liberties against i n n o v a t i n g monarchies. H o w w a s it possible to shake oneself free o f 419

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this incubus o f tradition and c o n c e i v e o f a r e v o l u t i o n , especially since the v e r y concept o f r e v o l u t i o n w a s unavailable? T h e t e r m ' r e v o l u t i o n ' o n l y c a m e to h a v e its m o d e r n m e a n i n g o f a seizure o f p o w e r b y the people as a consequence o f the French R e v o l u t i o n (for a range o f v i e w s : S n o w 1962; Elliott 1969; Z a g o r i n 1969, pp. 1—18; Straka 1 9 7 1 ; Stone 1972, p p . 50—54; Hill 1986). Seventeenth-century authors use the t e r m ' r e v o l u t i o n ' as a m e t a p h o r derived f r o m a s t r o n o m y ( C o p e r n i c u s had written De Revolutionibus) to mean a major shift in the location o f p o w e r , a turn in the w h e e l o f fortune, and hence as often a restoration as a ' r e v o l u t i o n ' in our sense o f the w o r d . L o c k e w r o t e o f ' t h e m a n y revolutions w h i c h h a v e been seen in this k i n g d o m , in this and f o r m e r ages' ( L o c k e 1967, p. 432). T h e m o d e r n c o n c e p t i o n o f r e v o l u t i o n , since 1789, has, h o w e v e r , often been h i g h l y specific: r e v o l u t i o n has been taken to i n v o l v e a transfer o f p o w e r f r o m an oppressive m i n o r i t y to an oppressed majority, and a consequent c h a n g e in the policies, the personnel, and the structure o f g o v e r n m e n t . T h e r e w a s n o single seventeenth-century w o r d for an event o f this sort. O f course one can find in authors such as James H a r r i n g t o n and L o c k e descriptions o f political revolutions e v e n in the m o d e r n sense. B u t it c o u l d be argued that this is o n l y because they had the events o f the C i v i l W a r to l o o k back to. W h e n they l o o k e d back to the r e v o l u t i o n o f 1649 they w e r e l o o k i n g back, h o w e v e r , to a r e v o l u t i o n that had been carried out b y a H o u s e o f C o m m o n s seeking to restore the ancient constitution and defend w h a t it t o o k to be its ancient rights and privileges, a r e v o l u t i o n in w h i c h the e x e c u t i o n o f the k i n g was o n l y an unintended consequence, and w h i c h w a s , therefore, p r o p e r l y speaking, no r e v o l u t i o n at all. In fact there is e v i d e n c e that in the early stages o f the C i v i l W a r s o m e people w e r e w i l l i n g to put aside the l a n g u a g e o f a conservative defence o f historical rights and adopt a l a n g u a g e that a m o u n t e d to a call for r e v o l u t i o n : in this respect the English C i v i l W a r differed in its inception from other seventeenth-century rebellions (Allen 1938; Sirluck, in M i l t o n 1 9 5 3 - 8 2 , 11; M a n n i n g 1978; W o o t t o n 1990). A n d , indeed, it w a s partly because o f pressure f r o m such people (for w h o m r e v o l u t i o n w a s an intended rather than an unintended consequence o f revolt), and f r o m the Levellers in particular, that the same k i n g w h o s e person parliament had declared to be sacrosanct and w h o s e authority it had s w o r n to u p h o l d in the S o l e m n L e a g u e and C o v e n a n t w a s put on trial and c o n d e m n e d as a tyrant. T h e c o n d e m n a t i o n o f the k i n g w a s a c c o m p a n i e d b y the c o n d e m n a t i o n o f m o n a r c h y , the abolition o f the H o u s e o f Lords, and the declaration o f a Commonwealth. ' R e v o l u t i o n ' , p r o p e r l y so called, needs an i d e o l o g y o f i n n o v a t i o n and 420 Cambridge Histories Online © Cambridge University Press, 2008

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n o t m e r e l y restoration. T h e H o u s e o f C o m m o n s had one to hand in republicanism. A d m i r a l B l a k e spoke o n behalf o f his g o v e r n m e n t w h e n , in Spain in 1 6 5 1 , he said that ' m o n a r c h y is a kind o f g o v e r n m e n t the w o r l d is w e a r y o f ' and predicted that w i t h i n ten years it w o u l d diasppear f r o m France and Spain ( M e r r i m a n 1938, p. 95; cf. also H u g h Peters, quoted in Brailsford 1 9 6 1 , p . 672). W h a t w a s in prospect w a s a n e w e p o c h in w o r l d history. T h e r e appears to be n o t h i n g hopelessly anachronistic, then, about the identification o f r e v o l u t i o n a r y political theories in m i d - s e v e n t e e n t h century E n g l a n d . It w o u l d be w r o n g , h o w e v e r , to put t o o m u c h stress u p o n republicanism as a r e v o l u t i o n a r y i d e o l o g y in the 1640s. Existing republics, such as V e n i c e , w e r e generally intensely conservative and h i g h l y oligarchic political systems. T h i s m a d e t h e m attractive m o d e l s for politicians seeking an alternative to m o n a r c h y , but meant that republicanism w a s largely irrelevant to the preoccupations o f the Levellers. Indeed, w h e n they realised that C r o m w e l l w a s n o t g o i n g to adopt the A g r e e m e n t o f the P e o p l e they w e r e prepared to enter into negotiations w i t h the Stuart court in exile w i t h a v i e w to a restoration o f the m o n a r c h y on acceptable terms. B o t h republicans and Levellers, h o w e v e r , w e r e prepared to advocate constitutional r e v o l u t i o n , despite the fact that the ties that b o u n d m e n to the n o t i o n o f an 'ancient constitution' had been strong: it was o n l y because s o m e t h i n g had acted to dissolve those ties that r e v o l u t i o n c o u l d legitimise itself. R e l i g i o n w a s a m u c h m o r e important issue than the question o f w h e t h e r E n g l a n d should h a v e a k i n g , m o r e important perhaps e v e n than the idea that n o ruler should be absolute, and it w a s religion w h i c h played the crucial role in u n d e r m i n i n g men's faith in the ancient constitution. T h e similarities b e t w e e n Laud's beauty o f holiness and C a t h o l i c ceremonial, c o m b i n e d w i t h the suspicion that the Irish rebels had acted w i t h r o y a l c o n n i v a n c e , c o n v i n c e d m a n y in 1641 that the m o n a r c h y was acting in the C a t h o l i c interest ( L a m o n t 1979, pp.76—123). F r o m 1639 Lilburne had been a m o n g s t those f e w sectarians a r g u i n g that the church o f E n g l a n d w a s part o f the Beast, one o f the limbs o f Antichrist. It w a s a small step f r o m this v i e w to the conclusion that the k i n g w a s an agent o f Antichrist, and that the struggle against r o y a l absolutism f o r m e d part o f an eschatological drama. In the early m o n t h s o f the C i v i l W a r the traditional v i e w that the end o f the w o r l d was not far off was supplemented b y a v i e w that had p r e v i o u s l y had o n l y limited support: that the struggle b e t w e e n the forces o f Christ and Antichrist during these last days w o u l d be decisively w o n b y the Christian forces, a v i c t o r y w h i c h w o u l d inaugurate the rule for a thousand years u p o n the earth o f either Christ himself, or his saints. 421 Cambridge Histories Online © Cambridge University Press, 2008

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Parliament w a s thus able, w h i l e seeking to insist on the supposedly conservative character o f its constitutional proposals, to find in m i l l e n arianism a r e v o l u t i o n a r y doctrine tailor-made for its purposes. M i l l e n arianism n o t o n l y implied a decisive conflict w h i c h must lead to the ultimate v i c t o r y o f one side or the other, it also dispensed w i t h the need to appeal to past precedents, replacing t h e m b y biblical prophecies. T h e p r o t o t y p e o f a parliamentary sermon in support o f w a r w i t h the k i n g w a s p r o v i d e d b y Stephen Marshall's Meroz Cursed o f 23 February 1642 ( T r e v o r - R o p e r 1967, pp. 294—344). Here the attack u p o n those w h o d o the w o r k o f the L o r d n e g l i g e n t l y , those w h o w i t h h o l d their hands from shedding o f b l o o d , is justified b y appeal to the apocalyptic c o n t e x t w i t h i n w h i c h the c o m i n g w a r is to be seen: the w o r k is to ' r e v e n g e G o d ' s church against B a b y l o n ' , w h i l e supporters o f the m o n a r c h y had 'entered their names into the dragon's muster b o o k ' (Christianson 1978, pp.227—8). T h e approach o f the last days meant that politics need n o l o n g e r be c o n c e i v e d in terms o f cyclical repetition but c o u l d be t h o u g h t o f in terms o f i n n o v a t i o n . In 1644 G e o r g e Gillespie explained to the C o m m o n s that ' I f w e . . . consider the great r e v o l u t i o n and turning d f things upside d o w n in these our days, certainly the w o r k is u p o n the w h e e l : the L o r d has . . . prepared the instruments o f death against Antichrist' (Hill 1 9 7 1 , pp. 86—7). T h u s e s c h a t o l o g y c o u l d facilitate the transition f r o m the idea o f a turning w h e e l o f fortune to the idea o f an irreversible historical change, and c o u l d be used to justify belief in the inauguration o f a n e w era o f unparalleled prosperity, a Utopia w h o s e practicality w a s guaranteed b y the prophecies o f Daniel and the B o o k o f R e v e l a t i o n (Webster 1975). It m i g h t be t h o u g h t that this vision o f the C i v i l W a r as one o f the final acts in the great conflict b e t w e e n Christ and Antichrist can have been shared o n l y b y a f e w eccentrics and bigots. B u t it m a y in fact help us to u n p i c k the tangled skein o f ' t h e Puritan r e v o l u t i o n ' : a term invented b y S a m u e l R a w s o n Gardiner a century a g o . R e c e n t l y it has been claimed that not o n l y is the w o r d ' r e v o l u t i o n ' anachronistic, but the w o r d 'Puritan' has n o clearly defined m e a n i n g w h e n used either b y contemporaries or b y historians (Finlayson 1983). Nevertheless, contemporaries did e m p l o y religious terms - terms w h i c h m i g h t m o r e p r o p e r l y be described as chiliastic than Puritan - to justify supporting radical parliamentarianism rather than conservative royalism. T h e main impetus to r e v o l u t i o n thus c a m e not f r o m any secular theory o f r e v o l u t i o n a r y change but f r o m a radical d e v e l o p m e n t o f Protestant e s c h a t o l o g y . It w a s religion w h i c h m a d e the C i v i l W a r possible and w a s the 422

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p r i m a r y factor leading to the deposition o f the k i n g . For some, religion c a m e to be supplemented b y a genuine constitutional radicalism; whilst m a n y others, w h o had espoused millenarian l a n g u a g e in 1642, c a m e — as did E d w a r d s — to see the sectaries as a greater threat than the k i n g to the establishment o f a g o d l y society. T h u s millenarian l a n g u a g e ceased to serve as a guarantor o f unity once the k i n g had been defeated. If a f e w , like H u g h Peter, w h o b e g a n his sermon at the o p e n i n g o f the k i n g ' s trial b y recalling S i m e o n , w h o s e expectation that he w o u l d live to see the c o m i n g o f Christ had been fulfilled, and w h o preached after the k i n g w a s c o n d e m n e d f r o m Isaiah's denunciation o f the k i n g o f B a b y l o n , continued to use it, others, like Lilburne himself, had abandoned it entirely. H o w far did the Levellers succeed in putting f o r w a r d a r g u m e n t s for r e v o l u t i o n a r y change w h i c h c o u l d replace the millenarianism o f the early stages o f the C i v i l W a r ? T h i s question helps to e x p o s e the relative disadvantage o f the Levellers in c o m p a r i s o n w i t h b o t h millenarians and m o d e r n revolutionaries. Millenarians and revolutionaries think in party terms: the g o d l y and the u n g o d l y , the Plain and the M o u n t a i n , the reactionary and the progressive. T h e Levellers, h o w e v e r , systematically o p p o s e d any division o f the political w o r l d b e t w e e n g o d l y and u n g o d l y : they opposed, partly for religious reasons, the v e r y frame o f m i n d w h i c h had m a d e C i v i l W a r possible. T h e y w e r e w i l l i n g to identify 'malignants' — those w h o had supported the k i n g — and d e n y t h e m full civil rights for a limited period, and they w e r e w i l l i n g to propose concrete policies that a g o v e r n m e n t should adopt. B u t they presumed that, once the justice o f their constitutional proposals w a s recognised, there w o u l d be n o need for c o n t i n u i n g party-political activity. For t h e m 'party' w a s a t e r m o f abuse. In The Second Part of England's New Chains Discovered (1649) they attacked ' m e r e politicians . . . g o v e r n e d altogether b y occasion, and as they saw a possibility o f m a k i n g progress to their designs' (Haller and D a v i e s 1944, p p . 175—6). T h e y c o u l d easily (as they c a m e to lament) be c h a r m e d b y those w h o called u p o n t h e m 'to lay b y all discontents, to forget and f o r g i v e , and to unite all against the c o m m o n e n e m y ' , p r o m i s i n g not to 'discountenance honest m e n . . . n o r e n d e a v o u r to set up a p a r t y ' (pp. 180—1). T h e y saw themselves as representing the antithesis o f a party: 'an u n a n i m o u s and universal resolution in all w e l l - m i n d e d p e o p l e ' (p. 182). O n e o f the central planks o f their p r o g r a m m e w a s a strict separation b e t w e e n the legislative, the e x e c u t i v e (including the a r m y ) , and the l a w courts, 'to the end all officers o f state m a y be certainly accountable, and n o factions m a d e to maintain corrupt interests' ( W o l f e 1944, p p . 299, 403), T h e y n e v e r 423

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envisaged presenting themselves as a faction for election, or claimed to be the appropriate officers in a n e w g o v e r n m e n t . T h e y n e v e r saw themselves as seeking to concentrate p o w e r in their o w n hands. U n d e r l y i n g the L e v e l l e r attitude to political activity w a s the belief that g o v e r n m e n t existed to further an identifiable c o m m o n interest, and that honest m e n should h a v e n o difficulty in agreeing o n the nature o f that interest or the best means to attain it. It should therefore be possible to take decisions b y consensus. In this respect their assumptions w e r e those o f their day: parliament s o u g h t to proceed b y consensus and a v o i d divisions determined b y votes, just as the Levellers and officers did at P u t n e y (Kishlansky 1981). C r o m w e l l himself, it has been argued, w a s unable to establish a stable f o r m o f g o v e r n m e n t s i m p l y because he failed to establish w i t h i n parliament a l o y a l party o f supporters, c o m m i t t e d to united action ( T r e v o r - R o p e r 1967, p p . 3 4 5 - 9 1 ) . T h e i r failure to break w i t h these assumptions, h o w e v e r , greatly handicapped t h e m in their efforts to bring about a r e v o l u t i o n . N o r w e r e they ever w i l l i n g to sacrifice w h a t they saw as fundamental principles in the pursuit o f p o w e r : they e v e n o p p o s e d the e x e c u t i o n o f the k i n g o n the g r o u n d s that he had been tried, n o t b y a j u r y a c c o r d i n g to a k n o w n l a w , but b y a p r e r o g a t i v e court. Millenarians w e r e better placed to maintain that there w e r e n o c o m m o n interests or c o m m o n standards applicable to all citizens, and those w h o practised 'a w a i t i n g u p o n p r o v i d e n c e ' w e r e , as the Levellers protested, able to c h a n g e their policies and principles w i t h the times (Haller and D a v i e s 1944, p. 176). In short, millenarians or revolutionaries w o u l d h a v e been better than the Levellers at thinking about the seizure and exercise o f p o w e r . It w o u l d be w r o n g to c o n c l u d e that because the Levellers did n o t see themselves as a political party they did not exist as a political m o v e m e n t (Brailsford 1 9 6 1 , p p . 309—18; C a r l i n 1984): they had a c o m m o n p r o g r a m m e , and raised funds b y subscription f r o m their supporters. B u t they constituted w h a t m i g h t be termed a 'petitioner party' rather than a prospective party o f g o v e r n m e n t . T h e w h o l e history o f the m o v e m e n t w a s written in the court cases o f its leader, Lilburne, as he b e g g e d for justice in the face o f his accusers: first L a u d and the star c h a m b e r , then the k i n g at O x f o r d w h e n he w a s captured d u r i n g the C i v i l W a r , then the Lords and the C o m m o n s , and finally the C o m m o n w e a l t h and the Protectorate. A n d the organisation o f the m o v e m e n t centred around the drafting and circulation o f petitions: an effective m e t h o d o f mobilisation, but one w h i c h seemed to a c k n o w l e d g e that p o w e r p r o p e r l y lay in others' hands. T h e Levellers relied u p o n persuasion to o v e r c o m e 'error o f breeding, 424 Cambridge Histories Online © Cambridge University Press, 2008

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l o n g c u s t o m and s w a y o f times' and 'erroneous zeal' (Haller and D a v i e s 1944, p. 187). W h e n persuasion failed and they sought — at W a r e and at B u r f o r d — to organise a r m y mutinies, they p r o v e d predictably unorganised and ill-prepared. T o see the A g r e e m e n t o f the P e o p l e as e m b o d y i n g r e v o l u t i o n a r y proposals is perfectly correct; and it is scarcely anachronistic to see the Levellers as t r y i n g to carry out a r e v o l u t i o n . In d o i n g so, h o w e v e r , they failed to act as a r e v o l u t i o n a r y party: the concept m a y be an anachronistic one, but there is n o t h i n g anachronistic about the idea o f ruthlessly pursuing i d e o l o g i c a l ends t h r o u g h strict discipline and u n p r i n cipled o p p o r t u n i s m . T h e Jesuits, after all, w e r e constantly portrayed in such terms, as w a s C r o m w e l l . T h e Levellers k n e w w h a t they w e r e d o i n g w h e n , rightly or w r o n g l y , they preferred failure to certain sorts o f success. T h e i r defeat, h o w e v e r , w a s b o u n d to lead to a reassessment o f a strategy w h i c h invited failure. T h e interest in classical republicanism s h o w n b y Sir J o h n W i l d m a n and E d w a r d S e x b y in later years implies not a blind willingness to attach themselves to the radical m o v e m e n t o f the m o m e n t , w h a t e v e r it m i g h t be, so m u c h as an implicit criticism o f the helpless inactivity o f the L e v e l l e r m o v e m e n t w h e n C r o m w e l l and Ireton deprived t h e m o f the initiative in the a u t u m n o f 1647, and again a year later. R e p u b l i c a n i s m m i g h t be socially less radical, but it stressed the n o t i o n o f effective political and military action. B e t w e e n W a l w y n ' s The Power of Love of 1641 (Haller 1934,11, p p . 2 7 1 - 3 0 4 ) and S e x b y ' s Killing No Murder of 1657 ( W o o t t o n 1986, p p . 360—88) lay the failure o f the L e v e l l e r m o v e m e n t and the belated d e v e l o p m e n t o f a p r e o c c u p a t i o n w i t h political realism. Levellers like W i l d m a n and S e x b y turned in the end to a M a c h i a v e l l i a n politics o f conspiracy and v i o l e n c e . E v e n Lilburne in exile read M a c h i a v e l l i in order to understand w h a t had g o n e w r o n g . T h e r e w a s , h o w e v e r , an alternative to this n e w p r e o c c u p a t i o n w i t h p o w e r . B e t w e e n the spring o f 1649 and the spring o f 1650, the selfp r o c l a i m e d T r u e Levellers, under the leadership o f Gerrard W i n s t a n l e y , sought b y cultivating waste land o n c o m m u n i s t principles to found a n e w society in the interstices o f the old (Hill 1972; A y l m e r 1984). T h e i r strategy w a s pacific and principled: b y gathering support they h o p e d s l o w l y to deprive the propertied e c o n o m y o f its labour force. Far f r o m c l a i m i n g w i t h the Levellers that political liberty w a s consistent w i t h respect for private property, and that all that w a s required to eliminate injurious social inequality w a s to abolish m o n o p o l i e s and institute responsible g o v e r n ment, the D i g g e r s , or T r u e Levellers, s o u g h t indeed to c o n f o u n d all ranks and orders and to reduce all to A d a m ' s time and condition. T h e y w e r e E d w a r d s ' vision o f disorder m a d e flesh. 425 Cambridge Histories Online © Cambridge University Press, 2008

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It w a s not o n l y their rejection o f private p r o p e r t y w h i c h separated the T r u e Levellers from their defeated predecessors. W i n s t a n l e y had c o m e to the v i e w that G o d w a s n o t h i n g but the principle o f reason, Christ n o t h i n g but the principle o f universal l o v e , that there w a s n o life after death, and that heaven and hell w e r e to be found o n l y in this w o r l d . H e saw m e n as the agents o f their o w n r e d e m p t i o n . B u t , far f r o m a b a n d o n i n g c o n v e n t i o n a l Christian l a n g u a g e a l o n g w i t h c o n v e n t i o n a l Christian beliefs, he set out to m a k e systematic use o f millenarian i m a g e r y to express the nature o f the r e v o l u t i o n a r y change he aspired to bring about. Setting aside the largely secular l a n g u a g e o f the Levellers, he sought to reshape religious images o f irreversible change for his o w n purposes, maintaining that B a b y l o n w a s soon to be b r o u g h t d o w n , and Eden to be restored. iii T h e Levellers and the constitution T h e Leveller c o n c e p t i o n o f political activity w a s based u p o n their confidence in the independent j u d g e m e n t o f the c o m m o n m a n . Y e t the Levellers n e v e r called themselves democrats. W h a t w a s straightforwardly o b v i o u s to E d w a r d s w a s that they w e r e opposed to m o n a r c h y and aristocracy. T h e question o f opposition to m o n a r c h y m a y be d i v i d e d into t w o subsidiary questions. In the first place there w a s the question o f the attitude to be adopted to Charles I. Parliament in 1642 had insisted that the k i n g ' s person w a s inviolable. E v i l councillors c o u l d be b r o u g h t to account, but the k i n g ' s o w n evil actions w e r e to be attributed to such councillors for 'the k i n g c o u l d d o n o w r o n g ' . T h e future Levellers w e r e in the forefront o f those contesting this v i e w . In w o r k s such as the Arguments proving we ought not to part with the militia (669 f 10(60)) and Lilburne's The Just Man's Justification (both o f June 1646) they called for the k i n g to be subjected to e x e m p l a r y punishment: a v i e w w h i c h stood in direct opposition to the official p o l i c y o f negotiation w i t h the k i n g and w a s o n l y to w i n m o r e general support w i t h the outbreak o f the second C i v i l W a r , responsibility for w h i c h the Levellers insisted must be laid at his d o o r . B u t to punish — inevitably to execute - the k i n g w a s not necessarily to abolish m o n a r c h y . R e p u b l i c a n i s m was a d v o c a t e d as early as M a r c h o f 1646 in The Last Warning to all the Inhabitants of London (£328(24)), f o l l o w e d b y The Remonstrance of Many Thousand Citizens ( W o l f e 1944, p p . 109—30) o f July, and Regall Tyrannie Discovered (£370(12)) o f January 1647, all p r o b a b l y the w o r k o f O v e r t o n , w h o held that one o f the chief lessons to be d r a w n f r o m history w a s that ' n o n e but a k i n g c o u l d d o so great intolerable mischiefs' ( W o l f e 1944, p. 1 1 5 ) as Charles and his predecessors had s o u g h t 426

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to d o , and that the m y s t i q u e o f kingship had p l a y e d a dangerous role in persuading m e n all t o o often to fight against their o w n liberties. O p p o s i t i o n to m o n a r c h y had been a c c o m p a n i e d b y attacks o n the m e m b e r s o f the H o u s e o f Lords as the mere creatures o f r o y a l favour, in contrast to the C o m m o n s , the representatives o f the people. In June o f 1646 Lilburne w a s imprisoned b y the L o r d s for. refusing to recognise their jurisdiction o v e r a c o m m o n e r (he had been attacking the earl o f Manchester, f o r m e r c o m m a n d e r o f a parliamentary a r m y ) . In July O v e r t o n t o o w a s imprisoned for publishing An alarum to the house of lords against their insolent usurpation of the Common Liberties (£346(8)). Lilburne had insisted that M a g n a Carta's guarantee o f trial b y one's peers meant that c o m m o n e r s must be tried b y c o m m o n e r s . B u t at the same time he attacked the v e r y authority to w h i c h he appealed. T h e k e y statute laws w h i c h laid out the p o w e r s o f k i n g and parliament, such as M a g n a C a r t a and the Petition o f R i g h t , did not, Lilburne c o m p l a i n e d in The Just Man's Justification, g o far e n o u g h to 'preserve the splendor and g l o r y o f that u n d i v i d e d Majesty and K i n g s h i p that inherently resides in the people, or the state universal, the representation or derivation o f w h i c h is f o r m a l l y and legally in the state elective or representative and n o n e else' (£340(12), p. 14). T h e attack u p o n k i n g and Lords thus led to a direct statement o f the ultimate s u p r e m a c y o f the people and the legal s o v e r e i g n t y o f the C o m m o n s . O v e r t o n t o o insisted that in the eyes o f G o d all m e n w e r e equal, and true Christians should treat each other as equals. A m o n g s t the first Christians there w o u l d h a v e been n o scope for titles such as 'gracious lords' or 'favourable lords', for they recognised 'no ruler, n o r g o v e r n m e n t , but b y c o m m o n election and consent', in other w o r d s g o v e r n m e n t b y the equivalent o f the H o u s e o f C o m m o n s (£346(8), p. 1). A l o n g s i d e their attack o n the k i n g , the lords, and statute l a w , Lilburne and O v e r t o n m o u n t e d an attack o n the w h o l e English legal system as the creation o f W i l l i a m the C o n q u e r o r , w h o had s w e p t a w a y the laws o f the Saxons and created the c o m m o n l a w (Hill 1958; for a differing v i e w : Seaberg 1981). W h e r e once m e n had been tried p r o m p t l y in English in the h u n d r e d courts, n o w they often had to attend distant courts, to await the passage o f the l a w terms, to struggle w i t h Latin and L a w French, and to deal w i t h an u n w r i t t e n l a w , a j u d g e - m a d e l a w based supposedly o n precedent. W i t h such a l a w it w a s impossible to k n o w exactly w h a t the l a w was, and the resulting confusion benefited o n l y l a w y e r s , a profession u n k n o w n before the conquest, and the k i n g . ' T h e mainstream o f our C o m m o n L a w , w i t h the practice thereof, flowed out o f N o r m a n d y , 427

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n o t w i t h s t a n d i n g all objections can be m a d e to the contrary, and therefore I say it c a m e from the w i l l o f a tyrant' (£340(12), p. 13). T h e l a w must be reformed to e m b o d y central principles o f equity and divine l a w , such as the right not to be required to incriminate oneself b y b e i n g o b l i g e d to answer questions under oath, for self-incrimination w a s n o better than selfe x e c u t i o n , a legal suicide. Despite appeals to A n g l o - S a x o n practices it w a s impossible to reconcile this v i e w o f the constitution w i t h historical precedent, and easy to s h o w that the position adopted b y Lilburne and O v e r t o n w a s seditious. O v e r t o n ' s reply w a s to d e n y that the existing constitution deserved to be respected, 'for w h a t e v e r our forefathers w e r e , or w h a t e v e r they did or suffered, or w e r e enforced to yield u n t o , w e are the m e n o f the present age, and o u g h t to be absolutely free f r o m all kinds o f exorbitancies, m o l e s t ations, or arbitrary p o w e r ' ( W o l f e 1944, p. 1 1 4 ) . E d w a r d s w a s thus correct in seeing in the w r i t i n g s o f Lilburne and O v e r t o n an attack o n m o n a r c h y , aristocracy, and the existing l a w and constitution. B u t did this m a k e t h e m democrats? T h e first step to a n s w e r i n g this question is to realise that in one sense all supporters o f parliament w e r e democrats: after the publication o f His Majesty's Answer to the Nineteen Propositions ( W o o t t o n 1986, pp. 171—4) in 1642, parliament claimed to be defending the ' m i x e d constitution' o f E n g l a n d , in w h i c h the k i n g represented m o n a r c h y , the H o u s e o f Lords aristocracy, and the H o u s e o f C o m m o n s , the representative o f the people, d e m o c r a c y . T h e n o v e l t y o f the Leveller position in the second half o f 1646 w a s their insistence that the d e m o c r a t i c element in the consitution w a s the o n l y legitimate element: in attacking k i n g and lords they w e r e necessarily a d v o c a t i n g an u n m i x e d d e m o c r a c y , despite the fact that d e m o c r a c y o n its o w n w a s , o n the authority o f Plato and Aristotle, w i d e l y b e l i e v e d to be the w o r s t o f all possible forms o f g o v e r n m e n t . E d w a r d s ' c o m p l a i n t t h o u g h w a s that the Levellers had g o n e b e y o n d m e r e l y a d v o c a t i n g s u p r e m a c y for the H o u s e o f C o m m o n s : they had a d v o c a t e d an egalitarian d e m o c r a c y , in w h i c h there w o u l d be n o r e c o g n i t i o n o f rank or status. In fact w h e n part m o f Gangraena w a s published it w a s n o m o r e than a f e w days since the Levellers had c o m m i t t e d themselves u n a m b i g u o u s l y to this position. In London's Liberties in Chains (E3 59(17)) o f O c t o b e r 1646 Lilburne had argued that e v e r y free m a n o f the city should h a v e a v o t e in city elections, and that in parliamentary elections rotten b o r o u g h s should be abolished and representation m a d e p r o p o r tionate to the a m o u n t s contributed in taxes b y the different b o r o u g h s and 428

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counties: a p o l i c y w h i c h w o u l d h a v e g i v e n L o n d o n an o v e r w h e l m i n g influence in parliament. B u t it w a s not until D e c e m b e r , in The Charters of London, that he c o m m i t t e d h i m s e l f to a definition o f the franchise w h i c h explicitly e x c l u d e d a p r o p e r t y criterion and implied that representation should be o n the basis o f population, n o t w e a l t h , c l a i m i n g that 'the poorest that lives has as true a right to g i v e a v o t e as w e l l as the richest and greatest' (£366(12), p . 4). A year later, in O c t o b e r 1647, the Levellers had abandoned their strategy o f the second h a l f o f 1646, w h i c h had been one o f appealing to the C o m m o n s to transform the constitution and to represent the interests o f the people. T h e Presbyterian majority in the C o m m o n s w a s c o m m i t t e d to settlement w i t h the k i n g and the disbanding o f the a r m y . T h e Levellers in L o n d o n , calling for religious toleration and constitutional change, shared a c o m m o n interest (and c o m m o n principles) w i t h the representatives o f the rank and file in the a r m y , called agitators, w h o w e r e o p p o s e d to disbandment w i t h o u t settlement o f arrears o f p a y or legal i n d e m n i t y for actions taken during the w a r . B o t h g r o u p s agreed to a d v o c a t e the s w e e p i n g a w a y o f parliament and its replacement b y a n e w representative, a p o l i c y outlined in the A g r e e m e n t o f the P e o p l e . A t P u t n e y , f r o m 28 O c t o b e r to 11 N o v e m b e r , they met w i t h the a r m y c o m m a n d e r s to debate the merits o f this p r o g r a m m e ( W o o l r y c h 1986). R a i n s b o r o u g h , an M P and an officer w h o nevertheless supported the rank and file and the Levellers, echoed Lilburne as he explained the Leveller p r o g r a m m e : For really I think that the poorest he that is in England has a life to live, as the greatest he; and therefore, truly sir, I think it's clear, that every man that is to live under a government ought first by his own consent to put himself under that government; and I do think that the poorest man in England is not at all bound in a strict sense to that government that he has not had a voice to put himself under. (Woodhouse 1938, p. 53) It w o u l d thus seem straightforward to c o n c l u d e that the Levellers w e r e in 1647 advocates o f m a n h o o d suffrage: and one m i g h t w e l l feel a certain s y m p a t h y w i t h E d w a r d s , w h o had c o m p l a i n e d that i f all m e n w e r e to h a v e the v o t e , w h y n o t w o m e n (and children) t o o (1977, pt in, p. 154)? B u t this conclusion w o u l d be premature. T h e o u t c o m e o f the discussions at P u t n e y was a resolution o f the general council o f the a r m y : ' T h a t all soldiers and others, if they be not servants or b e g g a r s , o u g h t to h a v e voices in electing those w h i c h shall represent them in Parliament, a l t h o u g h they have not forty shillings per a n n u m in freehold land' ( W o o d h o u s e 1938, p. 452). W a s the a b a n d o n m e n t o f the traditional property qualification for 429

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c o u n t y elections a v i c t o r y for the Levellers, or w a s the exclusion o f servants and b e g g a r s a defeat for the first democratic party in E u r o p e a n political history? Scholars are sharply d i v i d e d o n this, as they are on the question o f w h o e x a c t l y w a s meant b y the terms 'servants' and ' b e g g a r s ' . In M a y 1649 four o f the Leveller leaders, imprisoned in the T o w e r b y C r o m w e l l , their short-lived m o v e m e n t dissolving around t h e m , issued a final, u n c o m p r o m i s i n g declaration o f principles: the v o t e w a s to be g i v e n to 'all m e n o f the age o f one and t w e n t y years and u p w a r d s (not b e i n g servants, or receiving alms, or h a v i n g served the late k i n g in arms or v o l u n t a r y contributions) . . . those w h o served the k i n g b e i n g disabled for ten years o n l y ' ( W o l f e 1944, p p . 402—3). T h i s v e r y m u c h suggests that the Levellers had been satisfied w i t h the general council's resolution in N o v e m b e r o f 1647 and had accepted the o u t c o m e o f the P u t n e y debates as representing their o w n v i e w s . If so, they not o n l y did not call themselves democrats, but w e r e not democrats in our terms. B u t w h a t did the exclusion o f servants and b e g g a r s i m p l y ? In D e c e m b e r 1648, the a r m y , victorious in the second C i v i l W a r , p u r g e d f r o m parliament supporters o f Presbyterianism and opponents o f the e x e c u t i o n o f the k i n g . T h e defeat for E d w a r d s ' allies l o o k e d like a v i c t o r y for Lilburne's: as the a r m y acted a c o m m i t t e e o f Levellers and Independents met to h a m m e r out a constitution they believed the a r m y w o u l d require the p u r g e d parliament to adopt. A c c o r d i n g to this second A g r e e m e n t the electors w e r e to be (excluding for the time b e i n g those w h o had supported the king) 'natives or denizens o f E n g l a n d , such as h a v e subscribed this agreement; not persons receiving alms, but such as are assessed ordinarily t o w a r d s the relief o f the poor; not servants to, or receiving w a g e s from any particular person. A n d in all elections (except for the universities) they shall be m e n o f one and t w e n t y years old, or u p w a r d s , and housekeepers.' ( W o l f e 1944, p. 297). If this second A g r e e m e n t w a s intended to express the same position as the first and third, the Levellers intended to e x c l u d e from the v o t e all those w h o received p o o r relief, as opposed to those w h o contributed t o w a r d s it; all e m p l o y e e s in w h a t w o u l d n o w be termed the private sector; and all w h o w e r e not heads o f households. O n this basis w e l l o v e r half the adult male population w o u l d h a v e been e x c l u d e d from the v o t e (Macpherson 1962). It is possible to argue, on the other hand, that the second A g r e e m e n t is not really a L e v e l l e r d o c u m e n t , but a c o m p r o m i s e reached b e t w e e n Levellers and Independents w i t h a v i e w to ensuring the support o f the a r m y officers. It has been argued that the exclusion o f servants and beggars after 430

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P u t n e y and in the third A g r e e m e n t w a s m u c h m o r e limited in scope than the exclusion p r o p o s e d in the second A g r e e m e n t : servants, it is said, w o u l d n o r m a l l y h a v e been taken to m e a n o n l y l i v i n g - i n servants; beggars, 'sturdy b e g g a r s ' w h o b e g g e d f r o m d o o r to d o o r and had n o fixed abode. S u c h an exclusion w o u l d h a v e affected o n l y a small m i n o r i t y o f the population. M o r e o v e r , l i v i n g - i n servanthood w a s a t e m p o r a r y condition w h i c h m a i n l y affected adolescents. A p p r e n t i c e s , for e x a m p l e , w e r e l i v i n g - i n servants, but n o b o d y continued to be a l i v i n g - i n servant after marriage, and, as nearly all m e n married, nearly e v e r y male w o u l d — on this reading o f the A g r e e m e n t — h a v e had the v o t e for the greater part o f his adult life. W e thus h a v e three alternative accounts o f the L e v e l l e r position: one w h i c h w o u l d see t h e m as democrats, forced into a series o f reluctant c o m p r o m i s e s f r o m O c t o b e r 1647 o n (Davis 1968; M o r t o n 1970; H a m p s h e r - M o n k 1976; T h o m p s o n 1980); one w h i c h w o u l d see t h e m as intending, at least for the most part, to g i v e the v o t e to all heads o f households, e x c l u d i n g l i v i n g - i n servants and v a g a b o n d s o n l y ( T h o m a s 1972); and one w h i c h w o u l d take t h e m to be e x c l u d i n g (as the second A g r e e m e n t does) all w a g e - w o r k e r s and recipients o f p o o r relief, in other w o r d s the greater part o f the nation (Macpherson 1973). T h e crucial difficulty in c h o o s i n g b e t w e e n these interpretations is the a m b i g u i t y o f the w o r d 'servants', w h i c h c o u l d m e a n in n o r m a l usage either l i v i n g - i n servants as contrasted to w a g e - w o r k e r s in general, or all e m p l o y e e s (Kussmaul 1981). T h e best solution to this p r o b l e m is to start f r o m the fact that the Levellers w e r e u n a m b i g u o u s l y c o m m i t t e d in 1647 to the proposition that e v e n the p o o r should v o t e . T h i s clear rejection o f a p r o p e r t y test is effectively meaningless i f the intention w a s to e x c l u d e all but the selfe m p l o y e d f r o m the franchise, and w e should therefore c o n c l u d e that the second A g r e e m e n t represents an u n h a p p y c o m p r o m i s e , not the Levellers' considered position, and that the third A g r e e m e n t , w h i c h returns to the w o r d i n g w h i c h resulted f r o m the P u t n e y debates, represents a m i n i m u m statement o f their true c o n v i c t i o n s , w h i c h permitted the exclusion o f l i v i n g - i n servants, but not the p o o r . Perhaps the Levellers, before they reached P u t n e y , had e v e n aspired to the establishment o f m a n h o o d suffrage: i f so, it is i m p o r t a n t to note that they s h o w n o sign o f h a v i n g felt that they had abandoned an issue o f principle in g i v i n g up the idea o f one m a n one v o t e . For t h e m the principle lay elsewhere, in the rejection o f the p r o p e r t y test. W e h a v e difficulty in b e l i e v i n g that the householder franchise c o u l d h a v e 431

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been a n y t h i n g but an unprincipled c o m p r o m i s e because w e are used to t h i n k i n g in terms o f the inalienable rights o f individuals. W e need to find o u r w a y b a c k into the w o r l d o f T h o m a s C a r t w r i g h t , w h o had written, w h e n discussing v o t i n g in the Presbyterian system o f c h u r c h g o v e r n m e n t , 'all m e n understand that w h e r e the election is m o s t freest and most general, y e t o n l y they h a v e to d o w h i c h are heads o f families' ( T h o m a s 1972, p. 72). T h e Levellers should be seen as a d v o c a t i n g 'the most freest and m o s t general' franchise, but as seeing n o necessary contradiction b e t w e e n this and g i v i n g the v o t e o n l y to heads o f households. In fact they w e r e seeking to e x t e n d to the c o u n t r y as a w h o l e the franchise w h i c h already existed in those urban constituencies w h e r e the electorate w a s m o s t b r o a d l y defined. N o r did the exclusion o f servants f r o m the v o t e i n v o l v e the Levellers in any inconsistency. C h i l d r e n w e r e to be denied the v o t e because they w e r e subject to a natural, pre-political authority, their parents. W i v e s had chosen to subject themselves to the authority o f their husbands; servants to the authority o f their masters. T h e y w e r e already, in R a i n s b o r o u g h ' s phrase, 'under g o v e r n m e n t ' . B u t heads o f households w e r e free and independent individuals w h o c o u l d p r o p e r l y be subject to n o authority they had n o t themselves chosen. In the seventeenth century the household, gathered together under the authority o f the father, seemed the natural unit o f e c o n o m i c , political, and religious activity. W a g e - l a b o u r cut across this natural system o f independent households b y subjecting m e n and w o m e n to the e c o n o m i c c o n t r o l o f their n e i g h b o u r s . T h i s p r o v i d e d a reason for a r g u i n g that the p o o r c o u l d n o t in practice v o t e independently. A contrasting a r g u m e n t , m u c h used at P u t n e y , w a s that the p o o r , far f r o m b e i n g subservient to the rich, w o u l d v o t e to dispossess t h e m . B u t the Levellers s h o w n o sign o f h a v i n g been persuaded b y either a r g u m e n t : they insisted that the p o o r w e r e rational individuals, capable o f m a k i n g sound j u d g e m e n t s . T h e householder franchise e m b o d i e d this principle, w i t h o u t g i v i n g the v o t e to p e o p l e — w i v e s and servants — w h o had directly subordinated their o w n j u d g e m e n t s , in the affairs o f this w o r l d at least, to s o m e o n e else's. If the Levellers w e r e g u i l t y o f an inconsistency it w a s m e r e l y in n o t asking themselves w h e t h e r w o m e n ( w i d o w s , for e x a m p l e ) c o u l d e v e r be heads o f households (see Gentles 1978, pp. 292—4): but this w a s an a m b i g u i t y that they w e r e not alone in failing to face squarely. W e can summarise the Leveller position b y saying the Levellers planned to g i v e the v o t e to those w h o w e r e entitled to w e a r their hats at h o m e . T h e head o f the h o u s e h o l d w o r e his hat at h o m e w h i l e his sons and servants doffed theirs. M e m b e r s o f parliament w o r e their hats w h i l e in the 432

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parliament c h a m b e r to s y m b o l i s e the fact that they alone w e r e masters there. R a d i c a l s like H e n r y M a r t e n argued that juries should w e a r their hats in court to s y m b o l i s e the fact that they - n o t the j u d g e s — w e r e the ultimate authority. A n d the Q u a k e r s , o f course, w e r e soon to refuse to take their hats off to any m a n , insisting that sons l i v i n g at h o m e should not e v e n take their hats off to their fathers. T h e r e is n o reason to suppose that the Levellers had ever intended to c o m m i t themselves to a v i e w o n the franchise w h i c h flew as directly in the face o f existing social c o n v e n t i o n s as did the Q u a k e r refusal to d o hat h o n o u r . T o call the Levellers democrats, w i t h o u t periphrasis, is to think in terms o f the inalienable rights o f individuals, not the proto-political authority o f fathers, and to forget the extent to w h i c h seventeenth-century w i v e s and servants w e r e presumed to be able to alienate their rights, in the one case p e r m a n e n t l y , in the other t e m p o r a r i l y . T h e Leveller case w a s n o t that political rights c o u l d n o t be alienated, that m o n a r c h y , for e x a m p l e , c o u l d n e v e r be legitimate: it w a s , first, that the present generation c o u l d not be g o v e r n e d b y the decisions o f its ancestors, any m o r e than the status o f w i f e or servant c o u l d be inherited; second, that certain rights (such as freedom o f conscience) w e r e inalienable, and c o u l d be claimed e v e n b y w i v e s and servants, just as they c o u l d be b y subjects against their rulers; third, that the contract b e t w e e n ruler and subject w a s a conditional one, like that b e t w e e n master and servant, n o t an u n c o n d i t i o n r l one, like that (in the v i e w o f e v e r y o n e but M i l t o n ) b e t w e e n husband and w i f e , and that in the event o f t y r a n n y the p e o p l e c o u l d reclaim their alienated rights; and, fourth, that the best f o r m o f g o v e r n m e n t w a s one w h i c h g a v e the p o o r not o n l y an initial say in the f o r m o f g o v e r n m e n t but also a c o n t i n u i n g say in p o l i c y - m a k i n g . T h e Levellers w e r e n o t democrats: rather they believed that all authority must be originally founded o n genuine consent, w h i c h , in the event o f t y r a n n y , the people had a right to w i t h d r a w , or, as E d w a r d s protested, that the ' p r o m i s c u o u s m u l t i t u d e ' h a v e a right to b e 'the creator and destroyer o f kings, parliaments and all magistrates at their m e r e pleasure'. T h i s principle o f popular s o v e r e i g n t y w a s far m o r e fundamental to their t h i n k i n g than the franchise or any constitutional question, for they believed that it p r o v i d e d the o n l y secure protection for those inalienable rights w h i c h the sects w i s h e d to claim against Presbyterianism. T h e Levellers w e r e w i l l i n g to g i v e the benefit o f the d o u b t to constitutional proposals that fell short o f the householder franchise, for they did n o t see the right to v o t e as inalienable: hence their willingness to a p p r o v e the second A g r e e m e n t o f the P e o p l e . B u t they w e r e n o t w i l l i n g to agree to proposals w h i c h 433

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e m b o d i e d w h a t seemed to t h e m oppressive principles contrary to the inalienable rights o f b o t h m e n and w o m e n : hence their refusal during the W h i t e h a l l Debates w h i c h f o l l o w e d hard o n Pride's P u r g e ( D e c e m b e r 1648) to retreat f r o m the principle o f f r e e d o m o f conscience. T h i s , m u c h m o r e than the franchise, w a s an issue o f principle in the eyes o f the Levellers. T h e difference b e t w e e n the Levellers and their opponents w a s not generally c o u c h e d in terms o f constitutional forms, despite passing references b y m e n like R i c h a r d B a x t e r (1696, p. 53) and E d w a r d s to d e m o c r a c y , because the Levellers w e r e primarily seen as appealing to preconstitutional rights o f nature, rights w h i c h m a n y felt to be i n c o m p a t i b l e w i t h constitutional g o v e r n m e n t , and because the t e r m d e m o c r a c y itself w a s so uncertain in its m e a n i n g . B u t the demise o f the Leveller m o v e m e n t did n o t m e a n the demise o f the householder franchise they had a d v o c a t e d . H a r r i n g t o n consistently defended such a franchise, w h i l e seeking to c o m b i n e it w i t h bicameral g o v e r n m e n t and a p r o p e r t y test for election to the upper house. A f e w years later, Sir W i l l i a m Petty, the founder o f political e c o n o m y , w a s to express his a p p r o v a l o f ' d e m o c r a c y ' , m e a n i n g b y it the franchise a d v o c a t e d in the third A g r e e m e n t o f the P e o p l e ( A m a t i and A s p r o m o u r g o s 1985). T o call the Levellers ' d e m o c r a t s ' is misleading and anachronistic. B u t i f one means b y the t e r m w h a t Petty meant b y it, the p r o c h r o n i s m is one o f decades, not centuries. W h e n w e feel the need to use the w o r d ' d e m o c r a c y ' in describing Leveller proposals, w e are responding as contemporaries and near-contemporaries did to the r e v o l u t i o n in political t h o u g h t that they had inaugurated.

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W e h a v e seen that the Levellers w e r e not, strictly speaking, revolutionaries or democrats, a l t h o u g h it is hard to a v o i d these terms in describing their convictions. T h i s leaves us w i t h a final p r o b l e m , that o f w h e r e their c o n v i c t i o n s c a m e f r o m . T h e simplest solution w a s p r o v i d e d b y M a r c h a m o n t N e d h a m in 1647: A Scot and a Jesuit, j o i n e d in hand First taught the w o r l d to say T h a t subjects o u g h t to h a v e c o m m a n d A n d Princes to o b e y . ( E 4 i i ( 8 ) , p. 33)

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N e i t h e r the Jesuits n o r the Scots, h o w e v e r , had clearly envisaged a situation w h e r e p o w e r w o u l d revert f r o m the estates o f the realm, w h o n o r m a l l y w e r e e x p e c t e d to sit in j u d g e m e n t o n a tyrant, to the individual subjects. T h e y foresaw circumstances in w h i c h the estates m i g h t be prevented f r o m acting and individuals m i g h t t e m p o r a r i l y h a v e to act o n their behalf, assassinating, for e x a m p l e , a tyrant w h o w a s p r e v e n t i n g the estates f r o m m e e t i n g ; or circumstances in w h i c h constituencies m i g h t h a v e to recall their representatives for dereliction o f d u t y . B u t they did n o t c o n c e i v e o f a situation w h e r e the absence o f a constitutional check o n t y r a n n y w o u l d lead to the dissolution o f g o v e r n m e n t , a return to the state o f nature, and the establishment o f a n e w constitution. A l t h o u g h there w a s s o m e discussion o f this as a theoretical possibility in the early stages o f the C i v i l W a r , the first author to regard this, n o t as a dreadful prospect or a counsel o f despair, but as a practical proposal w a s the author of England's Miserie and Remedie (1645; W o o t t o n 1986, p p . 38-58), a w o r k w h i c h appeals to the authority o f G e o r g e B u c h a n a n . A s w e h a v e seen, the b r o a d franchise that existed in some b o r o u g h constituencies in early seventeenth-century E n g l a n d m a y h a v e facilitated the construction o f this radical theory o f popular sovereignty. A t first sight this w o u l d seem a full and c o m p l e t e picture o f the origins o f Leveller v i e w s o n popular s o v e r e i g n t y . It is not, h o w e v e r , the one that historians h a v e generally favoured. A n d , indeed, s o m e further element appears necessary to c o m p l e t e this account. For w h y w a s the idea o f starting a state de novo, w h i c h had s i m p l y n e v e r been considered b y p r e v i o u s thinkers, w h o had assumed that l e g i t i m a c y derived f r o m past u n d e r t a k ings, rapidly e m b r a c e d b y the Levellers? W h y w e r e they prepared to g o so far as to insist that n o individual c o u l d be subjected to an authority that w a s n o t o f his o w n choosing? W h y w e r e they prepared to consider s o m e t h i n g close to d e m o c r a c y a viable f o r m o f g o v e r n m e n t ? T h e simplest answer to these questions consists in the claim that the Levellers w e r e a p p l y i n g to politics the religious practices o f the sects ( R o b e r t s o n 1 9 5 1 , p p . 28—9; M o r t o n 1970, p p . 14—16). For decades sec tarians had separated themselves f r o m the established church, established n e w churches based o n covenants, w h i c h w e r e n o t h i n g other than contracts or agreements, and had g o v e r n e d these n e w churches o n d e m o c r a t i c principles ( T o l m i e 1977). Lilburne w a s a separatist b y 1638. O v e r t o n m a y h a v e been a m e m b e r o f a D u t c h Baptist c o n g r e g a t i o n in 1615—16, and w a s o n c e m o r e a Baptist in 1646. M u c h o f the Levellers' 435

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strongest support c a m e f r o m the leaders o f separatist c o n g r e g a t i o n s , such as S a m u e l C h i d l e y (Gentles 1978). T h e Levellers n e v e r claimed that their political p h i l o s o p h y derived f r o m separatist religious principles: to d o so w o u l d h a v e been i m m e d i a t e l y to restrict its potential support to those w h o w e r e separatist in religion. Nevertheless, the c o n n e c t i o n b e t w e e n politics and religion is apparent in, for e x a m p l e , O v e r t o n ' s claim that the first Christians g o v e r n e d themselves ' b y c o m m o n election and consent'. T h e daily practice o f the sects thus m a d e thinkable w h a t w a s p r e v i o u s l y scarcely conceivable: constitutional r e v o l u t i o n and d e m o c r a t i c accountability. T h e political p h i l o s o p h y o f R o b e r t B e l l a r m i n e and B u c h a n a n , as e x p o u n d e d b y S a m u e l R u t h e r f o r d or J o h n M a x w e l l , p r o v i d e d opportunities for a n y o n e w h o w a n t e d to e x t e n d these practices f r o m church to state. U n f o r t u n a t e l y , the a r g u m e n t cannot rest here. O u r second simple answer is n o m o r e c o m p l e t e than the first. C e n t r a l to the classical t h e o l o g y o f the sects w a s the stress o n the difference b e t w e e n the small n u m b e r o f the elect, the saints gathered into churches, and the mass o f the reprobate. H o w c o u l d practices appropriate for a g o d l y m i n o r i t y be equally suitable for an u n g o d l y majority ( W o o d h o u s e 1938, p p . [ i ] - [ i o o ] ) ? T h e gathered c h u r ches depended o n their ability to e x p e l backsliders f r o m their c o m m u n i o n , but the C o m m o n w e a l t h w a s necessarily an inclusive, n o t an exclusive, c o m m u n i t y . It w a s therefore natural for Puritans to argue that o n l y the g o d l y should rule. M i l t o n and B a x t e r maintained that the w i c k e d should be denied civil rights, w h i l e the Fifth Monarchists e x p e c t e d Christ h i m s e l f to c o m e and separate the g o d l y f r o m the u n g o d l y , establishing the saints in unshakeable control. H o w then c o u l d sectarian t h e o l o g y lead to d e m o c r a t i c p h i l o s o p h y ? O n e answer to this question has been to see k e y Levellers as a d o p t i n g a rationalist position w h i c h denied the significance o f the Fall, and thus o f the Puritan distinction b e t w e e n the g o d l y and the u n g o d l y . O v e r t o n has often been presented as a rationalist because in Mans Mortalitie (1644; 1968) he argued that reason s h o w e d the soul to be mortal: but this is n o e v i d e n c e that he did n o t believe in the promise o f resurrection to be found in the gospel (Burns 1972). W a l w y n claimed to learn true Christianity f r o m the sceptical M o n t a i g n e . H e attacked all existing churches and c l e r g y w i t h o u t e x c e p tion. H e w a s accused o f d e n y i n g that the B i b l e c o u l d be s h o w n to be the w o r d o f G o d and o f b e l i e v i n g that there w a s n o hell. W h e n he defended h i m s e l f b y affirming his b e l i e f in the B i b l e he scarcely m e n d e d matters b y c o m p a r i n g reading it to searching for a pearl lost in a field, w h i l e his defenders admitted that he had in the past b e l i e v e d that all w o u l d be saved. 436

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W a l w y n h i m s e l f t h o u g h t that the proper test o f a doctrine w a s its utility. For h i m Christianity w a s a b o v e all a religion o f the G o l d e n R u l e . Christian l o v e had led the apostles to c o m m u n i s m , and must lead present-day Christians to political and perhaps social r e v o l u t i o n . H e did not seek to defend this v i e w b y q u o t i n g texts, but m e r e l y redefined Christianity in the light o f it: ' T h e politicians o f this w o r l d w o u l d h a v e religious m e n to be fools, not to resist, n o b y n o means, lest y o u receive damnation: u r g i n g G o d ' s H o l y W o r d whilst they proceed in their d a m n a b l e courses; but (beloved) they w i l l find that true Christians are o f all m e n the most valiant defenders o f the just liberties o f their c o u n t r y ' (Haller and D a v i e s 1944, p. 299). W a l w y n h i m s e l f w a s scarcely likely to confess to religious scepticism — the claim that he n o l o n g e r b e l i e v e d in universal salvation w a s surely m a d e in k n o w l e d g e o f the fact that the B l a s p h e m y O r d i n a n c e o f 1648 p r o v i d e d the death penalty for d e n y i n g there w a s a day o f j u d g e m e n t after death — but, w h a t e v e r his private c o n v i c t i o n s , they can scarcely be adduced to explain the a p p r o v a l his v i e w s m e t w i t h f r o m a Lilburne or a C h i d l e y . If sceptical arguments m a d e a contribution to L e v e l l e r thinking — and w e w i l l see that W a l w y n w a s not alone in insisting o n the limits o f natural reason — there must also h a v e been a w a y o f defending Leveller political p h i l o s o p h y as c o m p a t i b l e w i t h g o o d t h e o l o g y . S o m e historians h a v e argued that L e v e l l e r political thinking w a s dependent u p o n a particular theological doctrine, that o f 'free grace', t e r m e d b y its opponents antinomianism (e.g. D a v i s 1973). Free grace, they argue, meant that C h r i s t had died for all, and that all w o u l d (as W a l w y n at one time b e l i e v e d ) , or at least in principle c o u l d (as those w h o believed in free w i l l w o u l d claim), be saved. B y d e n y i n g that any w e r e predestined to damnation, and b y insisting that e v e n sinners c o u l d be saved, it opened the w a y to a n e w sense o f the equality o f all m e n in G o d ' s eyes, and thus m a d e a d e m o c r a t i c political t h e o r y plausible. W a l w y n , w h o p r o u d l y claimed to h a v e been c o n v e r t e d to w h a t others termed antinomian principles, is seen b y these c o m m e n t a t o r s , not as a sceptic, but as a Christian radical w h o d r e w political conclusions f r o m the t h e o l o g y o f free grace ( M u l l i g a n 1982). Lilburne, an o r t h o d o x C a l v i n i s t at the b e g i n n i n g o f the C i v i l W a r , is said to h a v e been c o n v e r t e d to it, a c o n v e r s i o n w h i c h m a d e the Leveller m o v e m e n t possible. T h u s the author o f Vox Plebis (1646) c o u l d appeal to free grace against feudal b o n d a g e , and treat the l a w o f nature and the l a w o f grace as identical, as i f the Fall had been w i t h o u t consequence:

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For as God created every man free in Adam, so by nature are all alike freemen born; and are since made free in grace by Christ; no guilt o f the parent being o f sufficiency to deprive the child o f this freedom. And although there was that wicked and unchristian-like custom of villeiny introduced by the Norman Conqueror; yet was it but a violent usurpation upon the law of our creation, nature . . . and is now, since the clear light o f the Gospel hath shined forth . . ., quite abolished as a thing odious both to God and man . . . (£362(20), p. 4) T h i s a r g u m e n t is an elegant one. L e a v i n g aside m i n o r objections - such as the difficulty o f tracing Lilburne's e v o l u t i o n f r o m o r t h o d o x C a l v i n i s m to Q u a k e r i s m — it unfortunately suffers f r o m a central defect: the doctrine o f free grace in n o w a y i m p l i e d a belief in universal salvation (Solt 1959; W a l l a c e 1982), w h i c h is w h y W a l w y n w a s able to continue appealing to free grace e v e n w h e n his friends had denied that he still believed that there w o u l d be n o hell. It did not e v e n i m p l y a belief in free w i l l . R o g e r W i l l i a m s , w h o certainly b e l i e v e d that o n l y a chosen m i n o r i t y w o u l d be saved, a d v o c a t e d free grace, and J o h n Saltmarsh's Free Grace (1645; E I 152(1)), w a s not, as has been claimed, an attack u p o n the C a l v i n i s t doctrine o f election ( M o r t o n 1970, pp. 4 5 - 6 9 ) , but a defence o f a strict interpretation o f it against those w h o w o u l d m a k e salvation dependent on repentance, a h o l y life, and g o o d w o r k s . Saltmarsh t o o k it as a x i o m a t i c that some w e r e elected to salvation before all time: but he also maintained that all those w h o had true faith w o u l d be saved t h r o u g h Christ's free grace, w h e t h e r they w e r e sinners or not. S o m u c h w a s promised in the gospel, and it was unprofitable to try to determine w h e t h e r one's o w n faith w a s o f the sort peculiar to the elect, the sort w h i c h guaranteed salvation. T h e late 1640s certainly saw widespread uncertainty about the m e a n i n g and truth o f the C a l v i n i s t doctrine o f predestination, and this m a y w e l l , as A . S . P . W o o d h o u s e maintained, h a v e helped to u n d e r m i n e Puritan inegalitarianism. B u t the central theological issue w h i c h w a s crucial to the religious defence o f L e v e l l e r principles w a s one w h i c h w a s largely irrelevant to the debate o v e r predestination and free w i l l , and quite separate from the question o f universal salvation. It w a s , h o w e v e r , central to the doctrine o f free grace, w h e t h e r in the f o r m in w h i c h it w a s presented b y Saltmarsh, or the m o r e radical f o r m in w h i c h it w a s adopted b y W a l w y n , and it lay at the heart o f the debate o v e r antinomianism. T h e issue w a s that o f the relationship b e t w e e n the O l d and N e w Testaments ( W o o d h o u s e 1938, pp. [53]—[7], [87]—[90]), and it w a s in fact the central issue b e t w e e n the separatists and those w h o a d v o c a t e d religious u n i f o r m i t y . A l l Christians agreed that in part G o d ' s revelation o f his c o v e n a n t in the O l d T e s t a m e n t m e r e l y prefigured his promise o f salvation in the N e w . 438 Cambridge Histories Online © Cambridge University Press, 2008

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T h u s baptism replaced circumcision, and the n e w dispensation o f grace in part abrogated the M o s a i c l a w , w h i c h w a s a m e r e ' s h a d o w ' o f it. T h e crucial debate b e t w e e n the e x p o n e n t s o f free grace or 'antinomians' and the o r t h o d o x Presbyterians w a s o v e r h o w far this principle that the old l a w w a s m e r e l y a ' t y p e ' o f w h i c h the gospel w a s the 'antitype', m e r e l y a préfiguration w h i c h must n o w be dispensed w i t h , should be extended. F o r W i l l i a m s , w h o s e Bloudy Tenent o f 1644 (1963) w a s one o f the first and m o s t influential defences o f a nearly universal toleration, the principle w a s a radical one w h i c h u n d e r m i n e d the w h o l e idea o f a h o l y c o m m o n w e a l t h (Miller 1953; B e r c o v i c h 1967). T h e state o f Israel in the O l d T e s t a m e n t had been a h o l y c o m m o n w e a l t h sustained b y legal c o m p u l s i o n , but it m e r e l y prefigured the church, w h i c h w a s to be a purely v o l u n t a r y assembly sustained b y faith. T h e N e w T e s t a m e n t p r o v i d e d n o portrait o f Christian magistracy: i f G o d ' s c o m m a n d s to the O l d T e s t a m e n t k i n g s c o u l d n o t be adduced as o f c o n t i n u i n g validity, then Christians c o u l d h a v e n o claim to i m p o s e their beliefs o n others. T h e r e w a s therefore n o need for Christians to seek to enforce t h r o u g h the civil l a w the O l d T e s t a m e n t injunctions requiring religious u n i f o r m i t y . T h e spheres o f c o m p e t e n c e o f c h u r c h and state must be sharply separated, and the state must c o n c e r n itself o n l y w i t h t h i s - w o r l d l y affairs a c c o r d i n g to the principles o f natural reason. T h i s decisive distinction b e t w e e n the political dispensation o f the O l d T e s t a m e n t and the spiritual dispensation o f the N e w w a s rejected b y Presbyterians. T h e y maintained that the ten c o m m a n d m e n t s w e r e o f c o n t i n u i n g force and c o v e r e d idolatry, heresy, and b l a s p h e m y . T h e magistrate w a s as m u c h under an o b l i g a t i o n to repress heresy as to punish murder. T h e Independents t o o k the v i e w that e v e n i f the magistrate c o u l d not c o m p e l people to adopt the true religion he w a s certainly under an o b l i g a t i o n to p r e v e n t t h e m f r o m o p e n l y practising and a d v o c a t i n g false religions. For b o t h Presbyterians and Independents the nation o f Israel p r o v i d e d the ideal e x e m p l a r for a national church. O n l y the sects and the Levellers, w h o w e r e o p p o s e d to the w h o l e idea o f a national church, w e r e prepared to maintain that the magistrate had neither c o m p u l s i v e nor restrictive p o w e r in matters o f religion. In D e c e m b e r 1648 at W h i t e h a l l , Independents, Levellers, representatives o f gathered churches and a r m y officers debated the terms o f a n e w constitution - the officers' A g r e e m e n t — w h i c h they e x p e c t e d to see i m p o s e d u p o n parliament, and m u c h o f the debate centred o n the question o f toleration (Polizzotto 1975). Ireton, w h o at P u t n e y had been the leading o p p o n e n t o f Leveller v i e w s o n the franchise, w a s here the leading o p p o n e n t o f their v i e w s o n toleration. Ireton's claim was that the first four o f the ten 439 Cambridge Histories Online © Cambridge University Press, 2008

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c o m m a n d m e n t s w e r e k n o w n to be true f r o m natural reason and f r o m divine revelation, that they had n o t been abrogated b y the gospel, and should therefore be enforced b y the magistrate. T o these claims the radical Independent J o h n G o o d w i n , w h o w a s at this time ministering to a gathered c h u r c h and w o r k i n g in uneasy collaboration w i t h the Levellers, replied that w h i l e certain m o r a l principles w e r e self-evident b y the light o f nature, m o n o t h e i s m w a s not, and therefore should n o t be required o f people b y the magistrate o n the g r o u n d s that it w a s a precept o f natural l a w . A s for Ireton's claim that O l d T e s t a m e n t magistrates must be a m o d e l for Christian magistrates, he appealed to the t h e o l o g y o f t y p e and antitype to d e n y that the state o f Israel w a s a n y t h i n g other than a préfiguration o f the church. G o o d w i n ' s arguments, b o t h those f r o m t h e o l o g y and those f r o m natural reason, but particularly those f r o m natural reason, w e r e supported b y W i l d m a n : 'It is n o t easy b y the light o f nature to determine [that] there is a G o d . T h e sun m a y be that G o d . T h e m o o n m a y be that G o d . T o frame a right c o n c e p t i o n or n o t i o n o f the First B e i n g , w h e r e i n all other things had their b e i n g , is n o t [possible] b y the light o f nature' ( W o o d h o u s e 1938, p. 1 6 1 ) . In v i e w o f this, e v e n i f the magistrate believes he k n o w s the truth, he must recognise that he is at least as likely to err as a n y o n e else, and admit that b y i m p o s i n g u n i f o r m i t y he is m o r e likely to d o h a r m than g o o d . T h e Levellers thus saw the state as a purely secular institution, required to c o n f o r m o n l y to the principles o f natural reason, and o b l i g e d to leave to the individual questions o f private conscience w h i c h depended on belief, not certain k n o w l e d g e . N o t o n l y c o u l d people n o t be c o m p e l l e d to believe against their w i l l ; they c o u l d not alienate the right to w o r s h i p as they t h o u g h t best, for in matters o f religion and w o r s h i p ' w e cannot remit or e x c e e d a tittle o f w h a t our consciences dictate to be the m i n d o f G o d , w i t h o u t wilful sin' ( W o l f e 1944, p. 227). T h i s approach to the question, in terms o f the rights o f the individual, n o t the duties o f the magistrate, w a s one that Ireton c o u l d n o t accept: e v e n i f natural reason m i g h t p r o v i d e n o decisive court o f appeal, revelation clearly o u t l a w e d idolatry and required its punishment. In the end the dispute b e t w e e n the Levellers and their opponents on the question o f toleration therefore turned o n a central question o f t h e o l o g y , that o f the relationship b e t w e e n O l d T e s t a m e n t and N e w . For Ireton, the appeal to the O l d T e s t a m e n t w a s a valid one; for those w h o defended 'free g r a c e ' such an appeal c o u l d n o t be e m p l o y e d to alter or e x t e n d in any substantial w a y the teaching o f the N e w . 440

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W h e n W a l w y n insisted that free grace w a s the unum necessarium, it w a s n o t because it i m p l i e d universal salvation, but because the doctrine o f free grace required this sharp d i c h o t o m y b e t w e e n O l d T e s t a m e n t and N e w , b e t w e e n the M o s a i c l a w , w h i c h d e m a n d e d obedience, and the Christian gospel, w h i c h offered salvation. If sinners c o u l d be saved, it w a s impossible in this w o r l d to k n o w w h o w e r e the saints w h o should rule and w h o the reprobate w h o should o b e y : free grace had d e m o c r a t i c implications. If the O l d T e s t a m e n t dispensation had been abrogated, g o v e r n m e n t must be seen as m a n - m a d e a c c o r d i n g to the principles o f natural reason, not d i v i n e l y ordained, and w h a t m a n had m a d e he c o u l d c h a n g e so that it m o r e adequately served his purposes. If grace w a s free, then the magistrate w a s not o b l i g e d to punish the w i c k e d for their o w n m o r a l g o o d and as an e x a m p l e to others, but o n l y insofar as w a s necessary for the protection o f society. H e n o l o n g e r had any role to play in the salvation o f m e n ' s souls, or any o b l i g a t i o n to prevent the u n g o d l y f r o m sharing p o w e r w i t h the g o d l y . In A p r i l 1649 O v e r t o n s u m m e d up the central issue in the toleration debate as f o l l o w s : As I am in myself in respect to my o w n personal sins and transgressions, so I am to myself and to God, and so I must give an account; the just must stand by his own faith. But as I am in relation to the Commonwealth, that all men have cognizance of, because it concerns their o w n particular lives, livelihoods and beings, as well as my own; and m y failings and evils in that respect I yield up to the cognizance of all men, to be righteously used against me. So that the business is, not h o w great a sinner I am, but h o w faithful and real to the Commonwealth; that's the matter concerneth my neighbour . . . And till persons professing religion be brought to this sound temper, they fall far short o f Christianity; the spirit o f love, brotherly charity, doing to all men as they would be done by, is not in them. (Haller and Davies 1944, p. 231) T h i s appeal to b r o t h e r l y l o v e sounds straightforward, but it c o u l d persuade o n l y those w h o had a b a n d o n e d the idea o f a h o l y c o m m o n w e a l t h m o d e l l e d on the O l d T e s t a m e n t state o f Israel, and w h o n o l o n g e r e x p e c t e d G o d to punish idolatry w i t h p l a g u e and fire, to h o l d w h o l e c o m m u n i t i e s responsible for the sins o f a f e w in their midst. It c o u l d thus persuade o n l y those w h o w e r e sceptics and rationalists, or, m o r e i m p o r t a n t l y , those w h o accepted the radical t y p e / a n t i t y p e t h e o l o g y e x p o u n d e d b y W i l l i a m s . Leveller arguments w e r e thus founded o n a t h e o l o g i c a l presumption: that m e n , created free in A d a m , b o r n free b y nature, had indeed, as Vox Plebis put it, been o n c e again ' m a d e free in grace b y C h r i s t ' after the servitude o f the M o s a i c l a w . T h i s p r e s u m p t i o n did n o t require a belief in free w i l l or general r e d e m p t i o n ; but it did require a belief that the O l d 441

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T e s t a m e n t w a s n o w o f allegorical rather than literal significance, and that politics w a s n o w a matter for natural reason, not revelation. T h i s p r e s u m p t i o n guaranteed that there c o u l d be n o Presbyterian Levellers, and o n l y cautious collaboration b e t w e e n Independents and Levellers. A s G o o d w i n protested during the W h i t e h a l l Debates, to w r i t e the Leveller v i e w on toleration (a v i e w he agreed w i t h in principle) into a constitution w o u l d be to adopt a t h e o l o g i c a l position. Far f r o m i m p l y i n g a m e r e practical toleration for all religious v i e w s , it implied that the g o v e r n m e n t c o n d e m n e d the religion o f the majority, w h i c h w a s based u p o n a different c o n c e p t i o n o f grace. O n c e again, anachronism b e c k o n s . T h e Levellers w e r e n o t r e v o l u t i o n aries, but advocates o f r e v o l u t i o n ; not democrats, but nearly so; n o t secular thinkers, but (for the most part at least) Christians w h o w e l c o m e d for theological reasons the idea o f a secular society; n o t original philosophers, and yet the first to g i v e practical political expression to arguments w h i c h had p r e v i o u s l y seemed n o m o r e than h y p o t h e t i c a l possibilities. C e r t a i n l y , they are n o t our contemporaries; but equally certainly their capacity to think and argue w a s n o t restricted b y any c o n v e n t i o n a l c o m m i t m e n t to hierarchy, tradition, or o u t w a r d godliness. T h e r e w a s n e v e r any prospect o f their v i e w s gaining general acceptance in their o w n day; but H o b b e s m a y h a v e paid attention to t h e m ( W o o t t o n 1986, p p . 56—8), and L o c k e w a s almost certainly influenced b y t h e m (Ashcraft 1986), as T o m Paine w a s b y L o c k e . E v e n t u a l l y w h o l e societies w e r e to a c k n o w l e d g e the principles o f the A g r e e m e n t o f the P e o p l e , principles b o r n out o f second-hand scholastic p h i l o s o p h y (see T i e r n e y 1982) c o m b i n e d w i t h the practice and, equally i m p o r t a n t l y , the t h e o l o g y o f the sects. O u t o f the disjointed and discarded a r g u m e n t s o f B e l l a r m i n e and B u c h a n a n , c o u p l e d w i t h those o f Saltmarsh and W i l l i a m s , the Levellers built a coherent political p h i l o s o p h y . In large part that p h i l o s o p h y is still ours t o d a y , a l t h o u g h , since f e w o f us n o w believe the a r g u m e n t s out o f w h i c h it w a s first constructed, or share the experiences w h i c h first g a v e it m e a n i n g , a study o f its origins can serve o n l y to emphasise the c o n t i n u i n g difficulty o f defending it against the claims o f precedent and p r i v i l e g e .

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i

WORDEN

Sources and resources

T h e c o n t r i b u t i o n o f seventeenth-century republicanism to the d e v e l o p m e n t o f w e s t e r n political t h o u g h t w a s m a d e principally in E n g l a n d . In Italy the vitality o f Renaissance republicanism had been l a r g e l y extinguished b y 1600; in H o l l a n d the e m e r g e n c e o f the independent U n i t e d P r o v i n c e s 1

p r o d u c e d little systematic e x p l o r a t i o n o f republican principles; in France, Spain, and the e m p i r e the domestic opposition to the advances o f absolutism w a s particularist

rather than republican. In E n g l a n d ,

the

b r e a k d o w n o f political institutions b e t w e e n 1640 and 1660 stimulated a m o r e p r o f o u n d r e e x a m i n a t i o n o f political belief and practice. T h e ideas o f the English republicans are n o t easy to classify. W r i t i n g in order to shape events, t h e y adapted their a r g u m e n t s and their emphases to i m m e d i a t e circumstances. U s u a l l y w r i t i n g in opposition to the prevailing p o w e r , they d r e w h e a v i l y o n ideas o f contract and resistance and o f natural rights w h i c h were not flexible,

peculiarly republican. T h e i r constitutional

proposals

were

and the f o r m o f g o v e r n m e n t often mattered less to t h e m than its

spirit. T h e t e r m republican w a s not, o n the w h o l e , one w h i c h they sought, and w a s m o r e c o m m o n l y one o f abuse. Nevertheless, a republican tradition can be identified w h i c h w a s to enter the mainstream o f e i g h t e e n t h - c e n t u r y political ideas in Britain, o n the continent, and in A m e r i c a .

2

In the e m e r g e n c e o f that tradition there w e r e three m a i n stages. T h e first, and m o s t fruitful, b e l o n g s to the I n t e r r e g n u m o f 1649—60. It w a s a response to the e x e c u t i o n o f C h a r l e s I in 1649, to the abolition o f m o n a r c h y and o f the H o u s e o f L o r d s in the same year, and to the ensuing failure o f a series o f 1. For introductions to w h a t there was o f it, see K o s s m a n n i960; R o w e n 1978; Haitsma Mulier 1980. 2. T h e most recent literature on seventeenth-century republicanism is summarised b y P o c o c k 1985, pp. 2 1 5 - 3 4 . See also N u z z o 1984.

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i m p r o v i s e d Puritan r e g i m e s to p r o v i d e a durable alternative to kingship — an alternative w h i c h the republican writers o f the I n t e r r e g n u m s o u g h t to p r o v i d e . T h e first into the field w a s M a r c h a m o n t N e d h a m ; the m o s t eloquent w a s J o h n M i l t o n ; and the m o s t penetrating and influential w a s James H a r r i n g t o n , e v e n t h o u g h in s o m e respects his ideas w e r e eccentric t o the prevailing character o f the m o v e m e n t . T h e second stage w a s a response to the political crisis o f 1 6 7 5 - 8 3 , w h e n the menaces o f absolute m o n a r c h y and o f a C a t h o l i c succession b r o u g h t the prospect o f r e n e w e d civil w a r ; it w a s n o w that the republicans H e n r y N e v i l e and A l g e r n o n S i d n e y m a d e their main contribution t o political t h o u g h t . T h e third stage w a s p r o d u c e d b y the fresh constitutional anxieties o f the 1690s. A l t h o u g h the R e v o l u t i o n o f 1688—9 h a d dispelled the i m m e d i a t e threat o f t y r a n n y , liberty seemed n e w l y e n d a n g e r e d b y the expansion o f the e x e c u t i v e , b y corruption, b y the emasculation o f parliamentary independence, and, f r o m 1697, b y the maintenance o f a standing a r m y in peacetime. T h e principal republican w r i t i n g s o f this period w e r e b y R o b e r t M o l e s w o r t h , W a l t e r M o y l e , J o h n T r e n c h a r d , J o h n T o l a n d , and the S c o t A n d r e w Fletcher (for w h o m see R o b e r t s o n 1985). Despite the d e v e l o p m e n t s and adjustments o f republican t h o u g h t b e t w e e n 1650 and 1700, there are e n o u g h consistent elements in r e publicanism to enable us to study it as a b o d y o f ideas. A t its centre w a s a desire to learn f r o m and to emulate the achievements o f the c o m m o n wealths o f classical antiquity — principally Sparta and, a b o v e all, R o m e . It w a s in E n g l a n d that the classical vision o f Italian Renaissance humanists w a s preserved (and adapted) in the seventeenth century, and it w a s f r o m there that it subsequently reentered political t h o u g h t elsewhere. H u m a n i s t political t h o u g h t in E n g l a n d rested o n a base o f educated interest in classical politics that b r o a d e n e d significantly f r o m a r o u n d 1570. B y 1640 T h o m a s H o b b e s h a d d e v e l o p e d his belief, w h i c h he w a s often to express, that the English m o n a r c h y o w e d its difficulties t o the study b y its subjects o f 'the b o o k s o f p o l i c y , and histories, o f the ancient G r e e k s and R o m a n s ' — n o t least Aristotle's Politics. His claim has m a d e little impression o n historians, w h o h a v e been struck rather b y the constitutional conservatism o f Charles I's parliamentary o p p o n e n t s , b y their reluctance t o m o v e b e y o n d the insular and c u s t o m a r y terms o f c o n v e n t i o n a l debate, and b y the i m p r o v i s e d and limited content o f the political t h e o r y used to justify regicide in 1649. It 3

3. H o b b e s 1 8 3 9 - 4 5 , 11, P P - 1 5 3 , 1 7 1 - 2 , in, p p . 2 0 2 - 3 , iv, p p . 2 1 9 , 3 H - I 5 , v i , p p . 1 9 2 - 3 , 233. C f . Harrington 1 9 7 7 , p. 178.

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is indeed doubtful w h e t h e r a n y o n e in p r e - C i v i l W a r E n g l a n d believed that the fundamental principles o f the ancient constitution c o u l d be changed. E v e n in the later seventeenth century republicanism seemed to most people a b o o k i s h , Utopian ideal, b e y o n d the reach o f h u m a n s w h o s e natural weaknesses made the * o u t w a r d p o m p and gilding' o f m o n a r c h y indispen sable (Foxcroft 1898, 11, p p . 287—8, 460—1). In any case the lessons to be d r a w n f r o m classical politics w e r e n o t necessarily republican ones. T h e r e w e r e p r o b a b l y as m a n y critics o f the instability o f republican R o m e as admirers o f its virtues, and m o r e admirers o f A u g u s t u s Caesar than o f Marcus Brutus. Y e t w i t h i n H o b b e s ' overstatement lay a substantial point. R e p u b l i c a n ideas m i g h t be missing f r o m the political treatises o f the generations before the C i v i l W a r , but they w e r e often e x p l o r e d in i m a g i n a t i v e literature: in Sir Philip S i d n e y ' s Arcadia and the verse o f his friend Fulke G r e v i l l e ( W o r d e n 1986); and in plays b y Shakespeare, Jonson, and their contemporaries w h i c h indicate not m e r e l y the public interest in the evils o f courts and t y r a n n y but the alertness to R o m a n political t h o u g h t and history w h i c h p l a y w r i g h t s c o u l d e x p e c t f r o m their audiences. T h e same concerns are e v i d e n t in the private w r i t t e n reflections o f n o b l e m e n and g e n t l e m e n d i s m a y e d b y the g r o w i n g p o w e r s and the g r o w i n g ostentation o f the Renaissance monarchies o f E n g l a n d and the continent and b y the c o r r e s p o n d i n g decline o f representative institutions — a process to w h i c h the decay o f the R o m a n republic and the rise o f the e m p i r e appeared to offer pressing parallels ( W o r d e n 1 9 8 1 , p p . 185—90). A similar dismay can be found after the R e s t o r a t i o n o f 1660, w h e n it w a s ' c o u n t r y party' or ' c o u n t r y W h i g ' politicians and l a n d o w n e r s to w h o m republican w o r k s c a m e to be principally addressed and a m o n g w h o m republicanism — albeit in a diluted f o r m — exerted its political influence. T h e fountainhead o f the classical political inheritance w a s Aristotle. His w a s the v o c a b u l a r y w i t h w h i c h seventeenth-century m e n studied the forms o f g o v e r n m e n t and c o n c e i v e d o f politics as the pursuit o f the g o o d life. His account o f constitutions w a s supplemented b y B o o k vi o f P o l y b i u s ' Histories — a l t h o u g h this w a s an exclusive taste, not yet available in English. Plutarch's Lives, w h i c h taught m o r a l i t y rather than theory, w a s a less d e m a n d i n g and m o r e w i d e l y read w o r k , the Life o f L y c u r g u s h a v i n g a special interest for republicans. C i c e r o , w h o equipped t h e m w i t h a c o n c e p t i o n o f political justice and o f its relationship to g o o d g o v e r n m e n t , p r o b a b l y did m o r e than a n y o n e to shape their reading o f Aristotle. L i v y p r o v i d e d the essential m a p o f R o m a n history, and struck a responsive 445

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c h o r d w i t h his lament for the lost virtues o f an earlier age. Tacitus supplied v i v i d images o f t y r a n n y w h i c h the evils o f Stuart rule w e r e often held to reflect. T h e histories o f Sallust and Q u i n t i l i a n w e r e likewise k e e n l y studied. H i s t o r y to republicans w a s the b e g i n n i n g o f political w i s d o m . B e l i e v i n g that 'the same causes w i l l p r o d u c e like effects in all a g e s ' , they saw the past as a storehouse o f e x a m p l e s , w h e r e constant, universal principles underlay the fluctuations o f events - a l t h o u g h sometimes, as in the w o r k s o f A l g e r n o n S i d n e y and o f Fletcher, there is a c o m p e t i n g awareness o f history as an organic process, and a greater interest in the relationship o f event to context. 4

R e p u b l i c a n s found their principal g u i d e to antiquity in M a c h i a v e l l i ( R a a b 1964; P o c o c k 1975). Despite the o b l o q u y that still attached to his n a m e , M a c h i a v e l l i ' s influence w a s widespread, especially after the a p pearance in English o f The Discourses (1636) and The Prince (1640). A l t h o u g h the study o f M a c h i a v e l l i w a s never t h o u g h t o f as a substitute for a k n o w l e d g e o f the b r o a d classical inheritance o n w h i c h he had p r o v i d e d an angled c o m m e n t a r y , w e shall find w a y s in w h i c h the o u t l o o k o f English republicans w a s essentially M a c h i a v e l l i a n . B u t republican ideas w e r e not stimulated o n l y b y b o o k s . T h e y w e r e nourished, t o o , b y travel. O n the continent, E n g l i s h m e n w e r e able to c o m p a r e the s w a y o f p o p e r y , p o v e r t y , and t y r a n n y in France and Spain w i t h the heroic exploits o f the small republics: o f the prosperous U n i t e d P r o v i n c e s , w h i c h had cast off the Spanish y o k e ; o f S w i t z e r l a n d , the capital o f the r e f o r m e d religion; and o f V e n i c e , w h i c h had t h w a r t e d the C o u n t e r - R e f o r m a t i o n papacy. A d m i r ation for the U n i t e d P r o v i n c e s w a s curbed b y a suspicion that its constitution, a bizarre and i m p r o v i s e d solution to the needs o f w a r , c o u l d not last; S w i t z e r l a n d w a s admired m o r e for its military than for its constitutional organisation; but V e n i c e , w h i c h seemed u n i q u e l y to h a v e learned h o w to c o m b i n e liberty w i t h stability, aroused acute interest a m o n g E n g l i s h m e n , w h o l o v e d to visit it, w h o b y 1600 w e r e already suspected o f i m b i b i n g republican principles there ( N o r b r o o k 1984, p. 130), and w h o studied its elaborate constitution m a i n l y in the accounts b y D o n a t o G i a n n o t t i (not available in English) and Gasparo C o n t a r i n i (translated in 1599). English republicanism w a s 'a l a n g u a g e , not a p r o g r a m m e ' ( P o c o c k , in H a r r i n g t o n 1977, p. 15). O n l y rarely w e r e its exponents u n c o m p r o m i s i n g l y o p p o s e d to kingship (cf. Fink 1945; W e s t o n 1984). T h e y did point 4. Argument

1697, p. 5. Cf. Harrington 1 9 7 7 , p p . 3 1 1 , 687, 770; Sidney 1 7 7 2 , pp. 134, 220.

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repeatedly to the inherent disadvantages o f m o n a r c h y : hereditary k i n g s w e r e often incapable and usually b e h a v e d as i f they w e r e o w n e r s rather than servants o f their countries; elective monarchies, preferable in other respects, p r o d u c e d wars o f succession; and e v e n virtuous rulers, b o u n d b y constitutional restraints, w e r e liable to be corrupted b y p o w e r and to e x t e n d it at the subject's expense. Y e t republicans k n e w f r o m Aristotle and P o l y b i u s that a healthy and durable state is one in w h i c h there are m i x e d or balanced the three principles o f g o v e r n m e n t — the rule o f the one, o f the f e w , and o f the m a n y — and their corresponding forms — m o n a r c h y , aristocracy, and d e m o c r a c y . E v e n in the 1650s, w h e n it w a s m u c h easier to argue p u b l i c l y against m o n a r c h y than it b e c a m e after 1660, H a r r i n g t o n and his f o l l o w e r s w e r e prepared to c o n c e d e a role for a 'single person' in g o v e r n m e n t , albeit usually a t e m p o r a r y one. R e p u b l i c a n s after the R e s t o r a t i o n , sometimes m o r e concerned to emphasise the people's right to set up w h a t e v e r f o r m o f g o v e r n m e n t they chose than to assert the merits o f a particular f o r m , w e r e n o r m a l l y w i l l i n g to c o n c e d e the validity o f ' m i x e d ' , 'regular', 'regulated', 'limited', 'legal m o n a r c h y ' , w h i c h they contrasted w i t h the evil o f 'absolute m o n a r c h y ' (or occasionally o f hereditary m o n a r c h y , a l t h o u g h in general they c o n c e d e d the people's right to establish hereditary rule ). After 1688, anxious not to jeopardise the a d m i t t e d l y restricted gains w h i c h the R e v o l u t i o n had b r o u g h t , the heirs o f H a r r i n g t o n b e c a m e e v e n readier to distance themselves f r o m the 're publican pretences' o f outright opponents o f m o n a r c h y , e v e n t h o u g h the l a n g u a g e o f ' m i x e d m o n a r c h y ' b e c a m e less attractive to republicans n o w that the court had adopted it for its o w n ( T o l a n d 1702, p. 4; H a r r i n g t o n 1700, p. vii). 5

6

R e p u b l i c a n s n e v e r claimed that the existence o f the English m o n a r c h y w a s constitutionally invalid. E v e n N e d h a m , celebrating in 1650 the o v e r t h r o w o f the ancient constitution the previous year, t h o u g h t 'no sober m a n ' capable o f affirming that E n g l i s h m e n had lived 'in times past under an u n l a w f u l m a g i s t r a c y ' ( N e d h a m 1 9 7 1 , 1 , p. 322). T h e republican c o m p l a i n t w a s rather that the true character o f the m o n a r c h y had been perverted. In the m i d d l e ages it had been an elective rather than an hereditary institution, e v e n i f for c o n v e n i e n c e the p e o p l e had usually elected the eldest s o n . A l t h o u g h for v a r y i n g reasons all republicans b e l i e v e d m e d i e v a l kingship to 7

5. Sidney 1666?, p p . 2 2 , 67, 1 9 5 - 2 1 1 , 1 7 7 2 , pp. i n ,

160, 164, 248, 2 6 6 - 7 , 333, 339~4Q, 437;

Argument

1697, p. 2; M o y l e 1969, p. 243; Fletcher 1 7 3 2 , pp. 8-9, 39, 383, 390. C f . H a r r i n g t o n 1 9 7 7 , p. 401. 6. Sidney 1666?, pp. 1 7 , 3 1 ; Sidney 1 7 7 2 , p p . 8 0 , 139; M o y l e 1969, p. 226. 7. M i l t o n 1 9 5 3 - 8 2 , H I , p. 203; Sidney 1666?, p. 12; Sidney 1 7 7 2 , pp. 4 5 - 6 , 9 1 , 95, 203, 3 2 1 , 377.

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h a v e been unsatisfactory, they agreed that o n l y in m o r e recent times had the institution b e c o m e intolerable. A d m i t t e d l y the role w h i c h they envisaged for a 'single person' in their o w n time is hard to locate. T h a t perhaps is because, true to their c o u n t r y party perspective, they s h o w e d so little interest in the w o r k i n g o f the e x e c u t i v e . O n c e the constitution h a d been r e m o d e l l e d o n classical principles, they seemed to i m p l y , there w o u l d be little for an e x e c u t i v e to d o . Less i m p o r t a n t in the minds o f republicans than the presence o r absence o f a k i n g w a s the distinction, w h i c h they inherited f r o m the Protestant resistance theorists o f the later sixteenth century, b e t w e e n g o v e r n m e n t i m p o s e d f r o m a b o v e and that derived f r o m consent. T h e former w a s rule in the interest o f one o r a f e w m e n , o f a 'separate and distinct interest' f r o m the people. T h e latter w a s g o v e r n m e n t in the interest o f the w h o l e : a ' c o m m o n w e a l t h ' g o v e r n i n g for the ' c o m m o n w e a l ' . E q u a l l y i m p o r t a n t in republican minds — a l t h o u g h n o m o r e original - w a s the distinction b e t w e e n the rule o f l a w and the rule o f m e n . L a w w a s the e m b o d i m e n t o f reason: m e n w h o ruled other than in the service o f l a w b e c a m e the slaves o f w i l l , lust, and passion, w h i l e those w h o served or supported t h e m w e r e g u i l t y o f idolatry, o f the enslavement and debasement o f the w i l l . A c o m m o n w e a l t h w h e r e l a w prevailed, w h e t h e r or n o t it h a d a k i n g , w a s a 'free state': its antithesis w a s t y r a n n y . W i t h o n e h a l f o f their minds republicans c o n d e m n e d the tyrannical evils w r o u g h t b y kingship in the w o r l d a r o u n d t h e m ; w i t h the other they c l u n g to the Aristotelian and C i c e r o n i a n equation o f true kingship w i t h l a w and justice and reason, and to 'that excellent m a x i m o f the ancients (almost e x p l o d e d in this age) that the interest o f k i n g s and o f their p e o p l e is the same' ( N e v i l e 1 6 7 5 , 'Letter', p. 4). T h e y offered first and foremost a criticism o f tyrants rather than o f kings. ' I f I attack tyrants,' asked M i l t o n , ' w h a t is this to kings . . .? A s a g o o d m a n differs f r o m a b a d , so m u c h , I hold, does a k i n g differ f r o m a tyrant' ( M i l t o n 1 9 5 3 - 8 2 , iv (i), p . 5 6 1 ) . ' N o t h i n g is farther f r o m m y intention', e c h o e d S i d n e y , 'than to speak irreverently o f k i n g s ' (Sidney 1 7 7 2 , p . 160). E v e n so, in the seventeenth century the reign o f a true Aristotelian k i n g w a s , o b s e r v e d Sidney, m e r e l y 'a distant i m a g i n a r y possibility' (p. 387). T h e republicans' criticisms o f existing monarchies w e r e t o o penetrating to b e m e t w i t h i n the ancient constitution, w h o s e grip o n the seventeenth-century political i m a g i n a t i o n they helped to loosen. 8

8. M i l t o n 1 9 5 3 - 8 2 , in, pp. 1 9 9 - 2 0 0 ; H a r r i n g t o n 1 9 7 7 , pp. 1 7 0 , 205, 401; Sidney 1666?, p. 200; Sidney 1 7 7 2 , p. 1; Argument

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A l t h o u g h the C i v i l W a r p r o m p t e d a fresh interest in V e n i c e and in classical constitutions (Smith 1 9 7 1 , pp. 38—9), it w a s o n l y after the e x e c u t i o n o f the k i n g that the aim o f e m u l a t i n g t h e m w a s extensively canvassed. T h e erection o f the C o m m o n w e a l t h in 1649 introduced the one period in the seventeenth century w h e n kingship w a s o u t l a w e d and w h e n the t e r m Tree state' u n a m b i g u o u s l y meant a kingless c o m m o n w e a l t h . T o s h o w 'that a free state is m u c h m o r e excellent than any other f o r m ' w a s the aim o f N e d h a m ( N e d h a m 1 9 7 1 , i v , p . 101). A l t h o u g h the liveliest w r i t e r a m o n g the English republicans, his a d o p t i o n o f republicanism w a s opportunist. A royalist c a u g h t plotting against the n e w r e g i m e , he earned his p a r d o n b y b e c o m i n g editor in 1650 o f the g o v e r n m e n t ' s n e w s p a p e r Mercurius Politicus and b y w r i t i n g , o v e r the n e x t t w o years, editorials to justify the abolition o f m o n a r c h y and to w i n support for the republic. S o m e o f t h e m w e r e taken f r o m his The Case of the Commonwealth of England Stated (1650); others w o u l d reappear in his The Excellency of a Free State (1656). A s editor, N e d h a m found h i m s e l f in the role, unusual for an English republican, o f a d v o c a t e rather than critic o f g o v e r n m e n t policies, to the d e v e l o p m e n t o f w h i c h his editorials w e r e finely attuned. Classical, continental and English history w e r e l o o t e d for illustrations o f the superiority o f republics, illustrations w h i c h h a v e a distinctively M a c h i a v e l l i a n ring. It w a s at the same time (1651—2) that N e d h a m ' s friend M i l t o n w a s e x p l o r i n g M a c h i a v e l l i ' s w r i t i n g s ( M i l t o n 1 9 5 3 - 8 2 , 1 , p. 512). M i l t o n w i s h e d the n e w republic to b e c o m e 'another R o m e in the W e s t ' (vn, p . 357); and the b a c k g r o u n d to N e d h a m ' s editorials is the military and naval exploits w h i c h earned the infant C o m m o n w e a l t h h e a d y comparisons w i t h republican G r e e c e and R o m e . N e d h a m ' s n e w s p a p e r g a v e a m o u t h p i e c e to a republican g r o u p in parliament w h i c h included A l g e r n o n Sidney and H a r r i n g t o n ' s friend N e v i l e ( W o r d e n 1 9 8 1 , pp. 1 9 5 - 9 ) . B u t N e d h a m w a s close t o o to a r m y radicals w h o w e r e impatient o f the C o m m o n w e a l t h ' s tardiness in i n t r o d u c i n g social r e f o r m . N e d h a m is perhaps socially the m o s t radical o f the republicans, for his attacks o n kings are assaults also on that ' l o r d l y interest' ( N e d h a m 1 9 7 1 , i v , p p . 2i3ff, 2458) to w h i c h peers and the rich w e r e likewise t h o u g h t to b e l o n g , and against w h i c h m u c h o f the a r m y ' s social criticism w a s directed. W h i l e other republicans admired V e n i c e , N e d h a m dismissed it as an o l i g a r c h y or 'multiplied m o n a r c h y ' ; 9

9.

N e d h a m 1 9 7 1 , 111, pp. 3 1 0 - 1 1 , iv, pp. i65fF, 245fF, 293fF, 3 8 9 ^

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and unlike other republicans he w a s d r a w n m o r e to democratic A t h e n s than to aristocratic Sparta. His aim w a s to w i n support for the C o m m o n w e a l t h f r o m independent freeholders, the class w h i c h republicans saw as the equivalent, in the p r e d o m i n a n t l y agricultural society o f E n g l a n d , to the citizenry o f republican R o m e and o f M a c h i a v e l l i ' s Florence. W i t h the appearance in 1656 o f H a r r i n g t o n ' s Oceana, w e encounter a major thinker. H a r r i n g t o n b e l o n g e d to a family o f ancient g e n t r y in the M i d l a n d s . H a v i n g travelled o n the continent in the 1630s, he kept out o f the C i v i l W a r s , but in 1647 entered the service o f the imprisoned k i n g , for w h o m he d e v e l o p e d a w a r m fondness, and w h o s e e x e c u t i o n w a s a great b l o w to h i m . A t one level Oceana - like the Horatian O d e o f H a r r i n g t o n ' s intimate friend A n d r e w M a r v e l l - can be understood as an attempt to c o m e to terms w i t h the brutal abolition o f the old order and w i t h the n e w facts o f p o w e r . T h e w o r k was also a response to O l i v e r C r o m w e l l ' s seizure o f p o w e r in 1653. It is likely that H a r r i n g t o n w a s in t o u c h w i t h the ' c o m m o n w e a l t h m e n ' — a g r o u p o f parliamentary and a r m y leaders w h o wished to restore the republic C r o m w e l l had destroyed. E v e n so, Oceana was ostensibly l o y a l to the Protector, w h o m it invited to fill the role o f republican l a w g i v e r . H a r r i n g t o n ' s hostility to h i m b e c a m e evident o n l y in 1659, after C r o m w e l l ' s death, w h e n H a r r i n g t o n published The Art of Lawgiving and s o m e shorter w o r k s . His purpose n o w w a s to persuade his c o u n t r y m e n to grasp the o p p o r t u n i t y created b y the collapse o f the Protectorate to design the constitution afresh. B y the a u t u m n his hopes w e r e p r o b a b l y failing. It w a s n o w that the R o t a C l u b , a brilliant constitutional talking-shop, w a s founded under his chairmanship. T h e club disintegrated as the return o f m o n a r c h y approached in 1660. In 1661 H a r r i n g t o n w r o t e a pithy manuscript w o r k ' A S y s t e m o f Polities', but thereafter his days as a creative political thinker w e r e past. H a r r i n g t o n is n o t an easy writer. T h r i l l i n g aphoristic perceptions leap f r o m passages o f uncertain syntax and m e a n i n g . B u t persistence is r e w a r d e d . Oceana is a plea for the political p h i l o s o p h y o f M a c h i a v e l l i , ' w h o s e b o o k s are n e g l e c t e d ' (Harrington 1977, p. 161), against that o f H o b b e s , w h o s e Leviathan had appeared in 1 6 5 1 . M a n y features o f H o b b e s ' t h o u g h t d i s m a y e d H a r r i n g t o n : his scorn for the lessons o f history and experience, for classical political t h o u g h t , for the principle o f m i x e d g o v e r n m e n t , and for civic participation; his pessimistic a c c o u n t o f h u m a n nature; his reduction o f politics to mechanical and abstract hypotheses. W i t h M a c h i a v e l l i , H a r r i n g t o n b e g a n b y reflecting on the past. L i k e M a c h i a v e l l i , t o o , he believed that political stability and health c o u l d be attained o n l y b y 450

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a radical departure f r o m the practice o f the present and b y a return to the w i s d o m o f antiquity: to w h a t H a r r i n g t o n called 'ancient prudence'. E u r o p e , he believed, had turned fatally to ' m o d e r n p r u d e n c e ' w h e n the barbarian invasion b r o k e the R o m a n E m p i r e and ' d e f o r m e d the w h o l e face o f the w o r l d w i t h those ill features o f g o v e r n m e n t w h i c h at this time are b e c o m e far w o r s e in these western parts, e x c e p t V e n i c e ' (p. 161). His repudiation o f m e d i e v a l politics presented a fundamental challenge to the c o n v e n t i o n a l terms o f discussion. T o Charles I's parliamentary opponents — and to H a r r i n g t o n ' s republican successors — the ' G o t h i c ' polities o f E u r o p e and the 'ancient constitution' o f m e d i e v a l E n g l a n d , w h a t e v e r their defects, had sustained a liberty w h i c h early m o d e r n m o n a r c h y had u n d e r m i n e d . H a r r i n g t o n s w e p t such notions aside. T h e G o t h i c constitution had been 'no other than a w r e s t l i n g m a t c h ' b e t w e e n c r o w n and n o b i l i t y (p. 196); and n o w it w a s in ruins. Salvation lay n o t in its resurrection but in its a b a n d o n m e n t , and in the adaptation o f classical political principles to English circumstances. T o those principles he added, as he believed, a d i s c o v e r y o f his o w n w h i c h , i f the nation w o u l d o n l y grasp it, w o u l d transform political understanding and m a k e possible, amidst an instability e v e n m o r e chronic in E n g l a n d than elsewhere in mid-seventeenth-century E u r o p e , the creation o f a perfect and permanent c o m m o n w e a l t h . T h a t d i s c o v e r y w a s 'the doctrine o f the balance' (p. 580). Its premise w a s that political p o w e r a l w a y s f o l l o w s e c o n o m i c p o w e r ; and to H a r r i n g t o n , as to most o f his republican successors o f the century, e c o n o m i c p o w e r w a s landed p o w e r . A s his admirer D a v i d H u m e w a s to say, H a r r i n g t o n ' m a d e p r o p e r t y the foundation o f all g o v e r n m e n t ' (Smith 1 9 7 1 , p. 147). T h e secret o f political stability, in H a r r i n g t o n ' s eyes, w a s to ensure that the balance o f political p o w e r in a nation reflected the balance o f e c o n o m i c p o w e r . T h a t principle, he believed, had often been d i m l y perceived: b y M a c h i a v e l l i , ' w h o hath missed it v e r y n a r r o w l y ' (Harrington 1977, p. 166), b u t also b y Aristotle, b y Plutarch, b y W a l t e r R a l e g h and Francis B a c o n ( t w o authors f r o m w h o m he derived m u c h o f his understanding o f English history), and b y H a r r i n g t o n ' s c o n t e m p o r a r y J o h n Selden ( w h o s e studies o f land tenure, together w i t h those o f Sir H e n r y S p e l m a n , m a d e the f o r m u l a t i o n o f H a r r i n g t o n ' s thesis possible). H a r r i n g t o n turned the principle o f the balance into the starting point o f constitutional design. In classical terms, the p r e d o m i n a n t f o r m o f g o v e r n m e n t — m o n a r c h y , aristocracy, or d e m o c r a c y — must be chosen a c c o r d i n g to the distribution o f landed w e a l t h . B u t H a r r i n g t o n also believed that the o n l y g o v e r n m e n t capable o f a n s w e r i n g to the 'interest' o f the w h o l e c o m m u n i t y , and so o f 45i

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a c h i e v i n g 'a full perfection' (p. 180), w a s a p r e d o m i n a n t l y d e m o c r a t i c one (although n o t a p u r e l y d e m o c r a t i c one, for H a r r i n g t o n ' s classical instincts rebelled against all pure forms o f g o v e r n m e n t ) . It so happened that e c o n o m i c d e v e l o p m e n t s had m a d e the 'popular g o v e r n m e n t ' or 'equal c o m m o n w e a l t h ' w h i c h he w i s h e d to see in E n g l a n d not o n l y possible but inevitable. T h e disintegration o f the G o t h i c p o l i t y in the C i v i l W a r s had g i v e n E n g l a n d an o p p o r t u n i t y to establish a c o m m o n w e a l t h w h i c h w o u l d n o t m e r e l y emulate the g l o r y o f the R o m a n republic but, b y b u i l d i n g the principle o f the balance into its constitution, achieve the i m m o r t a l i t y w h i c h republican R o m e had been denied. T h e G o t h i c polities, in H a r r i n g t o n ' s eyes, had been p r e d o m i n a n t l y aristocratic. T o his republican successors o f the R e s t o r a t i o n period, that characteristic w a s a virtue; but n o t to h i m . H e believed that the English m o n a r c h y , h a v i n g g i v e n the n o b i l i t y its feudal lands, had b e c o m e dependent u p o n it for order and for warfare, w h i l e the c o m m o n s w e r e b o u n d to the n o b i l i t y b y feudal tenure. T h e nobles determined the o c c u p a n c y o f the throne, and their quarrels o n that score i n v o l v e d the tenured c o m m o n a l t y in wars w h i c h c o u l d profit it n o t h i n g . E v e n t u a l l y the m o n a r c h y , anxious to free itself f r o m n o b l e control, had destroyed the feudal system — and so destroyed itself. First it created, alongside the old nobility, a n e w n o b i l i t y w h i c h o w e d its position to r o y a l f a v o u r alone — and w h i c h , l a c k i n g e c o n o m i c p o w e r , 'had n o shoulders' to support the c r o w n (p. 196). B u t the fatal b l o w s w e r e delivered b e t w e e n 1485 and 1547: b y H e n r y VII's legislation against n o b l e w e a l t h and retinues, and then b y H e n r y VIII's dissolution o f the monasteries. T h o s e policies had p r o d u c e d a massive redistribution o f land in favour o f the c o m m o n s , w h o naturally d e m a n d e d a political p o w e r proportionate to their prosperity. B y the time o f j a m e s I parliaments w e r e 'running u n t o popularity o f g o v e r n m e n t like a b o w l d o w n the hill' (p. 680); and Charles I, w h o s e policies in the 1630s put the strength o f the m o n a r c h y ' u n t o unseasonable trial' (p. 609), w a s left to discover that the c r o w n had lost its base o f p o w e r . T h e o u t c o m e o f the C i v i l W a r s h o w e d that ' W h e r e v e r the balance o f a g o v e r n m e n t be, there naturally is the militia o f the same' (p. 605). M i l i t a r y p o w e r , like parliamentary p o w e r , had passed to the c o m m o n s . T h e simultaneous collapse o f kingship and o f the H o u s e o f L o r d s in 1649, and the rise o f the H o u s e o f C o m m o n s to s u p r e m a c y at their expense, g a v e plausibility to H a r r i n g t o n ' s thesis (as, n o d o u b t , they had been largely instrumental in p r o d u c i n g it), and w o n it a considerable measure o f acceptance. H a r r i n g t o n ' s claims about recent English history w e r e not based o n 452

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research. His statements about b o t h the pace and the extent o f the transfer o f land w e r e v a g u e w h e n they w e r e n o t guessed; and in the hands o f his supporters and successors b o t h the c h r o n o l o g y and the arithmetic w e r e subjected to arbitrary variation. Friends and critics alike c o m p l a i n e d o f H a r r i n g t o n ' s refusal to a c k n o w l e d g e the influence o f m o t i v e s other than e c o n o m i c ones, and o f his inability to understand h o w hard to b r i d g e w o u l d be the g a p b e t w e e n m e n ' s true interests and their o w n perceptions o f t h e m . Nevertheless, H a r r i n g t o n offered his contemporaries a n e w and c o m p e l l i n g approach to the p r o b l e m o f understanding the experience o f civil w a r t h r o u g h w h i c h they had lived. His claim that 'the dissolution o f this g o v e r n m e n t caused the w a r , and not the w a r the dissolution o f the g o v e r n m e n t ' (p. 198) challenged m e n to o v e r c o m e the divisions and bitterness o f the conflict, and to e x a m i n e impersonal forces w h i c h neither k i n g n o r parliament had understood. Charles I's intentions had not been sinful. H e had seemed a tyrant o n l y because the c o m m o n s had lacked p o w e r c o m m e n s u r a t e w i t h their p r o p e r t y . H a r r i n g t o n had his o w n political sympathies in the 1650s, as w e shall see, but he w a s justified in c l a i m i n g that 'I n e v e r w a s n o r a m o f any party' (p. 390). His relative detachment distinguishes h i m f r o m the general m o v e m e n t o f seventeenthcentury republicanism — as does his consequent lack o f interest in theories designed to justify resistance. T h e author of Oceana offered n o t o n l y a diagnosis o f England's p r o b l e m s but a cure. T h e transfer o f p o w e r to the c o m m o n s w o u l d be secured and immortalised b y t w o 'superstructures': an 'agrarian l a w ' and 'rotation' (p. 180). A l t h o u g h he k n e w that agrarian laws had often been b l a m e d for the decline o f republics, he b e l i e v e d that the p r o b l e m had a l w a y s lain not in the legislation but in the failure to adhere to it. H a r r i n g t o n ' s 'agrarian' w o u l d o u t l a w extremes o f w e a l t h and p o v e r t y . N o one, he proposed, should be a l l o w e d to inherit land w o r t h m o r e than .£2,000 P-a. T h e principle o f 'rotation' w o u l d find expression in the regular election and replacement o f office-holders and o f the people's representatives. In c o m m o n w i t h N e d h a m ( N e d h a m 1 9 7 1 , iv, pp. 37ft), and indeed w i t h the w i d e b o d y o f radical o p i n i o n w h i c h had pleaded for 'successive representa tives' to replace the L o n g Parliament, H a r r i n g t o n t h o u g h t o f ' m o t i o n ' in office-holding as a counter to b o t h stagnation and corruption (Harrington 977> p. 248). It w o u l d enforce that accountability w h i c h all republicans w e r e anxious to see; and it w o u l d meet the Aristotelian precept, stressed t o o b y N e d h a m ( W o r d e n 1977, p. 362) and endorsed b y later republicans as w e l l , that m e n must learn h o w to o b e y as w e l l as to c o m m a n d . It w o u l d 1

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also p r o v i d e an antidote to faction, for the elimination o f w h i c h H a r r i n g t o n proposed an intricate system o f ballot v o t i n g m o d e l l e d o n the practices o f V e n i c e . In H a r r i n g t o n ' s c o m m o n w e a l t h there w o u l d be t w o elected assemblies, the first w i t h the p o w e r o f debate, the second w i t h the p o w e r o f resolution: the first w o u l d formulate proposals w h i c h the second, w i t h o u t discussion, must either accept or reject. T h i s division o f p o w e r w o u l d forestall that tendency to corruption w h i c h , he believed, the Levellers' scheme for a single sovereign assembly w o u l d p r o d u c e (Harrington 1977, p p . 656—7). It w o u l d also ensure that the c o m m o n w e a l t h profited not o n l y f r o m the experience o f the m a n y ( w h o w o u l d h a v e the p o w e r o f resolution) but f r o m the w i s d o m o f the f e w ( w h o w o u l d h a v e the p o w e r o f debate). T h e r e was, H a r r i n g t o n t h o u g h t , a G o d - g i v e n 'natural aristocracy' o f w i s d o m (p. 173). In any c o m m u n i t y o f citizens — as in any herd o f cattle — about a third o f the m e m b e r s w i l l e m e r g e as natural leaders o f the rest. O n l y i f the constitution t o o k account o f their superiority, and confined the p o w e r o f debate to t h e m , w o u l d the principle o f reason flourish in the c o m m o n w e a l t h . In E n g l a n d the natural leaders w e r e the gentry, w h o s e c o m m a n d o f the processes o f debate w o u l d be secured b y electoral p r o p e r t y qualifica tions. For 'there is s o m e t h i n g first in the m a k i n g o f a c o m m o n w e a l t h , then in the g o v e r n i n g o f her . . . w h i c h . . . seems to be peculiar u n t o the genius o f a g e n t l e m a n ' (p. 183). A t the same time, lacking the p o w e r o f resolution, the g e n t r y w o u l d be prevented from g o v e r n i n g in their o w n sectional interest; for 'the w i s d o m o f the f e w m a y be the light o f m a n k i n d , but the interest o f the f e w is not the profit o f m a n k i n d , nor o f a c o m m o n w e a l t h ' (p. 173). It w a s 'popular g o v e r n m e n t ' that c a m e 'the nearest unto the interest o f m a n k i n d ' and so 'unto right reason' (p. 172). T o H a r r i n g t o n 'reason' and 'interest' w e r e natural allies, a point he illustrated b y his e x a m p l e o f t w o girls sharing a cake: ' " d i v i d e " , says one unto the other, " a n d I w i l l choose; or let m e divide, and y o u shall c h o o s e " ' (p. 172). In H a r r i n g t o n ' s c o m m o n w e a l t h , a rational division o f p o w e r w o u l d find acceptance on the same principle. Y e t w h i l e 'interest' plays a k e y part in H a r r i n g t o n ' s system, he believed that political activity should transcend it. H e w a n t e d E n g l i s h m e n to 'raise ourselves out o f the mire o f private interest u n t o the c o n t e m p l a t i o n o f virtue' (p. 169). T h e straightforward antithesis b e t w e e n private interest and virtue w a s subjected to increasing scepticism in the seventeenth century ( G u n n 1969), but not, on the w h o l e , b y republicans. O n l y at the end o f the period w a s an a n o n y m o u s republican p r o b a b l y M o y l e , w h o often b r o u g h t clarity to points w h e r e his hero 454

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H a r r i n g t o n had left confusion or contradiction — prepared to portray the h a r m o n i s i n g o f private w i t h public interest as a matter o f artificial manipulation, in w h i c h man's natural selfishness w o u l d be harnessed to, rather than extinguished b y , the c o m m o n g o o d (Short History, 1698, p. hi) Oceana is w r i t t e n — as H a r r i n g t o n ' s later, m o r e succinct w o r k s are not — in a fictional f o r m , and its elements o f playfulness and fantasy can g i v e an impression o f remoteness f r o m reality. Y e t he w a s c o n v i n c e d that his c o u n t r y ' s happiness depended u p o n the i m p l e m e n t a t i o n o f his ideas; and in 1659, his despair m o u n t i n g as the nation's republican o p p o r t u n i t y seemed to slip a w a y , he m o d i f i e d his proposals in the h o p e o f securing their acceptance (Harrington 1977, p p . 662, 664—5). Despite the alien names he g a v e to the constitutional devices or 'orders' o f O c e a n a (the equivalent to the ordini o f V e n i c e ) , they b o r e close resemblance to existing English practices o f local g o v e r n m e n t and electoral regulation. His proposals b o r e resemblances, t o o , in l a n g u a g e and content, to m u c h o f the ' c o m m o n w e a l t h m e n ' p r o g r a m m e o f the 1650s. T h e r e is his dislike o f the ' n e g a t i v e v o i c e ' o f the peers (p. 261); o f 'covetousness' and ' p o m p and expense' (pp. 240, 353); o f the 'grandees' (pp. 265, 286) and o f the oligarchical R u m p Parliament (pp. 205-6, 243, 295, 737, 7 4 4 - 5 ) ; o f the usurping and perfidious 'tyrant' C r o m w e l l ( p p . 7 2 9 , 737, 750, 859) — a w o r d he w o u l d n e v e r h a v e used o f Charles I; o f C r o m w e l l ' s major-generals and the d e c i m a t i o n tax that financed t h e m ( p p . 1 9 6 , 228, 316). T h e r e is his enthusiasm for electoral and legal r e f o r m (pp. 237, 472—3); his eagerness to i m p r o v e the lot o f y o u n g e r sons ( p p . 2 3 7 , 472—3) and o f the oppressed c o m m o n s o f Scotland (pp. 159, 240, 331); his a d o p t i o n o f the l a n g u a g e o f the ' g o o d old cause' (pp. 660, 730), o f an 'equal c o m m o n w e a l t h ' and an 'equal representative' (p. 227); and his M i l t o n i c admiration for the 'ancient heroes' a m o n g the a r m y c o m m o n w e a l t h m e n (p. 744). E v e n so, H a r r i n g t o n had serious disagreements w i t h the radicals o f 1659. B e l i e v i n g as he did in g o o d laws rather than g o o d m e n , he mistrusted those self-appointed guardians o f the g o o d old cause like Sir H e n r y V a n e w h o w i s h e d , either t h r o u g h a 'standing senate' or t h r o u g h the rule o f the saints, to entrench their o w n authority, and w h o m H a r r i n g t o n b e l i e v e d to be as susceptible to c o r r u p t i o n as e v e r y o n e else (pp. 204, 7 3 1 , 736, 744—5). H e w a s also sure that so l o n g as the c o m m o n w e a l t h m e n e x c l u d e d f o r m e r royalists f r o m politics, their g o v e r n m e n t w o u l d be the rule o f a 'party', n o t a ' c o m m o n w e a l t h ' (p. 204). O n e o f H a r r i n g t o n ' s critics w a s J o h n M i l t o n . M i l t o n ' s republican values can be found not o n l y in his prose but in his greatest p o e t r y . For h i m 455

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perhaps m o r e than for any other republican, politics are a public projection o f the w a r w a g e d b e t w e e n reason and passion w i t h i n e v e r y soul. T h e r e can be n o true political reformation w h i c h is n o t also a reformation o f manners and morals, o f the household, o f education ( M i l t o n 1 9 5 3 - 8 2 , e.g. 11, p p . 229-30, 476, in, p . 190, iv(i), p. 680). J o h n A u b r e y ' s statement that M i l t o n ' s ' b e i n g so conversant in L i v y and the R o m a n authors, and the greatness d o n e b y the R o m a n c o m m o n w e a l t h ' had led h i m to w r i t e against m o n a r c h y is a simplification, but has the merit o f directing us to the f o r m i d a b l e reading w h i c h seems to h a v e led M i l t o n t o w a r d s republicanism e v e n before the C i v i l W a r . It w a s apparently in 1637—8 that he noted the o p i n i o n o f Sulpicius Severus 'that the n a m e o f k i n g s has e v e r been hateful to free peoples', and b e t w e e n 1640 and 1642 that he recorded the v i e w of M a c h i a v e l l i that 'a c o m m o n w e a l t h is preferable to a m o n a r c h y ' (1, p p . 4 2 1 , 440). L i k e H a r r i n g t o n , M i l t o n learned f r o m the C i v i l W a r to renounce insular and b a c k w a r d - l o o k i n g solutions to England's p r o b l e m s : his c o u n t r y m e n w o u l d 'miscarry still' unless they turned for guidance to 'foreign w r i t i n g s and e x a m p l e s o f best ages' — and in particular to M e d i t e r r a n e a n t h o u g h t and history (v(i), p . 4 5 1 ) . T h e d e v e l o p m e n t o f M i l t o n ' s republicanism is n o t easy to chart. His pamphlets o f the earlier 1640s, o f 1649—50, and o f 1654 w e r e w r i t t e n at times w h e n the r e g i m e s for w h i c h he w r o t e t h e m w e r e reluctant to e n c o u rage candid republican speculation. E v e n w h e n republican enthusiasm c o m e s to the surface o f his w r i t i n g s it is qualified b y his doubts w h e t h e r his c o u n t r y m e n are 'fit' for republican rule (1, p. 420,11, p p . 226—7, ni, p. 581, v(i), p p . 402—3, 449, vii, pp. 356—7, 363). In the I n t e r r e g n u m he consistently supported the prevailing p o w e r . T h a t disposition led h i m first to hail the ' g l o r i o u s and heroic deed' o f regicide (in, p. 2 1 2 ) , an e v e n t seen b y other republicans as the v i c t o r y n o t o f their principles but o f brute force; and then, unlike all the republicans e x c e p t his friend the t r i m m e r N e d h a m , to support the Protectorate o f O l i v e r C r o m w e l l . O n l y in early 1660, in The Ready and Easy Way to Establish a Free Commonwealth, did his republicanism b e c o m e uninhibited. H e w a s hostile n o w e v e n to the element o f m o n a r c h y p r o p o s e d b y advocates o f w h a t he called 'the fond conceit o f s o m e t h i n g like a D u k e o f V e n i c e ' (vn, p . 374). ' A n d n o w is the o p p o r t u n i t y ' , he p r o c l a i m e d , ' n o w the v e r y season w h e r e i n w e m a y obtain a free c o m m o n w e a l t h , and establish it for e v e r in the land, w i t h o u t difficulty or m u c h d e l a y ' (VII, p. 367). B u t w h i l e M i l t o n resembled H a r r i n g t o n in v i e w i n g the political crisis o f 1659—60 as a republican occasione, he at this time rejected H a r r i n g t o n ' s ' n e w or obsolete forms, or foreign m o d e l s ' (vii, 456

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p. 445). Fearing elections and 'the noise and shouting o f a rude m u l t i t u d e ' that w o u l d a c c o m p a n y t h e m (vn, p . 442), and conscious that free v o t i n g w o u l d restore the royalists to p o w e r , M i l t o n shunned the principle o f 'rotation' and p r o p o s e d instead to a w a r d life m e m b e r s h i p to a s o v e r e i g n 'standing senate'; for ' i f they steer w e l l , w h a t need is there to c h a n g e t h e m ? ' (vii, p. 369). If a c h e c k w e r e needed to the senate's authority, it w o u l d lie in the degree o f a u t o n o m y w h i c h M i l t o n w o u l d allocate to local g o v e r n m e n t . For the republican — and c o u n t r y party - desire for decentralisation, and for the reanimation o f the local c o m m u n i t y , found n o w a r m e r a d v o c a t e than M i l t o n , w h o w a n t e d ' e v e r y c o u n t y in the land . . . m a d e a little c o m m o n w e a l t h ' (vn, p . 383). H e h o p e d to see thè nobility and g e n t r y b u i l d i n g c o m e l y palaces in c o u n t r y t o w n s , and thus ' c o m m u n i c a t i n g the natural heat o f g o v e r n m e n t and culture m o r e distributively to all the e x t r e m e parts, w h i c h n o w lie n u m b and n e g l e c t e d ' (vn, p . 460). M i l t o n ' s hopes w e r e p r o v e d futile b y the R e s t o r a t i o n , but n o t before he had penned the m o s t eloquent s u m m a r y o f the republican understanding o f the contrast b e t w e e n healthy and unhealthy g o v e r n m e n t : in a free commonwealth . . . they w h o are greatest are perpetual servants and drudges to the public at their o w n cost and charges; neglect their o w n affairs; yet are not elevated above their brethren, live soberly in their families, walk the streets as other men, may be spoken to freely, familiarly, without adoration. Whereas a king must be adored like a demigod, with a dissolute and haughty court about him, of vast expense and luxury, masques and revels, to the debauching o f our prime gentry; and all this . . . to pageant himself up and down in progress among the perpetual bowings and cringings of an abject people. (vn, pp. 360-1). T h e fame o f M i l t o n ' s prose has been largely p o s t h u m o u s . His i m p a c t o n the controversies o f 1659—60 did n o t rival that o f H a r r i n g t o n . H a r r i n g t o n ' s o w n influence w a s m o s t conspicuous in February 1659, w h e n The Prerogative of Popular Government, w h i c h is perhaps the m o s t systematic account o f his ideas, appeared, and w h e n a g r o u p o f M P s used H a r r i n g t o n ' s thesis, and often his w o r d s , to try to persuade parliament that the Protectoral constitution w a s u n w o r k a b l e ( B u r t o n 1828, m , i v ) . T h e g r o u p ' s leader w a s H e n r y N e v i l e . N e v i l e m a y h a v e been the author, or an author, o f A Copy of a Letter from an Officer of the Army in Ireland, a w o r k w h i c h w a s published in 1656, a f e w m o n t h s before H a r r i n g t o n ' s Oceana, and w h i c h anticipated m a n y o f its a r g u m e n t s . H e m a y e v e n h a v e had a hand in the c o m p o s i t i o n o f Oceana itself. In the 1660s, as in the 1640s, N e v i l e travelled in Italy, w h e r e he d e v e l o p e d friendships w i t h D u k e Ferdinand II o f T u s c a n y and w i t h Florentine courtiers o f Ferdinand. In 457

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1675 there w a s published in E n g l a n d N e v i l e ' s elegant translation o f M a c h i a v e l l i ' s w o r k s . It w a s a c c o m p a n i e d b y a 'letter' ostensibly b y M a c h i a v e l l i , really b y N e v i l e ( R a a b 1964, pp.267—72), w h i c h subtly transformed M a c h i a v e l l i into a c o u n t r y party W h i g and b r o u g h t h o m e the pertinence o f the Italian's ideas to the p r o b l e m s o f the 1760s. T h e letter w a s perhaps the first and perhaps the m o s t inspired o f a series o f epistolary fabrications p r o d u c e d b y the republican history factory o f the later seventeenth century to establish the pedigree o f republican ideas ( L u d l o w 1978, pp. 34-9). T h e w o r k for w h i c h N e v i l e is best k n o w n , Plato Redivivus, was published in 1680, and reappeared in a slightly e x p a n d e d f o r m in 1 6 8 1 . B o t h editions w e r e w r i t t e n in order to influence the parliamentary opposition w h i c h s o u g h t to e x c l u d e the k i n g ' s C a t h o l i c brother, the future James II, f r o m the succession. Plato Redivivus ( w h i c h has little to d o w i t h Plato) is, b y N e v i l e ' s — or his publisher's — admission, ' A repetition o f a great m a n y principles and positions out o f Oceana' ( N e v i l e 1969, p. 68). Its starting point is the m a x i m that ' d o m i n i o n is founded in p r o p e r t y ' (p. 89), and it blames the present instability, as it does the C i v i l W a r o f the previous generation, on E n g l a n d ' failure to adapt her constitutions to the change in the balance o f p r o p e r t y that has occurred since H e n r y VII's reign. L i k e H a r r i n g t o n before h i m , N e v i l e u r g e d that the issues w h i c h aroused c o n t e m p o r a r y passions, and w h i c h m e n t o o k to be the r o o t o f their difficulties, w e r e in reality 'the e f f e c t s . . . o f one p r i m a r y cause; w h i c h is, the breach and ruin o f our g o v e r n m e n t ' o v e r the past t w o centuries (p. 81). N e v i l e trod carefully, as any critic o f the p r e r o g a t i v e had to d o at that time. Professing l o y a l t y to 'one o f the best monarchies in the w o r l d ' (p. 69), he devised his constitutional proposals on the principle 'the less c h a n g e the better' (p. 192). H e u r g e d Charles II to d o w h a t H a r r i n g t o n had u r g e d C r o m w e l l to d o : to recognise that his path to b o t h survival and g l o r y lay in a v o l u n t a r y reduction o f his p o w e r s , in the m a n n e r o f that hero o f republicans T h e o p o m p u s o f Sparta. N e v i l e w a n t e d parliament to persuade Charles, i f possible b y reason but otherwise b y insistence, to hand o v e r the functions o f g o v e r n m e n t to the H o u s e o f C o m m o n s . T h e plea w a s as vain as H a r r i n g t o n ' s had been. N e v i l e supplies a thread o f continuity across the three generations o f seventeenth-century English republicanism, for he lived l o n g e n o u g h to k n o w and influence the y o u n g e r generation o f ' c o m m o n w e a l t h m e n ' w h i c h e m e r g e d after the R e v o l u t i o n o f 1688—9 and to hand on to t h e m the torch o f H a r r i n g t o n ' s ideas. Y e t f r o m 1660 his v e r y c o m m i t m e n t to those 458

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ideas, w h i c h he w a s less w i l l i n g than other republicans to adjust to c h a n g e d circumstances, makes h i m seem at times an almost anachronistic figure w i t h i n the m o v e m e n t . For H a r r i n g t o n w a s a prophet w h o m the R e s t o r a t i o n appeared to h a v e p r o v e d w r o n g . In the 1650s, H a r r i n g t o n had explained the collapse o f the Stuart m o n a r c h y : in the 1670s the same m o n a r c h y seemed to most o f its critics — but not to N e v i l e — to be m o v i n g t o w a r d s an invincible tyranny. R e p u b l i c a n i s m c h a n g e d its role a c c o r d i n g l y . It b e c a m e a defence o f constitutional liberty against the threats o f p o p e r y and o f a standing a r m y . T h e ancient, ' G o t h i c ' constitution w a s found to h a v e had virtues that H a r r i n g t o n had missed. W h e r e a s H a r r i n g ton had seen the o w n e r s h i p o f p r o p e r t y as a qualification for political participation b y citizens, his successors t h o u g h t o f it as a guarantor o f independence and a h a n d m a i d o f constitutional freedom. N o t o n l y had m o n a r c h y been restored in 1660: so had the H o u s e o f Lords; and it w a s f r o m the Lords that the W h i g leader the earl o f Shaftesbury c o n d u c t e d f r o m 1675 a c a m p a i g n distinguished b y w h a t has been called ' n e o - H a r r i n g t o n i a n i s m ' ( P o c o c k 1 9 7 1 , 1972, pp. 104—47), in w h i c h the m e d i e v a l n o b i l i t y w a s restored to the g l o r y o f w h i c h H a r r i n g t o n ' s diagnosis had d e p r i v e d it. M i l t o n had praised 'those faithful and c o u r a g e o u s barons' o f the m i d d l e ages, ' w h o lost their lives in the field, m a k i n g glorious w a r against tyrants for the c o m m o n liberty' ( M i l t o n 1 9 5 3 - 8 2 , in, p. 343). A f t e r the R e s t o r a t i o n that t h e m e w a s d e v e l o p e d b y a republican writer w h o s e rhetoric w a s often close to M i l t o n ' s , A l g e r n o n Sidney, h i m s e l f descended f r o m the p r o u d baronial family o f the Percies, and a son o f the earl o f Leicester. Sidney f o n d l y recalled the 'ancient', ' w a r l i k e ' , ' p o w e r f u l , gallant n o b i l i t y ' w h o s e m e m b e r s had 'spirits suitable to their births' and had been able, b y protecting the w e a k and c u r b i n g the insolent, 'to restrain the exorbitances that either the k i n g , or the c o m m o n s , m i g h t run into' (cf. M o l e s w o r t h 1694, p . 70). His ideal n o b i l i t y w a s not the N o r m a n but the S a x o n one. It had been a large class, t o o large for the c r o w n to corrupt it (cf. M i l t o n 1953—82, iv(i), p. 484) and it had supplied the natural leaders o f the freeholder class — o f 'the p e o p l e ' . Its m o d e r n counterparts w e r e to be found in n u m e r o u s knights and g e n t r y w h o s e claim to n o b l e status had been usurped b y an 'effeminate', ' u n a r m e d ' , 'titular n o b i l i t y ' . T h e usurpers w e r e 'court-parasites' w h o lacked 'the interest and estates' to fulfil the true role o f a nobility and o w e d their position to r o y a l favour alone. U n f o r t u n a t e l y , Sidney did not d w e l l o n the e c o n o m i c processes w h i c h had p r o d u c e d the g a p b e t w e e n the true and the false nobility. H a r r i n g t o n ' s l a n g u a g e o f the balance is present in Sidney's 459

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w r i t i n g , but so fleetingly that w e cannot tell w h e t h e r Sidney has subtly adapted H a r r i n g t o n ' s diagnosis or m e r e l y imperfectly r e m e m b e r e d it ( W o r d e n 1985, pp. 17, 23). L i k e N e v i l e , o f w h o s e family the Sidneys had l o n g been political allies, Sidney w a s an influential m e m b e r o f the C o m m o n w e a l t h g o v e r n m e n t in 1 6 5 2 - 3 . L i k e N e v i l e he visited Italy b o t h during and after the Puritan R e v o l u t i o n . In exile f o l l o w i n g the R e s t o r a t i o n , he returned to E n g l a n d f r o m France in 1677, and w a s e x e c u t e d for treason in 1683 for plotting against Charles II. In the eighteenth century Sidney w a s to acquire a l e g e n d a r y status as a W h i g hero and m a r t y r . Since the collapse o f the W h i g m y t h o l o g y in the nineteenth century his w o r k has been u n d u l y neglected. H e published n o t h i n g o f substance in his lifetime, w h e n his w o r k s w e r e i n c o m p l e t e and unrevised. His t w o principal w r i t i n g s w e r e ' C o u r t M a x i m s R e f u t e d and R e f e l l e d ' , a manuscript written in the m i d - i 6 6 o s and o n l y recently discovered, and the l o n g treatise p o s t h u m o u s l y published in 1698 as Discourses concerning Government. ' C o u r t M a x i m s ' w a s written in H o l l a n d in the h o p e o f inciting a rising in E n g l a n d during the second A n g l o - D u t c h w a r and o f securing the aid o f D u t c h republicans in the party o f J o h n de W i t t . T h e Discourses, t o o , w a s written w i t h an insurrectionary purpose, and the manuscript o f it w a s cited b y the prosecution at S i d n e y ' s trial as evidence o f treason. A l t h o u g h — or because — the Discourses lacks the analytical r i g o u r o f H a r r i n g t o n ' s t h o u g h t , it was to exercise an influence w i d e r than his and p r o b a b l y w i d e r than that o f any other republican w o r k o f the seventeenth century. It is a b o o k o f great clarity, elegance, and learning. It is also repetitive, and so l o n g that the reader is easily lulled into inattention and so into missing the e n e r g y and life o f the w o r k . It was w r i t t e n in 1681—3, the time w h e n , it has lately been argued (Ashcroft 1980), L o c k e w a s w r i t i n g his Second Treatise of Government, w h i c h the Discourses often resembles. T h o s e w e r e the years w h e n , after the failure o f parliamentary opposition in 1679—81, W h i g s turned in desperation to radical actions and arguments. Offering a p a g e b y page refutation o f Sir R o b e r t Filmer's Patriarcha, the p o s t h u m o u s appearance o f w h i c h in 1680 seemed to W h i g s to represent a n e w and m e n a c i n g d e v e l o p m e n t in T o r y political t h o u g h t , the Discourses was, like ' C o u r t M a x i m s ' , a plea for resistance and tyrannicide. In neither o f those w o r k s , b o t h o f w h i c h h a v e a destructive rather than a constructive purpose, does S i d n e y outline the g o v e r n m e n t he w o u l d like to see. His clear preference is for a rhixed g o v e r n m e n t in w h i c h aristocracy is the 460

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predominant f o r m , but b e y o n d that the theoretical content o f his republicanism has largely to be guessed f r o m tantalising asides. E v e n so his w r i t i n g s g i v e plausibility to the claim o f B i s h o p B u r n e t , w h o k n e w h i m w e l l , that S i d n e y had 'studied the history o f g o v e r n m e n t in all its branches b e y o n d any m a n I e v e r k n e w ' , and that he had possessed a k n o w l e d g e o f 'the G r e e k and R o m a n c o m m o n w e a l t h s ' unsurpassed in B u r n e t ' s e x p e r i ence. T h e y also illustrate the depth o f S i d n e y ' s c o n v i c t i o n that 'all that w a s ever desirable, or w o r t h y o f praise and imitation in R o m e , proceeded f r o m its liberty' (Sidney 1 7 7 2 , p. 1 1 9 ) . T h e third stage o f seventeenth-century republicanism w a s launched b y the publication in 1694 o f An Account of Denmark b y R o b e r t M o l e s w o r t h . After a l o n g preface w h i c h declared his republican principles, M o l e s w o r t h described the dire consequences o f the m o n a r c h i c a l c o u p in D e n m a r k in 1660 — the year also, o f course, o f the m o n a r c h i c a l c o u p in England. In 1 7 1 1 M o l e s w o r t h explained his principles further in his preface to a translation o f Francois H o t m a n ' s Francogallia. Despite the u n d o u b t e d i m p a c t o f An Account of Denmark, the republican c a m p a i g n o f the 1690s t o o k w i n g o n l y in 1697—9, w h e n the g o v e r n m e n t ' s determination to maintain its land forces after the Peace o f R y s w i c k , w h i c h had ended the w a r w i t h France, p r o v o k e d the political and intellectual debate k n o w n as the standing a r m y c o n t r o v e r s y . T h e literary strategy adopted b y republicans in that period, resourcefully coordinated b y radical publishers and editors, t o o k t w o forms. First there w e r e pamphlets against standing armies, written b y M o y l e , T r e n c h a r d , the Irishman T o l a n d , and Fletcher o f Saltoun in Scotland, w h o s e Discourse concerning Militias, published in 1697, reappeared in e x p a n d e d f o r m the f o l l o w i n g year. T h e other principal pamphlets w e r e T o l a n d ' s The Militia Reformed (1698) and t w o a n o n y m o u s w o r k s on w h i c h T o l a n d , M o y l e , and T r e n c h a r d p r o b a b l y collaborated, a l t h o u g h M o y l e ' s is likely to h a v e been the g u i d i n g pen: the helpfully entitled An Argument Showing that a Standing Army is inconsistent with a Free Government, and absolutely destructive to the Constitution of the English Monarchy (1697); and A Short History of Standing Armies (1698). T h e second aspect o f the republican c a m p a i g n w a s the publication o f a series o f w o r k s w h i c h w e r e to b e c o m e the standard texts o f c o u n t r y party ideals in the eighteenth century: the Memoirs o f the C i v i l W a r regicide E d m u n d L u d l o w (1698-9); M i l t o n ' s Historical and Political Works (1698); Sidney's Discourses (1698); N e v i l e ' s 10.

Sidney 1 7 7 2 , p p . 2 2 , 100, 103, 146, 1 6 1 - 2 , 186, 2 5 8 - 9 , 390, 463,

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Plato Redivivus (republished in 1698); and the w o r k s o f H a r r i n g t o n (1700). S o m e o f these w r i t i n g s n o w b e c a m e available in print for the first time: the others b e c a m e significantly better k n o w n as a result o f their republication. T o l a n d , the editor o f H a r r i n g t o n , seems also to h a v e edited the w o r k s o f L u d l o w and Sidney ( L u d l o w 1978, p p . 1 7 - 3 9 ) . O f T o l a n d ' s colleagues in the c a m p a i g n against standing armies, T r e n c h a r d w a s to achieve a greater fame in the reign o f G e o r g e I as the author, w i t h T h o m a s G o r d o n , o f The Independent Whig and Cato's Letters. M o y l e w a s a C o r n i s h M P and antiquary w h o s e principal republican w o r k s w e r e not published in his lifetime. T h e y w e r e An Essay of the Lacedaemonian Government and the m o r e i m p o r t a n t (although e v i d e n t l y unfinished) An Essay upon the Constitution of the Roman Government, a study in w h i c h he applied the principle o f 'the great H a r r i n g t o n ' that 'the balance o f d o m i n i o n changes w i t h the balance o f p r o p e r t y ' ( M o y l e 1969, p. 232). T h e republicanism o f Fletcher o f Saltoun, a figure less close to the other principal republicans o f the 1690s than they w e r e to each other, w a s fuelled b y his resentment not o n l y against the English exploitation o f his c o u n t r y but against Scotland's acquiescence in it. H e w a s to be a central figure in the d e v e l o p m e n t o f civic h u m a n i s m in Scotland and in the study o f the relationships b e t w e e n national identity, political stability, and e c o n o m i c progress. C r i t i c i s m o f standing armies d r e w on the widespread anxiety a m o n g the g e n t r y ( T o r y as w e l l as W h i g ) about the g r o w t h o f the e x e c u t i v e and about the corruption o f parliament b y court patronage — an anxiety sharpened b y the h i g h taxation b y w h i c h the a r m y w a s financed. T h e wills o f E n g l i s h m e n w e r e b e i n g enslaved b y ' m e r c e n a r y soldiers'. R e p u b l i c a n s insisted w i t h M a c h i a v e l l i that defence should be entrusted to armed and independent citizens, w h o s e m a n h o o d w o u l d be i n c o m p l e t e w i t h o u t a t e r m o f military service and w i t h o u t experience o f the 'military discipline' w h i c h w a s essential to m o r a l and social discipline. W h e r e a s H o b b e s and the Levellers t h o u g h t e v e r y m a n w a s entitled to pay or persuade another to fight in his place, republicans found the idea o f ' s u b s t i t u t i o n ' an affront to citizenship (e.g. Fletcher 1732, pp. 5 0 - 1 ) . C i t i z e n armies w o u l d be n o t o n l y m o r e virtuous than m e r c e n a r y ones but m o r e effective, for as Sidney put it ' w e see e v e r y w h e r e the difference b e t w e e n the c o u r a g e o f m e n fighting for themselves and their posterity, and those that serve a master' (Sidney 1 7 7 2 , p. 182). Despite their a g r e e m e n t on the interdependence o f civic and 11

11. Harrington 1 9 7 7 , p. 228; Sidney 1666?, p p . 6 6 , 180; Sidney 1 7 7 2 , p. 232; Fletcher 1 7 3 2 , p. 64.

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military fulfilment, republicans w e r e not at one a b o u t the nature o f the ideal citizen a r m y . H a r r i n g t o n (1977, p. 197) praised the 'excellent infantry' w h i c h had been achieved b y English f r e e h o l d e r - c o m m o n e r s after their emancipation from feudal tenure. His successors, here as elsewhere, had m o r e aristocratic preferences. T h e y idealised the feudal array, and argued that n o w as in the m i d d l e ages the landed rulers o f E n g l a n d should lead its p e o p l e out to battle. O n l y i f the n o b i l i t y and g e n t r y controlled the nation's arms, the later republicans believed, c o u l d p r o p e r t y g i v e its due protection to liberty. In the h o p e o f persuading the audience o f 1697—9 that national military security c o u l d be safely entrusted to local militias — a proposition w h i c h recent advances in the art o f w a r had m a d e implausible - T o l a n d and Fletcher put f o r w a r d elaborate schemes for militia reform. In the vision w h i c h informs their proposals — a vision part civic, part feudal; part classical, part insular — s o m e o f the tensions w i t h i n English republicanism can be seen. T h e y are the tensions o f a m o v e m e n t consistently critical o f c o n v e n t i o n a l political assumptions y e t consistently dependent for its influence o n its ability to play o n t h e m . S o m e t i m e s republicanism o f the later seventeenth century seems m e r e l y to reflect the reestablishment o f aristocratic political values in that period. S o m e t i m e s republicans seem to h a v e deserved the m o c k e r y to w h i c h they w e r e subjected b y D a n i e l D e f o e , w h o questioned their favourable i m a g e o f the m i d d l e ages, d o u b t e d w h e t h e r the m e d i e v a l n o b i l i t y had had a protective rather than an oppressive role, and suggested that if, as republicans c o m p l a i n e d , n o b l e p o w e r w a s b r o k e n , then patronage, w h i c h they so hated, w a s necessary as a b i n d i n g and stabilising force in its place ( P o c o c k 1 9 7 5 , pp.432—5). Y e t despite the prevailing aristocratic tone, s o m e t h i n g o f the social radicalism o f the 1650s, o f N e d h a m and H a r r i n g t o n , survived. S o did H a r r i n g t o n ' s l a n g u a g e o f ' a n equal c o m m o n w e a l t h ' . M o y l e located R o m e ' s greatness in its period as an 'equal c o m m o n w e a l t h ' , and s h o w e d h o w kingship and n o b i l i t y had been obstacles to her greatness. M o l e s w o r t h w a r n e d against 'insolent' treatment o f the c o m m o n s b y the nobles ( M o l e s w o r t h 1694, p. 76; cf. S i d n e y 1 7 7 2 , p. 464). ' E q u a l i t y ' had n e v e r been an absolute aim. E v e n N e d h a m had pleaded not for 'an equality (that w e r e irrational and odious) but an equability o f c o n d i t i o n a m o n g the m e m b e r s , so that n o particular m a n or m e n shall g r o w o v e r - g r e a t ' ( N e d h a m 1 9 7 1 , iv, p p . 3256°, 344) — the principle w h i c h H a r r i n g t o n ' s 'equal c o m m o n w e a l t h ' w a s designed to i m p l e m e n t . ' E q u a l ' c o u l d m e a n ' m o r e equal' or, o n the Aristotelian principle o f distributive 463

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justice, equality ' p r o p o r t i o n a t e ' to merit; or an 'equal' c o m m o n w e a l t h m i g h t be one w h e r e the principle o f rotation ensured a fair distribution o f o f f i c e - h o l d i n g . T w o principles o f political prudence w e r e e m b o d i e d in the idea o f ' e q u a l i t y ' . T h e first w a s a dislike o f the extremes o f w e a l t h and p o v e r t y , w h i c h w e r e enemies to b o t h virtue and stability (e.g. M o y l e 1727, p . 5 1 ; Fletcher 1 7 3 2 , p p . 27, 438). T h e second w a s the Aristotelian location o f virtue in the m e a n , in ' m e d i o c r i t y ' or 'the m i d d l e sort'. S o m e t i m e s the m i d d l e sort w a s the g e n t r y ( M o l e s w o r t h 1694, sig. A 3 V ) ; sometimes it w a s the n o b i l i t y , the m i d d l e o f the three estates {Argument 1697, P - ; Holies 1693, p. 459); but often, t o o , the m i d d l e sort consisted o f the freeholdercitizens — a class distinguished f r o m 'servants', w h o m republicans, defining liberty as ' i n d e p e n d e n c y u p o n the w i l l o f another' (Sidney 1 7 7 2 , p. 10), w i s h e d to e x c l u d e f r o m political participation. R e p u b l i c a n s subscribed to the c o n v e n t i o n a l praise o f the English y e o m a n and to the belief that E n g l a n d ' s superiority o v e r other countries lay in the existence o f a free y e o m a n class. T h e tension b e t w e e n the equalitarian and the aristocratic strains o f late seventeenth-century republicanism can be g l i m p s e d in the w r i t i n g s o f T o l a n d , the editor b o t h o f H a r r i n g t o n , w h o w a n t e d 'an equal c o m m o n w e a l t h ' , and o f S i d n e y , the spokesman for the ancient n o b i l i t y . T o l a n d tried to h a v e it b o t h w a y s , b y declaring that the 'eternal f a m e ' w h i c h ' s o m e ' o f the ancient n o b i l i t y had ' w o r t h i l y acquired, is w h o l l y o w i n g to those g l o r i o u s actions they p e r f o r m e d ' for their c o u n t r y in w a r , 'and not in the least to that i m m o d e r a t e p o w e r they m i g h t then exercise o v e r the p e o p l e ' ( T o l a n d 1698 p . 604). 12

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T h e M a c h i a v e l l i a n tradition

A m o n g the modifications o f republican t h o u g h t o v e r the second half o f the seventeenth century lay elements o f continuity w h i c h are best described as M a c h i a v e l l i a n . W i t h f e w exceptions the republicans shared M a c h i a v e l l i ' s respect for, and his belief in the a u t o n o m y of, political activity; his c o n c e p t i o n o f civic activity and participation; his c o n c e r n for national g l o r y ( t h o u g h not w i t h o u t reservations); his approach to history; his understanding o f the proper relationship b e t w e e n politics and religion. T o l a n d emphasised a c o m m o n republican v i e w w h e n he emphasised 12. N e d h a m 1 9 7 1 , iv, pp. 3 2 5 ^ 344; M i l t o n 1 9 5 3 - 8 2 , iv(i), pp. 3 6 6 - 7 , v n , pp. 359, 383; M o y l e 1969, pp. 2 4 2 - 3 ,

247.

13. Harrington 1 9 7 7 , p. 197; M o l e s w o r t h 1694, sig. B i r , p. 86; Bethel 1 6 7 1 , p. 7. C f . N e v i l e 1969, pp. 1 1 4 , 1 1 9 - 2 0 .

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that 'the politics, n o less than arms, are the proper study o f a g e n t l e m a n ' (Harrington 1700, p. i x ) . T h e r e w a s n o w i s d o m w i t h o u t political w i s d o m . V i r t u e and vice, happiness and misery, w e r e determined b y political institutions and constitutions. M a n n e r s w e r e corrupted, said H a r r i n g t o n , o n l y w h e n the 'balance' w a s corrupted (Harrington 1977, p. 202). ' N o t h i n g is m o r e certain', averred N e v i l e , 'than that politic defects breed m o r a l ones' ( N e v i l e 1969, p. 87; cf. S i d n e y 1772, p p . 183, 236). R e p u b l i c a n s mistrusted thinkers w h o preferred climatic to political explanations o f national character; the climate o f R o m e , observed T o l a n d , had been the same under the republic as it w a s under the p a p a c y . T h e republicans' respect for politics did not m a k e t h e m advocates o f M a c h i a v e l l i a n 'reason o f state', to w h i c h o n the w h o l e they expressed c o n v e n t i o n a l c o u n t r y party h o s t i l i t y . T o t h e m the most admirable political skill lay in the designing, not the running o f a state. For H a r r i n g t o n the initial construction w a s all: 'as n o m a n shall s h o w m e a c o m m o n w e a l t h b o r n straight that ever b e c a m e c r o o k e d , so n o m a n shall s h o w m e a c o m m o n w e a l t h b o r n c r o o k e d that e v e r b e c a m e straight (Harrington 1977, p. 276). T h e w o r k i n g o f a constitution, he t h o u g h t , should resemble an eternal and rapturous m o t i o n o f spheres (p. 342). O n e o f his successors c o m p a r e d the ideal constitution to 'a piece o f c l o c k w o r k ; and h a v i n g such springs and w h e e l s , must act after such a m a n n e r ' . H e n c e the republican reverence for the l a w g i v e r , and for the 'abstruse science' o f 'political architecture' w h i c h c o u l d insulate institutions f r o m social and e c o n o m i c c h a n g e . O n l y A l g e r n o n S i d n e y v i e w e d politics as a necessarily d y n a m i c or e v o l u t i o n a r y process. W h e r e a s other republicans b e l i e v e d that the proper response to political p r o b l e m s w a s to f o l l o w M a c h i a v e l l i ' s principle o f ' r e n e w a l ' (e.g. M i l t o n 1953—82,1, p. 477; M o y l e 1969, p. 253) — o f returning to the original purity o f the constitutional design - S i d n e y t h o u g h t it necessary to g o further: to 'add' constitutional provisions, w h i c h must be 'variable a c c o r d i n g to accidents and circumstances'. Constitutions d r a w n up in times o f ' v i r t u o u s simplic i t y ' w e r e b o u n d to contain initial flaws w h i c h must be rectified as c o m m u n i t i e s gained experience ( W o r d e n 1985, p. 19). 14

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H a r r i n g t o n eliminated n o t o n l y historical m o v e m e n t f r o m his ideal c o m m o n w e a l t h , but tension. O t h e r republicans, b y contrast, subscribed to M a c h i a v e l l i ' s v i e w that conflicts, e v e n 'tumults', c o u l d be evidence o f 14. 15. 16. 17.

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T o l a n d 1706, p. 596. C f . M o l e s w o r t h 1694, P P - 4 * 7 5 ; Fletcher 1 7 3 2 , p. 68. E.g. Harrington 1 9 7 7 , p. 1 7 1 ; Sidney 1666?, pp. 70—1. Short History 1698, p. iii. Cf. M o y l e 1 7 2 7 , pp. 59-60. Harrington 1 9 7 7 , p-609; Sidney 1666?, p. 20; Sidney 1 7 7 2 , p p . 6 4 , 98; N e v i l e 1969, p p . 6 8 , 1 1 1 ; Fletcher 1 7 3 2 , pp. 3 - 5 , 380.

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political life. Sidney, r e m a r k i n g o n the capacity o f tyrannies to extinguish political expression, w a x e d eloquent in his T a c i t e a n scorn for writers w h o ' g i v e the n a m e o f peace to desolation' (Sidney 1 7 7 2 , p p . 1 1 8 , 132—4, 198, 223—5, 254—5). N e d h a m argued that b y the contests b e t w e e n nobles and people in R o m e 'the spirits o f the people w e r e kept w a r m w i t h h i g h t h o u g h t s o f themselves and their liberty ( w h i c h tended m u c h to the e n l a r g e m e n t o f their e m p i r e ) ' ( N e d h a m 1 9 7 1 , iv, p p . 3096*); M o y l e argued that the same events, ' t h o u g h for the present creating s o m e little disorders in the state, introduced excellent orders into the g o v e r n m e n t , and w e r e succeeded b y lasting quiet and t r a n q u i l l i t y ' . M o y l e ' s a c k n o w l e d g e m e n t that 'tranquillity' w a s the desirable n o r m indicates the difficulty, e x p e r i e n ced b y other republicans, t o o , o f appearing to r e c o m m e n d instability to a seventeenth-century audience. E v e n so, s o m e republicans w e r e prepared t o claim that the conflicts b e t w e e n k i n g and people, or b e t w e e n lords and c o m m o n s , in the history o f E n g l a n d had been 'the c o n t e n d i n g b i l l o w s that kept it afloat' ( M o l e s w o r t h 1694, sign. A 5 r - v ) . M a c h i a v e l l i , putting vitality before stability, also preferred a ' c o m m o n w e a l t h for e x p a n s i o n ' to o n e m e r e l y for 'preservation'. T h e transient g l o r y o f R o m e ' s conquests w a s m o r e desirable than the h u m b l e permanence o f V e n i c e . N o t all seventeenth-century republicans t h o u g h t E n g l a n d e q u i p p e d for 'expansion'. T h e r e w a s a feeling that she should respect the natural boundaries w h i c h ' p r o v i d e n c e ' had g i v e n her, and that conquest w a s n o t in her 'interest'. T h e humanist mistrust o f w a r and g l o r y for their o w n sakes surfaced in the awareness that, in S i d n e y ' s phrase, 'rules o f m o r a l i t y ' should b e consulted before an aggressive foreign p o l i c y w a s l a u n c h e d ; and republicans w e r e conscious that R o m e ' s expansion had p r o d u c e d l u x u r y and t y r a n n y and decline. T h e r e w a s also a belief that conquests should b e undertaken o n l y i f — again in S i d n e y ' s phrase — they w e r e 'suitable to the constitution' o f the c o n q u e r i n g state (Sidney 1666?, p. 14). T h e y w e r e n o t suitable to m o n a r c h y o r aristocracy, because m e n w o u l d n o t fight v i g o r o u s l y for possessions w h i c h w o u l d benefit o n l y the rulers and n o t the ruled, and because n o g o v e r n m e n t ruling in the interest o f a f e w c o u l d risk a r m i n g the people. T o b e a ' c o m m o n w e a l t h for expansion', n o t e d H a r r i n g t o n , w a s a talent 'peculiar u n t o popular g o v e r n m e n t ' (Harrington 1977, p . 329). In support o f that thesis r e 18

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18. M o y l e 1969, p. 246. C f . M i l t o n 1 9 5 3 - 8 2 , 1 , p. 505, in, p. 388; Hall 1700, p. 1 5 ; N e v i l e 1969, p. 194; Sidney 1 7 7 2 , pp. i n , 19.

1 2 4 , 188, 2 1 4 - 1 5 , 4 7 9 .

M i l t o n 1 9 5 3 - 8 2 , 1 , p p . 499, 597; S i d n e y 1666?, p p . 1 5 1 - 2 ; Sidney 1 7 7 2 , p. 1 1 9 ; N e v i l e 1969, p. 143; Fletcher 1 7 3 2 , p p . 2 1 , 66; B e t h e l 1 6 7 1 , p . 1; Holies 1 6 9 3 , p p . 4 5 8 - 9 .

20.

Sidney 1666?, p. 14. C f . M i l t o n 1 9 5 3 - 8 2 , 1, p p . 499, 597, and Paradise

Regained,

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publicans strove to demonstrate that R o m e ' s greatness had been achieved in periods o f republican or p o p u l a r r u l e . In the same w a y a contrast w a s repeatedly d r a w n b e t w e e n the shameful pacifism and h u m i l i a t i n g betrayals o f Stuart foreign p o l i c y and the g l o r i o u s exploits, equal at least to those o f G r e e c e and R o m e , w h i c h had been a c h i e v e d b y the L o n g P a r l i a m e n t . T h a t parliament's annexation o f Ireland and Scotland, and its p r o p o s e d u n i o n w i t h the D u t c h , excited an interest in the question h o w n e w territorial acquisitions c o u l d be best g o v e r n e d : as colonies, or t h r o u g h the f o r m a t i o n o f equal or unequal leagues, or t h r o u g h the naturalisation o f the c o n q u e r e d p e o p l e s . T h e same subject w a s e x p l o r e d b y M o y l e at the end o f the century ( M o y l e 1969, p p . 228-9, 2 4 9 - 5 3 ) . 21

22

23

H a r r i n g t o n departed f r o m M a c h i a v e l l i in b e l i e v i n g it possible to c o m b i n e expansion w i t h stability — a l t h o u g h here he seems to h a v e carried f e w republicans w i t h h i m . H e dissented f r o m the traditional b e l i e f that R o m e had collapsed beneath the w e i g h t o f her e m p i r e . She had fallen because, n e g l e c t i n g her 'equal agrarian', she had a l l o w e d the profits o f conquest to b e appropriated b y nobles. English expansion w a s b o t h a necessity and a m o r a l o b l i g a t i o n . It w a s a necessity because — as Sidney w a s likewise to insist — international relations w e r e a race for r e c o v e r y a m o n g the fallen G o t h i c nations. T h e c o u n t r y w h i c h first r e c o v e r e d its v i g o u r w o u l d d o m i n a t e the continent; and i f E n g l a n d missed her chance France w o u l d take h e r s . T h e m o r a l o b l i g a t i o n to e x p a n d w a s a n n o u n c e d b y H a r r i n g t o n in a p o c a l y p t i c l a n g u a g e characteristic o f the Puritan R e v o lution. E n g l a n d , liberated f r o m G o t h i c rule, must relieve the oppressed peoples o f E u r o p e , for ' i f thy brother c r y u n t o thee in affliction, w i l t t h o u n o t hear h i m ? ' . E n g l a n d had a ' d u t y ' to emulate the imperial role o f R o m e . W i t h C i c e r o , H a r r i n g t o n b e l i e v e d that R o m e had 'rather undertaken the patronage than the e m p i r e o f the w o r l d ' ; and ' i f w e h a v e g i v e n o v e r r u n n i n g up and d o w n n a k e d and w i t h dappled hides, learned to w r i t e and read, to be instructed w i t h g o o d arts, for all these w e are b e h o l d e n to the R o m a n s ' (Harrington 1977, p p . 192, 3 2 2 - 3 , 332). Imperialist dreams lived o n after 1660, w h e n S i d n e y t h o u g h t that E n g l a n d ' m i g h t c o n q u e r a great part o f the w o r l d ' i f her constitution w e r e r e f o r m e d (Sidney 1772, p. 178). Y e t doubts and scruples remained. Fletcher rebelled against his p r e d e cessors' willingness to think o f international affairs as an inevitable j u n g l e . 24

21.

N e d h a m 1 9 7 1 , in, p. 2 7 9 , iv, pp. i49fF; Sidney 1 7 7 2 , pp. 1 1 9 , 1 2 8 - 3 8 ; M o y l e 1969, pp. 2 2 8 - 9 , 248.

22. W o r d e n 1 9 8 1 , pp. 1 9 5 - 9 ; M i l t o n 1 9 5 3 - 8 2 , v n , p. 356. 23. H a r r i n g t o n 1 9 7 7 , pp. 3 2 3 - 5 , 329; W o r d e n 1 9 8 1 , pp. 1 9 8 - 9 . 24.

H a r r i n g t o n 1 9 7 7 , pp. 332, 456; Sidney 1 7 7 2 , pp. 1 7 4 - 5 , 1 7 9 .

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Since the rise o f one nation must m e a n the suffering o f another, it w a s time to o u t l a w the foolish pursuit o f international g l o r y and to seek means to international security. M o l e s w o r t h lamented the arms race o f his time and the fear w h i c h m a d e all m o n a r c h s reluctant to 'disarm'. L i k e Fletcher, M o l e s w o r t h w a n t e d an international order w h e r e m e n w o u l d be 'citizens o f the w o r l d ' . 2 5

Despite his aversion to political tension and disorder, H a r r i n g t o n subscribed to the idea o f civic virtue and participation, and e v i d e n t l y believed that his procedures for debate and resolution w o u l d p r o m o t e it. H e w a s at one w i t h his f e l l o w republicans in seeing the choice b e t w e e n a t y r a n n y and a free state as the choice w h i c h M a c h i a v e l l i had offered b e t w e e n t w o sets o f values. In republican eyes, 'courts' inevitably generated ' l u x u r y ' and its 'inseparable c o m p a n i o n , idleness', w h i l e c o m m o n w e a l t h s w e r e distinguished b y the 'frugality', 'industry', 'sobriety', and 'honest p o v e r t y ' o f their c i t i z e n s . R e p u b l i c a n f r e e d o m w a s n o t a m e r e absence o f restraint. M i l t o n ' s distinction b e t w e e n 'liberty' and 'licence' w a s d r a w n , t o o , b y N e d h a m and b y S i d n e y : and all republicans w o u l d h a v e applauded M i l t o n ' s c o n t e m p t , in Samson Agonistes, for 'nations g r o w n corrupt', w h i c h preferred ' b o n d a g e w i t h ease' to 'strenuous liberty'. In 1659—60, a t i m e o f g r a v e hardship, M i l t o n w a s ready to ban the ' l u x u r i o u s expenses o f a nation u p o n trifles or superfluities', and to insist on the e n f o r c e m e n t o f civic virtue at w h a t e v e r e c o n o m i c cost ( M i l t o n 1953—82, vii, p . 386; cf. ibid., in, pp.437—8). O t h e r republicans shared his dislike o f ' m o n e y ' . T h e i r Puritanism o n that score must n o t be e x a g g e r a t e d : m a n y republicans w e r e c o n c e r n e d to generate w e a l t h , n o t least in order to solve the p r o b l e m o f p o o r relief; and the c o u n t r y party hostility to the ' m o n e y e d interest' m a d e o n l y a limited i m p a c t o n republican t h o u g h t before 1700 (Sullivan 1982, p . 164). E v e n so, civic self-fulfilment, like military self-fulfilment, w o u l d b e a Spartan process. T h e sanctions o f civic l o y a l t y w o u l d b e severe. T h e state w o u l d be b o u n d t o g e t h e r b y strict oaths o f association, b y stiff treason laws, and b y severe punishments, e v e n the death penalty, for breaches o f civic responsibility. E d u c a t i o n , a l w a y s a c h i e f instrument in republican plans or reform, w o u l d r i g o r o u s l y instil 26

27

2 8

29

30

25. Fletcher 1 7 3 2 , pp. 4 3 7 - 3 1 ; M o l e s w o r t h 1694, p . 126; M o l e s w o r t h 1 7 2 1 , p. x i v . 26. N e d h a m 1 9 7 1 , in, p. 294, i v , pp. i33rF; H a r r i n g t o n 1 9 7 7 , pp. 188, 202, 6 8 4 - 5 , 687; M i l t o n 1 9 5 3 - 8 2 , 1, p. 4 7 5 ; Sidney 1666?, p p . 6 8 , 74; W o r d e n 1985, p. 18; M o l e s w o r t h 1694, sig. A 4 V . 27. M i l t o n , Sonnet XII; M i l t o n 1 9 5 3 - 8 2 , 1 1 , p. 225, in, p. 190, v(i), p. 1 3 1 ; N e d h a m 1 9 7 1 , m, p. 295, v, p. 69; Sidney 1 7 7 2 , p. 3. 28. Sidney 1 7 7 2 , pp. 134, 425; M o y l e 1 7 2 7 , p. 52, 1969, p. 239; Fletcher 1 7 3 2 , p . 429. 29. Bethel 1 6 7 1 , p. 7; Fletcher 1 7 3 2 , p. 3 7 5 ; M o y l e 1 7 2 7 , pp. 28-30; Argument 1697, p. 2; Short History 1698, p. 3. 30. N e d h a m 1 9 7 1 , in, pp. 3 0 9 - 1 0 , v, p. 6; H a r r i n g t o n 1 9 7 7 , pp. 6 2 3 - 4 , 6 8 4 - 5 ; M o y l e 1969, p. 232; M o l e s w o r t h 1 7 2 1 , p. vi; Fletcher 1 7 3 2 , pp. 5 7 - 8 .

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civic values. Pupils, t h o u g h t M o l e s w o r t h , should be exposed not merely to 'the study o f w o r d s and l a n g u a g e s ' but to 'the w e i g h t i e r matters o f true learning . . . such as g o o d principles, morals, the i m p r o v e m e n t o f reason, the l o v e o f justice, the value o f liberty, the d u t y one o w e s to one's c o u n t r y and the laws, . . . the right n o t i o n o f a generous and legal f r e e d o m ' . T h e f o r m i d a b l y austere training camps w h i c h Fletcher planned for his r e f o r m e d militia w o u l d require y o u t h s to study ancient history b e t w e e n military exercises and e x h o r t each other to the p r o m o t i o n o f ' p u b l i c liberty'. T h e y w o u l d be 'as great a school o f virtue as o f military discipline': pupils ' w o u l d learn greater and better things than the military art, and m o r e necessary t o o ' (Fletcher 1732, p . 64; cf. p p . 3 - 5 ) . 31

A n essential aspect o f civic fulfilment w a s w h a t H a r r i n g t o n called 'participation o f m a g i s t r a c y ' (Harrington 1977, p. 277). A d m i t t e d l y republican enthusiasm for that idea w a s sometimes ill at ease w i t h the c o u n t r y party's suspicion o f p o w e r and w i t h its posture o f stoical indifference to it; but c o u n t r y party sentiments often b e l o n g e d to m e n w h o felt themselves unjustly e x c l u d e d f r o m office b y 'court-parasites' - and w h o found solace in the republican belief that the o c c u p a n c y o f g o v e r n m e n t posts should be determined b y virtue and merit instead o f favour. M i l t o n and S i d n e y w e r e especially anxious to respect the Aristotelian principle that virtue — w h e r e i n , rather than in h i g h birth, true nobility lay - must be r e w a r d e d b y office: if one m a n stood out from his c o u n t r y m e n he should be k i n g (a suggestion they tended to invert as soon as they had m a d e it, so that it served to demonstrate the injustice o f subordinating outstanding citizens to the worthless k i n g s o f the seventeenth c e n t u r y ) ; i f a f e w w e r e p r o m i n e n t they should rule as a nobility; w h e r e m e n w e r e equal they should rule equally. S o the p r e d o m i n a n t f o r m o f g o v e r n m e n t should be determined b y the distribution o f merit rather than — as H a r r i n g t o n proposed — o f p r o p e r t y . A s S i d n e y put it, detur digniori is the v o i c e o f nature' (Sidney 1 7 7 2 , p p . 39, 6 1 ) . T h e r e w a r d o f merit was not o n l y a matter o f fairness or o f ensuring the political acquiescence o f the virtuous. If c o m m o n w e a l t h s existed for the g o o d life, then they w e r e to be j u d g e d b y the m o r a l qualities o f their citizens and b y the n u m b e r o f 'heroes' or 'patterns' (of w h i c h R o m e had boasted so m a n y ) a m o n g t h e m . 32

l

33

L i k e M a c h i a v e l l i , English republicans believed themselves to be l i v i n g

v

31. M o l e s w o r t h 1694, sig. B4r. Cf. N e d h a m 1 9 7 1 , in, pp. 2 9 3 - 4 , > PP-6, 5 3 - 7 ; Harrington 1977, pp. 227, 228, 300, 304; M i l t o n 1 9 5 3 - 8 2 , 1 1 , pp. 362—415, v n , pp. 3 8 3 - 4 ; Sidney 1 7 7 2 , p. 379; M o y l e 1 7 2 7 , p. 6 1 ; H a r r i n g t o n 1700, p . x ; T o l a n d 1698, p p . 5 9 6 , 6 0 5 - 6 . 32. M i l t o n 1 9 5 3 - 8 2 , HI, p p . 2 0 4 , 4 6 0 - 2 , 486, iv(i), pp. 3 6 6 - 7 , 438; W o r d e n 1985, p. 24. 33. M i l t o n 1 9 5 3 - 8 2 , 1, p. 4 2 1 ; Sidney 1 7 7 2 , p p . 6 0 , 1 1 7 , 134, 185, 2 1 4 , 2 1 8 - 2 1 , 233, 236, 2 3 8 - 9 , 381;

N e v i l e 1969, pp. 9 0 - 1 .

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t h r o u g h a critical period - a l t h o u g h H a r r i n g t o n ' s v i e w o f his time w a s m o r e optimistic than that o f his successors. T h e later republicans believed the G o t h i c constitutions and the free city-states to h a v e been u n d e r m i n e d b y the rise o f the Renaissance monarchies in the fifteenth century — in France, in B u r g u n d y , in Spain, in Italy, in Scotland, in E n g l a n d . T h e 'subtle arts' o f kings, c o m p l a i n e d Sidney, had 'subverted the L a w s ' and thus ' b r o k e n this g o l d e n chain' o f G o t h i c polities (Sidney 1 7 7 2 , p. 252). It w a s left to Fletcher and M o y l e , late in the century, to revert f r o m S i d n e y ' s censoriousness to H a r r i n g t o n ' s insistence o n impersonal rather than m o r a l explanations. Fletcher t h o u g h t that the decay o f G o t h i c monarchies, a l t h o u g h fatal to liberty, had n o t been 'introduced b y the contrivance o f illdesigned m e n ' but caused rather b y the e c o n o m i c and social consequences o f the i n v e n t i o n o f the compass, o f g u n p o w d e r , and o f printing. T h o s e discoveries w e r e 'in themselves excellent' (Fletcher 1732, p p . 6 , 10), but they had bred in the nobility a taste for l u x u r y w h i c h had destroyed their independence and w h i c h had led to the r e v o l u t i o n in l a n d o w n e r s h i p described b y H a r r i n g t o n . M o y l e argued that the causes o f constitutional change must be s o u g h t n o t in ' m o r a l reasons' but in 'the o n l y true g r o u n d and foundation o f p o w e r , p r o p e r t y ' ( M o y l e 1969, p. 2 3 1 ) . 34

H o w e v e r they explained G o t h i c decline, H a r r i n g t o n ' s successors w e r e agreed that in their o w n century history had taken a g r i m m e r turn. A b s o l u t i s m had been achieved in France and the H a b s b u r g lands, and in E n g l a n d the early Stuarts had succeeded, in Sidney's w o r d s , in 'turning a legitimate m o n a r c h y into t y r a n n y ' (Sidney 1666?, p . 122). T h e skies had darkened further w i t h the coups o f 1660 in E n g l a n d and D e n m a r k . T o Sidney, the reign o f Charles II was a black tyranny; to republicans o f the n e x t generation, the 1690s w e r e a period o f black corruption. A d m i t t e d l y the R e v o l u t i o n o f 1688—9 did p r o d u c e a tendency to think o f E n g l a n d less as a v i c t i m o f a general E u r o p e a n trend than as a c o u n t r y w h i c h , t h r o u g h p r o v i d e n c e or g e o g r a p h y or m e r e luck, had retained a liberty that the rest o f E u r o p e had l o s t . B u t E n g l a n d m i g h t s u c c u m b at any m o m e n t ; and the republicans o f the 1690s w e r e as anxious as Sidney and N e v i l e had been that — in phrases w h i c h echo d o w n the republican literature o f the century - the constitution be r e f o r m e d 'in time', before decay had m a d e r e n o v a t i o n ' t o o late'. 35

36

34. N e d h a m 1 9 7 1 , in, p. 23 1, iv, pp. 112ff, i49fT, i65ff, 2136°, 26iff, 357fT, v, pp. 2 2 - 4 , 1 3 6 - 8 ; W o r d e n 1985, p. 17; N e v i l e 1969, p. 137; M o y l e 1969, p. 2 3 1 . 35. M o l e s w o r t h 1694, sig. A 6 v ; Fletcher 1732, p. 26; Short History 1698, pp. 2 - 4 , 16; M o y l e 1727, p. 62. 36. Harrington 1977, p. 188; Copy of a Letter 1656, p. 7; W o r d e n 1985, pp. 1 7 - 1 8 ; N e v i l e 1969, pp. 81, 99; M o y l e 1969, p. 256.

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In their approach to history, b o t h classical and European, republicans liked to s h o w h o w ' e x a m p l e ' and ' e x p e r i e n c e ' illustrated timeless principles o f 'reason' — reason b e i n g the root o f the tree w h e r e o f e x a m p l e and experience w e r e branches (Harrington 1977, p. 454; Sidney 1 7 7 2 , p. 182). T h e i r arguments had an element o f circularity. W h e n its e v i d e n c e supported t h e m they i n v o k e d the sanction o f antiquity, and argued that the m e d i e v a l history o f parliament, o f the succession or o f the c o r o n a t i o n oath g a v e the verdict o f c u s t o m and precedent to the W h i g rather than the T o r y case. B u t w h e n history failed to support their beliefs they abandoned it, and r e b u k e d history for failing to f o l l o w the principles o f reason. S i d n e y asserted, in terms close to L o c k e ' s , the authority o f ' n o t so m u c h that w h i c h is most ancient, as that w h i c h is the best' (Sidney 1 7 7 2 , p. 404). T h e landmarks o f m e d i e v a l liberty, like M a g n a C a r t a , w e r e i m p o r t a n t less because o f their antiquity than because they g a v e expression to principles o f reason w r i t t e n in the hearts o f m e n ( N e v i l e 1969, p. 124; S i d n e y 1 7 7 2 , p. 433). In any case the origins o f g o v e r n m e n t , lost in 'fable' or 'oral tradition' ( N e v i l e 1969, p. 84; S i d n e y 1 7 7 2 , p. 402), c o u l d be discovered o n l y b y reason, n o t b y research. T i m e and again republicans declared it 'impossible', 'not to be i m a g i n e d ' , that any p e o p l e w o u l d in time past h a v e and surrendered the rights w h i c h m o n a r c h s n o w claimed o v e r t h e m , w h i c h , b e i n g inherently in the people, w e r e in any e v e n t inalienable b y them. T h e republicans' confidence in 'reason' seems to contrast m a r k e d l y w i t h the C a l v i n i s t pessimism o f the Puritans and nonconformists w i t h w h o m they often found themselves in alliance. E q u a l l y , republican enthusiasm for classical and pagan civilisation l o o k s barely c o m p a t i b l e w i t h Puritan fundamentalism. T h e republicans also differed f r o m the Puritans (as w e l l as f r o m H o b b e s ) in their stress o n the positive aspects o f man's sociability. N o Calvinist c o u l d h a v e w a r m e d to M o l e s w o r t h ' s premise that, e v e n in a fallen w o r l d , 'liberty' w a s 'natural' and its absence a 'disease' that arose f r o m 'nature debauched, d e p r a v e d or enforced' ( M o l e s w o r t h 1694, *g- A i v ) . It m a y seem curious to us that the republicans o f 1659 secured the c o o p e r a t i o n o f the Puritan L u d l o w , w h o w a s indignant at the belief - w h i c h m a n y republicans w o u l d h a v e privately a c k n o w l e d g e d for their o w n — 'that w e are to take the history o f the H o l y Scriptures as those o f T i t u s L i v i u s or P o l y b i u s ' ( L u d l o w 1978, sig. A i v ) . H o w can L u d l o w h a v e b e c o m e a friend o f N e v i l e , w h o in parliament in 1659 w a s charged w i t h atheism after reportedly saying that he preferred reading C i c e r o to the Bible? 37

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37. Sidney 1 7 7 2 , pp. 13, 25, 55, 337, 424, 464; N e v i l e 1969, p p . 8 5 , 127; M o y l e 1969, p. 233. 38. M i l t o n 1 9 5 3 - 8 2 , iv(i), p. 467; M o l e s w o r t h 1694, sigs. B 8 v - C i r .

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T h e p r o b l e m is a genuine one. Y e t the religious c o m m i t m e n t o f the republicans is easily underestimated or misunderstood. C e r t a i n l y they w e r e sharply anti-clerical. T h e y resented the c l e r g y ' s interference in politics, and t h o u g h t the c l e r g y b l a m e d Europe's w a r s o f religion o n i t , responsible for the d e v e l o p m e n t o f T o r y and authoritarian political t h e o r y in the seventeenth c e n t u r y . Y e t their charge against the c l e r g y w a s not that they had p r o m o t e d religion but that they had perverted it. For republicans, politics w a s a supremely religious activity. T h e c o m m o n w e a l t h w a s 'a minister o f G o d u p o n Earth' (Harrington 1977, p. 323; Sidney 1 7 7 2 , p. 329). T h e a c h i e v e m e n t o f a perfect state w o u l d fulfil a divine instinct a m o n g citizens; for, as H a r r i n g t o n w r o t e , 'the c o n templation o f f o r m is astonishing to m a n , and has a kind o f trouble or impulse a c c o m p a n y i n g it, that exalts his soul to G o d ' . H a r r i n g t o n — unlike his successors — did n o t believe that h u m a n frailty need impair his i m m o r t a l c o m m o n w e a l t h , 'for as m a n is sinful, but yet the w o r l d is perfect, so m a y the citizens be sinful and yet the c o m m o n w e a l t h be perfect' (Harrington 1977, pp. 320, 837). T h a t aspiration w a s n o t an irreligious one. T h e r e are hints, indeed, that H a r r i n g t o n saw in politics the road not o n l y to the secular self-fulfilment o f citizen-freeholders but to that r e c o v e r y f r o m the Fall w h i c h it w a s the religious purpose o f B a c o n and M i l t o n and S a m u e l Hartlib to a c c o m p l i s h ( W e b s t e r 1975). T h e apocalyptic strain in H a r r i n g t o n ' s imperialism w a s close to Puritanism. S o w e r e the republicans' insistence o n 'frugality' and 'industry' and their belief, w h i c h enabled N e v i l e and S i d n e y to m a k e c o m m o n cause w i t h R e s t o r a t i o n n o n c o n f o r mists, that the English w e r e 'a v e r y debauched p e o p l e ' ( N e v i l e 1969, p. 196; W o r d e n 1985, pp.26—7). L i k e the Puritans, t o o — albeit in a s o m e w h a t different spirit — republicans regarded the O l d T e s t a m e n t as a fundamental source o f political w i s d o m . F r o m D e u t e r o n o m y 17 and f r o m 1 S a m u e l 8 they k n e w that G o d had n o t w a n t e d m o n a r c h y , either for the Israelites or as a pattern for other nations. G o d ' s preference had clearly been for a free state, a l t h o u g h he had a l l o w e d his people liberty to m a k e their o w n choice. 39

40

41

In the H e b r e w p o l i t y , as it stood before the Israelites inflicted kings u p o n themselves, H a r r i n g t o n and Sidney saw a m i x e d constitution w h i c h e m b o d i e d the principle o f 'balance' likewise to be found in the c o m m o n wealths o f G r e e c e and R o m e . In that respect H a r r i n g t o n t h o u g h t Israel 39. N e d h a m 1 9 7 1 , iv, pp. 373ff; Harrington 1 9 7 7 , pp. 186, 2 1 6 ; M o y l e 1969, p. 2 1 6 . 40. W o r d e n 1985, p. 21; Sidney 1666?, pp. 8, 40; N e v i l e 1969, p. 150; M o y l e 1727, p. 62; M o l e s w o r t h 1694, sigs. B 6 v ~ 7 r . 4 1 . N e d h a m 1 9 7 1 , iv, pp. 357fF; M i l t o n 1 9 5 3 - 8 2 , in, pp. 2 0 6 - 7 ; Sidney 1 7 7 2 , pp. 12, 6 7 - 8 .

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'that original w h e r e o f all the rest o f the c o m m o n w e a l t h s seem to be c o p i e s ' . T h u s the O l d T e s t a m e n t p r o v i d e d the essential introduction to political ' p r u d e n c e ' . ' T h e y ' , w r o t e H a r r i n g t o n , 'that under c o l o u r o f religion, in matter o f g o v e r n m e n t , slight prudence are mistaken or d o n o t m e a n honestly. N e i t h e r G o d n o r Christ e v e r instituted any p o l i c y w h a t s o e v e r u p o n any other principles than those o f h u m a n p r u d e n c e . ' T h e c l e r g y — in w h o s e e n m i t y to h i m s e l f H a r r i n g t o n saw a parallel to the clerical conspiracy that had d a m a g e d the reputation o f M a c h i a v e l l i - w e r e at fault in calling it 'irreverent or atheistical' to derive political instruction f r o m the classical l a w g i v e r s as w e l l as f r o m M o s e s . H a r r i n g t o n saw n o conflict b e t w e e n his o w n Christian values and his p a g a n ones. H a d it n o t been ' b y the help o f the arts' w h i c h R o m e had cultivated that Christianity had spread? G o d g a v e g u i d a n c e to m e n t h r o u g h the light o f nature, w h i c h w a s visible to pagans as w e l l as Christians. T h u s 'ancient p r u d e n c e ' had been 'first discovered u n t o m a n k i n d b y G o d h i m s e l f in the fabric o f the c o m m o n w e a l t h o f Israel, and afterward p i c k e d out o f his footsteps in nature and u n a n i m o u s l y f o l l o w e d b y the G r e e k s and R o m a n s ' (Harrington 1977, p p . 1 6 1 , 192, 547, 629). 42

T h e c l e r g y w e r e held responsible b y republicans for the erosion o f civic virtue. M i l t o n b l a m e d t h e m for that ' l o w dejection and debasement o f m i n d in the p e o p l e ' that had p r o d u c e d the 'idolising' o f k i n g s ( M i l t o n 1953—82, in,p. 343). N e v i l e t h o u g h t that 'priestcraft' had ' d e f o r m e d the face o f g o v e r n m e n t in E u r o p e , destroying all the g o o d principles and m o r a l i t y left us b y heathens': he aimed 'to restore the g o o d p o l i c y (I had almost said w i t h . . . L i v y the sanctity too) o f the heathens, w i t h all their v a l o u r and g l o r i o u s e n d o w m e n t s ' . T h e c l e r g y ' s political influence w a s , he maintained, 'a solecism in g o v e r n m e n t ' w h i c h the R e f o r m a t i o n had disastrously failed to eliminate ( N e v i l e 1 6 7 5 , 'Letter', p p . 7 - 8 ) . In o p p o sition to the c l e r g y , republicans a r g u e d for liberty o f conscience, w h i c h , they p r o c l a i m e d , w a s the natural c o m p a n i o n o f a free state. Y e t w h i l e republicans sometimes pressed for a c o m p l e t e separation o f c h u r c h f r o m state, there w a s a p o w e r f u l strand w i t h i n republicanism w h i c h emphasised the need for a 'national r e l i g i o n ' . For, as H a r r i n g t o n had it, 'religion is n o t h i n g else b u t the national conscience'; and the national conscience, the religious dimension o f civic virtue, required national institutional expression. 43

44

W h a t e v e r resemblances o f m o r a l tone republicanism m a y h a v e b o r n e to 42. Harrington 1 9 7 7 , p. 205; cf. Sidney 1666?, p. 1 1 7 . 43. H a r r i n g t o n 1 9 7 7 , p. 742; M o y l e 1969, pp. 2 1 2 - 1 5 . C f . M i l t o n 1 9 5 3 - 8 2 , m, p p . 5 0 9 , 570. 44. Harrington 1 9 7 7 , pp. 185, 2 1 7 - 1 8 , 307, 678; N e v i l e 1969, p. 153; M o y l e 1969, p. 2 1 3 .

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and revolution in the seventeenth

century

Puritanism, there w e r e not m a n y similarities o f t h e o l o g y . T h e r e is, indeed, little t h e o l o g i c a l substance to the w r i t i n g s o f H a r r i n g t o n and his successors. Enemies to idolatry in religion as in politics, they strove to expose, t h r o u g h reason, the h o l l o w mysteries o f d o g m a . R e p u b l i c a n i s m a l w a y s had affinities w i t h the A r m i n i a n and Socinian criticisms o f Calvinist t h e o l o g i c a l r i g o u r ( W o r d e n 1 9 8 1 , p. 195); and b y the late seventeenth century, w h e n T o l a n d and M o y l e w e r e w a r r i n g against 'creeds and catechisms', re publicanism seemed the natural friend o f deism. M o y l e t h o u g h t that 'the c o m m o n principles o f religion all m a n k i n d agree in' ( M o y l e 1969, p. 210). M o l e s w o r t h w o u l d h a v e e x t e n d e d toleration to pagans, J e w s , and T u r k s ( M o l e s w o r t h 1 7 2 1 , p p . xii—xiv). R e l i g i o n had b e c o m e not m e r e l y an ally o f civic virtue but scarcely distinguishable f r o m it. R e p u b l i c a n s agreed w i t h M a c h i a v e l l i that the Christian religion, in the corrupted state to w h i c h the c l e r g y had reduced it, w a s subversive o f those qualities — manliness, c o u r a g e , appetite for g l o r y — o n w h i c h civic and military health depended. Fletcher p r o p o s e d to ban the c l e r g y f r o m his militia training camps, w h e r e l a y m e n w o u l d teach each other 'Christian and m o r a l duties' (Fletcher 1732, p. 57). M o y l e praised N u m a , the father o f the R o m a n religion, w h o ' i n t e r w o v e his m o r a l precepts w i t h his religious doctrine'. R o m e , indeed, p r o v i d e d M o y l e ' s m o d e l o f a 'national religion', for N u m a had supplied 'the wisest and m o s t politic system o f religion that ever any l a w g i v e r f o u n d e d ' . M o y l e and M o l e s w o r t h endorsed the 'pious cheats' w i t h w h i c h the R o m a n s had fostered civic bonds: the use o f oracles and augurs, the doctrine o f the i m m o r t a l i t y o f the soul ('an o p i n i o n o f great use and service to the state'), the m y t h o f the Elysian Fields w h e r e m e n w h o died for their c o u n t r y found eternal happiness. In the p r o p a g a t i o n o f those 'cheats', it seems, the c l e r g y m i g h t find a place after all. M o l e s w o r t h w a n t e d 'generous notions o f liberty' to be 'inculcated f r o m the pulpit, and enforced b y the learned a r g u m e n t s o f able divines' ( M o y l e 1969, p p . 2 0 7 - 1 2 ; M o l e s w o r t h 1694, sigs. B 4 V , C 3 V ) . In e x p l o r i n g the deficiencies o f m o n a r c h y the republican writers o f seventeenth-century E n g l a n d addressed a fundamental p r o b l e m — perhaps the fundamental p r o b l e m - o f c o n t e m p o r a r y politics, and g a v e m e n an alternative perspective and an alternative l a n g u a g e to those o f the m o r e insular tradition o f l a w and precedent. Y e t in their w r i t i n g s t h o u g h t is often an inch a w a y f r o m prejudice. H a r r i n g t o n alone — w h o s e arguments w e r e m o r e often repeated b y his successors than modified b y t h e m — w a s an indisputably creative and i n n o v a t i v e thinker. In the eighteenth century, in 474

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the prose o f T r e n c h a r d and G o r d o n and B o l i n g b r o k e , republican prejudice declined almost into republican cliche. T h e significant l e g a c y o f the ideas w e h a v e inspected lay in a broader field, w h e r e H a r r i n g t o n i a n ideas w e r e adapted to political purposes o f w h i c h H a r r i n g t o n m i g h t scarcely h a v e a p p r o v e d . Classical political l a n g u a g e , and the doctrine o f the balance, b e c a m e c o m m o n p l a c e in eighteenth-century political discussion - and in e i g h t e e n t h - c e n t u r y vindications o f o l i g a r c h y (Smith 1 9 7 1 , p p . 145—8). T h e ideal o f the independent citizen likewise entered the mainstream o f English political culture. T h o s e o u t l o o k s cannot necessarily be attributed to the republican tradition alone, but they are p r o b a b l y i n c o n c e i v a b l e w i t h o u t it. T h e tradition left its m a r k o n h i g h t h o u g h t and l o w ; for, as P o c o c k has w r i t t e n , 'the m y t h o f the standing a r m y , the G o t h i c society o f free landed proprietors, and the rise o f l u x u r y and bureaucracy, w a s b o t h the w o r n l a n g u a g e o f tediously insincere parliamentary debate and o n e o f the seminal ideas o f eighteenth-century h i s t o r i o g r a p h y ' ( P o c o c k 1 9 7 1 , 1972, p. 146). A d a m F e r g u s o n and D a v i d H u m e w r o t e history to illustrate a civic humanist thesis w h i c h seventeenth-century republicanism had d o n e m u c h to shape. S o did E d w a r d G i b b o n — in w h o s e library the seventeenthT o recall G i b b o n o n century republicans w e r e w e l l represented. Christianity is to suspect the existence o f another durable l e g a c y o f republicanism, in the alliance it had f o r m e d w i t h deism. A n d the p o s t h u m o u s i m p a c t o f the seventeenth-century m o v e m e n t w a s not to be felt in Britain alone. In France the principal texts o f the tradition w e r e to g u i d e M o n t e s q u i e u into the tradition o f Renaissance political h u m a n i s m (Shackleton 1964, p p . 8-10); and across the A t l a n t i c they w e r e to play a major part in 'the i d e o l o g i c a l origins o f the A m e r i c a n R e v o l u t i o n ' ( B a i l y n 1967; P o c o c k 1985, p . 2 i 6 n ) . 45

45. K e y n e s 1980, pp. 144, 184, 198, 203, 2 5 1 , 268. C f . L u d l o w 1978, p. 40n.

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IV The end of Aristotelianism

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16 Tacitism, scepticism, and reason of state PETER

i

BURKE

R e a s o n o f state

T h e historian Friedrich M e i n e c k e , a b o l d c l i m b e r o f w h a t he liked to call the ' m o u n t a i n - p e a k s ' in the history o f ideas, o n c e w r o t e despairingly o f the literature o n reason o f state that ' T h e r e are real catacombs here o f f o r g o t t e n literature b y mediocrities' ( M e i n e c k e 1957, p. 6yn). A l l the same, these c a t a c o m b s are w e l l w o r t h the effort o f e x p l o r a t i o n to any historian concerned w i t h the history o f arguments, attitudes, and mentalities as w e l l as w i t h the achievements o f outstanding individuals. Shifts in political attitudes are generally m a r k e d , sooner or later, b y the c o i n a g e o f n e w terms, as the traditional v o c a b u l a r y c o m e s to appear increasingly inad equate to express the n e w insights. In the later sixteenth century, an i m p o r t a n t n e w ' k e y w o r d ' w a s 'reason o f state'. T o be exact, the Italian phrase ragione degli stati had been e m p l o y e d , around the year 1547, b y G i o v a n n i della Casa — the archbishop best k n o w n for his courtesy b o o k — in an oration to the e m p e r o r Charles V , but it w a s o n l y in 15 80s or thereabouts that the n e w c o i n a g e passed into general currency. B y the time G i o v a n n i B o t e r o published his Ragione di Stato (1589), the first o f a w h o l e shelf o f b o o k s bearing that sort o f title, it w a s , as he noted in the dedication, a 'constant subject o f discussion' in s o m e courts. T h e claim is plausible e n o u g h , since B o t e r o ' s b o o k w e n t t h r o u g h at least five m o r e Italian editions b y 1606, w h i l e the phrase ragion di stato appears in the titles o f at least eight m o r e Italian treatises o n politics b y the year 163 5. 1

B o t e r o was q u i c k l y translated into G e r m a n , French, Spanish, and Latin, and so contributed to the international circulation o f the n e w term; razon de

1. Frachetta 1592; Palazzo 1606; C a n o n h i e r o 1614; Z u c c o l o 1 6 2 1 ; Buonaventura 1623 (written c. 1601); Z i n a n o 1626; Settala 1627; Chiaramonti 1635.

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estado, ratio status, raison d'état. ( T h e G e r m a n s tended to use the Latin phrase, the English, until the 1620s at least, to use the Italian, or to replace it b y ' p o l i c y ' . ) T h e c o n c e p t w a s central to political t h o u g h t for a b o u t a century, and appeared n o t o n l y in theoretical treatises but also in practical m e m o r a n d a , i n c l u d i n g the Testament politique o f C a r d i n a l R i c h e l i e u and the Mémoires o f L o u i s X I V . In an age w h e n abstractions w e r e frequently personified, reason o f state m a d e an appearance in w o o d c u t s and e n g r a v i n g s in female f o r m , and once, o n stage, as the quack d o c t o r 'Meister R a t i o Status' offering his patient 'pills o f h y p o c r i s y ' (Rist 1647). W h a t e x a c t l y w a s this reason o f state? T h e political writers o f the period w h o use the phrase — and there are certainly e n o u g h o f t h e m — d o not e m p l o y it in quite the same w a y . Its a m b i g u i t y m a y w e l l h a v e been the secret o f its success. T h e term 'reason' w a s , o f course, quite slippery e n o u g h b y itself. T h e Latin ratio sometimes has the force o f ' m e t h o d ' , or 'plan', as in the case o f the Jesuit Plan o f Studies {Ratio Studiorum). In sixteenth-century French, a livre de raison w a s an account b o o k . In Italian, ragione w a s associated n o t o n l y w i t h 'reason' but also w i t h 'discourse', 'accounts', and ' l a w ' ; the thirteenth-century P a l a z z o della R a g i o n e in Padua, w h i c h still stands, is n o t the 'Palace o f R e a s o n ' but the T o w n Hall. W h e n D e l l a Casa used the phrase ragione degli stati, it w a s in deliberate contrast to ragione civile, 'civil l a w ' , i m p l y i n g that the rulers o f states w e r e a b o v e the l a w {quod principi placuit, and so forth). T h e l a w w a s also in B o t e r o ' s m i n d w h e n he c a m e to propose a definition o f reason o f state in the first chapter o f his treatise. A c t u a l l y he proposed n o t one definition but t w o , w h i c h o v e r l a p but d o n o t coincide. 'State is a stable rule o v e r p e o p l e ' , he b e g a n , 'and reason o f state is the k n o w l e d g e o f the means b y w h i c h such a d o m i n i o n m a y be founded, preserved, and e x t e n d e d . ' A m o m e n t later he added that the t e r m has a m o r e specific c o n n o t a t i o n and refers to 'such actions as cannot be considered in the light o f ragione ordinaria', w h i c h the translators o f his treatise h a v e rendered 'ordinary reason' but makes better sense, I think, i f it is taken to m e a n 'ordinary l a w ' . In a b o o k published o n l y three years after B o t e r o ' s , G i r o l a m o Frachetta m a d e his d i c h o t o m y b o t h sharper and m o r e explicit. T h e r e are t w o kinds o f reason o f state, he explained, the true and the false. T r u e reason o f state is s i m p l y political prudence, he continued, w h i l e false reason o f state is the pursuit o f self-interest. M a n y evil deeds h a v e been c o m m i t t e d in the n a m e o f reason o f state b y such tyrants as the R o m a n e m p e r o r Tiberius (Frachetta 1592, fos. 38a, 43b). T w o years later, it w a s the turn o f Scipione A m m i r a t o to offer a definition o f the phrase, w h i c h w a s , he declared, ' o n 480

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Tacitism, scepticism, and reason of state our lips all d a y ' , yet remained ill-understood. ' A prince should n o t be described as acting f r o m reason o f state if it can be s h o w n that this w a s done t h r o u g h ordinary legal channels (per ragione d'ordinaria giustizia)' The phrase refers to cases w h e n the l a w is b r o k e n , or m o r e e x a c t l y o v e r r i d d e n , b y the ruler for the public g o o d . Great princes, he declares, such as the e m p e r o r T i b e r i u s and K i n g H e n r i III o f France, h a v e o n occasion been o b l i g e d to h a v e dangerous individuals, such as Sejanus and H e n r i due de Guise, put to death w i t h o u t trial ( A m m i r a t o 1594, B o o k 12, ch. 1; the e x a m p l e s w i l l recur). A generation later, A m m i r a t o w a s criticised b y the l a w y e r L o d o v i c o Z u c c o l o for suggesting that reason o f state necessarily i n v o l v e d breaches o f the l a w . Z u c c o l o , w h o pointed out w i t h s o m e disdain that in his time ' e v e n the barbers and other base craftsmen discuss reason o f state in their shops and other haunts and ask questions about it', h i m s e l f argued that an action m a y be described as h a v i n g been p e r f o r m e d for reasons o f state w h e n e v e r it helps in the conservation o f the particular f o r m o f g o v e r n m e n t then in force. T h u s , it is f r o m reason o f state that the G r a n d T u r k kills his brothers w h e n he b e c o m e s sultan, because the T u r k i s h despotism requires the elimination o f possible c o m p e t i t o r s for supreme p o w e r . L i k e his p r e d e cessors in the genre, Z u c c o l o t h o u g h t in d i c h o t o m i e s , but his basic distinction w a s the one b e t w e e n theory and practice, rather than those b e t w e e n legal and illegal, or true and false reason o f state. B y the 1620s, most o f the main points about reason o f state had been m a d e , and these points w o u l d simply be repeated in later treatises, w h e t h e r their authors w e r e Italians, G e r m a n s , Spaniards, or F r e n c h m e n . For this reason it w i l l p r o b a b l y be m o r e useful to outline an 'identikit' picture o f the typical contents o f these treatises than to discuss any one o f t h e m in detail. A n u m b e r o f political writers o f the time c o n d e m n e d reason o f state altogether, like the poet Francisco Q u e v e d o , w h o claimed that the greatest master o f this art w a s Pontius Pilate, w h o had c o n d e m n e d Christ for precisely this reason. It w a s m o r e c o m m o n , h o w e v e r , to d r a w a distinction b e t w e e n t w o kinds o f reason o f state, 'true' or ' g o o d ' on one side and 'false' or 'devilish' on the other. T h e distinction m i g h t be m a d e in terms o f ends; g o o d reason o f state is w h a t serves the c o m m o n g o o d , bad reason o f state is w h a t serves the individual ruler. A l t e r n a t i v e l y , it w o u l d be d r a w n w i t h reference to the means e m p l o y e d . T r u e reason o f state is limited b y justice, piety, the l a w o f G o d , and so on, w h i l e false reason o f state c o n d o n e s the breach o f treaties and e v e n political assassination. T h e r e w a s general a g r e e m e n t that a line should be d r a w n b e t w e e n the t w o kinds o f reason o f 481

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state. W h e r e e x a c t l y to d r a w it w a s , o f course, another matter and a m o r e controversial one. T h e central concept w a s q u i c k l y associated w i t h a cluster o f other terms. 'Interest', for e x a m p l e , occurs m o r e and m o r e frequently in political and also in historical w r i t i n g in Italy, France, and elsewhere f r o m the end o f the sixteenth century. It forms the organising c o n c e p t o f H e n r i due de R o h a n ' s treatise, De Vinterest des Princes et Estats de la Chrestiente (1638). ' R e a s o n o f state', declared another French w r i t e r o f the time, 'is n o t h i n g but reason o f interest (raison d'interety (Bethune 1633). ' P r u d e n c e ' is another term w h i c h regularly recurs in the reason-of-state literature f r o m B o t e r o o n w a r d s . B o t e r o h i m s e l f devotes the second b o o k o f his treatise to the subject, w h i c h he reduces to the f o r m o f m a x i m s . P r u d e n c e w a s often associated w i t h 'state secrets' (arcana imperii), and also w i t h simulation and dissimulation, the opposite but c o m p l e m e n t a r y arts o f appearing to be w h a t y o u are not and o f not appearing to be w h a t y o u really are. A l t h o u g h s o m e writers in the genre d e n o u n c e d simulation as h y p o c r i s y , it w a s m o r e c o m m o n to a l l o w it to f o r m part o f true reason o f state. A s for false reason o f state, it w a s agreed that this w a s s o m e t h i n g the ruler needed to k n o w about, just as the physician needs to k n o w about poisons. Variations o n this medical m e t a p h o r recur frequently in this literature. (It m a y not h a v e been o n l y a m e t a p h o r : s o m e o f the w o r k s o n reason o f state w e r e actually w r i t t e n b y physicians.) T h e state, or ' b o d y politic' is described as b e i n g subject to 'illness', so that the ruler or minister has to be able to interpret p a t h o l o g i c a l s y m p t o m s , just like a g o o d physician. H e also needs to k n o w w h e n to prescribe a little b l o o d - l e t t i n g ; here the m e t a p h o r p r o v i d e s a justification for warfare. T h e physician o f the state needs to be able to g u i d e his patient t h r o u g h its various 'crises'; 'crisis' w a s still an essentially medical term at this period, and referred to the turning point in an illness, w h e n the fate o f the patient w a s decided. T h i s e x t e n d e d m e t a p h o r o f political sickness and health c o u l d , or course, be treated in a m o r e or less original w a y . It has been noted that M o n t a i g n e e m p l o y s the n o t i o n o f political illness, but chooses to say n o t h i n g about cures or physicians ( C l a r k 1970). W h e n , at the end o f the T h i r t y Y e a r s W a r , J o h a n n R i s t put 'Master R e a s o n o f State' o n to the G e r m a n stage in the garb o f a q u a c k d o c t o r , he w a s s i m p l y g i v i n g a n e w twist to an idea w h i c h had been fashionable for t w o generations (Rist 1647). A n associated idea is that politics, like medicine, is a professional skill, w h e t h e r it is to be described as an art (for s o m e writers, the 'art o f arts'), or as a 'science'. Political b e h a v i o u r w a s generally considered to f o l l o w rules 482 Cambridge Histories Online © Cambridge University Press, 2008

Tacitism, scepticism, and reason of state or principles, so that it c o u l d be reduced to m a x i m s or 'aphorisms' (a t e r m associated w i t h the ancient G r e e k physician Hippocrates and so an extension o f the medical m e t a p h o r ) . T h i s specialised skill in matters political is to be acquired, a c c o r d i n g to m a n y o f these writers, n o t o n l y b y experience but also b y the study o f history and o f different forms o f g o v e r n m e n t , f r o m C h i n a to Peru. B o t e r o did in fact d r a w e x a m p l e s f r o m b o t h o f these empires (not to m e n t i o n Iran and B u r m a ) , and w e n t o n to c o m p i l e the Relazioni Universalis a survey o f the w h o l e w o r l d w h i c h paid considerable attention to variations in the f o r m o f g o v e r n m e n t . L i k e the rise o f the reason-of-state genre itself, this w o r k suggests that a serious attempt w a s b e i n g m a d e to put the study o f politics o n a sound empirical basis b y collecting detailed observations in a systematic manner, as w a s b e i n g done in medicine, b o t a n y , a s t r o n o m y , and other disciplines. H o w n e w w a s all this? B o t e r o ' s lucid and w e l l - i n f o r m e d but rather pedestrian study o f reason o f state m a y h a v e launched a n e w literary and political genre, but it did n o t really break n e w intellectual g r o u n d . T h e author had the w i t to p r o v i d e his b o o k w i t h an i n t r i g u i n g l y up-to-date title, but its contents w e r e rather m o r e traditional. T h e y are, as he w a s w e l l a w a r e , reminiscent o f M a c h i a v e l l i , a l t h o u g h he is q u i c k to point o u t that M a c h i a v e l l i 'bases his reason o f state o n lack o f conscience' ( B o t e r o 1589, dedication). T h e p r o b l e m for B o t e r o , as for later writers in the genre, w a s that, m u c h as they m i g h t dislike M a c h i a v e l l i ' s r e c o m m e n d a t i o n s , they c o u l d n o t d o w i t h o u t his ideas. W h e r e the political thinkers o f the preceding centuries had concentrated o n such questions as the best f o r m o f g o v e r n m e n t or the duties o f the ruler, M a c h i a v e l l i p r o d u c e d h o w - t o - d o - i t b o o k s , 'political science' (in the t w e n t i e t h - c e n t u r y sense o f the term), rather than 'political p h i l o s o p h y ' . T h e reason-of-state writers had similar aims, as w e h a v e just seen, and so, w h e t h e r they attacked h i m or tried to i g n o r e h i m , they c o u l d n o t escape their debt to M a c h i a v e l l i . G e n e r a l l y they attacked h i m . H e w a s d e n o u n c e d as the master o f the devil's reason o f state. ' M a c h i a v e l l i s m ' (the t e r m w a s occasionally used b y contemporaries) w a s associated w i t h 'atheism' (in other w o r d s , the denial o f p r o v i d e n c e ) ; w i t h the w o r s h i p o f the state ('Politiolatry', it w a s sometimes called); and w i t h the politique party in the religious w a r s . H o w e v e r , s o m e o f the v e r y writers w h o d e n o u n c e d M a c h i a v e l l i so v i g o r o u s l y w i l l be found r e c o m m e n d i n g simulation, dissimulation, and e v e n the b r e a k i n g o f treaties, just as he did. W h a t they p r o d u c e d m a y be described, a c c o r d i n g to taste, as a m o r e Christian or s i m p l y a m o r e h y p o c r i t i c a l version o f M a c h i a v e l l i . It w o u l d , o f course, be mistaken to treat M a c h i a v e l l i as the first w r i t e r to 483 Cambridge Histories Online © Cambridge University Press, 2008

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m a k e r e c o m m e n d a t i o n s o f this kind. C o n f i d e n t i a l m e m o r a n d a o f the early sixteenth century - and this w a s , after all, w h a t The Prince had been intended to be — analyse political situations in a similar w a y ; the reports o f V e n e t i a n ambassadors, for e x a m p l e , or the analyses o f the state o f affairs in Florence after the restoration o f the M e d i c i . T h e r e is a sense in w h i c h the idea o f reason o f state goes b a c k to the twelfth and thirteenth centuries, to J o h n o f Salisbury, for e x a m p l e , w h o discussed the ' a r g u m e n t o f c o m m o n benefit' (ratio communis utilitatis), and to T h o m a s A q u i n a s , w h o w a s prepared to argue that 'necessity k n o w s n o l a w ' (nécessitas legem non habet). T h i s w a s , o f course, a time w h e n R o m a n l a w w a s b e i n g r e v i v e d , and the R o m a n s , t o o , had a concept not unlike that o f reason o f state; C i c e r o ' s ratio reipublicae, for e x a m p l e (Post 1961). It is possible to g o back still further, to the Greeks. A s A m m i r a t o remarked, T h u c y d i d e s and P o l y b i u s m a y be regarded as writers o n reason o f state. S o , o f course, can Aristotle, w h o w a s concerned w i t h the creation o f a science o f politics based, like b o t a n y , o n a collection o f empirical data. In the fifth b o o k o f his Politics, as E u r o p e a n intellectuals o f the sixteenth and seventeenth centuries k n e w v e r y w e l l , he described t w o m e t h o d s b y w h i c h tyrannies m a y be m a d e to endure. S o m e o f the reason-of-state authors cite Aristotle constantly, as Frachetta does, for e x a m p l e , or frame their definitions in his terms, w r i t i n g , for e x a m p l e , o f 'a habitus o f the practical intellect, called prudence'. H o w e v e r , the ancient w r i t e r w h o s e w o r k c o u l d most easily be assimilated into the reasonof-state tradition w a s , o f course, Tacitus.

ii

Tacitism

T h e political opinions o f C o r n e l i u s Tacitus are not easy to discern. A s the greatest m o d e r n authority has remarked, 'Tacitus gives little a w a y ' ( S y m e 1958, p. 520). His ironic manner reveals a c o n t e m p t for flattery and other forms o f servility and also a certain impatience w i t h theory, but leaves a m b i g u o u s his attitude to the R o m a n m o n a r c h y . A l t h o u g h he o b v i o u s l y disliked w h a t w e n t w i t h it, Tacitus m a y w e l l h a v e regarded the institution as the lesser evil. A s a result o f his a m b i g u i t y he c o u l d be claimed as an ally b y b o t h the opponents and the supporters o f m o n a r c h y in early m o d e r n E u r o p e , the 'red' and the ' b l a c k ' Tacitists, as they w e r e called in an essay published in Italy not l o n g after the First W o r l d W a r (Toffanin 1921). T h e r e w e r e certainly e n o u g h o f these 'Tacitists'. Interest in Tacitus as a political w r i t e r spread rapidly in the later sixteenth century. B e t w e e n 1580 and 1700, m o r e than 100 authors w r o t e c o m m e n t a r i e s o n Tacitus, and the majority o f these c o m m e n t a r i e s w e r e political ones. A f e w o f t h e m w e r e 484 Cambridge Histories Online © Cambridge University Press, 2008

Tacitism, scepticism, and reason of state critical (just as a f e w contributions to the reason-of-state genre w e r e attacks o n the idea and its implications), but in practice the distinction b e t w e e n critical admirers and a d m i r i n g critics w a s not v e r y sharp. M e a n w h i l e , the Annals and the Histories o f Tacitus w e n t t h r o u g h edition after edition (at least sixty-seven editions in the half-century 1600—49), in response to the g r o w i n g d e m a n d ( B u r k e 1969). A t this time, Tacitus w a s v i e w e d as a master o f reason o f state and the c o m m e n t a r i e s on h i m w e r e in effect a parallel genre to the reason-of-state literature, and flourished at m u c h the same time, c.1580—c.1680. It does not l o o k like coincidence that the author o f the first political c o m m e n t a r y o n Tacitus (published in 1581), C a r l o Pasquale (or Paschalius), w a s , like the author o f the first treatise o n reason o f state, B o t e r o , a P i e d m o n t e s e ( M o m i g l i a n o 1977). Indeed, the t w o m e n almost certainly m e t in 1585, in France. It w a s doubtless at the court o f France, as w e l l as R o m e and T u r i n , that B o t e r o heard reason o f state discussed, and Tacitus quoted, and in his o w n b o o k he refers to Tacitus n o less than f o r t y - f o u r times. A n i m p o r t a n t contribution to the rise o f T a c i t i s m w a s m a d e b y one o f the greatest classical scholars o f the later sixteenth century, the F l e m i n g Justus Lipsius. T h e dedication o f his 1574 edition o f Tacitus to the e m p e r o r M a x i m i l i a n II pointed out the political parallels b e t w e e n ' o u r times' and those o f the R o m a n historian, a point w h i c h Lipsius amplified in later editions. In his Politicorum libri sex (1589), 'this learned and laborious tissue' as M o n t a i g n e called it, not so m u c h a treatise as an a n t h o l o g y o f quotations f r o m classical writers, selected to c o n v e y a message, Lipsius g a v e Tacitus pride o f place, w i t h 547 citations ( C i c e r o , the runner-up, received o n l y 227). T h i s b o o k w e n t t h r o u g h fifteen editions in the n e x t decade, and b y 1604 it had been translated into seven m o d e r n languages (Oestreich 1982, P-57). A l t h o u g h he did not use the phrase ratio status, preferring to discuss different kinds o f prudentia (a term w h i c h Lipsius helped to popularise in this context), the Six Books of Politics m a d e b o t h an i m p o r t a n t and an early contribution to the reason-of-state genre, a contribution w h i c h w a s virtually i g n o r e d b y M e i n e c k e . Lipsius' fourth b o o k in particular is concerned w i t h this topic, discussing as it does w h a t maintains a k i n g d o m and w h a t o v e r t h r o w s one, and distinguishing various kinds o f dissimu lation or deceit, 'small', ' m e d i u m ' , and 'large' — a d v o c a t i n g the first, tolerating the second, and c o n d e m n i n g o n l y the third. T h i s b o o k demonstrates — i f demonstration be needed — the link b e t w e e n the rise o f the idea o f reason o f state and the r e v i v a l o f Tacitus. So do the Discorsi sopra Cornelio Tácito (1594), b y A m m i r a t o , w h o s e 485 Cambridge Histories Online © Cambridge University Press, 2008

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definition o f reason o f state has been discussed already. A m m i r a t o ' s success in the b o o k s h o p s w a s considerably m o r e m o d e s t than that o f Lipsius, but all the same his b o o k w a s translated into Latin and French and had g o n e t h r o u g h at least eight editions b y 1 6 1 9 . T h r e e years after A m m i r a t o c a m e another i m p o r t a n t c o m m e n t a r y , the Discorsi sopra i primi cinque libri di Cornelio Tacito (1597), b y Filippo C a v r i a n a . C a v r i a n a is one o f the authors w h o s e w o r k suggests that m o d e r n historians should n o t be t o o quick to dismiss the idea o f the b o d y politic as m e r e m e t a p h o r . A physician b y profession, C a v r i a n a had a particular admiration for t w o ancient writers, Tacitus and Hippocrates, and he considered that they had m u c h in c o m m o n . L i k e s o m e writers already quoted, he believed that 'illnesses affect states as they d o h u m a n bodies, b u t they can be cured b y wise statesmen in the same w a y that skilled physicians cure b o d i l y ills' ( C a v r i a n a !597> P- ) - A s Hippocrates taught m e d i c i n e b y means o f aphorisms, so C a v r i a n a taught politics, or rather, a l l o w e d Tacitus to d o the teaching, b y extracting aphorisms f r o m his narrative, a m p l i f y i n g t h e m , and elucidating t h e m . T h e parallel w i t h Hippocrates w a s to b e c o m e a standard one. I 2

B y the b e g i n n i n g o f the seventeenth century, the trickle o f c o m m e n taries o n Tacitus w a s b e c o m i n g a flood. T o discuss individual c o m m e n tators one b y one is impossible, because they are so n u m e r o u s , but it is also unnecessary, because they repeat one another. A s in the case o f the abundant literature o n reason o f state, the m o s t useful p r o c e d u r e w o u l d seem to be to summarise the typical contents o f a contribution to the genre. T h e c o m m e n t a t o r s read Tacitus w i t h their eyes f i r m l y fixed o n political techniques (not to say tricks), techniques w h i c h they generally studied f r o m the prince's point o f v i e w , sometimes f r o m that o f the courtier. A s M i l t o n once c o m p l a i n e d , they 'cut Tacitus into slivers and steaks', taking his m a x i m s out o f c o n t e x t and a d d i n g to their store o f predigested political prudence b y turning specific cases into generalisations in a manner w h i c h m o d e r n readers w i l l find h i g h l y implausible (it w o u l d be g o o d to k n o w w h e t h e r m a n y contemporaries w o u l d h a v e agreed w i t h t h e m or not). T h e preface (signed ' A . B . ' ) to an English translation o f T a c i t u s ' Histories published in 1640 w a s m a k i n g typical points m o r e concisely than usual w h e n it told the reader that 'In G a l b a t h o u mayest learne, that a g o o d prince g o v e r n e d b y evill ministers is as dangerous as i f he w e r e evill himselfe . . . B y Vitellius, that he that hath n o vertue can n e v e r be h a p p y . . . B y Vespasian, that in civil tumults an advised patience, and o p p o r t u n i t y w e l l taken are the o n l y w e a p o n s o f a d v a n t a g e . ' T h e c o m m e n t a t o r s tended to concentrate o n B o o k s 1—6 o f T a c i t u s ' 486

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Tacitism, scepticism, and reason of state Annals, in w h i c h the e m p e r o r T i b e r i u s is the protagonist. In the i n d e x to A m m i r a t o ' s Discorsi, for e x a m p l e , references to Tiberius take up a w h o l e c o l u m n ; in C a v r i a n a ' s Discorsi, three c o l u m n s ; and in Pasquale's Observa tions, five c o l u m n s ; w h i l e s o m e m o n o g r a p h s w e r e exclusively d e v o t e d to the e m p e r o r ' s doings. O n e w r i t e r c o m p a r e d these b o o k s to X e n o p h o n ' s Education of Cyrus as a representation o f the idea o f a perfect prince. T h e e x a m p l e o f T i b e r i u s is cited again and again in discussions o f the art o f political dissimulation; or o f the need, o n occasion, for rulers to h a v e subjects e x e c u t e d w i t h o u t trial; or o f the value o f listening in silence to the advice o f subordinates. A b r i e f phrase w i l l often stimulate pages o f c o m m e n t . F o u r w o r d s o f Tacitus, Tiberium Neronem maturum annis ('Tiberius w a s m a t u r e in years'), w a s e n o u g h to launch C a v r i a n a into a discussion o f the dangers o f r o y a l minorities. T h e parallels b e t w e e n the R o m e o f Tiberius and the courts o f early m o d e r n E u r o p e w e r e constantly m a d e explicit, w h e t h e r the c o m m e n t a t o r s believed that h u m a n nature n e v e r changes, or, w i t h Lipsius and M o n taigne, that Tacitus w a s o f particular relevance to their o w n troubled times. ' Y o u w o u l d often think it is us w h o m he is describing and criticising' (yous diriez souvent qu'il nous peint et qu'il nous pinse) ( M o n t a i g n e 1580—8, B o o k 3, ch. 8). W h e n they read Tacitus o n Tiberius, s o m e contemporaries c o u l d n o t help t h i n k i n g o f rulers o f the last century or so. T h e cold, cruel, c u n n i n g e m p e r o r so skilled in the art o f dissimulation reminded s o m e readers o f L o u i s X I o f France, w h o w a s frequently q u o t e d as saying that ' w h o can't feign, can't r e i g n ' (qui nescit dissimulare, nescit regnare). For other readers the true parallel w a s still closer to hand. T i b e r i u s r e m i n d e d Lipsius — at least in his Protestant days — o f the d u k e o f A l b a , and other c o m m e n t a t o r s t h o u g h t o f A l b a ' s master, Philip o f Spain. In the early seventeenth century, R i c h e l i e u w a s a parallel w h i c h sprang easily to the minds o f b o t h supporters and o p p o n e n t s o f the cardinal. A g a i n , w h e n they considered the career o f Sejanus, the c o m m a n d e r o f the g u a r d w h o b e c a m e the favourite o f Tiberius - 'a blend o f arrogance and servility', as Tacitus described h i m , w h o 'concealed behind a carefully m o d e s t exterior an u n b o u n d e d lust for p o w e r ' — s o m e early m o d e r n readers c o u l d n o t help t h i n k i n g o f the favourites o f their o w n day. S o m e identified Sejanus w i t h the earl o f Essex, others w i t h the d u k e o f B u c k i n g h a m . It w a s to d r a w a parallel w i t h B u c k i n g h a m , then at the h e i g h t o f his p o w e r , that Sir J o h n Eliot q u o t e d Tacitus on Sejanus - in the Latin — in a speech in the H o u s e o f C o m m o n s in 1626. Charles I's reaction w a s that 'he must intend m e for T i b e r i u s ' , and Eliot w a s sent to the T o w e r . 487

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It w a s this sense o f the political relevance o f Tacitus to an age o f p o w e r f u l favourites, absolute monarchs and civil wars w h i c h accounts for the g r o w i n g interest in his w r i t i n g s in the late sixteenth and early seventeenth centuries. T h e statistics o f editions, translations, and c o m m e n t a r i e s p r o v i d e a mere outline o f his influence. For the colouring w e have to turn elsewhere, to the arts, and especially to the drama. Tacitean plays w e r e n o m o r e purely aesthetic than c o m m e n t a r i e s o n the Annals w e r e purely antiquarian. B o t h genres carried political messages and w e r e expressions o f political t h o u g h t . T h e appeal o f Tacitus to seventeenth-century p l a y w r i g h t s w a s all the greater because subjects f r o m ancient history w e r e considered m o r e dignified than m o d e r n ones. T h e y also had a better chance o f g e t t i n g past the censors, w h i l e audiences c o u l d be relied o n to d r a w political parallels w i t h their o w n time; indeed, they w o u l d d o this w h e t h e r the dramatist liked it or not. A l t h o u g h C o r n e i l l e w r o t e a fine play about Otho (1664), and his seizure o f p o w e r f r o m his w e a k predecessor Galba, Tacitean dramas cluster around the figures o f t w o emperors, T i b e r i u s and N e r o . T h e first g r o u p includes B e n Jonson's Sejanus (1603), and C y r a n o de B e r g e r a c ' s Mort d'Agrippine (1653), w h i c h deals w i t h the unsuccessful attempt at r e v e n g e b y the w i d o w o f G e r m a n i c u s , the a d o p t i v e son o f Tiberius w h o had been poisoned at his orders. T h e second g r o u p includes t w o plays about another A g r i p p i n a , N e r o ' s m o t h e r (his rival for p o w e r and ultimately his v i c t i m ) . O n e w a s written b y the English poet T o m M a y (1628), the other b y the G e r m a n dramatist D a n i e l C a s p e r v o n Lohenstein (1665). T h e s e plays and others in the genre are Tacitean not o n l y in the sense o f taking their plots f r o m Tacitus ( w h o s e Annals sometimes seem closer to m e l o d r a m a than to n o r m a l history), but also in that o f d r a w i n g o n his m a x i m s in a m a n n e r not far r e m o v e d f r o m that o f the political c o m m e n t a t o r s . B o t h Jonson and Lohenstein a c k n o w l e d g e d their debts in their notes, Lohenstein citing Tacitus m o r e than 200 times altogether, w h i l e Jonson referred to h i m 59 times in the notes to the first act o f Sejanus. It is scarcely an e x a g g e r a t i o n to claim that the true subject o f these plays is reason o f state, a phrase w h i c h Jonson w a s one o f the first E n g l i s h m e n to use and one w h i c h makes its appearance in T o m M a y (line 489), C y r a n o de B e r g e r a c (act 1, scene 5), and Pierre C o r n e i l l e (act 1, scene 1). T h e plays also refer again and again to dissimulation, flattery, ' p o l i c y ' , t y r a n n y , 'absolute' p o w e r , and 'the times necessity'. N o w o n d e r that Louis X I V ' s minister L o u v o i s is said to h a v e r e m a r k e d that to j u d g e C o r n e i l l e ' s Otho, 'it w o u l d h a v e been necessary to fill the pit w i t h ministers o f state'. 488

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Tacitism, scepticism, and reason of state Tacitus also p r o v i d e d subjects for operas, f r o m Monteverdi's Uincoronazione di Poppaea (1643) to Handel's Agrippina (1709); and for such paintings as Poussin's Death of Germanicus and R e m b r a n d t ' s Conspiracy of Civilis. M o n t e v e r d i and his librettist m a y not h a v e w i s h e d to c o n v e y any message other than ' L o v e conquers all', but the R e m b r a n d t , at least, has a clear political significance. Painted for the T o w n Hall o f A m s t e r d a m at the time w h e n the success o f the D u t c h R e v o l t against Spain w a s at last a matter for public celebration, in 1648, R e m b r a n d t ' s w o r k s h o w e d the Batavians, the ancestors o f the D u t c h , in the process o f organising an insurrection against R o m a n d o m i n a t i o n . Tacitus w a s clearly fashionable in the seventeenth century — w h i c h is not to say that the appeal o f his w o r k w a s mere fashion, w i t h o u t g o o d reasons behind it. H o w e v e r , he did not appeal to e v e r y o n e . Indeed, there w a s s o m e t h i n g like an anti-Tacitist m o v e m e n t in this period, a l t h o u g h it w a s rather small in scale. F r o m B o t e r o o n w a r d s , there w a s a t e n d e n c y to associate Tacitus w i t h M a c h i a v e l l i and to c o n d e m n t h e m b o t h as i m m o r a l . M o r e precisely, B o t e r o ' s association w a s b e t w e e n M a c h i a v e l l i and Tiberius: 'I w a s a m a z e d that so i m p i o u s an author and so w i c k e d a tyrant should be held in such esteem that they are t h o u g h t to p r o v i d e ideal examples o f the m e t h o d s b y w h i c h states should be g o v e r n e d ' ( B o t e r o 1589, dedication). A g a i n , in the Satyre Menippee, the French w a r s o f religion w e r e b l a m e d on the cult o f Tacitus. In the early seventeenth century, the rival statesmen R i c h e l i e u and O l i v a r e s w e r e b o t h suspected o f an admiration for Tacitus w h i c h w a s supposed to h a v e e n c o u r a g e d t h e m in harsh measures. Treatises w e r e w r i t t e n against Tacitus, or m o r e e x a c t l y against the uncritical acceptance o f Tacitus. T h e r e w e r e demands that he be 'scoured' or 'sieved', the g o o d advice separated f r o m the evil like w h e a t f r o m chaff. In his Tacito abburattato ( Tacitus Sieved) (1643), the Genoese patrician A n t o n G i u l i o B r i g n o l e Sale concentrated on the danger o f taking m a x i m s o u t o f c o n t e x t and using t h e m to analyse situations to w h i c h they did not apply, w h i l e a host o f objections to Tacitus w e r e marshalled b y another Genoese, RafTaelle dalla T o r r e , in his Astrolabio di stato or 'political astrolabe' o f 1647. O n e o f the most v i g o r o u s criticisms, a w o r k called ' T h e S k o w r e r s ' ( w h i c h unfortunately remains b o t h a n o n y m o u s and unpublished), is the w o r k o f a British w r i t e r . T h e author complains that the w r i t i n g s o f Tacitus are taken 2

2. ' A v e r r u n c i or T h e Skowrers: Ponderous and N e w Considerations upon the first six b o o k s o f the Annals o f C . Tacitus'. M S in the D u r a z z o Giustinian library, G e n o a , uncatalogued w h e n I saw it in 1982.

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as 'canonical scripture' b y s o m e people, 'speciallie a m o n g popular or democratical statesmen' (p. 87). His o w n aim is, o n the contrary, to destroy their authority or, as he puts it, to ' a p o c r y p h a t e ' t h e m . Tacitus, he declares, is 'a most slipperie and perilous' writer. ' T h e indiscreet or u n w a r i e reading the description o f T i b e r i u s . . . w h e r e the reader is subject to a k i n g . . . w i l l train up and teach such a person to prie into, e x a m i n , j u d g e and forejudge the deeds and w o r d s o f his sovereign to the w o r s e , not onlie his deeds and w o r d s but also his gestures l o o k s and postures' (p. 7 1 ) . Falling into the trap h i m s e l f a f e w pages later, he describes the reign o f the late Q u e e n Elizabeth as 'a true copie o f the times o f T i b e r i u s ' (p. 76). T h e m o r a l is that there is n o point in prohibiting M a c h i a v e l l i as l o n g as Tacitus is permitted to circulate freely. A similar a m b i v a l e n c e runs t h r o u g h w h a t is surely the most brilliant o f the m a n y political c o m m e n t a r i e s written o n Tacitus, the Osservationi or Observations o f T r a i a n o B o c c a l i n i , first published in 1678 but w r i t t e n around the year 1600. T h e author spent m u c h o f his life as a j u d g e in a R o m a n tribunal and as an administrator in the Papal States. H o w e v e r , his sympathies, in the political and i d e o l o g i c a l conflicts o f the early seven teenth century, w e r e not w i t h R o m e but w i t h the republic o f V e n i c e , 'the h o n o u r and the strength o f Italy', a 'miraculous c i t y ' w h i c h has 'the divine benefit o f liberty' and a m o d e l g o v e r n m e n t , including, so he claimed, an aristocracy uncorrupted b y l u x u r y . B o c c a l i n i disliked monarchies in general and hated Spain in particular as a cruel and despotic r e g i m e w h i c h r e m i n d e d h i m o f R o m e under Tiberius. G i v i n g a typically ironic twist to the c o m m o n c o m p a r i s o n o f princes to physicians, he described Philip II as dealing w i t h the revolt o f the Netherlands b y sending 'the medicine o f the D u k e o f A l b a ' (1678, p. 221). Bitter medicine indeed. B o c c a l i n i had m u c h in c o m m o n w i t h Tacitus, but he could not a p p r o v e o f a writer w h o s e w o r k s taught tyrants h o w to h o l d o n to p o w e r . O t h e r s m i g h t praise Tacitus for p r o d u c i n g a manual o f statecraft like the Cyropaedia o f X e n o p h o n ; B o c c a l i n i called it an antimanual, a cruel ' T i b e r i p a e d i a ' . Y e t he c o u l d not but admire the skill w i t h w h i c h Tacitus penetrated the secret designs o f princes, pulling a w a y the ' c l o a k ' or ' m a s k ' o f idealism to reveal the w o r k i n g s o f naked 'interest' underneath. In his Ragguagli da Parnasso (News from Parnassus, a topical satire o f w h i c h the m o r e innocuous parts w e r e published in his lifetime), B o c c a l i n i described Tacitus as g e t t i n g into trouble for i n v e n t i n g a n e w k i n d o f spectacles, w h i c h w o u l d enable ordinary people to see princes' most secret thoughts ( B o o k 2, ch. 7 1 ) . 490

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T h e preceding t w o sections h a v e d r a w n attention to a g r o u p o f m e n w h o c o u l d neither accept reason o f state n o r d o w i t h o u t it. T h e y hated the cruelty and deceit o f politics, but they w i s h e d to be free f r o m political illusions. For s o m e o f these m e n , the most attractive political ideal w a s that o f the ancient Stoics. U n l i k e Plato and Aristotle, the Stoics formulated their political theories after the decline o f the city-state. S o m e o f t h e m b e l i e v e d in republican liberty, like C a t o o f U t i c a , w h o killed h i m s e l f w h e n he saw that the R o m a n republic w a s d o o m e d . O t h e r s w e r e prepared to a c c o m m o d a t e themselves to m o n a r c h y , like Seneca, w h o b e c a m e an adviser to his former pupil the e m p e r o r N e r o . T h e Stoics had a g o o d deal to say about liberty, but the f r e e d o m o n w h i c h they placed m o s t emphasis w a s an interior f r e e d o m , defended in the last resort b y suicide. It w a s based o n a selfdiscipline the purpose o f w h i c h w a s to achieve a serenity or 'constancy', i m p e r v i o u s to the slings and a r r o w s o f outrageous fortune. T h e favourite Stoic images o f the w i s e m a n w e r e those o f an oak tree standing firm against the buffeting o f the w i n d s , and o f a r o c k resisting the w a v e s . S u c h a political p h i l o s o p h y w a s o b v i o u s l y appropriate to w h a t Seneca once called a ' s t o r m y age o f the state', and this was precisely the appeal o f Stoicism in the sixteenth and seventeenth centuries. It w a s n o t so m u c h a political t h e o r y in the strict sense o f the term as an attitude or set o f attitudes. T h e values o f Stoic republicanism appealed to s o m e , i n c l u d i n g the banker Filippo Strozzi, w h o killed himself in 1538, in imitation o f C a t o , o n the failure o f his attempt to restore Florentine liberty, and the author o f the Vindiciae contra tyrannos, w h o used the n a m e o f C a t o ' s n e p h e w — and Caesar's assassin — M a r c u s Junius B r u t u s . T h e r e w a s also the Discours de la servitude volontaire (written about 1550, and published p o s t h u m o u s l y in 1576), b y the French magistrate, M o n t a i g n e ' s friend Etienne de La B o e t i e . La B o e t i e praised C a t o and c o n d e m n e d t y r a n n y , w h i c h he stripped bare in the m a n n e r o f the Stoic e m p e r o r M a r c u s A u r e l i u s . M a r c u s A u r e l i u s had r e c o m m e n d e d , in g o o d Senecan fashion, that ' W h e r e there are things w h i c h appear m o s t w o r t h y o f o u r approbation, w e o u g h t to lay t h e m bare and l o o k at their worthlessness and strip t h e m o f all the w o r d s w i t h w h i c h they are exalted. For o u t w a r d s h o w is a w o n d e r f u l perverter o f the reason' (Meditations, 6.13). La B o e t i e f o l l o w e d this m e t h o d (not far r e m o v e d f r o m the V-Effekt or deliberate alienation r e c o m m e n d e d b y B e r t o l t B r e c h t ) , but w i t h m o r e radical intentions than the e m p e r o r ' s . H e pointed out that the 491

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festivals, rituals, plays, and medals o f ancient and m o d e r n m o n a r c h s w e r e so m a n y drogueries, ' d r u g s ' , in other w o r d s , the o p i u m o f the people, intended to tranquillise t h e m , to m a k e t h e m submissive. T h e n e w Stoics o f the sixteenth and seventeenth centuries w e r e not necessarily republicans. Far f r o m it. O n e o f the m o s t famous o f t h e m in his o w n day w a s the Spaniard A n t o n i o de G u e v a r a , Charles V ' s court preacher and the author o f an i m a g i n a t i v e b i o g r a p h y o f M a r c u s A u r e l i u s , the Libro aureo (1528), w h i c h held h i m u p to Charles as a m o d e l . T h e m o s t influential version o f political Stocism, h o w e v e r , w a s the resigned m o n a r c h i s m o f Lipsius. His d i a l o g u e On Constancy (1584), set in a garden at L i e g e , a ' w h o l s o m e w i t h d r a w i n g place f r o m the cares and troubles o f the w o r l d ' , w a s often reprinted and translated and did m u c h to m a k e Stoic attitudes fashionable. On Constancy w a s w r i t t e n for private citizens, w h i l e Lipsius' e v e n b e t t e r - k n o w n Politicorum libri sex w a s supposedly w r i t t e n for the ruler. It d r e w h e a v i l y o n Seneca as w e l l (as w e h a v e seen already) as o n Tacitus, w h o s e m o r a l and political v i e w s seem in any case to h a v e been fairly c o m p a t i b l e w i t h those o f the Stoics. Lipsius w a s also concerned to fit his political p h i l o s o p h y into a Christian f r a m e w o r k . His task w a s n o t t o o difficult, a l t h o u g h Stoicism had originated in p a g a n times. Stoic constancy had m u c h in c o m m o n w i t h the Christian virtue o f patience and in any case, as Lipsius w a s careful to point out, the Stoic p h i l o s o p h y had appealed to s o m e o f the fathers o f the church. T h e r e w a s e v e n a sense in w h i c h Stoicism w a s in h a r m o n y w i t h reason o f state. L i k e yin and yang, the t w o doctrines w e r e c o m p l e m e n t a r y opposites, reason o f state teaching the activities suitable for a ruler, Stoicism the passivity or resignation suitable for his subjects, w h o w e r e r e c o m m e n d e d to exercise absolute p o w e r o v e r their passions rather than resist the absolute p o w e r o f the m o n a r c h . Since the ' s t o r m y age o f the state' to w h i c h Seneca referred had c o m e r o u n d again, and E u r o p e w a s racked b y the ' E i g h t y Y e a r s W a r ' (1568—1648), it is n o w o n d e r that the Stoic v i e w s reformulated b y Lipsius o n the basis o f his experience o f civil w a r in the Netherlands should h a v e attracted widespread interest and gained considerable acceptance. It has e v e n been suggested, b y the late G e r h a r d Oestreich, that Lipsius and Stoicism b o t h p l a y e d an i m p o r t a n t part in the military reforms o f the period, and m o r e especially the creation, b y M a u r i c e prince o f O r a n g e and other rulers, o f a standing a r m y as part o f the apparatus o f the early m o d e r n state. 'Lipsius . . . sets up the R o m a n Stoic ethic as the m o r a l i t y and i d e o l o g y o f the n e w a r m y ' (Oestreich 1982, p. 50). A stress o n military 492

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Tacitism, scepticism, and reason of state discipline can indeed be f o u n d in b o t h the w r i t i n g s o f Lipsius and the reorganised armies o f the seventeenth century. H o w e v e r , it should be pointed out that the discipline w i t h w h i c h the ancient Stoic philosophers w e r e concerned w a s self-discipline, the self-control o f heroic individuals, v e r y different f r o m the n e w military discipline w h i c h w a s n o t v o l u n t a r y but i m p o s e d , and o n masses not individuals. If the military reformers did indeed derive their ideals f r o m p h i l o s o p h y , as w e l l as f r o m practical needs (or f r o m the e x a m p l e o f the R o m a n a r m y , f r o m w h i c h Seneca had derived his m e t a p h o r o f discipline), then their transformation o f that p h i l o s o p h y w a s a p r o f o u n d one. W h a t e v e r its relevance to the so-called 'military r e v o l u t i o n ' , there can be little d o u b t o f the success o f the n e o - S t o i c m o v e m e n t or o f the political i m p o r t a n c e o f the literature it engendered. T o w a r d s the end o f the civil w a r s in France, the magistrate G u i l l a u m e D u V a i r transposed Lipsius into French terms in his d i a l o g u e De la Constance (1594). E v e n the garden is there; a Parisian one this time, in w h i c h the dialogue's protagonists discuss the ruin o f the state and reach the resigned conclusion that ' T h e afflictions that are b o r n e constantly . . . lift us up to h e a v e n ' ( D u V a i r 1622, p. 1 1 1 ) . L i b r a r y inventories reveal the interest taken in Lipsius b y C a r d i n a l R i c h e l i e u and other French intellectuals o f the early seventeenth century. In Spain, t o o , Lipsius and Stoicism w e r e taken seriously. R i c h e l i e u ' s great adversary the c o u n t - d u k e o f O l i v a r e s o w n e d the w o r k s o f Lipsius and the w r i t e r Q u e v e d o presented O l i v a r e s as a Stoic hero, as R i c h e l i e u w a s b y Jean de Silhon. In E n g l a n d , Stoic values w e r e expressed in Sir Philip S i d n e y ' s Arcadia (1590), in w h i c h P a m e l a is p o r t r a y e d as constant in adversity 'like a r o c k amidst the sea, beaten b o t h w i t h the w i n d s and w i t h the w a v e s , y e t itself i m m o v a b l e ' . Lipsius and D u V a i r w e r e translated, and in 1629 R i c h a r d James sent Sir J o h n Eliot a c o p y o f Lipsius' On Constancy to console h i m d u r i n g his i m p r i s o n m e n t in the T o w e r o f L o n d o n . For dramatic presentations o f Stoic values — and their relevance to politics — w e m a y o f course turn to the stage. G e o r g e B u c h a n a n ' s Baptistes (written c. 1540) presents St J o h n the Baptist as a Stoic hero constant in his resistance to t y r a n n y (a passive resistance, as r e c o m m e n d e d b y C a l v i n ) . T h e R o m a n plays o f R o b e r t G a m i e r , w r i t t e n d u r i n g the French civil w a r s o f the 1560s and 1570s, celebrated similar values, and so did those o f C o r n e i l l e , w r i t t e n shortly before the r e n e w a l o f civil w a r in the 1640s. T h e ' T a c i t e a n ' drama discussed a b o v e m i g h t equally w e l l h a v e been called 'Senecan', partly because Seneca h i m s e l f w r o t e tragedies o n w h i c h m a n y early m o d e r n plays w e r e m o d e l l e d , and partly because he m a d e frequent 493

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appearances o n the seventeenth-century stage, for e x a m p l e , in M o n t e v e r d i ' s Poppaea (1643), Lohenstein's Epicharis (1665), and R a c i n e ' s Britannicus (1669), not to m e n t i o n the Death of Seneca (1645) b y Tristan L'Hermite. O n e o f the b e s t - k n o w n adherents o f the n e o - S t o i c m o v e m e n t has not yet been discussed: M i c h e l de M o n t a i g n e . A great friend o f La B o e t i e , w h o s e constancy in d y i n g he recorded, M o n t a i g n e d r e w h e a v i l y o n Seneca in his early essays, as he w a s the first to admit. L i k e La B o e t i e , he i m a g i n e d the p o w e r f u l stripped o f the accessories w h i c h m a d e t h e m respected. ' T h e E m p e r o r , w h o s e p o m p dazzles y o u in public . . . l o o k at h i m behind the curtain and y o u see n o t h i n g but an ordinary m a n ' (1580—8, B o o k 1, ch. 42). H o w e v e r , M o n t a i g n e did n o t use this i m a g e as an a r g u m e n t against m o n a r c h y . His position w a s one o f scepticism. O n the beams o f his study w e r e painted the sentences ' A l l that is certain is that n o t h i n g is certain', and 'I suspend j u d g e m e n t . ' It m a y seem o d d to attribute a political t h e o r y — or indeed any k i n d o f t h e o r y — to sceptics, but their suspension o f j u d g e m e n t w a s not w i t h o u t political consequences. E v e n the decision to be apolitical is in a sense a political decision; and in any case the sceptics (ancient and early m o d e r n ) w e r e not apolitical. T h e y w e r e not apathetic in this sense, despite the ideal o f apatheia ('constancy'), w h i c h they shared w i t h the Stoics. T h e i r point w a s essentially w h a t w e w o u l d call a 'relativist' one: that political arrangements, like other customs, v a r y f r o m place to place and f r o m time to time, and that there is n o reason to argue that one such arrangement is in itself better than another. W h e r e the Stoics b e l i e v e d in natural l a w , Carneades, the leader o f the academic sceptics, a r g u e d that w h a t w a s l a w w a s not natural and that w h a t w a s natural w a s n o t l a w . T h e w i s e m a n , a c c o r d i n g to the sceptics, w i l l live his life in c o n f o r m i t y w i t h the customs o f his c o u n t r y , a l t h o u g h he w i l l not accept the arguments put f o r w a r d for the superiority o f those customs. T h i s w a s the attitude o f M o n t a i g n e . His belief w a s that disputes about the best f o r m o f g o v e r n m e n t (disputes w h i c h w e r e c o m m o n in his day) w e r e o f n o practical value. T h e y w e r e (as w e m i g h t say) p u r e l y Utopian or indeed ' a c a d e m i c ' . H e t o o k pleasure in p o i n t i n g o u t that p e o p l e b r o u g h t u p to s e l f - g o v e r n m e n t regard monarchies as unnatural, w h i l e those w h o are a c c u s t o m e d to m o n a r c h y d o e x a c t l y the reverse. H e defended the political system under w h i c h he lived, the French m o n a r c h y , for p u r e l y p r a g m a t i c reasons. 'In public affairs', he w r o t e w i t h brutal candour, 'there is n o course so bad, p r o v i d e d that it is stable and traditional, that is n o t better than c h a n g e and alteration' (1580—8, B o o k 2, ch. 1 7 ) . T h e price o f political r e v o l u t i o n 494 Cambridge Histories Online © Cambridge University Press, 2008

Tacitism, scepticism, and reason of state (mutation d'estat) w a s , he t h o u g h t , a l w a y s t o o h i g h . O n the other hand, he had n o t h i n g but c o n t e m p t for traditional m o d e s o f justifying particular regimes. ' T h e l a w s are maintained in credit', he w r o t e , 'not because they are just b u t because they are laws. T h a t is the mystical foundation o f their authority; they h a v e n o other' (1580—8, B o o k 3, ch. 13). A remarkable (not to say shocking) statement to m a k e in the sixteenth century, and one not unlike the n o t o r i o u s definition o f l a w as 'the c o m m a n d o f the s o v e r e i g n ' put f o r w a r d s o m e sixty years later b y T h o m a s H o b b e s . B o t h m e n w e r e , o f course, w r i t i n g after years o f civil w a r , to w h i c h any kind o f stability w a s c o m i n g to seem preferable. T h e i r reaction w a s n o t so different f r o m that o f Stoics such as Lipsius and D u V a i r w h o expressed their desire for a quiet life in a m o r e heroic l a n g u a g e , a l t h o u g h for his part M o n t a i g n e c a m e to regard the Stoic ideal o f constancy as unnatural or e v e n i n h u m a n . Still closer to M o n t a i g n e w a s the p r a g m a t i c attitude expressed b y the engineer S i m o n Stevin: ' E v e r y o n e must a l w a y s consider as his rightful authority those w h o at the present are actually g o v e r n i n g the place w h e r e he chooses his d w e l l i n g , w i t h o u t c o n c e r n i n g h i m s e l f a b o u t the question o f w h e t h e r they or their p r e d e cessors h a v e reached their position j u s t l y or unjustly' (On Civil Life (1590), ch. 2: S t e v i n 1 6 1 1 ) . T h e main difference w a s that Stevin w a s a N e t h e r lander, w r i t i n g in a m o r e m o b i l e and decentralised society than France. In the C i v i l W a r in the Netherlands, it w a s not unrealistic to suggest to those w h o disliked a particular urban r e g i m e that they should simply g o elsewhere. A n o t h e r political thinker w h o w a s close to M o n t a i g n e w a s his acquaintance Pierre C h a r r o n , w h o s e treatise De la Sagesse (1601), includes a discussion o f prudence (prud'hommie). W h e t h e r or n o t he w a s a true sceptic in the strict e p i s t e m o l o g i c a l sense, C h a r r o n was impressed b y 'the diversitie and strangenes' o f alien customs, f r o m suttee to male prostitution. His political reflections, like M o n t a i g n e ' s , w e r e inspired b y his experience o f the French religious wars, as his chapters o n treason, faction, sedition, and p o p u l a r r e v o l t (let alone civil w a r ) m a k e o b v i o u s e n o u g h . C h a r r o n d r e w M o n t a i g n e ' s conclusion that ' L a w e s and customs are maintained in credit, n o t because they are just and g o o d , but because they are lawes and customes'; that all alteration 'is v e r y dangerous, and yeeldeth alwaies m o r e evill than g o o d ' ; and that the best thing for e v e r y o n e is to f o l l o w 'the lawes and customes w h i c h he fmdeth established in the countrie w h e r e he is' ( B o o k 2, ch. 8). H e has n o time for Utopias, and dismisses the political ideas o f Plato and T h o m a s M o r e as m e r e 'painting in the air' ( B o o k 3, ch. 5 1 ) . Passages such as these m a k e it easy to see w h y C h a r r o n has often been 495 Cambridge Histories Online © Cambridge University Press, 2008

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regarded as a m e r e plagiary o f M o n t a i g n e . H o w e v e r , there is m o r e to his treatise. A l t h o u g h he criticises the life o f retirement as a f o r m o f c o w a r d i c e , C h a r r o n has considerable s y m p a t h y for Stoic values, praises constancy and tranquillity o f m i n d , quotes Seneca again and again, and a c k n o w l e d g e s a considerable debt to Lipsius, n o t a b l y in his discussion o f the various types o f prudence. C h a r r o n m i g h t also be described as a Tacitist; at any rate he laces his r e c o m m e n d a t i o n s w i t h frequent quotations f r o m Tacitus, and holds a similar v i e w o f the contrast b e t w e e n appearance and reality in politics. ' T h a t w h i c h is d o n e in p u b l i k e is but a fable, a fiction, the truth is secret and in privat' ( B o o k i , ch. 53). C h a r r o n also deserves to be regarded as a writer on reason o f state, a l t h o u g h he does not use the phrase. H e w a s v e r y m u c h concerned w i t h the etat (still a n e w concept in France), and especially w i t h its conservation. H e w a s prepared to advise the prince ' a m o n g foxes to counterfet the f o x e ' , and to save the c o m m o n w e a l t h ' b y the self-same meanes that others w o u l d u n d e r m i n e and o v e r t h r o w it', means w h i c h include not o n l y dissimulation but also the e x e c u t i o n w i t h o u t trial o f dangerous individuals ( B o o k 3, ch. 4). H e w a s e v e n prepared to cite M a c h i a v e l l i w i t h o u t the usual w o r d s o f c o n d e m n a t i o n . In short, C h a r r o n ' s De la Sagesse b r o u g h t w i t h i n the covers o f one treatise all the political attitudes discussed in this chapter. His eclecticism seems to h a v e had considerable appeal; at all events, his b o o k w a s reprinted, translated, and generally taken m o r e seriously in the seventeenth century than the essays o f M o n t a i g n e . C a r d i n a l R i c h e l i e u , for e x a m p l e , o w n e d his b o o k s and w a s accused b y O l i v a r e s o f w i s h i n g to introduce C h a r r o n ' s irreligious ' w i s d o m ' into France. A n o t h e r o f C h a r r o n ' s admirers w a s R i c h e l i e u ' s librarian Gabriel N a u d e . N a u d e ' s o w n treatise, Considerations politiques sur les coups d'etat (1639), is written in a tone o f sceptical (or Stoic) detachment, r e c o m m e n d s ministers to k e e p c a l m , and d r a w s o n Seneca, Lipsius, and M o n t a i g n e as w e l l as C h a r r o n . H o w e v e r , N a u d e w a s also w e l l a w a r e o f Tacitus and M a c h i a v e l l i , and his b o o k is essentially concerned w i t h reason o f state; indeed, it is the most trenchant o f the m a n y contributions to the genre. H e takes up the t e r m ' c o u p ' (colpo), w h i c h had been used in a casual w a y in the earlier Italian literature, and makes o f it a technical t e r m to describe b o l d actions in extraordinary circumstances, w h e r e the ordinary rules or m a x i m s d o not apply. Henri Ill's assassination o f Henri due de Guise, for e x a m p l e , is treated as a violent r e m e d y for the sickness o f the state ('kill or cure'), and so is the Massacre o f St B a r t h o l o m e w ' s D a y , o f w h i c h N a u d e remarks c o o l l y that it w a s ' v e r y just', but c o u l d be criticised for h a v i n g been m e r e l y 496

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Tacitism, scepticism, and reason of state ' d o n e b y halves' ( 1 7 1 1 , p. 1 0 1 ; cf. Freund 1975). L i k e La B o e t i e and M o n t a i g n e , N a u d e w a s w e l l a w a r e o f the political utility o f ritual and m y s t e r y , and remarks on the c o n v e r s i o n o f C l o v i s that 'the sacred O i l and the A u r i f l a m b . . . w e r e so m a n y C o n t r i v a n c e s o f State to g i v e A u t h o r i t y to the c h a n g e o f his R e l i g i o n , w h i c h he w o u l d m a k e use o f as a p o w e r f u l M a c h i n e to m i n e all his little n e i g h b o u r i n g Princes' ( 1 7 1 1 , p. 87). It should not be t h o u g h t that the ideas o f legitimation and o f social function w e r e altogether strange to the seventeenth century. W i t h N a u d e w e h a v e reached the last major w o r k in any o f the genres discussed in this chapter. A s M e i n e c k e pointed o u t l o n g a g o , the Italian reason-of-state literature ' c o m p l e t e l y d w i n d l e d a w a y in the second h a l f o f the c e n t u r y ' ( M e i n e c k e 1957, p. 126). S o did the c o m m e n t a r i e s on Tacitus. A m e l o t de la Houssaye's Morale de Tacite (1683) is an interestingly late e x a m p l e , but it is concerned, as the title suggests, m o r e w i t h morals than w i t h politics. T h e r e w a s also a reaction against Stoicism, or at least against the Stoic hero, in the m i d d l e o f the seventeenth century, a reaction expressed in his usual lapidary f o r m b y La R o c h e f o u c a u l d w h e n he w r o t e that 'the constancy o f the wise is n o m o r e then the art o f hiding their agitation' (La R o c h e f o u c a u l d 1665, n o . 20). Q u e e n Christina o f S w e d e n , n o bad indicator o f intellectual fashions, shifted enthusiasms in later life f r o m Stoicism to m y s t i c i s m (Stolpe 1959). A s for the sceptical approach to politics characteristic o f M o n t a i g n e and C h a r r o n , it w a s attacked h e a d - o n b y Grotius, w h o s e De Jure Belli ac Pads (1625), included a critique o f Carneades, and b y implication o f those m o d e r n sceptics w h o had denied the existence o f the l a w o f nature (Battista 1966, p. 2 1 3 ) , w h i l e Pascal transformed M o n t a i g n e ' s political t h e o r y into s o m e t h i n g v e r y different b y c o m b i n i n g it w i t h the A u g u s t i n i a n v i e w o f g o v e r n m e n t as the unfortunate consequence o f original sin ( A u e r b a c h 1959). Later in the century, J o h n D r y d e n c o u l d still profess his attachment to ' M o n t a i g n e ' s principles, that an honest m a n o u g h t to be contented w i t h that f o r m o f g o v e r n m e n t and w i t h those fundamental constitutions o f it w h i c h he received f r o m his ancestors and under w h i c h h i m s e l f w a s b o r n ' (q. B r e d v o l d 1934, p. 1 3 1 ) , but in D r y d e n ' s d a y this kind o f political relativism w a s b e i n g driven o u t — at least for a time — b y the g e o m e t r i c a l method. D r y d e n f o r m e d his political v i e w s in the E x c l u s i o n Crisis, as M o n t a i g n e had f o r m e d his in the French civil w a r s . N o n e o f the m o v e m e n t s discussed in this chapter can b e understood unless w e r e m e m b e r that their political 497

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c o n t e x t w a s the age o f international and civil wars (seen b y m a n y as religious wars), w h i c h racked E u r o p e in the sixteenth and seventeenth centuries, m o r e especially in the e i g h t y years b e t w e e n the R e v o l t o f the Netherlands and the Peace o f Westphalia. If the Italians, French, and Netherlanders w e r e the principal innovators in this area o f political t h o u g h t , w h i l e the Spaniards, G e r m a n s , English, and others seem to h a v e f o l l o w e d in their tracks, this m a y w e l l be because the i n v o l v e m e n t o f the Italians, French, and Netherlanders in political upheavals t o o k place earlier than it did elsewhere. R e a s o n o f state and T a c i t i s m offered rulers and their counsellors advice o n dealing w i t h the extraordinary p r o b l e m s o f the times; Stoicism taught private citizens h o w to endure their extraordinary calamities; w h i l e scepticism w a s in large measure a reaction against conflicting claims to political l e g i t i m a c y . T h e divergences b e t w e e n Stoicism, scepticism, and reason o f state should n o t o f course be forgotten. Stoics, for e x a m p l e , b e l i e v e d in natural l a w ; sceptics u n d e r m i n e d it; reason o f state o v e r r o d e it. Y e t the intellectual m o v e m e n t s w h i c h h a v e been discussed here are at least connected in the sense o f offering solutions to the same pressing p r o b l e m s o f their day.

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17 Grotius and Seiden RICHARD

i

TUCK

T h e c o n t e x t o f G r o t i u s ' career

W h e n the history o f recent m o r a l p h i l o s o p h y w a s w r i t t e n at the end o f the seventeenth and the b e g i n n i n g o f the eighteenth century, a consistent a c c o u n t w a s g i v e n o f the role o f H u g o Grotius. In the eyes o f m e n like S a m u e l Pufendorf, Christian T h o m a s i u s , Jean B a r b e y r a c , and their successors, he w a s the one w h o ' b r o k e the ice' after the l o n g w i n t e r o f Aristotelianism; w h o p r o v i d e d a n e w t h e o r y o f natural l a w w h i c h c o u l d supplant b o t h the discredited theories o f the scholastics and the antiscientific and sceptical w r i t i n g s o f R e n a i s a n c e authors such as M o n t a i g n e and Pierre C h a r r o n . H e w a s the i n v e n t o r o f a n e w 'science o f m o r a l i t y ' , w h i c h w a s taken up in various w a y s b y all the major figures o f the seventeenth century, i n c l u d i n g H o b b e s , L o c k e , and P u f e n d o r f himself. His first i m p o r t a n t f o l l o w e r , they also all agreed, w a s J o h n Selden, t h o u g h the relationship b e t w e e n the t w o m e n w a s b y n o means a straightforward one (see T u c k 1979, p p . 1 7 4 - 5 ) . A s w e shall see, there is a sense in w h i c h these historians w e r e absolutely correct; G r o t i u s did see s o m e t h i n g for the first time w h i c h w a s to be crucially i m p o r t a n t in the succeeding century, n a m e l y that there c o u l d be a systematic m o r a l and political p h i l o s o p h y w h i c h m e t the objections levelled against such an enterprise in the late sixteenth century. B u t this insight w a s h a r d - w o n , and e m b o d i e d in a series o f w o r k s w h i c h w e r e to s o m e extent pieces d 'occasion; to understand the generation o f his political p h i l o s o p h y , it is necessary to l o o k first at his public career. O n 18 M a r c h 1598, shortly before his fifteenth birthday, H u g o G r o t i u s left his native H o l l a n d on an embassy to the k i n g o f France. Despite his y o u t h , he had been chosen b y Johan v a n O l d e n b a r n e v e l t , a d v o c a t e o f the States o f the p r o v i n c e o f H o l l a n d since 1586 and in effect the chief minister :

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o f the U n i t e d P r o v i n c e s , as an appropriate c o m p a n i o n o n one o f the major d i p l o m a t i c missions during the w a r b e t w e e n the Netherlands and Spain, and their j o i n t enterprise m a r k e d the b e g i n n i n g o f a political partnership w h i c h w a s to endure until O l d e n b a r n e v e l t ' s fall and e x e c u t i o n in 1 6 1 9 . T h e y b o t h c a m e f r o m the same kind o f social b a c k g r o u n d ; G r o t i u s ' father Jan de G r o o t w a s one o f the regents o f Delft — that is, one o f the small g r o u p o f magistrates w h o g o v e r n e d the city and w h o chose f r o m a m o n g themselves delegates to sit in the States o f H o l l a n d , the m e d i e v a l parliamentary assembly w h i c h g o v e r n e d the p r o v i n c e in the absence o f the k i n g . T h e y w e r e n o t elected, but c o o p t e d b y the existing regents, and increasingly b e c a m e a closed and hereditary g r o u p . O l d e n b a r n e v e l t , t h o u g h n o t b y birth a Hollander, c a m e f r o m a similar regent family in A m e r s f o o r t in the p r o v i n c e o f Gelderland. B o t h turned to the l a w for their career, t h o u g h in G r o t i u s ' case this decision f o l l o w e d a brilliant and precocious career at the U n i v e r s i t y o f Leiden ( w h i c h he entered at the age o f eleven) and the appearance o f a n u m b e r o f editions o f classical texts. His decision to enter the legal profession w a s m a r k e d during the mission to France b y the c o n f e r m e n t o n h i m o f the degree o f doctor utriusque juris b y the U n i v e r s i t y o f Orleans in M a y . B u t the difference in age and position b e t w e e n O l d e n b a r n e v e l t and G r o t i u s meant that the y o u n g e r m a n w a s v e r y m u c h the p r o t e g e o f the older, and his fortunes rose or fell w i t h those o f his p a t r o n . 1

B y virtue o f his political position, O l d e n b a r n e v e l t had the resources at his disposal to r e w a r d his friends, and Grotius benefited a c c o r d i n g l y . In 1601 he w a s m a d e historiographer o f H o l l a n d , a post w h i c h w a s n o t p u r e l y h o n o r a r y — a m o n e t a r y subsidy w a s also granted to h i m (at first he w a s o n trial, but in 1604 he w a s secured in the post). In 1607 he b e c a m e advocaatfiscaal, one o f the treasury officials o f the States o f H o l l a n d , and in 1 6 1 2 received his greatest office w h e n he w a s appointed pensionary o f R o t t e r d a m , b e c o m i n g at the same time one o f that city's representatives in the States o f H o l l a n d . T h e pensionary w a s a k i n d o f chief e x e c u t i v e o f the city, and O l d e n b a r n e v e l t had h i m s e l f held this post i m m e d i a t e l y before b e c o m i n g the States' a d v o c a t e . In 1613 Grotius led an i m p o r t a n t delegation to K i n g James in E n g l a n d . T h r o u g h o u t this period he w a s p r o d u c i n g a multitude o f papers and speeches for O l d e n b a r n e v e l t , acting as a kind o f political adviser and,

1. For the association o f Grotius and Oldenbarnevelt, and the latter's career, see den T e x 1973, T h e best account in English o f Grotius' life is K n i g h t 1925.

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passim.

Grotius and Seiden sometimes a n o n y m o u s l y and sometimes o p e n l y , as a propagandist for his patron's ideas; he e v e n lived n e x t d o o r to O l d e n b a r n e v e l t in T h e H a g u e . B u t t h r o u g h o u t the second decade o f the century, O l d e n v a r n e v e l t ' s adminstration ran into m o r e and m o r e opposition o v e r its p o l i c y o f a degree o f religious toleration. E v e n t u a l l y an o p e n breach d e v e l o p e d b e t w e e n his supporters in the States General o f the U n i t e d P r o v i n c e s (primarily the representatives o f the cities, t h o u g h b y n o means all o f them) and his opponents, a coalition o f c l e r g y m e n and s o m e municipal leaders (notably those o f A m s t e r d a m ) headed b y the stadtholder M a u r i c e . Since under the U n i t e d P r o v i n c e s ' constitution M a u r i c e controlled the military p o w e r o f the provinces (rather like the g o v e r n o r o f an A m e r i c a n state), the o n l y w a y in w h i c h O l d e n b a r n e v e l t c o u l d secure h i m s e l f w h e n the crisis point w a s reached w a s b y attempting to raise a rival military force; he failed, and w a s arrested for h i g h treason. A f t e r a l e n g t h y trial he w a s e x e c u t e d at T h e H a g u e o n 13 M a y 1 6 1 9 . G r o t i u s w a s naturally implicated in his fall, and faced trial also; he w a s almost sentenced to death, but in the end w a s reprieved and sentenced to life i m p r i s o n m e n t in the fortress o f Loevestein in the south o f H o l l a n d , and his estate confiscated. His reprieve w a s partly the result o f his betrayal at the trial o f his old friend and patron. H e escaped in dramatic and romantic circumstances (in a basket o f b o o k s , appropriately e n o u g h ) t w o years later, and fled to France - his escape w a s p r o b a b l y w i n k e d at b y the stadtholder, embarrassed b y the presence on D u t c h soil o f such an eminent captive. G r o t i u s w a s not to return to H o l l a n d for t w e n t y - t h r e e years, e x c e p t for a b r i e f visit in 1631 w h e n he w a s threatened w i t h arrest and had to flee to H a m b u r g ; he lived the remainder o f his life after his escape f r o m Loevestein as a pensioner o f r o y a l courts, first o f France and then f r o m 1634 o n w a r d s o f S w e d e n , w h e r e he w a s one o f Q u e e n Christina's gallery o f E u r o p e a n intellectuals and w a s e m p l o y e d b y her as resident ambassador in Paris. Paris w a s thus his usual base f r o m 1621 to 1645. In that year he visited S w e d e n via H o l l a n d and w a s received w i t h h o n o u r in A m s t e r d a m . Intrigues at the S w e d i s h court seem to h a v e determined h i m to resign his ambassadorship, w h i c h the queen eventually a l l o w e d h i m to d o ; he m a y h a v e planned to return to H o l l a n d , but the ship o n w h i c h he w a s travelling to L i i b e c k w a s b l o w n ashore o n the coast o f P o m e r a n i a , and G r o t i u s fell ill. H e died in R o s t o c k o n 28 A u g u s t 1645, and it w a s o n l y his b o d y w h i c h finally returned to H o l l a n d , w h e r e it w a s buried in the c h u r c h o f Delft. 2

2. See the address on the letter from D e V i g i e r , M a r c h 1608, Grotius 1928, p. 106 and n.

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O l d e n b a r n e v e l t ' s rise and fall had s o m e t h i n g o f a classically tragic character, and w a s indeed the subject o f a t r a g e d y b y J o h n Fletcher. B u t it w a s also in one sense one o f the f o r m a t i v e dramas o f the m o d e r n w o r l d : the issues at stake included the question o f religious toleration, the e m a n c i p a tion o f ethics f r o m t h e o l o g y , and the location o f s o v e r e i g n t y w i t h i n the D u t c h state. O n all o f these issues, G r o t i u s had s o m e t h i n g i m p o r t a n t to say. H e b e g a n , like his master, b y accepting m a n y o f the ideas to w h i c h rulers in the 1590s all o v e r E u r o p e w e r e attracted — the impossibility o f reaching a universal consensus o n ethical and religious matters, and the i m p o r t a n c e o f maintaining a p o w e r f u l state w h i c h c o u l d p r e v e n t this lack o f consensus f r o m tipping o v e r into civil w a r . T h i s is the set o f ideas associated most f a m o u s l y w i t h Justus Lipsius ( w h o w a s a friend and teacher o f G r o t i u s ' father), and they found a ready audience in b o t h the n o r t h e r n and southern Netherlands — the t w o halves o f a nation w h i c h had after all been destroyed b y just such a civil w a r . Inscribed a b o v e the front d o o r o f O l d e n b a r n e v e l t ' s house w a s the m o t t o , ' N i l Scire Tutissima Fides ( ' T o K n o w N o t h i n g is the Surest Faith') (den T e x 1973,1, p. 7); but at the same time he w o r k e d hard to sustain the political unity o f the U n i t e d P r o v i n c e s and their military strength — based o n a disciplined a r m y m o d e l l e d o n the R o m a n legions described b y Lipsius. B u t the g r o u p o f writers r o u n d O l d e n b a r n e v e l t at the turn o f the century, i n c l u d i n g G r o t i u s h i m s e l f and his old friend Jan de M e u r s , saw that Lipsius' particular brand o f political t h e o r y w a s n o t really appropriate to the p r o b l e m s o f a nation w i t h o u t a prince, and they p r o d u c e d a n u m b e r o f remarkable essays in w h i c h they argued for the r e c o g n i t i o n o f the U n i t e d P r o v i n c e s as a true aristocratic republic, c o m p a r a b l e to V e n i c e or (in their o w n interpretation o f these constitutions) A t h e n s and R o m e . G r o t i u s in a v e r y early piece revealed his s y m p a t h y w i t h the oligarchic V e n e t i a n constitution and his belief that it resembled that o f the U n i t e d P r o v i n c e s (Stevin 1599, sig. *2ff.), and in a l o n g e r w o r k he c o m p o s e d in 1601—2, entitled Parallelon rerumpublicarum (the b u l k o f w h i c h is n o w lost), he p r o d u c e d a systematic c o m p a r i s o n o f the Netherlands w i t h b o t h A t h e n s and R o m e . A t t a c k i n g b o t h the traditional n o t i o n o f the m i x e d constitution and the B o d i n i a n v i e w that R o m e w a s a d e m o c r a c y , he argued that the 'ordinary and d a y - t o - d a y a u t h o r i t y ' at R o m e w a s possessed b y the n o b i l i t y . Hostility to the idea o f a m i x e d constitution ran t h r o u g h o u t his 3

4

3. For Lipsius, see Oestreich 1982. His s y m p a t h y w i t h scepticism is discussed briefly in T u c k 1983, 4. Grotius 1928, p.29; 1801, passim. p.48. See also pp.92-3 above.

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Grotius and Seiden w o r k , despite the traditional v i e w that V e n i c e exemplified it; in the v i e w o f these early seventeenth-century D u t c h republicans, V e n i c e w a s in fact a true o l i g a r c h y or aristocracy.

ii

D u t c h republicanism and the transition to natural l a w

In his major constitutional w o r k o f this period w h i c h actually appeared in print, his De Antiquitate Reipublicae Batavicae o f 1610, G r o t i u s b e g a n b y q u o t i n g Tacitus — 'all nations are ruled either b y the people, the leading inhabitants (primores), or an i n d i v i d u a l ' . T h e ' B a t a v i a n s ' or Netherlanders had a l w a y s , he claimed, been ruled b y primores, w i t h w h o m a kind o f prince had often been associated; but this did not m a k e their constitution any m o r e m i x e d , or less p u r e l y aristocratic, for the prince acted like a president or chairman o f the oligarchs. L i k e Selden at the same time in E n g l a n d , G r o t i u s read Tacitus and the other classical writers on the customs o f the G e r m a n i c and Gaullish tribes as g i v i n g an account not o f balanced or limited kingship ( w h i c h had, for e x a m p l e , been Francois H o t m a n ' s reading) but o f true aristocracy w i t h o u t a m o n a r c h i c a l e l e m e n t . In a piece w r i t t e n for O l d e n b a r n e v e l t but n e v e r published until 1967, Grotius e v e n argued that the States General o f the U n i t e d P r o v i n c e s should be reconstructed o n a v o w e d l y aristocratic, non-representative lines ( D e Michelis 1967, p p . 1 7 1 - 8 9 ) . It actually consisted o f mandated delegates from the provincial States, but G r o t i u s claimed that to prevent civil strife and further the w a r , it should consist o f self-appointing senators like the regents o f his native city. In a n u m b e r o f other papers and letters he w r o t e before the T r u c e o f 1609, G r o t i u s expressed his w h o l e - h e a r t e d support for the w a r , and his fear that constitutional c h a n g e o f this kind w o u l d be threatened b y peace (e.g. G r o t i u s 1928, p. 85; V a n Eysinga 1955). 5

6

U n l i k e the V e n e t i a n writers o n republicanism, h o w e v e r , G r o t i u s and the other D u t c h republicans linked their aristocratic theories w i t h a defence o f imperialism m o r e like that o f the populist Florentine republicans. G r o t i u s ' Annates et Historiae (note the Tacitist echo), the p r o d u c t o f his years as historiographer to the States o f H o l l a n d , chronicle the rise o f the D u t c h overseas e m p i r e and analyse its e c o n o m i c base; w h i l e in 1604 he started 5. Grotius, De Antiquitate, ch. I (1630, p. 17). T h e (unacknowledged) quotation from Tacitus is from the Annals, iv.33. 6. Grotius, De Antiquitate, ch. 11 (1630, pp. 33rT): Selden, Analecton Anglo-Britannicon, ch. in (1726, 11, cols. 8 7 7 - 9 .

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w o r k o n a c o m p r e h e n s i v e defence o f D u t c h naval activity against Spain and P o r t u g a l in the East Indies. T h e f o r m this t o o k represented s o m e t h i n g n e w in his w o r k : it w e n t b e y o n d the humanist reflections o f the Parallela ( w h i c h , he r e m a r k e d in M a r c h 1605, ' n o w begins to displease its author' (Grotius 1928, p . 53), and i n v o l v e d G r o t i u s in t h i n k i n g about w h a t m o r a l rules c o u l d underpin the confrontation o f t w o societies a n y w h e r e in the w o r l d . T h i s is the w o r k w h i c h lay in manuscript until it w a s discovered in 1864 (except for part o f it w h i c h w a s published in 1609 as the Mare Liberum), and w h i c h w a s misleadingly entitled b y its first editors De lure Praedae. In fact, G r o t i u s a l w a y s referred to it in his correspondence as his w o r k De Indis. T h e object o f the w o r k w a s t w o - f o l d . O n e w a s to persuade D u t c h public o p i n i o n that the seizure o f prize ships in the East Indies b y ships o f the D u t c h East India C o m p a n y w a s legitimate (for some m e m b e r s o f the C o m p a n y , particularly the M e n n o n i t e s , seem to h a v e been unsure about this), but the other w a s the w i d e r object o f demonstrating to an international audience (and particularly one familiar w i t h the Spanish n e o scholastic literature) that the D u t c h activity w a s legitimate. W h a t the D u t c h w e r e t r y i n g to d o in the Indies w a s to persuade native rulers (often b y a s h o w o f military force) to trade w i t h t h e m rather than the Spaniards, and in m a n y cases to help native guerrilla forces in their wars w i t h Spanishb a c k e d rulers - a classic e x a m p l e o f informal imperial activity. In 1608 the Z e e l a n d C h a m b e r o f the East India C o m p a n y asked Grotius to publish part o f the w o r k as the Mare Liberum, t h o u g h b y the time it appeared the relevant agreements w i t h Spain had already been m a d e . G r o t i u s h i m s e l f had considered publishing the m o r e general and theoretical parts in N o v e m b e r 1606; he admitted that the issues they c o v e r e d had been dealt w i t h b y ' m a n y b o t h ancient and m o d e r n writers', but claimed that he believed it to be possible to ' t h r o w n e w light o n t h e m b y e m p l o y i n g a secure m e t h o d and b y c o m b i n i n g divine and h u m a n l a w w i t h the principles o f p h i l o s o p h y ' (Grotius 1928, p. 72). T h i s is indeed e x a c t l y w h a t the De lure Praedae (as I shall continue to call it) attempts. Its first chapter contains a critique o f the c u s t o m a r y humanist w a y o f talking about such matters, and a remarkable manifesto for a w h o l l y n e w m e t h o d . H e rejected b o t h the use o f positive civil l a w as a g u i d e and the attempt to e m p l o y scriptural exegesis, as w e l l as the idea that a simple c o m p a r a t i v e history w a s all that w a s needed. Instead, he p r o c l a i m e d the need to d o as the ancient jurists had done, and to 'refer the art o f civil g o v e r n m e n t back to the v e r y fount o f n a t u r e ' . T h i s call for a return to a 7

7. Grotius, De lure Praedae, M S , p. 5 (1950, 1, p. 7).

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Grotius and Selden naturalistic style o f a r g u m e n t w a s a c c o m p a n i e d b y an e v e n m o r e remarkable breach w i t h the general Renaissance Aristotelian m e t h o d o l o g y in the h u m a n sciences. Aristotle d i v i d e d sciences into the categories o f practical and theoretical - ethics and politics b e l o n g e d to the practical, and mathematics and similar studies to the theoretical. A n d y e t G r o t i u s n o w outlined his o w n m e t h o d o l o g y as f o l l o w s : First, let us see what is true universally as a general proposition; then, let us gradually narrow this generalisation, adapting it to the special nature of the case under consideration. Just as the mathematicians customarily prefix to any concrete demonstration a preliminary statement o f certain broad axioms on which all persons are easily agreed, in order that there may be some fixed point from which to trace the proof of what follows, so shall w e point out certain rules and laws of the most general nature, presenting them as preliminary assumptions which need to be recalled rather than learned for the first time, with the purpose o f laying a foundation upon which our other conclusions may safely rest. (ibid., M S , p. 5: 1950, 1, p. 7) A n d , indeed, the w h o l e w o r k is t i g h t l y organised as a series o f discussions r o u n d nine fundamental 'rules' and thirteen associated ' l a w s ' . In the w r i t i n g s o f the scholastics, their concentration o n the l a w o f nature as a foundation for their arguments had led t h e m also to blur the distinction b e t w e e n the practical and theoretical sciences — a c c o r d i n g to A q u i n a s , the distinction w a s m e r e l y that in the practical sciences deductions f r o m the fundamental and a priori a x i o m s w e r e m o r e difficult and contentious than in the theoretical sciences. G r o t i u s ' return to the l a w o f nature as the basis for his discussion led h i m to m a k e the same m o v e , and to instate mathematics as the m e t h o d o l o g i c a l m o d e l for the h u m a n sciences — a d e v e l o p m e n t w h i c h w a s to determine m o r e than a n y t h i n g else the character o f seventeenth-century E u r o p e a n political t h o u g h t . T h e idea that there c o u l d be a universal and d e d u c t i v e science o f ethics akin to mathematics, h o w e v e r , rested in the De lure Praedae n o t s i m p l y o n a reiteration o f the beliefs o f the scholastics. G r o t i u s a r g u e d first that the f o r m o f any m o r a l rule w a s the p r o n o u n c e m e n t b y an agent or agents o f w h a t their w i l l w a s to be (a claim c o m p a t i b l e , o f course, w i t h the m o s t e x t r e m e relativism). T h i s w a s true b o t h o f G o d and o f m a n , and he based his w h o l e discussion o n a set o f fundamental and f o r m a l rules. I What God has shown to be his will, that is law. II What the common consent of mankind has shown to be the will of all, that is law. Ill What each individual has indicated to be his will, that is law with respect to him. 505 Cambridge Histories Online © Cambridge University Press, 2008

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IV What the commonwealth had indicated to be its will, that is law for the whole body o f citizens. V What the commonwealth had indicated to be its will, that is law for the individual citizens in their mutual relations. VI What the magistrate had indicated to be his will, that is law in regard to the whole body o f citizens. VII What the magistrate had indicated to be his will, that is law in regard to the citizens as individuals. VIII Whatever all states have indicated to be their will, that is law in regard to all of them. (ibid., 1950, 1, pp. 369-70) B u t such a f o r m a l system did n o t help his a r g u m e n t unless the contents o f these acts o f w i l l , and particularly o f G o d ' s , c o u l d be uncontentiously determined. T h i s w a s the occasion for G r o t i u s ' striking and original idea, an idea o f great simplicity w h o s e consequences o c c u p i e d h i m for the rest o f his life. H e w e n t b a c k to the principles o f the Stoics u p o n w h i c h m e n like Lipsius had based their pessimistic and relativist v i e w o f the w o r l d , and in particular the Stoic claim that the p r i m a r y force g o v e r n i n g h u m a n affairs is the desire for self-preservation. B u t he interpreted this desire in moral terms, as the one and o n l y universal right: n o one c o u l d e v e r be b l a m e d for p r o t e c t i n g themselves, but they c o u l d n e v e r be justified in d o i n g a n y t h i n g harmful w h i c h did n o t h a v e the end in v i e w . T h i s w a s the content o f G o d ' s w i l l for m a n k i n d , w h i c h c o u l d be d e d u c e d s i m p l y b y l o o k i n g at the natural world. From this fact the old poets and philosophers have rightly deduced that love, whose primary force and action are directed to self-interest, is the first principle o f the whole natural order. Consequently, Horace should not be censured for saying, in imitation o f the academics [i.e. the sceptics], that expediency might perhaps be called the mother of justice and equity. 8

U p o n this basic principle o f self-interest, he argued, w e r e g r o u n d e d the t w o principles o f the l a w o f nature (and hence the first t w o ' L a w s ' w h i c h he set out as corollaries to his ' R u l e s ' ) : 'It shall be permissible to defend one's o w n life and to shun that w h i c h threatens to p r o v e injurious' and 'It shall be permissible to acquire for oneself, and to retain, those things w h i c h are useful for life.' B u t because m e n feel a certain sense o f c o m m o n kinship w i t h one another, there are t w o other l a w s o f nature: 'Let n o one inflict injury u p o n his f e l l o w ' and ' L e t n o one seize possession o f that w h i c h has b e e n taken into the possession o f another' (ibid., MS, p p . 6 , 7 : 1 9 5 0 , 1 , p p . 10,

8. Grotius, De lure Praedae, M S , pp. 5, 5a (1950, 1, p. 9).

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Grotius and Seiden 13). G r o t i u s w a s quite clear that self-interest is the p r i m a r y and o v e r r i d i n g principle, and that altruism must in s o m e w a y be explicable in terms o f selfinterest. The order o f presentation o f the first set o f laws and o f those following immediately thereafter has indicated that one's o w n good takes precedence over the good o f another person - or, let us say, it indicates that by nature's ordinance each individual should be desirous of his o w n good fortune in preference to that o f another. (ibid., M S , p. 11: 1950, 1, p. 21) It is i m p o r t a n t also to stress that a c c o r d i n g to G r o t i u s this natural sense o f society w i t h all other m e n does n o t entail any o b l i g a t i o n to help t h e m : it m e r e l y entails an o b l i g a t i o n to refrain from harming t h e m . It is o n l y in organised states that s o m e t h i n g m o r e e m e r g e s : there are laws peculiar to the civil convenant, . . . which extend beyond the laws already set forth, as follows: first, Individual citizens should not only refrain from injuring other citizens, but should furthermore protect them, both as a whole and as individuals; secondly, Citizens should not only refrain from seizing one another's possessions, . . . but should furthermore contribute individually both that which is necessary to other individuals and that which is necessary to the whole [my italics]. (ibid., M S , pp. 11a 1 1 : 1950, 1, p. 21) T h e natural society o f m e n is one in w h i c h individuals pursue their o w n interests u p to the point at w h i c h such a pursuit actually deprives another o f s o m e t h i n g w h i c h they possess; it is n o t one o f b e n e v o l e n c e as w e w o u l d customarily understand the term, and it is v e r y far r e m o v e d f r o m the Aristotelian picture o f the zoon politikon. A t h e o r y a b o u t h o w w e acquire possessions in a state o f nature is o b v i o u s l y essential to an a r g u m e n t o f this kind, and G r o t i u s p r o v i d e d such a t h e o r y in that part o f the w o r k w h i c h w a s later printed as the Mare Liberum. His central a r g u m e n t w a s that m e n can h a v e a kind of p r o p e r t y in nature — the second l a w o f nature, as he had outlined it, after all precisely endorsed the acquisition o f the things necessary for life b y an individual. T h i s w a s o n l y a k i n d o f p r o p e r t y , or dominium quoddam as he put it, because the salient feature o f the d e v e l o p e d system o f private p r o p e r t y w a s absent: n o one c o u l d claim a persistent and u n i q u e right o v e r a part o f the material w o r l d that they w e r e n o t at the time putting to s o m e direct use (ibid., M S , p. 1 0 1 : 1950, 1, p. 228). H o w e v e r , such a d e v e l o p e d system w o u l d g r o w naturally o u t o f the p r i m i t i v e c o n d i t i o n o f m a n k i n d as culture and t e c h n o l o g y d e v e l o p e d : the g r o w t h o f agriculture m e a n t fields had to be cultivated o n a systematic basis to p r o d u c e consumables, and the m a n w h o cultivated the field c o u l d c l a i m a p r o p e r t y right in it. A system o f 507

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c o n v e n t i o n s c o u l d then arise to allocate particular pieces o f p r o p e r t y , like taking seats in a theatre. N o t o n l y private individuals, but also g r o u p s o f p e o p l e and states acquired their possessions in this manner. T h i s further claim is linked to one o f the most i m p o r t a n t themes o f the w o r k , that the rights e n j o y e d b y a state and its g o v e r n m e n t cannot be different in k i n d f r o m the rights e n j o y e d b y an individual in the state o f nature. 'Just as e v e r y right o f the magistrate c o m e s to h i m f r o m the state, so has the same right c o m e to the state f r o m private individuals (ibid., M S , p . 40: 1950,1, p . 929). C i v i l society d e v e l o p e d o u t o f a state o f nature in w h i c h m e n w e r e already b o u n d b y the fundamental l a w s o f nature, and it w a s b r o u g h t about largely because o f the increasing n u m b e r s o f p e o p l e . [Relatively small] social units began to gather individuals together into one locality, not with the intention o f abolishing the society which links all men as a whole, but rather in order to fortify that universal society by a more dependable means of protection, and at the same time, with the purpose o f bringing together under a more convenient arrangement the numerous different products o f many persons' labour which are required for the uses o f human life. (ibid., M S , p. 10: 1950, 1, p. 19) O n e o f the m a i n a r g u m e n t s against such an a c c o u n t o f civil society in earlier literature had been that o n l y a prince or a supreme magistrate c o u l d possess the p o w e r to punish offenders, since that appeared to be a special right w h i c h n o individual c o u l d possess and w h i c h therefore n o individual c o u l d transfer either to the state or to the magistrate; but G r o t i u s w a s quite clear that this w a s n o t so. T h e first four l a w s o f nature t o g e t h e r entailed a right to exact restitution for w r o n g s c o m m i t t e d against one, and since, as he said, 'an injury inflicted e v e n u p o n one individual is the c o n c e r n o f all . . . primarily because o f the e x a m p l e set', each person in a state o f nature had an interest in restraining or punishing a n y o n e w h o infringed another's rights and d e p r i v e d t h e m o f their possessions. H e supported this claim w i t h the identical a r g u m e n t that L o c k e w a s later to use in the same c o n t e x t , that m o d e r n states claim the right to punish foreigners for their transgressions, and that such a right must arise f r o m the l a w o f nature and n o t f r o m civil l a w (ibid., M S , p. 40: 1950, 1, p . 92). A l t h o u g h his purpose in the De lure Praedae w a s n o t to defend the oligarchic D u t c h constitution, G r o t i u s nevertheless revealed that he did n o t believe that D u t c h opposition to Spain w a s g r o u n d e d o n any o b v i o u s principle o f popular resistance. A s he said, 'not e v e r y r e g i m e d e v o i d o f a prince is a popular g o v e r n m e n t ' . L i b e r t y w a s important, but defined in the following way: 508 Cambridge Histories Online © Cambridge University Press, 2008

Grotius and Seiden if the principate has already been abolished, and a republican form of government set up, the course properly to be followed by citizens in doubtful cases will be indicated by the laws that favour the claims o f liberty . . . This principle holds good, above all, with reference to that form of liberty which is neither immoderate not unbridled (for liberty attended by these attributes is more accurately called 'licence'), or in other words, with reference to that free status which is confirmed by the princely power of the governing officials, by the authority of the country's most important men, and by the goodwill of the citizens. (ibid., M S , pp. 135, 136: 1950, 1, p. 301) His vision w a s still that o f an aristocratic republic, 'free' in the sense o f b e i n g w i t h o u t a m o n a r c h , fighting to establish its right to e n g a g e in an aggressive imperialism. A s can b e seen f r o m this account o f its m a i n arguments, the De lure Praedae is an astonishing b o o k . In it w e find laid o u t most o f the themes (and the dilemmas) w h i c h w e r e to o c c u r in all his successors until the end o f the eighteenth century. Sceptical m o r a l relativism is answered b y b e i n g absorbed into a n e w 'scientific' ethics: the 'necessities' o f Lipsius and his f o l l o w e r s b e c o m e 'rights' w h i c h can be used to generate a c o m p l e x system o f rights and duties. W h a t G r o t i u s built o n this foundation w a s the c o m m o n habitation for his successors. T h e idea that civil society is a construct b y individuals w i e l d i n g rights or bundles o f property, and that g o v e r n m e n t s possess n o rights that those individuals did not possess, is the m a i n assumption o f all the great theorists o f the seventeenth and eighteenth centuries. hi

T h e A r m i n i a n s and the p r o b l e m o f religious toleration

W h i l e G r o t i u s w a s able to d e v e l o p these ideas in the years before the T r u c e in relative isolation f r o m u r g e n t p o l e m i c s , almost all his w o r k in the decade b e t w e e n 1609 and his trial in 1 6 1 9 w a s d e v o t e d to the single end o f defending O l d e n b a r n e v e l t ' s position in the religious controversies w h i c h tore D u t c h society apart. In the process, he had to m o d i f y and sharpen s o m e o f his ideas, but his basic vision o f the w o r l d remained v e r y stable, and he w a s able to apply it to w h a t w a s to be a central issue for all the writers o f this century, the relationship b e t w e e n c h u r c h and state. T h e controversies had initially d e v e l o p e d d u r i n g the first years o f the century o v e r the teaching o f Jacob A r m i n i u s , professor o f t h e o l o g y at Leiden f r o m 1603 until his death in O c t o b e r 1609. Arminivfs had l o n g been w o r r i e d about the n o t o r i o u s l y 9

9. For the details o f Arminianism and the controversies o v e r it, see Harrison 1926 and den T e x 1973, esp. chs. 10 and 12.

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harsh C a l v i n i s t t h e o r y o f salvation, that G o d determined to w h o m he w o u l d e x t e n d his grace and therefore w h o w o u l d be saved — h u m a n effort c o u n t e d for n o t h i n g , e x c e p t as a necessary (but not sufficient) condition for observers to say that s o m e o n e counted as one o f G o d ' s elect. A r m i n i u s p r o p o s e d instead that G o d did not determine in particular w h o w a s to be saved, but rather in general: he offered grace, but it m i g h t be refused. Despite the allegations o f his o r t h o d o x opponents, this did not m a k e A r m i n i u s like the kind o f late m e d i e v a l C a t h o l i c w h o s e repudiation had been the foundation o f Protestantism, for he did not say that m a n m i g h t claim a right to salvation; a g o o d a n a l o g y ( t h o u g h not one w h i c h A r m i n i u s actually used) w o u l d be w i t h a parent w h o offers to b u y s o m e t h i n g for his child. T h e child can refuse the offer, but he cannot b u y the article for himself. B u t it w a s a sufficiently different vision f r o m the other Calvinists to m a k e t h e m v e r y alarmed. T h e dispute o v e r A r m i n i u s , t h o u g h in o r i g i n a technically t h e o l o g i c a l one, i n e v i t a b l y spilled o v e r into a political conflict. A r m i n i u s h i m s e l f never a b a n d o n e d the traditional C a l v i n i s t v i e w that doctrinal matters had to be settled b y a s y n o d , and that the role o f the magistrate w a s to s u m m o n such an assembly, preside o v e r it, and accept its conclusions. B u t his supporters realised that they c o u l d not w i n the day in such a s y n o d , and in 1609/10 one o f t h e m , Johannes U y t t e n b o g a e r t , resolved o n a decisive break w i t h the political traditions o f C a l v i n i s m as w e l l as its t h e o l o g i c a l ones, a r g u i n g that the States o f each p r o v i n c e and n o t the s y n o d should c o n t r o l w o r s h i p , preaching, the administration o f sacraments, the care o f the p o o r , and the final a p p o i n t m e n t o f preachers, elders, and deacons. T h i s meant that the A r m i n i a n s had created a coalition b e t w e e n themselves and a n y o n e w h o (like G r o t i u s himself), whilst not an A r m i n i a n , w a s nevertheless sceptical about ecclesiastical authority. T h e A r m i n i a n s succeeded in manipulating this coalition v e r y q u i c k l y : in January a g r o u p o f ministers under U y t t e n b o g a e r t ' s chairmanship d r e w up a statement o f their t h e o l o g i c a l position, the famous ' R e m o n s t r a n c e ' , and on 22 A u g u s t the States passed the resolution that 'Preachers o f the opinions expressed in this remonstrance should be free f r o m the censure o f other preachers.' T h e States had thus u n e q u i v o c a l l y c o m m i t t e d themselves to a piece o f ecclesiastical regulation, and the issue o f ecclesiastical authority w a s h e n c e f o r w a r d inextricably b o u n d u p w i t h the t h e o l o g i c a l battle b e t w e e n R e m o n s t r a n t s and ' C o u n t e r - R e m o n s t r a n t s ' (as the A r m i n i a n s ' opponents c a m e to be called). G r o t i u s ' public i n v o l v e m e n t in this struggle b e g a n in 1 6 1 3 , w h e n he 510

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Grotius and Seiden published his first p o l e m i c a l w o r k concerned w i t h ecclesiastical p o w e r , the Pietas Ordinum Hollandiae et West-Frisiae. T h e occasion o f the w o r k w a s t w o f o l d : one object w a s to defend the resolution o f 22 A u g u s t 1610, w h i l e the other w a s to defend the a p p o i n t m e n t o f C o n r a d Vorstius to a chair at Leiden in M a y 1 6 1 1 . Vorstius had been accused o f heresy (including Socinianism) b y the o r t h o d o x at Leiden, yet in face o f this opposition the States o f H o l l a n d had ratified his appointment: precisely the same issues w e r e thus i n v o l v e d in his case as in the R e m o n s t r a n c e . T h e central a r g u m e n t o f the Pietas Ordinum w a s that the secular authorities c o u l d force the church to tolerate a particular t h e o l o g i c a l position; the w i l l o f the state c o u l d g o v e r n its m e m b e r s in all matters e x c e p t those w h i c h i n v o l v e d their destruction. T h e w o r k occasioned a considerable p a m p h l e t battle, to w h i c h G r o t i u s h i m s e l f contributed. For the n e x t six years he w o r k e d a w a y at these issues, m u c h o f his labour b e i n g centred o n a n e w toleration resolution (passed in January 1614) w h i c h w o u l d restate in a possibly m o r e acceptable f o r m the principles o f the 1610 resolution (den T e x 1973, 11, pp. 550—2). A l t h o u g h this passed b y a bare majority, m a n y o f the most i m p o r t a n t t o w n s , and particularly A m s t e r d a m , refused to accept it: b o t h G r o t i u s ' belief in the need for a strong and s o v e r e i g n States, and his belief in the nullity o f ecclesiastical p o w e r , c a m e together at this point. T h e n e x t years w e r e spent t r y i n g to persuade the recalcitrant t o w n s to c o m e into line — on 23 A p r i l 1616 G r o t i u s w e n t to A m s t e r d a m and delivered a public address (later printed) to its c o u n c i l u r g i n g t h e m to accept the resolution, but w i t h o u t success. T h e C o u n t e r - R e m o n s t r a n t s continued to u r g e the calling o f a s y n o d , and O l d n e b a r n e v e l t ' s refusal to d o so put h i m under ever increasing pressure. In the end the stadtholder intervened, and added his v o i c e to the d e m a n d ; O l d e n b a r n e v e l t clearly feared that he w o u l d be forced b y military pressure to g i v e w a y , and o n 23 July 1 6 1 7 the States o f H o l l a n d passed the so-called 'Stern R e s o l u t i o n ' in effect seeking to wrest military authority a w a y from the stadtholder. T h i s w a s the climacteric o f O l d e n b a r n e v e l t ' s career: his opponents organised behind the stadtholder and succeeded in b r i n g i n g the a d v o c a t e d o w n , together w i t h his associate the pensionary o f R o t t e r d a m . Despite the urgent character o f the political demands put u p o n h i m during these years G r o t i u s had m a n a g e d b y the time he w e n t to prison in addition to his m o r e p o l e m i c a l w r i t i n g s and speeches to finish t w o l o n g e r w o r k s : one, a defence o f the o r t h o d o x theory o f Christ's role as mediator for our sins, against the v i e w s o f the Socinians, 10

10. Grotius 1679, in, pp. 1 7 7 - 9 4 ; den T e x 1973, pp. 563-4.

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w a s published in 1 6 1 7 , but the other, his general w o r k on ecclesiastical authority the De imperio summarum potestatum circa sacra, remained unpublished until 1647. B o t h seem to h a v e been written at least in draft f o r m at about the same time, in the late s u m m e r o f 1 6 1 4 (Grotius 1928, p. 349 (De imperio), p. 367 (Defensio)). It is i m p o r t a n t to stress that in n o n e o f his w r i t i n g s during these years did G r o t i u s actually endorse the A r m i n i a n s ' t h e o l o g y . His position w a s consciously that o f a conciliator: in 1 6 1 3 , in a correspondence w i t h the English t h e o l o g i a n J o h n O v e r a l l , he argued that a c o m p r o m i s e b e t w e e n A r m i n i u s and C a l v i n w a s the desirable position to a d o p t . M o r e o v e r , his Defensio fidei Catholicae de Satisfactione Christi against the Socinians w a s intended to be a similar contribution to an eirenic enterprise - he circulated it to a n u m b e r o f leading C a l v i n i s t theologians as evidence o f his recruitment into the 'great w a r ' against the heresy (it w a s received distinctly c o o l l y , it should be said) (Grotius 1928, p. 397). T h e issue at stake in the conflict w a s not so m u c h one o f theological truth: it w a s w h e t h e r the state had the right to m a k e a j u d g e m e n t about w h a t the church should a l l o w to be taught. Part o f G r o t i u s ' case w a s that to a l l o w such a right in H o l l a n d w o u l d occasion n o great risk: the j u d g e m e n t w h i c h the secular rulers such as h i m s e l f w e r e capable o f m a k i n g w a s w h o l l y o r t h o d o x ; but part i n v o l v e d a matter o f higher theory, that the state had a perfect right to legislate o n any 'sacred' matter. 11

T h i s w a s the heart o f his case, and he established it in b o t h the De imperio summarum potestatum and the Defensio Fidei Catholicae b y s h o w i n g the invalidity o f any distinction b e t w e e n sacred and profane matters. T o d o so, he had to set out once again the fundamentals o f his political theory, and s h o w h o w they i m p l i e d the nullity o f ecclesiastical p o w e r . H e d r e w o n his original insight in the De lure Praedae, that the laws o f nature had to be principles w h i c h all people, sceptics and non-sceptics alike, w o u l d c o n c e d e to be true, and that they w e r e therefore an e x t r e m e l y m i n i m a l set o f rules. T h e laws o f nature, as he n o w put it, w e r e ' m o r a l impossibilities', and this v e r y strong definition enabled h i m to m a k e a distinction b e t w e e n w h a t w a s customarily taken to be part o f the l a w o f nature (such as G o d ' s c o m m a n d s to m e n in the D e c a l o g u e ) and w h a t w a s truly part o f it, f o l l o w i n g as a logical necessity from s o m e non-controversial assumption about the w o r l d (De imperio, c. 111.2: 1679, m, p. 2 1 1 ) .

11. He sent O v e r a l l an essay entitled Conciliatio Dissidentium de Re Praedestinaria et Gratia Grotius 1679, in, pp. 351-60. See Grotius 1928, pp. 24oflf.

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Opinionum:

Grotius and Seiden In the Defensio Fidei Catholicae he m a d e this distinction clear, as part o f an a r g u m e n t against the Socinian claim that a just G o d c o u l d not w a i v e punishment due to an offender w i t h o u t the breach o f a fundamental m o r a l l a w (and that the c o n v e n t i o n a l account o f the A t o n e m e n t w a s therefore m o r a l l y repulsive). As in physics, so in moral matters, something is called 'natural' either properly or less properly. 'Natural' in physics is properly used about the necessary essence o f anything — as when w e say that a living creature must have sensations. It is used less properly about something which is convenient and suitable, as when w e say that it is natural for a man to use his right hand. Similarly in morality, those things are properly natural which necessarily follow from the relationship o f the things themselves to a rational nature — such as the immorality o f lying. Other uses, as when w e say that a son should succeed his father, are less proper. (Defensio, c. in: 1679, in, p. 311) R a t h e r similar things about the necessity o f the l a w s o f nature w e r e said b y m a n y scholastics, but G r o t i u s ' originality lay in his v e r y n a r r o w - m i n d e d approach to w h a t actually constituted logical necessity. A s he said in the De imperio summarum potestatum, ' g i v e n that it is certain that G o d the Father, the S o n and the H o l y G h o s t is the one true G o d , it is part o f the l a w o f nature that w e w o r s h i p H i m . G o d ' s c o m m a n d s either to individuals, or to nations, or to the w h o l e h u m a n race, b e l o n g to another c a t e g o r y and m a y be called the divine positive l a w ' (De imperio, c. 111.3: 1679, m , p. 212). G o d ' s c o m m a n d s e v e n to the w h o l e o f h u m a n i t y w e r e not certain, or logically necessary, in the same w a y as the proposition that because he is the true G o d he must be w o r s h i p p e d . T h e latter proposition must be true at any time or place, whereas the content o f G o d ' s c o m m a n d s can alter, and frequently has d o n e so in h u m a n history. T h i s minimalist approach to the l a w s o f nature i m p l i e d a m o n g other things that the D e c a l o g u e , w h i c h had been used v e r y generally as a c o m p a c t statement o f the l a w s o f nature, w a s in fact m e r e l y a statement o f positive l a w w h i c h c o u l d be altered (and w h i c h G r o t i u s later observed had not been g i v e n to the Gentiles a n y w a y ) . A t this stage he did not d r a w this radical conclusion explicitly but the implications o f his discussion w e r e already clear; w h e n his friend the R e m o n s t r a n t J. A . C o r v i n u s described the D e c a l o g u e as divine positive l a w and n o t the l a w o f nature, in a tract o f 1622 defending the R e m o n s t r a n t s ' t h e o l o g y , the o r t h o d o x A n t o n i u s W a l a e u s ( w h o had been the minister at O l d e n b a r n e v e l t ' s execution) e x p l o d e d that this w a s doctrine 'hitherto unheard o f a m o n g Christians' and he w a s p r o b a b l y right ( C o r v i n u s 1622, p. 160; W a l a e u s 1643, p. 168). 513

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T h e conclusion w h i c h G r o t i u s did d r a w explicitly at this time, and w h i c h the minimalist a c c o u n t o f the l a w o f nature w a s particularly g o o d at underpinning, w a s that there w a s n o natural and universal basis for a distinction b e t w e e n religious and secular authority. C i v i l society had as a matter o f natural necessity to be g o v e r n e d b y a s o v e r e i g n w i t h c o e r c i v e p o w e r , and that s o v e r e i g n w a s circumscribed in his activities b y b o t h the laws o f nature and the divine positive l a w s a p p l y i n g to his people. B u t there w a s n o area o f special religious or sacred matters into w h i c h he c o u l d not intrude, for 'sacred' things c o u l d not be distinguished f r o m 'profane'. It is true that in m o d e r n states there is a division o f expertise, and s o m e m e n spend their lives s t u d y i n g 'religious' matters; but this n o m o r e establishes a fundamental division b e t w e e n civil and religious responsibilities than does the similarly specialised study o f m e d i c i n e . 12

iv

G r o t i u s ' Of the Law of War and Peace

Ironically, g i v e n their detestation o f h i m , and o f w h a t they t o o k to be the 'atheist' implications o f his v i e w s on c h u r c h g o v e r n m e n t , it w a s m e n like W a l a e u s w h o g a v e G r o t i u s the chance to p r o d u c e w o r k pulling together all the themes w h i c h he had considered since w r i t i n g the De lure Praedae. T h e y did so, o f course, b y j a i l i n g h i m for t w o years in L o e v e s t e i h , and thus g i v i n g h i m a period o f enforced rest and study. H e seems to h a v e b e g u n his time in prison b y s t u d y i n g classical p o e t r y once again ( a m o n g other things editing the poetic fragments contained in the B y z a n t i n e c o m p i l a t i o n o f Johannes Stobaeus), and b y reading the N e w T e s t a m e n t w i t h a critical e y e . T h e great p r o d u c t o f this period w a s a poetic treatise in D u t c h o n the truth o f the Christian religion, the Bewijs van den waren Godsdienst, w h i c h w a s published in 1622 and w h i c h w a s in effect translated into Latin as the famous De Veritate Religionis Christianae (1627). T o w a r d s the end o f his stay, h o w e v e r , his m i n d turned o n c e again to jurisprudence and political theory; in the early part o f 1620 he w r o t e an introduction to D u t c h l a w , the Inleiding tot de Hollandsche rechts-geleertheyd (published in 1631), and in the course o f the year f o l l o w i n g his escape he o b v i o u s l y decided to w r i t e a major treatise o n natural l a w . H e first m e n t i o n e d his project in a letter to his brother W i l l i a m in N o v e m b e r 1622 (Grotius 1936, p. 254). It w a s finished and rushed b y the printers to the Frankfurt b o o k fair in M a r c h 1625 under the title De Jure Belli ac Pads libri tres. T h e k i n g o f France received a dedicatory c o p y in 12. See, e.g., his remarks in De imperio, ch. ix,7 (1679, in, p. 248).

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Grotius and Seiden M a y . W h i l e the title (and the subsequent fate) o f the w o r k m i g h t suggest that it w a s m e r e l y concerned w i t h the l a w s o f w a r , G r o t i u s m a d e clear in the first sentence o f B o o k i that his subject-matter w a s 'all the differences o f those w h o d o not a c k n o w l e d g e one c o m m o n C i v i l R i g h t ' - in other w o r d s , his aim w a s to delineate the natural, pre-civil state o f m a n in great detail, t h o u g h since that state c o u l d be studied most easily in international relations he concentrated o n t h e m . T h e r e is not in fact m u c h stress o n the desirability o f peace — o n e o f his objects w a s still (as it had been in the De lure Praedae) to legitimate w a r . T h e w o r k s o f this period are those w h i c h m a d e G r o t i u s ' reputation in E u r o p e , and w h i c h led to his b e i n g hailed later as one o f the founders o f the E n l i g h t e n m e n t . B u t in fact they largely recapitulated and systematised ideas w h i c h he had first had up to t w e n t y years earlier. T h u s De Jure Belli builds o n the same distinction b e t w e e n the l a w o f nature and the divine positive l a w (or as he n o w called it, the divine ' v o l u n t a r y ' l a w ) w h i c h w e saw a d u m b r a t e d in the De imperio summarum Potestatum and the Defensio Fidei Catholicae. N a t u r a l l a w is the Rule and Dictate of R i g h t Reason, showing the Moral Deformity or Moral Necessity there is in any Act, according to its Suitableness or Unsuitableness to a reasonable Nature, and consequently that such an Act is either forbid or commanded by God, the Author of Nature. The Actions upon which such a Dictate is given, are in themselves either Obligatory or Unlawful, and must, consequently, be understood to be either commanded or forbid by God himself; and this makes the Law of Nature differ not only from Human Right, but from a Voluntary Divine Right; for that does not command or forbid things as they arc in themselves, or in their o w n Nature, Obligatory and Unlawful; but by forbidding, it renders the one Unlawful, and by commanding, the other Obligatory. (De Jure Belli, i.i.io: 1738, pp. 9-10) Elsewhere, he said in a n o t o r i o u s phrase that the l a w s o f nature w o u l d be valid ' t h o u g h w e should e v e n grant, w h a t w i t h o u t the greatest W i c k e d n e s s cannot be granted, that there is n o G o d , or that he takes n o C a r e o f h u m a n Affairs' (ibid., P r o l e g o m e n a 1 1 : 1738, p. x i x ) . T h i s did not, o f course, m e a n that G o d c o u l d n o t still be seen as in some sense the author o f the l a w s o f nature: he had after all m a d e m a n in such a w a y that his essence w a s that o f a rational, social b e i n g , and the w o r l d in such a w a y that society c o u l d not be preserved i f m e n b e h a v e d t o w a r d s one another in certain w a y s . B u t w h a t w a s really i m p o r t a n t and striking about G r o t i u s ' a r g u m e n t in the De Jure Belli ac Pads as m u c h as in the De lure Praedae w a s the account he g a v e o f the functional necessities for any social existence. O n c e again, his a r g u m e n t e s c h e w e d the rich and c o m p l e x Aristotelian account o f social 515

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life, w i t h its stress o n friendship and o n the d e v e l o p m e n t o f the virtues. Instead, it b e g a n as before w i t h a statement o f w h a t the sceptic believes (this time in the person o f Carneades, the famous head o f the sceptical A c a d e m y ) (ibid., P r o l e g o m e n a 5: 1738, p. x i v ) , and then p r o c e e d e d to find principles w h i c h c o u l d be c o m m o n g r o u n d b e t w e e n the relativist and the antirelativist; principles, that is, w h i c h e v e n the relativist w o u l d h a v e to c o n c e d e underlay any possible social life. T h e sceptical relativists w h o m G r o t i u s had in m i n d , such as M o n t a i g n e or C h a r r o n , had not questioned the possibility or e v e n the desirability o f social life as such; w h a t they had questioned w a s the universality o f any particular m o r a l principle. In particular, G r o t i u s still argued that the right o f self-preservation and the l a w against wanton injury w e r e the crucial foundations for any social life, i n c l u d i n g the m i n i m a l sociability o f international relations. R i g h t Reason, and the Nature of Society,-. . . does not prohibit all Manner of Violence, but only that which is repugnant to Society, that is, which invades another's Right: For the Design of Society is, that every one should quietly enjoy his o w n , with the Help, and by the united Force of the whole Community. It may be easily conceived, that the Necessity of having Recourse to violent Means for Self-Defence, might have taken Place, even tho' what w e call Property had never been introduced. For our Lives, Limbs, and Liberties had still been properly our own, and could not have been, (without manifest Injustice) invaded. So also, to have made use of Things that were then in common, and to have consumed them, as far as Nature required, had been the R i g h t of the first Possessor: And if any one had attempted to hinder him from so doing, he had been guilty of a real Injury. (ibid., 1.2.1: 1738, pp. 25-6) T h i s initial natural right o f c o n s u m i n g material objects w a s the basis for G r o t i u s ' account o f the acquisition o f p r o p e r t y , just as in the De lure Praedae, and his theories o f b o t h p r o p e r t y and punishment in the De Jure Belli ac Pads f o l l o w the De lure Praedae almost exactly ( w i t h one significant alteration, w h i c h w e shall e x a m i n e presently). B u t he w a s not m u c h clearer than he had been before about a n u m b e r o f the implications o f his general theory. First o f all, he n o w argued explicitly that traditional t h e o l o g y w a s o f v e r y little use to m o r a l p h i l o s o p h y , for the 'divine v o l u n t a r y l a w ' w h i c h actually applied to Christians w a s e x t r e m e l y slight. H e dismissed the w h o l e o f the l a w g i v e n to the J e w s as o b v i o u s l y g i v e n o n l y to t h e m . ' A L a w obliges, o n l y those, to w h o m it is g i v e n . A n d to w h o m that L a w is g i v e n , itself declares, Hear O Israel' (ibid., 1.1.16: 1738, pp. 17—18). E v e n the l a w g i v e n to believers t h r o u g h Christ, he argued, w a s o f a rather tenuous character; the n e w T e s t a m e n t s h o w s 516

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Grotius and Seiden what is lawful for Christians to do; which Thing itself, I have notwithstanding, contrary to what most do, distinguished from the Law of Nature; as being fully assured, that in that most holy Law a greater Sanctity is enjoined us, than the mere Law of Nature in itself requires. N o r have I for all that omitted observing, what Things in it are rather recommended to us than commanded, to the Intent w e may know, that as to transgress the commands is a Crime that renders us liable to be punished; so to aim at the highest Perfection, in what is but barely recommended, is the Part of a generous Mind. (ibid., Prolegomena 51: 1738, p. xxxiii) Christians, G r o t i u s argued, must a l w a y s be careful to distinguish b e t w e e n Christ's commands and his advice: the p r i m i t i v e Christians in their enthusiasm tended to confuse the t w o , but m u c h o f w h a t Christ said did not carry any o b l i g a t i o n , v i e w e d p r o p e r l y . O n the w h o l e , then, m e n (other than Jews) had to m a n a g e their lives w i t h the assistance o n l y o f the l a w s o f nature; and in religious affairs, those l a w s specified a m i n i m a l set o f beliefs w h i c h must be enforced o n all m e n . E v e r y t h i n g else should be left to the individual, all things b e i n g equal. T h e m i n i m a l set w e r e 'that there is a D e i t y , (one or m o r e I shall not n o w consider) and that this D e i t y has the C a r e o f h u m a n Affairs'; ' T h o s e w h o first attempt to destroy these N o t i o n s o u g h t , o n the A c c o u n t o f h u m a n S o c i e t y in general, w h i c h they thus, w i t h o u t any just G r o u n d s , injure, to be restrained.' T h e l a w s o f nature did n o t similarly prescribe any other religious beliefs — 'other general N o t i o n s , as that There is but one God, that No Object of our Sight is God, n o t the W o r l d , not the H e a v e n s , not the sun, n o r the A i r ; that The World is not eternal, nor its compound Matter, but that it was created by God, h a v e not the same D e g r e e s o f E v i d e n c e as the f o r m e r ' (ibid., 11.20.46,47: 1738, pp.444—5). T h e De Veritate Religionis Christianae confirms this: there, G r o t i u s argued that there are natural and rational g r o u n d s for religious feeling in general, but that Christianity is to be preferred o n l y because it is (so to speak) an 'ideal t y p e ' religion, capturing w i t h great clarity all that other religions also c o n t a i n . It f o l l o w e d that there w e r e n o g o o d g r o u n d s for enforcing Christianity u p o n n o n Christians, m u c h less enforcing a particular interpretation o f Christianity. 13

As for those w h o use professed Christians with Rigour, because they are doubtful, or erroneous as to some Points either not delivered in Sacred Writ, or not so clearly but to be capable o f various Acceptations, . . . they are undoubtedly very unjust . . . But suppose the Error to be more palpable, and such as one may be easily convicted of before equitable Judges, from the holy Scriptures, and from the 13. See particularly Grotius, De Veritate, 1.2-7, n . 8 - 1 6 (1679, in, pp. 4 - 7 , 36-44).

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concurrent Opinions of the primitive Fathers; even in this Case it is requisite to consider h o w prevalent the Force of a long standing Opinion is . . . Besides, to determine h o w criminal this is, it is requisite to be acquainted with the Degrees of Men's Understanding, and other inward Dispositions of Mind, which it is impossible for Men to find out. (De Jure Belli, 11.20.50: 1738, p. 449) His experiences since 1 6 1 9 had m a d e h i m clearer about the w i d e limits o f toleration than he had been w h e n e n g a g e d in the struggle w i t h the Counter-Remonstrants. T h e second implication o f his general t h e o r y w h i c h Grotius n o w m a d e explicit was its anti-Aristotelian character. W e saw that in effect he had a b a n d o n e d an Aristotelian m e t h o d o l o g y in the De lure Praedae but there is n o o p e n critique o f Aristotle in that w o r k . In the De Jure Belli ac Pads it is v e r y different: G r o t i u s in this w o r k r e m a r k e d that 'I c o u l d o n l y w i s h that the A u t h o r i t y o f this great M a n had not for s o m e A g e s past degenerated into T y r a n n y , so that T r u t h , for the d i s c o v e r y o f w h i c h Aristotle t o o k so great Pains, is n o w oppressed b y n o t h i n g m o r e than the v e r y N a m e o f Aristotle' (ibid., P r o l e g o m e n a 43: 1738, p . x x v i i i ) . In particular, he attacked the Aristotelian theories o f the virtues and o f justice: the virtues c o u l d n o t reasonably all be taken to consist in a mean, and the essential feature o f justice w a s respect for one another's rights, n o t any distributive principle (ibid., P r o l e g o m e n a 45: 1738, p. 30). B o t h these points w e r e straightfor w a r d l y related to his general t h e o r y . A s in the De lure Praedae, mathematics is the m o d e l for the m o r a l sciences in the De Jure Belli — 'as M a t h e m a t i c i a n s consider Figures abstracted f r o m B o d i e s , so I, in treating o f R i g h t s h a v e w i t h d r a w n m y M i n d f r o m all particular Facts' — and there is n o distinction b e t w e e n a theoretical and a practical science (ibid., P r o l e g o m e n a 59: 1738, p. x x x v ) . B u t this means that, at least in principle, a definite and a priori science o f ethics is possible, in w h i c h there, w i l l be little r o o m for individual j u d g e m e n t or the exercise o f phronesis. T h e idea that virtue is a m e a n is intimately b o u n d u p w i t h the idea that ethics is practical (in the Aristotelian sense), for the selection o f the m e a n point is essentially a matter o f skill and j u d g e m e n t , and cannot be reduced to the application o f a clear-cut rule. F u r t h e r m o r e , the basic provisions o f the l a w o f nature a c c o r d i n g to G r o t i u s relate to the r e c o g n i t i o n o f one another's rights and p r o p e r t y : justice is thus p r i m a r i l y the maintenance o f that natural m o r a l order, and o n l y secondar ily s o m e t h i n g to d o w i t h the distribution o f g o o d s . A f t e r the De Jure Belli, it w a s impossible for a n y o n e w h o w i s h e d to think about politics in a m o d e r n w a y — that is, in terms o f natural rights and the l a w s o f nature — to pretend that they w e r e still Aristotelians, and m u c h o f the criticism levelled at 518

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Grotius and Seiden G r o t i u s ' w o r k c a m e f r o m people w h o w e r e u n w i l l i n g to abandon the Aristotelian inheritance (e.g. Felden 1653). In addition to these general implications o f his theory, Grotius perceived that it had one consequence for his account o f b o t h p r o p e r t y and g o v e r n m e n t w h i c h he had o v e r l o o k e d in the earlier w o r k . G i v e n that the preservation o f the self w a s an o v e r r i d i n g principle and that it w a s to preserve themselves that m e n entered society, n o society c o u l d e x p e c t its m e m b e r s n o t to continue to preserve themselves f r o m w a n t o n attack. Necessity must be a legitimate plea, e v e n w i t h i n civil society; and this entailed a m o d i f i c a t i o n in his account o f private p r o p e r t y . G r o t i u s explained the origins and d e v e l o p m e n t o f p r o p e r t y in the same w a y as in De lure Praedae, but he n o w c o n c l u d e d that i f the point o f d i v i d i n g a c o m m o n w o r l d into private estates w a s to advance the interests o f the individuals concerned, then it w a s absurd to think that such a division w o u l d rule out the use o f another's possessions in extremis (De Jure Belli, 11.2.6: 1738, p . 149). For the same reasons he w a s n o w m u c h clearer about the continued existence o f a right o f resistance w i t h i n civil society. G i v e n that the point o f entering civil society is self-protection, there can be n o reason for not resisting w h e r e one's physical existence is at stake, unless one is b e i n g attacked b y m e n a g g r i e v e d b y one's o w n w a n t o n injury o f one o f their n u m b e r (ibid., 1 1 . 1 . 3 - 5 : 1738, pp. 1 3 1 - 3 ) . T h i s p r o v i s o is w h a t keeps his t h e o r y at this point f r o m sliding into H o b b e s ' , but the gap is n o t great, and H o b b e s h i m s e l f m a n a g e d to b r i d g e it fairly easily. C e r t a i n l y , traditional a r g u m e n t s for non-resistance to an aggressive and unjust s o v e r e i g n had n o appeal for Grotius, t h o u g h he c o n c e d e d that one o f the things w h i c h Christians (as distinct f r o m natural men) are o b l i g e d to d o is suffer death rather than resist. 14

In all other respects than one's personal survival, one can be c o m p l e t e l y subordinated to the demands o f civil society, and Grotius n o w argued that a p e o p l e c o u l d be similarly subordinated to their prince, r e m a r k i n g in a notorious passage that we must first reject their Opinion, w h o will have the Supreme Power to be always, and without Exception in the People; so that they may restrain or punish their Kings, as often as they abuse their Power. What Mischiefs this Opinion has occasioned, and may yet occasion, if once the Minds o f People arc fully possessed with it, every wise Man sees. I shall refute it with these Arguments. It is lawful for 14. This is the implication o f his contrast between the actions o f D a v i d or the Maccabei and those o f the primitive Christians: Grotius, De Jure Belli, 1.4.7 (1738, pp. 113, 1 1 5 - 1 7 ) .

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any Man to engage himself as a Slave to w h o m he pleases; as appears both by the Hebrew and Roman Laws. W h y should it not therefore be as lawful for a People that are at their o w n Disposal, to deliver up themselves to any one or more Persons, and transfer the R i g h t o f governing them upon him or them, without reserving any Share of that R i g h t to themselves? neither should you say this is not to be presumed: for the Question here is not, what may be presumed in a Doubt, but what may be lawfully done? In vain do some alledge the Inconveniences which arise from hence, or may arise; for you can frame no Form of Government in your Mind, which will be without Inconveniences and Dangers . . . but as there are several Ways o f Living, some better than others, and every one may chuse what he pleases of all those Sorts; so a People may chuse what Form of Government they please: Neither is the R i g h t which the sovereign has over his Subjects to be measured by this or that Form, o f which divers Men have divers Opinions but by the Extent o f the Will of those w h o conferred it upon him. (ibid., 1.3.8: 1738, p. 64) Characteristically, h a v i n g g i v e n support to absolutism in this passage, he w i t h d r e w m a n y o f its familiar supports elsewhere. T h e critical question in his eyes w a s , indeed, 'the w i l l o f those w h o conferred' the s o v e r e i g n p o w e r u p o n a person or institution. T h e superficial character o f the f o r m o f g o v e r n m e n t was uninstructive: m e n c o u l d be misled b y it into thinking that (for e x a m p l e ) a prince was superior to his States w h e n in fact historically and legally the reverse w a s the case. A great deal o f care w a s needed actually to distinguish the focus o f s o v e r e i g n t y in a state, and G r o t i u s m a d e a n u m b e r o f (to contemporaries) surprising claims — such as that s o v e r e i g n t y is not necessarily perpetual (and thus the R o m a n dictator w a s a sovereign) and that it m a y be divided, t h o u g h not in the w a y that m i x e d constitution theorists held — the e x a m p l e he g a v e w a s the later R o m a n E m p i r e , w i t h its t w o emperors (ibid., 1.3.17: 1738, p. 86). K i n g s w o u l d h a v e a hard time in practice p r o v i n g that they w e r e G r o t i a n sovereigns: w h a t mattered to Grotius b y 1625 w a s that there should be a definite sovereign in e v e r y state, not that it should be a m o n a r c h or any other similar institution. T h e De Jure Belli ac Pads represents G r o t i u s ' final and public break w i t h b o t h Aristotelianism and scepticism. In it he in effect p r o m u l g a t e d a manifesto for a n e w science o f m o r a l i t y , in w h i c h the radical disagreements o f the previous generation c o u l d be subsumed into a consensus on a minimalist m o r a l i t y and t h e o l o g y . B e y o n d this consensus, the w a y o f life or set o f beliefs w h i c h a m a n chose w e r e a matter o n l y for h i m , and a great variety w a s possible: 'there are several W a y s o f L i v i n g , s o m e better than others, and e v e r y one m a y chuse w h a t he pleases o f all those Sorts' (ibid., 520

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Grotius and Seiden 1.3.8: 1738, p . 64). T o a n y o n e w h o believed s t r o n g l y in the truth o f propositions b e y o n d the m i n i m a l core — as all G r o t i u s ' old C a l v i n i s t opponents in the Netherlands did — his v i e w s w e r e likely to be anathema, and his criticisms o f C a l v i n i s t doctrines in b o t h t h e o l o g y and politics seemed to m a n y o f t h e m to m e a n that he had s i m p l y deserted Protestantism for R o m e . T h i s w a s , o f course, far f r o m b e i n g the case; he remained t h r o u g h o u t his life a deviant Protestant (like all his major successors in this genre o f political theory) and n o t a C a t h o l i c . B u t his activities in the last t w e n t y years o f his life w e r e n o t calculated to w i n back any C a l v i n i s t support. H e w r o t e v e r y little straightforward political t h o u g h t f r o m 1625 until his death; largely a second and e x t e n d e d edition o f De Jure Belli ac Pads, and s o m e notes o n the C o r p u s Juris^Civilis, o n his o w n Introduction to the Jurisprudence of Holland, and o n C a m p a n u l a ' s Political Aphorisms. A l l simply restate the fundamental a r g u m e n t s o f the De Jure Belli. W h a t really e n g a g e d his attention w a s w o r k i n g out the full t h e o l o g i c a l implications o f his ideas, and he, did so in a series o f w o r k s published b e t w e e n 1638 and 1645. T h e i r c o m m o n t h e m e , already a d u m b r a t e d in his earlier w o r k , w a s that Christians are actually required to b e l i e v e v e r y f e w d o g m a s , and that the statements o f faith o f the major churches (and in particular the T r i d e n t i n e decrees and the Confession o f A u g s b u r g ) can be interpreted in a minimalist manner, such that a rational Christian can see h i m s e l f as part o f a universal Christian church w i t h a continuous history f r o m the time o f Christ to the present day. G r o t i u s w a s n o w absolutely clear about the irrelevance to Christianity o f the D e c a l o g u e . C a t h o l i c s cannot be c o n d e m n e d b y other Christians for idolatry, since the p r o h i b i tion o n g r a v e n i m a g e s in the ten c o m m a n d m e n t s referred e x c l u s i v e l y to the J e w s — there can be n o natural prohibition o n the kinds o f i m a g e s w h i c h C a t h o l i c s construct. ' C e r t a i n l y i m a g e s are forbidden b y a precept o f the D e c a l o g u e ; but since it is a positive precept, and one g i v e n to the H e b r e w s because o f particular circumstances, it n o m o r e obliges the n e w p e o p l e o f Christ, than the l a w o f the Sabbath. Images are aids to m e m o r y . ' In 1640 he published an extensive c o m m e n t a r y o n the D e c a l o g u e to m a k e this point e v e n clearer. In his old age, G r o t i u s (contrary to a c o m m o n expectation) b e c a m e progressively m o r e radical in his t h i n k i n g , particularly o n t h e o l o g y . R e a d i n g these later w o r k s , one has a strong sense o f a m a n excited b y his 1 5

15. Grotius, Commentatio ad loca quaedam Novi Testamenti quae de Antichristo agunt, A p p e n d i x (1679,111, P-485).

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o w n ideas, and conscious o f their n o v e l t y and i m p o r t a n c e . T h a t e x c i t e m e n t w a s infectious; G r o t i u s ' a c h i e v e m e n t in b o t h t h e o l o g y and m o r a l philos o p h y c a u g h t h o l d o f the i m a g i n a t i o n o f m a n y o f his readers in the late 1620s and 1630s. B u t it did so in part, like m o s t major ideas, because the g r o u n d w a s prepared: elsewhere in E u r o p e other p e o p l e had b e g u n to think a l o n g lines b r o a d l y similar to his, conscious like h i m o f the p r o b l e m s posed b y the irreconcilable religious and political conflicts o f the p r e v i o u s generation. In s o m e w a y s H o b b e s w a s the true heir o f Grotius, but his first heir w a s taken b y contemporaries to be another E n g l i s h m a n , Selden.

v

Selden

A l t h o u g h E n g l a n d had n o t itself suffered a civil w a r in the late sixteenth century, its survival as a nation had been c a u g h t up in one o f t h e m - the N e t h e r l a n d s civil w a r and the Spanish attempt to defeat the rebels t h r o u g h an invasion o f E n g l a n d . T h e p r o b l e m s o f the E u r o p e a n w a r s w e r e as starkly visible w e s t o f the N o r t h Sea as east o f it, and the m e n w h o ruled E n g l a n d in the late sixteenth century w e r e cast to a great extent in the same m o u l d as O l d e n b a r n e v e l t (the circle o f the earl o f Essex, for e x a m p l e , fostered the same k i n d o f T a c i t i s m as the Lipsians in the Netherlands, France, and Spain). James I disliked this intellectual style, preferring t h e o l o g i c a l verities, but e v e n under h i m and c o m p l e t e l y under his son, E n g l i s h m e n w e r e a w a r e o f its attractions and limitations. Selden g r e w up in v e r y m u c h the same intellectual w o r l d as G r o t i u s , t h o u g h his social b a c k g r o u n d w a s quite different. H e w a s the son n o t o f an urban aristocrat but o f a y e o m a n farmer in Sussex, and he did n o t m o v e b y birthright in the w o r l d o f international scholarship, but b y his o w n efforts in a relatively o p e n educational system. B o r n in 1584, he w a s spotted as e x c e p t i o n a l l y b r i g h t at the local g r a m m a r school, and w a s sent to an inexpensive Hall at O x f o r d . E n c o u r a g e d b y his tutor and friends there to m a k e the l a w his career, o n s o m e r e c o m m e n d a t i o n s f r o m O x f o r d he b e c a m e the legal agent o f the earls o f K e n t , as w e l l as d e v e l o p i n g a practice as an a d v o c a t e . His financial and political fortunes continued to be dependent o n the g o o d w i l l o f the K e n t s and their friends in a g r o u p o f politically active and i n d e p e n d e n t - m i n d e d n o b l e m e n . H e resided for m u c h o f his life in the K e n t s ' household, in his later years as the generally a c k n o w l e d g e d l o v e r o f the w i d o w e d countess o f K e n t . In the 1620s and 16

16. For Selden's life, see the D N B article b y E d w a r d Fry, Christianson 1984 and T u c k 1982.

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Grotius and Seiden again in the 1640s he w a s a m e m b e r o f parliament, in the f o r m e r decade one o f the leaders o f the opposition to B u c k i n g h a m and in the latter a central figure a m o n g the m o d e r a t e parliamentarians (his decision to stick b y parliament in the C i v i l W a r b e i n g seen as h i g h l y significant b y contemporaries). A s a y o u n g m a n his interests and attitudes w e r e v e r y similar to those o f the y o u n g Grotius. L i k e the D u t c h m a n , the E n g l i s h m a n w r o t e b o t h p o e t r y and history, and m i x e d w i t h poets and dramatists. His historical w r i t i n g s , also, w e r e c o n c e r n e d w i t h the antiquity o f his c o u n t r y ' s constitution and its legal order; and in a remarkable piece o f s y n c h r o n y w i t h Grotius, he argued in a w o r k w r i t t e n before the De Antiquitate Reipublicae Batavicae w a s published that the ancient constitution o f p r e - R o m a n Britain, like that o f other p r e - R o m a n peoples, w a s a pure aristocracy w i t h n o trace o f kingship. In a series o f w o r k s w r i t t e n b e t w e e n 1607 and 1617 he outlined apolitical history o f the English l a w — a history in w h i c h the themes o f the Tacitist (necessity and reason o f state) w e r e d e p l o y e d to explain the changes in the English legal system. T h e history o f E n g l a n d as he saw it w a s one o f conflict b e t w e e n interest-groups — kings, barons, and c o m m o n s — w h i c h p e r i o d i cally reached a g r e e m e n t a b o u t the terms on w h i c h they c o u l d coexist. F u n d a m e n t a l d o c u m e n t s like M a g n a C a r t a w e r e testimony to this process; he described it as 'an instrument o f public liberties, t h r o u g h m e d i a t i o n o f w h a t is a b o v e all l a w , n e c e s s i t y ' . B u t the similarity w i t h G r o t i u s goes e v e n further. L i k e the U n i t e d P r o v i n c e s , E n g l a n d faced in the first t w o decades o f the century a conflict b e t w e e n different kinds o f Protestantism ( t h o u g h unlike the U n i t e d P r o v i n c e s , the g o v e r n m e n t in E n g l a n d n e v e r supported the A r m i n i a n s in their calls for help f r o m the state: James f i r m l y b a c k e d the C o u n t e r R e m o n s t r a n t s at the S y n o d o f D o r t ) . T h e r e is n o d o u b t that Selden i m m e d i a t e l y sympathised w i t h the c a m p a i g n against independent ecclesiastical authority, and in 1 6 1 7 , the year o f the 'Stern R e s o l u t i o n ' , he published his famous History of Tithes, w i t h a preface containing a denunciation o f the malicious, lazy, and ignorant c l e r g y w h o o v e r the centuries had b l o c k e d intellectual p r o g r e s s . T h e principal a r g u m e n t o f the w o r k is v e r y close to G r o t i u s ' m u c h m o r e general t h e m e in the De imperio summarum potestatum, n a m e l y that there is n o conceptual difference 17

18

19

17. Selden, Analecton Anglo-Britannicon, ch. m (1726, 11, cols. 877-9). 18. Selden, England's Epinomis, ch. x (1726, m, col. 41). 19. Selden, The History of Tithes, Preface (1726, 111, p. 1073).

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b e t w e e n 'religious' and 'secular' matters, and that b o t h c o m e under the civil l a w . Selden chose as his e x a m p l e o f this the history o f tithes, b e l i e v i n g that it s h o w e d particularly w e l l that 'sacred' things w e r e s i m p l y things w h i c h the civil s o v e r e i g n had decided to allocate to ecclesiastical purposes. T h e w o r k occasioned a great deal o f opposition, b o t h f r o m c l e r g y m e n in the church o f E n g l a n d and f r o m the g o v e r n m e n t . Selden w a s s u m m o n e d before the p r i v y c o u n c i l to explain his v i e w s , but an adroit use o f internal court politics enabled h i m to escape any further action — Selden k n e w quite w e l l h o w to live in an A n c i e n R e g i m e . T h o s e court politics in fact led in the f o l l o w i n g year to Selden b e i n g c o m m i s s i o n e d to w r i t e a reply to G r o t i u s ' Mare Liherum. T h e English claimed exclusive fishing rights in the N o r t h Sea, and G r o t i u s in an aside in the Mare Liherum had criticised this as unreasonable. James n o w w a n t e d a reply to the D u t c h insistence o n continued fishing in English waters. Selden had already considered w r i t i n g a treatise o n m a r i t i m e jurisdiction, for the similarity b e t w e e n his ideas and G r p t i u s ' c o u l d n o t h a v e been o v e r l o o k e d b y h i m (Grotius visited E n g l a n d in 1 6 1 3 , and they had several friends in c o m m o n , but there is n o e v i d e n c e that they e v e r m e t ) . His Mare Clausum as w e actually h a v e it, h o w e v e r , is a p r o d u c t o f another seventeen years' reflection o n Grotius, i n c l u d i n g a careful reading o f the De Jure Belli ac Pads, for c h a n g i n g international politics in 1618 determined that the b o o k should n o t be published as it stood. It finally appeared during another fishing crisis in 1635, and w a s greeted w i t h enthusiasm b y readers such as H o b b e s and — t h o u g h , o f course, w i t h reservations — b y G r o t i u s h i m s e l f . It w a s f o l l o w e d five years later b y a w o r k w h o s e c o m p o s i t i o n had been eagerly f o l l o w e d b y the leaders o f E u r o p e a n intellectual life, particularly the g r o u p associated w i t h M a r i n Disdplinam M e r s e n n e in Paris — the De lure Naturali et Gentium juxta B o t h the De lure Naturali et Gentium and the Mare Clausum Ebraeorum. d e p l o y similar arguments, t h o u g h the u n d e r l y i n g theoretical assumptions o f Selden in the late 1630s are m u c h clearer in the later (and far longer) work. A s its full title suggest, the De lure Naturali et Gentium had o n the face o f it a h i g h l y idiosyncratic purpose — to e x a m i n e the classical Jewish a c c o u n t o f the l a w s o f nature. Selden d r e w o n a w i d e range o f H e b r e w literature, but his principal source w a s the T a l m u d . H e w a s a w a r e that his project m i g h t 20

21

20. See Hobbes 1839-453, v n , p. 454; Historical Manuscripts C o m m i s s i o n 1893, p. 128; Grotius 1967, p. 461; Grotius 1969, p. 133. 21. Mersenne 1963, p p . 3 1 8 , 357, 1967, p. 294.

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Grotius and Seiden seem peculiar, and he d e v o t e d the first b o o k o f the w o r k to an explanation o f w h y he chose to w o r k f r o m H e b r e w sources. L i k e G r o t i u s in the De Jure Belli ac Pads, Selden t o o k the m o r a l scepticism o f Carneades v e r y seriously. O n e chapter o f the De lure Naturali et Gentium, like the P r o l e g o m e n a to De Jure Belli ac Pads, centres o n C a r n e a d e s ' claim that there can be n o universal l a w o f nature because o f the widespread and fundamental m o r a l disagreement b e t w e e n societies (De lure Naturali, 1.6,7: 1 7 2 5 , 1 , cols. 1 3 1 , 1 3 8 ) . Selden entirely accepted the force o f C a r n e a d e s ' point against traditional m o r a l p h i l o s o p h y , and he added s o m e o f the familiar arguments o f other sceptics (including the famous story in H e r o d o t u s about the confrontation b e t w e e n a horrified G r e e k and an equally horrified Indian o v e r their different funeral practices). B u t , like Grotius, Selden t o o k his task to be the d i s c o v e r y o f general m o r a l principles w h i c h e v e n a sceptic o f the Carneades t y p e w o u l d h a v e to accept. A c c o r d i n g to Selden, scepticism w a s entirely justified i f directed against the idea that w e can naturally and veridically perceive a m o r a l reality — the idea w h i c h he associated w i t h Aristotle and w i t h m e d i e v a l Aristotelianism. B u t it w a s n o t justified i f it denied the existence o f any m o r a l o b l i g a t i o n w h a t s o e v e r , for he argued that to be under an o b l i g a t i o n is to be in the p o w e r o f s o m e superior w h o s e punishments w e fear. ' T h e idea o f a l a w c a r r y i n g o b l i g a t i o n irrespective o f any punishment annexed to the v i o l a t i o n o f it . . . is n o m o r e comprehensible to the h u m a n m i n d than the idea o f a father w i t h o u t a child' (ibid., 1.4: 1 7 2 6 , 1 , c o l . 106). W i t h o u t such a superior to lay an o b l i g a t i o n u p o n t h e m , he several times emphasised, m e n w o u l d be in a state o f total m o r a l freedom; there w a s n o t h i n g in man's nature w h i c h i m p l i e d the existence o f any laws o f nature. B u t this state o f m o r a l f r e e d o m w a s limited and ordered o n c e m e n recognised that pain and destruction c o u l d be a v o i d e d o n l y i f they o b e y e d the c o m m a n d s o f s o m e b e i n g in w h o s e p o w e r they lay. A sceptic m i g h t accept that there w a s such a b e i n g , n a m e l y G o d , but still raise questions a b o u t h o w confident w e c o u l d be about the content o f w h a t G o d has c o m m a n d e d . Here, Selden used t w o interlinked arguments. O n the one hand, w e possess (he claimed) a reasonably g o o d historical record o f G o d ' s p r o n o u n c e m e n t s to the w h o l e o f m a n k i n d , in the f o r m o f the seven praecepta Noachidarum, the l a w s g i v e n to N o a h ' s sons after the F l o o d . T h e s e d o not appear in the B i b l e , but w e r e the subject o f m u c h T a l m u d i c speculation, and w e r e presented b y Selden as the f o l l o w i n g . M e n must abstain f r o m (1) idolatry, (2) cursing the divine n a m e , (3) m u r d e r , (4) adultery, (5) theft. T h e y must (6) institute j u d g e s to ensure these precepts 525

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are f o l l o w e d , and (7) abstain f r o m eating the flesh o f l i v i n g animals. T h i s last p r o h i b i t i o n w a s regarded b y Selden as a m i n o r and subsidiary matter; the first six g a v e the m i n i m a l content o f the l a w o f nature, and indeed o f any social life (ibid., 1.10: 1726, 1, c o l . 158). O n the other hand, e v e n before the F l o o d and e v e n a m o n g m e n sundered f r o m k n o w l e d g e o f it, h u m a n beings (Selden argued) can apprehend w h a t G o d requires o f t h e m . T h e y d o so t h r o u g h the 'active intellect'; but it is i m p o r t a n t to stress that Selden t o o k great care n o t to let his use o f this n o t i o n put h i m back in the scholastic tradition w h i c h he despised. W h a t he did w a s to resurrect and entirely endorse in a v e r y e x t r e m e m a n n e r the A v e r r o i s t i c tradition (found also in J a c o p o Zabarella and B o d i n ) , a c c o r d i n g to w h i c h there is an active intellect exterior to individual m e n w h i c h p r o v i d e s t h e m w i t h direct k n o w l e d g e o f reality, i n c l u d i n g m o r a l r e a l i t y . T h e a n a l o g y he and the others in this tradition used w a s w i t h a light illuminating an object and thereby a l l o w i n g the e y e to see: the h u m a n m i n d is like the e y e , and can malfunction in various w a y s , b u t it can in principle determine the nature o f objects o n c e they are illuminated b y the active intellect, w h i c h is in s o m e sense outside the m i n d . H e c o n d e m n e d the late m e d i e v a l t h e o r y a c c o r d i n g to w h i c h the active intellect w a s a natural part o f the m i n d , u p h o l d i n g R o g e r B a c o n (a hero also o f the preface to the History of the Tithes) as s o m e o n e w h o had seen the truth but w h o s e v i e w s had been s w a m p e d and stigmatised as heretical b y Aristotelians. 22

It is n o t clear that he had understood the A v e r r o i s t position; but w h a t is clear is that the active intellect o n Selden's a c c o u n t is an external p o w e r , literally identifiable w i t h G o d (or perhaps, he added, w i t h the angels), w h i c h can g i v e h u m a n beings a direct revelation o f w h a t G o d requires o f t h e m , c o m p a r a b l e to the m o r e concrete revelation the sons o f N o a h received. T h i s is c o m p a t i b l e w i t h his v i e w that the best means o f d e t e r m i n i n g G o d ' s requirements is t h r o u g h the text o f the praecepta, for just as the best means in practice o f understanding g e o m e t r y is n o t to w o r k it o u t for oneself f r o m first principles ( t h o u g h one m i g h t be able to d o so), but to read Euclid, so the best w a y o f establishing securely the contents o f the l a w o f nature is to l o o k at the historical record o f G o d ' s p r o n o u n c e m e n t s to men. Selden's general t h e o r y , for all its idiosyncracies, thus lay squarely in the

22. Selden, De lure Naturali, 1.9 (1726, 1, cols. 1 5 2 - 7 ) . For B o d i n and Zabarella, see col. 156 note t; S o m m e r v i l l e 1984.

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Grotius and Seiden G r o t i a n , anti-Aristotelian tradition. Scholasticism as he understood it in its p o s t - A q u i n a s f o r m w a s fundamentally flawed b y its naive ethical natural ism and its reliance o n Aristotle, and the sceptical critique o f this k i n d o f l a w o f nature w a s entirely justified. B u t a post-sceptical m o r a l science w a s possible, and he shared G r o t i u s ' general sense that self-preservation (in the f o r m o f his account o f fear o f divine punishment) w o u l d be a k e y to its creation. H e g a v e t w o hints about its character w h i c h w e r e to be o f great i m p o r t a n c e to his successors. O n e w a s that w e can c o n c e i v e o f m e n b e i n g totally free prior to the i m p o s i t i o n o f a l a w o f nature; as Selden said, he hypothesised this just as a g e o m e t e r hypothesises an infinite line, but it w a s a conceptual possibility (De lure Naturali, 1.4: 1726,1, c o l . 105). It w a s not part o f the nature or essence o f m e n that they w e r e under m o r a l obligations. T h e other w a s that o u r clear and distinct idea o f w h a t G o d requires o f us c o u l d be the basis for an account o f natural l a w w h i c h w o u l d escape the sceptical criticisms o f traditional naturalism. In the w r i t i n g s o f b o t h H o b b e s and L o c k e w e can find these hints taken up and their implications e x p l o r e d w i t h o u t Selden's u n w i e l d y scholarship and amateur metaphysics. U p o n this foundation, Selden w a s able to erect his critique o f Grotius. First, the strong distinction b e t w e e n natural l a w and divine v o l u n t a r y l a w , u p o n w h i c h G r o t i u s set such store, w a s , o f course, utterly obliterated and divine v o l u n t a r y l a w reinstated as the source o f natural l a w , t h o u g h w i t h the i m p o r t a n t p r o v i s o that o n l y w h e n G o d spoke universally to m e n did he lay d o w n l a w s o f nature. T h e D e c a l o g u e w a s as uninteresting to Selden as it had b e c o m e to G r o t i u s . (This w a s a point m a d e already in the Mare Clausum.) 23

S e c o n d , the fifth praeceptum w a s a ban o n theft, w h i c h Selden interpreted w i d e l y as l e g i t i m a t i n g private p r o p e r t y and enforcing the principle that contracts must be kept. Since this c o m m a n d w a s enforced b y divine penalties, n o h u m a n calamity c o u l d be pleaded against it: the claim o f necessity had n o place in h u m a n society i f contracts w e r e to be kept. A s so often, Selden put the matter most p u n g e n t l y in Table Talk, a collection o f his remarks edited after his death b y one o f his friends. ' I f I sell m y lands, and w h e n I h a v e done, one c o m e s and tells m e I h a v e n o t h i n g else to k e e p m e . I and m y w i f e and children must starve, i f I part w i t h m y land. M a y I therefore not let t h e m h a v e m y land that h a v e b o u g h t it, and paid for i t ? ' F u r t h e r m o r e , contracts e v e n about such things as the sea, w h i c h c o u l d not 24

23. Selden, De lure Naturali, 1.3 (1726, 1, cols. 100-5); Selden, Mare Clausum, 1.4 (1726, 11, col. 1193); Selden, Table Talk, 'Sabbath' (1726, 111, col. 2069). 24. Selden, Table Talk, ' L a w ' (1726, 111, col. 2041).

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be justified in terms o f their necessity for the satisfaction o f material needs, c o u l d still be b i n d i n g . T h i s w a s the heart o f Selden's case against G r o t i u s in the Mare Clausum, t h o u g h he also a r g u e d that m e r e abundance did not rule out o w n e r s h i p — the w h o l e earth w a s as abundant as the sea, y e t it w a s quite c o n c e i v a b l e for s o m e o n e to o w n it all (as the R o m a n emperors had claimed t o ) . 25

H o w e v e r , Selden's critique stopped at this point. H e fully endorsed most o f the other features o f G r o t i u s ' theory, such as his anti-clericalism and his account o f s o v e r e i g n t y ; he argued h i m s e l f that v o l u n t a r y slavery b o t h o f individuals and o f w h o l e nations w a s perfectly possible — contracts must be k e p t w h a t e v e r the consequence. If our fathers had lost their liberty, w h y may not w e labour to regain it? Answer. W e must look to the contract, if that be rightly made, we must stand to it. If w e once grant w e may recede from contracts, upon any inconveniency that may afterwards happen, w e shall have no bargain kept. If I sell you a horse, and you do not like my bargain, I will have my horse again. 26

B u t also like Grotius, he w a s n o t sure w h a t in any instance represented the sovereign in a society. T h i s c a m e out clearly w h e n the English C i v i l W a r b e g a n : in 1642 he w r o t e strongly against the k i n g ' s attempts to raise an a r m y using commissions o f array, a r g u i n g that w i t h o u t any specific right the k i n g c o u l d d o n o t h i n g . His chief scorn w a s directed at the claim b y the k i n g ' s ministers that the k i n g had a right to raise an a r m y b y virtue o f public necessity: g i v e n that the plea o f necessity, in Selden's v i e w , c o u l d n e v e r be used within the legal order, the k i n g ' s use o f it w a s equivalent to an admission that civil order had c o m p l e t e l y b r o k e n d o w n , and w i t h it his o w n special position w i t h i n the society. Selden said the same about parliament's similar use o f necessity as a justification for its Militia Ordinance: whereas necessity is pretended to be a ground of this ordinance, that can be no true ground of it, for in that case where there is a true and an apparent necessity every man hath as great a liberty to provide for his own safety as the two Houses of Parliament; neither can any civil court pretend to do anything out of necessity which they cannot do by the ordinary rules of law and justice, so when such a real necessity come there must be a stop of the courts of justice. (Tuck 1982, p. 149) In the end, h o w e v e r , he stuck b y parliament: in time o f w a r , it w a s better that the people o f E n g l a n d should w i n than that their k i n g should d o so. 25. Selden, Mare Clausum, 1.22 (1726, 11, col. 1260). 26. Selden, Table Talk, 'Contracts' (1726, m, col. 2024).

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Grotius and Seiden His last years, before his death in 1654, w e r e spent o n an extension o f the De lure Naturali et Gentium into the realm o f m o r e specifically political t h o u g h t , w i t h an a c c o u n t o f the p o w e r o f the H e b r e w S a n h e d r i m . T h e centre o f the w o r k is an attack o n ecclesiastical p o w e r , and a demonstration that the S a n h e d r i m had possessed all religious rights i n c l u d i n g the right to e x c o m m u n i c a t e ; it w a s bitterly resented b y c o n t e m p o r a r y A n g l i c a n s , t h o u g h enthusiastically w e l c o m e d b y the leaders o f the Independent party w h o w e r e n o w in p o w e r in E n g l a n d ( A n o n . 1849, p . 148). Selden w a s b y n o w a close friend o f H o b b e s ( w h o had sent h i m a c o m p l i m e n t a r y c o p y o f Leviathan), and the De Synedriis reflects m a n y o f the same concerns as B o o k s 3 and 4 o f Leviathan. T h e b o o k also contains a discussion o f the Sanhedrim's p o w e r to try the k i n g s o f Israel, in w h i c h Selden j u d i c i o u s l y refrained f r o m d e n o u n c i n g it as a usurpation o f s o v e r e i g n t y (a d e n u n c i ation usually m a d e in earlier c o m m e n t a r i e s o n the H e b r e w constitution). T h e respect in w h i c h he w a s held b y the rulers o f the n e w republic is w e l l illustrated b y the fact that C r o m w e l l in 1653 considered a p p r o a c h i n g h i m and O l i v e r St J o h n to draft a n e w constitution for E n g l a n d . It w a s also r u m o u r e d in 1650 that he w a s to be a p p r o a c h e d to answer C l a u d i u s Salmasius' Defensio Regia, a task w h i c h e v e n t u a l l y fell to one o f Selden's great admirers, J o h n M i l t o n . Selden deserved his place in the seventeenth- a r i eighteenth-century 'histories o f m o r a l i t y ' , and has n o t deserved his subsequent o b l i v i o n . A s w e h a v e seen, he w a s neither a simple epigone o f G r o t i u s n o r a m e a n - m i n d e d critic: he p r o v i d e d an extension and modification o f the t h e o r y o f natural l a w w h i c h G r o t i u s had d e v e l o p e d . Each o f t h e m built o n their y o u t h f u l enthusiasm for the n e w politics o f Lipsius and his followers; Grotius to a great extent incorporated it into a n e w t h e o r y o f the m o r a l life, w h i l e Selden m a d e a m u c h crisper distinction b e t w e e n the arena o f l a w and that o f necessity. B u t t o g e t h e r they presented their readers w i t h the possibility o f a n e w science o f m o r a l i t y , an a c c o u n t o f natural l a w in o p e n l y antiAristotelian and post-sceptical terms, and it w a s the modification and extension o f this science w h i c h w a s to p r e o c c u p y their successors in the seventeenth century. 2 7

27. A n o n . 1849, p. 147; Patin 1846, 1, p. 17; T u c k 1982, p. 137.

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i

MALCOLM

Hobbes

When the Parliament sat, that began in April 1640, and was dissolved in May following, and in which many points o f the regal power, which were necessary for the peace of the kingdom, and the safety of his Majesty's person, were disputed and denied, Mr Hobbes wrote a little treatise in English, wherein he did set forth and demonstrate, that the said power and rights were inseparably annexed to the sovereignty; which sovereignty they did not then deny to be in the King; but it seems understood not, or would not understand that inseparability. O f this treatise, though not printed, many gentlemen had copies, which occasioned much talk o f the author and had not his Majesty dissolved the Parliament, it had brought him into danger o f his life. (Hobbes i839~45a, iv, p. 414) S u c h w a s H o b b e s ' o w n account, w r i t t e n t w e n t y - o n e years later, o f the origins o f his first w o r k o f political theory, The Elements of Law. H o b b e s had h i m s e l f been an unsuccessful candidate for election to the Short Parliament (Beats 1978, p p . 74—6), so n o d o u b t he f o l l o w e d its proceedings closely. T h e disputed 'points o f the regal p o w e r ' e m e r g e d most p o i n t e d l y in J o h n P y m ' s famous speech o f 17 A p r i l , w h i c h asserted fundamental constitutional rights o f parliament against the c r o w n ('Parliament is as the soule o f the c o m m o n w e a l t h ' , 'the intellectual parte w h i c h G o v e r n e s all the rest') and attacked 'the D o c t r i n e that w h a t p r o p e r t y the subject hath in any thinge m a y be l a w f u l l y taken a w a y w h e n the K i n g requires it'. T h e latter point w a s taken u p b y Sir J o h n S t r a n g w a y s o n the f o l l o w i n g day: 'for if the K i n g e be j u d g e o f the necessitye, w e h a v e n o t h i n g and are but Tennants at w i l l ' ( C o p e and C o a t e s 1977, p p . 149, 1 5 5 , 159). T h e k i n g dissolved this parliament o n 5 M a y . F o u r days later H o b b e s signed the dedicatory epistle o f his treatise, w h i c h w a s addressed to his patron, the staunchly royalist earl o f N e w c a s t l e ; he explained that the 530

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principles he w a s e x p o u n d i n g w e r e 'those w h i c h I h a v e heretofore acquainted y o u r Lordship w i t h a l in private discourse, and w h i c h b y y o u r c o m m a n d I h a v e here put into m e t h o d ' ( H o b b e s 1928, p . x v i i ) . T h e p o l e m i c a l purpose o f the w o r k is evident, and is reflected in its circulation in n u m e r o u s manuscript copies, at least nine o f w h i c h survive. (Three o f t h e m w e r e w r i t t e n b y scribes and signed b y H o b b e s : this suggests a f o r m o f clandestine publication b y a production-line o f copyists.) H o b b e s ' a r g u m e n t w a s designed to s h o w first o f all that g o v e r n m e n t b y a civil s o v e r e i g n w a s necessary, and secondly that the reasons w h i c h m a d e it necessary also m a d e the s o v e r e i g n t y absolute. H e attacked those w h o ' h a v e i m a g i n e d that a c o m m o n w e a l t h m a y be constituted in such a manner, as the s o v e r e i g n p o w e r m a y be so limited, and moderated, as they should think fit themselves'; he s o u g h t to o v e r t u r n the claim that the sovereign p o w e r can be ' d i v i d e d ' or shared b e t w e e n k i n g and people, and (in a transparent reference to the recent p r o c e e d i n g s in parliament) he d e n o u n c e d those w h o ' w h e n they are c o m m a n d e d to contribute their persons or m o n e y to the public service . . . think they h a v e a p r o p r i e t y in the same distinct f r o m the d o m i n i o n o f the s o v e r e i g n p o w e r ' (n.i.13, n.viii.4, 1928, p p . 68, 135). It w a s H o b b e s ' a r g u m e n t o n this last point a b o v e all w h i c h m a d e h i m fear for his life w h e n the n e x t parliament assembled in N o v e m b e r and b e g a n its i m p e a c h m e n t o f Strafford ( A u b r e y 1898,1, p. 334; Z a g o r i n 1978). W i t h i n a f e w days H o b b e s fled to Paris, w h e r e he w a s to remain for eleven years; and it w a s there that he w r o t e his t w o other major w o r k s o f political t h e o r y (De Give, printed in 1642, and Leviathan, printed in 1651), each o f w h i c h in turn d e v e l o p e d and added to the arguments o f The Element s-of Law. T h a t H o b b e s ' career as a political w r i t e r should h a v e b e g u n w i t h a p o l e m i c a l l y royalist w o r k in 1640 is, in b i o g r a p h i c a l terms, not v e r y surprising. His entire adult life, since his graduation f r o m O x f o r d in 1608, had been spent in the service o f aristocratic families as a tutor, secretary, and c o m p a n i o n . E m p l o y e d at first b y the C a v e n d i s h family at H a r d w i c k and C h a t s w o r t h , he had gained s o m e experience o f quasi-public affairs c o o p e r a t i n g w i t h the second earl o f D e v o n s h i r e as an active m e m b e r o f the V i r g i n i a C o m p a n y ( M a l c o l m 1981). In 1629 (prompted, it has been suggested, b y the Petition o f R i g h t o f the p r e v i o u s year: R e i k 1977, p . 37) he had published a translation o f T h u c y d i d e s , w h o appealed to h i m for his 1

/

1. These three M S S are: B L H a d . M S 4235; C h a t s w o r t h , Hobbes M S S A 2 B and A 2 A (which n o w lacks the dedication, but cf. the description in T o d d 1973).

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dispassionate analysis o f the w a y s in w h i c h d e m o c r a t i c g o v e r n m e n t s could be corrupted and manipulated. For m o s t o f the 1630s H o b b e s w a s a tutor to the y o u n g third earl o f D e v o n s h i r e ; wardship o v e r the y o u n g earl w a s exercised b y his cousin, the earl o f N e w c a s t l e , w h o helped to a w a k e n H o b b e s ' philosophical interests and n o d o u b t his royalist sympathies. The Elements of Law is not, h o w e v e r , simply a piece o f royalist propaganda. Its i m p o r t a n c e lies in the w a y that it derives its political conclusions f r o m a set o f philosophical assumptions. H o b b e s ' philosophical a w a k e n i n g had taken place, it seems, during the 1630s w h e n he had b e c o m e p r e o c c u p i e d w i t h an area o f o v e r l a p p i n g fundamental p r o b l e m s in physics, metaphysics, and e p i s t e m o l o g y . H e had adopted enthusiastically the Galilean principle o f the subjectivity o f secondary qualities; this meant that a secondary quality such as heat did not inhere in a ' h o t ' object, but w a s a feature o f the experience o f s o m e o n e p e r c e i v i n g that object, and c o u l d be causally explained in terms o f the p r i m a r y qualities w h i c h b e l o n g e d to the object itself (such as the shape and m o t i o n o f its particles). For H o b b e s , this principle w a s a lever w h i c h c o u l d be used to o v e r t u r n scholastic physics and metaphysics. H e attacked the n o t i o n that the ultimate reality o f physical things consisted in their intelligible ' f o r m s ' or 'essences'; scholastic p h i l o s o p h y had used this explanation to account for the w a y in w h i c h our process o f sense-perception begins w i t h the. action o f physical causes (light acting o n the e y e , for e x a m p l e ) but ends w i t h an immaterial mental object in the intellect. M o s t m e d i e v a l philosophers, d r a w i n g o n a m i x t u r e o f Aristotelian and N e o p l a t o n i s t t h o u g h t , had distinguished b e t w e e n physical existence and n o n - p h y s i c a l intelligibility ('esse existentiae' and 'esse essentiae'), and had subordinated the f o r m e r to the latter in the order o f real b e i n g . A tree physically existed b y virtue o f b e i n g an expression o f the essence o f a tree, and so the m i n d c o u l d abstract this essence f r o m its perceptions o f a tree's physical properties. T h i s v i e w o f the w o r l d as constituted b y intelligible essences had usually also assumed that these essences w e r e systematically related to each other in an e c o n o m y o f perfection: they all participated in absolute B e i n g , w h i c h w a s unitary and w a s derived f r o m (or w a s perhaps identical w i t h ) G o d . T h e rational order o f the w h o l e system c o u l d be described in terms o f the l a w s o f reason or l a w s o f nature w h i c h g o v e r n e d all its parts. T h i s w a y o f describing things g a v e rise to a w a y o f v a l u i n g t h e m : a thing b e c a m e better the m o r e it fulfilled its essential nature, and thereby fulfilled its place in the w h o l e system o f essences. T h e m o r e arboreal a tree w a s , the m o r e it expressed its essential nature. H u m a n beings also had an innate t e l e o l o g y to 532

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fulfil, but as rational beings they w e r e conscious o f their o w n ends and w e r e able to direct their actions t o w a r d s t h e m . In R i c h a r d H o o k e r ' s w o r d s , ' A l a w therefore generally taken, is a directive rule u n t o goodness o f operation . . . T h e rule o f natural agents that w o r k b y simple necessity, is the determination o f the w i s d o m o f G o d . . . T h e rule o f v o l u n t a r y agents o n earth is the sentence that R e a s o n g i v e t h c o n c e r n i n g the goodness o f those things w h i c h they are to d o ' (Laws of Ecclesiastical Polity, i.viii.4, 1888, 1, p. 228). H o b b e s rejected this n o t i o n o f reason intuiting natural teleological values, because he rejected the metaphysics and t h e o l o g y f r o m w h i c h those values w e r e derived. His m o s t t h o r o u g h attack o n the old metaphysics c a m e in a m o n u m e n t a l refutation o f a w o r k b y a C a t h o l i c Aristotelian, T h o m a s W h i t e ; this refutation, w h i c h remained unpublished till 1973, w a s written in 1642—3. T h e fundamental principle f r o m w h i c h H o b b e s argued in this w o r k w a s that o f G o d ' s f r e e d o m to create the w o r l d if, h o w , and w h e n he pleased (1973, chs. 30—4), a principle w h i c h severed any intrinsic c o n n e c t i o n b e t w e e n the natures o f created things and the nature o f G o d , and reduced 'essences' to mere descriptions o f existing things (p. 381). T h e s e metaphysical assumptions can already be seen at w o r k in an earlier manuscript, p r o b a b l y w r i t t e n b e t w e e n 1637 and 1640, in w h i c h H o b b e s had asserted that 'the original and s u m m o f K n o w l e d g e stands thus: there is n o t h i n g that truly exists in the w o r l d b u t single and individuall B o d y e s p r o d u c i n g single and individuall acts or effects' (Rossi 1942, p. 102). A n d in another early manuscript, p r o b a b l y also w r i t t e n in the 1630s, he had b e g u n to apply these principles to the construction o f a system o f p s y c h o l o g y in w h i c h all c h a n g e w a s to be accounted for in terms o f mechanical causation (the ' S h o r t T r a c t ' , printed in H o b b e s 1928, p p . 152—67). Scholastic p s y c h o l o g y had explained the operation o f desire, for e x a m p l e , in terms o f the m i n d ' s apprehension o f the ' f o r m ' or essence o f the desired thing; H o b b e s explained it in terms o f a strictly causal process leading f r o m sense-perception to the setting in m o t i o n o f the b o d y ' s 'animal spirits' (conceived o f as a fine fluid in the n e r v o u s system), causing the b o d y ' s m o t i o n t o w a r d s the desired thing. T h e ' t h o u g h t ' o f the desired object w a s s i m p l y that part o f the sequence o f m o t i o n w h i c h t o o k place in the brain, w h e r e it m i g h t also interact w i t h m e m o r y ' s store o f residual m o t i o n s f r o m previous sense-impressions. H o b b e s denied that the feeling o f desire w a s a special k i n d o f t h o u g h t , and analysed it as a c o m b i n a t i o n o f h a v i n g the mental i m a g e o f the desired object and b e g i n n i n g to m o v e t o w a r d s it (1839—45b, v , p. 2 6 1 ) . T h i s idea o f the ' b e g i n n i n g s o f m o t i o n ' 533

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b e c a m e a k e y feature o f H o b b e s ' p s y c h o l o g y and physics; later described b y h i m as 'conatus' or ' e n d e a v o u r ' , it enabled h i m to reduce intentions to infinitesimal actions. For H o b b e s , reason neither participated in the nature o f desire n o r supplied any substantive k n o w l e d g e o f values. 'For the T h o u g h t s , are to the Desires, as Scouts, and Spies, to range abroad, and find the w a y to the things D e s i r e d ' ( 1 6 5 1 , p. 3 5 ) . R e a s o n c o u l d o n l y calculate means to ends, a p p l y i n g the m e r e l y formal principles o f ratiocination to the brute facts o f sense-experience and desire. T h e ends themselves w e r e supplied b y the causal m e c h a n i s m o f desire and aversion. S u c h a v i e w o f h u m a n nature m i g h t suggest that e v e n i f one tried to m o v e f r o m 'is' to ' o u g h t ' b y assigning v a l u e to the fulfilment o f desire, one w o u l d still not be able to f o r m any universal value system: values w o u l d be individual rather than general, refracted and fragmented into a n u m b e r o f conflicting egoisms. T h e r e is, as w e shall see, a deep sense in w h i c h H o b b e s ' values are individual rather than universal, but it is not s i m p l y a matter o f h a v i n g an 'egoistic' m o r a l p s y c h o l o g y . M o t i v a t i o n in H o b b e s ' account is necessarily egoistic o n l y in a n u g a t o r y , definitional sense: each person strives to fulfil his o w n desires. T h i s does n o t m e a n that the contents o f those desires cannot be concerned w i t h the g o o d o f others. T h e definitions o f the passions w h i c h H o b b e s supplies in chapter 16 o f Leviathan include 'Desire o f g o o d to 2

a n o t h e r , BENEVOLENCE,

G O O D WILL, CHARITY. If to

men

generally,

GOOD

NATURE' (p. 26; cf. G e r t 1965 and 1967). It is true that H o b b e s did tend to explain the passions in terms o f self-interest, as w h e n he w r o t e t h a t ' Griefe, for the C a l a m i t y o f another, is PITTY; and ariseth f r o m the i m a g i n a t i o n that the like calamity m a y befall himselfe' (p. 27); but is is often unclear in such cases w h e t h e r 'ariseth f r o m ' explains the feeling in the sense o f analysing its true content or in the sense o f p o i n t i n g to its causal predecessor. T h e origin o f m a n y o f these definitions is found in H o b b e s ' early s u m m a r y o f Aristotle's Rhetoric; Aristotle is often as a m b i g u o u s as H o b b e s and almost as reductive. A n d w h e n H o b b e s translated Rhetoric 1369b 18 as 'In s u m m e , e v e r y Voluntary A c t i o n tends either to Profit, or Pleasure' (1986, p. 55), w e can see that draining a w a y Aristotle's t e l e o l o g y f r o m his p s y c h o l o g y can leave us w i t h a v e r y H o b b e s i a n residue. H o b b e s ' c o n t e m p o r a r y critics d e n o u n c e d h i m for a r g u i n g that m e n w e r e naturally selfish and hostile t o w a r d s o n e another. His reply w a s

2. References to Leviathan are given in the form o f page numbers in the first edition: these can be located in the text o f the 1968 Penguin edition (ed. C . B . Macpherson) and in the margin o f the 1909 C l a r e n d o n Press edition (ed. W . G . P o g s o n Smith).

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c o m m o n s e n s i c a l : first, that a l t h o u g h m e n w e r e sometimes b e n e v o l e n t , a state c o u l d n o t be founded o n b e n e v o l e n c e alone, and secondly, that ' t h o u g h the w i c k e d w e r e f e w e r than the righteous, yet because w e cannot distinguish t h e m , there is a necessity o f suspecting, h e e d i n g , anticipating' (1983, p . 33). A third reason, m o r e i m p o r t a n t but less c o m m o n s e n s i c a l and less directly stated, also e m e r g e s : the p r i m a r y state o f conflict b e t w e e n individuals posited b y H o b b e s is n o t a contingent, factual conflict w h i c h m i g h t n o t exist i f people ceased to be irascible or c o m p e t i t i v e , but rather a necessary j u r a l conflict b e t w e e n people w h o s e rights o v e r l a p or conflict in s o m e sense w i t h one another until they h a v e been renounced. In order to s h o w that m e n can all agree on the need to pass f r o m a state o f conflict to a state o f peace, H o b b e s argues that it is possible to abstract a set o f universal rules o f h u m a n action f r o m the c o n t i n g e n t facts o f conflicting individual desires. Individual desires are various and are constantly in m o t i o n , so they can be neither c o n s u m m a t e d in the a c h i e v e m e n t o f a final, systematic g o a l ( H o b b e s rejects the n o t i o n o f a ' s u m m u m b o n u m ' in this life), nor dispensed w i t h b y means o f Stoic w i t h d r a w a l . ( W h e n H o b b e s characterises life as a 'restlesse desire o f P o w e r after p o w e r ' ( 1 6 5 1 , p. 47), he is n o t m a k i n g the empirical observation that m e n are p o w e r - h u n g r y , but m e r e l y conjoining his v i e w o f life as m o t i o n w i t h his definition o f p o w e r as the 'present means, to obtain s o m e future apparent g o o d ' (p. 66).) O n l y one desire can h a v e any sort o f priority o v e r all other desires, n a m e l y the desire to a v o i d death; b e i n g alive is a necessary condition, the present means to all future apparent g o o d s . H a v i n g established this one general truth o v e r and a b o v e the mass o f individual desires, H o b b e s proceeds to d r a w f r o m it a system o f means t o w a r d s the a v o i d a n c e o f death, p r o v i d i n g a set o f rules o f action w h i c h all m e n must find valid i f they reason correctly. T h e most i m p o r t a n t means t o w a r d s self-preservation is peace, the establishment o f stable and trustable social relations. A n d the o p t i m u m means t o w a r d s peace can be formulated as ' L a w s o f N a t u r e ' or m o r a l principles w h i c h w i l l be i m m u t a b l y and eternally true. In this w a y H o b b e s has p e r f o r m e d the transition f r o m the subjective and relative v o c a b u l a r y o f ' g o o d ' and ' e v i l ' ( ' g o o d ' m e a n i n g 'object o f desire') to an objective system o f virtues and vices w h i c h can a p p l y universally. And therefore so long a man is in the condition o f meer Nature, (which is a condition o f War,) as private Appetite is the measure of Good, and Evill: And consequently all men agree on this, that Peace is Good, and therefore also the way, or means of Peace, which (as I have shewed before) are Justice, Gratitude, Modesty, Equity, Mercy, 8c the rest of the Laws of Nature, are good; that is to say, Morall Vertues. (p. 80) 535 Cambridge Histories Online © Cambridge University Press, 2008

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H o b b e s has thus cleverly passed f r o m 'is' to ' o u g h t ' almost w i t h o u t appearing to take u p o n h i m s e l f the responsibility for using n o r m a t i v e language: g i v e n that m e n use such l a n g u a g e in an unreliable w a y to express their o w n desires, H o b b e s offers a reliable, systematic use o f it in the f o r m o f ' L a w s o f N a t u r e ' w i t h w h i c h they must all agree. T h e laws are ' C o n c l u s i o n s , or T h e o r e m e s c o n c e r n i n g w h a t c o n d u c e t h to the c o n s e r v a tion and defence o f themselves' (pp. 122—3); a l t h o u g h usually framed c o n v e n i e n t l y as imperatives, they w o u l d be m o r e correctly spelt out as theorems o f the f o r m : ' g i v e n that y o u desire to d o x y and z, i f y o u reason correctly y o u w i l l also desire to d o the f o l l o w i n g ' . T h e l a w s o f nature specify an o p t i m u m set o f actions designed to b r i n g about peace, the o p t i m u m c o n d i t i o n for self-preservation. B u t there w i l l also be occasions w h e n o b e y i n g those laws w i l l endanger an individual's life rather than preserving it (e.g. w h e n faced w i t h a m a n o f violence); in such circumstances the need for self-preservation w i l l dictate b r e a k i n g the l a w s o f nature and responding w i t h v i o l e n c e in self-defence. T h i s entitlement to g o against the l a w s o f nature in order to fulfil the purpose w h i c h they serve is called the 'right' o f nature. In chapter 14 o f Leviathan H o b b e s s h o w s that b o t h laws and right flow f r o m the same source, w h i c h he calls the 'rule' o f nature: ' T h a t e v e r y m a n , o u g h t to e n d e a v o u r peace, as farre as he has h o p e o f obtaining it; and w h e n he cannot obtain it, that he m a y seek, and use, all helps, and advantages o f W a r r e ' (p. 64). W h i l s t the l a w s put f o r w a r d a determinate set o f actions, the right covers an indeterminate range o f possible actions contrary to natural l a w ; hence H o b b e s ' statement in the same chapter that 'RIGHT, consisteth in liberty to d o , or to forbeare; W h e r e a s LAW, determineth and bindeth to o n e o f t h e m ' (p. 64). B u t in any particular set o f circumstances w h e n the right needs to be used, using it w i l l be n o less necessary than o b e d i e n c e to the l a w s n o r m a l l y is w h e n they can safely be o b e y e d . C a l l i n g the right a 'liberty' does n o t m e a n that at critical m o m e n t s o f self-defence it is a matter o f indifference w h e t h e r the right be used or not; it connotes rather the right's nature as an 'entitlement' to act against the usual requirements o f natural l a w . 3

T h i s account has so far been concerned w i t h w h a t m i g h t be called an internal valuation o f men's actions: each m a n has to consider his o w n need

3. Hence it is not necessary to accept the argument (Warrender 1957) that the laws o f nature cannot be based on self-preservation because self-preservation is a right, and rights i n v o l v e 'liberty to do, or to forbeare'. It must also be stressed that H o b b e s ' argument in Leviathan is not that men have a right to preserve themselves but that they have a right to attempt to preserve themselves. O n this important distinction see Viola 1979, pp. 88—9.

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for preservation, and this need generates a particular set of laws and a general right. In the state of nature, when conditions are always potentially hostile and the scope for acting in accordance with the laws of nature is reduced almost to vanishing point, all sorts of actions may be justified by the right of nature. But some actions will still not be justified by it, if they do not meet the internal standard of conduciveness to self-preservation. In an important note added to the second edition of De Cive, Hobbes explained that wanton cruelty or drunkenness in the state of nature would not be covered by the right of nature (1983, p. 73). Yet elsewhere Hobbes clearly stated that in the state of nature 'Every man by nature hath right to all things, that is to say, to do whatsoever he listeth to whom he listeth, to possess, use, and enjoy all things he will and can' (1928, 11.xiv.10, p. 55; cf. 1651, p. 64, 'this naturall Right of every man to every thing'). This suggests a different use of the term 'right'; we might call it Hobbes' account of men's external rights, that is, their rights vis-a-vis other men, as opposed to his internal account of rights overruling laws in the system of actions for selfpreservation. The old undifferentiated notion of a right or 'ius' as 'that which is right' was still in the process of being broken up during this period (see Tuck 1979); although Hobbes was one of its main attackers, his own arguments are sometimes ambiguous because he uses the term in more than one way. His internal account of the right of nature made a procedural and categorial distinction between it and the laws of nature, but still conceived of it as an 'objective' right of the traditional kind, a way of justifying actions because in their particular circumstances they were right to do. Externally, however (in the field of inter-personal relations), Hobbes put forward a strong version of the modern 'subjective' notion of a right, a freedom or liberty of action which, far from being generated by any normative requirements, consisted of an absence of obligations. Hobbes was presupposing a sort of moral vacuum so far as inter-personal moral duties were concerned. This was a condition of his argument that the only standard by which an action could be judged to be wrong in the state of nature was the internal standard of conduciveness to self-preservation: in the state of nature there is no requirement to 'respect' the rights of others, no duty towards other people. To illustrate: if in the state of nature A snatches B's food, this action can never be judged to be wrong on the grounds that A has some duties towards B which he is thereby breaking. A has no duties towards him or anyone else, and therefore his (external) rights of action are total and allencompassing. So the only standard by which the action can be judged to 537 Cambridge Histories Online © Cambridge University Press, 2008

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be w r o n g is the (internal) standard o f conduciveness to self-preservation: b y this standard A w i l l h a v e the right to snatch the f o o d i f his preservation requires it, b u t he w i l l n o t h a v e that right i f he does n o t need the f o o d and is m e r e l y increasing his chances o f suffering retaliatory hostility. Separating external and internal rights in this w a y helps us to see that a l t h o u g h the natural l a w s and natural rights c o n c e r n e d w i t h preservation are in s o m e w a y s similar to a traditional corpus o f ' o b j e c t i v e ' rights and duties, they are still fundamentally different f r o m any n o r m a l set o f universalisable m o r a l rules. T h e s e l a w s and rights are universal o n l y in the sense that they are duplicated in e v e r y individual. T h e i r derivation is essentially egoistic: each person m a y assign a value to m o d e s t y , h u m i l i t y , generosity, etc., but his reason must ultimately be that each quality has an instrumental value to him. T h e altruism w h i c h flows f r o m o b e d i e n c e to natural l a w is, for H o b b e s , a f o r m o f enlightened self-interest, and it can o n l y be e x p e c t e d o f individuals o n c e they h a v e j o i n e d together in the c o m m o n security o f the state. T h e r e is a danger, in f o l l o w i n g H o b b e s ' a c c o u n t o f the state o f nature and the f o r m a t i o n o f political society, that the reader begins to treat it as a literal, historical narrative. H o b b e s presented it in this w a y for the sake o f exposition, b u t w i l l i n g l y admitted o f the state o f nature that 'I believe it w a s n e v e r generally so, o v e r all the w o r l d ' ( 1 6 5 1 , p. 63). H e c o n c l u d e d that families in the state o f nature w e r e to a limited extent miniature political societies, because children c o u l d be d e e m e d to h a v e consented to o b e y their parents (pp. 102—6). His o w n favourite e x a m p l e o f a state o f nature w a s that o f the relations b e t w e e n s o v e r e i g n states (p. 63); in a letter to a friend he also suggested, rather unsatisfactorily, that soldiers or travelling masons, w h o passed t h r o u g h various states but o w e d settled allegiance to n o n e o f t h e m , m i g h t also be t h o u g h t o f in this w a y . B u t in essence the state o f nature is the p r o d u c t o f a t h o u g h t - e x p e r i m e n t in w h i c h H o b b e s considers w h a t rights o f action and reasons for action m e n w o u l d h a v e i f there w e r e n o c o m m o n authority to w h i c h they c o u l d turn to settle their disputes, or o n w h i c h they c o u l d rely to g i v e stability to their expectations o f h o w other m e n w o u l d act t o w a r d s t h e m . 4

C o n v e r s e l y , w h e n H o b b e s describes the f o r m a t i o n o f political authority

4. This letter does not survive, but the reply o f its recipient does, objecting that these t w o instances are not proper examples o f the state o f nature 'because this is only a w a r o f each against each successively and at different times': Peleau to Hobbes, B o r d e a u x , 4 January 1657. (Chatsworth, Hobbes papers, letters from foreign correspondents, letter 34. I am grateful to the trustees o f the C h a t s w o r t h Settlement for permission to cite this letter.)

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t h r o u g h a c o v e n a n t he is n o t t y i n g his a r g u m e n t to a putative historical event, but t r y i n g to characterise the k i n d o f c o m m i t m e n t w h i c h m e m b e r s o f society must h a v e t o w a r d s the political arrangement w h i c h they accept. C o n t r a c t theories o f the state h a v e often taken a quasi-historical f o r m because o f the element o f c o n t i n g e n c y w h i c h is one possible reason for appealing to the n o t i o n o f a contract. Instead o f marshalling general principles to p r o v e that the political a r r a n g e m e n t in question is the o n l y just and proper a r r a n g e m e n t that c o u l d h a v e been m a d e , contract theorists can argue that it is one o f a n u m b e r o f possible arrangements, and that m e n are b o u n d to this one s i m p l y b y the fact that they h a v e agreed to it. In s o m e cases, n o t a b l y that o f J o h n Selden, the contract t h e o r y o f the state did h a v e a genuine, t h o u g h c o m p l e x , historical character; o n the question o f w h e n resistance to the g o v e r n m e n t b e c o m e s justified, his m a x i m w a s that ' w e must l o o k to the contract', and this required the services o f legal and constitutional historians (such as himself). M o r e frequently, h o w e v e r , contract t h e o r y b e c a m e an excuse for ahistorical arguments about w h a t p e o p l e 'must h a v e ' rationally contracted to d o ; in other w o r d s , a w a y o f presenting conditions w h i c h o u g h t to be d e e m e d to be incorporated in any grant o f p o w e r f r o m p e o p l e to g o v e r n m e n t . H o b b e s f o l l o w e d this ahistorical tendency, but w i t h a radical difference: he used the n o t i o n o f necessary consent as a lever to o v e r t u r n all claims about implicit conditions or limitations o f the rights o f g o v e r n m e n t . H o b b e s w a s able to d o this because o f the unitary nature o f his foundation for natural l a w : self-preservation. T h e m a i n C i c e r o n i a n and T h o m i s t traditions o f natural l a w saw self-preservation as the g r o u n d floor, so to speak, o f a w h o l e structure o f h u m a n needs and values, and it w a s out o f those h i g h e r - o r d e r values that rational contractarians c o u l d construct the implicit conditions w h i c h they t h o u g h t w e r e i n v o l v e d in the grant o f p o w e r f r o m p e o p l e to g o v e r n m e n t . In H o b b e s ' a r g u m e n t , selfpreservation is a sheer need w h i c h takes precedence o v e r other needs; that a subject should be preserved b y his g o v e r n m e n t is the o n l y essential c o n d i t i o n o f his allegiance to it. Since, in H o b b e s ' theory, self-preservation c o u l d in extremis justify d o i n g a n y t h i n g , the subjects must h a v e granted their g o v e r n m e n t the p o w e r to d o a n y t h i n g for the sake o f their preservation. T h e i r consent to this eliminated all scope for further ' c o n d i t i o n s ' or constraints. It m a y still be w o n d e r e d , h o w e v e r , w h e t h e r H o b b e s ' account needed to use a c o n c e p t o f contract at all: in any a r g u m e n t w h i c h hinges on the phrase 'must h a v e contracted', it is surely the reasons for saying 'must h a v e ' w h i c h 539

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are d o i n g the real w o r k . H o b b e s ' reasons are laid d o w n in his l a w s o f nature, w h i c h enjoin people to enter society, submit to arbitration, and so on. Indeed, the third l a w o f nature is 'that m e n p e r f o r m e their C o v e n a n t s m a d e ' ( i 6 5 i , p . 7 i ) . I f the reasons for o b e y i n g covenants are to be found in a system o f prudential rules, w h y has H o b b e s n o t d r a w n up his w h o l e t h e o r y o f obedience in terms o f l o n g - t e r m benefits and dispensed w i t h the n o t i o n o f contract altogether? T h e answer must be that contract w a s o n l y a formal device in H o b b e s ' theory, but a d e v i c e w h i c h served s o m e i m p o r t a n t subsidiary purposes. First, it enabled h i m to insulate the l a n g u a g e o f justice f r o m the rest o f the m o r a l v o c a b u l a r y : a s o v e r e i g n g o v e r n m e n t m i g h t be iniquitous, that is, it m i g h t break the l a w s o f nature, but it c o u l d n o t be unjust, because injustice consisted o f breach o f contract. (In H o b b e s ' theory, the s o v e r e i g n is n o t a party to the contract: the contract is b e t w e e n the subjects, w h o agree to hand o v e r their rights and p o w e r to the sovereign: p. 89). In a classic e x a m p l e o f his reductive technique o f a r g u m e n t , H o b b e s dispensed w i t h the traditional claims o f distributive and c o m m u t a t i v e justice, r e d u c i n g the f o r m e r to equity and the latter to contractual justice (p. 75). T h e claim that rulers cannot be c o n v i c t e d o f injustice had n o t been w i t h o u t p o l e m i c a l point in the E n g l a n d o f 1640. S e c o n d l y , H o b b e s ' t h e o r y requires p e o p l e to r e n o u n c e not o n l y rights o f action but also rights o f j u d g e m e n t . O n l y the s o v e r e i g n can j u d g e w h a t w i l l be necessary for the preservation o f peace in the state: if subjects claimed the right to j u d g e this, they w o u l d be u n d e r m i n i n g the sovereign's role as final arbiter and frustrating the purpose for w h i c h a s o v e r e i g n w a s instituted. (This t o o had had a topical relevance in the late 1630s, f o l l o w i n g the Ship M o n e y case.) T h e n o t i o n o f a c o v e n a n t is a k i n d o f shorthand for the t y p e o f c o m m i t m e n t to obedience this requires, in advance o f any k n o w l e d g e o f the contingencies o f particular decisions b y the s o v e r e i g n . T h e state forces its subjects to k e e p their c o v e n a n t b y a n n e x i n g punishments to its l a w s . ' C o v e n a n t s , w i t h o u t the S w o r d , are but W o r d s , and o f n o strength to secure a m a n at all' (p. 85). B u t H o b b e s is n o t a r g u i n g here that the desire to a v o i d punishment is the o n l y m o t i v a t i o n for o b e y i n g the laws. T h e prospect o f punishment is a short-term consideration, necessary to concentrate the minds o f passionate m e n , and thereby to create secure surroundings for those w h o d o w i s h to k e e p their c o v e n a n t . A n d there is a l w a y s an adequate l o n g - t e r m consideration p r o m p t i n g this w i s h , n a m e l y the conduciveness to self-preservation o f peace and stable g o v e r n m e n t . H o b b e s is sometimes associated w i t h m o d e r n 'positivist' or 'realist' theories o f l a w w h i c h explain the o b l i g a t i o n to o b e y l a w s in terms o f the 540

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m o t i v a t i o n to a v o i d the punishments w h i c h those l a w s predict; but in H o b b e s ' t h e o r y there is thus a l w a y s a further m o t i v e to obedience. T h i s point c o m e s out strongly in his criticism o f the doctrine o f 'passive o b e d i e n c e ' in Behemoth, his history o f the C i v i l W a r . ' E v e r y l a w is a c o m m a n d to do, or to forbear: neither o f these is fulfilled b y suffering' (1889, p. 50). L a w s d o n o t propose value-free alternatives o f action leading to punishment and action leading to n o n - p u n i s h m e n t ; there is a l w a y s a value attached to o b e d i e n c e to laws, because there is a l w a y s a d u t y t o w a r d s the legislator, w h o s e c o n t i n u i n g authority ensures peace. H o b b e s does, h o w e v e r , raise an apparent e x c e p t i o n to this principle w h e n he writes a b o u t 'the O b l i g a t i o n a m a n m a y sometimes h a v e , u p o n the C o m m a n d o f the S o v e r a i g n to e x e c u t e any dangerous or dishonourable Office'. H e r e he concludes: ' W h e n therefore o u r refusall to o b e y frustrates the E n d for w h i c h the S o v e r a i g n t y w a s ordained, then there is n o L i b e r t y to refuse: o t h e r w i s e there is' ( 1 6 5 1 , p. 112). T h i s seems to transgress H o b b e s ' rule that o n l y the s o v e r e i g n can decide w h e t h e r an action is necessary for the safety o f the state. B u t , l e a v i n g aside the m e n t i o n o f dishonour ( w h i c h is n o t fully supported b y the rest o f H o b b e s ' t h e o r y ) , it is clear that H o b b e s is c o n c e r n e d here w i t h the uncertain, probabilistic borderline at w h i c h the need to o b e y gives w a y to the need for selfpreservation; the ' d a n g e r ' referred to here is danger to the subject's life, and it w a s an i m m o v a b l e sticking point in H o b b e s ' theory that n o one c o u l d e v e r c o v e n a n t to kill h i m s e l f (p. 69). It cases o f capital punishment, H o b b e s argued, the c o n v i c t had a right to resist his gaolers and executioners. B u t it w a s also an i m p o r t a n t feature o f his a r g u m e n t that at the same time the s o v e r e i g n ( w h o c o u l d c o m m i t n o injustice) had a right to e x e c u t e the m a n . T h e s o v e r e i g n acted w i t h the rights o f the people, on their behalf. T h e m o s t striking f o r m u l a t i o n o f this point c o m e s in De Cive, w h e r e H o b b e s writes that ' T h e People rules in all G o v e r n m e n t s , for e v e n in Monarchies the People C o m m a n d s ' (1983, p . 1 5 1 ) . H e contrasted the ' p e o p l e ' , w h i c h w a s the corporate entity created b y the political a g r e e m e n t o f its m e m b e r s , w i t h the ' m u l t i t u d e ' , w h i c h w a s any m e r e a g g r e g a t e o f individuals. His intention w a s to u n d e r m i n e those w h o claimed to speak o n b e h a l f o f ' t h e p e o p l e ' against their ruler, b y s h o w i n g that individuals gained a corporate identity o n l y b y virtue o f b e i n g united under a s o v e r e i g n . B u t since the ' p e o p l e ' w a s also the t e r m w h i c h H o b b e s used for the s o v e r e i g n itself in the case o f a d e m o c r a t i c constitution, this a r g u m e n t had the p r o b a b l y unintended consequence that the foundation o f any t y p e o f state had required a p r i m a r y phase o f d e m o c r a c y . In the quasi-historical 541

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accounts o f The Elements of Law and De Give this is w h a t happened, and the d e m o c r a c y then dissolved itself i f it handed o v e r s o v e r e i g n t y to a m o n a r c h y or an aristocracy (1928, p . 94, 1983 p p . 1 0 9 - 1 1 ) : e v e n i f the h a n d - o v e r o c c u r r e d at the first gathering o f the people, the fact that it did so b y majority v o t e w o u l d i m p l y the m o m e n t a r y existence o f a d e m o c r a t i c constitution. H o b b e s w a s o b v i o u s l y troubled b o t h b y the quasi-populist appearance o f his a r g u m e n t in these w o r k s (as i f d e m o c r a c y w e r e s o m e h o w m o r e natural), and b y the theoretical a w k w a r d n e s s o f identifying the corporate w i l l o f the state w i t h an entity, the ' p e o p l e ' , w h i c h apparently continued to exist after it had disappeared, like the grin o f the C h e s h i r e C a t . In Leviathan he streamlined his account b y treating the original majority principle as a necessary procedural assumption (rather than as a m i n i constitution), and w o r k e d out a n e w w a y o f describing the c o n t i n u i n g corporate entity as the 'person' o f the state. T o g e t h e r w i t h this c o n c e p t o f a 'person', w h i c h w a s d r a w n f r o m the legal fiction that corporations c o u l d act as persons at l a w , he e m p l o y e d the related legal v o c a b u l a r y o f 'authorising' and 'representing': the s o v e r e i g n (whether an individual or an assembly) represents its subjects because it is authorised to act as the bearer o f their 'person', and they h a v e a unitary 'person' o n l y b y virtue o f b e i n g represented b y a unitary s o v e r e i g n ( 1 6 5 1 , p p . 80—3; see also P o l i n 1953, p p . 229—40, and F o r s y t h 1981). T h r o u g h o u t his account, H o b b e s a l l o w s that the s o v e r e i g n m a y be an aristocratic c o u n c i l or a d e m o c r a t i c assembly; a l t h o u g h he gives reasons for preferring a m o n a r c h y (pp. 95—8), the nature o f the s o v e r e i g n t y is the same in each case. T h e n o t i o n o f authorising is taken u p again w h e n H o b b e s considers the sovereign's legislative action and permissive inaction. ' A H L a w e s , w r i t t e n , and u n w r i t t e n , h a v e their A u t h o r i t y , and force, f r o m the W i l l o f the C o m m o n - w e a l t h ; that is to say, f r o m the W i l l o f the R e p r e s e n t a t i v e ' (p. 139). C u s t o m a r y l a w thus has its validity n o t f r o m any intrinsic force o f its o w n b u t f r o m b e i n g 'authorised' b y the s o v e r e i g n , w h o c o u l d cancel it i f he w i s h e d . (This w a s the starting point for H o b b e s ' attack o n the claims o f c o m m o n l a w jurists in his Dialogue . . .of the Common Laws of England.) In a w i d e r sense, all activities w i t h i n the state are authorised b y the s o v e r e i g n so l o n g as they are n o t forbidden. T h e state authorises g e o m e t r y professors to teach g e o m e t r y just as it authorises p e o p l e to w a l k t h r o u g h public parks; this does n o t m e a n that e v e r y o n e is acting o n instructions f r o m the state, and it does n o t m e a n that the s o v e r e i g n authority is m a k i n g the professors' g e o m e t r y true, or o b l i g i n g p e o p l e to believe it. O f course the range o f things w h i c h might be forbidden b y the state is almost unlimited; but 542

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H o b b e s ' t h e o r y supplies n o reason for the state to use this p o w e r e x c e p t for the preservation o f peace and prosperity. It is in the sovereign's interest to a l l o w individuals to pursue their o w n interests, because this produces a m o r e contented and prosperous population: ' w h e r e the p u b l i q u e and private interest are most closely united, there is the p u b l i q u e most a d v a n c e d . . . T h e riches, p o w e r , and h o n o u r o f a M o n a r c h arise o n e l y f r o m the riches, p o w e r , and h o n o u r o f his Subjects' (p. 96; cf. G u n n 1969, p p . 65—81). H o b b e s summarised his a r g u m e n t at one point in the Elements of Law b y saying that it w a s the sovereign's d u t y b y the l a w o f nature 'to leave m a n as m u c h liberty as m a y be, w i t h o u t hurt o f the p u b l i c ' (1928, p. 1 4 1 ) . H o b b e s ' apparently unobjectionable claims about the authorisation o f g e o m e t r y teachers s h a d o w e d forth his a r g u m e n t o n a m u c h m o r e contentious subject: the status o f the church w i t h i n the state. H e regarded the church as a society o f m e n e n g a g e d in teaching the doctrine o f the B i b l e . T h e s o v e r e i g n m i g h t authorise this teaching in the strong sense o f endorsing as l a w s the injunctions to action w h i c h the teaching contained; or the s o v e r e i g n c o u l d authorise it in the looser sense o f p e r m i t t i n g the activity o f teaching. T h e distinction b e t w e e n belief and action w a s an i m p o r t a n t one: ' F o r internall Faith is in its o w n nature invisible, and consequently e x e m p t e d f r o m all h u m a n e [i.e. ' h u m a n ' ] jurisdiction' ( 1 6 5 1 , p. 285). If the c h u r c h claimed an independent authority to direct the actions o f m e n w i t h i n the state, this w a s contrary to the unitary and absolute nature o f civil s o v e r e i g n t y . T h e church's o w n actions must be subject to the civil p o w e r , and those actions must include not o n l y acts o f w o r s h i p but also w r i t i n g and speaking. B u t H o b b e s distinguished carefully b e t w e e n forbidding teaching and f o r b i d d i n g m e n to believe w h a t they w e r e taught: 'such F o r b i d d i n g is o f n o effect; because Beleef, and U n b e l e e f n e v e r f o l l o w mens C o m m a n d s ' (p. 2 7 1 ) . P r o v i d e d that the church did not claim independent rights o f action, and p r o v i d e d that the doctrine it taught w a s not subversive to the peace o f the state, H o b b e s ' theory a l l o w e d for a great degree o f religious toleration. Ideally the s o v e r e i g n should h a v e n o m o r e reason to interfere w i t h the church than w i t h g e o m e t r y lessons. H o b b e s is o n l y loosely to be described as an Erastian; he did not think that any strong c o n n e c t i o n b e t w e e n state and church w a s necessary, and his theory permitted R o m a n C a t h o l i c i s m in England, for e x a m p l e , p r o v i d e d that it w e r e understood that the p o p e appointed teachers o f doctrine in E n g l a n d o n l y o n sufferance f r o m the English s o v e r e i g n (p. 296). After the R e s t o r a t i o n , C h u r c h o f E n g l a n d bishops such as E d w a r d Stillingfleet and S a m u e l Parker used H o b b e s i a n a r g u m e n t s to justify g o v e r n m e n t action 543

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against the Dissenters, on the g r o u n d s that they w e r e a threat to civil peace; but in s o m e w a y s it w a s the Dissenters w h o w e r e w i e l d i n g the most centrally H o b b e s i a n a r g u m e n t s w h e n they said that religious beliefs should not be subject to civil c o m p u l s i o n . T h e difficulty, o f course, w a s that s o m e versions o f religious belief w o u l d not fit into H o b b e s ' scheme, because they did i n v o l v e belief in rights o f action or jurisdiction independent o f the sovereign. M o s t varieties o f institutional Christianity taught beliefs o f this sort, and H o b b e s ' arguments on this point are thus fiercely anti-clerical and a b o v e all a n t i - C a t h o l i c . B u t e v e n w i t h i n the R o m a n C a t h o l i c church there w e r e traditions o f Marsilian and Gallican a r g u m e n t o n w h i c h H o b b e s c o u l d d r a w in his attack on papal p o w e r ( M a l c o l m 1984, p p . 82-3). W i t h i n the A n g l i c a n church H o b b e s w a s in s o m e w a y s f o l l o w i n g in the tradition o f rationalist religion, o f writers such as W i l l i a m C h i l l i n g w o r t h and Falkland at Great T e w . H o b b e s agreed w i t h t h e m that the essential doctrinal truths contained in the B i b l e w e r e f e w and easily k n o w a b l e ( 1 6 5 1 , p p . 325—6). A n d in the third part o f Leviathan he subjected the B i b l e to a m o r e t h o r o u g h course o f rational textual criticism than had been attempted b y any previous English writer. His aim w a s to s h o w that scripture, far from d e m a n d i n g beliefs or actions contrary to those o f his o w n theory, actually m a t c h e d and confirmed his account o f m e n ' s duties at e v e r y point. It m a y be t e m p t i n g to describe this as a rather cynical arrière-pensée on H o b b e s ' part; but, equally, it can be described as a necessary consequence o f his o w n theological position. His t h e o l o g y , as w e h a v e seen, severed all essential links b e t w e e n the nature o f G o d and the nature o f the w o r l d . N a t u r a l t h e o l o g y m i g h t arrive at the k n o w l e d g e that G o d existed, but it c o u l d supply n o further k n o w l e d g e o f his nature. E v i d e n c e o f G o d ' s w i l l could exist in the f o r m o f s o m e t h i n g historically contingent, such as the text o f scripture; but in order to interpret this evidence, principles o f interpretation had to be applied, and they c o u l d not be derived from the evidence itself. It w a s inevitable, then, that in interpreting the B i b l e m e n w o u l d use their natural reason and interpret a w a y any aspect o f it w h i c h appeared to conflict w i t h the dictates o f natural reason - dictates already arrived at in the first t w o parts o f Leviathan. H o b b e s ' similarity to rational theologians such as Falkland w a s therefore o n l y skin-deep. T h e y read rational beliefs into the B i b l e because they felt they had substantive k n o w l e d g e o f the rational nature o f G o d ; H o b b e s did the same because o f his lack o f k n o w l e d g e o f G o d ' s nature, w h i c h forced h i m to interpret the B i b l e b y the light o f h u m a n nature and h u m a n reason. D e n o u n c e d and dismissed as an 'atheist', H o b b e s countered 544

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w i t h a reply w h i c h it is hard to gainsay: ' D o y o u think I can be an atheist and not k n o w it? O r , k n o w i n g it, durst h a v e offered m y atheism to the press?' (i839~45a, v n , p . 350).

ii

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O u t s i d e E n g l a n d , the D u t c h republic w a s the c o u n t r y w h e r e H o b b e s ' w r i t i n g s exerted their greatest influence. T h e conditions o f intellectual life there w e r e favourable to 'free-thinking', w i t h a flourishing b o o k trade o n w h i c h regulation and censorship w e r e c o m p a r a t i v e l y l i g h t l y enforced. T h e second edition o f De Cive w a s printed there in 1647; a D u t c h translation o f Leviathan appeared in 1667; and an i m p o r t a n t collection o f H o b b e s ' Latin w r i t i n g s , i n c l u d i n g his n e w Latin version o f Leviathan, w a s published in A m s t e r d a m in 1668. G i v e n its recent birth and the c o n t i n u i n g uncertainty o f s o m e o f its constitutional arrangements, the D u t c h republic w a s a c o u n t r y in w h i c h basic questions o f political t h e o r y w e r e often o f pressingly topical concern. H o b b e s ' pupil, the second earl o f D e v o n s h i r e , had w r i t t e n about 'such as professe to reade T h e o r i e o f Statisme; fellows that s w a r m in most places abroad, especially in Germany, or those places w h e r e the Dutch most usually frequent, that nation b e i n g easie and apt to be gulled b y these Imposters' ( C a v e n d i s h 1620, p. 40). T h e w o r d 'Statisme' has o v e r t o n e s o f 'etatisme' and 'raison d'etat'. W h e r e the internal w o r k i n g s o f the state w e r e concerned, this meant a value-free, c o m p a r a t i v e study o f constitutions as p o w e r structures; w h e r e their external actions w e r e concerned, it meant a study o f all the tricks and devices o f d i p l o m a c y and warfare — a study w h i c h c o u l d be a m p l y justified b y the dependence o f D u t c h foreign p o l i c y , t h r o u g h o u t the seventeenth century, o n kaleidoscopically shifting patterns o f uncertain alliances. T h e leading academic e x p o n e n t o f this sort o f p o w e r - a n a l y s i s w a s M . Z . B o x h o r n , w h o taught at Leiden U n i v e r s i t y f r o m 1633 to 1653; he published an edition o f Tacitus in 1643, and in his o w n political w r i t i n g s he used e x a m p l e s f r o m Tacitus to s h o w that rulers w o u l d a l w a y s be i m p e l l e d b y self-interest to encroach o n the liberties o f their subjects (e.g. B o x h o r n 1663, p p . 18—22; K o s s m a n n i960, p. 20; W a n s i n k 1981, pp. 9 3 - 1 0 0 , 1 4 9 - 5 3 ) . T h e history o f the D u t c h republic had also fostered public interest in another area o f political c o n t r o v e r s y : the relation b e t w e e n religion and the state. T h e main patterns o f a r g u m e n t had been laid d o w n in the second decade o f the century, w h e n the R e m o n s t r a n t s (liberal theologians w h o 545

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f o l l o w e d Jacobus A r m i n i u s ) had appealed to the civil p o w e r s to protect t h e m against the hard-line C a l v i n i s t C o u n t e r - R e m o n s t r a n t s . ProR e m o n s t r a n t writers, such as G r o t i u s in his De imperio summarum potestatum circa sacra (written c. 1 6 1 4 and printed p o s t h u m o u s l y in 1647), had d e v e l o p e d a t h e o r y o f jurisdiction in w h i c h all p o w e r o v e r Human actions — i n c l u d i n g teaching, preaching, and acts o f w o r s h i p - had to be vested ultimately in the civil authority. C h u r c h e s , in this theory, w e r e regarded as v o l u n t a r y associations w i t h i n the state. T h e R e m o n s t r a n t s defended a p o l i c y o f religious toleration b y a r g u i n g that the Calvinist church had n o jurisdictional p o w e r to persecute, and b y c l a i m i n g that religion w a s essentially a matter o f beliefs, n o t actions, thus i m p l y i n g that a variety o f religious beliefs should pose n o threat to the state's activities. T h e r e w a s a natural c o n g r u e n c e b e t w e e n this attitude and the Tacitean v i e w o f religion, w h i c h regarded public religious observances as part o f the trappings, the p s y c h o l o g i c a l theatre, o f the state, and therefore as s o m e t h i n g w h i c h must be controlled b y the civil p o w e r . In the abstract, o f course, these a r g u m e n t s did not dictate w h e t h e r the civil p o w e r should be m o n a r c h i c a l or republican. T h e contingencies o f political history ensured that the R e m o n s t r a n t s and tolerationists sided w i t h republicanism, w h i l e the supporters o f the princes o f O r a n g e upheld the p o w e r s o f the C a l v i n i s t church. B u t these alignments w e r e n o t quite accidental. For it w a s the republican theorists w h o , in their attempt to w o r k out f r o m first principles w h a t the nature and p o w e r s o f the state should be, c a m e closest to d e v e l o p i n g a rationalist-utilitarian t y p e o f political t h e o r y f r o m w h i c h the traditional categories o f sacerdotal and ecclesiastical p o w e r w e r e most likely to be absent. B y the m i d - c e n t u r y , the influence o f Descartes' p h i l o s o p h y in the D u t c h academic w o r l d w a s g i v i n g a p o w e r f u l impetus to the desire to replace traditional bodies o f t h e o r y w i t h n e w systems o f d e d u c t i v e science. Cartesianism flourished at the Universities o f U t r e c h t and Leiden, w h e r e its influence w a s strongest in the areas o f m e d i c i n e and physics. T h e antischolastic nature o f Descartes' v i e w s o n h u m a n p s y c h o l o g y w a s taken further b y D u t c h Cartesians such as Henricus R e g i u s and Gerard Wassenaar at U t r e c h t , w h o d e v e l o p e d a m o r e mechanistic, materialist p h i l o s o p h y o f m i n d w h i c h denied the existence o f innate ideas and described the m i n d as a ' m o d e ' o f the b o d y . T h i s w a s a version o f Cartesianism w h i c h w a s ideally suited to the reception o f H o b b e s i a n theories t o o . A n d H o b b e s ' w o r k , for Cartesians, c o u l d usefully r e m e d y the lack o f any political theory in Descartes' o w n w r i t i n g s . L a m b e r t v a n V e l t h u y s e n for e x a m p l e , w h o had 546

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studied at U t r e c h t in the 1640s, published defences o f Descartes, C o p e r n icus, and H o b b e s , and in the preface to his ' a p o l o g i a ' for De Give he defended H o b b e s ' w o r k as i f it w e r e a straightforwardly Cartesian enterprise: all p r e v i o u s attempts at political p h i l o s o p h y w e r e flawed, he w r o t e , because they had n o t used 'this d e v i c e o f d o u b t i n g e v e r y t h i n g ' , and had failed to deduce their various principles f r o m one single starting point ( 1 6 5 1 , sig. *5r). A l l these strands o f a r g u m e n t - reason o f state, T a c i t i s m , religious toleration, the defence o f unitary civil p o w e r , republicanism, Cartesianism and H o b b e s i a n i s m — c a m e together in the w o r k o f the m o s t influential D u t c h political writers o f the 1650s and 1660s, the brothers Johan and Pieter de la C o u r t . After the death o f W i l l i a m II in 1650, and during the c h i l d h o o d o f W i l l i a m III ( w h o w a s b o r n a f e w days after his father's death), m o s t o f the D u t c h provinces found themselves operating a truly republican constitution for the first time, h o l d i n g in a b e y a n c e the office o f 'stadth o l d e r ' w h i c h had p r e v i o u l y been filled b y the princes o f O r a n g e . U n d e r J o h n de W i t t , the quasi-presidential ' g r a n d pensionary' o f H o l l a n d , a v i g o r o u s c a m p a i g n o f republican p r o p a g a n d a w a s w a g e d to persuade H o l l a n d and the other p r o v i n c e s to abolish the office o f stadtholder altogether. T h e brothers de la C o u r t and Spinoza w e r e a m o n g the m o s t p r o m i n e n t writers to support h i m . B o t h brothers had studied at L e i d e n in the early 1640s, w h e r e they had b e c o m e Tacitists and Cartesians, and Pieter had g o n e o n in 1645 to study m e d i c i n e under R e g i u s at U t r e c h t ( V a n T h i j n 1956, p p . 309—15). Johan m a y h a v e been responsible for the unauthorised printing o f s o m e lectures b y B o x h o r n , the Commentariolus, in 1649: the w o r k bears a suspicious resemblance to Johan's o w n notes o n the lectures, w h i c h he heard in 1643 ( W a n s i n k 1 9 8 1 , p p . 150—1). A n d a m o r e spectacular e x a m p l e o f literary piracy w a s Pieter's publication, o v e r his o w n initials ( ' V . D . H . ' : ' v a n den H o v e ' , the D u t c h equivalent o f 'de la C o u r t ' ) o f a b o o k , Naeuwkeurige consideratie van staet (A Close Examination of the State), w h i c h w a s in fact w r i t t e n b y that other pupil o f R e g i u s , Wassenaar (Haitsma M u l i e r 1984). Wassenaar's b o o k seems to h a v e g i v e n the de la C o u r t s the idea o f c o m b i n i n g Tacitus and M a c h i a v e l l i w i t h a Cartesian t h e o r y o f the passions, so that the task o f political p h i l o s o p h y w a s seen as that o f constructing the state as a m e c h a n i s m to regulate the passions o f individuals and force b o t h rulers and ruled to identify their individual interests w i t h the c o m m o n g o o d . A n d it w a s w i t h this task in m i n d that the brothers de la C o u r t turned eagerly to the w r i t i n g s o f H o b b e s . 547

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T h e w r i t i n g s o f the de la C o u r t s f o r m a h o m o g e n e o u s g r o u p o f w o r k s , in w h i c h the same a r g u m e n t s k e e p reappearing. ' S e l f - l o v e is the origin o f all h u m a n actions', begins the Consideratien (1660, p. 1). 'Self-preservation is the supreme l a w o f all individuals' (Discoursen, 1662a, p. 9 1 ) . M e n are g o v e r n e d b y their passions, and most m e n are therefore evil b y nature; w i t h o u t a political p o w e r to k e e p t h e m in check they w i l l lead a diffident and violent existence in a 'state o f nature', each j u d g i n g partially in his o w n cause (Consideratien, 1660, p p . 1-8). P e o p l e are equal b y nature, and o n l y the state, an artificial h u m a n construct, has introduced inequalities (p. 346, mispaginated '246'). O n c e the state is established, the subjects o w e it a debt o f gratitude for their protection; and they are justified in rebelling o n l y w h e n their individual lives are threatened (p. 347, mispaginated '247', Discoursen, 1662a, p. 27). 5

T h u s far, the H o b b e s i a n overtones are o b v i o u s . T h e 1660 Consider atien s h o w s a close familiarity w i t h De Cive, and the later editions suggest a reading oi Leviathan as w e l l . B u t this is a version o f H o b b e s f r o m w h i c h all the j u r a l categories — rights, covenants, authorisation — h a v e been stripped a w a y . For H o b b e s , the essential conflict in the state o f nature is a conflict o f rights. For the de la C o u r t s , it is a conflict o f passions; there is thus n o qualitative distinction b e t w e e n men's relations in the state o f nature and their relations in civil society. ' A l l o b e d i e n c e is caused b y c o m p u l s i o n ' (Discoursen, 1662a, p . 29). Each individual wishes to live a c c o r d i n g to his o w n w i l l ('t Welvaren, 1 9 1 1 , p. 10): this principle means that force is required to get any individual to live a c c o r d i n g to the w i l l o f another, and it also means that rulers w i l l constantly be t r y i n g to e x t e n d their wills m o r e fully o v e r their subjects.

5. T h e corpus o f their w o r k s , h o w e v e r , poses m a n y problems o f individual attribution. M o s t o f the major w o r k s appeared over the initials ' V . H . ' , ' V . D . H . ' , or ' D . C , but other w o r k s w h i c h have been attributed to them appeared a n o n y m o u s l y . Johan died in 1660; he is thought to have been largely responsible for the Consider atien o f that year, w h i c h was expanded in subsequent editions b y Pieter, and Pieter m a y well have quarried material from Johan's papers in putting together the other w o r k s o f the 1660s. T h e major w o r k s are: 't Welvaren der stad Leiden (The Prosperity of the City of Leiden), M S dated 1659, ed. F. Driessen (Leiden: NijhorT, 1911). Consider atien en exempelen van staat (Observations and Lessons on the State) (Amsterdam, 1660); 2nd (expanded) edn published 1661 under the title Consider atien van Staat ofte Polityke Weeg-Schaal (Observations on the State; or, the Political Balance); 3rd edn (also expanded) and 4th and 5th edns published under this title, 1662. Politieke Discoursen (Political Discourses) (Amsterdam, 1662) Interest van Holland (The Interest of Holland) (Amsterdam, 1662); 2nd edn, expanded w i t h t w o additional chapters possibly b y de W i t t , published 1669 as Aanwysing der heilsame politike Gronden en Maximen van de Republike van Holland en West-Vriesland (An Indication of the Salutary Political Principles and Maxims of the Republic of Holland and West Friesland). O n other w o r k s b y the de la C o u r t s see G e y l 1947.

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A s a result o f this line o f a r g u m e n t , the p r o b l e m s o f constitutionb u i l d i n g assumed a central place in the w o r k o f the de la C o u r t s . For H o b b e s , the nature o f an individual's covenantal c o m m i t m e n t to o b e y the s o v e r e i g n p o w e r w o u l d be the same, regardless o f the constitutional f o r m w h i c h that s o v e r e i g n p o w e r assumed. T h e arguments in favour o f m o n a r c h y in De Cive and Leviathan thus h a v e a purely secondary status in H o b b e s ' overall t h e o r y . B u t T o r the de la C o u r t s the p r i m a r y p r o b l e m w a s to design a constitution w h i c h c o u l d k e e p the e n c r o a c h i n g wills o f b o t h rulers and ruled in check. M o n a r c h y w a s the least attractive solution, because any individual entrusted w i t h p o w e r w a s likely to use it for his private benefit (Consider atien, 1660, p p . 13—74). G o v e r n m e n t b y a large assembly w a s better, because in such a gathering the d i v e r g e n t private passions w o u l d tend to cancel each other out (p. 203, mispaginated '103'); and since the basic u r g e o f each individual w a s to live a c c o r d i n g to his o w n w i l l , any m o r e or less d e m o c r a t i c system w o u l d enable individuals to o b e y the w i l l o f the g o v e r n m e n t and at the same time o b e y their o w n w i l l , w h i c h w a s a c o m p o n e n t o f the g o v e r n m e n t ' s w i l l (p. 353, mispaginated '253'). If this sounds like a version o f consent theory, then it is a version quite unlike H o b b e s ' : this version does n o t explain the nature o f s o v e r e i g n t y , but is confined to one t y p e o f constitution. It m e r e l y gives a d e m o c r a t i c g o v e r n m e n t a p s y c h o l o g i c a l advantage w h i c h m a y , in effect, increase the a m o u n t o f p o w e r w h i c h the g o v e r n m e n t can w i e l d . These considerations m a y p r o m p t the conclusion that the de la C o u r t s o w e d little to H o b b e s b e y o n d their starting point in mechanistic p s y c h o l o g y . B u t there w a s one i m p o r t a n t area o f their a r g u m e n t w h i c h did d r a w directly o n H o b b e s ' political theories: their v i e w s on the unitary nature o f s o v e r e i g n p o w e r and the relation w h i c h this i m p l i e d b e t w e e n c h u r c h and state. T h e state, they argued, must h a v e p o w e r o v e r all external acts, and therefore o v e r all acts o f religious w o r s h i p . T o further the interests o f b o t h rulers and ruled, it must exercise this p o w e r for purely secular ends, n a m e l y peace and prosperity. H e n c e the need to tolerate all religions w h i c h are n o t themselves subversive o f the state (Discoursen, 1662a, pp. 1 9 - 2 4 ) . A n d for the subject, m e r e o u t w a r d c o n f o r m i t y is sufficient (pp. 69—74). T h e peculiarly H o b b e s i a n twist to this a r g u m e n t is the insistence that 'the public determination o f w h a t is g o o d and w h a t is evil b e l o n g s o n l y to the sovereign: o t h e r w i s e the political state w i l l change, t h r o u g h the conflict o f m a n y private j u d g e m e n t s , into a state o f nature' (p. 24). T h i s a r g u m e n t struck at the m o r a l jurisdiction o f the Calvinist church, and w a s a c c o m p a n i e d b y s o m e t h o r o u g h l y H o b b e s i a n jibes against the deleterious effects o f clerical p o w e r on intellectual life (pp. 36—41). 549 Cambridge Histories Online © Cambridge University Press, 2008

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T h e late 1650s and early 1660s saw n u m e r o u s attempts b y the Calvinists to reassert their m o r a l and intellectual jurisdiction. Pressure w a s b r o u g h t to bear o n the university authorities at Leiden to curb the teaching o f Cartesianism and 'the application o f p h i l o s o p h y to the prejudice o f t h e o l o g y ' ( M o l h u y s e n , 1 9 1 3 - 2 4 , in, p p . 109—12); the anti-clericalism o f the de la C o u r t s ' w r i t i n g s p r o v o k e d a storm o f sermons and pamphlets ( V a n G e l d e r 1972, p. 253); and in U t r e c h t , w h e r e the H o b b e s i a n philosopher v a n V e l t h u y s e n had penned similar attacks o n clerical p o w e r in 1660 (Ondersoeck and Het predick-ampt), the leading anti-Cartesian, Gisbertus V o e t i u s , w r o t e a major defence o f the jurisdictional p o w e r s o f the C a l v i n i s t c h u r c h (Politica ecclesiastica, 1663). In 1665 a b r i e f b u t i m p o r t a n t treatise attacking the C a l v i n i s t arguments, Dejure ecclesiasticorum (The Right of the Clergy) w a s published o v e r the p s e u d o n y m 'Lucius Antistius C o n s t a n s ' . T h i s w o r k , w h i c h w a s o n c e attributed to Spinoza himself, d r a w s so h e a v i l y o n the arguments o f the de la C o u r t s that it can quite plausibly be attributed to Pieter de la C o u r t (e.g. b y V a n der Linde 1961, p. 16); but it goes b e y o n d the de la C o u r t s ' other published w o r k s in its attempt to assimilate the j u r a l concepts o f contract and 'jus' ('right'). It distinguishes b e t w e e n right and p o w e r , but observes that the former w i t h o u t the latter is worthless (pp. 54—5). Differences o f right w i t h i n the state are created b y the p o w e r o f the state; and the state's p o w e r arises either t h r o u g h the conquest o f the w e a k b y the strong, or t h r o u g h a social contract, w h e r e b y p e o p l e transfer their 'right and p o w e r ' to the ruler (pp. 9—12). Just as the n o t i o n o f ' r i g h t ' is w e a k e n e d , in the course o f this a r g u m e n t , b y its constant association w i t h ' p o w e r ' , so t o o the n o t i o n o f contractual o b l i g a t i o n is absorbed into the pattern o f factual p o w e r relations: the ' c o n v e n t i o ' ('agreement') can be entirely implicit, s o m e t h i n g to be identified 'not in w o r d s but in deeds' (P-35). T h i s is the b a c k g r o u n d against w h i c h w e must situate Spinoza's o w n w r i t i n g s on the nature o f the state. It w a s in 1665 that Spinoza started w o r k o n w h a t w a s to b e c o m e his major political treatise, the Tractatus theologicopoliticus (henceforth cited TTP), a i m i n g , as he explained to one c o r r e spondent, to defend 'the f r e e d o m o f p h i l o s o p h i z i n g . . . for here it is a l w a y s suppressed t h r o u g h the excessive authority and i m p u d e n c e o f the preach ers' (Spinoza 1928, p. 206, letter 30). A n d w h e n the w o r k w a s published in 1670, he explained that he had been p r o m p t e d b y the 'fierce controversies o f the philosophers in c h u r c h and state' ( T T P , preface, 1924, in, p. 9). His library contained copies o f the de la C o u r t s ' Polityke WeegSchaal (the enlarged second edition o f the Consideratien) and Discoursen 550

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(Freudenthal 1899, p p . 161—2), and he described the f o r m e r w o r k as ' e x t r e m e l y s h r e w d ' (Tractatus politicus (henceforth cited T P ) , v n . 3 1 ) . If Pieter de la C o u r t w a s not the author o f De jure ecclesiasticorum, then the m o s t likely candidate is L o d o w i j k M e y e r , a Cartesian d o c t o r and t h e o l o g i a n w h o w a s a close friend o f Spinoza (Spinoza 1928, p. 50; M e i n s m a , 1896, p p . 1 4 6 - 5 0 ) . T h e anti-clerical, tolerationist, republican w r i t i n g s o f the 1660s f o r m the main b a c k g r o u n d to Spinoza's political w o r k s ; but o f course his o w n personal history had also g i v e n h i m cause to consider the relation b e t w e e n religion, state p o w e r , and individual freedom. B a r u c h (Benedictus in Latin) de Spinoza w a s the son o f a P o r t u g u e s e J e w ; b o r n in A m s t e r d a m in 1632, he w a s educated at a Jewish school up to the age o f thirteen, and p r o b a b l y attended a Y e s h i v a h (a society for the study o f the B i b l e , the T a l m u d , and the T o r a h ) for several years thereafter (Meinsma 1896, pp. 58—65; V a z Dias and v a n der T a k 1932, p p . 56—61). B u t in 1656 he w a s e x c o m m u n i c a t e d f r o m the s y n a g o g u e for 'the horrible heresies w h i c h he taught and practised'; the exact nature o f his offence is not k n o w n , but all the e v i d e n c e suggests that he had p r o p o u n d e d a rationalist, deist t h e o l o g y w h i c h d e m o t e d the status o f the B i b l e as divine revelation, questioned its historical accuracy, and p r o b a b l y cast d o u b t on the i m m o r t a l i t y o f the soul ( R e v a h 1959). A c c o r d i n g to s o m e early sources, he w r o t e a t h o r o u g h l y u n a p o l o getic ' A p o l o g y ' after his e x c o m m u n i c a t i o n , w h i c h contained an historical critique o f the B i b l e and a w i d e - r a n g i n g attack o n the Jewish religion (Preposiet 1973, p p . 345, 4 1 7 ) . If this is so, then it is reasonable to assume that s o m e o f this material w a s put to use in the Tractatus theologico-politicus. H o w e v e r , the main outlines o f the political theory in that b o o k are d r a w n n o t f r o m debates w i t h i n Judaism but f r o m the D u t c h H o b b e s i a n republican tradition. E v e n the l e n g t h y discussions o f the O l d T e s t a m e n t in that treatise m a y also o w e s o m e t h i n g directly to H o b b e s : a l t h o u g h Spinoza did not read English, he w a s a friend o f the m a n w h o w a s translat ing Leviathan into D u t c h in the period 1 6 6 5 - 7 , and he m a y also h a v e had time to benefit f r o m the Latin translation o f Leviathan (1668) before finishing the Tractatus theologico-politicus in 1670 ( S c h o n e v e l d 1983, pp. 8, 40). T h e main arguments o f the treatise are succinctly summarised b y Spinoza himself. H e argues first that p h i l o s o p h y and t h e o l o g y are radically different in nature, 'and that the latter a l l o w s each person to philosophise freely' ( T T P , ch. 16, 1924, in, p. 189); then 'that rights o v e r religion b e l o n g entirely to the s o v e r e i g n , and that external acts o f w o r s h i p must be adapted 551

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to serve the peace o f the state' (ch. 19, 1924, in, p. 228); and finally that f r e e d o m o f speech 'is not o n l y c o m p a t i b l e w i t h civil peace, piety and the right o f the sovereign, but in fact o u g h t to be permitted in order to preserve all those things' (ch. 20, 1924,111, p. 247). T h e separation o f p h i l o s o p h y and t h e o l o g y is carefully m a n a g e d , in a w a y w h i c h preserves an apparent respect for the special nature o f revelation w h i l e at the same time suggesting that it is ultimately unnecessary. P h i l o s o p h y can teach b o t h virtue and the k n o w l e d g e o f G o d (these t w o things b e i n g inseparable in Spinoza's t h e o r y ) ; t h e o l o g y , o n the other hand, w h i c h is based o n revelation, aims o n l y at teaching obedience to G o d (chs. 7, 14, 15). For this purpose the teachings o f the O l d T e s t a m e n t w e r e 'adapted' to the understandings o f ordinary people o f the time: the validity o f a t h e o l o g i c a l doctrine lies not in its truth but in its p o w e r to instil obedience (ch. 14, 1924, in, pp. 176—7). O n l y gradually does Spinoza m a k e it plain that obedience is an inferior substitute for understanding, that the principal contents o f revelation — p r o p h e c y and miracles — are fictions adapted for w e a k minds w h i c h cannot understand that G o d w o r k s in nature b y means o f i m m u t a b l e laws, and that the peculiar injunctions g i v e n to the J e w s in the O l d T e s t a m e n t w e r e essentially political devices, designed to further political obedience and social cohesion. S o m e o f these arguments m a y h a v e derived f r o m M o s e s M a i m o n i d e s ' t h e o r y o f divine l a w , w h i c h stressed that divine c o m m a n d s w e r e adapted to historical conditions in the O l d Testament, and suggested that the dietary and ceremonial laws w e r e simply devices for instilling m o r a l virtues - virtues w h i c h c o u l d in principle be arrived at p h i l o s o p h i cally, w i t h o u t the use o f revelation ( M a i m o n i d e s 1975, pp. 7 1 - 2 , 1904, pp. 3 1 2 - 8 0 ) . B u t Spinoza's c o m m e n t s o n the use o f religion as an instrument o f political p o w e r also reflect his careful reading o f Tacitus and Machiavelli. T h i s is particularly apparent in his account o f the Jewish state in chapter 17 o f the treatise, w h e r e he implies that w h e n the J e w s m a d e G o d their sovereign they w e r e in fact b e i n g cleverly manipulated b y M o s e s , w h o b e c a m e their effective ruler as G o d ' s representatives on earth. Since religion is such a p o w e r f u l force in h u m a n p s y c h o l o g y ( c o m b i n i n g l o v e , fear, and admiration — the last t w o o f w h i c h are the products o f defective understanding), this p s e u d o - t h e o c r a c y w a s a v e r y successful f o r m o f c o v e r t m o n a r c h y ; but M o s e s ' system o f g o v e r n m e n t w a s flawed, Spinoza argues, because it a l l o w e d the L e v i t e priests to retain a f o r m o f religious jurisdiction, and in later generations they w e r e able to assume political p o w e r and reduce the Jewish nation to civil w a r (ch. 18). 552

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Spinoza's t h e o r y o f the nature and purpose o f political p o w e r is set out in the Tractatus theologico-politicus (esp. ch. 16) and in the first six chapters o f his later, unfinished w o r k , the Tractatus politicus. L i k e the de la C o u r t s , he starts w i t h the assumption that m e n are passionate creatures, g u i d e d b y short-term self-interest; as they b e c o m e m o r e rational, they w i l l be g u i d e d b y l o n g e r term self-interest, but self-interest remains the k e y to all h u m a n actions ( T T P , ch. 1 7 , 1924, in, p p . 215—16). Social c o o p e r a t i o n is necessary for leading a secure and pleasant life. T h e m o r e rational a m a n is, the m o r e he w i l l desire c o o p e r a t i o n because he understands this; but political p o w e r , w i e l d i n g c o e r c i v e force, is needed to k e e p irrational m e n f r o m pursuing their o w n short-term interest against the interests o f society at large. A n d since rulers as w e l l as ruled w i l l be subject to passions, constitutions must be designed to ensure that subjects and rulers w i l l subordinate or assimilate their o w n interests to the interests o f the w h o l e state (ch. 17, 1924, in, p. 203). In the Tractatus politicus Spinoza intended to s h o w h o w this c o u l d be achieved in each f o r m o f constitution ( m o n a r c h y , aristocracy and d e m o c r a c y ) ; unfortunately he died before c o m p l e t i n g his section o n d e m o c r a c y , w h i c h he held to be the most natural and most rational o f the three forms. L i k e the de la C o u r t s , he argued in the Tractatus theologicopoliticus that the subjects o f a d e m o c r a c y w o u l d enjoy a greater sense o f freedom, because in o b e y i n g the s o v e r e i g n they w e r e o b e y i n g themselves (ch. 16, 1924, in, p. 195); and he also f o l l o w e d the de la C o u r t s in c l a i m i n g that the process o f d e c i s i o n - m a k i n g in a large assembly w o u l d cancel out individual passions and ensure the prevalence o f reason (ch. 16, 1924, in, p. 194; o n his debt to the de la C o u r t s in TP see Haitsma M u l i e r 1980, p p . 187-208). T h u s far, Spinoza's t h e o r y seems confined to the bare analysis o f m o t i v a t i o n and p o w e r structures. M u c h o f the interest o f his theory, h o w e v e r , lies in the w a y in w h i c h he assimilates the concepts o f ' r i g h t ' and 'contract' into his a r g u m e n t . H e makes use o f the c o n c e p t o f 'right', but identifies it c o m p l e t e l y w i t h ' p o w e r ' . T h i s is not a piece o f casual c y n i c i s m o n his part: it flows f r o m the heart o f his philosophical t h e o l o g y , w h i c h attributes b o t h infinite right and infinite p o w e r to G o d , and identifies the physical universe as an expression o f G o d ' s nature. It f o l l o w s f r o m this that e v e r y event in the physical w o r l d is an expression b o t h o f G o d ' s p o w e r and o f His right. ' W h a t e v e r m a n does, w h e t h e r he is led to d o it b y reason or o n l y be desire, he does it a c c o r d i n g to the l a w s and rules o f nature, that is, b y natural r i g h t ' ( T P , 11.5, 1924, m , p. 277). W h e r e H o b b e s argued b o t h that natural rights w e r e all-encompassing and that there w e r e s o m e actions 553

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(contrary to self-preservation) w h i c h people did not h a v e the right to p e r f o r m , Spinoza can argue b o t h that m e n h a v e the right to d o w h a t e v e r they can d o , and that an order o f preference can be established w h e n considering alternative courses o f action: actions w h i c h help ensure the agent's self-preservation w i l l increase his right because they increase his p o w e r , so that in s o m e sense he w i l l h a v e less right to p e r f o r m those actions w h i c h diminish his p o w e r . Just as S p i n o z a uses the t e r m 'right' but reduces it to ' p o w e r ' , so t o o he uses the term 'contract' but reduces it to a relationship o f p o w e r . In chapter 16 o f the Tractatus theologico-politicus he describes, in terms reminiscent o f De Cive, h o w p e o p l e must h a v e transferred their natural right to the s o v e r e i g n t h r o u g h a 'contract' ( ' p a c t u m ' or 'contractus'). In the later Tractatus politicus this a c c o u n t o f a contract is n o t a b l y absent: the n o t i o n o f ' a g r e e m e n t ' ('consensus') is used instead, and m e n are said to ' c o m e t o g e t h e r ' to f o r m a state n o t because they are led b y reason but because they are driven b y c o m m o n passions ( v i . i , 1924, m, p. 295). T h i s has led s o m e c o m m e n t a t o r s to suggest that Spinoza b e l i e v e d , in the earlier w o r k , in an historical contract w h i c h the founders o f society had entered into out o f 'rational foresight', and that he later a b a n d o n e d this belief ( W e r n h a m 1958, pp.25—6). Y e t the real differences b e t w e e n the t w o accounts are n o t so great. A transfer o f right, as the earlier w o r k has already m a d e clear, can o n l y a m o u n t to a transfer o f p o w e r , and this is s o m e t h i n g w h i c h can c o m e about w i t h o u t 'rational foresight' p l a y i n g any special role. S p i n o z a emphasises in the Tractatus theologico-politicus that 'a contract is b i n d i n g o n l y b y reason o f its utility' (ch. 16, 1924, in, p. 192); as soon as it b e c o m e s a d v a n t a g e o u s for s o m e o n e to break his contract, he w i l l h a v e the right to d o so. T h i s means that m e n k e e p their contract o f o b e d i e n c e o n l y because the s o v e r e i g n w i e l d s real p o w e r . S u c h a v i e w is entirely c o m p a t i b l e w i t h the idea that the origins o f the state g o b a c k not to a set o f formal articles o f a g r e e m e n t but to a gradual coalescence o f h u m a n p o w e r relations. W h e n Spinoza introduces the idea o f a contract in chapter 16 o f the Tractatus theologico-politicus he says, in a revealing construction, that m e n 'must h a v e ' contracted (1924, m, p. 191); the n o t i o n o f a contract is n o t h i n g m o r e than a d e v i c e for describing a p o w e r - r e l a t i o n s h i p w h i c h is i n f o r m e d b y an understanding o f mutual benefit, and to describe such an arrangement as rational does n o t i m p l y that it can o n l y h a v e been i n t r o d u c e d t h r o u g h a conscious act o f reason. Spinoza seems to h a v e adopted, at this point in the earlier treatise, a H o b b e s i a n t e r m i n o l o g y o f ' t r a n s f e r r i n g ' natural rights, because he w a n t e d 554

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to m a k e the H o b b e s i a n anti-clerical point that all rights b e l o n g e d to the sovereign. (This w a s the first stage o f his tolerationist a r g u m e n t , aimed at r e m o v i n g the jurisdictional p o w e r s o f the c l e r g y w h i c h w o u l d otherwise be d e p l o y e d against f r e e d o m o f opinion.) A t one point he says that the subject must h a v e ' c o m p l e t e l y y i e l d e d ' his natural right (ch. 16, 1924, in, p. 195). B u t this is a misleading f o r m o f w o r d s for Spinoza to use, and it can o n l y a m o u n t to saying that the subject is sufficiently m o t i v a t e d to act a l w a y s in c o m p l e t e accordance w i t h the w i l l o f the sovereign. For each person, in Spinoza's theory, retains natural right so l o n g as he retains natural p o w e r : w h e n asked b y a friend to explain the difference b e t w e e n his t h e o r y and H o b b e s ' , he replied that it 'consists in this, that I ever preserve the natural right intact, so that the S u p r e m e P o w e r in a State has n o m o r e right o v e r a subject than is proportionate to the p o w e r b y w h i c h it is superior to the subject' (Spinoza 1928, p. 269). T h i s is the essential a r g u m e n t w h i c h enables S p i n o z a to c o n c l u d e that the toleration o f religious and philosophical opinions is b o t h c o m p a t i b l e w i t h the sovereign's p o w e r and beneficial to it. In Spinoza's state the p o w e r o f the s o v e r e i g n can rise or fall, a c c o r d i n g t o h o w the subjects b e c o m e m o r e or less fully m o t i v a t e d to o b e y it. M o r e p o w e r , and therefore m o r e right, inheres in a p o l i c y w h i c h is popular: it is in the interests o f the s o v e r e i g n to a v o i d alienating his subjects. L a w s forbidding beliefs are, as H o b b e s pointed out, fatuous; but Spinoza adds that l a w s forbidding people to express their beliefs w i l l render those people sullen and hostile, and thereby w e a k e n the p o w e r o f the state ( T T P , ch. 20). O n l y the preaching o f seditious doctrines must be proscribed; all opinions w h i c h d o not disturb the peace o f the state are to be a l l o w e d . Despite, or perhaps because of, his reductive style o f p o w e r analysis, Spinoza seems possibly to h a v e arrived at a liberal, pluralistic t h e o r y o f the state w h i c h matches the liberal elements o f H o b b e s ' theory. It is possible to argue that the role o f the S p i n o z a n state is simply to p r o v i d e an external f r a m e w o r k o f peace and security w i t h i n w h i c h individuals can continue to pursue their o w n interests (den U y l 1983, esp. p p . 111—28). S u c h an interpretation, h o w e v e r , ignores the implications o f Spinoza's metaphysics and p s y c h o l o g y . His major exposition o f these subjects, the Ethics, w a s c o m p l e t e d c o n c u r r e n t l y w i t h the w r i t i n g o f the Tractatus theologico-politicus in the second half o f the 1660s, and he referred to the Ethics, i m p l y i n g that it w a s part o f the same systematic b o d y o f t h e o r y , in chapter 2 o f the Tractatus politicus (1924, in, p. 276). O n l y f r o m the Ethics d o w e learn just h o w radically different Spinoza's metaphysics w e r e f r o m H o b b e s ' , and therefore 555

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h o w c o m p l e t e l y his t h e o r y o f reason and his theory o f h u m a n liberty differed f r o m H o b b e s ' t o o . In Spinoza's metaphysics, all reality is c o m p r e h e n d e d in G o d , w h o is the o n l y substance, that is, the o n l y absolutely self-subsistent b e i n g . G o d is k n o w a b l e t h r o u g h an infinite n u m b e r of'attributes', o f w h i c h o n l y t w o are actually k n o w n to us: extension and t h o u g h t . A h u m a n b o d y is a ' m o d e ' (i.e. a modification, a particular entity) o f extension, and a h u m a n m i n d is a m o d e o f t h o u g h t . T h e r e is a strict parallelism b e t w e e n these m o d e s o f different attributes: neither can act causally o n the other, but each is an expression (in a c o m p l e t e l y different dimension, so to speak) o f the same c o m p o n e n t o f the divine substance. T h u s a h u m a n m i n d is the 'idea o f a h u m a n b o d y ; the d e v e l o p m e n t o f the m i n d and the d e v e l o p m e n t o f the b o d y w i l l consist o f the same d e v e l o p m e n t b e i n g manifested in different forms. Physical bodies exist in an order o f causes; t h o u g h t exists in an order o f reasons or implications. T h e h u m a n m i n d , b e i n g the idea o f the h u m a n b o d y , contains the ideas o f the experiences w h i c h the b o d y u n d e r g o e s . If the m i n d fails to understand these ideas 'adequately' (that is, i f it fails to recognise the w a y in w h i c h each is i m p l i c i t l y part o f the w h o l e system o f the divine substance) then it experiences an i m p a i r m e n t o f p o w e r , a passive e m o t i o n , or 'passion' (e.g. fear). B u t i f the cause or reason is understood adequately b y the m i n d , then the m i n d is exercising and enlarging its p o w e r o f action, and the passion is transformed into an active e m o t i o n (e.g. l o v e ) . A l l active e m o t i o n s are ultimately forms o f the l o v e o f G o d , because they derive f r o m acts o f understanding w h i c h i n v o l v e relating particular things to the totality o f things, w h i c h is G o d . T h e m o r e active the m i n d is — the m o r e , in other w o r d s , it 'contains' the causes o f its action w i t h i n itself— the m o r e free it is. S p i n o z a is a classic e x p o n e n t o f the rationalist t h e o r y o f f r e e d o m (cf. TP 11.7), and therefore lies at the opposite p o l e f r o m H o b b e s ' v i e w o f f r e e d o m as the absence o f i m p e d i m e n t . In Part iv o f the Ethics Spinoza explains that w h i l e passions are individual and particularising, reason is universal and h a r m o n i s i n g . ' M e n can be o p p o s e d to each other insofar as they are afflicted w i t h e m o t i o n s w h i c h are passions' (prop. 34, 1924, 11, p. 2 3 1 ) ; ' m e n necessarily agree w i t h one another insofar as they live a c c o r d i n g to the dictates o f reason' (prop. 35, d e m . , 1924, 11, p . 233). T h i s ' a g r e e m e n t ' is a real h a r m o n i s i n g and c o n v e r g i n g o f minds, Hot just an attitude o f liberal non-interference: as Spinoza w r o t e in his early Short Treatise, i f I teach k n o w l e d g e and the l o v e o f G o d to m y n e i g h b o u r s , 'it brings forth the same desire in t h e m that there 556

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Hobbes and

Spinoza

is in m e , so that their w i l l and m i n e b e c o m e one and the same, constituting one and the same nature, a l w a y s agreeing about e v e r y t h i n g ' ( x x v i . 4 , 1924, 1, p . 112). A l t h o u g h in his metaphysics he rejected t e l e o l o g y in the strict sense, Spinoza's a c c o u n t o f reason as the defining feature o f the ' h u m a n essence' gives rise to a quasi-teleological scale o f values for m a n k i n d : m a n fulfils his nature m o r e fully w h e n he acts rationally. S u c h a t h e o r y c o u l d n o t be further r e m o v e d f r o m H o b b e s ' v i e w , in w h i c h reason is s i m p l y the servant o f the desires. E v e n the apparent a g r e e m e n t b e t w e e n the t w o writers o n the p r i m a c y o f self-preservation is r e m o v e d b y Spinoza's a r g u m e n t that a man's true self, his ' p o w e r o f acting', is his reason (Ethics, part 4, p r o p . 52, d e m . , 1924, 11, p . 248). T h e aim o f Spinoza's state is to m a k e m e n rational and free. ' W h e n I say that the best state is one in w h i c h m e n live h a r m o n i o u s l y together, I m e a n a f o r m o f life . . . w h i c h is defined a b o v e all b y reason, the true virtue and life o f the m i n d ' (TP, v . 5 , 1924, m , p. 296). S p i n o z a recognises that the state must be constructed to contain those w h o are n o t p r e d o m i n a n t l y rational and virtuous; b u t the state can aim gradually to m o u l d its citizens into a m o r e rational k i n d o f existence b y i m p o s i n g rational l a w s o n t h e m . In v e r y general terms, w e m i g h t say that the history o f republicanism in political p h i l o s o p h y presents t w o fundamentally different defences o f republican g o v e r n m e n t . T h e r e is a mechanistic t y p e o f theory, w h i c h sees the construction o f a republic as the solution to the p r o b l e m o f organising and balancing a mass o f conflicting individual forces; and there is the rationalistidealist t y p e o f t h e o r y , w h i c h believes that in a republic m e n are freed f r o m the c o r r u p t i n g ties o f dependence o n or subjection to personal authority, and are enabled to participate m o s t fully as rational beings in the rationality o f the state and its l a w s . S p i n o z a manages to c o m b i n e b o t h types o f theory in a single system: that is the distinction, and the a m b i g u i t y , o f his achievement.

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V Natural law and utility

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19 Pufendorf ALFRED

DUFOUR

T h e S a x o n philosopher S a m u e l P u f e n d o r f has, for three reasons, an unusual place in the history o f m o d e r n political t h o u g h t . First, unlike H o b b e s or M o n t e s q u i e u , he has often been consigned to o b l i v i o n . H e w a s famous in his o w n t i m e and a central figure in eighteenth-century w r i t i n g , t h r o u g h the texts translated, c o m p i l e d and popularised b y Jean B a r b e y r a c , JeanJacques B u r l a m a q u i , and Jean-Jacques R o u s s e a u . G r a d u a l l y , h o w e v e r , his w o r k b e c a m e discredited, b e c o m i n g o v e r s h a d o w e d b y Christian T h o m a sius, Christian W o l f f , and K a n t in G e r m a n y , and b y L o c k e and R o u s s e a u in the English and French traditions. His reputation w a s n e v e r secure, and e v e n contemporaries passed c o n t r a d i c t o r y j u d g e m e n t s . L e i b n i z denigrated h i m as ' n o l a w y e r , and scarcely a philosopher at all' (Leibniz 1768, p. 2 6 1 ) . T h o m a s i u s lauded h i m as 'the first in G e r m a n y to think o f establishing a science o f m o r a l i t y in accordance w i t h m a t h e m a t i c a l m e t h o d s ' ( T h o m a s i u s 1 7 1 9 , p . 6). S e c o n d l y , unlike B o d i n , L o c k e , or R o u s s e a u , P u f e n d o r f left a disparate b o d y o f w o r k , s e e m i n g l y l a c k i n g in unity and containing n o major political text. H e w r o t e v o l u m i n o u s l y o n practical p h i l o s o p h y and public l a w , and m o n u m e n t a l historical w o r k s . Y e t he does n o t l o o k like a classical political thinker. T h i r d l y , unlike, say, M a c h i a v e l l i or M o r e , P u f e n d o r f s political t h o u g h t is characterised n o t b y the originality o f his o w n ideas, but b y his eclecticism. H e b o r r o w e d the e p i s t e m o l o g i c a l and m e t h o d o l o g i c a l principles o f the Jena Cartesian Erhard W e i g e l and s o u g h t to c o m b i n e the o p p o s i n g a n t h r o p o l o g i c a l and political concepts o f H o b b e s and G r o t i u s . C o n s e q u e n t l y , for a l o n g time he w a s seen as 'a thinker o f secondary i m p o r t a n c e ' , at w o r s t 'a dull and indigestible c o m p i l e r ' (Derathé 1970, p . 78; B e l i m e 1856, p. 1 1 ) . P u f e n d o r f s reputation has, therefore, suffered, n o t so m u c h because o f the vicissitudes o f the current o f t h o u g h t o f This chapter was translated from the French b y D r J . C . W h i t e h o u s e and abridged b y D r M a r k G o l d i e .

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Natural law and utility w h i c h he w a s the m o s t p r o m i n e n t representative, that o f m o d e r n natural l a w , but f r o m the e n o r m o u s c o m p l e x i t y o f his w o r k and the stature o f his great contemporaries and successors. P u f e n d o r f w a s a pioneer o f G e r m a n theories o f natural l a w and o f the state, and an e x p o n e n t o f the doctrine o f the interests o f states. His m a i n legacy, after his Elements of Universal Jurisprudence (1660), is. his On the Law of Nature and Nations (1672) and On the Duty of Man and the Citizen (1673), his treatises o n practical p h i l o s o p h y w h i c h b e c a m e authorities t h r o u g h o u t E u r o p e , shaping the rise o f the school o f the l a w o f nature and nations, and serving as justifications for regimes based either o n enlightened despotism or o n declarations o f the rights o f m a n . P u f e n d o r f w a s early attracted to political p r o b l e m s and q u i c k l y b e c a m e an authority o n public l a w , e x a m i n i n g the natural foundations and historical forms o f the state, as in his essay On the Constitution of the German Empire (1667) and his studies On the Irregular Republic (1677) and On the Systems of States (1677), w h i c h gained h i m a solid reputation a m o n g s t publicists. H e also e x a m i n e d ecclesiastical l a w and church—state relation ships, as in his treatise On the Relation of the Christian Religion to Civil Life (1687), w h i c h put h i m f i r m l y in the Lutheran tradition o f the subordination o f religious c o m m u n i t i e s to civil authority. H e w a s later appointed official historiographer to the kings o f S w e d e n in 1677 and to the Electors o f B r a n d e n b u r g in 1686, and p r o d u c e d t w o impressive Histories of Sweden (1695 and 1696) and t w o Histories of the Electors of Brandenburg (1695 3 734)» painstakingly based o n diplomatic archives, a milestone in G e r m a n h i s t o r i o g r a p h y . H e also p r o d u c e d an Introduction to the History of the Principal Kingdoms and States of Europe (1682). T h i s , b y h i g h l i g h t i n g 'the interests o f states', s h o w s h i m to be one o f the first G e r m a n theoreticians o f the idea o f reason o f state. It w a s a t h e m e already a d u m b r a t e d in his Constitution of the German Empire, and w a s a result o f his openness to k n o w l e d g e acquired b o t h f r o m experience and the demands o f reason. It is n o t surprising that at the b e g i n n i n g o f this century M e i n e c k e , the historian o f reason o f state, should regard P u f e n d o r f as freeing the t h e o r y o f the state ' f r o m the shackles o f t h e o l o g y ' and b u i l d i n g instead u p o n the master c o n c e p t i o n o f ' r e a s o n o f state and the interests o f nations' ( M e i n e c k e 1924, p. 280). a n <

x

A deep c o h e r e n c e underlies the diversity o f P u f e n d o r f s w o r k . Its unity lies in his central p r e o c c u p a t i o n w i t h the nature o f the state and the p r i m a c y o f the political. His a p p r o a c h is m a r k e d b y eclecticism, and he cannot be reduced to any particular school. T h e r e is s o m e t h i n g in c o m m o n w i t h the 562

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Pufendorf rationalistic o p t i m i s m c o m m o n at the time, y e t his ideas remain o p e n to the experience history p r o v i d e s . H e is certainly w i t h i n the tradition o f O c k h a m ' s voluntarist n o m i n a l i s m , but that does not prevent P u f e n d o r f maintaining that divine decrees are rational insofar as they respect the requirements o f the order o f C r e a t i o n . Similarly, the part he allots to consent in the foundation o f all authority does not m e a n he can be seen as offering an early f o r m o f liberal individualism, n o r does the favourable w a y he seems to regard m o n a r c h y a l l o w o f an opportunistic absolutism. H e is fundamentally to be seen as a mediator and reconciler, a m a n o f c o m p r o m i s e . H e e m b o d i e s in secular p h i l o s o p h y the syncretic and conciliating spirit w h i c h , a h u n d r e d years earlier, w a s represented in t h e o l o g y b y Suárez. A s a G e r m a n Suárez, he lacks the t h e o l o g i c a l and metaphysical t e m p e r o f the Spanish Jesuit, but he shares his eclecticism and ability to reconcile conflicting theses. T h i s is first evident i f w e e x a m i n e the philosophical bases o f his political t h o u g h t . 1

2

i

T h e philosophical bases o f P u f e n d o r P s t h o u g h t

P u f e n d o r f ' s o v e r r i d i n g aim w a s to take a d v a n t a g e o f the m e t h o d o l o g y o f the physical and mathematical sciences in order to confer o n the h u m a n sciences the certitude that the Aristotelian scholastic tradition denied t h e m (Pufendorf (1660) 1 9 3 1 , p. i / x x v i i i , (1672) 1934, i-ii-1, p p . 1 4 - 1 5 / 2 2 ) . In this he w a s p r o f o u n d l y influenced b y Descartes, introduced to h i m b y his Jena master, the philosopher and mathematician W e i g e l (Spiess 1881). A l t h o u g h P u f e n d o r f w a s c o n v i n c e d o f the appropriateness o f a p p l y i n g the n e w scientific m e t h o d o l o g y to s o c i o - m o r a l reality, either in its resolutivec o m p o s i t i v e f o r m , to w h i c h H o b b e s s h o w e d h i m the w a y , or in its demonstrative f o r m , for w h i c h Spinoza p r o v i d e d the e x a m p l e , he nevertheless t o o k care not to fall into the mechanistic materialism o f the f o r m e r or the sociological naturalism o f the latter, w h o b o t h reduced the s o c i o - m o r a l universe to that o f physical reality ((1672) 1934, n.ii.3, pp. 108—11/158—62). T h u s it w a s that he set h i m s e l f the preliminary task o f 3

1. For some o f these theses see W e l z e l 1958, pp. 6-7, 38-9, 1962, pp. 1 3 0 - 1 ; and Sauter 1932, p. I36n. 2. O n P u f e n d o r f s eclecticism see his letter to Thomasius (19 June 1688) in Pufendorf 1893, pp. 3 0 - 1 . For recent c o m m e n t a r y see Krieger 1965, p. 3; Denzer 1972, pp. 9, 324. 3. References in the text and notes to P u f e n d o r f s On the Law of Nature ((1672) 1934), Elements ((1660) 1931), and On the Duty of Man ((1673) 1927) give page numbers o f the Latin texts and o f the English translations; in the case o f On the Law of Nature and On the Duty of Man page references are preceded b y b o o k and section numbers. In references supplied in the text ' P u f e n d o r f is omitted w h e r e it is obvious that his w o r k is being cited.

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Natural law and utility establishing the a u t o n o m y o f the s o c i o - m o r a l w o r l d and defining the specificity o f the h u m a n sciences. P u f e n d o r f fulfilled this task b y a t h e o r y o f m o r a l realities (entia mor alia) w h i c h enabled h i m to stress the irreducibly separate origins o f the s o c i o m o r a l w o r l d ( W e l z e l 1958, p p . 19—21; K r i e g e r 1965, p p . 73—81). T h i s w a s a singularly i n n o v a t i v e t h e o r y o f culture, y e t a misunderstood one. T h e e p i s t e m o l o g i c a l considerations u n d e r l y i n g the Elements of Universal Juris prudence and On the Law of Nature, under the rubric ofenda mor alia, are the k e y to his legal and political t h o u g h t ((1660) 1 9 3 1 , p. i / x x v i i i , D e f . I - X X I , p p . 1 - 2 4 2 / 1 - 2 0 6 ; (1672) 1934, i.i, p p . 1 - 1 4 / 3 - 2 1 ) . In s o m e aspects they are close to m o d e r n t h i n k i n g . T h e y f o r e s h a d o w the n e o - K a n t i a n v i e w o f the Geisteswissenschaften and the Naturwissenschaften as opposites: a distinction b e t w e e n the realm o f culture, w h i c h is the creation o f freedom, and the realm o f nature, w h i c h is d o m i n a t e d b y necessity ( W e l z e l 1958, p p . 19—21; 1962, p p . 132—3). It renders the science o f h u m a n k i n d separate f r o m the natural sciences. T o Pufendorf, h u m a n beings are different f r o m all other natural beings, w h o are m o t i v a t e d solely b y instinct, n o t o n l y b y virtue o f their faculties o f k n o w i n g and w i l l i n g , but also in their ability to invent and a p p l y means o f directing t h e m or p r o v i d i n g for their needs. T h o s e means are ideas, w h i c h serve to clarify the understanding, and m o r a l entities, w h i c h serve as rules for acts o f the w i l l ((1672) 1934, i.i.2, p p . 2/4—5). thus defining the cultural w o r l d , P u f e n d o r f is able to synthesise the sciences o f the m i n d and the m o r a l and social sciences o n the basis o f this t h e o r y o f m o r a l entities. m

F o l l o w i n g the m o d e l o f the creation o f natural reality either b y the i m p o s i t i o n o f the w i l l o f G o d , ' w h o did n o t w i s h m e n to live w i t h o u t culture or morals, like the beasts', or o f h u m a n w i l l , to fulfil the needs o f c o m m u n a l life, m o r a l entities are ordained for the perfection o f h u m a n life insofar as it is susceptible o f order and h a r m o n y ((1672) 1934, i.i.3—4, p. 3/5). P u f e n d o r f sees these realities as modes, w h i c h d o n o t subsist o f themselves but are a l w a y s supported b y physical realities ultimately serving as substances for t h e m , and affecting t h e m in c o n f o r m i t y w i t h the w i l l that b r o u g h t t h e m into b e i n g ((1672) 1934, i.i.3» P- 2/5). Since they o w e their existence solely to the free decisions o f beings e n d o w e d w i t h reason (as a s h a d o w o w e s its existence solely to light), they disappear o n c e those decisions h a v e been r e v o k e d , w i t h n o resultant c h a n g e in the physical substance o f the realities they affect ((1672) 1934, 1.Í.4, p . 3/6, i.i.23, p. 1 4 / 2 1 ) . In maintaining that m o r a l realities h a v e n o effect o f a physical k i n d and hence stressing the radical h e t e r o g e n e i t y o f the s o c i o - m o r a l and 564

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Pufendorf physical w o r l d s , P u f e n d o r f w a s seeking to a v o i d b o t h the terrible confusions o f scholastic t h o u g h t still w e i g h i n g u p o n c o n t e m p o r a r y political theologies and the reductive materialist contaminations o f the physical and mathematical sciences j e o p a r d i s i n g the rise o f m o d e r n political philosophy. O n c e he had determined the status o f m o r a l realities, P u f e n d o r f defined their different categories, conceptualising t h e m on the m o d e l o f the traditional metaphysical categories o f space, time, substance, quality, and quantity. H e differentiated the f o l l o w i n g four m o r a l categories ('space' and ' t i m e ' b e i n g c o m b i n e d in the first o f t h e m ) . First, states (status), w h i c h , b y a n a l o g y w i t h space and time, f o r m the f r a m e w o r k w i t h i n w h i c h m o r a l beings function ((1672) 1934, i.i.6, p. 4/7). B y 'state' P u f e n d o r f meant any c o n d i t i o n , in principle i n v o l v i n g rights and duties, in w h i c h people are placed in order to carry out certain actions ((1673) 1927, n . i . i , p . 98/89). B y a n a l o g y w i t h space, he distinguishes the state o f nature (status naturae), w h i c h arises f r o m the i m p o s i t i o n o f divine w i l l , and adventitious states (status adventitii), w h i c h are the result o f h u m a n wishes (marriage, domestic and political society). B y a n a l o g y w i t h time, he distinguishes y o u t h and age, w h i c h arise f r o m the order i m p o s e d b y G o d , and m i n o r i t y and majority, w h i c h depend o n the arbitrary c o n v e n t i o n s o f h u m a n k i n d ((1672) 1934, i.i.7—10, p p . 4—6/7—10). S e c o n d l y , m o r a l persons (personae morales), h a v i n g the role o f substances, w h i c h , t h o u g h g r o u n d e d in physical realities, d o n o t lose their m o r a l character. B y m o r a l person P u f e n d o r f means n o t o n l y any individual, but also any g r o u p o f persons, in relation to the m o r a l state they find themselves in. H e contrasts the single person (persona simplex) and the c o m p o s i t e person (persona composita) and in each case the political or ecclesiastical public and private person ((1672) 1934, i.i.12—13, PP- 7~9/ 1—13). T h i r d l y , m o r a l qualities, w h i c h are affective m o d e s and c o v e r e v e r y modification affecting persons at the m o r a l level. P u f e n d o r f distinguishes formal qualities (such as titles o f h o n o u r ) , and operative qualities (such as p o w e r s , rights, and obligations, and h o n o u r , credit, and i n f a m y ) . F o u r t h l y , moral quantities, w h i c h are estimative m o d e s , reflecting the degree o f esteem that can be granted to things and actions in accordance w i t h h u m a n j u d g e m e n t , such as consideration T h e s e apparently h i g h l y academic (existimatio) and price (pretium). 1

4

5

4. For the definition o f the moral qualities see Pufendorf (1672) 1934, i.i.17—18, pp. 1 1 - 1 2 / 1 6 — 1 7 , (1660) 1931, Def. xnff, pp. 8og/7iff; for the distinctions, see (1672) 1934, i . i . 1 7 - 2 1 , pp. 1 1 - 1 3 / 1 6 - 2 0 . 5. Pufendorf (1672) 1934, i.i.17, 22, pp. 1 1 - 1 4 / 1 7 - 2 1 , (1660) 1931, Def. x , x v m , pp. 7 2 - 6 / 6 4 - 7 0 , 220—9/181-96.

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Natural law and utility distinctions w e r e vital parts o f P u f e n d o r f s r e n o v a t i o n o f the traditional theory o f society, l a w , and the state. These i n n o v a t o r y concepts w e r e strikingly different f r o m the stilld o m i n a n t scholasticism, and t h o u g h he did take up s o m e o f its ideas, they acquired a different m e a n i n g in his hands. T h i s is particularly true o f the 'state o f nature'. B y this phrase he did not m e a n the scholastic n o t i o n o f the ' c o n d i t i o n w h i c h nature intended should be most perfect', but that condition w h i c h h u m a n k i n d is in ' b y the mere fact o f its birth, all inventions and institutions . . . b e i n g disregarded' ((1672) 1934, n . i i . i , p. 105/154). T h e state o f nature is derived f r o m an analysis o f h u m a n k i n d in its present state, and n o t f r o m speculation about origins or alleged essential purposes. It w a s not thereby m e r e l y an abstraction or fiction, but a juridical reality characteristic o f the life o f p e o p l e and societies bereft o f all connections other than those that exist because they are similar b y nature. T h e state o f nature contrasts w i t h e v e r y f o r m o f civilisation and civil society, it is prior to any institutions. F r o m this basis, P u f e n d o r f determines the basic rights and duties o f m a n qua m a n , - 'total independence f r o m all but G o d ' and ' c o m p l e t e equality before all m e n ' — and also the elementary rules w h i c h g o v e r n the relations o f p e o p l e and states l i v i n g outside any political c o m m u n i t y . 6

7

In affirming the f r e e d o m and basic equality o f all m e n in the state o f nature, and in g o i n g against traditional doctrines like those o f Filmer and Bossuet, P u f e n d o r f u n d e r m i n e d the current c o n c e p t i o n o f natural author ity, w h i c h derived the right to c o m m a n d f r o m physical or intellectual superiority ((1672) 1934, i . v i . n , pp. 6 8 - 7 0 / 9 9 - 1 0 1 ) . In its place he put a n e w theory o f p o w e r in w h i c h all kinds o f authority w e r e g r o u n d e d in a g r e e m e n t or free consent ((1672) 1934, in.ii.8, pp. 2 3 2 / 3 4 1 - 2 ) . T h i s doctrine o f ' c o n v e n t i o n a l i s m ' has close links w i t h the e p i s t e m o l o g i c a l principles e m b e d d e d in his idea o f rrforal entities. A l l social p o w e r is a m o r a l quality g r o u n d e d in acts o f w i l l . ' S o v e r e i g n t y , as a m o r a l entity o f one m a n o v e r another, does n o t exist w i t h o u t a h u m a n act and is not intelligible w i t h o u t o b e d i e n c e . ' T h u s , for instance, 'no o b l i g a t i o n to o b e y lies u p o n a w o m a n before she has w i t h her o w n consent subjected herself to a m a n ' ((1672) 1934, v i . i . 1 2 , p. 587/863). A u t h o r i t y is hence g r o u n d e d in the impositio o f the free w i l l . A n d as in the case o f most m o r a l entities, this impositio takes the f o r m o f an agreement, as in marriage or the civil pact, 6. Pufendorf (1672) I 9 3 4 , i . i . 7 , p . 4 / 7 , n , i i . i - 4 , p p . 1 0 5 - 7 2 / 1 5 4 - 6 3 ; (1673) 1927, n.i.4-5, pp. 99/85^-90. 7. Pufendorf (1672) 1934, n.ii.3, 5 - 1 1 , pp. 1 0 8 - 9 / 1 5 8 - 9 , 1 1 3 - 2 1 / 1 6 5 - 7 6 , (1673) 1927,11.i.8, pp. 9 0 - 1 , 1 0 0 - 1 ; 1677, pp. 4 6 3 - 5 , 472, 482-9.

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Pufendorf and generates the differing adventitious states, such as marriage and citizenship, as well as the 'moral persons', exemplified in households, magistrates, and corporations.8 Amongst all the 'moral persons' created by an act of human will, Pufendorf pays particular attention to what he calls 'composite moral persons'. These include corporations of merchants and artisans as well as the higher organs of state, as opposed to 'simple moral persons', such as officers or magistrates ((1672) 1934, i.i. 12-14, pp. 7—11/11—13). This step displaces the traditional distinction between 'artificial' and 'natural' persons, and gives to composite moral persons a specific reality (Gierke 1902, p. 193). 'A composite moral person is constituted when several individual men so unite that whatever, by reason of that union, they want or do, is considered as one will, one act, and no more' ((1672) 1934, i.i.12, p. 7/11). Far from being imaginary, such persons are real; they have their own life and ends, deriving their autonomy from the will that animates them, and distinct from their creators ((1672) 1934, i.i.15, p. 10/15). It is precisely in this way that Pufendorf sees the state. 'A state is a compound moral person, whose will, intertwined and united by the pacts of a number of men, is considered the will of all' ((1672) 1934, vii.ii.13, p. 672/984). ii The background of law: anti-realism and voluntarism It is difficult to underestimate the degree to which epistemological considerations underpin the whole range of Pufendorf's practical philosophy. His theory of moral entities offered a new basis for a general theory of law and the state which was clearly anti-realist. A reading of the Elements of Universal Jurisprudence and On the Law of Nature and Nations reveals that

Pufendorf was reacting against the errors and confusions entailed in scholastic attempts to define moral realities in terms of a naive realism. He rejected the idea of real and eternal essences, separate from definite concrete actuality. His thinking challenged the validity of ontological assumptions on which the distinction of essence and existence was based. In his view, it was erroneous to affirm that essences were eternal and not dependent on the will of God. His thought is resolutely nominalist and denies the reality of universals, or essences, regarding all things as dependent on the contingent 8. Pufendorf (1672) 1934, 1.1.4, 7. 12-13, '9, PP- 3-12/5—19. also vi.i. 11-12, pp. 571/839-40, 584-7/859—63, vii.iii.i, pp.683/1000-1.

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Natural law and utility w i l l o f G o d . F o l l o w i n g the path established b y O c k h a m ' s voluntarist n o m i n a l i s m , he directly questioned the objective nature o f values and the doctrine o f the perseitas moralis o f h u m a n acts. Since there w a s n o l o n g e r any essence independent o f the divine w i l l , there w a s consequently n o g o o d or evil in se, and values s i m p l y s t e m m e d f r o m the u n f a t h o m a b l e decrees o f a legislating w i l l . Nevertheless, P u f e n d o r f did n o t f o l l o w O c k h a m into his paradoxical reflections o n the i m p e r a t i v e nature o f the D e c a l o g u e . T h i s w a s because to h i m it seemed that i f G o d is free to create, he is nonetheless b o u n d b y his creation. T h u s , i f he has created m a n as a reasonable and social b e i n g , he is necessarily b o u n d to accept a defined order o f value. T h i s necessity is n o d o u b t a relative one and quite distinct f r o m that posited b y intellectualist metaphysical realism, but it does b r i n g o u t the fact that P u f e n d o r P s v o l u n t a r i s m is rational in nature ((1672) 1934, 11.hi.4, p p . 125—6/184; D e n z e r 1972, p p . 5 2 - 5 ) . T h e resolutely nominalist nature o f his thinking, w i t h its denial o f a realm o f essences, c o m p l e t e s a decisive break w i t h the T h o m i s t m e t a p h y s ical tradition still apparent in G r o t i u s . P u f e n d o r P s position does n o t o n l y challenge the existence o f g o o d and evil in se, but also rejects the realist n o t i o n o f h u m a n nature as an eternal and i m m u t a b l e reality and asserts, in opposition to traditional essentialism, the pure c o n t i n g e n c y o f nature and the values i m p o s e d o n it. P u f e n d o r P s voluntarist t h e o r y o f m o r a l entities b r o u g h t in its w a k e a c h a n g e in the c o n c e p t o f natural l a w . T h i s c a m e to be seen n o t in terms o f the original nature o f h u m a n k i n d in the G a r d e n o f Eden, n o r an essential nature c o m m o n to all l i v i n g beings, but a matter o f culture, o f the w o r l d characteristic to h u m a n k i n d in its concrete history. H e turned to the e m p i r i c i s m o f the nominalist-voluntarist tradition and based his t h o u g h t o n the c o n t i n g e n t nature o f h u m a n k i n d as it appears w i t h all those tendencies that are the fruit o f the c o n t i n g e n t decrees o f divine p r o v i d e n c e ((1672) 1934, n.iii.14, P- 4 / 5 ) - Our reason can, b y e x a m i n i n g h u m a n k i n d ' s estate, demonstrate the need to live a c c o r d i n g to the n o r m o f natural l a w , and m a k e plain its precepts b y solid and c o n v i n c i n g demonstrations. P u f e n d o r f applies the r e s o l u t i v e - c o m p o s i t i v e m e t h o d in his search for the fundamental principle o f natural l a w . T h i s is a c h i e v e d first b y b r e a k i n g d o w n h u m a n nature into a b u n d l e o f e l e m e n t a r y tendencies: 9

I

I

2 0

9. Pufendorf (1672) 1934, i.ii.6, pp. 1 8 - 2 1 , 1706, pp. 235-6; W e l z e l 1958, pp. 36-8; Denzer 1972, pp. 5 1 - 4 .

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Pufendorf self-love, ignorance, weakness, and the undeniable malice (pravitas) of the soul.10 He then goes on to reconstitute the fundamental law of nature, the jundamentum legis naturalis, namely the law of'sociability' (socialitas), which he conceives to be not a natural disposition to live together in society, such as Grotius' appetitus societatis, but a prime principle of social behaviour:" Man is an animal extremely desirous of his own preservation, in himself exposed to want, unable to exist without the help of his fellow-creatures, fitted in a remarkable way to contribute to the common good, and yet at all times malicious, petulant . . . For such an animal to live and enjoy the good things . . . it is necessary that he be sociable, that is, be willing to join himself with others like him, and conduct himself towards them in such a.way that, far from having any cause to do him harm, they may feel there is reason to preserve and increase his good fortune. ((1672) 1934, n.iii.15, PP- 142/207-8) The basis of natural law, then, is that each man should maintain towards all men a peaceable sociability, in conformity with the nature and end of the human race in its entirely. It follows that everything necessary for that sociability is prescribed by natural law, and everything contrary to it is forbidden by it ((1673) 1927, i.iii.9, pp. 21—2/19). Yet despite his anti-metaphysical temperament, Pufendorf retained certain distinctions with regard to natural law that had been elaborated by scholastic philosophers. In the range of precepts derived from the principle of sociability, he distinguished those which were absolute and those which were hypothetical, taking up Suarez' differentiation between 'preceptive' and 'compelling' natural law. 12 This distinction, which Pufendorf admits drawing from Grotius, marks the essential difference between precepts of a transhistorical nature, which bind all people in whatever state they find themelves and independently of institutions brought about by their will, and precepts which presuppose a state or other voluntary institution. The distinction echoes that between 'state of nature' and 'adventitious states' ((1672) 1934, 11.iii.24, P- J58/229; 1673 (1927), i.vi.i, p. 37). Alongside obligations arising from nothing other than the natural community, there are further ones which, although they impose themselves with all the force of natural law, nevertheless depend on free human choices. 'There are many things which man is free to do or not to do, but once they have been 10. Pufendorf (1660) 1931, n Obs. HI, 1-2, pp. 273-5/233-4, (1672) 1934, 11.iii.14, PP- 141-2/205-7; (1673) '927. i.iii.1-7, pp. 18-21/17—19. 11. Pufendorf (1672) 1934, 11.iii.15, pp. 142-3/207-8; (1673) 1927, i.iii.7-9, pp.21-2/19; c{. Wclzel 1958, pp. 43-8; Krieger 1965, pp. 93-8; Denzer 1972, pp. 93-6. 12. Pufendorf (1672) 1934, n.iii.24, P- 158/229; cf. Suarez (1612) 1971-81, 11.xiv. 14-16, iv, pp. 31-4.

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done, they entail a certain moral necessity, an obligation arising from some precept of the natural law that governs their mode and their circumstances' ((1672) 1934, 11.iii.24, P- 158/229). In this way Pufendorf integrates history into the field of moral law. Hypothetical precepts, which are always as rigorously binding as absolute ones, are linked to the manifold variety of factual reality in historical time. The main institutions determining the nature of hypothetical precepts are word, property, and the fixing of prices, together with the power of one person over another, all of which correspond to the various adventitious states people construct by their will.13 By making the institutions necessitated by social life, from marriage to the state, into the foundation for specific obligations under natural law, a law people cannot escape, Pufendorf comes close to seeing the positive laws of political societies as having the same compelling force as natural law, even though he is careful not to confuse them. And in recognising that it is hypothetical natural laws that give positive laws their compelling authority in human courts, he takes the first step towards the hypostatising of positive law, which, during the Enlightenment, led to seeing obedience to the positive law of the state as an obligation arising from natural law ((1672) 1934, n.iii.24, P- 158/230). Pufendorf thus not only gave the political community a dominant role in the field of hypothetical natural law, but also became the first representative of'a state version of the natural law' (Wolf 1963, p. 324). iii

The foundations of the state

The whole of Pufendorf s philosophy of society, law, and history is centred on the state, and consequently his political thought emerges primarily as a reflection on the foundations of political society (natural or contractual), its distinctive power (sovereignty), and its historical manifestations (forms of the state, political regimes, and the interests of states). Although the eclectic nature of his philosophical positions is apparent — Aristotelian sense for synthesis inherited through Suarez and Grotius from the scholastic school, Ockhamist voluntarism from Hobbes — there is another, more radical aim at the heart of Pufendorf's thinking, and that is to free it systematically from theology. For him, there can be no other basis for social theory than data and hypotheses produced by reason and observation. Pufendorf's 13. Pufendorf (1672) 1934, iv.i. 1-4, pp. 309-15/457-65; iv.iii-iv, pp. 356—80/524-57; v.iff, pp.457-74ff/675-98(T, 11.iii.24, p. 158/230. See also (1673) 1927, i.x, pp.62-5; i.xii-xiii, pp. 69-77/62-9; i.xivff, pp.78-82rT/7O-3ff.

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Pufendorf work of rationalisation and secularisation, which continued what Galileo, Harvey, and Descartes had already achieved and followed Hobbes and Spinoza into the social and political fields, is nowhere more evident than in his investigation of the foundations of the state ((1672) 1934, i.ii.2—3, pp. 11—16/22—4, (1660) 1931, pp. 4—6/xxix—xxx). In this investigation Pufendorf has recourse, once the autonomy of the moral realm has been established, primarily to the methodology of the physical and mathematical sciences, understood in its resolutivecompositive rather than in its demonstrative form. This emerges less from his treatises on natural law than from his occasional writings. It is worth making particular mention of his Dissertation on the Natural State of Man (1677), in the opening of which he states, in terms reminiscent of Hobbes' preface to De Cive, that: Those who have devoted themselves to the study of physical bodies have not merely considered their outward appearance . . . but have attempted to penetrate them and break them down into their main component elements. Indeed they have . . . reduced everything corporeal to some prime matter, understood as being without any particular form and as something beyond which it is impossible to go. That same method has also been applied by all those wishing to examine the most important of moral bodies, the state. They have not been content with showing its external administration, the diversity of magistracies . . . Rather they have examined its inner structure . . . and they have . . . carefully distinguished the parts of which this huge body is made up. They have gone much further, seeing the final aim of their science as transcending all societies and as conceiving of the condition and state of men outside society and without all means and human institutions. (1677, pp. 458-9) The final stage of Pufendorf's resolutive procedure is an analysis of the state of nature from a point of view which excludes theology. The concept of the state of nature is the prima materia of his political thought, the starting point of the compositive procedure. Pufendorf not only points out its elementary tendencies at an anthropological level (self-love, extreme weakness, a congenital need for others, malice), but is also concerned to show its specific characteristics at the social level; here, he differs from Hobbes and initially refuses to see the state of nature as a state of perpetual warfare and describes it rather as a state of relative sociability.*4 In that state, men are ruled not only by their sense-impressions, but also by reason, which, Pufendorf believes, will, even in the natural state, readily reveal the fundamental maxims of natural law. 14. Pufendorf (1672) 1934, 11.iii.14, PP- 141—2, 205-7; u.ii.5, pp. 113—14/165—6; (1673) 1927, 11.i.8, pp. 100—1/90—1.

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Natural law and utility If any man would adequately define a state of nature, he should by no means exclude the proper use of reason . . . Now since man can heed not merely the craving of his passions but also the call of a reason which does not measure itself simply by its own advantage, he is dissuaded from such a war as is described by the phrase 'of all men against all others'. (('672) 1934, n.ii.9, p. 118/172) As well as anthropological and social considerations, there is also historical evidence to suggest that societies in the state of nature are not perpetually engaged in warfare, but rather have ties of amity ((1672) 1934, n.ii.8, pp. 117/171-2). Although Pufendorf sees the natural state as one of'relative sociability' and even finds some advantages in it, such as freedom and equality, he is fully aware of its limitations. In language reminiscent of Hobbes and heralding Locke, he indicates its defects as insecurity, the lack of any recognised judge or power of constraint. In the natural state each man is protected by his own powers only, in the community by those of all . . . In the natural state, if a man does not willingly perform for another what he ought under an agreement, or if he has injured him, or if some controversy arises otherwise, there is no one who by authority can compel the other to perform what he ought. ((1673) 1927, 11.1.9-10, p. 102/91). Thus, though Pufendorf rejects Hobbes' perpetual warfare, he still sees the natural state as the antithesis of the political state, and shows the defects which make urgent the establishment of political society ((1672) 1934, n.ii.2, p. 108/157). When considering the way political societies are set up, Pufendorf pays less attention to the historical than to the logical reasons for the formation of states. It is not so much human needs, our awareness of our insecurity and of the malice of others, as our natural propensity for political order which interest him. He turns to assess the degree of this propensity. He rejects Hobbes' position, which denies such a propensity, but nonetheless does not accept the Aristotelian notion of man as a political animal. In his view, the political state is radically different from the social state. Man is both sociable and disinclined to accept authority. Political society implies a radical change in the human condition, namely that man 'gives up his natural liberty and subjects himself to sovereignty, which embraces, among other things, the right over him of life and death', as well as the disposal of goods. Such a change cannot arise directly from nature. It can only be set up on the basis of an act of will following upon a rational consideration ((1672) 1934, vii.i.4, pp. 650-2/953-6, n.iii.14, P- I4 2 / 2O 7)This brings Pufendorf to the social contract. He adopts a viewpoint similar to that of Suarez. The Hobbesian formula of the contract of 572

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Pufendorf subjection absorbing the contract o f association w a s unacceptable to h i m , and instead he maintained the necessity o f a t w o f o l d consent o f the w i l l for the introduction o f political society and the establishment o f g o v e r n m e n t . In fact, he w e n t further than Suarez and c o n v e r t e d the t w o f o l d contract into a three-phase t h e o r y . H e sees the m o v e m e n t f r o m the natural to the political state as i n v o l v i n g , first, a contract o f association (pactum associa tions); secondly, a contract o f subjection (pactum subjectionis); and, b e t w e e n , an intervening a g r e e m e n t (decretum) for the establishment o f the supreme instrument o f g o v e r n m e n t . Each o f these three stages, the pacta or the decretum, explains one o f the constituent elements o f the political order ((1673) 1927, n . v i . 7 , p. 120/107). T h e first stage o f the f o r m a t i o n o f the state thus lies in the contract of association. It is a v o l u n t a r y agreement, ' e v e r y individual w i t h e v e r y other one . . . it is necessary for each and all to g i v e their consent . . . w h o e v e r does not d o so . : . remains outside the future state' ((1672) 1934, vn.ii.7, p. 665/974). P u f e n d o r f goes o n to say that: 15

The wills of many men can be united in no other way, than if each subjects his will to the will of one man, or one council, so that henceforth, whatever such a one shall will concerning things necessary to the common security, must be accounted the will of all, collectively and singly . . . When a union of both wills and powers has been brought about, then at last a multitude of men is quickened into the strongest of bodies, a state. ((1672) 1934, n.vi.5-6, p. 120/107) If he makes clear that it is o n l y o n this basis that a state emerges, his purpose is also to insist that this first contract is not sufficient to establish it, h a v i n g as its function the creation o f a people f r o m a multitude: it is the 'rudiments and b e g i n n i n g s o f a state' ((1672) 1934, vn.ii.7, pp. 6 6 4 - 5 / 9 7 2 - 4 ) . T h e second stage is for the p e o p l e to agree o n the preliminary conditions o f the contract of subjection, b y passing a decree w h e r e i n the p e o p l e agree a t y p e o f g o v e r n m e n t , be it monarchical, aristocratic, or democratic, that is to direct the state, and to w h i c h they w i l l c o m m i t themselves b y the second contract. It is o n l y w h e n the f o r m o f g o v e r n m e n t has been decided that the third stage is reached w i t h the contract of subjection, w h i c h constitutes b o t h the holder o f p o w e r , m o n a r c h , council, or assembly, and the reciprocal c o m m i t m e n t s that a person or a b o d y w i l l enter into w i t h those w h o h a v e m a d e the choice. ' T h e rulers bind themselves to the care o f the c o m m o n security and safety, and the rest to render t h e m o b e d i e n c e ' ((1672) 1934, vii.ii.8, p. 665/975, cf. (1673) 1927, n.vi.9, p . 1 2 1 / 1 0 7 ) . P u f e n d o r f sees the m o v e m e n t f r o m the state o f nature to the political 15. Suarez (1612) 1973, in.i.3, p. 8, m.iii.6, p. 32, in.iv.6, p. 43.

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state in a traditional way, and as grounded in agreement, but he nevertheless stresses that it is the second contract which establishes the civitas and makes it into a particular body, a person ((1672) 1934, vn.ii.13, p. 671/983). His innovativeness lies here: he sees the will of the people as creating a new moral reality, the composite moral person of the state, the distinctive attribute of which is sovereignty. Pufendorf here expresses a new concept of the personality of the state. Its novelty lies in its realism and autonomy (Denzer 1972, pp. 185—8; Gierke 1902, pp. 192-5). It is far removed from Hobbes, who is still vaguely tied to the idea of representation. The personality of the state, for Pufendorf, is not a legal fiction, but a specific and autonomous moral reality, a compound person, grounded in his theory of entia moralia. Such a real person has its own life and tasks, and specific attributes. The state has its own will and characteristic power, sovereignty.16 This realist concept of the state was not perhaps fully developed by Pufendorf, but it nevertheless played a threefold part in his general theory of the state. First, it allows him to distinguish between the patrimony of the state and that of the prince. Secondly, it ensures that the state will have an unchallenged status at the international level ((1672) 1934, vm.vi, pp. 879fT/i292rT). Thirdly, and in particular, it is the immediate reason for the need for a unified and centralised organisation of state power. In consequence, it calls for a doctrine of sovereignty so absolute that it represents a marked contrast to the assent-based view which inspired Pufendorf's understanding of the formation of political society. iv

The doctrine of sovereignty

This is a modern and innovative aspect of Pufendorf s political thought. It completes his theory of the personality of the state, determines his view of both absolutism and the right to resist, and shapes his typology of the forms of the state and of government. Like Bodin, Pufendorf sees sovereignty as 'the soul of the state' ((1672) 1934, vn.iii.i, p. 683/1000). The problem of the origin of sovereignty is not as simple as it seems. It has its immediate origin in a human agreement which directly founds it. Certainly it is grounded in consent, 'not upon violence but upon the free subjection and consent of the citizens'. And because of this the 'supreme 16. Pufendorf (1672) 1934, i.i.13, 15, pp. 8/13, 10/13; vn.ii.13, P-671/983; (1673) 1927, 11.vi.10, p. 121/108.

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Pufendorf sovereignty comes about

as a m o r a l

quality'

((1672)

1934, v n . i i i . i ,

p. 683/1000). B u t this does not m e a n that the civil p o w e r is but a h u m a n i n v e n t i o n arising f r o m the r a n d o m play o f individual wills. In his care to a v o i d any charge o f relativism or subjectivism that his emphasis on consent m i g h t seem to justify, P u f e n d o r f carefully distinguishes b e t w e e n the order o f h u m a n w i l l and that i m p o s e d b y the C r e a t i o n . T a k i n g u p the scholastic distinction b e t w e e n causa proxima

and causa remota, he stresses this point.

' H e w h o says that s o v e r e i g n t y results directly f r o m pacts does b y n o means detract f r o m the sanctity o f supreme civil authority, or base the authority o f a prince m e r e l y o n h u m a n and n o t o n divine right.' H e n c e it is that ' s o v e r e i g n t y c a m e f r o m G o d as the author o f natural l a w ' , for w h a t ' m e n h a v e c o n t r i v e d under the g u i d a n c e o f sound reason' they d o 'in order that t h e y m i g h t fulfil the o b l i g a t i o n enjoined u p o n t h e m b y G o d ' ((1672) 1934, V I I . h i . 1 - 2 , p p . 6 8 3 - 4 / 1 0 0 0 - 1 ) . P u f e n d o r f is here f o l l o w i n g the e x a m p l e o f Suarez and attacking the doctrine o f p o p u l a r s o v e r e i g n t y , w h i c h reduces civil p o w e r to the status o f a p u r e l y h u m a n institution, and that o f divine right, w h i c h sees s o v e r e i g n t y as p u r e l y divine in origin, in w h i c h rulers are i m m e d i a t e l y invested w i t h p o w e r b y G o d . A g a i n s t this, he argues that s o v e r e i g n t y proceeds at o n c e mediately

f r o m G o d as the C r e a t o r

and

immediately f r o m m e n as the founders o f political societies (see Suarez (1612) 1 9 7 1 - 8 1 , m.iii.2, p . 29). W e should n o t be d e c e i v e d in this matter b y his l e n g t h y refutation o f his c o n t e m p o r a r y J.F. H o r n , the G e r m a n theorist o f the divine right o f k i n g s .

17

Far f r o m indicating any allegiance to the doctrine o f popular s o v e r e i g n t y , this refutation

enabled h i m to dissociate h i m s e l f f r o m

any f o r m

of

t h e o l o g i c a l t h o u g h t in his affirmation o f the mediate divine origin o f s o v e r e i g n t y . T h i s e m e r g e s clearly f r o m his observations on J.H. B o e d e r ' s c o m m e n t a r y o n Grotius: the supreme p o w e r , B o e d e r says, lies 'not alone in an act o f m e n but also in the c o m m a n d o f G o d and the l a w o f nature, or in such an act o f m e n as is m a d e in an effort to c o n f o r m to the l a w o f nature', so that, P u f e n d o r f adds, 'the c o m m a n d o f G o d to establish states manifested itself t h r o u g h the dictate o f reason' ((1672) 1934, vn.iii.2, pp. 6 8 4 / 1 0 0 1 - 2 ) . B y virtue o f this doctrine o f the natural divine right o f the o r i g i n o f s o v e r e i g n t y , P u f e n d o r f can be seen largely in a g r e e m e n t w i t h the v i e w o f Suarez, in w h i c h it proceeds f r o m G o d as the author o f nature, b y means o f our natural reason, but n o t w i t h o u t the intervention o f the w i l l o f m e n (Suarez (1612), 1 9 7 1 - 8 1 , m.iii.2, 5, 6, p p . 2 9 , 3 1 , 32). 17. See especially H o r n 1664.

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Natural law and utility By analogy with the human soul, Pufendorf saw sovereignty, the 'soul of the state', as having as many 'potential parts' as it produced different actions in the pursuit of its own ends. Sovereignty was the 'operative' and 'active' moral quality of the composite moral person which the state constitutes and it has certain proper characteristics.18 Of the 'parts' of sovereignty which correspond to what traditional doctrine called 'powers', Pufendorf lists over half-a-dozen. These parts relate to the power to make laws and inflict punishments, to settle differences between citizens, to make war and peace, to appoint magistrates and impose taxes, and to control education ((1672) 1934, vn.iv.2, p.691/1011). His object in specifying these legislative, punitive, legal, confederative, and fiscal powers is by no means to suggest a separation of powers, but, on the contrary, their profound unity and the exclusion of any separation since 'each power must necessarily depend upon one and the same will' ((1672) 1934, vii.iv.n, p. 695/1017). The characteristics of sovereignty are indivisibility, absoluteness, and sacrosanctity. The nature of the state postulates indivisibility: to tear asunder the parts of sovereignty is to destroy the state ((1672) 1934, vn.iv.11, pp. 695—6/1017). Since sovereignty is indivisible, it is, like the freedom of individuals in the natural state, absolute and unlimited. In the natural state there exists 'the highest and absolute liberty of individual men' to act 'in accordance with their own wish and judgement'; so also the state has the same liberty, or faculty to decide by its own judgement about the means that look to the welfare of the state. And this liberty is attended with absolute sovereignty, or the right to prescribe such means for citizens, and to force them to obedience. Therefore, there exists in every state in the strict sense of the word, an absolute sovereignty, at least in habit and theory, if not always in practice. ((1672) 1934, vii.vi.7, pp. 728/1063-4) The indivisible nature of sovereignty also implies 'Caesaropapism', full power in religious matters. It cannot be allowed that a putative religious duty interrupts the command of the sovereign. For if a man commands citizens to do something upon penalty of natural death and another persuades them that by such a deed they will incur the penalty of eternal death, and each of them does this by his own right . . . it follows that not only can citizens, though innocent, be rightfully punished, but that the commonwealth will be dissolved into an irregular status with two heads. ((1672) 1934, vn.iv.ii, p. 696/1017) 18. Pufendorf (1672) 1934, vii.iv.1-2, pp. 690-1/1010-11; vn.vi.iff, pp. 722ff/iO55ff.

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Pufendorf There can be no sharing of spiritual power, and here Pufendorf follows the Lutheran doctrine of jus circa sacra, the denial of any external or internal limitation of state power by means of the indirect power of the church as provided by Suarez' theory of the potestas directiva ((1672) 1934, vii.iv.n, pp. 695-6/1077; cf. Suarez (1612) 1971-81, m.vi.3, pp. 70-2). The outcome of the indivisibility, absoluteness and sacrosanctity of sovereignty is the obligation to obey. 'And surely no sane man will at all doubt that it is wrong to resist rulers so long as they stay within the limits of their power. For it is patent from the end and genius of sovereignty that there should necessarily be joined to it the obligation of non-resistance' ((1672) 1934, vn.viii.2, p. 755/1103). In approaching the problem of obeying unjust laws, Pufendorf sees the subordination of the state to natural laws as secondary to the primacy of the established order. His analysis of the sacrosanctity of sovereignty culminates when he states that 'there is always a presumption of justice on the part of the prince' and that 'anyone who finds the burdens intolerable can go elsewhere' (alio migrandi potestas est) ((1672) 1934, vii.viii.3, 6, pp. 756, 760/1104, 1110). Such ideas of the sanctity of sovereignty seem to go totally against his theory of the state. After taking the state of nature as his starting point, and maintaining both that there are natural laws and that consent is the foundation of all power, he later shows himself to be a defender of established power, even an advocate of absolutism. But this is not an incoherence, but the result of a deliberate intention to establish state sovereignty peremptorily and incontestably by refusing to set it any external or internal limits (cf. Derathe 1970, pp. 212, 324). If sovereignty is implied to be limited by natural law, in fact it is the sovereign who is deemed 'the best judge of the common good'; his laws have the obligatory force of natural laws, by the doctrine of hypothetical natural law and by the contract of subjection. Neither may the church provide external limits nor the people internal limits to sovereignty ((1672) 1934, n.iii.24, p. 158/230, vn.viii.i, p. 755/1103). In the same way, contrary to what might be expected of the consensual foundations of political society, Pufendorf is very far from being an apologist for the right to resist.19 Any right of private persons to resist unjust laws and commands is absorbed in the unconditional duty of patience. The procedure he adopts here is influenced by scholastic casuistry, 19. See the typical approach to the right of resistance in Pufendorf (1672) 1934, vn.viii, PP- 755—64/1103—16. For a general statement of Pufendorf s doctrine see Krieger 1965, pp. [43-4, and Denzer 1972, pp. 194—205, whose critical appreciations are much more positive than mine.

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Natural law and utility and ranges f r o m stressing that grievances against the g o v e r n m e n t should be kept to a m i n i m u m — w h e t h e r they c o m e f r o m the c o m m o n people ignorant o f the real needs o f the state, or f r o m the magnates, embittered b y their exclusion f r o m p o w e r - to m a k i n g m u c h o f the subject's o b l i g a t i o n to o b e y ((1672) 1934, vii.viii.3, 6, p p . 7 5 6 , 7 6 0 / 1 1 0 4 - 1 1 ) . H e insists o n the d u t y o f the private citizen to o v e r l o o k the s h o r t c o m i n g s o f rulers. Since such is the condition o f human life that it cannot do without some inconveniences . . . it would be foolish as well as imprudent to wish to rise in revolt against a prince for merely any kind of grievance, especially as w e ourselves are not always so exact in meeting our full duty toward him, and since the laws commonly overlook the lesser shortcomings of private citizens. H o w much more fair would it be, therefore, to overlook the slight shortcomings of a prince . . . And added weight is given this consideration by the fact that experience is witness to the great slaughter o f citizens and mighty shock to the state with which the overthrow even of the worst princes has been attended . . . This also is certain: that even when a prince with hostile intent threatens a most frightful injury, to leave the country, or protect oneself by flight, or seek protection in another state is better than to take up arms. (O672) 1934, vn.viii.5, pp. 758/1106-7) P u f e n d o r f goes on to consider the e x t r e m e case o f a prince w h o threatens death to a manifestly innocent citizen. In such a case, 'in assuming b y this act the role o f an e n e m y instead o f a prince, he is understood to h a v e released the citizen also f r o m o b l i g a t i o n . . . Y e t in such a case there should be resort to flight, so far as possible, and the protection sought o f s o m e third person w h o lies under n o o b l i g a t i o n to that prince.' S o that e v e n such an e x t r e m e situation does not i m p l y a right o f resistance, for ' i f flight be not possible, a m a n should be killed rather than kill, not so m u c h on account o f the person o f the prince, as for the sake o f the w h o l e c o m m o n w e a l t h , w h i c h is usually threatened w i t h g r a v e tumults under such circumstances' ((1672) 1934, vii.viii.5, p. 7 5 9 / 1 1 0 8 ) . Nonetheless, in a case o f t y r a n n y against a w h o l e people, P u f e n d o r f is forced to c o n c e d e a right o f legitimate self-defence w h e n b r o u g h t to the last e x t r e m i t y b y 'the unjust violence o f its prince'. S u c h defence, ' w h e n successful', brings liberty, for a prince, in b e c o m i n g an e n e m y , himself frees a subject from o b l i g a t i o n to h i m . P u f e n d o r f w a s later to confirm this doctrine in the light o f his ex post j u d g e m e n t that the G l o r i o u s R e v o l u t i o n in E n g l a n d w a s legitimate. Y e t e v e n so, the scope o f self-defence is restricted, b o t h b y the o p p o r t u n i s m implicit in the n o t i o n o f 'defence, w h e n successful', and b y the further a p o l o g i a for absolutism he builds u p o n the same original c o n c e p t o f contract. For, he argues, it is b y n o means necessarily i m p r o p e r for a people to consent to slavery, 'for this civil 578

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Pufendorf servitude . . . is not so foreign to nature as s o m e fancy, so that, w h e n a m a n has at one time felt it necessary to agree to it, so as to a v o i d a greater evil, he can later cast it off, w h e n the o p p o r t u n i t y arises, o n the plea that nature gives h i m the right'. H e m a y not repudiate a bargain just because he m a y 'realise later that the bargain w a s not to his a d v a n t a g e ' ((1672) 1934, vn.viii.6, p p . 7 6 0 / 1 1 1 0 - 1 1 ) . T h e parameters o f P u f e n d o r f ' s c o n c e p t o f the right to resist are, therefore, set less b y his t h e o r y o f the social contract and b y his c o n c e p t o f s o v e r e i g n t y , than b y the absolute nature o f s o v e r e i g n t y and the o p p o r t u n istic character o f his understanding o f reason o f state (see D e n z e r 1972, p. 199). Furthermore, his concept o f the right to resist gives an e x e m p l a r y illustration o f the extent to w h i c h his contractualist t h e o r y o f state formation g a v e w a y to his absolutist doctrine o f s o v e r e i g n t y . P u f e n d o r f w a s here attempting to p r o v i d e a n e w basis for the state and a better intellectual foundation for s o v e r e i g n t y than those based o n the concept o f divine right, in order to free political t h o u g h t f r o m t h e o l o g i c a l d o m i n a tion. H e c o m e s close to offering a n e w , radical, and secular basis for the legitimisation o f absolutism. ' P u f e n d o r f ' s natural foundation o f state p o w e r ' , as J. Sauter j u d i c i o u s l y notes, 'is n o m o r e than an a c c o m m o d a t i o n w i t h the absolutism o f his time, w h i c h s o u g h t to replace e v e r y f o r m o f trancendental justification b y a "natural' one. Politically it c o u l d be as advantageous, or e v e n m o r e so, than a theocratic justification' (Sauter 1932, p. 13611).

v

T h e state in history

N o t h i n g c o u l d be m o r e fallacious than to see P u f e n d o r f ' s political t h o u g h t m e r e l y as a t h e o r y o f the state p r o d u c e d b y a natural l a w rationalist speculating totally outside the realms o f historical reality, or to contrast in his w o r k an abstract natural l a w t h e o r y o f the state and an historian's p r a g m a t i c t h o u g h t o n the interests o f states (see M e i n e c k e 1924, p. 287). His t h o u g h t o n l y conceives o f the state as anchored in history, w h e t h e r his aim be to investigate its typical forms or its political r e g i m e or to formulate the principles g o v e r n i n g its changes in time. His categories, distinctions, and theses c o n c e r n i n g the t y p o l o g y o f states are b y n o means abstract, but sharpened and tested b y the observation and experience o f an historian — a court historian at that — w h o had b e c o m e familiar w i t h the vicissitudes o f the principal states o f the civilised w o r l d . Filled w i t h a lofty idea o f state p o w e r , w h i c h c o u l d neither be diminished 579

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Natural law and utility n o r divided, and anxious to describe the c o m p l e x i t y o f historical reality, o f w h i c h the H o l y R o m a n E m p i r e o f his age p r o v i d e d a striking e x a m p l e , Pufendorf, f o l l o w i n g Francisco de V i t o r i a and B o d i n , s o u g h t to g i v e n e w life to the classical t h e o r y o f the forms o f the state, w h i c h w a s Aristotelian in origin. In this regard, he m a d e a distinction b e t w e e n forms o f state and forms o f g o v e r n m e n t o n the one hand, and o n the other he g a v e u p the criterion o f rectitude in f a v o u r o f that o f the unity o f s o v e r e i g n t y ; he also rejected any idea o f a m i x e d f o r m . T h u s he replaced the Aristotelian t y p o l o g y o f pure forms ( m o n a r c h y , aristocracy, and republic) and degenerate forms (tyranny, o l i g a r c h y , and d e m o c r a c y ) w i t h a n e w one based o n regular and irregular forms o f state, in terms o f the w a y in w h i c h s o v e r e i g n t y is d i v i d e d or left w h o l e w i t h i n each state. W h e r e not e v e r y t h i n g in the state 'appears to p r o c e e d f r o m one soul and w i l l , n o r is each and e v e r y person to be controlled b y virtue o f s o v e r e i g n t y ' , then the state is irregular ((1672) 1934, v n . v . 2 , 14, p p . 7 0 1 , 7 1 2 / 1 0 2 4 , 1040, 1677, §6, p. 3 1 1 ) . T h e criterion o f regularity, g r o u n d e d in unity o f p o w e r , lies at the heart o f his t y p o l o g y . P u f e n d o r f also differentiates b e t w e e n 'simple' or 'unitary' and ' c o m posite' states, and 'unions o f states'. C o m p o s i t e states had interested h i m since his 1664 thesis o n Philip o f M a c e d o n . P u f e n d o r f was a m o n g s t the first to study c o m p a r a t i v e constitutional l a w and one o f the earliest publicists to take an interest in the p h e n o m e n o n o f federation. H e subdivided c o m p o s i t e states into personal unions ( w h e r e m o r e than one state has the same m o n a r c h ) and confederations o f states ( w h e r e t w o or m o r e states are constituted into a single b o d y b y treaty). B u t his j u d g e m e n t o f such unions is determined a l w a y s b y the criterion o f regularity, for as soon as a confederated state is able to i m p o s e its w i l l on another, the s o v e r e i g n t y o f the latter is diminished and the u n i o n b e c o m e s irregular, or e v e n turns into a unitary state. Despite his insistence o n the indivisibility o f s o v e r e i g n t y , P u f e n d o r f retains the classical distinction o f three forms o f g o v e r n m e n t — m o n a r c h y , aristocracy, and d e m o c r a c y - for s o v e r e i g n t y m a y reside in 'one simple person, or one council, c o m p o s e d o f a f e w , or all the citizens' ((1672) 1934, VII.v.3, pp. 701/1024—5). H e does, h o w e v e r , put aside the Aristotelian t y p o l o g y o f degenerate forms, for ' a l t h o u g h there is the greatest difference 20

21

20. See P u f e n d o r f 1677c, §6, p. 310; see too the quite clear definitions in i 6 7 7 d , §2, p. 2 1 1 , and (1672) 1934, v n . v . 1 6 , p. 714/1043. 21. P u f e n d o r f (1672) 1934, V I I . v . 1 6 - 2 1 , pp. 7 1 5 - 2 0 / 1 0 4 3 - 5 1 ; 1677c, § 1 7 , pp. 332-3. See also 1677b, pp. 86ff; i 6 7 7 d , pp. 2ioff.

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Pufendorf b e t w e e n a healthy and a sickly state', nonetheless 'vices c h a n g e neither the nature o f p o w e r itself n o r its proper object' ((1672) 1934, v n . v . n - 1 4 , p p . 708—12/1035—40). Similarly, the idea o f ' m i x e d ' forms

must

be

dispensed w i t h , for any apparently m i x e d state is best called irregular. P u f e n d o r f appears here to f o l l o w B o d i n closely. S o v e r e i g n t y m a y lie in a b o d y o f persons as w e l l as in an individual prince, but that is n o sanction for talk o f m i x e d regimes. B o d i n d r e w a distinction b e t w e e n s o v e r e i g n t y and the m a n n e r o f its administration, and P u f e n d o r f f o l l o w s suit. H e n c e , a s o v e r e i g n m o n a r c h m a y choose to refer difficult matters to a senate or to the people, or a s o v e r e i g n p e o p l e permit the administration o f affairs to lie in the hands o f a principal magistrate. S u c h a r e g i m e is either, e x c e p t i o n a l l y , one in w h i c h s o v e r e i g n t y remains essentially u n d i v i d e d , or, m o r e likely, is an irregular state ((1672) 1934, v n . v . 1 3 , p p . 7 1 1 - 2 / 1 0 3 9 - 4 0 ) . T h e idea o f the m i x e d state had, in P o l y b i u s , been the kernel o f an idea o f the best state. B u t P u f e n d o r f rejects that t o o . T h e r e can be n o absolute 'best r e g i m e ' , o n l y that w h i c h has fewest evils, for all states are subject to inconveniences ' b y reason o f the slothfulness or the w i c k e d n e s s o f the rulers' ((1672) 1934, VII.v.22, p. 7 2 1 / 1 0 5 2 ) . It is this relativist attitude that plays the major part in h o w he determines the suitability o f different political regimes to the individual situation o f each state, leading h i m to see m o n a r c h y as inadequate for a city-state and d e m o c r a c y as inappropriate for the g o v e r n m e n t o f an extensive e m p i r e or for people a m o n g s t w h o m there is a large n u m b e r o f p r o u d and ambitious m e n .

2 2

T h e same attitude also

induces h i m to prefer m o n a r c h y o v e r d e m o c r a c y and aristocracy, because 'a m o n a r c h . . . is e v e r e n d o w e d w i t h p o w e r sufficient to exercise acts o f s o v e r e i g n t y ' : a popular or senatorial r e g i m e requires appointed times and places for assembling and deliberating ((1672) 1934, v n . v . 9 , p. 707/1033). E v e n so, there is an open-mindedness in P u f e n d o r f that also a l l o w s h i m to insist that d e m o c r a c y is a r e g i m e o f great antiquity and that it is a regular r e g i m e . H e expresses this in terms w h i c h take us f o r w a r d to R o u s s e a u ' s distinction b e t w e e n the 'general w i l l ' and the ' w i l l o f all'. Majesty m a y 'as m u c h b e l o n g to a m o r a l c o m p o u n d person as to one m a n ' ((1672) 1934, vn.v.4-10, pp.701-8/1023-34). Even a man of little wit can comprehend the difference between all the people and individuals, between a council o f the people, and the members as they scatter to their homes . . . the whole is an actual moral person distinct from the individual members, to which a special will, as well as actions and rights, can be attributed, which do not fall to the individuals. ((1672) 1934, vn.v.5, pp. 703/1027-8). 22. Pufendorf (1672) 1934, V I I . v . 2 2 , pp. 7 2 1 / 1 0 3 3 - 5 ; v n . v i . 5 , p. 725/1059.

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Natural law and utility T h e same open-mindedness extends to the incorporation o f the principle o f limited m o n a r c h y into his theory. In s o m e states kings are limited 'to a certain m a n n e r o f p r o c e d u r e ' . T h e j u d g e m e n t o f a single person ' m a y be easily misled in seeking out w h a t is for the welfare o f the state', and so 'it has appeared advisable to m a n y peoples not to c o m m i t in so absolute a fashion such p o w e r as this to a single m a n . . . but to prescribe for h i m a definite m a n n e r o f h o l d i n g the s o v e r e i g n t y ' . T h i s is especially appropriate w h e r e 'certain institutions and a particular m a n n e r o f c o n d u c t i n g affairs are best suited to the genius o f a p e o p l e ' . For instance, a people ' c o u l d lay d o w n a l a w for the k i n g , w h e n they c r o w n e d h i m , that he w o u l d n o t o n his o w n authority m a k e any change in matters o f the religion o f the land' ((1672) 1934, VII.vi.7, 9, 1 1 , p p . 727—30, 734/1063—6, 1072). In conclusion, w e can see that P u f e n d o r f ' s t h i n k i n g in this area, t h o u g h relativistic in temper, does n o t v e r g e o n indifference, but is g r o u n d e d in an acute sense o f historical peculiarities and a consequent e y e for the r e g i m e best suited to each state in its o w n circumstances. P u f e n d o r f had decisively b r o k e n w i t h the ' p a t h o l o g i c a l ' t y p o l o g y o f regimes characteristic o f traditional political thinking, to w h i c h the theory o f the best r e g i m e w a s a kind o f therapeutic adjunct. H e transforms this classical theory into a v i e w o f changes w i t h i n states centred o n historical modifications o f the f o r m and destiny o f states rather than abstract t y p o l o g i e s o f r e g i m e . H e is also once again g o v e r n e d b y his fundamental distinction b e t w e e n regular and irregular states. H e instances states w h i c h c o m b i n e to f o r m a n e w single state, either b y m u t u a l consent or military pressure, and states w h i c h disband b y virtue o f their inhabitants scattering. L i k e a m e t h o d i c a l e n t o m o l o g i s t , P u f e n d o r f lists the characteristic w a y s in w h i c h 'the m o r a l tie w h i c h binds' the ' c o m m u n i t y o f right' m a y be b r o k e n . H e d r a w s m a n y o f his instances f r o m the historians o f antiquity, L i v y , Tacitus, and Plutarch, and f r o m the m o d e r n writers, G e o r g e B u c h a n a n , Grotius and H o b b e s ((1672) 1934, v m , xii, 1, 5 - 9 , p p . 9 2 4 , 9 2 6 - 8 / 1 3 6 0 , 1362—7). Similarly, P u f e n d o r f examines the manifold w a y s in w h i c h irregular states m a y c o m e about or b e c o m e transformed. T h e r e are states in w h i c h , at the outset, the people 'bargained for such jurisdictions and privileges for themselves, that they cannot be regarded as true subjects'. Institutions w h i c h b e g i n in 'usurpation, faction, or c o n t u m a c y ' m a y c o m e to 'pass thereafter as right or p r i v i l e g e ' , t h o u g h it be o f irregular f o r m ((1672) 1934, v i i . v . 1 4 , p p . 7 1 2 / 1 0 1 4 - 1 5 ) . N o t the least e x a m p l e o f an 'irregular' state h a l l o w e d b y time is the H o l y R o m a n E m p i r e , in w h i c h P u f e n d o r f had a close interest, as an 'enlightened patriot' o f the empire (see W o l f 1963, p . 333). 582 Cambridge Histories Online © Cambridge University Press, 2008

Pufendorf Indeed, a l t h o u g h he d e v o t e d an entire thesis to the e x a m p l e o f ancient R o m e (On the Form of the Roman Republic, 1677) dealing w i t h the m e t a m o r p h o s e s o f the m o n a r c h y and the singular republic that succeeded it, and a l t h o u g h he d w e l l s o n R o m e up to the time o f the division o f the e m p i r e (divisio imperii), it is nonetheless the H o l y R o m a n E m p i r e w h i c h P u f e n d o r f finds m o s t instructive (1677, p p . 357ff; (1672) 1934, v i i . v . 1 5 , p p . 712—14/1041—3). U n d e r the p s e u d o n y m o f Severinus de M o n z a m b a n o he d e v o t e d to it one o f his m o s t brilliant w o r k s , On the Constitution of the German Empire (1667). T h i s study afforded h i m the o p p o r t u n i t y o f finally e x p o s i n g the m e d i e v a l i d e o l o g y o f the translatio imperii, w h i c h fraudulently f o r m e d the basis for seeing the H o l y R o m a n E m p i r e as the continuation o f that o f A n c i e n t R o m e , an interpretation w h i c h in P u f e n d o r f s v i e w c o u l d be o f n o service to a n y o n e e x c e p t the p a p a c y . It also a l l o w e d h i m to attack the Reichspublizistik o f his o w n age, w h i c h w a s a t t e m p t i n g to incorporate the e m p i r e into-one o f the c u s t o m a r y categories o f the traditional t h e o r y o f states. S o m e writers, such as B o g i s l a v Philipp v o n C h e m n i t z , saw it as an aristocratic state, others, like H e n n i n g Arnisaeus and D i e t r i c h R e i n k i n g k , as a m o n a r c h i c a l state. T h e fact is that the e m p i r e o f his time b e l o n g e d to n o n e o f the forms o f states p r o p o s e d b y traditional t h o u g h t , and, furthermore, its history p r o v i d e s an e x e m p l a r y illustration o f the process o f degeneration at the o r i g i n o f irregular states. 23

There remains therefore nothing for us but to describe the German Empire, if w e 'wish to classify it according to the rules o f political science, as an irregular body resembling a monster which, over the centuries, as a result of the negligence of the emperors, the ambition o f its princes and the plotting of its ecclesiastics, has constituted itself from a regular form o f monarchy and an irregular form o f state, which is no longer a limited monarchy, whatever appearance of such it may have, but nor is it a federation of several states, since it represents something between the two. (1667, vi.9, p. 157). P u f e n d o r f does not, h o w e v e r , m e r e l y adopt the impartial stance o f the student or historian o f c o m p a r a t i v e institutions. H e offers a diagnosis, e v e n a prognosis, o f this classic case o f constitutional irregularity. That situation is the lasting cause of a mortal sickness for the empire and o f all ijts internal troubles, for on the one hand the emperor strives to refound his monarchical power and on the other the states o f the empire tend towards total liberty . . . It will not be possible to bring Germany back to its original form without the greatest upheavals and total confusion, and, indeed, that country is o f 23. C h e m n i t z (alias Hippolithus a Lapide) 1640; on h i m see H o k e 1977. Arnisaeus 1610; on him see Dreitzel 1970. R e i n k i n g k 1619; for h i m see Link 1977.

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Natural law and utility its o w n accord becoming once more like a federation of states. And if w e remove the mutual resistance of emperor and the states of the empire, it is already a kind of confederation o f unequal allies. (1667, vi.9, pp. 157-8). P u f e n d o r f goes o n to m a k e r e c o m m e n d a t i o n s to p r e v e n t the c o n d i t i o n o f the e m p i r e f r o m deteriorating further. P r o p e r forms o f state should be established and their specific interests defined. T h i s is w h a t e m e r g e s in the final chapter o f his German Empire, w i t h the significant Latin title o f De Statu Imperii Germanici, w h e r e he takes the opposite positions to those r e c o m m e n d e d b y v o n C h e m n i t z (1667, v m . 2 , 4, p p . 186, 191—5). A chief a i m o f politicians must be to g i v e m o r e attention 'to preserving w h a t is possessed than to a c h i e v i n g n e w conquests'. If the confederation should appoint a leader, 'the greatest precautions must be taken lest he aspire to s o v e r e i g n t y ' . T h a t leader must be limited b y precise l a w s and 'also b y the addition o f s o m e p e r m a n e n t c o u n c i l that represents the confederate states'. In short, the G e r m a n states must understand themselves as regular states, confederated together. In this discussion, P u f e n d o r f has g o n e b e y o n d the role o f a student o f c o m p a r a t i v e state systems, to that o f theorist o f the interests o f states, as befits a counsellor and c o u r t historian (1667, vin.4, pp. 192-5). P u f e n d o r f ' s n e w doctrine o f reason o f state, w h i c h finds fullest expression in his historiographical w o r k , flagrantly disproves any s u g g e s tion that natural l a w p h i l o s o p h y w a s n o t o p e n to historical reality. His doctrine w a s the first i m p o r t a n t modification o f the Italian t h e o r y o f reason o f state, as adapted in the France o f R i c h e l i e u . In the latter, the general t h e o r y o f political art c a m e to be applied chiefly to the individual interests o f states in their relationships w i t h each other. It w a s this French modification o f the t h e o r y , w i t h its i m p l i e d preeminence o f foreign o v e r domestic p o l i c y , that P u f e n d o r f w a s so decisively to transplant to G e r m a n y . T h i s he did less in his w o r k s o n public and natural l a w than in his historical w o r k s , particularly in his Introduction to the History of the Principal Kingdoms and States of Europe. P u f e n d o r f distinguishes several categories o f interests, o f w h i c h the t w o major ones are the ' i m a g i n a r y ' and the 'real' interest o f states. T h e f o r m e r is o f a sort that can o n l y be sustained b y a universal injury to, and contention w i t h , other states, such as an aspiration to 'the m o n a r c h y o f E u r o p e , or a universal m o n o p o l y ; such things b e i n g the fuel w i t h w h i c h the w h o l e 24

24. See Pufendorf 1667, v m . 4 , pp. 1 9 2 - 3 ; (1672) 1934, v m . v i i 4 , pp. 882-3/1305-7, v m . i x . 5 - 6 , pp. 9 0 8 - 9 / 1 3 3 4 - 7 . t

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Pufendorf world may be put into a flame'. The real interests of states may be further divided into 'perpetual and temporary'. 'The former depends chiefly on the situation and constitution of the country, and the natural inclinations of the people; the latter, on the condition, strength, and weakness of the neighbouring nations' (1682, pp. 3—4/3). He goes on to apply these theoretical distinctions to particular cases, such as those of England, Holland, and the Swiss Cantons. Thus, for instance, he observes the interests of England in relation to constitutional history, national character, and the situation of the country: England ought to take special care, that it does not fall into civil dissensions, since it has often felt the effects of the same, and the seeds of them are remaining yet in the nation; which chiefly arises from the difference in religion, and the headstrong temper of this nation, which makes it very fond of novelties. Nevertheless a wise and courageous king may easily prevent this evil, if he does not act against the general inclination of the people, maintains a good correspondence with the Parliament; and as soon as any commotions happen, takes off immediately the ringleaders. Lastly, England and Scotland being now comprehended in one island, whose chief strength lies in a good fleet, it is evident, that this king need not make any great account of such states as either are remote from the sea, or else are not very powerful in shipping. Wherefore . . . the king of England takes no great notice of Germany . . . It is the chief interest of England, to keep up the balance betwixt France and Spain, and to take a special care, that the king of France does not become master of all the Netherlands . . . Holland seems to be the only obstacle that the English cannot be sole masters of the sea and trade. (1682, i.iv.37, pp. 314-15/146-7) The doctrine of the interests of states is not simply representative of Pufendorf's subtle political judgement, but established norms that are assigned to the sovereign in the government of states. For the doctrine completes the theory of hypothetical natural law by giving sovereigns a privileged role in determining and putting into effect the rules of natural law. Once the pursuit of the public good is accepted as the first of these rules (salus populi suprema lex esto) and one which every ruler exercising sovereignty must obey, the reason of state specified in his teaching on the interests of states is that which will give content to the right reason of princes ((1672) 1934, vn.ix.3, p. 766/1118; cf. Reibstein 1956, p. 65). Pufendorf's doctrine is more than a mere tranposition of natural law to the field of relationships between states. He is categorically on the side of those who see natural law and the law of nations (Jus gentium) as one and the same thing ((1672) 1934, 11.iii.23, P- 156/226). He sees the moral persons constituted by states as partaking in the same rights as physical persons in 585

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Natural law and utility the state o f nature ((1672) 1934, v i n . x i i . 4 , p . 9 2 6 / 1 3 6 2 ) . Just as w i t h individuals, the principle o f sociability is c o m p r o m i s e d b y the right to act in our interest, w h e r e there is n o c o m m o n s o v e r e i g n arbitrator. For instance, he holds that in entering into treaties w i t h other states a prince a l w a y s makes this implicit e x c e p t i o n : ' P r o v i d e d considerations o f his o w n k i n g d o m can c o n v e n i e n t l y a l l o w it.' For, 'since a k i n g is b o u n d to n o one m o r e closely than to his citizens, n o promise o f his to a foreigner can be valid i f it is clearly to the disadvantage o f the latter'. P u f e n d o r f then cites L o r d B a c o n : ' F o r princes there is but one true and fitting basis o f faith, necessity' ((1672) 1934, v i n . i x . 5 , pp. 908—9/1334—5). N o state is i r r e v o c a b l y b o u n d b y international agreements i f they conflict w i t h its o w n interests. P u f e n d o r f ' s o v e r r i d i n g proposition at the international l a w level - and here he echoes Spinoza — seems n o t that o f sociability, but that o f reason o f state. T h i s latter legitimises b o t h absolutism and the fact o f international anarchy. 25

T h r o u g h o u t E u r o p e , P u f e n d o r f ' s political t h o u g h t soon exerted e x c e p tional influence. T h e r e are m a n y reasons for this: the course o f his life, w h i c h c o m b i n e d the freedom o f the republic o f letters w i t h the privileges o f a courtier; the eclectic nature o f his inspiration, w h i c h w a s nourished o n the realist and organicist tradition o f h i g h scholasticism and the nominalist and individualist currents o f the later stages o f that m o v e m e n t ; and the diversity o f w a y s in w h i c h he achieved literary expression, f r o m the p o l e m i c a l essay to the m o r e academic genres o f his philosophical and historical treatises. T h i s conjunction o f features explains w h y his c h i e f w r i t i n g s as a publicist, philosopher, and historian, On the Constitution of the German Empire, On the Law of Nature and Nations, and the Introduction to the History of the Principal Kingdoms, w e n t t h r o u g h ten to t w e n t y editions, and the short w o r k On the Duty of Man and the Citizen o v e r sixty editions, in the century after their publication, b e i n g translated into all the i m p o r t a n t E u r o p e a n languages, Danish and Russian included (Denzer 1972, P P - 3 5 9 7 3 ) - h also explains w h y a n u m b e r o f these editions and translations, w i t h substantial c o m m e n t a r i e s , served as t e x t - b o o k s for the study o f natural l a w , politics, and public l a w in most o f the universities o f Protestant E u r o p e , f r o m Scotland to S w i t z e r l a n d ; they b e c a m e o b l i g a t o r y -

25. See Spinoza 1670, x v i . O n Spinoza's conception o f international relations, especially in regard to reason o f state, see Mugnier-Pollet 1976, pp. 155-62.

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Pufendorf reading for the h i g h e r education o f the y o u n g . P u f e n d o r f w a s to be r e c o m m e n d e d b y D i d e r o t in his plans for a Russian university, b y L o c k e and R o u s s e a u for the education o f y o u n g n o b l e m e n , and w a s e c h o e d in the training o f Frederick the Great and Joseph I I . P u f e n d o r f ' s m a n y theses left their m a r k o n the political l a n g u a g e o f the eighteenth century: c o n c e r n i n g the state o f nature, the three-phase social contract, the establishment o f state p o w e r u p o n the basis o f (irrevocable) consent, his absolutist v i e w o f s o v e r e i g n t y , his t y p o l o g y o f states. H e w a s popularised b y a g a l a x y o f c o m m e n t a t o r s in the chairs o f l a w and p h i l o s o p h y in the G e r m a n - s p e a k i n g universities ( D e n z e r 1972, p p . 318—19; D u f o u r 1972, pp.206—11). P u f e n d o r f bestrides the rise o f the G e r m a n school o f m o d e r n natural l a w , a fact encapsulated b y Schiller at the close o f the eighteenth century: 26

L e a v e then the w i l d w o l v e s ' fiercer station, A c c e p t the state's m o r e lasting o b l i g a t i o n . T h u s teaches, pen in hand, his nostrum, Pufendorf, f r o m his h i g h rostrum. (Schiller 1964, 11, p. 131) His political theses w e r e spread in the translations and c o m m e n t a r i e s o f the French H u g u e n o t B a r b e y r a c ( 1 6 7 4 - 1 7 4 4 ) and the compilations o f the G e n e v a n B u r l a m a q u i (1694—1748). T h e y shaped k e y ideas o f R o u s s e a u and D i d e r o t (in his Encyclopédie articles), as w e l l as, in A n g l o - S a x o n w r i t i n g , L o c k e ' s c o n c e p t o f the natural state and W i l l i a m B l a c k s t o n e ' s remarks on the foundations o f state p o w e r (Derathé 1970, p p . 78—84; D u f o u r 1985). In A m e r i c a they shaped the manifesto o f J o h n W i s e (1652—1725) o n the démocratisation o f the N e w E n g l a n d churches, the defence o f the rights o f colonies p r o p o u n d e d b y James O t i s (1725—83), as w e l l as the ideas o f the A m e r i c a n F o u n d i n g Fathers, S a m u e l and J o h n A d a m s , T h o m a s Jefferson and A l e x a n d e r H a m i l t o n . 27

28

26. For Europe in general see O t h m e r 1970, pp. 1 3 5 - 4 9 ; D u f o u r 1985; for French Switzerland see D u f o u r 1976, pp. x i i i - x v , 1 - 5 . For France see Rousseau 1824, p. 50; D i d e r o t 1875, p. 492. For England see L o c k e 1963 (Thoughts Concerning Education). For P u f e n d o r f s influence on Frederick the Great see B a u m g a r t 1979, pp. 143-54, and on Emperor Joseph II see Voltelini 1910, pp. 7 1 - 2 . 27. O n Barbeyrac's life and w o r k , before and after the Berlin years, see M e y l a n 1937; for his philosophy o f law see D u f o u r 1976, pp. 1 1 - 2 5 . On Burlamaqui see Gagnebin 1944 and H a r v e y 193728. For P u f e n d o r f s influence on John W i s e see W e l z e l 1952, w i t h Wise's text o f A Vindication of the Government of the New England Churches (1717). For P u f e n d o r f s significance for the political thought o f the A m e r i c a n R e v o l u t i o n see Krieger 1965, pp. 259-60, and Reibstein 1972, pp. 291, 294, 295, 310.

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Natural law and utility His m a n n e r o f g r o u n d i n g state p o w e r o n contract served 'enlightened despots' and angered revolutionaries. W h e n Frederick the Great acceded to the throne, a m e d a l w a s struck w i t h the inscription 'Fredericus rex natura' ( B a u m g a r t 1979, p. 143). A t the end o f the consultation o n the general c o d e for the Prussian states d r a w n u p in 1787 ( B a u m g a r t 1979, p. 143) its main author, C a r l G o t t l i e b S v a r e z (1746—96), remarked: ' F r o m n o w on, the social contract w i l l be m o r e than an attractive hypothesis' (Svarez 1787; C o n r a d 1961). In 1793, in the midst o f r e v o l u t i o n a r y upheavals, A . L . Schlozer offered disenchanted reflections: ' T h e p e o p l e m a y resist, c o m p e l , depose, punish and d o all these things w i t h i n the idea o f a contract . . . T h e p e o p l e has these rights, the o l d public l a w y e r s tell us, but does not have the right to exercise thern (Schlozer 1793, p. 105). In the t w e n t i e t h century P u f e n d o r f ' s reputation has been a m b i g u o u s . F e w d o u b t that his breadth o f vision, the r i g o u r and n o v e l t y o f his legal and historical m e t h o d s , and the radical nature o f his political criticism, all m a k e h i m an outstanding f i g u r e . B u t j u d g e m e n t s remain opposed. For some, he w a s a b o v e all a defender o f absolutism and the established o r d e r . For others, he w a s m o r e a pioneer, a publicist for the urban bourgeoisie, or a theorist o f m o d e r n conceptions o f h u m a n rights and fundamental f r e e d o m s . Y e t it w o u l d be risky to take the latter v i e w . B y b u i l d i n g u p o n a social contract, P u f e n d o r f m a y seem to offer a prelude to o u r fundamental freedoms, but, as w e h a v e seen, he tends rather to set the ultimate seal o n state p o w e r . T h e hypothesis o f the state o f nature serves less to r e m i n d rulers o f the original rights o f subjects than to induce the latter to greater submission to the former. 'I m y s e l f , P u f e n d o r f r e m a r k e d , ' b e l i e v e that the c o m p l a i n t o f the masses about the burdens and d r a w b a c k s o f civil states c o u l d be m e t in n o better w a y than b y picturing to their eyes the d r a w b a c k s o f the state o f nature' ((1672) 1934, n.ii.2, p. 108/157). In the O l d W o r l d his authority served to establish state p o w e r independently o f any t h e o l o g i c a l limitations. If, in the N e w W o r l d , and occasionally, in r e v o l u t i o n a r y upheavals, in the O l d , his authority w a s to be cited in defence o f peoples' natural rights, it w a s because in their circumstances the natural state w a s n o l o n g e r a rhetorical figure but, u n i q u e l y , it w a s a reality (Vossler 1930). In such circumstances, P u f e n d o r f ' s political t h o u g h t c a m e to h a v e an impulse far different f r o m that o f its original c o n c e p t i o n . 29

30

31

29. Sec W o l f 1927, p. 7 5 ; Sauter 1932, p. 114; D u n n i n g 1947; G o u g h 1957, p. 119; and more recently T u c k 1979, p. 156. See also W e l z e l 1962, pp. i3off, and R o d 1970, pp. 8iff, for the juridical m e t h o d o l o g y . See M e i n e c k e 1924, p. 280; Krieger 1965, pp. 66-8 and pp. 189-92; Krieger i960; Hammerstein 1972, pp. 2 3 9 - 4 1 ; and Hammerstein 1977, pp. I93~430. S e e j e l l i n e k 1900, p. 187; G o u g h 1957, p. i25n; Sauter 1932, p. i36n; B l o c h 1961, p. 65. 31. W o l f 1963, p. 333; Denzer 1979, p. 73; W e l z e l 1958, p. 6; W e l z e l 1962, p. 1 3 1 .

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20 The reception o f Hobbes MARK

i

GOLDIE

T h e p o l e m i c against H o b b e s : the t h e o l o g i c a l premises

T h e G e r m a n philosopher L e i b n i z , the m o s t persistent and percipient o f H o b b e s ' continental critics, b e l i e v e d that the c r u x o f the quarrel b e t w e e n t h e m lay in Plato's E u t h y p h r o D i l e m m a . Socrates w a n t e d to k n o w o f E u t h y p h r o w h e t h e r a thing w a s j u s t ' (or ' g o o d ' or 'true') b y virtue o f G o d 1

h a v i n g w i l l e d it, or w h e t h e r G o d w i l l e d it because it w a s o f itself just. If the former, then justice is arbitrary, h a v i n g n o essential nature; it subsists c o n t i n g e n t l y , b y divine fiat, and can be h u m a n l y k n o w n o n l y as empirical k n o w l e d g e o f the facts o f G o d ' s utterances. T h i s is called the voluntarist, or nominalist, doctrine. B u t i f the latter answer is correct (and Socrates t h o u g h t it w a s ) , then justice does h a v e an essence distinct f r o m its b e i n g w i l l e d , and it can be intuited b y rational agents. T h i s answer is k n o w n as the essentialist, or realist, doctrine. In the biblical terms o f seventeenth-century debate this d i l e m m a w a s expressed as the choice b e t w e e n the a w e s o m e , p e r e m p t o r y G o d o f A b r a h a m and Isaac, or o f J o b , and the philosophical, rational G o d o f the Johannine L o g o s . Because G o d told A b r a h a m to kill Isaac it seemed that killing one's son w a s n o t an i m m u t a b l e evil, but o n l y evil until G o d said o t h e r w i s e : justice is c o n t i n g e n t u p o n G o d ' s c o m m a n d . Y e t if, o n the other hand, G o d is the supreme light o f reason, then H e w i l l act o n l y in accordance w i t h self-consistent rules e m b o d i e d in the natural order. W h i l s t the f o r m e r v i e w guarantees G o d ' s o m n i p o t e n t w i l l , it does so at the cost o f His reasonableness. T h e latter v i e w , c o n v e r s e l y , establishes divine w i s d o m , but at the risk o f turning G o d into a m e t a p h o r for R e a s o n and N a t u r e . T h i s is the cardinal d i l e m m a in the t h e o l o g y o f G o d ' s

i . Plato, Euthyphro, 9E—IOE; Leibniz 1972, p. 45. Plato in fact is discussing 'holiness', but this gloss on Euthyphro is standard.

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Natural law and utility g o v e r n m e n t o f the w o r l d . A n d because its terms are i m m e d i a t e l y translatable into the t e m p o r a l jurisprudence o f the sovereign's g o v e r n m e n t o f the state, and into the m o r a l g o v e r n m e n t o f the individual o v e r himself, it is fundamental in political and ethical t h e o r y t o o : for is justice constituted b y the w i l l o f the s o v e r e i g n (or the self) in vacuo, or does justice flow f r o m , and participate in, the essential nature o f things? Plato, Aristotle, and the m e d i e v a l scholastics o f the school o f A q u i n a s , w e r e essentialists, and L e i b n i z agreed w i t h t h e m . H e w a s emphatic about this w h e n e n g a g e d in refuting H o b b e s ' o v e r w h e l m i n g insistence u p o n the voluntarist answer. H o b b e s ' predication o f justice, goodness, and truth u p o n w i l l and p o w e r alone w a s , L e i b n i z t h o u g h t , fraught w i t h appalling consequences for h u m a n c o n d u c t . In the second h a l f o f the seventeenth century m a n y English and continental philosophers challenged H o b b e s o n the same g r o u n d . T o study the reception o f H o b b e s is to discover, a m o n g his enemies, a p o w e r f u l continuation o f scholastic Aristotelian styles o f p h i l o s o p h y , and, a m o n g his allies, an u r g e n t c a m p a i g n to dethrone scholasticism. A r c h b i s h o p J o h n B r a m h a l l w a s the most penetrating o f H o b b e s ' English critics and his quarrel w i t h H o b b e s in the 1650s laid out all the main points in c o n t e n t i o n . T h e c o n t r o v e r s y , v i g o r o u s and v i v i d t h r o u g h several decades, exhausted itself b y the time L e i b n i z endorsed B r a m h a l l ' s position in his Theodicy (1710). T h e a r g u m e n t s are best epitomised and m o s t accessible in Leibniz's essay, Meditation on the Common Concept of Justice (c. 1702). Because the civil aspects o f H o b b i s m — his notions o f s o v e r e i g n t y , m o r a l i t y , and e c c l e s i o l o g y - w e r e taken to be derivations f r o m the E u t h y p h r o D i l e m m a , m u c h o f the debate w a s metaphysical and t h e o l o g i c a l in character. T h i s pervasiveness o f p h i l o s o p h ical t h e o l o g y is n o t p r o p e r l y recognised in m o d e r n histories o f political t h o u g h t w r i t t e n f r o m a secular standpoint. B u t this familiarity, w i t h its easy transitions b e t w e e n talk about G o d ' s nature and talk about political society, w a s taken for granted e v e n in the d e m o t i c ' D i a l o g u e s ' and ' C h a r a c t e r s ' designed for the coffee houses o f R e s t o r a t i o n E n g l a n d . A c c o r d i n g l y , w e shall need at each step to take account o f the metaphysical c r u x w h i c h L e i b n i z posed. T h e source material is primarily English, but the 2

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2. T h e debate took place privately in the 1640s, and was published later. T h e appearance o f H o b b e s ' Of Liberty and Necessity (1654) p r o v o k e d in turn, Bramhall 1655; Hobbes, The Questions Concerning Liberty, Necessity and Chance (1656); and Bramhall 1658. 3. Printed in Leibniz 1972, pp. 45—64, and 1956, pp. 9 1 1 - 3 2 . His other main discussions o f Hobbes are in Caesarinus Furstenerius (1972, pp. n 1-20), and in the appendix to Theodicy (1952, pp. 393-404). T h e r e are c o m m e n t s scattered throughout his w o r k s , e.g. 1956, pp. 278-83, 690-5. See also R i l e y 1973; Jolley 1975.

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The reception of Hobbes responses o f such continental writers as Pufendorf, Spinoza, B a y l e , and especially L e i b n i z w i l l be n o t e d . C o n c e r n i n g G o d ' s attributes, there w a s n o difficulty in identifying H o b b e s ' u n e q u i v o c a l position. G o d w a s s o v e r e i g n p o w e r . L e i b n i z c o m plained that H o b b e s (like Descartes and Spinoza) held that in respect o f G o d , truth, goodness, and justice w e r e fictions, conjured b y His o m n i p otent w i l l . T h e o u t c o m e w a s that creation w a s e m p t i e d o f its m o r a l e c o n o m y : goodness w a s a superaddition o f G o d ' s categories u p o n the a m o r a l chaos o f nature. For H o b b e s , truth and w o r t h w e r e n o t instantiated in natural substances but w e r e 'arbitrary because they depend o n n o m i n a l definitions' (1956, p. 452; cf. 1972, p p . 45ff; 1956, p p . 278ff, 355). G o d ' s utterances bind o n l y because g r o u n d e d in G o d ' s p o w e r . H o b b e s 'maintains that all that w h i c h G o d does is just, because there is n o n e a b o v e h i m w i t h p o w e r to punish and constrain h i m ' . A n d he w h o has p o w e r o f defining m a y redefine w i t h o u t r h y m e or reason. H o b b e s ' G o d is sovereign, but is also a tyrant (1952, p. 394). T h o m a s T e n i s o n similarly objected that for H o b b e s 'there is n o rule G o d m a y n o t m o s t justly break, because he is a l m i g h t y ' , since ' p o w e r irresistable justifieth all actions' (1670, p. 144). J o h n Eachard asserted that H o b b e s had 'turned all the attributes o f G o d . . . into p o w e r , m a k i n g divine goodness, divine m e r c y , and divine justice to be n o t h i n g but p o w e r ' (1673, p . 79). 4

T h e critics' o w n position c o n c e r n i n g G o d ' s attributes w a s , h o w e v e r , m o r e e q u i v o c a l . T h e y w e r e anti-voluntarists, but as Christians they c o u l d n o t a l l o w G o d to be m e r e l y a m e t a p h o r for reason, or permit that goodness subsisted regardless o f His v o l i t i o n . H e n c e they w i s h e d to say that u n i q u e l y in G o d a perfect k n o w l e d g e o f the g o o d is h a r m o n i o u s l y and inseparably united w i t h his s o v e r e i g n p o w e r . L e i b n i z constantly asserted that G o d has k n o w l e d g e and understanding as w e l l as p o w e r and w i l l . G o d discovers the g o o d in his intellectual nature, wills w h a t H e k n o w s to be g o o d , and b y His p o w e r transforms right into fact. G o d ' s nature 'is based not o n l y o n the sovereign p o w e r but also o n the s o v e r e i g n w i s d o m w h i c h he possesses'. His o m n i p o t e n c e gives existence to w h a t o u g h t to be, and the ' o u g h t to b e ' o f goodness and justice ' h a v e g r o u n d s independent o f w i l l and o f force' ( R i l e y 973> p . 324; L e i b n i z 1972, p p . 4 6 , 50). R i c h a r d B a x t e r , the eminent Presbyterian divine, l i k e w i s e insisted that G o d has 'sapiential excellencies' x

4. For general accounts o f the reception o f Hobbes see B o w i e 1951; M i n t z 1962; Skinner 1965, 1966a, 1966b, 1969, 1972; R e d w o o d 1976; and Y a l e 1972. M i n t z 1962, pp. 157—60, gives a checklist o f English anti-Hobbes literature 1650-1700. T h e most approachable o f H o b b e s ' English critics are Bramhall 1655 and 1658; Tenison 1670; Eachard 1672 and 1673; and H y d e 1676.

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Natural law and utility as w e l l as 'potencies'. H e rules in virtue o f his creative and causal p o w e r , but also m o r a l l y , as a rational agent g o v e r n i n g a c o m m u n i t y o f angelic and h u m a n rational agents. G o d is b o t h Dominus and Rector (1659, p p . 1 7 - 1 8 , 36; cf. L a w s o n 1657, p p . 1 5 0 - 1 ; L a m o n t 1979, pp. 1 3 6 - 4 1 ) . T h e critics' formula w a s that justice equals W i l l plus U n d e r s t a n d i n g . T h e relationship b e t w e e n W i l l and U n d e r s t a n d i n g is the heart o f the w h o l e H o b b e s debate. H o b b e s ' failure lay in his suppression o f the latter half o f the equation. B r a m h a l l argued that 'as the w i l l o f G o d is i m m u t a b l e , a l w a y s w i l l i n g w h a t is just and right and g o o d , so his justice likewise is i m m u t a b l e ' . It is true that ' n o t h i n g is impossible to G o d ' s absolute p o w e r ' , but since his p o w e r 'is disposed b y his w i l l ' , o f w h i c h g o o d is the object, 'he cannot c h a n g e his o w n decrees, n o r g o f r o m his p r o m i s e ' (1655, p. 85, 1658, p. 154). T e n i s o n protested that ' b y the absolute s o v e r e i g n t y o f G o d , y o u affront his other attributes', for it w a s a deep mistake to say that G o d ' s 'arbitrary g o v e r n m e n t and . . . imperious w i l l ' a l l o w s H i m to c h a n g e His rules. Justice is a perfection eternally present in G o d ' s m i n d , so that justice is 'inseparable f r o m the First C a u s e ' (1670, p p . 144—5). Leibniz, e c h o i n g B r a m h a l l , asserted that G o d did not in fact w i l l that A b r a h a m kill Isaac, for G o d c o u l d not w i l l an intrinsically w r o n g act (1952, pp.401—2; cf. P u f e n d o r f 1934, P-97)T h i s redressing o f H o b b e s ' unbalanced t h e o l o g y w a s also undertaken b y his ostensible f o l l o w e r s . Pufendorf, w h o m L e i b n i z c o n t e m p t u o u s l y regar ded as H o b b e s ' p o o d l e , d e v o t e d considerable e n e r g y , in his massive DeJure Naturae et Gentium (1672), to the need to g i v e a 'favourable interpretation' to the master's overstatements, often softening the starkness of Leviathan b y citations f r o m the m o r e m e l l o w De Give. G o d ' s right o f c o m m a n d 'should in n o w a y be d e r i v e d o n l y f r o m His bare o m n i p o t e n c e ' for 'it does not seem consonant w i t h G o d ' s g o o d n e s s ' . In De Give, H o b b e s had p r o p e r l y said that h o n o u r to G o d is an o p i n i o n o f p o w e r 'joined w i t h g o o d n e s s ' (1934, PP- 97> 1 5 8 - 9 , 1 2 4 5 - 6 ) . A n o t h e r theorist w h o b r o a d l y f o l l o w e d H o b b e s ' j u r i s prudence w a s R i c h a r d C u m b e r l a n d . In his De Legihus Naturae (1672), he m a d e this crucial adjustment, saying that H o b b e s w a s mistaken in 'resolving the divine d o m i n i o n into His irresistable p o w e r ' , for there is n o licit d o m i n i o n w i t h o u t right annexed (1727, p. 319). A third e x a m p l e is S a m u e l Parker, in his manifesto o f ' M o d e r n ' against ' A n c i e n t ' p h i l o s o p h y , A Free and Impartial Censure of the Platonick Philosophy (1666). In Part 11 he considered 'the nature and extent o f the divine d o m i n i o n ' . G o d ' s d o m i n i o n is in accordance w i t h right reason, and is hence 'the l a w f u l use o f p o w e r ' , so that G o d w i l l o n l y d o those things 'that w i l l c o m p l y w i t h the reputation o f 592

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The reception of Hobbes his other attributes'. Despite this, h o w e v e r , Parker praised De Cive and f o l l o w e d H o b b e s in placing greatest w e i g h t o n divine d o m i n i o n , for he t h o u g h t it a Platonic, essentialist mistake to m a k e 'all the effects o f G o d ' s p o w e r be the natural emanations o f his g o o d n e s s ' , whereas 'the n o t i o n o f h i m in Scripture n e v e r refers to his essence, but a l w a y s to his p o w e r and e m p i r e ' (1666, p p . 2 , 25—6). Because o f this, Parker w a s regularly d e n o u n c e d as a H o b b e s i a n . For H o b b e s ' enemies, h u m a n beings are rational subjects o f G o d ' s universe and not m e r e l y craven slaves o f divine w i l l . A n i m p o r t a n t c o n t e x t o f this claim w a s the furious debate c o n c e r n i n g the means o f salvation, the quarrel b e t w e e n the strict Calvinist doctrine o f predestination, and the A r m i n i a n reassertion o f the T h o m i s t and C a t h o l i c n o t i o n o f h u m a n c o o p e r a t i o n in salvation. Voluntarist p h i l o s o p h y w a s instinctively as sociated w i t h the v i e w that p e o p l e are saved or d a m n e d b y G o d ' s arbitrary election, and H o b b e s w a s repeatedly linked w i t h Luther, C a l v i n , and w i t h their m e d i e v a l nominalist-voluntarist predecessors, particularly O c k h a m . T h i s association is conspicuous in B a x t e r ( a m o n g the m o d e r a t e P r e s b y terians), in T h o m a s Pierce ( a m o n g the h i g h n e o - T h o m i s t A n g l i c a n s ) , and in R a l p h C u d w o r t h ( a m o n g the C a m b r i d g e Platonists). L e i b n i z echoed t h e m , saying that ' O c k h a m h i m s e l f w a s n o t m o r e nominalistic than is T h o m a s H o b b e s ' , and that an intellectual descent lay in ' B r a d w a r d i n e , W y c l i f , H o b b e s and S p i n o z a ' (1956, p. 199, 1952, p p . 1 5 9 - 6 0 , 234, 395). It is o d d to find H o b b e s cast as a R e f o r m a t i o n t h e o l o g i a n b y those w h o w e r e a b a n d o n i n g R e f o r m a t i o n o r t h o d o x y , but w h a t p r o m p t e d t h e m w a s an intense fear o f the antinomian consequences o f C a l v i n i s m , coupled w i t h the c o n v i c t i o n that H o b b e s offered (as w e shall see) a kind o f secular antinomianism. H o b b e s , like strict Calvinists, e m p t i e d the w o r l d o f its natural m o r a l e c o n o m y , and left h u m a n i t y at the m e r c y o f preponderant or anarchic wills. H o b b e s ' critics, albeit Protestants, w e r e unabashed about c o n c e d i n g that the most satisfying m o d e r n synthesis o f G o d ' s intellect and w i l l w a s that o f the Jesuit n e o - T h o m i s t Suarez. B a x t e r , n o t i n g that 'it is a great c o n t r o v e r s y w h e t h e r it be the R e a s o n or the W i l l . . . that informeth l a w s ' , and that the chief contenders o n each side w e r e A q u i n a s and O c k h a m , j u d g e d that Suarez w a s right to say 'that it is b o t h ' , for G o d is not G o d , n o r is a person a person, n o r is a l a w a l a w , w i t h o u t b o t h 'intellect and w i l l ' (1659, p. 323). 5

5. See (for Baxter) L a m o n t 1979, pp. 136-45; Pierce 1658; C u d w o r t h i678;Tenison 1670, p. 144. This aspect o f H o b b e s ' philosophy is considered in M a l c o l m 1983.

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Natural law and utility B r a m h a l l likewise w i s h e d that H o b b e s w e r e better versed in Suarez' w o r k s 'that he m i g h t not be so averse from the S c h o o l s ' (1658, p. 69). B u t Suarez n o t w i t h s t a n d i n g , it w a s difficult not to construe the debate in simpler terms, as a w a r b e t w e e n H o b b e s and Aristotle. T h e r e is barely a chapter in Leviathan, and, it seems, hardly a coffee house virtuoso, not e n g a g e d in guerrilla operations against the n e o - T h o m i s m w h i c h still f o r m e d the b a c k b o n e o f Protestant academic education, and w h i c h indeed w a s enhanced in defence o f c r o w n and church in the w a k e o f the Puritan R e v o l u t i o n . A l e x a n d e r R o s s ' Leviathan Drawn out with a Hook is chiefly a paean to 'the prince o f philosophers', Aristotle, w h o s e 'brightness d o t h so m u c h dazzle his [Hobbes'] w e a k light'. ' W h y should not divines thank . . . A q u i n a s and other S c h o o l m e n ' for correctly h o l d i n g that ' w e h o n o u r G o d not so m u c h for his greatness . . . as for his goodness?' (1653, pp. 16, 96—7). G e o r g e L a w s o n , a Presbyterian friend o f B a x t e r , c o m p l a i n e d that H o b b e s / u n d e r v a l u e s the Philosopher [Aristotle] so m u c h , as far b e l o w h i m , t h o u g h he w a s far a b o v e h i m ' (1657, p. 93). T h e schoolmasterish B r a m h a l l lectured H o b b e s o n the concepts o f the ' S c h o o l m e n ' and ' D o c t o r s o f the C h u r c h ' , defending t h e m from ' n e w - f a n g l e d speculations' and f r o m H o b b e s ' ' p a r o x y s m . . . o f i n v e i g h i n g against t h e m ' (1655, pp. 1 5 6 - 7 , 200, 1658, p. 341; cf. Eachard 1672, p p . 3 2 , 35). T h e p o l e m i c against H o b b e s m i g h t be summarised as the last gasp o f scholastic Aristotelianism.

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W e can n o w consider the w a y s in w h i c h the scholastic doctrine o f the duality o f G o d ' s attributes w a s applied to civil jurisprudence. C i v i l s o v e r e i g n t y w a s said to h a v e an identical f o r m w i t h divine s o v e r e i g n t y because h u m a n g o v e r n m e n t w a s a m i c r o c o s m of, and participated in, providential g o v e r n m e n t . H u m a n intuitions about the right ordering o f the state w i l l naturally mirror the divine archetype o f the order o f creation. T h u s legitimate t e m p o r a l s o v e r e i g n t y w a s said, like G o d ' s rule, to be a fusion o f w i l l w i t h w i s d o m and virtue. If the latter elements g o missing, then s o v e r e i g n t y b e c o m e s tyranny, and rational citizenship gives w a y to the master-slave relationship. In Aristotle's terms, despotical relations replace political ones. T h e crucial difference b e t w e e n G o d ' s rule and h u m a n regimes is the propensity o f the latter to exercise p o w e r in the absence o f right reason. T h e t e m p o r a l sovereign, unlike G o d , has limited resources o f virtue and w i s d o m , w h i c h is w h y Christian princes need 594

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The reception of Hohbes education and counsel. T h i s is w h e r e customs and constitutions, laws and parliaments, c o m e in, for they supply the defect o f the single intellect. T h e institutions o f t e m p o r a l magistracy are therefore e m b o d i m e n t s o f b o t h w i l l and understanding, and they replicate in h u m a n affairs G o d ' s o w n nature. G r a s p i n g this idea w i l l resolve for us a p u z z l e about seventeenth-century political t h e o r y . It tends to be supposed that in e x a m i n i n g seventeenthcentury writers, they shall be found to be either constitutionalists or absolutists, d e p e n d i n g u p o n w h e t h e r b i n d i n g institutional checks or rights o f popular resistance are asserted or denied. It is clear that English parliamentarians and W h i g s t o o k up constitutionalist theories. B u t there is disagreement a b o u t the position o f royalists and T o r i e s , and it is (paradoxically) they, n o t the W h i g s , w h o w r o t e m o s t o f the critiques o f the absolutist H o b b e s . H o w , then, d o the critics stand in relation to H o b b e s ' t h e o r y o f absolute s o v e r e i g n t y ? O n c e again there w a s n o a m b i g u i t y about H o b b e s ' o w n v i e w . H e a i m e d at m o n a r c h i c a l absolutism b y a strict doctrine o f s o v e r e i g n p o w e r . A c c o r d i n g to L a w s o n , his 'intention is to m a k e m e n believe, that the K i n g s o f E n g l a n d w e r e absolute m o n a r c h s . . . the Parliaments o f E n g l a n d m e r e l y n o t h i n g but s h a d o w s ' . H e t h o u g h t Leviathan w a s addressed to a precise c o n t e m p o r a r y issue. H o b b e s ' insistence (ch. 20) u p o n the nullity o f any grant o f p o w e r s to subjects b y the s o v e r e i g n , such as w o u l d incapacitate his s o v e r e i g n t y , w a s , L a w s o n believed, a repudiation o f the p r o p o s e d Isle o f W i g h t treaty o f 1648 b y w h i c h Charles I nearly c a m e to terms w i t h the victorious parliament (1657, p p . 37, 73—5). T h e treaty w a s o v e r t a k e n b y the a r m y c o u p and the k i n g ' s e x e c u t i o n , but thereafter parliamentary Presbyterianism and the W h i g g i s m o f 1688 w e r e projects for the fulfilment o f 1648. M a n y talked o f an 'Isle o f W i g h t ' r e g i m e as a ' m i x e d m o n a r c h y ' , because it included elements o f aristocracy and d e m o c r a c y , a c o n c e p t for w h i c h H o b b e s had u n m i x e d c o n t e m p t . T h e r e is d o u b t about w h e r e m o s t royalists stood. O n e study o f H o b b e s ' critics, m o s t o f w h o m w e r e royalist divines or l a w y e r s , takes t h e m to be c o m m i t t e d to c o m m o n l a w , c u s t o m , and the representative institutions w h i c h restrained m o n a r c h i c a l fiat, a conservative constitutionalism w h i c h differed f r o m the parliamentarians o n l y in degree ( B o w i e 1 9 5 1 ) . It has often been said that w h e n E d w a r d H y d e (later earl o f C l a r e n d o n ) persuaded Charles I to issue the Answer to the Nineteen Propositions in 1642 ( w h i c h H o b b e s also d e n o u n c e d ) , r o y a l i s m w a s set on the path o f m o d e r a t i o n . In another version o f this v i e w , it has been argued that Sir R o b e r t Firmer, the most p r o m i n e n t royalist theorist and L o c k e ' s adversary in the Two 595

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Natural law and utility Treatises, w a s close to H o b b e s in a d o p t i n g a strict legal positivism, and w a s c o r r e s p o n d i n g l y distant f r o m his royalist contemporaries, w h o remained w e d d e d to the c u s t o m a r y diffusion o f p o w e r s in the A n c i e n t C o n s t i t u t i o n ( D a l y 1979). T h e r e is s o m e support for this in remarks (considered b e l o w ) o f L e i b n i z and o f L o c k e ' s friend James T y r r e l l , w h o b o t h c o u p l e d Filmer w i t h H o b b e s . T h e s e a r g u m e n t s place H o b b e s in sharp contradistinction to most royalists. It is true that H o b b e s ' bullish irreverence for c o m m o n l a w w a s unusual, and true that a l t h o u g h H o b b e s and B r a m h a l l w e r e b o t h royalist exiles in Paris in the 1640s, they w e r e intellectually utterly at odds. B u t it has also been argued that, o n the contrary, most royalists agreed w i t h H o b b e s a b o u t the k i n g ' s sole s o v e r e i g n t y , perhaps b l e n c h i n g o n l y at his impatient boldness o f f o r m u l a t i o n . T h i s seems the correct v i e w , a l t h o u g h one w h i c h w i l l need qualification. T h e royalists all grasp the indefeasible and illimitable nature o f s o v e r e i g n t y and locate it f i r m l y in c r o w n not parliament. T h e y rehearse the standard corollaries. T h e r e can be n o appellate jurisdication a b o v e the k i n g , for i f there w e r e then that jurisdiction, and n o t the k i n g ' s , w o u l d be s o v e r e i g n (as w a s said to be so in the n o m i n a l k i n g d o m s o f P o l a n d , V e n i c e , and ancient Sparta). C o m m o n l a w , they said, w a s n o t p r o p e r l y l a w , and parliaments not o f right, e x c e p t insofar as t h e y are d e e m e d l a w s and rights b y the k i n g ' s w i l l and concession. E n g l a n d is a pure m o n a r c h y , w i t h o u t a d m i x t u r e o f aristocracy or d e m o c r a c y , and the Answer to the Nineteen Propositions w a s mistaken in saying otherwise. T h e y constantly recite the R o m a n l a w d i c t u m that princeps is legihus solutus — the prince is the sole legislator. A l l these points coincide w i t h H o b b e s ' teaching in Leviathan, Behemoth, and the Dialogue of the Common Laws. T h e royalists usually a c k n o w l e d g e a debt to B o d i n and his e p i g o n i H e n n i n g Arnisaeus and Christian B e s o l d , but occasionally they cite H o b b e s . Filmer, w h o published the first sustained c o m m e n t a r y u p o n Leviathan, w r o t e that ' w i t h n o small content I read M r H o b b e s ' b o o k De Cive, and his Leviathan, a b o u t the rights o f s o v e r e i g n t y , w h i c h n o man, that I k n o w , hath so a m p l y and j u d i c i o u s l y handled' (1949, p. 239). M o r e g r u d g i n g l y , T e n i s o n c o n c e d e d that 'in s o m e things y o u are just to the p r e r o g a t i v e o f K i n g s ' (1670, p . 165). M o r e o v e r , C a v a l i e r c o m m o n p l a c e s a b o u t r o y a l absolutism q u i c k l y c a m e to be called H o b b e s i a n b y their enemies. In 1661 H e n r y O l d e n b u r g noted 'the asserting o f H o b b e s ' principles in Parliament', w h i c h refers to a speech b y the speaker o f the 6

6. This could be documented in almost all the royalist treatises from the 1640s to the 1680s, but there is not space to do so here. Restoration royalism will be considered in m y forthcoming The Tory Ideology: Politics, Religion, and Ideas in Restoration England ( C a m b r i d g e University Press).

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The reception of Hobhes H o u s e o f C o m m o n s in praise o f the k i n g ' s s o v e r e i g n t y and in denigration o f aristocracy and d e m o c r a c y . In 1680 the W h i g l a w y e r W i l l i a m P e t y t w r o t e o f ' o u r n e w politicians the Hobbists, w h o place all the i*tue o f the French g o v e r n m e n t in its absoluteness'. A t h o r o u g h g o i n g absolutism is to be found in R e s t o r a t i o n E n g l a n d : L o c k e c o m b a t e d a pervasive and not an isolated t h e o r y o f m o n a r c h i c a l s o v e r e i g n t y (Goldie 1983). Y e t royalist treatises are still initially confusing. T h e y criticise parliamen tarians and W h i g s for the conceptual muddles and desperate dangers o f ' m i x e d ' or 'balanced' polities, and c o n d e m n rights o f resistance, but they also fulsomely defend c u s t o m and the necessity o f parliament, c o n d e m n arbitrary rule, and stress the o b l i g a t i o n o f subjects in s o m e cases to disobey kings. R o g e r C o k e ' s Justice Vindicated is a case in point. O n the one hand, 'the C o m m o n L a w and Statute L a w o f this realm w e r e n o t h i n g but the declared w i l l o f the K i n g ' . A m o n a r c h is 'not o b l i g e d b y his o w n l a w s ' and it is folly to say any l a w can o b l i g e the m a k e r o f it, 'unless a m a n w i l l grant that an effect m a y b e p r i m e and superior to the cause' (1660b, p p . 6 1 , 45). O n the other hand, l a w s must certainly be m a d e in parliament, and the k i n g must abide b y ' c u s t o m and usage' and b y those things ' w h i c h h a v e been so time out o f m i n d ' . M o r e o v e r , 'Princes o u g h t not to b e o b e y e d , w h e n they c o m m a n d in d e r o g a t i o n o f G o d ' s majesty' (1660b, pp. 50, 104, 1 1 1 - 1 2 ) . T h e resolution o f this p a r a d o x lies in understanding the Suarezian union o f w i l l and intellect. W e shall not find, in any but an arrant voluntarist, an unqualified defence o f arbitrary fiat, but neither d o w e find an e x t r e m e T h o m i s t v i e w that l a w s can subsist in the absence o f agents to p r o m u l g a t e t h e m and apply c o e r c i v e sanctions. H o b b e s ' royalist critics w e r e clear that a precept, w h e n g i v e n b y a subject, or b y c u s t o m , or b y a s o v e r e i g n uttering other than ex cathedra, w a s n o t a l a w p r o p e r l y so-called, for there is n o l a w w i t h o u t proper signification and w i t h o u t the s w o r d . T h e s e are attributes annexed o n l y to s o v e r e i g n t y — and to expatiate o n t h e m is^to sound H o b b e s i a n . B u t , correlatively, there is m o r e to l a w and politics than s w o r d s and significations, for there is also virtue and right reason - and this is the Aristotelian r e p r o o f to H o b b e s . H o b b e s ' enemies held that s o v e r e i g n t y is n o t to be construed as mere w i l l , for, like any adequate rational agent, and like G o d , sovereigns d o not exercise v o l i t i o n in vacuo. T h e sovereign's w i l l does n o t simply equate w i t h , or o c c u p y the same space as, justice, for, in legislating he deliberates a m o n g m a n y possible g o o d s and means, and gives legal force to s o m e o f t h e m . H e T

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7. O l d e n b u r g 1965, p.410; Petyt 1954, p.463.

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Natural law and utility w i l l d o this w i t h a greater or lesser degree o f m o r a l success, d e p e n d i n g u p o n the quality o f his education as a virtuous prince, and the quality o f his consultation w i t h the c o m m u n i t y ' s resources o f m o r a l w i s d o m , his council, parliament, and church. T o u p h o l d such institutions w a s n o detriment to the juristic quality o f sovereign w i l l n o r to the puissance o f the s w o r d , but to negate t h e m transforms a landscape o f c o m m o n m o r a l striving for the public g o o d into a tyrannical, H o b b e s i a n wilderness. T h e r e are, then, n o legitimate c o e r c i v e limitations u p o n a k i n g , w h o is legislatively o m n i p o t e n t , but there are m o r a l limits. A virtuous prince w i l l freely choose to constrain his actions w i t h i n the boundaries o f the g o o d , and t h r o u g h channels o f rational public deliberation. His s o v e r e i g n t y is not impaired b y the plenitude o f these concessions, indeed, as a person he b e c o m e s freer the m o r e he acts for the c o m m o n g o o d , and the less in accordance w i t h private desires. S u c h virtuous practices w e r e held to be so habitual and ingrained in English constitutional procedures that w h e n royalists descanted u p o n t h e m they sounded like 'constitutionalists'. In a sense they w e r e so: E n g l a n d is an absolute and limited r e g i m e , but it is n o t a ' m i x e d ' or 'balanced' one, for it is virtue and n o t mechanical force w h i c h restrains kings. R o y a l i s t theologians applauded Charles II's divine s o v e r e i g n t y and yet deplored H o b b i s m ; they b e l i e v e d that whilst n o earthly p o w e r should c o m p e l a k i n g , nonetheless they w e r e the keepers o f the k i n g ' s conscience, and i f the k i n g did n o t listen to t h e m he w o u l d soon be a tyrant. T h e same cardinal point a b o u t the c o m p a t i b i l i t y o f estates and counsel w i t h absolute kingship w a s put w i t h particular felicity b y Pufendorf. ' S o v e r e i g n t y does n o t cease to be absolute b y the establishment o f . . . a senate', for 'the nature o f absolute s o v e r e i g n t y is n o t that a k i n g m a y d o w h a t e v e r he pleases . . . but that he has the final decision on his o w n j u d g e m e n t in matters w h i c h c o n c e r n the c o m m o n w e a l t h ' . T h e r e f o r e ' a l t h o u g h the advice g i v e n a k i n g b y such a senate does n o t obligate h i m o f itself . . . it nevertheless furnishes the occasion for an o b l i g a t i o n , insofar as it calls to his attention the m a n n e r in w h i c h he can fulfil his d u t y ' (1934, p. 1075). W h e n , therefore, English absolutists cited, as they frequently did, the authority o f ' B r a c t o n ' and Fortescue, often regarded as the canonical m e d i e v a l 'constitutionalists', they w e r e neither m u d d l e d n o r disingenuous, for they w e r e right to see that the B r a c t o n i a n sense o f the k i n g ' s limitations lay in Aristotelian m o r a l metaphysics, and n o t in the political mechanics w i t h w h i c h H o b b e s familiarised the w o r l d (see N e d e r m a n 1984). H o b b e s a c c o r d i n g l y received m a n y lectures out o f Aristotle's Ethics. T h e critics 598

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The reception of Hohhes constantly m o v e d b e t w e e n questions o f G o d ' s attributes, o f h u m a n m o r a l action, and o f the English constitution, often b o r r o w i n g v o c a b u l a r y f r o m one sphere into another, since 'all created rectitude is but a participation o f divine rectitude' ( B r a m h a l l 1655, p. 85). Indeed, w h a t is called the t h e o r y o f the ' D i v i n e R i g h t o f K i n g s ' often turns out to be a meditation u p o n the c o n g r u e n c e b e t w e e n m o d e s o f action in all rational agents, divine, h u m a n , and magistratical. A n e x a m p l e is W i l l i a m Falkner's Christian Loyalty, an able defence o f Charles H's absolutism, yet anxious to dissociate itself f r o m H o b b i s m , and keen to bruit the church's authority. H e argued that 'it is neither necessary, n o r most suitable to s u p r e m a c y o f g o v e r n m e n t , that the rules b y w h i c h the g o v e r n o r proceedeth, should be altogether at his o w n w i l l and pleasure', for after all, 'it is n o abatement o f the h i g h s o v e r e i g n t y o f the glorious G o d o v e r the w o r l d , that all His g o v e r n m e n t and e x e c u t i n g j u d g e m e n t , is ordered a c c o r d i n g to the natural and eternal rules and measures o f goodness and justice, and not b y any such arbitrary w i l l , w h i c h e x c l u d e t h all respect thereto' (1679, p p . 10—11). B r a m h a l l explained m o r e fully. ' T h e w i l l w h i c h affecting s o m e particular g o o d , d o t h e n g a g e and c o m m a n d the understanding to consult and deliberate w h a t means are c o n v e n i e n t for attaining that end.' T h e ' w i l l is the lady and mistress o f h u m a n actions, the understanding is her trusty counsellor, w h i c h gives n o advice, but w h e n it is required b y the w i l l ' . In the public realm, the k i n g e m b o d i e s w i l l , the counsellors or parliament e m b o d y understanding. ' T h e greatest p r o p u g n e r s o f s o v e r e i g n p o w e r think it e n o u g h for Princes to challenge [i.e. claim] an i m m u n i t y f r o m c o e r c i v e p o w e r , but a c k n o w l e d g e that the l a w hath a directive p o w e r o v e r t h e m . ' H o b b e s w a s , he continued, correct to say that s o v e r e i g n t y cannot be m i x e d or overruled, yet it can be 'tempered or m o d e r a t e d ' . H o b b e s thinks that ' w h a t e v e r they d o b y p o w e r , they d o j u s t l y ' , and he thereby o v e r t h r o w s all deliberation, counsel, advice, praise and b l a m e . W e h a v e duties n o t o n l y to act w i t h c o m p e t e n c y o f w i l l and signification, but also to k n o w g o o d ends as objects o f the w i l l : there are epistemic duties as w e l l as practical ones. ' H e w h o hath an erroneous conscience is d o u b l y o b l i g e d : first to reform it, and then to f o l l o w it.' H o b b e s , b y contrast, enslaves the people to the k i n g , and the k i n g to his passions. ' T h e d o m i n i o n o f reason, or o f a reasonable m a n , o v e r his sensitive appetite, is not despotical, like the g o v e r n m e n t o f a master o v e r his slave, but political, like that o f a magistrate o v e r the p e o p l e ' (1655, pp. 3 0 - 1 , 82-3, 9 1 , 1658, p p . 3 0 5 , 309, 5 2 7 - 8 ) . W i t h o u t the appropriate ethics, B r a m h a l l rightly c o n c l u d e d , Aristotle's crucial distinction b e t w e e n political and despotical rule b e c o m e s meaningless, and H o b b e s w a s 599

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Natural law and utility repeatedly accused o f seeing n o difference b e t w e e n m o n a r c h y and t y r a n n y or slavery. In Justice Vindicated, R o g e r C o k e p r o v i d e d a manifesto for the R e s t o r e d m o n a r c h y predicated u p o n a refutation o f H o b b e s ' 'monstrous and b l a s p h e m o u s ' denial o f right reason as a necessary attribute o f divine and h u m a n s o v e r e i g n t y . Justice, he explained, is not o n l y effective c o m m a n d , but also ' u p r i g h t d o i n g ' , w h i c h , said C i c e r o , is 'a habit o f m i n d ' in the virtuous. S o it is utterly w r o n g to say that ' K i n g s m i g h t m a k e their w i l l the rule o f their actions', for 'there is n o t h i n g m o r e to be w i s h e d in the w o r l d , than that the w i l l o f t h e m w h i c h c o m m a n d , m i g h t be m o d e r a t e d and restrained b y reason'. Princes are deserving o f b l a m e w h e n they act not for the public g o o d but 'either b y passion, or to pleasure factious m e n ' . A s for the c o m p a t i b i l i t y o f parliaments w i t h absolute m o n a r c h y , the case w a s simple. 'It is as clear as the sun at n o o n d a y , that a K i n g o f E n g l a n d , b y the ancient usages o f this nation, is as free and absolute in the session o f Parliament, as out. A n d the act o f a K i n g in Parliament, is the free and v o l u n t a r y act o f an absolute m o n a r c h . ' T h i s w a s n o different f r o m individual h u m a n a g e n c y , since ' m y w i l l , b e i n g a faculty o f m y soul . . . takes information f r o m m y understanding or reason', as 'counsel is to l a w ' (1660b, p p . 4 9 - 5 0 , 67, 1 1 6 , 1 2 1 - 2 ) . If this duality o f w i l l and understanding had its p r i m a r y application in the concept o f l a w , it had another use in the v e x e d question o f the l e g i t i m a c y o f sovereigns w h o acquired their p o w e r in successful r e v o lutions. R e c e n t scholarship has demonstrated the part H o b b e s p l a y e d in the E n g a g e m e n t C o n t r o v e r s y in the 1650s b y e n c o u r a g i n g the v i e w that plenary possession o f the civil s w o r d , and thereby o f the p o w e r to protect subjects, w a s all that c o u n t e d for legitimate s o v e r e i g n t y (Skinner 1965, 1966a, 1972; cf. Y a l e 1972). For instance, M a r c h a m o n t N e d h a m appended in order to quotations f r o m H o b b e s to his Case of the Commonwealth vindicate his claim 'that the p o w e r o f the s w o r d gives title to g o v e r n m e n t ' (1969, p. 129). H o b b e s ' C a v a l i e r critics repeatedly d e n o u n c e d h i m as a publicist for the 'usurper' C r o m w e l l , and pointed to H o b b e s ' failure to understand that licit g o v e r n o r s must h o l d authority de jure, b y rational rules o f l e g i t i m a c y , and n o t o n l y de facto, b y m e r e p o w e r ( H y d e 1676, p p . 44—5, 60—1, 189, 317—18; T e n i s o n 1670, sig. A 3 V ) . Ironically, h o w e v e r , in the aftermath o f the R e v o l u t i o n o f 1688—9, n u m b e r o f H o b b e s ' erstwhile enemies found themselves dangerously close to his doctrine, that right is predicated o n p o w e r , because they n o w w i s h e d to support this consider ably m o r e acceptable r e v o l u t i o n . T h i s is conspicuously so o f L e i b n i z a

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The reception of Hobbes h i m s e l f ( w h o had the interests o f his H a n o v e r i a n masters to think of), and o f the English w r i t e r u p o n w h o m L e i b n i z w r o t e a c o m m e n t a r y , W i l l i a m Sherlock, w h o w a s the leading T o r y defender o f W i l l i a m o f O r a n g e ' s n e w r e g i m e . S h e r l o c k ' s painful attempts to distance h i m s e l f f r o m H o b b e s w e r e u n c o n v i n c i n g ( R i l e y 1973; Jolley 1975). T h i s is n o t to say that scholastic theorists w e r e w h o l l y false to themselves in leaning t o w a r d s the s w o r d in revolutions o f w h i c h they a p p r o v e d . For, as B a x t e r said, conquest m a y n o t create right but it does m a k e the c o n q u e r o r ' m a t e r i a m dispositam' — capable o f r e c e i v i n g right. A n y g o v e r n m e n t that lacks effective e x e c u t i v e p o w e r cannot be s o v e r e i g n , for it is 'materia indisposita et incapax f o r m a e ' (1659, p p . 163, 134). A s e v e r y g o o d Aristotelian k n e w , reality consisted in b o t h f o r m and matter, and it w a s as cjangerous to s u c c u m b to a fantasy o f pure f o r m (sentimental legitimism) as to the barbarism o f m e r e matter in m o t i o n (the n a k e d s w o r d ) . T h e willingness o f seventeenth-century theorists to accept the c o n q u e r i n g s w o r d w a s an o u t c o m e o f their sense o f the juristic necessity o f w i l l and p o w e r , in addition to reason and understanding in h u m a n affairs. M o s t o f H o b b e s ' adversaries w h o s o u g h t to u p h o l d the claims o f right reason against voluntarism w e r e royalists and T o r i e s , or c o n s e r v a t i v e m i n d e d Presbyterians. W e h a v e seen that m o d e r a t e Presbyterians like B a x t e r and L a w s o n w e r e in a g r e e m e n t o n metaphysical fundamentals w i t h diehard C a v a l i e r s like B r a m h a l l and C o k e . It w o u l d , h o w e v e r , be mistaken to suppose that the revolutionaries o f m i d - c e n t u r y w e r e b y contrast c o m m i t t e d to a n e w 'empirical' politics (cf. G u n n 1969). T h e radical Puritans, the Levellers, Independents, and republicans, w e r e not harbingers o f d e m o c r a c y or popular consent, in the m o d e r n sense o f the a g g r e g a t i o n o f c o n t i n g e n t wills, but equally w e r e seekers after r i g h t e o u s ness. A c c o r d i n g to the Leveller J o h n Lilburne the point about M a g n a C a r t a and the Petition o f R i g h t w a s n o t that they w e r e expressions o f the people's w i l l , but that there w e r e 'divers things in t h e m founded u p o n the principles o f pure reason'. S o that, as J o h n W i l d m a n put it, 'reason and e q u i t y . . . is not prostrate at the feet o f the Parliament's w i l l ' . T h e republican A l g e r n o n 8

8. Q u o t e d in M . M . Dzelzainis, ' T h e Ideological C o n t e x t o f John Milton's History o f Britain', C a m b r i d g e University P h D thesis (1984), pp. 1 9 7 - 8 , cf. pp. 206-7. Several scholars have recently suggested that at the Putney Debates Ireton adopted a quasi-Hobbesian position against the Levellers, insisting on the primacy o f contingent volition and upon the hopelessness o f trying to reach c o m m o n agreement on the substance o f ' r i g h t reason' in human political relations. See T u c k 1979, p- 156, and H a m p s h e r - M o n k 1976, pp. 397-422. T h e latter emphasises the importance o f the Levellers' denial o f citizenship to Cavalier 'delinquents', w h o w e r e not rational agents but brute beasts, servants o f Charles I's tyranny, for they were self-enslaved to passion and interest and had deposed the empire o f reason in their o w n souls.

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Natural law and utility Sidney believed deeply that t y r a n n y in any h u m a n relationship w a s to be defined as dependence o n the m e r e w i l l o f another: it is 'letting w i l l rule for reason' (Scott 1988, p p . 35ff). A l l sides w e r e c o m m i t t e d to the Aristotelian definition o f t y r a n n y : it w a s any t y p e o f r e g i m e w h i c h failed to serve the public g o o d . D e s p o t i s m w a s n o t so m u c h the absence o f a constitution but the absence o f virtue. H e n c e pure m o n a r c h y m i g h t be virtuous, and democracies m i g h t be factious and despotical. It w o u l d be difficult to overestimate the e n o r m o u s degree o f consensus that c o m m o n w e a l t h s should manifest an o b j e c t i v e l y rational h u m a n order, w h e r e 'reason' meant r o u g h l y w h a t Plato and Aristotle t o o k it to mean. Scholastic accounts o f the m o r a l element in s o v e r e i g n t y tend to lack c o g e n c y n o w a d a y s , and in consequence w e are apt n o t to notice t h e m . T h e r e w e r e , o f course, seventeenth-century theorists w h o talked about constitutional balances or fulcra, or about the mechanics o f p o w e r , or the calculus o f 'interests' (cf. G u n n 1969; G r e e n l e a f 1964). T h e y reflect the philosophical r e v o l u t i o n o f w h i c h H o b b e s w a s a part — but it w a s a s l o w r e v o l u t i o n . T o his critics, H o b b e s w a s preeminently a philosopher o f the w i l l w h o o v e r t h r e w right reason in h u m a n affairs. Since he c o n c e i v e d o f reason as s i m p l y instrumental to the capricious w i l l , he w a s t h o u g h t , far f r o m constructing a 'rationalist' politics, to h a v e left 'reason . . . dejected at the feet o f affection [i.e. the passions]' (Bramhall 1655, p. 182). A c o m m o n w e a l t h is a c o m m u n i t y ' o f reasonable m e n , not a Leviathan, w h i c h is an irrational brute' ( L a w s o n 1657, p. 5). In spite o f the m o d e r n p r e s u m p t i o n that H o b b e s p r o d u c e d a 'rationalist' politics, this Aristotelian standpoint n e v e r w h o l l y fell f r o m sight, and in m a n y respects w a s to be brilliantly r e v i v e d b y H e g e l and the Idealist and R o m a n t i c political traditions.

hi

C o n t r a c t and the limits o f o b l i g a t i o n

Just as H o b b e s i a n s o v e r e i g n t y w a s seen to be the exercise o f contingent w i l l , so t o o was the act o f consent in the H o b b e s i a n subject. His opponents understood consent to be, n o t an expression o f preference or taste, but the occasion u p o n w h i c h the recalcitrant h u m a n w i l l w a s bent to e m b r a c e G o d ' s rational purposes - purposes w h i c h should be visible to any rightly educated understanding. H o b b e s seemed to o v e r t h r o w the n o t i o n o f civil society as a natural c o m m u n i t y e n g a g e d in a collective seeking after virtue. H e proposed instead a m i n i m a l state designed to protect w h a t e v e r private persons t o o k to be g o o d for themselves. T h e critics w e r e struck b y those 602

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The reception of Hobbes passages, particularly in De Cive, w h i c h seemed to limit the scope o f the social contract to the subjects' sense o f w h a t w a s necessary for 'the c o m m o n peace and safety'. L a w s o n p r o n o u n c e d that it w a s 'false and d a n g e r o u s ' to h o l d that 'the sole or principal cause o f the constitution o f a civil state is the consent o f m e n , or that it aims at n o further end than peace and p l e n t y ' (1657, p p . 1—2). L e i b n i z ' Common Concept of Justice reflects o n H o b b e s ' i m p o v e r i s h m e n t o f the aims o f political society. H o b b e s ( w h o interestingly is c o u p l e d w i t h Filmer) considers the state o n l y f r o m the standpoint o f ius strictum, the o n l y precept o f w h i c h is to k e e p the peace and to a v o i d causing h a r m to others. B o t h H o b b e s and Filmer a b a n d o n ' e q u i t y ' , 'piety', and 'honeste v i v e r e ' as objects o f the c o m m o n w e a l t h , rejecting Aristotle's 'beautiful' n o t i o n o f the m u t u a l striving after virtue (1972, p. 60; cf. 1956, p p . 690-5). In this c o n t e x t , H o b b e s ' preference for m o n a r c h y w a s separable f r o m , and philosophically less i m p o r t a n t than, his insistence that s o v e r e i g n t y , w h e r e v e r it lay, w a s s i m p l y the a g g r e g a t e o f private wills. It w a s , therefore, n o t inappropriate that his critics should r e p r o v e h i m for e n c o u r a g i n g the dangers o f d e m o c r a c y . B r a m h a l l r e m i n d e d h i m that a l a w m i g h t be unjust a l t h o u g h it had the consent o f all. H e berated h i m for failing to understand the point o f Plato's account o f the death o f Socrates at the hands o f the A t h e n i a n demos (1658, p p . 495—6). L a w s o n c o m m e n t e d that m a n y societies p r o c e e d b y majority v o t e , y e t 'the major part m a y err, because they are not infallible', for ' m e n ' s votes are inferior to reason' and it is possible that 'the major part be a faction . . . not for public g o o d so m u c h as for private interest' (1657, p p . 2 6 - 7 ) . H o b b e s ' doctrine at best i m p o v e r i s h e d the h u m a n c o m m u n i t y , but at w o r s t w a s d o w n r i g h t subversive o f civil society. T h e subversive element w a s located in H o b b e s ' claim in Leviathan that, since the p a r a m o u n t desire o f individuals w a s to preserve their lives, subjects w e r e not obligated to a sovereign w h o tried to kill t h e m . T h i s caveat seemed the profoundest flaw in an a r g u m e n t otherwise intended to shore u p an almost limitless authority. It o p e n e d w i d e the possibility o f private j u d g e m e n t o f the sovereign's care o f their welfare. P u f e n d o r f w a s w o r r i e d b y this theoretical leakiness, for it m i g h t lead to h o l d i n g that n o b o d y w a s b o u n d to o b e y further than that point at w h i c h the ruler w a s p e r c e i v e d to be n o l o n g e r securing peace, safety, or indeed welfare (1934, p. 980). R u l e r s h i p w a s hence upheld b y n o t h i n g m o r e secure than the fact that people habitually o b e y e d . For English royalists, H o b b e s not o n l y thereby legitimised the usurper C r o m w e l l , but e n c o u r a g e d rebellion. In Eachard's Dialogue 603

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Philautus r e m a r k e d that the subject had g i v e n up all his p o w e r to the sovereign; ' b u t ' , T i m o t h y replied, ' b y y o u r principles, he can call for it again, w h e n he thinks it for his a d v a n t a g e ' (1673, p p . 242—3). T e n i s o n said H o b b e s ' b o o k s s o w e d 'seeds o f sedition' (1670, p. 161), H y d e that he g a v e subjects a ' w o n d e r f u l latitude' (1676, p . 100). Filmer r e m a r k e d that 'in his pleading the cause o f the people, he arms t h e m w i t h a v e r y large c o m m i s s i o n o f array; w h i c h is, a right o f nature for e v e r y m a n , to w a r against e v e r y m a n w h e n he please' (1949, p. 239). For C u m b e r l a n d , H o b b e s a l l o w e d any individual to act u p o n his o p i n i o n that the c o m m o n w e a l t h w a s about to inflict h a r m u p o n h i m , a principle w h i c h w i l l 'excite subjects to rebellion'. T h e H o b b e s i a n s o v e r e i g n had feet o f clay: ' H o b b e s , whilst he pretends w i t h one hand to b e s t o w gifts u p o n Princes, does w i t h the other treacherously strike a d a g g e r to their hearts' (1727, p. 377, cf. p p . 288, 355-9, 375-1). Because ,of these dangers inherent in contract t h e o r y almost all the royalists firmly rejected the n o t i o n that civil society is the p r o d u c t o f individual wills and pacts. It is a c o n c e p t ' v e r y absurd and insecure' t h o u g h t T e n i s o n (1670, p. 1 3 1 ) . Filmer, in the passage in w h i c h he praised H o b b e s ' doctrine o f s o v e r e i g n t y , w e n t o n to say, 'I consent w i t h h i m about the rights o f exercising g o v e r n m e n t , but I cannot agree to his means o f acquiring it' (1949, p. 239; cf. H y d e 1676, p. 52; Falkner 1679, p p . 4 0 7 - 9 ) . W i t h Aristotle and A q u i n a s , the royalists held that civil society and political authority w e r e natural, n o t c o n v e n t i o n a l . Since p o w e r does n o t derive f r o m the people, it cannot revert to t h e m ; p e o p l e find themselves under g o v e r n m e n t , they are b o r n unfree and unequal. T h e royalists w e r e also patriarchalists in h o l d i n g that m o n a r c h y is G o d ' s natural ordinance; fatherhood is the p a r a d i g m o f all authority, the family is the archetype o f the state. T h e y constantly cite B o o k 1 o f Aristotle's Politics, and Genesis. C o k e is typical: ' f r o m the e v i d e n c e o f all sacred and profane history, n o time w a s ever recorded, in w h i c h m e n w e r e n o t in subjection to o n e another'. T h e 'highest P h i l o s o p h e r ' , Aristotle, gives testimony that ' c o m m a n d i n g and o b e y i n g is not h u m a n artifice or i n v e n t i o n ' and that 'there w a s n e v e r any m a n b o r n , but w a s b o r n in subjection' (1660b, p p . 1, 28). H o b b e s they take to be i m p i o u s because he denied the A d a m i c origins o f h u m a n authority. His natural state o f free and equal p e o p l e must presuppose the separate appearance o f m y r i a d people, a scandalous n o t i o n g i v e n publicity b y the publication in 1656 o f Isaac de la Peyrere's Men before Adam ( P o p k i n 1987). T h e critics said H o b b e s b o r r o w e d f r o m the story o f C a d m u s ' teeth in O v i d ' s Metamorphoses, or that his natural p e o p l e w e r e 604

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The reception of Hobbes ' m u s h r o o m m e n ' spontaneously generated, or that his source w a s Epicurus ( P u f e n d o r f 1934, p. 163; T e n i s o n 1670, p p . 1 3 1 - 3 ; H y d e 1676, p p . 38-9; Eachard 1672, p p . 76-80; Filmer 1949, p. 2 4 1 ; B r a m h a l l 1658, p. 531). It is, h o w e v e r , the case that a f e w u n t y p i c a l royalist writers did adopt H o b b e s ' contractarian stance. T h e most conspicuous are D u d l e y D i g g e s ' Unlawful ness of Subjects taking up Arms (1643) and M a t t h e w W r e n ' s Monarchy Asserted (1659). S o v e r e i g n t y , as W r e n put it, arises f r o m the ' c o m p a c t o f e v e r y m a n to part w i t h his private p o w e r ' (p. 100). Y e t , unlike H o b b e s , b o t h are e m p h a t i c that the right o f self-preservation is w h o l l y renounced under the social pact: any continuance into civil society o f private natural rights is implicitly subversive ( T u c k 1979, pp. 102—4). If such writers, in the c o n t e x t o f the C i v i l W a r , w e r e anxious to foreclose leakages in the authoritarian deductions f r o m contractarian premises, others w e r e later n o less keen to e x p l o i t the liberal implications o f H o b b i s m , and deliberately placed boundaries on the scope o f political authority. Spinoza's o n l y explicit e m e n d a t i o n o f H o b b e s w a s on these lines. ' T h e difference . . . b e t w e e n H o b b e s and myself, consists in this, that I a l w a y s preserve natural right intact, and o n l y allot to the chief magistrates in e v e r y state a right o v e r their subjects c o m m e n s u r a t e w i t h the excess o f their p o w e r o v e r the p o w e r o f the subjects' (1909, 11, p. 369). T h a t sovereigns h a v e o n l y such p o w e r s as w e r e granted t h e m b y their subjects is a point m o r e clearly m a d e in his Tractatus politicus (c. 1675): 'the natural right o f e v e r y m a n does not cease in the civil state. For m a n , alike in the natural and in the civil state, acts a c c o r d i n g to the l a w s o f his o w n nature, and consults his o w n interest' (1909,1, p. 302). Similarly, P u f e n d o r f seeks to liberalise Leviathan b y w a y o f familiar passages in De Cive, and concludes that w h e n H o b b e s seems to g i v e sovereigns unlimited p o w e r , ' w e must bear in m i n d the intention or t h o u g h t w i t h w h i c h m e n m a d e up their minds to establish states'. T y r r e l l , an early student o f Pufendorf, c o v e r e d identical g r o u n d , cleverly insinuating H o b b e s into W h i g g i s m b y w a y o f De Cive. H o b b e s c o u l d be said to h o l d that ' n o b o d y is understood to h a v e conferred m o r e p o w e r b y his w i l l u p o n the m o n a r c h , than a reasonable m a n can j u d g e necessary to that end', n a m e l y ' c o m m o n peace and safety' (1681, p p . 257). T h e liberal minimalist state w a s discovered in H o b b e s at an early stage. 9

9. 1934, p. 1077. For Pufendorf's numerous adjustments o f H o b b e s see, e.g., p p . 2 5 - 6 , 124, 158—9, 1 7 1 - 2 , 383, 1138. His general drift is that some k n o w l e d g e o f the law o f nature is after all possible, and therefore some justice precedes h u m a n covenants.

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Ethical relativism and sceptical politics

In the Puritan R e v o l u t i o n 'right reason' t o o easily had its o u t c o m e in parliamentary or military dictatorship, as surely as 'right reason' for royalists indubitably meant Stuart absolutism. T h e fact that e v e r y o n e agreed that civil society should e m b o d y rational principles, w h i c h all c o u l d intuit, did not p r e v e n t manifold disagreements about their substantive content. T h i s w a s the starting point o f H o b b e s ' scepticism. T h e light o f reason shines in desperately variegated w a y s ; so that it m a y as w e l l be said that it shines n o t at all. T h e r e is n o consensus a b o u t rational principles, and w h a t is called 'the l a w o f nature' generally turns out to be c u s t o m , prejudice, or preference. S o m e said this w a s because o f the weakness o f h u m a n intellect, but H o b b e s t o o k the radically sceptical standpoint that it w a s because justice had n o essence, so that there c o u l d be n o c o m m o n intuition o f it. N o w it is possible to hold, voluntaristically, that a l t h o u g h there is n o innate k n o w l e d g e o f the g o o d , nonetheless G o d has g i v e n h u m a n i t y m o r a l rules pellucidly in scripture (see L a w s o n 1657, p p . 159—63, 102—7). In other w o r d s , it can be held that truth and rightness are fictions to G o d , because he makes t h e m , and yet they are real and absolute for humans, because g i v e n in R e v e l a t i o n . B u t for H o b b e s not o n l y w a s h u m a n i t y not possessed o f innate k n o w l e d g e o f the g o o d , but it also had n o incorrigible hermeneutic for k n o w i n g the m e a n i n g o f scripture. G o d ' s w a y s are u n k n o w a b l e and H e has left us to our o w n m o r a l and epistemic devices. C o n s e q u e n t l y , G o d ' s arbitrariness is e x a c t l y m i r r o r e d in h u m a n arbitrari ness. B o t h His and o u r v o l i t i o n operate in vacuo. A c c o r d i n g l y , the h u m a n s o v e r e i g n must, w i t h o u t firm divine guidance, fabricate such l a w s o f g o o d and evil as shall seem necessary for social peace. H o b b e s did, o f course, talk o f l a w s o f nature, and o f things w h i c h all h u m a n i t y k n e w to be true a b o u t h u m a n nature. B u t his critics w e r e struck b y w h a t seemed the appalling extent o f his P y r r h o n i s m . C o k e and T e n i s o n likened his doctrine to the classical sceptical relativism o f Carneades (1660a, sig. b4r; 1670, p. 162; cf. T u c k 1983, 1988). T h e y stressed H o b b e s ' denial o f innate m o r a l k n o w l e d g e , and the subjectivist ethics w h i c h f o l l o w e d . Eachard's dialogues had a clever w a y o f encapsulating H o b b i s m in the character o f Philautus. Philautus remarks o n the 'perpetual lamps, that s o m e philosophers speak of, w h i c h h a v e g o t a trick o f g o i n g out a l w a y s w h e n p e o p l e g o to see t h e m ' ; 'metaphysical term-drivers d o l o v e to talk o f instrinsical and essential right and w r o n g ' . T h e r e w a s n o m o r e c o m m o n r e m a r k than Eachard's that H o b b e s a l l o w s the s o v e r e i g n 'to be the m a k e r o f 606

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The reception of Hobbes g o o d and e v i l ' (1672, p p . 146, n o ) . B r a m h a l l said that for H o b b e s the names g o o d and evil 'signify n o t h i n g but at the pleasure o f the sovereign Prince' (1658, pp. 5 7 1 - 2 ) . T y r r e l l r e m a r k e d o n H o b b e s ' n o t i o n that there is ' n o other measure o f g o o d and evil, right or w r o n g but the Prince's w i l l ' (1681, p. 236). T h e coffee-house tract The Character of a Town Gallant had it that 'he denies there is any essential difference b e t w e e n g o o d and e v i l ' . T h e Hobbesians denied the scholastics' constant contention that intuitions o f the g o o d are ' w r i t in the hearts o f m e n ' , 'imprinted', 'innate', the 'noble light o f the soul' (e.g. B r a m h a l l 1655, p. 100, 1658, pp. 187, 201, 467). T h e dangerous o u t c o m e o f H o b b e s ' ethical scepticism w a s seen to be d o w n r i g h t libertinism. In Leviathan he p r o n o u n c e d that ' w h e r e l a w ceaseth, sin ceaseth' (ch. 27). In the late 1660s an intensification o f the attack on H o b b e s w a s c o m b i n e d w i t h m o r a l outrage at the licentiousness o f Charles IPs court, w h i c h also protected the a g e i n g H o b b e s f r o m ecclesiast ical w r a t h . T h e t h e o l o g i a n Herbert T h o r n d i k e called for a r e n e w a l o f ecclesiastical e x c o m m u n i c a t i o n , against the three great unpunished evils o f the day, adultery, duelling, and H o b b e s , for 'the l a w o f the land lays no h o l d ' o n t h e m (1854, P- 4^3, cf. pp. 336, 374—5). T h e divines pressed their point h o m e in the recantation w h i c h D a n i e l Scargill, a C a m b r i d g e d o n expelled for H o b b i s m and 'great licentiousness', w a s forced to m a k e in 1669. T h e beliefs w h i c h he professed included 'that all right o f d o m i n i o n is founded o n l y in p o w e r ' , and 'that all m o r a l righteousness is founded o n l y in the l a w o f the civil magistrate'. His n o t i o n that ' G o d ' s l a w is founded .in p o w e r ' he n o w confessed w a s 'inconsistent w i t h the being o f G o d , and destructive to h u m a n society' (Scargill 1669, p p . 1—2, 4; A x t e l l 1964, p. 1 0 3 ) . T h e g a m u t o f the H o b b e s c o n t r o v e r s y w a s encapsulated in this recantation. W e can see here again a perception o f the w a y in w h i c h politics and ethics w e r e deduced f r o m metaphysical and theological premises. A sense o f these connections w a s enhanced b y the c o n s i d e r a b k eclat o f H o b b e s ' Liberty and Necessity (1655), part o f the B r a m h a l l debate, w h i c h a r g u a b l y w a s m o r e w i d e l y read than his major w o r k s . Pierce and Eachard g a v e it great attention (1658; 1673). P e p y s read it in bed, several years 10

10. M a n y examples o f discussions o f libertinism could be given, but an interesting contrast is that between C h i e f j u s t i c e j o h n V a u g h a n ' s Hobbesian (or, rather, Seldenian) claim in 1669 that no form o f sexual or marital practice is naturally w r o n g , but only civilly so (Tuck 1979, pp. 1 13— 1 5), and Tenison's counter-claim, in a discussion o f b u g g e r y , that some practices are indeed offences under natural law (1670, pp. 137-40). Teeter 1936 discusses the use o f Hobbism in Restoration drama; in T h o m a s C r o w n e ' s Caligula, for example, the emperor attempts a seduction with the words ' Y e s , m a d a m , n o w 'tis treason to be chaste' because 'I'm the fountain w h e n c e all honour flows' (p. 161). C o m p a r e P u f e n d o r f s citation o f Seneca: 'She is not unchaste w h o was s u m m o n e d by the tyrant' (1934, p. 1 1 4 1 ; cf. pp. 1 1 3 7 - 8 ) . See also (on Hobbes and D r y d e n ) B r e d v o l d 1956.

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Natural law and utility before acquiring Leviathan (Diary, 20 N o v e m b e r 1661). T h o m a s S h a d w e l l ' s play The Libertine (1675) includes v e r b a t i m quotations from it. Leibniz debated it in his Theodicy, and the freethinker A n t h o n y C o l l i n s used it in his Philosophical Inquiry Concerning Human Liberty ( 1 7 1 7 ) . A n d w i t h it T e n i s o n c o u l d reduce H o b b e s ' w h o l e teaching to a f e w phrases: ' G o d A l m i g h t y is incomprehensible' and so 'that w h i c h m e n m a k e a m o n g s t themselves here b y pacts and c o v e n a n t s ' they 'call b y the n a m e o f justice' (1670, p p . 2 7 , 29). T h e Liberty and Necessity c o n t r o v e r s y also served to publicise a p r o f o u n d o n t o l o g i c a l d i l e m m a that stalks the metaphysics o f all the debates w e h a v e been e x a m i n i n g . For B r a m h a l l and Leibniz, G o d in his creativity must be said to choose freely b e t w e e n possibilities, for such choice is an activity o f his intellectual and virtuous nature. B y his p o w e r he turns prior right into created fact. T h u s , essence precedes existence, and this w o r l d is the best o f possible w o r l d s , for G o d chooses the best. B u t i f so, the impieties s e e m i n g l y entailed are that there are things w h i c h precede G o d ' s creativity, and that his creativity is not exhaustive. T o a v o i d this i m p i e t y H o b b e s and Spinoza insist that existence exhausts essence; there are n o non-existing essences, and this w o r l d is the o n l y possible one. T h i s doctrine in turn has its o w n b l a s p h e m y : that G o d does not h a v e the g o o d for His object and purpose. O n c e again the metaphysical d i l e m m a had a political m e t o n y m . For the Aristotelian, the t e m p o r a l sovereign, in legislating, chooses b e t w e e n several alternative g o o d s ; he operates in a pre-existent m o r a l landscape. B u t for H o b b e s , the g o o d is w h a t the sovereign says it is: his legislative activity coincides w i t h , and exhausts, the possibilities o f social justice. B e y o n d it there is o n l y an amoral chaos, and there cannot be said to be determinable essences o f justice w h i c h h a v e failed o f existence (Leibniz 1956, p. 420). T h e anti-libertine critics o f Charles II's court believed that t o o m a n y essences w e r e failing o f existence: if the g o o d w a s w h a t the s o v e r e i g n w i l l e d , and the sovereign bedded N e l l G w y n , then it w a s difficult, on voluntarist g r o u n d s , to say that adultery w a s w i c k e d ; it c o u l d o n l y be deplored on Christian Aristotelian g r o u n d s . G i v e n the degree to w h i c h , for the neo-scholastics, ethical rules, and theological d o g m a s , w e r e seen to depend u p o n h u m a n intuitions o f the divine essence, it is not suprising that in the n e x t generation L o c k e ' s famous attack on innatism in his Essay Concerning Human Understanding (1690) w a s seen b y m a n y to be continuous w i t h H o b b e s ' subversion o f Christian certitude. T h e salient instance is Leibniz, w h o at m a n y points in his New Essays Concerning Human Understanding (1703—5) t o o k L o c k e to task for 608

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The reception of Hobbes c r y p t o - H o b b i s m , and presumed L o c k e ' s e p i s t e m o l o g i c a l project to h a v e a similar political and t h e o l o g i c a l bearing (Jolley 1 9 7 5 , 1984). Similarly Isaac N e w t o n ' s initial response to L o c k e ' s Essay w a s to say that the denial o f innate ideas 'struck at the r o o t o f m o r a l i t y ' , so that 'I t o o k y o u for a H o b b i s t ' ( L o c k e 1976— , iv, p . 727). T h e H o t t e n t o t in Charles Leslie's Finishing Stroke, a b o o k aimed at W h i g g i s m , is a figure c o m p o u n d e d o f H o b b e s i a n and L o c k i a n anti-essentialism: the H o t t e n t o t , l a c k i n g in his state o f nature the interposition o f s o v e r e i g n w i l l , holds the m a x i m 'Quod libet, licet . . . w e m a y j u s t l y d o , w h a t e v e r w e h a v e p o w e r to d o ' ( 1 7 1 1 , p. 135). A g a i n , W i l l i a m O l d i s w o r t h ' s Dialogue links H o b b e s and L o c k e as exponents o f the doctrine epitomised ironically as 'self-love . . . is the o n l y innate principle' (1709, p p . 19, 23). O n this v i e w , the point about H o b b e s ' state o f nature w a s not that it w a s characterised b y physical v i o l e n c e — the tendency to viciousness in fallen h u m a n i t y w a s n o n e w s - but that it is a state in w h i c h people c o u l d not k n o w w h a t the g o o d is. H o b b e s had dissolved the h u m a n essence and presented 'pure terse h u m a n nature' (Eachard 1672, p. 89), w i t h ' n o t h i n g m o r e divine . . . than matter and m o t i o n ' (Tenison 1670, p. 105). T h e state o f nature w a s a vale o f tears because it w a s behind a veil o f ignorance. H o b b e s neglected the acquired, habituated, and experiential m o r a l k n o w l e d g e w h i c h society historically accumulates, w h i c h b e c o m e s 'second nature', and w h i c h can stand in for the lack o f innate m o r a l k n o w l e d g e . S u c c e e d i n g moralists w e r e to repair this lacuna. Early f o l l o w e r s w e r e C u m b e r l a n d , Pufendorf, and M a t t h e w Hale ( C u m b e r l a n d 1727, pp. T5rT; T u c k 1979, p p . 1621V). S o m e writers (later aided b y L o c k e ' s Essay) b e g a n to e x p l o r e the n o t i o n o f acquired m o r a l propensities t h r o u g h a p s y c h o l o g i c a l account o f sensation and s y m p a t h y . T h i s , the d o m i n a n t style o f e i g h t e e n t h century m o r a l p h i l o s o p h y , w a s early apparent in W a l t e r C h a r l e t o n ' s Natural History of the Passions (1674). A m o r e directly political application o f H o b b e s ' account o f natural ignorance is g i v e n in T h o m a s W h i t e ' s Grounds of Obedience and Government (1655), a defence o f allegiance to C r o m w e l l . T h e r e is, W h i t e contends, m u c h noise about l a w s o f nature, but these l a w s turn out to be rules b y ' c u s t o m and consent', for it cannot be s h o w n that 'there be, in nature, radicated such an order o f rights and [things] naturally just or d u e ' (pp. 3 7 - 9 ) . B y nature w e are left to our o w n epistemic devices. M o s t o f w h a t w e say w e ' k n o w ' w e take o n trust; w e d o not suppose o u r physician is infallible, but w e trust h i m . Life is t o o short and hazardous for us not to p r o c e e d probabilistically. W e 'must rely o n the credit o f others', because 'rational belief [i.e. probable truth] is necessary to 609

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Natural law and utility h u m a n action' (p. 12). B y the social c o m p a c t the subject has ' m a d e a w a y all p o w e r o f j u d g e i n g and caring for the c o m m o n g o o d ' . T h e s o v e r e i g n m a y m a k e mistakes about w h a t is best, but he is m o r e likely to be right than w e , w h o are busy o n private affairs, and there is an o v e r w h e l m i n g probability o f social disaster i f w e challenge h i m (pp. 88, 98, 101—2). If the subject 'interpose his o p i n i o n ' , he 'breaketh his p r o m i s e and e n g a g e m e n t to his g o v e r n o r ' . R e b e l l i o n is defined as the setting up o f 'another j u d g e or k n o w e r ' , it is a failure 'to k e e p the subject in the nature o f ignorance, in w h i c h is g r o u n d e d his b e i n g a subject' (pp. 98—9, n o ) . 1 1

H o b b e s ' critics constantly r e b u k e d h i m for this obliteration o f natural m o r a l j u d g e m e n t . H o b b e s 'taint[s] the v e r y foundation o f practical reason' (Eachard 1 6 7 3 , p . 286), he dissolves 'synteresis' ( B r a m h a l l 1658, p. 201). G i v e n that they also w i s h e d to d e n y that subjects m i g h t pass j u d g e m e n t on sovereigns in the f o r m o f a r m e d resistance, they w e r e placed in an a w k w a r d position. T h e W h i g T y r r e l l pressed Filmer o n this score: he w i s h e d to force royalists to c o n c e d e either that they renounced all j u d g e m e n t , like H o b b e s , or that they a l l o w e d resistance, like L o c k e and the W h i g s . T h e standard royalist response w a s the doctrine o f ' p a s s i v e o b e d i e n c e ' — in fact a doctrine o f passive resistance, akin to m o d e r n ideas o f civil disobedience. 'Passive o b e d i e n c e ' , B r a m h a l l explained, 'is a m e a n b e t w e e n active o b e d i e n c e and rebellion. T o just l a w s w h i c h are the ordinances o f right reason, active obedience is due. T o unjust l a w s w h i c h are the ordinances o f reason erring, passive obedience is d u e ' (1658, p. 167; cf. L e i b n i z 1972, p. 187). T y r r e l l t h o u g h t Filmer closer to H o b b e s , for in Patriarcha Filmer had said that a servant (or subject) has ' n o authority or liberty to e x a m i n e and j u d g e w h e t h e r his master sin or n o ' (1949, p . 105). T h i s , said T y r r e l l , 'savours o f M r H o b b e s ' d i v i n i t y ' (1681, p p . 1 3 7 - 8 , 209, 232). A n d so it did.

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N o t the least o f H o b b e s ' deductions f r o m voluntarist and sceptical premises w a s w h a t L e i b n i z called the 'strange and indefensible' claim that 'doctrines 11. A remarkable treatise is Hall 1654, full o f lively dicta, and extraordinarily faithful to Hobbes. T h e state o f nature is that in w h i c h w e are 'gods unto ourselves, in the k n o w l e d g e o f g o o d and evil'; sovereignty is the 'submitting . . . politically to have each private will s w a y e d b y a public'; rebellion is private j u d g e m e n t ; 'private equity is public iniquity'; people d o not conduct their lives b y truth but b y 'the highest probability they can get', and even Christianity w e take on 'the hazard o f birth and education' (pp.8, 10, 305, 219, 322). Spinoza also defines the compact as an abandonment o f the natural right ' o f being one's o w n j u d g e ' (1909, 1, p. 302).

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The reception of Hohbes t o u c h i n g the d i v i n i t y depend entirely u p o n the determination o f the s o v e r e i g n ' (1952, p. 394). Since, for H o b b e s , our k n o w l e d g e o f G o d is limited to the proposition that H e is the o m n i p o t e n t First C a u s e , it f o l l o w e d that n o further question o f d o g m a or forms o f w o r s h i p was resolvable w i t h certainty. T h e y w e r e 'things indifferent' and there w a s n e v e r g o o d g r o u n d in conscience to disobey the arbitrament o f the s o v e r e i g n . T o a l l o w that private conscience, or the church, m a y be j u d g e o f religious truth i m m e d i a t e l y o p e n e d a Pandora's b o x o f religious warfare and persecution, the conflict o f state, church, and disaffected sects. A b o v e all, H o b b e s s o u g h t to construct an e c c l e s i o l o g y w h i c h w o u l d cure E n g l a n d ' s wars o f religion. T h u s , as the critics noted, for H o b b e s there is 'in matters o f religion . . . a state o f nature, w i t h o u t any s o v e r e i g n representa tive to determine for t h e m , w h a t they shall believe or profess'. People's rival opinions are such that ' w h a t e v e r a m a n worships, is his G o d , . . . t h o u g h that G o d m a y to his n e i g h b o u r seem a d e v i l ' . T h e s o v e r e i g n must construct such religion as shall seem c o n d u c i v e to the peaceful w o r s h i p o f G o d ; the anarchy o f private conscience is, b y the contract, displaced b y a 'public conscience'. H o b b e s turned the secular magistrate into the 'head o f the C h u r c h and j u d g e o f faith' ( C o k e 1660b, p. 82); to this s o v e r e i g n w e must trust ' o u r eternal salvation, w e must captivate our j u d g e m e n t ' ( L a w s o n 1657, p . 156). H o b b e s ' 'public conscience', the equation o f religion and s o v e r e i g n t y , w a s seen to dissolve w h o l l y the claims o f church against state. R e l i g i o u s truth w a s turned into a h u m a n fabrication, the shared significations o f a civil c o m m u n i t y . T h e church's understanding w a s collapsed into the state's w i l l . H o b b e s , said C o k e , a i m e d 'to m a k e all faith, and religion, as w e l l as society, a m e r e i n v e n t i o n and p o l i c y o f m a n ' (1660a, p. 30). B u t , protested B r a m h a l l , 'the C h u r c h is the g r o u n d and pillar o f truth, n o t the s o v e r e i g n P r i n c e ' (1658, p. 428). It w o u l d be difficult to overestimate the persistence o f a neo-scholastic (and ultimately C a t h o l i c ) a c c o u n t o f the nature o f the church, w i t h i n b o t h A n g l i c a n and Presbyterian traditions. T h e church w a s a visible society, a s e l f - g o v e r n i n g corporation, distinctive f r o m civil society. ' C h u r c h and state', w r o t e L a w s o n , 'are t w o distinct c o m m o n w e a l t h s , the one spiritual, and the other t e m p o r a l , t h o u g h they consist o f the same persons', and it is 'as great an offence for the state to encroach u p o n the C h u r c h , as for the C h u r c h to encroach u p o n the state' (1657, p p . 138—9). B r a m h a l l insisted 12

12. W o t t o n 1706, p. 5; O l d i s w o r t h 1710, p. 1 1 1 . B o t h these remarks w e r e addressed to Hobbes via a critique o f Tindal's Rights of the Christian Church, for w h i c h see b e l o w .

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Natural law and utility that t h o u g h the sovereign w a s G o d ' s representative, the church was Christ's, whereas H o b b e s m a d e 'his sovereign to be Christ's lieutenant u p o n earth, in obedience to w h o s e c o m m a n d s true religion doth consist' (1658, p. 572). H o b b e s dissolved the K e y s into the S w o r d , priesthood into kingship, yet 'there is a plain difference b e t w e e n civil and ecclesiastical p o w e r , b e t w e e n the S w o r d and the K e y s ' ( L a w s o n 1657, pp. 8, 138). K i n g s emphatically d o not h a v e sacerdotal p o w e r ( C o k e 1660b, p. 85; cf. B r a m h a l l 1655, p. 304). Leviathan and De Give w e r e the most ambitious statements o f Erastianism o n record. A c c o r d i n g l y , o n each occasion w h e n Erastianism c a m e to be u r g e n t l y debated, the doctrines o f H o b b e s w e r e foremost. T h i s w a s so in the 1650s, w h e n H o b b e s w a s seen to be a publicist for the C r o m w e l l i a n r e g i m e ' s attempt to create a national yet pluralist church, a i m i n g to o v e r c o m e b o t h the anarchic sects and the theocratic demands o f P r e s b y terians and 'Prelatists'. H o b b e s ' v i e w s w e r e associated w i t h , and exploited b y , such C r o m w e l l i a n s as H e n r y Stubbe, J o h n Hall, and Louis du M o u l i n . It w a s again so after the R e s t o r a t i o n w h e n latitudinarians like E d w a r d Stillingfleet and J o h n T i l l o t s o n w e r e accused o f H o b b i s m . Stillingfleet suffered at the hands o f h i g h c h u r c h m e n for his Irenicum (1661), and w a s forced to m o d i f y his Erastian doctrine o f the church as 'incorporated into the state' b y restating a c o n v e n t i o n a l e c c l e s i o l o g y o f the church as a 'separate society' (Marshall 1985). W h e n T i l l o t s o n b e c a m e archbishop o f C a n t e r b u r y , Leslie launched a ferocious attack on his ' s u p e r - H o b b i s m ' . Tillotson's t h e o l o g y w a s said to reduce all doctrine and scripture to uncertainty and so to m a k e religion 'a perfect tool and engine o f state' (1695, pp.4—5, 13—16). T h e charge o f H o b b i s t Erastianism w a s loudest against M a t t h e w T i n d a l ' s (misleadingly entitled) Rights of the Christian Church (1706). T h e striking feature o f this quarrel w a s the constant T o r y association o f H o b b e s w i t h the c a m p a i g n o f the l o w - c h u r c h W h i g s , w h o w e r e e n g a g e d in defending the parliamentary church o f the R e v o l u t i o n and the T o l e r a t i o n A c t o f 1689 against h i g h - c h u r c h theocracy. T h e T o r i e s said that the W h i g idea o f parliamentary religious supremacy fulfilled H o b b e s ' ' m i g h t y miracles o f g i v i n g the spirit b y v o t e , and m a k i n g divines 1 3

13. This is a matter w h i c h has yet to be fully documented, but on Stubbe see Jacob 1983. Strikingly Hobbesian and Seldenian defences o f C r o m w e l l ' s church settlement are: Hall 1654, and D u M o u l i n 1656. T h e republican James Harrington's ecclesiology was quickly associated w i t h Hobbes: see Harrington 1977, pp. 77ff, 369ff. T h e fullest A n g l i c a n attack on Hobbes for his ErastianIndependency are Thorndike's Epilogue to the Tragedy of the Church of England (1659) and Just Weights and Measures (1662) (in T h o r n d i k e 1854). For similar use o f Hobbes on behalf o f D e W i t t ' s anti-clerical republicanism in Holland see T u c k 1979, pp. 139-42.

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The reception of Hobbes and divinity b y the p o l l ' ( O l d i s w o r t h 1709, p. 388). A c c o r d i n g to Jonathan Swift, behind the W h i g s stood 'their A p o s t l e T i n d a l ' , and behind t h e m all, said G e o r g e H i c k e s , 'their dear Fathers, H o b b e s , Selden and S p i n o z a ' . In this c o n t e x t , H o b b i s m w a s identified w i t h tolerant indifference, w i t h i n the boundaries o f sober Christian essentials, free o f fanatical 'enthusiasm', atheism, and R o m i s h idolatry — the marks o f E n l i g h t e n m e n t liberal Protestantism. B u t Leviathan also seemed in principle considerably m o r e outlandish. H o b b e s seemed to a l l o w that w e r e a sovereign to d e m a n d o f the subject idolatrous w o r s h i p , then the subject w o u l d c o m m i t n o sin in o b e y i n g . T h i s w a s the lesson H o b b e s d r e w f r o m the prophet Elisha's licensing o f N a a m a n , the Syrian servant, to w o r s h i p R i m m o n at the c o m m a n d o f his master, an instance w h i c h appalled the d i v i n e s . H o b b e s here seemed to sanction the dissolution o f any visible profession o f Christ, and s h o w e d sovereigns h o w they m i g h t turn 'the A l c o r a n into G o s p e l ' (Tenison 1676, sig. A 3 V ) . T o call H o b b i s m 'the M a h o m e t a n religion' b e c a m e a c o m m o n p l a c e . T h e exponents o f 'natural religion', w h o did a w a y w i t h Christian revelation altogether, b e c a m e firmly associated w i t h H o b b e s , especially after the publication in 1683 o f Charles B l o u n t ' s Miracles no Violation of the Laws of Nature, a series o f passages copied f r o m H o b b e s and Spinoza. B l o u n t , one o f the originators o f English deism, w a s d e n o u n c e d because he ' o v e r t h r o w s the foundations o f b o t h l a w and gospel, o v e r t h r o w s the credit and authority o f divine revelation, and remits us . . . to a bare religion o f n a t u r e ' . E v e n m o r e outlandish w a s the occasional association b e t w e e n H o b b i s m and C a t h o l i c i s m . U n d e r James II, one o f H o b b e s ' most d e v o t e d disciples, Sir W i l l i a m Petty, e x p e n d e d considerable intellectual e n e r g y to reconciling a t h o r o u g h doctrinal scepticism w i t h R o m a n C a t h o l i c i s m (Petty 1927, 1, p p . 1 1 3 - 4 5 ; G o l d i e 1984). It is a striking, and unnoticed, fact that the v e r y first reference in print to Leviathan, in A u g u s t 1 6 5 1 , w a s in a plea b y a R o m a n C a t h o l i c for toleration. T h i s tract q u o t e d H o b b e s (ch. 45) o n the cultural variety o f w a y s o f w o r s h i p p i n g G o d , and the arbitrariness o f h u m a n s y m b o l s . ' T h u s ' , c o n c l u d e d the C a t h o l i c , 'in m y j u d g m e n t d o t h that learned Protestant absolutely clear the Papists o f i d o l a t r y . ' Similarly, W h i t e ' s Grounds of 14

15

16

17

14. Swift, The Examiner, N o . 19 (1712); Hickes 1707, p. xviii. 15. 2 K i n g s 5 : 1 7 - 1 9 ; Leviathan, ch. 42. See Eachard 1673, pp. 2 7 1 - 3 ; Tenison 1670, p. 199; Bramhall 1658, pp. 4 9 1 - 2 . 16. B r o w n e 1683, p. 2. O n the continent this association o f Hobbes w i t h deism was influentially established b y K o r t h o l t 1680. 17. Austin 1 6 5 1 , pp. 1 2 - 1 3 . I grateful to Martin Dzelzainis for this point. a

m

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Natural law and utility Obedience, noticed earlier, w a s a veiled address to C r o m w e l l for toleration for sober and unjesuited C a t h o l i c s . In all these e x a m p l e s H o b b e s was taken to lean t o w a r d s religious toleration. B u t his ecclesiastical reputation remained ambivalent, for Erastianism c o u l d also justify the repression o f religious n o n c o n f o r m i t y . T h e most n o t o r i o u s case o f this w a s Parker's Discourse of Ecclesiastical Polity (1670), the m o s t ferocious o f R e s t o r a t i o n assaults u p o n the dissenters. A l t h o u g h the b o o k explicitly attacked 'the consequences that s o m e m e n d r a w f r o m M r H o b b e s ' principles in b e h a l f o f toleration', it w a s itself q u i c k l y charged w i t h the ' d i v i n i t y o f Leviathan , and j u s t l y so. In a ruthlessly nominalist manner, Parker argued that all public actions, such as religious ceremonies, w e r e 'arbitrary', and that external s y m b o l s are 'changeable a c c o r d i n g to the variety o f customs and places', so that w h a t is piety in one culture is superstition in another. A l l 'actions are m a d e significant b y a g r e e m e n t ' , and once the sovereign's 'public conscience' had p r o n o u n c e d , all ' c l a m o u r ' c o n c e r n i n g w o r s h i p w a s groundless (pp. 135, 99, 106—7). L o c k e asked rhetorically ' h o w far is this short o f M r H o b b e s ' doctrine?' ( M S L o c k e , c. 39, fo. 5). W h e n B a y l e w r o t e his article o n H o b b e s in his Historical and Critical Dictionary (1696) he d w e l t especially o n the anti-clericalism o f De Cive, a b o o k 'restoring to the civil p o w e r s those rights o f w h i c h they had been r o b b e d b y ecclesiastics in the ages o f i g n o r a n c e ' . H o b b e s 'taught that the authority o f kings o u g h t to be absolute, and that in particular the externals o f religion, as b e i n g the most fruitful cause o f civil wars, o u g h t to depend u p o n their w i l l ' (1952, p p . 1 3 0 - 1 ; cf. P u f e n d o r f 1934, p p . 1 0 1 4 - 1 5 ) . It w a s H o b b e s ' systematic fusion o f Christianity w i t h civil s o v e r e i g n t y that later earned praise f r o m R o u s s e a u in the chapter o n ' C i v i l R e l i g i o n ' in the Social Contract ( B k i v , C h . 8): ' o f all Christian authors, the philosopher H o b b e s is the o n l y one w h o saw clearly b o t h the evil and the r e m e d y , and w h o dared to propose reuniting the t w o heads o f the eagle and fully restore that political u n i t y w i t h o u t w h i c h neither the state n o r the g o v e r n m e n t w i l l ever be w e l l constituted'. H o b b e s h i m s e l f t h o u g h t he had been t o o pusillanimous in his task, r e m a r k i n g that 'he durst n o t w r i t e so b o l d l y ' as Spinoza had in the Tractatus theologico-politicus. E d m u n d W a l l e r , w h o sent H o b b e s a c o p y o f the Tractatus, believed, nonetheless, that H o b b e s , a l t h o u g h 'a private person, pulled d o w n all the churches, dispelled the mists o f i g n o r a n c e , and laid o p e n their priestcraft' ( A u b r e y 1898, 1, p p . 3 5 8 ) . H o b b e s ' friends regarded the destruction o f priestcraft as b o t h a metaphysical and a practical political task. It required the dissolution o f the 614

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The reception of Hobbes Aristotelian perversion o f Christianity, u p o n w h i c h was built the material p o w e r o f priestly castes, priests w h o s e talk o f innate truths, and o f authority and s o v e r e i g n t y in c h u r c h and state, w e r e i d e o l o g i c a l w e a p o n s for i m p o s i n g their o w n values. A b r a h a m C o w l e y , in his ode ' T o M r H o b b e s ' (1656) w r o t e that before H o b b e s ' L o n g did the m i g h t y Stagirite retain / T h e universal intellectual reign'. H e depicts the 'barbarous' s c h o o l m e n as b e i n g slain b y H o b b e s , the 'great C o l u m b u s o f the G o l d e n lands o f n e w P h i l o s o p h i e s ' . W h e n Hall in the 1650s, and T i n d a l in the 1700s, b o r r o w e d H o b b e s ' w o r k to construct respectively a C r o m w e l l i a n and a W h i g civil religion, they p o r t r a y e d the vanquishing o f priestcraft as the r e c o v e r y o f true religion f r o m the s w a y o f the scholastic 'Antichrist' (Hall 1654, ch. 12; O l d i s w o r t h 1 7 1 0 , p. 373; cf. P o c o c k 1973). For H o b b e s and his disciples, the secularisation o f politics w a s an eschatological project: voluntarist t h e o l o g y w a s 'true religion' and it generated true politics. M o d e r n secular politics o f the H o b b e s i a n sort is voluntarist metaphysics w h i c h has shed its theological premises. B u t those premises remained h i g h l y visible in the political t h e o r y o f H o b b e s ' contemporaries. 18

18. C o w l e y 1949, pp. 43-4. T h e Stagirite is Aristotle.

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21 Locke JAMES

TULLY

T h e political t h o u g h t o f J o h n L o c k e is concerned w i t h four p r o b l e m s that e v e r y major political theorist faced in the seventeenth century. T h e s e are: a f o r m o f g o v e r n m e n t that w o u l d not lead to oppression or civil w a r , an arrangement o f religion and politics that w o u l d end the religious wars, a set o f applied arts o f g o v e r n i n g appropriate to the early m o d e r n mercantile states in a balance o f p o w e r system, and the epistemic status o f religious and political k n o w l e d g e . T h i s chapter is a survey o f L o c k e ' s response to the first t w o p r o b l e m s : sections i to vi consider the first and section v h the second (for an introduction to the latter t w o , see T u l l y 1988). R e c e n t scholarship has shed indispensable light on the political events and p a m p h l e t literature in England w h i c h p r o v i d e d the i m m e d i a t e c o n t e x t o f L o c k e ' s w r i t i n g s on g o v e r n m e n t and religion (Franklin 1978; Ashcraft 1980, 1986; G o l d i e 1980a, 1980b). In addition to this context, I w i l l suggest, the political issues L o c k e confronted and the concepts he used w e r e also part o f a larger, E u r o p e a n crisis in g o v e r n m e n t and sustained theoretical reflection on it ( R a b b 1975).

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Government

T h e first p r o b l e m is, w h a t is g o v e r n m e n t - its origin, extent, and end? It is classically posed in the subtitle o f the Two Treatises of Government. L o c k e w o r k e d on this issue from the Two Tracts on Government ( 1 6 6 0 - 1 ) , to the T h e f o l l o w i n g abbreviations are used in this chapter: DJB H u g o Grotius, De Jure Belli ac Pads libri LT John Locke, A Letter Concerning Toleration, tres (Amsterdam, 1646). R e p r . in Classics o f ed J. T u l l y (Indianapolis: Hackett Publishing International L a w ( O x f o r d : Clarendon Press, C o m p a n y , 1983). 1925). TT John Locke, Two Treatises of Government, DJR G e o r g e Buchanan, De jure regni apud ed. P. Laslett ( C a m b r i d g e : C a m b r i d g e U n i v e r s Scotos, in Opera Omnia, v o l . 1 (Edinburgh, 1715). ity Press, i960).

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Locke Two Treatises (1681—9), m o v i n g f r o m a solution o f absolutism and unconditional obedience to one o f popular s o v e r e i g n t y and the individual right o f r e v o l u t i o n . T h e question is not a b o u t the nature o f the state as a f o r m o f p o w e r o v e r and a b o v e rulers and ruled, a l t h o u g h he w a s familiar w i t h this reason o f state w a y o f conceptualising early m o d e r n politics and s o u g h t to u n d e r m i n e it ( T T , i.ix.93, p. 248, n . x i v . 1 6 3 , p. 394). R a t h e r , it is about ' g o v e r n m e n t ' in the seventeenth-century sense o f the p r o b l e m a t i c and unstable relations o f p o w e r and subjection b e t w e e n g o v e r n o r s and governed. A c c o r d i n g to the first three i n t r o d u c t o r y sections o f the S e c o n d Treatise the p r o b l e m o f g o v e r n m e n t is taken to be a p r o b l e m a b o u t political p o w e r . G o v e r n m e n t is c o m p o s e d o f three relations o f p o w e r : federative (inter national relations), e x e c u t i v e , and legislative (including the j u d i c i a r y ) ( T T , n.xii.143—8, p p . 382-4). T h e c o n t r o v e r s y is o v e r the origin, extent, and limits o f these forms o f p o w e r and h o w they differ f r o m other relations o f g o v e r n a n c e ( T T , n.ii.2, p. 308). T h e foremost p r o b l e m o f politics is, L o c k e reflects late in life, 'the original o f societies and the rise and extent o f political p o w e r ' ( L o c k e 1968, p. 400). W h a t , in turn, rendered political p o w e r problematic? F o r L o c k e , as for his contemporaries, the religious and civil w a r s that a c c o m p a n i e d the consolidation and f o r m a t i o n o f early m o d e r n states as exclusive, or at least h e g e m o n i c , ensembles o f d o m i n a t i o n w e r e struggles for political p o w e r ( D u n n 1979). T h i s crisis in b o t h the ability to g o v e r n and in the w a y o f g o v e r n i n g t h r e w into question the nature and location o f political p o w e r . T h e great conflicts in practice, in the age o f ' a g r a r i a n and urban rebellions' and o f ' r e v o l u t i o n a r y civil w a r s ' , w e r e o v e r the same p r o b l e m o f political p o w e r as arose in political t h e o r y ( Z a g o r i n 1982): 'the great Q u e s t i o n w h i c h in all A g e s had disturbed m a n k i n d , and b r o u g h t o n t h e m the greatest part o f those Mischiefs w h i c h h a v e ruin'd cities, depopulated C o u n t r i e s , and disordered the Peace o f the W o r l d , has been, N o t w h e t h e r there be P o w e r in the W o r l d , n o r w h e n c e it c a m e , but w h o should h a v e it' ( T T , i.xi.106, p p . 2 3 6 - 7 ) . Unless b o t h the historical and causal question o f w h i c h arrangements o f political p o w e r d o and w h i c h d o not dissolve into civil wars, and the moral-jurisprudential question o f w h o has and w h o has not the ' r i g h t ' to political p o w e r can be answered satisfactorily, L o c k e continues, E u r o p e w i l l remain in 'endless contention and disorder'. T h e Two Treatises is an answer to b o t h these questions and it is the m o s t radical answer that had y e t been g i v e n : each individual does h a v e and should h a v e political p o w e r . 617

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Natural law and utility T h i s E u r o p e a n p r o b l e m o f continual conflicts o v e r political p o w e r w a s also, o f course, the o v e r r i d i n g issue o f English political t h o u g h t and action f r o m 1640 to 1690 (Franklin 1978, W e s t o n and G r e e n b e r g 1981). D u r i n g the planning for an insurrection in 1681—3 L o c k e w r o t e the Two Treatises as a populist resolution o f the p r o b l e m : for the people to reappropriate their political p o w e r t h r o u g h a r e v o l u t i o n and to 'continue the Legislative in themselves or erect a n e w F o r m , or under the old f o r m place it in n e w hands, as they think g o o d ' ( T T , n . x i x . 2 4 3 , P- 44-6; cf. Ashcraft 1986). In 1689 he published the Two Treatises to r e c o m m e n d that K i n g W i l l i a m c o u l d ' m a k e g o o d his title' to p o w e r o n l y if his conquest w e r e g r o u n d e d 'in the consent o f the P e o p l e ' , thus a c k n o w l e d g i n g their s o v e r e i g n t y , b y means o f a constitutional c o n v e n t i o n ( T T , Preface, 1.6, p. 1 5 5 ; G o l d i e 1980a, 1980b). H o w e v e r , because it is written in the juridical l a n g u a g e o f E u r o p e a n politics, the Two Treatises is a contribution to b o t h the English conflict and the E u r o p e a n crisis. N o t o n l y w e r e English difficulties about p o w e r similar to those o f other E u r o p e a n states, the English conflict w a s itself part o f the w i d e r E u r o p e a n c o n t e x t . A major aim o f the 1681—3 agitations, as L o c k e saw it, w a s to stop E n g l a n d f r o m b e c o m i n g aligned w i t h and subordinate to France. A l s o , W i l l i a m o f O r a n g e c o n q u e r e d E n g l a n d in 1688 in order to d r a w it into a E u r o p e a n w a r against France, the N i n e Y e a r s W a r , and the Two Treatises, grants h i m unlimited 'federative' or w a r - m a k i n g p o w e r , u n c h e c k e d b y parliament ( T T , 11.xii.147, p p . 383-4). Indeed, this w a r is L o c k e ' s main concern in 1689 ( L o c k e in Farr and R o b e r t s 1985, p p . 395, 397~8). T h u s , the c o n t e x t in w h i c h L o c k e explicitly places the Two Treatises is the practical contests and theoretical debates o v e r political p o w e r o f his generation and o f the previous sixty years ( L o c k e 1968, p. 400) - the struggles b e t w e e n k i n g , parliament, and people, and theoretical discussion o f t h e m f r o m the publication o f H u g o G r o t i u s ' The Laws of War and Peace (1625) to the Two Treatises (1689). L o c k e ' s solution to the p r o b l e m o f g o v e r n m e n t and apolitical p o w e r comprises five steps: the definition o f political p o w e r ; the origin o f political p o w e r ; the rule o f right in accordance w i t h w h i c h it is exercised; the conditional entrusting o f political p o w e r to g o v e r n m e n t b y the consent o f the people; and the w a y the three parts o f political p o w e r are exercised b y g o v e r n m e n t and limited b y l a w and r e v o l u t i o n . T h e s e five features m a k e up a classic t h e o r y o f individual popular s o v e r e i g n t y , succinctly s u m marised in section 1 7 1 o f chapter 1 5 . Each one, e x c e p t the first, is unique to L o c k e in certain specific respects. I shall survey these features in a w a y that

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Locke brings out b o t h w h a t is c o n v e n t i o n a l and w h a t is distinctively L o c k e ' s o w n , as w e l l as the practical and theoretical difficulties that p r o v o k e d his innovations.

ii

Political p o w e r

Political p o w e r is defined as a tripartite right: to m a k e laws b o t h to preserve and to regulate the lives, activities, and possessions o f subjects (legislative p o w e r ) ; to use the force o f the c o m m u n i t y to execute these laws w i t h penalties o f death and lesser penalties (executive p o w e r ) ; and to w a g e wars to preserve the c o m m u n i t y , including colonies and subjects abroad, against other states (federative p o w e r ) . T h e end o f political p o w e r is the 'public g o o d ' . T h i s v i e w o f the p o w e r o f g o v e r n m e n t is closely tied to the actual claims and practices o f the early m o d e r n mercantile states, w i t h w h i c h L o c k e , as a m e m b e r o f the B o a r d o f T r a d e , w a s professionally familiar. It w o u l d h a v e been seen as a c o m m o n p l a c e b y his contemporaries (see Harper 1939, pp. 9 - 1 8 ) . N e x t , to determine w h o should h a v e political p o w e r , L o c k e , like other j u r i d i c theorists, reduces it to an 'original' or 'natural' f o r m o f p o w e r from w h i c h the present tripartite p o w e r , and the author's preferred location, extent, and limit, can be historically and logically derived and justified. T h e objective o f this second step is to answer the question, w h o naturally or originally possesses political p o w e r ? L o c k e ' s answer is that political p o w e r is a natural p r o p e r t y o f individuals. T h a t is, 'the Execution o f the L a w o f N a t u r e is in that State [ o f nature], put into e v e r y man's hands, w h e r e b y e v e r y one has a right to punish the transgressors o f that L a w to such a degree, as m a y hinder its V i o l a t i o n ' ( T T , n.ii.7, p. 289, cf. n.ii.8, p. 290). It f o l l o w s f r o m this premise o f political individualism that people are naturally s e l f - g o v e r n i n g , because they are capable o f exercising political p o w e r themselves; naturally free, because they are not naturally subject to the w i l l o f another; and naturally equal, because they possess and h a v e the d u t y and right to exercise political p o w e r . T h e r e f o r e , first, prior to and independent o f the establishment o f institutionalised forms o f g o v e r n m e n t people are able to g o v e r n themselves; and, second, the p o w e r o f institutionalised forms o f g o v e r n m e n t is derived from the original p o w e r s 1

2

1. TT, ii.i.3, p. 286, n . i x . 1 3 1 , p. 3 7 1 , 11.x.135, pp. 3 7 5 - 6 , 11.xv.171, pp. 399-400. 2. TT. n.ii.4, p. 287, n.ii.7, pp. 289-90. C o m p a r e n.ii.5-6, 8 - 1 5 , pp. 288-96, 11.iv.22, pp. 3 0 1 - 2 , 11.vii.87, P P - 3 4 i 2 , 11.vii.90-1, pp. 344-5, 11.ix.123, p. 368, 11.xv.171, pp. 399-400. _

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Natural law and utility o f the individual m e m b e r s o f the political society ( T T , 11.vii.87—9, p p . 3 4 2 - 3 , n . i x . 1 2 7 - 3 1 , p p . 3 7 0 - 1 ; n . x v . 1 7 1 , p p . 399-400). L o c k e says, 'I d o u b t not but this w i l l seem a v e r y strange D o c t r i n e to s o m e M e n ' ( T T , n.ii.9, p. 290, cf. n.ii.13, p. 293). His premise o f political individualism is strange: it is one o f the major conceptual innovations in early m o d e r n political t h o u g h t . T o see this let us contrast it w i t h the t w o c o n v e n t i o n a l w a y s o f conceptualising the origin o f political p o w e r available to h i m and w i t h reference to w h i c h L o c k e situates the Two Treatises: the traditions o f ' n a t u r a l subjection' and 'natural f r e e d o m ' . T h e Two Treatises is written in response to the defence o f natural subjection and refutation o f natural f r e e d o m put f o r w a r d b y Sir R o b e r t Filmer in his Patriarcha and other political writings, written b e t w e e n 1628 and 1652 to justify unconditional obedience to absolute m o n a r c h y . T h e s e w e r e republished in 1680 to justify obedience to the Stuart m o n a r c h y during the unsuccessful attempt to e x c l u d e the future James II f r o m succeeding to the throne ( D a l y 1979). T h e thesis o f natural subjection is that political p o w e r resides naturally and originally in the m o n a r c h to w h o m lesser political bodies and all citizens are naturally subject. Since this relation o f subjection is unlimited and natural n o resistance to it is ever justified. In Filmer's version, the political relation is patriarchal. T h e political p o w e r that monarchs naturally exercise o v e r their subjects is identical w i t h the unlimited and arbitrary p o w e r patriarchs exercise naturally o v e r their w i v e s , children, slaves, and private p r o p e r t y (Filmer 1949, pp. 5 7 - 6 3 ; TT, i . i . i , p. 159, i.ii.9, pp. 1 6 5 - 6 ) . In opposition to natural subjection is the m o r e c o m p l e x tradition o f natural freedom. T h i s includes all theories w h i c h posit that the people are naturally free in the sense o f not being subject to the w i l l o f another. It f o l l o w s that political subjection must be based on s o m e kind o f c o n v e n t i o n : consent, contract, or a g r e e m e n t . In setting out to attack this w h o l e tradition Filmer characterises it as consisting in the f o l l o w i n g propositions: m a n k i n d is naturally e n d o w e d w i t h freedom from all subjection; m a n k i n d is at liberty to choose w h a t f o r m o f g o v e r n m e n t it pleases; the p o w e r w h i c h any m a n has o v e r another w a s at first b y h u m a n right b e s t o w e d a c c o r d i n g to the discretion o f the h u m a n multitude; and, therefore, kings are m a d e subject to the censures and deprivations o f their subjects. T h i s account o f political p o w e r , he argues, is 'the main foundation o f popular sedition' 3

3. Locke explicitly places the Two Treatises in the tradition o f natural freedom and in opposition to natural subjection: T T , i.i.3-5, pp. 160-1, i.ii.6, p. 162, i.iii.15, p. 169, n.ii.4, p. 287, 11.viii.95, pp. 34^-9-

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Locke because it supports the practical conclusion 'that the multitude h a v e the p o w e r to punish or d e p r i v e the prince i f he transgresses the l a w s o f the k i n g d o m ' (Filmer 1949, p p . 5 3 - 4 , cf. p. 68). T h e w h o l e tradition, a c c o r d ing to Filmer, must be repudiated i f the rebellions o f the early m o d e r n period are to end. Filmer is w e l l a w a r e that this is an old tradition w i t h its roots in R o m a n l a w and the renaissance o f juridical political t h e o r y in the twelfth century (Filmer 1949, p p . 55, 73—4). H e is also a w a r e that n o t o n l y theories o f limited g o v e r n m e n t and the right to resist constituted authority had been built o n its premises. T h e m o s t prestigious theories o f absolutism in the seventeenth century also c a m e out o f the natural f r e e d o m tradition: those o f W i l l i a m B a r c l a y , H u g o Grotius, T h o m a s H o b b e s , and, after Filmer's death, S a m u e l Pufendorf, R i c h a r d C u m b e r l a n d , and the unpublished Two Tracts o f the y o u n g L o c k e (see ch. 12 a b o v e ) . A l t h o u g h the absolutist theories o f natural f r e e d o m h o l d that the p e o p l e c o m p l e t e l y alienate their natural f r e e d o m to the k i n g , they a l w a y s leave an e x c e p t i o n w h e r e , in extraordinary circumstances, the p e o p l e m a y w i t h d r a w their consent and defend themselves against a m u r d e r o u s tyrant (Filmer 1949, p p . 54, 66—73). T h i s e x c e p t i o n in e v e n the m o s t absolutist theories opens the w a y to justify resistance, as in fact L o c k e c o n f i r m e d b y using B a r c l a y ' s absolutist t h e o r y in precisely this w a y (see b e l o w , p. 638). M a n y agreed w i t h Filmer, especially after the failed radical W h i g uprising and the R y e H o u s e P l o t o f 1681—3: the major tenets o f natural f r e e d o m w e r e c o n d e m n e d b y O x f o r d U n i v e r s i t y , and L o c k e ' s f e l l o w r e v o l u t i o n a r y A l g e r n o n S i d n e y w a s e x e c u t e d for h o l d i n g t h e m (Sidney 1 7 7 2 , p p . 3—32: Scott 1991). In w r i t i n g the Two Treatises L o c k e ' s task is not o n l y to refute Filmer's natural subjection t h e o r y but also to r e w o r k the tradition o f natural f r e e d o m in a f o r m that b o t h answers Filmer's criticisms and justifies constitutional g o v e r n m e n t and r e v o l u t i o n against the p r e d o m i n a n t natural f r e e d o m theories o f absolutism. T h e first m o v e L o c k e makes is, as w e h a v e seen, to place political p o w e r in the hands o f individuals. N a t u r a l f r e e d o m theorists w e r e w i l l i n g to grant that individuals naturally h a v e a right to defend themselves and their possessions f r o m attack, e v e n to kill the attacker if necessary. T h i s right o f defence, h o w e v e r , w a s n e v e r described as political p o w e r . S e c o n d , political p o w e r w a s said to c o m e into b e i n g w h e n the people agreed to establish institutionalised g o v e r n m e n t . It is granted to the people b y G o d or, a c c o r d i n g to G r o t i u s , it ' i m m e d i a t e l y arises' at the m o m e n t o f constitution o f g o v e r n m e n t (DJB, i.iv.2, p. 1, 1646, p. 80, 1738, p p . 102—3). T h i r d , political p o w e r inheres in the p e o p l e as a corporate 621

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Natural law and utility b o d y , not i n d i v i d u a l l y . Fourth, the p e o p l e as a w h o l e n e v e r exercises political p o w e r . R a t h e r , the p e o p l e consents either to delegate (in limited constitutional theories) or to alienate (in absolute theories) its political p o w e r to a person or b o d y that naturally represents t h e m : k i n g , parliament, or b o t h (in theories o f m i x e d s o v e r e i g n t y ) . Finally, in the case o f legitimate resistance to t y r a n n y , the people, either individually, or corporately acting t h r o u g h their natural representative b o d y , exercise their natural rights to defend themselves or their c o m m u n i t y f r o m attack. T h a t is, the rebellions o f the early m o d e r n period w e r e not conceptualised as political activity but as individual or corporate acts o f self-defence against attack ( T u l l y 1986). T h e r e f o r e , the tradition o f natural f r e e d o m is holistic w i t h respect to political p o w e r until L o c k e . A l t h o u g h the p e o p l e is or are naturally free, this natural f r e e d o m is non-political. Politically, the individual is naturally subject to the c o m m u n i t y and the c o m m u n i t y to its natural representative bodies, w i t h respect to the exercise o f political p o w e r . T h i s is true e v e n for the most radical theorists such as G e o r g e B u c h a n a n (DJR, p p . 3—4, 38), G e o r g e L a w s o n (1657, p p . 45, 58), R i c h a r d O v e r t o n (1647), and A l g e r n o n Sidney (1772, pp.456—64). For e x a m p l e , in G e o r g e L a w s o n ' s t h e o r y o f m i x e d m o n a r c h y , w h e n k i n g and parliament are in d e a d l o c k political p o w e r d e v o l v e s b a c k n o t to the p e o p l e but to their natural representatives: the original forty courts o f the forty counties, that is, to the local g e n t r y (1689, p. 15). N o one w a s w i l l i n g to grant that the p e o p l e either i n d i v i d u a l l y or c o l l e c t i v e l y had the capacity to exercise political p o w e r themselves. In positing political individualism or individual popular s o v e r e i g n t y L o c k e thus repudiates 500 years o f elite political holism and reconceptualises the origins o f political p o w e r in a radically populist w a y . A n d this in turn is g r o u n d w o r k , as w e shall see, for reconceptualising rebellion as a political activity o f the p e o p l e . 4

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T u r n i n g n o w to the original nature o f political p o w e r . L o c k e argues that it is the d u t y and right o f each individual to settle 'controversies o f R i g h t ' .

4. T h e r e are t w o qualifications to this claim. In De lure Praedae (1605) Grotius argues that the state's p o w e r to punish is derived from its individual members. H o w e v e r , he never published this manuscript and he explicitly repudiated this individualist thesis in DJB, returning to a traditional political holism. Second, Hobbes also derives punishing p o w e r from individuals, in Leviathan, ch.28 (the reaction to it shows h o w unconventional it was). H o w e v e r , the natural p o w e r o f punishment o f both Grotius and Hobbes is the p o w e r o f self-defence; it is not like Locke's jurisdictional p o w e r to j u d g e controversies o f right, to execute one's j u d g e m e n t and to seek reparations in one's o w n case and in the case o f others.

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Locke T h i s comprises three capabilities o f g o v e r n i n g oneself and others: to j u d g e b y means o f ' t r i a l ' or 'appeal' i f any person has transgressed the rule o f right (natural l a w ) ; to e x e c u t e the j u d g e m e n t b y means o f c o e r c i v e punishment o f the g u i l t y party; and to seek reparations for the injured party ( T T , n.ii.7—12, p p . 289—93). T h e three p o w e r s o f present g o v e r n m e n t s d e v e l o p e d historically, and can be logically derived f r o m this original f o r m o f political p o w e r . T h e distinction b e t w e e n the 'state o f nature' and 'political society' is thus that in the f o r m e r each individual is j u d g e and executioner o f the (natural) l a w , whereas in the latter the right to j u d g e is voluntarily and conditionally entrusted to a c o m m o n legislature and j u d i c i a r y , and the right to e x e c u t e is entrusted to an e x e c u t i v e (prince or m o n a r c h ) ( T T , n.vii.87, p p . 341—2; 11.vii.88—93, pp. 342—6). H e n c e , political societies are constituted b y representative g o v e r n i n g institutions, and natural societies b y direct, non-institutional practices o f s e l f - g o v e r n m e n t ( T T , 11.vii.87, lines 2 4 - 3 2 , p. 342). ' W h a t e v i d e n c e c o u l d L o c k e advance for his v i e w o f the nature o f political p o w e r prior to the placing o f political p o w e r in monarchies or representative bodies? Seen in this light, L o c k e ' s account o f the individual and s e l f - g o v e r n i n g origins o f political p o w e r w o u l d h a v e been seen as historically plausible b y his audience, e v e n t h o u g h it w a s 'strange' and subversively populist. T h e reason is tha*- it is a fairly accurate redescription o f the accusatory system o f justice b y w h i c h Europeans g o v e r n e d themselves until the legal r e v o l u t i o n o f the twelfth and thirteenth centuries; until, that is, the inquisitorial system o f justice and the juridical institutions o f g o v e r n m e n t expropriated political p o w e r . T h e accusatory system w a s supplanted b y institutionalised and fiscalised forms o f juridical g o v e r n m e n t r o u g h l y during the reign o f H e n r y II in E n g l a n d , and it w a s officially banned t h r o u g h o u t E u r o p e at the fourth Lateran C o u n c i l o f 1215 (Kuttner 1982; R i g h t m i r e 1932; B e r m a n 1983, p p . 434-58). L o c k e ' s account c o n f o r m s r e m a r k a b l y w e l l to w h a t w e k n o w o f this 'natural'jurisprudence. Accusations o f transgressions w e r e m a d e b y private individuals, not public officials, and not o n l y b y the injured party. T h e court o f appeal w a s ad hoc in L o c k e ' s sense that it had n o paid, permanent officials. T h e accuser w h o b r o u g h t the charge s w o r e an oath to the truth o f his charge. O t h e r m e m b e r s o f the c o m m u n i t y , c o m p u r g a t o r s , supported the accuser's oath and others c o u l d c o m e in o n the side o f the accused. T h u s , if this w a s t h o u g h t to be insufficient a trial b y ordeal o f s o m e kind w o u l d take place, o n the assumption that G o d w o u l d m a k e the correct j u d g e m e n t visible t h r o u g h the o u t c o m e o f the ordeal. T h e most i m p o r t a n t technique for L o c k e is the third one: a 'trial b y battle' or c o m b a t , understood as an 623 Cambridge Histories Online © Cambridge University Press, 2008

Natural law and utility 'appeal to H e a v e n ' , again o n the assumption that G o d w o u l d j u d g e t h r o u g h the battle's o u t c o m e . T h i s is o f course precisely the l a n g u a g e L o c k e used to describe r e v o l u t i o n and n o one c o u l d miss his point that a r e v o l u t i o n consists in people taking back their original political p o w e r and exercising it in the 'natural' or accusatory w a y . Finally, the w h o l e c o m m u n i t y had a hand in e x e c u t i n g the punishment. T h i s o v e r w h e l m i n g l y t o o k the f o r m o f reparation b y means o f p a y m e n t o f g o o d s or services o f the g u i l t y to the injured party, and the majority o f disputes in the century prior to the system's abolition w e r e , as L o c k e argues, about property. 5

W h y should L o c k e conceptualise political p o w e r in this w a y ? First, at the tactical level, he required a t h e o r y to justify r e v o l t against the oppression o f religious dissent (see section vii). After the failure to gain toleration t h r o u g h parliament the Dissenters had to initiate revolt themselves. T h e y had n o support f r o m the A n g l i c a n local g e n t r y so c o u l d not appeal to any constituted b o d y , as L a w s o n had done. S e c o n d , he had to justify a r m e d resistance in support o f an oppressed m i n o r i t y b y those not i m m e d i a t e l y affected (since the Dissenters m a d e up barely 10 per cent o f the population). His c o n c e p t i o n o f political p o w e r serves these tactical needs w e l l , w h i l e c o n v e n t i o n a l self-defence theories d o not. A t a m o r e general level, the representation and explanation o f rebellions in the seventeenth century w e r e constrained b y the v o c a b u l a r y o f selfdefence b y isolated individuals or representative bodies against direct attacks. T h i s conceptual scheme b e c a m e increasingly implausible as the great contests o f the century unfolded, especially the English R e v o l u t i o n w h e r e people not directly attacked j o i n e d in, the people j u d g e d and e x e c u t e d their k i n g , and set up a n e w f o r m o f g o v e r n m e n t . L o c k e ' s conceptual r e v o l u t i o n enables h i m to represent these struggles m o r e accurately and, for the first time in E u r o p e a n t h o u g h t , as revolutions i n v o l v i n g the exercise o f political p o w e r b y the people. His i n v o l v e m e n t in the organisation o f r e v o l u t i o n in 1681—3, and for the M o n m o u t h R e b e l l i o n o f 1685, must h a v e helped h i m to see that the people in fact m a k e political j u d g e m e n t s and act u p o n t h e m . L o c k e presents t w o arguments o n the basis o f accepted practice for his premise o f political individualism. In circumstances w h e r e individuals cannot appeal i m m e d i a t e l y to the l a w they are said to h a v e the right to

5. T T , 11.v.36-8, 5 0 - 1 , pp. 3 1 0 - 1 3 , 319-20, 11.ix.136, pp. 3 7 6 - 7 , and b e l o w . T h e centrality o f property disputes in the transition period has been substantiated b y Little 1978 and C o l e m a n 1985.

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Locke defend themselves and their possessions f r o m attack b y the use o f force ( T T , ii.iii. 18, pp.297—8). T h i s alleged natural principle o f justice w a s traditionally used to justify resistance to t y r a n n y . H o w e v e r , for it to w o r k for L o c k e the act o f self-defence w o u l d h a v e to entail the exercise o f jurisdictional p o w e r , and this is w h a t writers such as P u f e n d o r f w e r e able to s h o w self-defence did not i n v o l v e (Pufendorf, v n . v i h . 7 , 1688, p. 7 6 1 , 1934, p p . i n 1 - 1 2 ) . A l s o , g o v e r n m e n t s punish aliens. Since aliens d o not consent, g o v e r n m e n t s must exercise s o m e natural p o w e r o f j u d g e m e n t and e x e c u t i o n ( T T , n.ii.9, pp.290—1; cf. G r o t i u s 1950, p. 92).

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Public g o o d and natural l a w

T h e third step is the explication o f the rule o f right in accordance w i t h w h i c h political p o w e r is exercised, justified, and limited. For L o c k e this is the l a w o f nature, w h i c h enjoins the preservation o f m a n k i n d . T h e l a w o f nature is the means o f translating the end o f g o v e r n m e n t into natural duties and rights o f preservation. A s w e h a v e seen in his definition o f political p o w e r the end o f g o v e r n m e n t is the 'public g o o d ' . T h e public g o o d is the preservation o f society and, as far as this is c o m p a t i b l e w i t h the preservation o f the w h o l e , the preservation o f each m e m b e r . T h e public g o o d and natural l a w p e r f o r m a triple function in the Two Treatises: as the standard b y w h i c h controversies are adjudicated in the state o f nature; as the g u i d e for legislation and e x e c u t i v e action in political society; and as the rule b y w h i c h p e o p l e j u d g e their g o v e r n m e n t . Filmer's first criticism o f natural f r e e d o m is that any state o f nature, e v e n G r o t i u s ' , must be a H o b b e s i a n state o f lawlessness in practice, due to the conflict o f j u d g e m e n t s , and thus a c o n d i t i o n o f licence, not f r e e d o m (Filmer 1949, pp. 264, 273—4, 285—6). L o c k e h i m s e l f believed this in the Two Tracts but c h a n g e d his m i n d in the Essays on the Law of Nature (1661—2). B y a r g u i n g in the Two Treatises that the state o f nature has a natural l a w enforced b y the accusatory system he responded to Filmer and s h o w e d that natural f r e e d o m is not H o b b e s i a n 'absence o f restraint' (or ' n e g a t i v e liberty') but the traditional juridical f o r m o f f r e e d o m as action w i t h i n the b o u n d s o f and subject to l a w ( T T , n.iv.22, pp. 3 0 1 - 2 , n . v i . 5 7 , pp. 3 2 3 - 4 ; cf. T u l l y 1984). 6

It f o l l o w s f r o m the constitutive role o f natural l a w that individuals w h o 6. TT, n.ii.4.7, pp.287, 289-90, 11.iv.22, pp. 3 0 1 - 2 , 11.xi.135, P P - 3 7 5 ~ A n.xiii.149, pp. 384-5, 11.xv.171, pp. 399-400. For L o c k e ' s theory o f natural law see V o n Leyden 1970; U r d a n g and O a k l e y 1966; T u l l y 1980, pp. 35-43; and C o l m a n 1983.

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Natural law and utility transgress it, in civil or natural society, b y using 'Force without Righf or manifesting a 'declared design' to d o so, place themselves outside m o r a l h u m a n society, and thereby in a 'state o f w a r ' ( T T , 11.iii.16, 19, p p . 2 9 6 - 7 , 298-9, n.ii.8, 1 1 , p p . 290, 2 9 1 - 2 ) . If they then refuse the appeal to l a w and adjudication, or i f there is n o time for an appeal, then 'the w a n t o f such an appeal gives a m a n the R i g h t o f W a r ' against the defiant l a w b r e a k e r ( T T , 11.iii.19-20, p p . 298-300, 11.ii.10—11, pp. 2 9 1 - 2 ) . It is i m p o r t a n t to see the careful structure o f this a r g u m e n t because the right o f w a r L o c k e lays out in chapter 3 is the foundation o f the right to take up arms against a m o n a r c h or legislature w h o transgresses natural l a w , as he i m m e d i a t e l y points out ( T T , 11.iii. 17, 2 0 - 1 , p p . 297, 299-300). T h e right o f w a r is thus a juridical decision b y arms: the right to j u d g e and p r o c e e d against a recalcitrant transgressor b y force o f arms in 'an appeal to h e a v e n ' ( T T , 11.iii.20—1, p p . 299-300 and reference in fn). A s L o c k e interprets the biblical account o f Jephthah leading his p e o p l e to battle against the A m m o n i t e s , 'then Prosecuting [judging], and r e l y i n g o n his appeal [to H e a v e n ] , he leads out his a r m y to battle' ( T T , 11.iii.21, p . 300). T h i s means o f enforcing the l a w o f nature continues 'until the aggressor offers Peace, and desires reconciliaton' o n just terms ( T T , 11.iii.20, p . 299). L o c k e supports the right o f w a r first b y reference to the (alleged) natural right to kill an attacker or a thief ( T T , n.iii.19, p p . 298-9, n . x v i . 1 7 6 , p p . 403—4). Since this is t o o w e a k to justify the exercise o f the right o f w a r in the defence o f the attacked b y those n o t directly i n v o l v e d , he appeals to a right o f all m a n k i n d to prosecute a c o m m o n m u r d e r e r ( T T , i i . i i . n , p p . 2 9 1 - 2 ) . Since this in turn is t o o w e a k to support activating a right o f w a r in response to any v i o l a t i o n o f natural l a w ( w h e r e other appeals h a v e been exhausted) he argues that any design to violate natural f r e e d o m , to use force w i t h o u t right, threatens 'to take a w a y e v e r y thing else', including preservation, and so is like a direct attack ( T T , n.iii.17, P- 9 7 ) - B y these means L o c k e stretches the traditional justifications o f defence to the generalised right o f p r o c e e d i n g against those w h o break natural l a w . F o l l o w i n g B u c h a n a n he conceptualises this as warfare, and w a r in turn, not as an act o f self-defence, but as a j u r i d i c a l and accusatory contest o f decision b y arms (DJR, p . 38; 1949, pp. 141—2). Since t y r a n n y and usurpation can n o w be defined in terms o f any v i o l a t i o n o f natural l a w , as the use o f p o w e r b e y o n d right and o f p o w e r w i t h o u t right respectively ( T T , n . x v i i i . 1 9 9 , p p . 416—17, n . x v i i . 1 9 7 , P- 4 1 5 ) , broadens the base for justified r e v o l t and redescribes it as a j u r i d i c o - p o l i t i c a l activity o f w a r , as Jean L e C l e r c pointed out in his r e v i e w in Bibliothèque Universelle ( x i x , p . 5 9 1 ) . 2

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Locke T h e r e w o r k i n g o f c o n v e n t i o n a l legal a r g u m e n t s for resistance is c o m p l e m e n t e d b y an i n n o v a t i o n in the content o f natural l a w . A s a result o f the w a r s o f religion and the sceptical attack o n the claims o f w a r r i n g Christian churches, m o s t seventeenth-century political thinkers agreed that the basic role o f the state is to preserve and 'strengthen' society and its m e m b e r s , n o t to u p h o l d the 'true' religion, unless it c o u l d be s h o w n to be useful in b r i n g i n g about preservation ( R a e f f 1983, pp. 11—43; T u l l y 1988). A c c o r d i n g l y , the basic c o n c e p t o f natural l a w that w a s said to g u i d e and legitimate legislation w a s the l a w o f self-preservation. T h i s received its classical f o r m u l a t i o n in G r o t i u s ' f o r m u l a o f a natural d u t y and right o f selfpreservation and d o m i n a t e d the political t h o u g h t o f the century ( T u c k 1979, p p . 58—82). L o c k e ' s i n n o v a t i o n here is to argue that the fundamental natural l a w is n o t self-preservation but 'the preservation of mankind' ( T T , n . x i . 1 3 5 , PP- 375—6). It is this change w h i c h explains and g r o u n d s the distinctive set o f natural duties and rights he is able to d e v e l o p and w h i c h p r o v i d e s further support for a broader account o f r e v o l u t i o n ( T u l l y 1980, pp. 53-156). T h e preservation o f m a n k i n d is b r o k e n into t w o natural duties: the traditional natural l a w d u t y to preserve oneself and, w h e n one's preserv ation is n o t sacrificed, a n e w , positive and o t h e r - r e g a r d i n g d u t y to preserve the rest o f m a n k i n d ( T T , n.ii.6, p p . 288—9). T w o natural rights to preserve oneself and others f o l l o w f r o m the natural duties ( T T , n.ii.7—8, p p . 289—90). T h u s , w h e n people accuse and adjudicate controversies i n v o l v i n g others in the natural accusatory system they are exercising their natural rights and duties to preserve others. H e n c e , as w e shall see, these rights and duties p r o v i d e the justification for the w i d e r p o p u l a t i o n c o m i n g to the r e v o l u t i o n a r y aid o f an oppressed m i n o r i t y ; e x a c t l y the f o r m o f action L o c k e needed to legitimate and w h i c h , as the Levellers had discovered, c o u l d n o t be justified in their G r o t i a n f r a m e w o r k o f selfpreservation ( T u c k 1979, p. 150). T h e s e in turn correlate^ w i t h the traditional n e g a t i v e d u t y to abstain f r o m that w h i c h b e l o n g s to another ( T T , n.ii.6, p p . 288-9). Further, t w o different kinds o f p o w e r are e m p l o y e d in the exercise o f each o f these natural rights and duties: the p o w e r to preserve one's life and the life o f others b y punishing (natural) lawbreakers (political p o w e r ) and the p o w e r to preserve oneself and others f r o m starvation (labour p o w e r or p r o d u c t i v e p o w e r ) ( T T , n.ix.129—30, p p . 370—1). L o c k e discusses the natural rights and duties o f labour p o w e r in chapter 5. If humans h a v e the d u t y and right to preserve themselves and others f r o m starvation, then they 627

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Natural law and utility must h a v e the right to ' M e a t and D r i n k and such other things, as N a t u r e affords for their Subsistence' (TT, ii.v.25, p p . 303-4). T h e r e f o r e , the w o r l d must b e l o n g to ' M a n k i n d in c o m m o n ' in the sense that each has a natural claim to the means necessary for 'support and C o m f o r t ' ( T T , 11.v.26, p. 304). T h i s modifies the popular seventeenth-century premise in the natural f r e e d o m tradition that the w o r l d b e l o n g s to n o one but is open to the appropriation o f e a c h . Filmer's criticism o f this is that each act o f appropriation w o u l d require the consent o f all and so e v e r y o n e w o u l d starve w a i t i n g for universal consent (1949, p. 273). L o c k e ' s famous reply is that consent is n o t required in the early stages o f history ( T T , 11.v.28, pp. 306—7). T h e exercise o f one's labour p o w e r as a person o n w h a t is g i v e n to m a n k i n d in c o m m o n b e s t o w s o n the labourer a right to the p r o d u c t insofar as it is used for the preservation o f self and others and as l o n g as ' e n o u g h , and as g o o d [are] left in c o m m o n for others' ( T T , 11.v.27, 3 1 , pp. 305-6. 308; cf. Y o l t o n 1970, pp. 1 8 1 - 9 7 ) . T h u s , labour p o w e r is the means o f i n d i v i d u a t i n g the c o m m o n into individual possessions to be used for preservation ( T T , и. v.25, 26, 28, 29, p p . 303-7). L a b o u r p o w e r also creates products o f value, insofar as they are useful, and the w h o l e chapter underscores the p r o d u c t i v i t y and i m p o r t a n c e o f labour ( T T , 11.v.40—4, pp. 3 1 4 - 1 7 ) . 7

In the state o f nature the exercise o f labour p o w e r and possession are regulated b y political p o w e r in accordance w i t h the ' e n o u g h and as g o o d ' p r o v i s o and the natural l a w enjoining use for preservation. A person w h o abuses possessions acquired b y his o w n labour, or w h o appropriates m o r e than one can use w i t h o u t spoiling, takes ' m o r e than his share, and [it] b e l o n g s to others' ( T T , 11.v.31, p. 308). H e thereby 'offended against the c o m m o n l a w o f N a t u r e , and was liable to be punished; he i n v a d e d his n e i g h b o u r ' s share, for he had no right, farther than his own use' (TT, и.v.37, p p . 312—13). N a t u r a l p r o p e r t y rights are, a c c o r d i n g l y , use-rights w i t h i n a larger f r a m e w o r k o f rights and duties to preserve the c o m m u n i t y (mankind) and regulated b y e v e r y o n e t h r o u g h the accusatory system. Increase in p o p u l a t i o n , the introduction o f m o n e y , d e v e l o p m e n t o f agricultural arts, the extensive appropriation o f land, the division o f labour and the e m e r g e n c e o f c o m m e r c i a l activity all lead to interminable disputes and quarrels o v e r p r o p e r t y rights ( T T , 11.v.36, 37, 40, 44, 45, 48, pp. 310—12, 314, 316—17, 319). T h e accusatory system is ill-suited for this

7. DJB, 11.ii.1-2 (1646, pp. 1 0 1 - 2 , 1738, pp. 142-6); Pufendorf, De Jure Naturae, pp. 363-4, 1934, pp. 532-5).

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iv.iv.2 (1688,

Locke situation and so the resulting instabilities p r o v i d e one o f the major causes o f the historical transition f r o m the pre-state accusatory systems to the agreements to establish the first forms o f institutionalised and territorial forms o f g o v e r n m e n t (monarchies) and f o r m a l legal codes to regulate p r o p e r t y ( T T , n . v . 4 5 , p. 37, n.v.30, 50, pp. 307-8, 3 1 9 - 2 0 ; cf. P a l m e r 1985a, 1985b, for this i n f o r m a t i o n ) . I return to this transition a r g u m e n t b e l o w . T h e i m p o r t a n t points here are, first, that L o c k e has a r g u e d that it is a natural function o f political p o w e r to regulate b o t h l a b o u r and possessions for

the sake o f preservation, or the public g o o d ( T T , n.i.3, p . 286,

11.viii.120, p . 366, n . x i . 1 3 6 , p p . 376—7). T h i s p r o v i d e s the justification for the extensive regulation and disciplining o f the l a b o u r i n g p o p u l a t i o n in the mercantile systems o f the early m o d e r n states, w h e n this p o w e r is delegated to g o v e r n m e n t , as L o c k e r e c o m m e n d s in his Report to the Board of Trade (1697). On the other hand, this f r a m e w o r k o f natural-law rights and duties o f preservation places a limit o n p r o p e r t y legislation the transgression o f w h i c h justifies r e v o l t . O n c e g o v e r n m e n t has determined a system o f ' p r o p e r t y ' — b y w h i c h he means a right to s o m e thing such that it cannot be taken w i t h o u t the consent o f the proprietor

or the consent o f his

representatives ( T T , n . x v i . 1 9 3 , P- 4!3> n . x i . 1 4 0 , p. 380) — a transgression o f these rights constitutes a v i o l a t i o n o f natural l a w and hence a g r o u n d for legitimate r e v o l t , just as in the state o f nature ( T T , n . x i . 1 3 8 , pp. 378—9, n . x v i . 1 1 9 , P-4-I2). A further question is w h e t h e r these a r g u m e n t s for appropriation w i t h o u t consent and punishment for abuse o f land w e r e used, or w e r e intended

to be used, to justify the dispossession o f

A m e r i n d i a n s and the i m p o s i t i o n o f E u r o p e a n forms o f p r o p e r t y ( C r o n o n 1983, p p . 54-82, 95).

v

M u t u a l subjection

T h e fourth step in the j u r i d i c a l a r g u m e n t is the w a y in w h i c h political p o w e r is placed in the hands o f m o n a r c h s or representative bodies. It is a historical, logical, and n o r m a t i v e question c o n c e r n i n g the rights and conditions under w h i c h either the great centralising monarchies or the representative institutions o f early m o d e r n E u r o p e exercised political p o w e r . In the natural-freedom tradition t w o general genealogies w e r e proposed. T h e first and d o m i n a n t explanation, w h i c h L o c k e a d o p t e d in the Two

Tracts, is that the p e o p l e as a corporate w h o l e , and usually acting

t h r o u g h their natural representative b o d y , consent to alienate c o m p l e t e l y political p o w e r to the m o n a r c h and to r e n o u n c e the right o f self-defence. 629

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Natural law and utility T h e main a r g u m e n t for alienation in its pure or mitigated f o r m is that i f s o v e r e i g n t y is shared b y m o n a r c h and parliament (or estates), or i f the p e o p l e d o n o t r e n o u n c e their (or its) right to j u d g e w h e n it is a situation o f self-defence, then, g i v e n h u m a n partiality, this w i l l lead to disagreement, dissension, tumults, and so to civil w a r . T h e idea that political p o w e r is shared b y parliament and m o n a r c h w a s castigated as a t h r o w b a c k to the strife-ridden feudal past and an i m p e d i m e n t to centralisation and m o d e r n isation under absolute m o n a r c h y ( P u f e n d o r f 1667; Filmer 1949, p . 88; Shennan 1974). T h e second a r g u m e n t , f a m o u s l y a d v a n c e d b y R o u s s e a u , is that unless alienation is c o m p l e t e n o s o v e r e i g n is f o r m e d and p e o p l e remain in a quasi state o f nature (Rousseau, i.vi, 1972, p. 1 1 5 ) . L o c k e used b o t h o f these a r g u m e n t s in the Two Tracts. T h e second g e n e a l o g y is that the people, as a w h o l e , consent or contract to entrust c o n d i t i o n a l l y political p o w e r to the m o n a r c h or to m o n a r c h and parliament (in m i x e d m o n a r c h y theories), or to parliament (in p a r l i a m e n tary s o v e r e i g n t y ) (Franklin 1978). W h e n the ruler abuses the trust it is b r o k e n and p o w e r d e v o l v e s b a c k to the people. T h e n , the p e o p l e m a y defend themselves either t h r o u g h parliament or, i f it is a m i x e d m o n a r c h y , t h r o u g h a natural representative b o d y such as L a w s o n ' s forty courts o f the forty counties. A s w e h a v e seen, n o o n e w a s w i l l i n g to say that dissolution o f the trust returned the exercise o f political p o w e r to the p e o p l e . In the Two Treatises L o c k e adopts the 'trust** t h e o r y o f the relation b e t w e e n g o v e r n m e n t and g o v e r n o r s and adapts it to his individual a c c o u n t o f political p o w e r . T h e r e are three reasons w h y he accepted the trust hypothesis. First, a c c o r d i n g to the alienation hypothesis, the s o v e r e i g n is b y definition outside o f political society, since he is n o t subject to l a w , and thus absolutism is n o t a f o r m o f political society ( T T , 11.vii.90, p. 344). Further, since the p e o p l e resign their right to j u d g e and punish h i m for violations o f natural l a w , it is w o r s e than the inconveniences o f the state o f nature since they h a v e n o right to protect themselves against his v i o l e n c e . H e n c e it w o u l d be irrational to consent to alienate: 'to think that m e n are so foolish that they take care to a v o i d w h a t Mischiefs m a y be d o n e t h e m b y Pole-Cats or Foxes [in the state o f nature], but are content, n a y think it safety, to be d e v o u r e d b y Lions [in absolute m o n a r c h y ] ' ( T T , 11.vii.93, P- 34-6). T h i s is clearly against any natural-freedom t h e o r y o f alienation, w h e t h e r that o f Grotius, H o b b e s , Pufendorf, or L o c k e h i m s e l f in the Two Tracts. N o t o n l y is it irrational. Since it i n v o l v e s transferring absolute p o w e r o v e r one's o w n life to another, it presupposes that individuals h a v e the right to dispose o f their o w n life. L o c k e points out to his Christian audience that o n l y G o d has 630

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Locke 8

such a r i g h t . E v e n i f absolutism enjoys universal consent it is a f o r m o f 'despotic p o w e r ' and 'slavery' that violates the natural l a w to preserve life b y exercising unlimited p o w e r o v e r subjects ( T T , 11.xv.172, pp.400—1). L o c k e ' s second reason for rejecting the alienation theory is that g o v e r n m e n t s tend o v e r time to t y r a n n y . A s states d e v e l o p , rulers gain w e a l t h and p o w e r and tend to cultivate interests different f r o m and contrary to the people's. In addition, they b e c o m e o p e n to i d e o l o g i c a l manipulation b y religious elites, w h o use their influence to h a v e their 9

beliefs i m p o s e d b y political means. T h e resulting t y r a n n y causes civil w a r . H e n c e the alienation theory, like any absolute theory, is part o f the p r o b l e m rather than a solution ( T T , i.xi.106, pp.236—7).

T h e third and major reason for the c h a n g e is that L o c k e c a m e to believe that the alienation t h e o r y is implausible: p o s t - R e f o r m a t i o n , and especially post-English C i v i l W a r individuals, as a matter o f fact, d o n o t alienate their natural political p o w e r . A s he classically and presciently put it in the Two Treatises, popular r e v o l u t i o n is a permanent feature o f m o d e r n politics, irrespective o f the official i d e o l o g y : F o r w h e n t h e People a r e m a d e miserable, Arbitrary

Power,

a n d f i n d t h e m s e l v e s exposed

to the ill usage of

c r y u p t h e i r G o v e r n o r s , as m u c h as y o u w i l l f o r s o n s o f Jupiter,

let

t h e m be Sacred and Divine, descended or authoriz'd from Heaven; give t h e m out f o r w h o m o r w h a t y o u p l e a s e , t h e s a m e w i l l h a p p e n . The People generally

ill

treated,

a n d c o n t r a r y t o r i g h t , will b e r e a d y u p o n a n y occasion t o ease t h e m s e l v e s o f a ( T T , 11.xix.224, P P - 432-3)

b u r d e n t h a t sits h e a v y u p o n t h e m .

Let us turn n o w to the c o m p l e x practice o f trust (see D u n n 1969, p p . 120—48, 165—87, 1984, pp. 22—60, 1985, p p . 3 4 - 5 5 ) . Individuals consent to entrust the t w o natural p o w e r s they exercise themselves in the state o f nature to m a k e up a g o v e r n m e n t . First, labour p o w e r , the p o w e r 'of doing whatsoever

he thought fit for the Preservation

of himself, and the rest o f

m a n k i n d ' each individual 'gives up to be regulated b y L a w s m a d e b y the S o c i e t y , so far forth as the preservation o f himself, and the rest o f that society shall require' ( T T , n . i x . 1 2 9 , PP- 3 7

0 —

i)- T h a t is, p r o p e r t y

and

labour are n o w regulated b y the t w o p o l i c y objectives o f collective and individual preservation, preservation

w i t h the individual b e i n g sacrificed to

o f the c o l l e c t i v i t y w h e n these t w o great rationales

the of

g o v e r n m e n t conflict ( T T , n . x i . 1 3 4 , PP- 373~4)- T h u s , as L o c k e stresses t h r o u g h o u t the Two Treatises, the public g o o d (preservation), n o t rights, is 8. TT, n.iv.23, p-302, 11.xi.135, PP- 375~~6, n.xiii.149, pp. 384-5, 11.xv.171, pp. 399—400, 11.xix.222, pp. 4 3 0 - 1 . 9. TT, n . v i i i . 1 0 7 - 1 2 , pp. 356-62, n.vii.94, pp. 3 4 7 - 8 , 1 1 . x i v . 1 6 2 - 3 , P- 394» n.xviii.208-10, pp. 422-3.

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Natural law and utility the fundamental principle in accordance w i t h w h i c h political p o w e r is exercised b y g o v e r n o r s and j u d g e d b y the g o v e r n e d . T h i s , as L o c k e notes, confines the liberty each had b y natural l a w ( T T , n.ix.170—i, p. 3 7 1 ) . S e c o n d , each individual ' w h o l l y gives up' political p o w e r , the p o w e r o f punishing, to be used to m a k e and enforce laws, w i t h each individual's assistance i f necessary ( T T , n . i x . 1 3 0 , p. 3 7 1 ) . T h e transfer o f p o w e r s i n v o l v e s three parts. Individuals consent w i t h each other to g i v e up their p o w e r s to f o r m a political 'society' o f w h i c h each b e c o m e s a m e m b e r . O n l y explicit consent, ' b y positive E n g a g e m e n t , and express P r o m i s e and C o m p a c t ' , makes one a m e m b e r and constitutes a political society, and binds each to the determination o f the majority until either his citizenship is r e v o k e d or the society is dissolved ( T T , n.viii.95—9, pp. 348—51, 11.vii.122, p. 367). T h e majority then constitutes the society into a f o r m o f g o v e r n m e n t b y placing the legislative p o w e r in specific hands. If this legislative p o w e r , as w e l l as e x e c u t i v e p o w e r , remains in the majority then it is a 'perfect' d e m o c r a c y ; if in the hands o f a f e w , o l i g a r c h y ; and so o n ( T T , 11.x.132, p. 372). T h e legislative p o w e r is the 'supreme p o w e r ' in any c o m m o n w e a l t h because the p o w e r to m a k e laws derives f r o m the m e m b e r s ' natural p o w e r to j u d g e controversies ( T T , n.vii.89, p. 343, cf. 11.xix.212, p p . 425—6). Finally, the legislative entrusts the 'natural force' o f the c o m m u n i t y to the e x e c u t i v e (and, eo ipso, the federative) to enforce the l a w s and protect society, m e m b e r s , and colonies b y means o f w a r and d i p l o m a c y ( T T , n.xii.144—8, p p . 382—4). L o c k e sees t w o objections to his thesis that l a w f u l g o v e r n m e n t is based u p o n explicit consent, i n v o l v i n g the delegation o f political p o w e r , and b i n d i n g each m e m b e r to the majority: that there are n o historical instances o f it, and that p e o p l e are n o w b o r n into and are thus naturally subject to a g o v e r n m e n t ( T T , 11.viii.100, pp. 3 5 1 - 2 ) . In response to the f o r m e r objection he assembles historical and a n t h r o p o l o g i c a l evidence to illustrate that free m e n h a v e c o m m o n l y set rulers o v e r themselves ( T T , 11.viii.101—12, p p . 352—62). In these e x a m p l e s L o c k e is concerned to falsify b o t h the natural-subjection thesis and the equally popular defacto thesis that lawful g o v e r n m e n t can be founded in successful conquest. T h i s aim is spliced rather a w k w a r d l y into the first section o f the S e c o n d Treatise ( T T , n . i . i , p. 342, lines 1 9 - 2 5 ; cf. G o l d i e 1980b, p p . 508-18). T h e latter objection is n o m o r e plausible. H i s t o r y furnishes m a n y e x a m p l e s o f p e o p l e l e a v i n g their g o v e r n m e n t and f o u n d i n g n e w c o m m o n wealths b y consent, w h i c h w o u l d be impossible i f subjection w e r e natural. Further, present g o v e r n m e n t s themselves d o not assume that subjection 632

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Locke f o l l o w s f r o m birth, but f r o m consent, and they in fact d e m a n d express consent ( T T , n.viii.113—18, p p . 362—5). R e c e n t scholarship o n the origins o f institutionalised forms o f political p o w e r and citizenship in E u r o p e , w h e t h e r in the c o m m u n e s , free cities, principalities, or English c o m m o n w e a l t h , has stressed the widespread practice o f consent and o a t h - g i v i n g (Oestreich 1982, p p . 1 3 5 - 5 5 , 1 6 6 - 8 7 ; B e r m a n 1983, p p . 259-403). Explicit oaths o f allegiance to the present f o r m o f church and state w e r e precisely the f o r m the central issue o f obedience and resistance t o o k f r o m 1640 to 1690. In 1689 L o c k e insisted o n explicit oaths r e n o u n c i n g jure divino doctrine (because it did n o t base allegiance o n the justice o f W i l l i a m ' s invasion and w o u l d equally legitimate a successful French c o u n t e r conquest) (Farr and R o b e r t s 1985, pp. 395-8). T h e most difficult question Filfner puts to the consent thesis is one o f m o t i v a t i o n . W h y should a n y o n e ever consent to g i v e up his natural f r e e d o m and s e l f - g o v e r n m e n t , and, as L o c k e rephrases it, 'subject h i m s e l f to the D o m i n i o n and C o n t r o u l o f any other P o w e r ' ( T T , n . i x . 1 2 3 , P- 3^8; Filmer 1949, p. 286)? L o c k e answers that there are three disadvantages o f the natural or accusatory system that caused, or cause, people to abjure it: the lack o f established, settled, or k n o w n l a w ; the lack o f a k n o w n and indifferent j u d g e ; and a w a n t o f p o w e r to execute a j u d g e m e n t ( T T , 11.ix. 124—6, pp. 368—9). N a t u r a l l a w can be k n o w n and settled, but, because people are a l w a y s partial in their o w n cases, they w i l l not submit to a l a w that applies against t h e m . T h e second difficulty also turns o n the jurisprudential a x i o m that individuals are biased j u d g e s in their o w n cases t h r o u g h 'interest' or 'partiality'. A s a result, 'Passion and R e v e n g e is v e r y apt to carry t h e m t o o far, and w i t h t o o m u c h heat, in their o w n Cases; as w e l l as n e g l i g e n c e , and unconcernedness, to m a k e t h e m t o o remiss, in other mens.' E v e n the third turns o n partiality: since L o c k e argues that p e o p l e w i l l not enforce a sentence w h e n the g u i l t y party resists and makes punishment 'dangerous, and frequently destructive' ( T T , 11.ix. 125—6, p. 369). L o c k e argues in chapter 5 that these disadvantages d o not cause serious p r o b l e m s until the pressure o f p o p u l a t i o n g r o w t h o n available land, the increase of, and division into, t o w n s and villages, the d e v e l o p m e n t o f agriculture and t e c h n o l o g y , and the introduction o f m o n e y conjoin to cause disputes o v e r p r o p e r t y w h i c h destabilise the natural r e g i m e . H e also speculates that these d e v e l o p m e n t s , especially m o n e y , enhanced the sense o f self and thus served to enlarge, i f n o t create, the self-interest that undermines the accusatory system ( T T , 11.viii.107, 108, 1 1 1 , p p . 356—8, 633

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Natural law and utility 360— 1,11.v.37, p p . 312—13). T h u s , confusion and disorder eventually f o l l o w f r o m a w a y o f life in w h i c h m e n are j u d g e s in their o w n cases' because 'selfl o v e w i l l m a k e m e n partial to themselves and their friends' and 'Passion and R e v e n g e w i l l carry t h e m t o o far in punishing others' ( T T , n.ii.13, pp.293—4). A t precisely this conjuncture in h u m a n history the greatest transformation in the w a y o f g o v e r n i n g occurs: f r o m s e l f - g o v e r n m e n t to civil g o v e r n m e n t . L o c k e i m m e d i a t e l y remarks that it is absurd to assume (as he had in the Two Tracts) that p e o p l e w o u l d consent to absolute m o n a r c h y at this point as a r e m e d y to their p r o b l e m s . Since the p r o b l e m is h u m a n partiality w h e r e each is j u d g e , w h a t k i n d o f a r e m e d y is absolute m o n a r c h y ' w h e n one M a n c o m m a n d i n g a multitude, has the L i b e r t y to be J u d g e in his o w n C a s e , and m a y d o to all his Subjects w h a t e v e r he pleases, w i t h o u t the least liberty to any one to question or controle those w h o E x e c u t e his Pleasure' ( T T , n.ii.13, P P - 9 3 4)? R a t h e r , L o c k e advances a m o r e plausible history o f the f o r m a t i o n o f the state. 2

—

W h i l e still s e l f - g o v e r n i n g , p e o p l e w e r e used to entrusting their authority to a single ruler to lead t h e m in times o f w a r , a l t h o u g h they retained the right, exercised in ad hoc councils, to declare w a r and peace. O n l y later did they turn to this c u s t o m o f delegating authority to settle internal disputes ( T T , n.viii.108, n o , 1 1 2 , p p . 357—62). T h u s , civil g o v e r n m e n t e v o l v e d out o f the practice o f external w a r , w h i c h explains the initial plausibility o f conquest theories. H o w e v e r , delegation o f p o w e r in w a r t i m e and later in internal disputes w a s based o n consent and a s o m e w h a t naive trust in the application o f the original f o r m o f g o v e r n m e n t , ' w h i c h f r o m their infancy they had all been a c c u s t o m e d t o ' ; the patriarchal family ( T T , n.viii.107, p p . 3 5 6 - 7 , cf. n . v i i i . 1 0 5 , n o , p p . 3 5 4 - 5 , 359-60). Filmer is thus right in saying that the first forms o f civil g o v e r n m e n t are monarchies, patterned o n the patriarchal family, but w r o n g in construing this as natural rather than a c o n t e x t u a l l y rational and c o n v e n t i o n a l response to the b r e a k d o w n o f an earlier w a y o f life. T h e initial trust w a s naive because people had n o experience o f the abuse o f p o w e r and so o f the need for explicit limitations, e v e n t h o u g h they u n d e r s t o o d it to be limited, like paternal care o f children ( T T , n.viii.107, p p . 356—7). A s central authority d e v e l o p e d , the m o n a r c h , t h r o u g h l u x u r y and a m b i t i o n , stretched his p r e r o g a t i v e 'to oppress the P e o p l e ' , and d e v e l o p e d interests separate f r o m t h e m ( T T , i i . v i i i . i n , p p . 360—1, cf. n . x i v . 1 6 3 , p p . 394—5). T h e y then realised that it is necessary to limit m o n a r c h y b y placing the legislative p o w e r 'in collective bodies o f m e n , call t h e m Senate, Parliament, or w h a t y o u please' ( T T , n.vii.94, pp.247—8). 634

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Locke M e n e x a m i n e d m o r e carefully 'the Original and R i g h t s o f G o v e r n m e n t ' , and set u p legislative bodies 'to restrain the Exorbitances and prevent the Abuses' o f princely p o w e r , thus ushering in the present age o f dispute about p r i v i l e g e and contests b e t w e e n k i n g s and people about g o v e r n m e n t ( T T , i i . v i i i . i n , p p . 3 6 0 - 1 , cf. 11.xiv.166, p. 396). N o t o n l y did this attempt at separating and balancing p o w e r not succeed, as proponents o f m i x e d m o n a r c h y falsely claim, but princes h a v e been further enboldened in the present age b y a r g u m e n t f r o m c u s t o m and n e w ideologies o f divine right p r o m u l g a t e d b y religious elites to advance their o w n interests. L o c k e ' s reconceptualisation o f the trust b e t w e e n g o v e r n e d and g o v e r n o r s is thus designed to p r o v i d e a solution to the p r o b l e m o f civil w a r s caused b y the failure o f the first attempt t h r o u g h representative institutions to curb the p o w e r g i v e n to princes and b y the seventeenth-century resurgence o f absolutism. 10

vi

Revolution

T h e fifth and most i m p o r t a n t step in juridical political t h o u g h t is the t w o f o l d question: h o w is political p o w e r exercised b y g o v e r n o r s and w h a t prevents the abuse o f p o w e r ? T h e answer to the first question for L o c k e is that political p o w e r is to be exercised in accordance w i t h the trust. T h i s comprises: that l a w s should be m a d e and e x e c u t e d in accordance w i t h the c o m m o n g o o d or natural l a w ; that g o v e r n o r s should themselves be subject to the l a w s they m a k e ; and that the l a w s and legal rights should not be c h a n g e d w i t h o u t the consent o f the majority t h r o u g h their representatives ( T T , n . i x . 1 3 5 , Pp. 3 7 5 - 6 , 11.vi.94, p p . 3 4 7 - 8 , n . x i . 1 4 0 , p. 380; cf. G r a n t 1987). L o c k e ' s solution to the p r o b l e m o f the abuse o f p o w e r , and so to the early m o d e r n crisis o f g o v e r n m e n t , is that the people themselves must g o v e r n their g o v e r n o r s . T h e y must j u d g e w h e n and if their g o v e r n o r s act contrary to the trust and, w h e n necessary, execute their j u d g e m e n t b y a r e v o l u t i o n and the establishment o f a n e w g o v e r n m e n t . L o c k e ' s concept o f trust captures this m u t u a l subjection practice o f g o v e r n m e n t . T h e people entrust their political p o w e r to their g o v e r n o r s or trustees and consent to subjection as l o n g as it is exercised in accordance w i t h the trust. R e c i p r o c a l l y , the g o v e r n o r s are under an o b l i g a t i o n to the people to exercise p o w e r a c c o r d i n g l y . H e n c e , 10. T T , 11.viii.112, pp. 3 6 1 - 2 . Balancing and separation are referred to in 11.viii.107, p. 356, and the use o f custom to legitimate absolutism at 11.vii.94, PP- 347~8.

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Natural law and utility the Legislative b e i n g o n l y a F i d u c i a r y P o w e r t o act for certain ends, t h e r e r e m a i n s still in the People t h e Legislative

a Supreme

Power

t o r e m o v e o r alter the Legislative,

w h e n t h e y find

a c t c o n t r a r y t o t h e t r u s t r e p o s e d i n t h e m . F o r all Power given

with

trust

f o r t h e a t t a i n i n g a n end, b e i n g l i m i t e d b y t h a t e n d , w h e n e v e r t h a t end is m a n i f e s t l y n e g l e c t e d , o r o p p o s e d , t h e trust m u s t n e c e s s a r i l y b e forfeited,

and the P o w e r devolve

i n t o t h e h a n d s o f t h o s e t h a t g i v e it, w h o m a y p l a c e it a n e w w h e r e t h e y shall t h i n k best for their safety a n d security

( T T , 11.xiii.149, p p . 3 8 4 - 5 )

H o w does this w o r k in practice? In a system w h e r e the e x e c u t i v e is separate f r o m the legislative, the legislative, b e i n g the superior p o w e r , g o v e r n s the e x e c u t i v e w h i c h m a y be 'at pleasure c h a n g e d and displaced' ( T T , 11.xiii.152, pp. 386—7). If the legislative fails or abuses the trust, then, as w e h a v e seen, p o w e r d e v o l v e s to the people. In E n g l a n d , the m o n a r c h has a share in the legislative, and so is neither subordinate n o r accountable to it, and thus cannot be r e m o v e d b y it. T h i s section (152) ends fifty years o f insoluble debate o v e r the location o f s o v e r e i g n t y in m i x e d m o n a r c h y . T h e legislative cannot effectively j u d g e and constrain the e x e c u t i v e e v e n t h o u g h this is the reason it w a s established. If the legislature is g i v e n authority to j u d g e the m o n a r c h then this destroys the m i x e d nature o f s o v e r e i g n t y . If the m o n a r c h is g i v e n ultimate authority the same contradiction f o l l o w s (Franklin 1978, p p . 1-52). C o n s e q u e n t l y , the people, and o n l y the people, h a v e the p o w e r to g o v e r n b o t h the legislative and e x e c u t i v e w h e n either acts contrary to the trust ( T T . n . x i x . 2 1 8 , 222, p p . 4 2 8 , 430-2). T h e r e are t w o means b y w h i c h this m a y be done. Subjects m a y appeal to the legislative, not o n l y to j u d g e controversies a m o n g themselves, but also controversies b e t w e e n t h e m and their g o v e r n m e n t (unlike absolutism) ( T T , n.vii.93—4, p p . 346—8, n.xviii.207, pp. 4 2 1 - 2 ) . H o w e v e r , w h e n religious Dissenters m a d e appeals t h r o u g h o u t the R e s t o r a t i o n against the transgression o f their civil and political rights and the confiscation o f their property, their appeals w e r e castigated as 'sedition' and 'faction' ( T T , n.vii.93, P- 346, n.xviii.209, pp. 4 2 2 - 3 , 1 1 . x i x . 2 1 8 , p. 428). W h e n this means is b l o c k e d , the trust is b r o k e n and the people turn to the second means o f redress: r e v o l u t i o n as the means o f e x e c u t i n g the l a w o f nature ( T T , 1 1 . x i x . 2 2 1 - 2 , pp. 430-2, 11.xviii.202, 204, pp. 4 1 8 - 2 0 ) . In chapter 19 L o c k e distinguishes b e t w e e n the dissolution o f g o v e r n m e n t and the dissolution o f political society, states that virtually the o n l y w a y political society is dissolved is b y foreign conquest, and goes o n to analyse cases in w h i c h g o v e r n m e n t , but not political society, is dissolved b y various types o f breach o f trust ( T T , 11.xix.211, p p . 4 2 4 - 5 ) . In this 636

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Locke r e v o l u t i o n a r y situation the p e o p l e are n o l o n g e r under subjection to the g o v e r n m e n t , so they ' m a y constitute to themselves a n e w legislative, as they think best, b e i n g in full liberty to resist the force' o f the illegitimate g o v e r n m e n t ( T T , 11.xix.212, p. 426). N o r are they constrained, he continues, to act as a corporate b o d y in resistance to u n l a w f u l authority: ' E v e r y one is at the disposure o f his o w n W i l l ' (See T T , 11.xix.220, 242, p p . 424—6, 429, 445). In these cases, the rulers (legislature or e x e c u t i v e ) are in a state o f w a r vis-a-vis the p e o p l e because they h a v e acted contrary to right or used force w i t h o u t r i g h t . R e v o l u t i o n then b e c o m e s an exercise o f their regained natural political p o w e r to j u d g e and e x e c u t e in accordance w i t h natural l a w (see T T , 11.iii.17, P - 9 7 ) 11

2

W h o has the right to j u d g e w h e n the trust is b r o k e n and thereby decide that political society is dissolved? L o c k e ' s u n e q u i v o c a l l y radical answer is that each individual m a n has this right: 'every man is Judge for h i m s e l f ' . N o t o n l y m a y any m a n (or w o m a n ? ) m a k e this j u d g e m e n t , he m a y m a k e it o n the basis o f a single v i o l a t i o n o f right, o n the j u d g e m e n t that his ancestors had been w r o n g e d b y conquest (thinking o f a French invasion), or e v e n i f n o transgression has been c o m m i t t e d but the individual discerns a tyrannical tendency or d e s i g n . W h o has the right to e x e c u t e this j u d g e m e n t b y taking up arms to punish m e g o v e r n m e n t ? A g a i n , L o c k e replies that each individual has this r i g h t . A s w e h a v e seen this f o l l o w s f r o m the premises since the r e v o l u t i o n is the people g o v e r n i n g lawbreakers as they d o naturally w h e n other forms o f appeal h a v e failed. Finally, the people themselves h a v e full constituent authority to reestablish the old f o r m o f g o v e r n m e n t , to set up a n e w f o r m , or to set up direct d e m o c r a c y — 'to continue the legislative in themselves' ( T T , n.xii.243, PP-445~6> cf. 11.xix.220, 226, p p . 4 2 9 , 4 3 3 - 4 ) . T o drive h o m e his point that r e v o l u t i o n is the exercise o f natural political p o w e r b y the people he calls it e x a c t l y w h a t the right o f w a r is called: an ^appeal to H e a v e n ' . H e r e , because there is n o c o m m o n j u d g e o n earth, the o n l y recourse is a decision b y arms. ' A n d w h e r e the B o d y o f the people, or any single M a n , is d e p r i v e d o f their R i g h t , or is under the exercise o f a p o w e r 12

13

14

2

11.

T T , 11.xix.222, 232, pp. 430-2, 437, state the general argument whereas n . x i x . 2 1 2 - 1 9 , PP- 4 5~9, takes up specific abuse o f the trust in 1681 and 1688. 12. T T , 11.xix.241, p. 445. C o m p a r e 11.iii.21, p. 300, n.ii.9, pp. 2 9 0 - 1 , 11.xiv.168, pp. 397-8, 11.xix.240, pp. 444-5. 13. T T , 11.xiv.168, p p . 3 9 7 , n.xviii.203, P-4!9> n . x v i . 1 7 6 , pp. 403-4, 11.xviii.210, p. 423, 11.xix.220, p. 429. 14. T T , 11.xix.222, 224, 228, 231, 232, 235, 239, 242, pp. 430-3, 434-5, 436-8, 439-40, 442-5. C o m p a r e 11.iii.19, pp. 298-9, 11.xvi.176, pp. 403-4, 11.xviii.202, 207, pp. 4 1 8 - 1 9 , 4 2 1 - 2 .

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Natural law and utility w i t h o u t right, and h a v e n o appeal o n earth, there they h a v e a liberty to appeal to H e a v e n , w h e n e v e r they j u d g e the cause o f sufficient m o m e n t . ' T h e elaborate a c c o u n t o f the state o f nature is thus stage-setting for the i n t r o d u c t i o n o f r e v o l u t i o n as the natural and legitimate w a y the people g o v e r n rulers w h o abuse their p o w e r . 1 5

L o c k e attempts to m a k e this doctrine appear less subversive than it is b y m a k i n g B a r c l a y ' s respectable natural-freedom t h e o r y o f absolutism appear m o r e populist than it is. B u c h a n a n had argued that a k i n g w h o b e c o m e s a tyrant dissolves the constitutive pact b e t w e e n k i n g and people, forfeits his rights, and so m a y be p r o c e e d e d against b y means o f a j u d i c i a l act o f w a r b y the b o d y o f the p e o p l e or an individual, just as in the case o f a c o m m o n criminal (DJR, p. 38). In his reply B a r c l a y countered that as an inferior can n e v e r punish a superior, so neither an individual n o r the people as a w h o l e can punish, attack, or prosecute their k i n g . H o w e v e r , as w e h a v e seen, B a r c l a y does c o n c e d e that i f a k i n g b e c o m e s an intolerable tyrant the people as a w h o l e , and not an individual, m a y defend itself as l o n g as it does not attack the k i n g (Barclay 1600, ni.viii, cit. T T , n.xix.232—3, p p . 4 3 7 - 9 ) . A l t h o u g h G r o t i u s repudiated B u c h a n a n ' s t h e o r y as w e l l , he did g o on to assert against B a r c l a y that the people, i n d i v i d u a l l y or c o l l e c t i v e l y , c o u l d defend themselves b y force o f arms against an intolerable tyrant w h o attacked t h e m d i r e c t l y . In this e x c e p t i o n a l case the p e o p l e exercise their natural right to defend themselves and this is justified because the reason for w h i c h p e o p l e o r i g i n a l l y established g o v e r n m e n t is self-preservation. P u f e n d o r f repeated this mitigated absolutism, explicitly m a k i n g the point against B a r c l a y that the d u t y not to punish a superior does not apply because resistance is an act o f defence, not o f jurisdiction (Pufendorf, v n . v i i i . 7 , 1688, p. 7 6 1 , 1934, p. 553). T h i s line o f a r g u m e n t , as w e h a v e seen, w a s used and abused — as Filmer predicted — to justify resistance t h r o u g h o u t the century. 16

In his c o m m e n t a r y o n B a r c l a y , L o c k e reverses this trend. Instead o f saying that resistance is a non-judicial act o f defence he is able to s h o w that e v e n B a r c l a y admits that w h e n a k i n g destroys his p e o p l e or alienates his o w n k i n g d o m he ceases to be a k i n g . H e thereby 'divests h i m s e l f o f his C r o w n and D i g n i t y , and returns to the state o f a private M a n , and the P e o p l e b e c o m e free and superior'; he 'sets the p e o p l e free, and leaves t h e m at their o w n disposal' (Barclay 1600, m . x v i , cit. T T , 11.xix.237—8, 15. TT, 11.xiv.168, pp. 397-8. C o m p a r e 11.iii.21, p. 300; 11.xvi.176, pp. 403-4, 11.xix.241, p. 44516. DJB, i.iv.7 (1646, pp. 86—90, 1738, pp. 111—19). He refers to Barclay in i . i v . 1 0 - 1 1 (1646, pp. 9 0 - 1 , 1738, pp. 1 2 0 - 1 ) .

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Locke pp.441—2). A l t h o u g h B a r c l a y is thinking o f extraordinary circumstances he concedes that a k i n g can lose his superiority and thus, as L o c k e i m m e d i a t e l y concludes, the rule that an inferior cannot punish a superior does n o t apply and so the people m a y prosecute h i m (as B u c h a n a n originally argued) ( T T , n . x i x . 2 3 9 , pp. 442—4; B u c h a n a n 1 7 1 5 , p. 38, 1949, p. 142). W i t h his v e r y different account o f the natural political p o w e r o f the p e o p l e and his m o r e extensive c o n c e p t o f t y r a n n y firmly in place, L o c k e is able to e x p l o i t this o p e n i n g and m a k e it appear that his radical doctrine is n o t far out o f line w i t h the m o s t respectable absolutists ( T T , n . x i x . 2 3 9 , pp. 442-4). Despite L o c k e ' s exercise in feigned respectability the Two Treatises is u n o r t h o d o x in c o n c e i v i n g o f rebellion as a political contest i n v o l v i n g ordinary people seizing political p o w e r and r e f o r m i n g g o v e r n m e n t . W e can measure h o w u n c o n v e n t i o n a l it is b y n o t i n g t w o c o n t e m p o r a r y responses to its publication in 1690. First, L o c k e ' s W h i g friend James T y r r e l l repudiated it in Bibliotheca Politica, a r g u i n g that political p o w e r does n o t revert to the p e o p l e but to representative bodies or 'great councils' (1727, p. 643; cf. Franklin 1978, p. n o ) . In The Fundamental Constitution of the English Government (1690) W i l l i a m A t w o o d stated the major objection to L o c k e ' s account: o t h e r s [Locke?] are t o o loose in their n o t i o n s , a n d s u p p o s e t h e dissolution o f this c o n t r a c t [ J a m e s IPs v a c a n c y ] t o b e a m e r e [i.e. p u r e ] c o m m o n w e a l t h , o r a b s o l u t e a n a r c h y , w h e r e i n e v e r y b o d y h a s a n e q u a l s h a r e in t h e g o v e r n m e n t , n o t landed men, and others with w h o m

the balance of p o w e r has rested b y

only the

c o n s t i t u t i o n , b u t c o p y - h o l d e r s , s e r v a n t s , a n d t h e v e r y faeces R o m u l i w h i c h w o u l d n o t o n l y m a k e a q u i e t e l e c t i o n i m p r a c t i c a l b u t b r i n g in a d e p l o r a b l e

confusion.

1 7

L o c k e ' s t h e o r y thus appears to be the m o s t implausible solution o f all. H o b b e s had a r g u e d that civil w a r is caused b y each individual c l a i m i n g the right to j u d g e the l a w in accordance w i t h their subjective standard o f conscience or ' p r i v a t e j u d g e m e n t ' (Leviathan 11.29, !957> p. 2 1 1 ) . In the Two Tracts L o c k e argued that in a system o f popular s o v e r e i g n t y m e m b e r s w o u l d w i t h d r a w their consent and r e v o l t w h e n e v e r a l a w conflicted w i t h their private interest, c l a i m i n g that it c o n t r a v e n e d the public g o o d (1967, p p . 120—1, 137, 226). Grotius launched a blistering attack o n the t h e o r y o f m u t u a l subjection o f k i n g and people, w h e r e the p e o p l e (parliament) o b e y if the k i n g does not abuse his trust and the k i n g b e c o m e s dependent o n the 17. A t w o o d 1690, p. 100. See Franklin 1978, p. 105. Five pamphlets o f the 1680s are similar to the TT on the point o f dissolution. [ W i l d m a n ] 1689a and 1689b; [Humfrey] 1689; [Stephens] 1689; Ferguson 1681. See Ashcraft 1986; Goldie 1980a, 1980b.

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Natural law and utility people i f he does abuse it. It w o u l d lead to confusion and disputes because k i n g and people w o u l d j u d g e and act differently; ' w h i c h disorder', he concludes, 'no N a t i o n (as I k n o w of) ever yet t h o u g h t to introduce' (DJB, i.iii.9, 1646, p. 59, 1738, pp.71—2). Filmer t o o had made the 'anarchy' o f individual j u d g e m e n t s the centrepiece o f his attack on the natural freedom tradition: ' e v e r y m a n is b r o u g h t , b y this doctrine o f our authors [ H u n t o n ] , to be his o w n j u d g e . A n d I also appeal to the conscience o f all m a n k i n d , w h e t h e r the end o f this be not utter confusion and anarchy' (Filmer 1949, pp. 2 9 6 - 7 ; Franklin 1978, p p . 39-48). T h i s a r g u m e n t w a s repeated t h r o u g h o u t the R e s t o r a t i o n b y defenders o f absolutism and m i x e d m o n a r c h y and it has remained the mainstay o f conservative criticism o f popular s o v e r e i g n t y . In his reply, L o c k e cannot deny that people are biased in their j u d g e m e n t or claim that they w i l l impartially j u d g e in accordance w i t h the c o m m o n g o o d . H e uses the assumption o f partiality to explain b o t h the b r e a k d o w n o f the accusatory system and the tendency o f absolutism to t y r a n n y ( T T , n.ii.13, P P - 2 9 3 - 4 , 11.ix.124-6, p p . 368-9, 11.vii.93, p. 346). T h e r e f o r e he must answer his conservative critics o n their o w n g r o u n d , b y s h o w i n g that partiality does not entail confusion and anarchy. A sign that L o c k e m a y h a v e seen his answer as the most controversial and u n c o n v e n t i o n a l aspect o f the Two Treatises is that he presents it in t w o separate places in the text ( T T , n . x v i i i . 2 0 3 - 1 0 , pp. 4 1 4 - 2 3 , 11.xix.224-30, p p . 4 3 2 - 6 ) . Here is the question ( w h i c h is clearly in response to Filmer): ' M a y the Commands then of a Prince be opposed? M a y he be resisted as often as a n y o n e shall find h i m s e l f a g g r i e v e d , and but i m a g i n e he has not R i g h t done him? T h i s w i l l u n h i n g e and o v e r t u r n all Polities, and instead o f G o v e r n m e n t and O r d e r leave n o t h i n g but A n a r c h y and C o n f u s i o n ' ( T T , n.xviii.203, P- 4 1 9 ; cf. Sidney 1 7 7 2 , 1.24, p p . 1 8 5 - 2 1 5 ) . L o c k e presents six reasons w h y this w i l l not lead to 'anarchy'. First, as w e h a v e seen, people revolt w h e n oppressed irrespective o f the t y p e o f g o v e r n m e n t . A g o v e r n m e n t that establishes the exercise o f popular s o v e r e i g n t y b y means o f appeals to courts and parliament w h e n people find themselves a g g r i e v e d is m o r e likely to a v o i d r e v o l u t i o n than one w h e r e juridical contestation o f g o v e r n m e n t is forbidden ( T T , 11.xix.224, p p . 422—3, n.xviii.207, pp. 421—2). S e c o n d , just because people are partial, they w i l l be m o t i v a t e d to revolt o n l y i f the oppression touches t h e m directly ( T T , 11.xviii.208, p. 422). T h i r d , again due to partiality, they w i l l n o t in fact revolt on slight occasions but o n l y w h e n oppression spreads to the majority or, w h e n it affects a m i n o r i t y but appears to threaten all. T h i s 640

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Locke is so because they w i l l calculate that it is n o t in their interest to r e v o l t unless they e x p e c t to w i n , and this requires a majority ( T T , 11.xviii.209, p p . 422—3, n.xix.230, p p . 435—6,11.xiv.168, p p . 397—8). (This, as w e shall see b e l o w , is the sobering lesson L o c k e learned w h e n the W h i g s refused to support the r e v o l u t i o n o f the m i n o r i t y Dissenters in 1681—3.) Fourth, people w i l l r e v o l t o n l y w h e n they are persuaded in their conscience that their cause is just because they fear divine punishment for unjust rebellion ( T T , n.xviii.209, pp.422—3, 11.iii.21, p. 300). Fifth, people are in general habituated to the status quo and use and c u s t o m cause t h e m to tolerate its m i n o r abuses ( T T , n . x i x . 2 2 3 , 5 > 3°> PP-43 ~3> 43 5~6, 11.xviii.210, p. 423). Sixth, e v e n w h e n there is a r e v o l u t i o n p e o p l e usually return to the old forms o f g o v e r n m e n t to w h i c h they are accustomed, as English history s h o w s ( T T , n . x i x . 2 2 3 , p. 432). In sum, L o c k e plays the conservative t r u m p card o f partiality and habit against his conservative opponents, s h o w i n g that these causal factors m a k e popular s o v e r e i g n t y m o r e stable than absolutism. T h e radical right o f revolt is restrained in practice b y the conservative m o t i v e o f self-interest and the force o f habit. Further, L o c k e argues, 'this doctrine o f a P o w e r in the P e o p l e o f p r o v i d i n g for their safety a - n e w b y a n e w Legislative, w h e n their Legislators h a v e acted contrary to their trust, b y i n v a d i n g their P r o p e r t y , is the best fence against Rebellion and the probablest means to hinder it' ( T T , 11.xix.226, p p . 433—4). T h e reason is that rebellion means opposition to l a w and thus rulers are the most likely to rebel because they h a v e the temptation and the means, as w e l l as the e n c o u r a g e m e n t o f interested elites, close at hand. S h o w i n g t h e m that the people w i l l b o t h revolt and h a v e justice on their side brings the rulers' interest and d u t y in line w i t h the public g o o d : 'the properest w a y to prevent the evil [rebellion], is to s h e w t h e m the danger and injustice o f it, w h o are under the greatest temptation to run into it' ( T T , n.xviii.226, p. 434). 2 2

2

2

H o w e v e r , L o c k e does not believe that the mere threat o f r e v o l u t i o n and the public r e c o g n i t i o n o f its rightness is sufficient to guarantee g o o d g o v e r n m e n t . H e g r o w s impatient in these late sections w i t h persuading his conservative audience that popular s o v e r e i g n t y is the most orderly f o r m o f g o v e r n m e n t . It is, for h i m , e n o u g h to s h o w that it does not lead to anarchy and confusion. R e v o l u t i o n is not the w o r s t thing in politics; oppression is ( T T , n . x i x . 2 2 5 , 9 ~ 3 0 , p p . 4 3 3 , 4 3 4 - 6 , n . x i . 1 3 7 , p p . 3 7 7 - 8 , 11.xiii.158, p p . 391—2). T h e o n l y guarantee against oppression is not a doctrine but the practice o f r e v o l u t i o n itself. H e argues that n o f o r m o f g o v e r n m e n t guarantees f r e e d o m and rights because e v e r y f o r m can be abused ( T T , 2 2

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Natural law and utility 11.xviii.209, pp.422—3). O n l y the a c t i v i t y o f s e l f - g o v e r n i n g rebellion g r o u n d s f r e e d o m ( T T , n . x i x . 2 2 6 , 228-9, PP-433~5)- T h o s e w h o say popular s o v e r e i g n t y 'lays a foundation for Rebellion are, after all, right, but w r o n g to c o n c l u d e that it is 'not to be a l l o w e d ' because it 'is destructive to the Peace o f the W o r l d ' . It disrupts o n l y the unjust peace o f state oppression, and the ' u n l a w f u l v i o l e n c e ' o f ' m a g i s t r a t e s ' w h o act 'contrary to the trust put in t h e m ' ( T T , n.xix.228, p p . 4 3 4 - 5 ) . T h e justice o f resistance to oppression: this is the t h e m e o f the Two Treatises. A s strange as it sounds, this is also the solution to civil wars. If L o c k e is correct about the causal constraints o n popular revolts, then they o c c u r o n l y w h e n the people are in fact oppressed. H e n c e the cause o f civil w a r s must be the abuse o f p o w e r b y g o v e r n o r s , w h o , b e i n g partial, cultivate oppression w h e n it is possible and in their interest to d o s o . If, h o w e v e r , they k n o w that the p e o p l e h a v e a right to r e v o l t and w i l l in fact revolt w h e n oppressed, then either their interest in a v o i d i n g civil w a r w i l l o u t w e i g h their interest in oppression or it w i l l not. If it does, then oppression has been 'fenced', g o v e r n m e n t n o r m a t i v e l y and causally 'limited', and civil w a r a v o i d e d . If, o n the other hand, the right and threat d o not deter abuse o f p o w e r then there is n o t h i n g that can be d o n e short o f revolt, w h i c h is b o t h just and necessary. 18

vii

Toleration

T h e second p r o b l e m faced b y L o c k e and his contemporaries is the nature o f religion and the relation b e t w e e n religion and politics, ecclesiastical and political p o w e r , in p o s t - R e f o r m a t i o n E u r o p e . T h e w a r s that s w e p t E u r o p e w e r e n o t o n l y struggles for p o w e r , they w e r e also religious conflicts. R e l i g i o n had b e c o m e , L o c k e argued in 1660, 'a perpetual foundation o f w a r and contention[:] all those flames that h a v e m a d e such h a v o c and desolation in E u r o p e , and h a v e not been q u e n c h e d but w i t h the b l o o d o f so m a n y millions, h a v e been at first kindled w i t h coals f r o m the altar' (1967, p p . 160—1). T w e n t y - f i v e years later, still g r a p p l i n g w i t h this p r o b l e m , he said 'I esteem it a b o v e all things necessary to distinguish e x a c t l y the Business o f C i v i l G o v e r n m e n t f r o m that o f R e l i g i o n , and to settle the just b o u n d s that lie b e t w e e n the one and the other' ( L T , p. 26). W i t h o u t this there w o u l d be n o end to the controversies.

18. TT, 11.vii.92, p. 345,11.viii.111, pp. 360-1,11.xiii.152, 158, pp. 386-7, 3 9 1 - 2 , 1 1 . x i v . 1 6 3 , pp. 394-5, 11.xviii.210, p. 423, 11.xix.224-30, pp. 433-6.

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Locke L i k e the Two Treatises, L o c k e ' s solution, A Letter Concerning Toleration, has b o t h an English and a E u r o p e a n context. It w a s w r i t t e n in 1685 in support o f the Dissenters' struggle for religious and civil liberty in England, and translated and published b y W i l l i a m P o p p l e for that purpose in 1689. L o c k e w r o t e it in exile in H o l l a n d to his friend Phillip v o n L i m b o r c h w i t h w h o m he discussed the w h o l e R e f o r m a t i o n experience. A l s o , it w a s w r i t t e n i m m e d i a t e l y after not o n l y the failed M o n m o u t h R e b e l l i o n for toleration in E n g l a n d but also the R e v o c a t i o n o f the Edict o f Nantes and the persecution o f H u g u e n o t s . Published at G o u d a in Latin in 1689, it b e c a m e a classic in the E u r o p e a n struggle for toleration. A s early as the Two Tracts L o c k e b e g a n to e x p l o r e the religious causes o f w a r . H e argued that Christian leaders had inculcated t w o erroneous beliefs in b o t h princes and the laity: that there is o n l y one true w a y to heaven; and that it is a Christian d u t y to u p h o l d and to spread the true w a y b y force and c o m p u l s i o n and to suppress heresy. B o t h rulers and the people consequent ly believe themselves to h a v e an o v e r r i d i n g d u t y and an interest (fear o f hell and h o p e o f heaven) to use the force o f arms to solve religious disputes. G i v e n the multiplicity o f Christian faiths, each o f w h i c h considers itself o r t h o d o x and the other h e t e r o d o x , this a l i g n m e n t o f duty and m o t i v a t i o n leads to persecution b y g o v e r n m e n t and religious revolts b y the people. T h e c l e r g y o f all sects, in turn, h a v e propagated these t w o false beliefs in order to use either the rulers (prince or parliament) or the populace to gain access to political p o w e r , thus a c h i e v i n g w h a t they w a n t : p o w e r , d o m i n i o n , property, and the persecution o f o p p o n e n t s . In using political p o w e r in this w a y religious elites thus p r o v i d e those w h o serve their purposes b y taking up arms w i t h an additional and t e m p o r a l interest in p e r f o r m i n g their (alleged) religious d u t y (1967, p. 160). Political p o w e r is thus used not as it should be, to preserve property, but, rather, to confiscate and transfer it. 19

H e n c e , civil wars are w a g e d in the n a m e o f religious ' r e f o r m ' and religion serves as a ' v i z o r ' or i d e o l o g y w h i c h masks the struggle o f c o m p e t i n g elites for access to, and use of, political p o w e r (1967, pp. 160, 169—70). B y s h o w i n g the relation o f i d e o l o g i c a l legitimation b e t w e e n religion and political p o w e r struggles L o c k e brings his analysis o f the religious p r o b l e m in line w i t h his claim in the Two Treatises that the central struggle in his day is o v e r political p o w e r .

19. L o c k e 1967, pp. 158, 160—2, 169—70, 2 1 1 . C o m p a r e LT, pp. 2 3 - 5 . For the persecution o f religious Dissent in England see C a l a m y 1802; C r a g g 1957; and Watts 1978.

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Natural law and utility T h e t w o true Christian beliefs are the antithesis o f the w i d e l y p r o p a g a t e d false beliefs. T h e first is that G o d a l l o w s each m a n to w o r s h i p h i m in the w a y he sincerely believes to be right (over and a b o v e a f e w plain and simple essentials: the incarantion, h e a v e n and hell, and the core Christian ethics). T h e second true belief is that Christianity should be upheld and spread b y l o v e and persuasion o n l y , not b y force and c o m p u l s i o n (1967, p. 161). B o t h reflect L o c k e ' s acceptance o f G r o t i u s ' minimalist response (in De Veritate Religionis Christianae) to the sceptical attack o n the claims o f different churches and to the p r a g m a t i c attack o n the assumption that it is the role o f g o v e r n m e n t to u p h o l d true religion b y force o f arms. G i v e n postR e f o r m a t i o n religious diversity this assumption b e c a m e b o t h the cause and justification o f w a r . L o c k e ' s epistemological justification o f the first belief is that n o t h i n g m o r e than the essentials can be k n o w n w i t h certainty, and o f the second that the kind o f belief necessary for salvation cannot be compelled,*but must be v o l u n t a r y ( V a n L e e u w e n 1963: V i a n o i960). O n the basis o f this analysis L o c k e advanced t w o radically different solutions. T h e first, in the Two Tracts, is a theory o f absolutism and the imposition o f religious u n i f o r m i t y . T h e second, in A Letter Concerning Toleration, is a t h e o r y o f popular s o v e r e i g n t y and religious toleration. A b r i e f account o f the former and o f its failure w i l l s h o w h o w he m o v e d to the latter and p r o v i d e a better understanding o f its main features. T h i s also t h r o w s light on the Two Treatises, w h i c h is, in a fundamental w a y , L o c k e ' s repudiation o f the Two Tracts. B o t h solutions turn o n r e m o v i n g the cause and justification o f the wars o f religion - that it is the d u t y o f the state to u p h o l d the true religion - and on replacing this w i t h preservation, or the 'public g o o d ' , as the d u t y o f g o v e r n m e n t . T h e Two Tracts is L o c k e ' s proposal for the political and religious f o r m o f the R e s t o r a t i o n settlement o f 1660—2. H e argues, against a proposal for toleration based on individual conscience b y E d w a r d B a g s h a w , that as l o n g as the t w o false beliefs continue to be w i d e l y held, a p o l i c y o f religious toleration w o u l d be used b y religious g r o u p s to build up strength and, eventually, to precipitate another civil w a r in the attempt to gain political p o w e r ( B a g s h a w 1660, 1 6 6 1 ; cf. A b r a m s 1967; V i a n o i960). T h e call for toleration thus masks the u n d e r l y i n g w i l l to p o w e r o f a clerical elite bent o n d o m i n a t i o n , as he repeats e v e n in A Letter Concerning Toleration (LT, pp. 32—3, 43). His solution is for e v e r y o n e to alienate i r r e v o c a b l y his natural p o w e r , e v e n o v e r indifferent things, to an absolute m o n a r c h , Charles II. T h e m o n a r c h w o u l d then i m p o s e w h a t e v e r forms o f w o r s h i p he j u d g e d necessary for peace, order, and the public g o o d , using solely c u s t o m a r y and 644

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Locke prudential considerations as his g u i d e . T h e magistrate does not h a v e the d u t y to i m p o s e the true religion, c o n v e r t his subjects or suppress heresy. R e l i g i o u s activity is assessed and g o v e r n e d in accordance w i t h the political criterion o f the 'public g o o d ' (1967, p p . 1 1 9 , 1 2 4 - 6 , 1 4 9 - 5 0 , 1 6 9 - 7 0 , 229—32). L o c k e then suggests that i f the Dissenters (Baptists, Presbyterians, Q u a k e r s and Independents) w e r e peaceful, the m o n a r c h c o u l d permit toleration in the f o r m o f a D e c l a r a t i o n o f Indulgence (as Charles II in fact wished) (1967, p. 170). Dissenters c o u l d not be tolerated o n the g r o u n d s o f individual conscience, as B a g s h a w e proposed, because this w o u l d limit the m o n a r c h ' s s o v e r e i g n t y and reintroduce a religious criterion into politics (1967, pp. 1 2 1 , 137, 154). T h e greatest threat to peace a c c o r d i n g to L o c k e c o m e s not f r o m the Dissenters but f r o m the C h u r c h o f E n g l a n d . T h e m o n a r c h must be absolute in order to be free o f the national church, w h i c h w i l l otherwise use the state to i m p o s e religious u n i f o r m i t y and gain p o w e r : '[they] k n o w not h o w to set b o u n d s to their restless spirit i f persecution n o t h a n g o v e r their head' (1967, p. 169). T h r o u g h o u t his w r i t i n g s , L o c k e consistently attacks the A n g l i c a n church as the greatest threat to peace and calls for its disestablish m e n t (Goldie 1983). Finally, as a consequence o f alienation, a subject is a l w a y s obligated to o b e y any l a w and n o t to question it, e v e n i f it prescribes forms o f w o r s h i p the subject believes to be unacceptable to G o d . T h i s w i l l not c o m p r o m i s e a person's faith because faith is a matter o f inner belief — j u d g e m e n t or conscience - whereas obedience to the l a w need o n l y be a matter o f w i l l or outer b e h a v i o u r . W i t h this crucial Protestant distinction L o c k e c o u l d argue, like all English uniformists, that c o n f o r m i t y and obedience are c o m p a t i b l e w i t h liberty o f conscience (1967, pp.220—40). T h i s proposal failed because Charles II w a s not as absolute as L o c k e envisaged. H e w a s dependent on parliament and it w a s d o m i n a t e d b y an Anglican—gentry alliance w h o s e aim w a s the imposition o f religious u n i f o r m i t y , the extirpation o f Dissent and the c o n t r o l o f public life. T h e i r justification for this p o l i c y w a s to identify religious Dissent w i t h sedition and civil w a r , as L o c k e notes in the Two Treatises and A Letter Concerning Toleration. E v e n the m o d e r a t e A n g l i c a n s or 'latitudinarians', w i t h w h o m L o c k e is sometimes erroneously g r o u p e d , o p p o s e d toleration and w o r k e d for c o m p r e h e n s i o n w i t h i n the established church. Charles II f o u g h t for toleration o f Dissent and o f his co-religionists, English C a t h o l i c s , but the A n g l i c a n - g e n t r y alliance w a s p o w e r f u l e n o u g h to enact the C l a r e n d o n C o d e , a set o f repressive laws designed to stamp out Dissent. These l a w s 645

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Natural law and utility w e r e enforced and a u g m e n t e d during the R e s t o r a t i o n , sending thousands o f Dissenters into p o v e r t y , death, jail or transportation. R a t h e r than causing Dissenters to c o n f o r m to A n g l i c a n i s m , the C l a r e n d o n C o d e had the opposite effect. T h e Dissenters refused to c o m p l y , continued to practise their religion, d i s o b e y e d the l a w , and suffered i m p r i s o n m e n t and m a r t y r d o m t h r o u g h o u t the 1660s and 1670s. T h e C o d e created a p e r m a n e n t underclass, oppressed and denied access to public life and to publication, w h o struggled for toleration until the A c t o f T o l e r a t i o n in 1689. T h i s A c t w a s o n l y a partial r e m e d y and they w e r e treated as second-class citizens until w e l l into the nineteenth century. B y that time the Anglican—Dissent division had b e c o m e the major political cleavage in English society. F r o m 1667 o n w a r d L o c k e w r o t e in support o f this m i n o r i t y ' s struggle for toleration in the t w o f o l d sense o f religious and civil liberty (see G o l d i e 1983; T u l l y 1983). L o c k e first c h a n g e d his v i e w s and b e g a n to defend toleration in An Essay Concerning Toleration, 1667 (in L o c k e 1961). H e prepared this manuscript for A n t h o n y A s h l e y C o o p e r (soon to be the first earl o f Shaftesbury), the leader o f the struggle for toleration and L o c k e ' s e m p l o y e r and closest friend until his death in 1683. T h i s 1667 manuscript w a s used to persuade Charles II to support the concerted but unsuccessful effort o f the Dissenting c o n g r e g a t i o n s to gain an Indulgence b y r o y a l p r e r o g a t i v e and to b l o c k n e w legislation to repress Dissent, especially the use o f b o u n t y - h u n t i n g informers and o f transportation to the colonies in permanent servitude as punishment. First, L o c k e revised his v i e w s o n b e l i e f and action in the light o f the Dissenters' refusal to c o n f o r m f r o m 1662 to 1667. N o w , i f a person sincerely believes that an article o f faith is true and a f o r m o f w o r s h i p is acceptable to G o d , and thus necessary to salvation, he e v i d e n t l y w i l l profess and act a c c o r d i n g l y . H e n c e , j u d g e m e n t and w i l l are n o t separate. R a t h e r , as he later put it in An Essay Concerning Human Understanding, the j u d g e m e n t determines the w i l l ' , and so religious liberty must include liberty o f practice as w e l l as b e l i e f (11.xxi.48, 1 9 7 5 , p p . 2 6 4 - 5 ) . S e c o n d , G o d j u d g e s p e o p l e on the sincerity, not the truth, o f their beliefs, and thus i f a person sincerely believes that s o m e t h i n g is necessary and n o t indifferent, it is necessary for salvation. T h i s ushers in L o c k e ' s radically subjective definition o f religion, w h i c h is fully articulated later in A Letter Concerning Toleration: 'that h o m a g e I p a y to that G o d I adore in a w a y I j u d g e acceptable to h i m ' . C o n s e q u e n t l y , to profess or act contrary to one's religious beliefs, e v e n i f the magistrate so orders, is n o w the p a r a m o u n t sin 646

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Locke o f h y p o c r i s y and it w o u l d lead to eternal damnation: T h i s doctrine reverses the Two Tracts. D u t y and interest (salvation) are n o w aligned w i t h disobedience to the imposition o f religious u n i f o r m i t y , thereby justifying the Dissenters' widespread resistance to c o n f o r m i t y . It also expresses for the first time the L o c k e a n belief about the m o d e r n , p o s t - R e f o r m a t i o n individual: that the civil person is constituted b y a m o r a l s o v e r e i g n t y o v e r one's core beliefs and practice that cannot be alienated. T h e magistrate's role continues to be to u p h o l d the public g o o d . H o w e v e r , he n o w does not h a v e s o v e r e i g n t y o v e r his subjects' indifferent beliefs and he k n o w s that the imposition o f u n i f o r m i t y w i l l in fact be resisted. T h u s , a p o l i c y o f u n i f o r m i t y causes civil unrest — it is not a response to civil unrest, as the A n g l i c a n s argued - and toleration is the p r a g m a t i c means to civil peace. G i v e n this analysis, L o c k e reiterates that any attempt to i m p o s e u n i f o r m i t y under the guise o f unity or c o n v e r s i o n is a stratagem to gain p o w e r and d o m i n a t i o n . Enforced u n i f o r m i t y , he argues, unites all the c o m p e t i n g sects into one hostile opposition, whereas toleration w o u l d r e m o v e the cause o f the hostility, create trust, and tend to cause the proliferation o f sects, thereby d i v i d i n g and w e a k e n i n g further any potential threat to peace and security. In 1672 Charles II introduced a Declaration o f Indulgence w h i c h suspended the penal l a w s against Dissent. T h e Anglican—gentry alliance in parliament attacked it on the g r o u n d s that it u n d e r m i n e d the rule o f l a w and the constitution. Shaftesbury defended it as a legitimate exercise o f r o y a l p r e r o g a t i v e . T h i s l o n g struggle for toleration t h r o u g h absolutism, and against parliament and its constitutionalist justification o f opposition to Indulgence is expressed in L o c k e ' s anti-constitutionalist treatment o f p r e r o g a t i v e in the Two Treatises. H e says that the m o n a r c h m a y act in his discretion not o n l y ' b e y o n d the l a w ' but 'against the l a w ' i f this is in accordance w i t h the public g o o d ( T T , 11.xiv.164, pp. 393, 395; W e s t o n and G r e e n b e r g 1 9 8 1 , p p . 1 7 1 - 5 ; P o c o c k 1985, pp. 2 2 7 - 8 ) . W h e n Charles II w i t h d r e w his Indulgence one year later, abandoned his alliance w i t h Dissent and b e g a n to g o a l o n g w i t h the uniformists in parliament, the Anglican—gentry alliance entered g o v e r n m e n t under D a n b y , and Shaftesbury and L o c k e turned against Charles II and absolutism. T h e y b e g a n to build the 'radical' W h i g m o v e m e n t that w o u l d struggle for toleration first t h r o u g h parliament (1675—81), then, w h e n this did not w o r k , t h r o u g h the failed r e v o l t o f 1681—3 and the unsuccessful M o n m o u t h R e b e l l i o n o f 1685. T h i s transition to the c o m b i n a t i o n o f popular s o v e r e i g n t y and toleration as a right that L o c k e presents in A Letter 647

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Natural law and utility Concerning Toleration is first sketched in A Letter from a Person of Quality to his Friend in the Country (1675). L o c k e states that w h a t distinguishes limited f r o m arbitrary monarchs is that they h a v e 'the fear o f h u m a n resistance to restrain t h e m ' ( L o c k e 1823, x , p. 222). T h u s , a g o v e r n m e n t has a sufficient m o t i v e to rule in accordance w i t h the public g o o d o n l y i f it fears armed revolt, and this is a credible threat o n l y i f there is n o standing a r m y . O n the other hand, the people r e v o l t o n l y w h e n the g o v e r n m e n t g e n u i n e l y abuses the public g o o d because they fear that the r e v o l t w i l l be crushed unless they h a v e the majority o n their side. L o c k e concludes that w h e n people are oppressed, as w i t h the Dissenters, they w i l l resist, n o t o n l y passively (as in An Essay Concerning Toleration), but actively, b y the force o f arms, and they d o so j u s t l y and r i g h t l y ' ( L o c k e 1823, x , p . 222). U n d e r s t a n d a b l y , L o c k e left for France w h e n this p a m p h l e t was published and did n o t return until 1679. T h e p a m p h l e t enunciates Shaftesbury's strategy: to w o r k for toleration t h r o u g h parliament w i t h the b a c k g r o u n d threat o f revolt if this w a s b l o c k e d . It w a s o n l y after Charles II dissolved three toleration parliaments and parliamentarians ' t r i m m e d ' in 1681 that Shaftesbury and L o c k e turned to r e v o l u t i o n and L o c k e w r o t e the Two Treatises (for the dating see Ashcraft 1980). A c c o r d i n g l y , L o c k e m o v e d f r o m the 1675 thesis that a credible threat o f r e v o l t is sufficient to protect liberty to his mature thesis that, as w e h a v e seen, o n l y the actual practice o f r e v o l u t i o n is sufficient to free a people f r o m oppression. W e can also see w h y the right to r e v o l t had to be l o d g e d in the hands o f individuals, and n o t in parliament, i f the Dissenters w e r e to liberate themselves. T h e rebellions o f 1683—5 failed and the repression w a s so vicious that Dissent did n o t resurface as a political force for almost a century, e x c e p t for a tiny g r o u p around L o c k e in 1689 l o b b y i n g , again unsuccessfully, for the radical, religious, and civil liberty o f A Letter Concerning Toleration. A l g e r n o n Sidney and L o r d R u s s e l l w e r e e x e c u t e d after the R y e H o u s e P l o t in 1683 and o v e r 100 Dissenters w e r e h a n g e d f o l l o w i n g the M o n m o u t h R e b e l l i o n . L o c k e fled f r o m E n g l a n d to the U n i t e d P r o v i n c e s in 1683 and did n o t return until the successful invasion o f E n g l a n d b y W i l l i a m in 1688. A Letter Concerning Toleration w a s w r i t t e n w h i l e he w a s l i v i n g in political exile in H o l l a n d during the w i n t e r o f 1685. T h e text opens w i t h the claim that toleration is the fundamental Christian d u t y and goes o n to describe it as a natural right. H e presents three reasons w h y the g o v e r n m e n t is n o t concerned w i t h the care o f souls: individuals cannot alienate s o v e r e i g n t y o v e r their speculative and practical religious beliefs necessary for salvation; o u t w a r d force, political p o w e r , cannot induce the k i n d o f sincere b e l i e f 648

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Locke required for salvation, o n l y persuasion can; and e v e n i f c o e r c i o n c o u l d induce belief, there is n o epistemic certainty that the religion o f any particular g o v e r n m e n t is the true religion ( L T , p p . 26-8). T h e s e are used to justify toleration, the thesis that a church is a purely v o l u n t a r y organisation, and the separation o f church and state. T h a t is, they free ' m e n f r o m all d o m i n i o n o v e r one another in matters o f religion b y separating c o e r c i o n and religious belief, i n t r o d u c i n g his t w o true beliefs, and thereby r e m o v i n g the cause o f religious wars ( L T , p . 38). Nonetheless, toleration is n o t an absolute right. R e l i g i o u s beliefs and practices must be assessed and g o v e r n e d in accordance w i t h the o v e r r i d i n g criterion o f the 'public g o o d ' and those j u d g e d to be injurious to it proscribed ( L T , p p . 3 9 , 42, 49—51; cf. B r a c k e n 1984, p p . 83—96). W h a t prevents a magistrate f r o m a r g u i n g that a p o l i c y o f o u t w a r d religious u n i f o r m i t y is necessary, n o t to save souls or because it is true, but because the public g o o d requires a shared public life; that the a t o m i s m o f religious diversity is deeply divisive and 'inclinable to Factions, T u m u l t s , and C i v i l W a r s ' ( L T , p. 54)? L o c k e had argued in this w a y in 1660 and m a n y p r a g m a t i c defenders o f u n i f o r m i t y or c o m p r e h e n s i o n did the same (Stillingfleet 1680). L o c k e ' s first answer is to argue that, as a matter o f fact, religious diversity does n o t cause political divisiveness n o r civil unrest. C o n v e n t i c l e s are not 'nurseries o f factions and seditions' as the opponents o f Dissent claim and therefore cannot be repressed o n prudential g r o u n d s . E u r o p e a n history s h o w s that quite the opposite is true: 'It is not the diversity o f O p i n i o n s ( w h i c h cannot be avoided) but the refusal o f toleration to those that are o f different O p i n i o n , ( w h i c h m i g h t h a v e been granted) that has p r o d u c e d all the Bustles and W a r s , that h a v e been in the Christian W o r l d , u p o n account o f R e l i g i o n ' ( L T , p . 55). If w e ask w h y the imposition o f u n i f o r m i t y has continued in the face o f its failure to b r i n g peace, L o c k e gives the predictable answer that the alleged purpose, o f stressing the public g o o d , is entirely spurious. T h e real reason is the greed and desire for d o m i n a t i o n o f the c l e r g y and their ability to manipulate rulers and people: ' T h e Heads and Leaders o f the C h u r c h , m o v e d b y A v a r i c e and insatiable desire o f D o m i n i o n , m a k i n g use o f the i m m o d e r a t e A m b i t i o n o f Magistrates, and the credulous Superstition o f the g i d d y M u l t i t u d e , has incensed and animated t h e m against those that dissent f r o m themselves' ( L T , p . 55, cf. pp.24—5, 33, 35, 43, 50). T h i s analysis is repeated t h r o u g h o u t A Letter Concerning Toleration and L o c k e ' s account o f the abuse o f political p o w e r in the Two Treatises traces it to the same religious roots ( T T , n . v i i i . 1 1 2 , p p . 361-2,11.xviii.209—10, pp. 422—3, 649

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Natural law and utility n . x i x . 2 3 9 , p p . 442—4). T h e Two Treatises and A Letter Concerning Toleration are t w o c o m p l e m e n t a r y analyses o f civil w a r , or, as L o c k e w o u l d h a v e it, o f religious d o m i n a t i o n o f civil society t h r o u g h the state, w h e t h e r Protestant or C a t h o l i c , and justified popular resistance to it. L o c k e goes o n to elucidate w h a t specifically the c l e r g y seek to gain b y their ' T e m p o r a l D o m i n i o n ' , thereby illuminating another i m p o r t a n t feature o f the Two Treatises ( L T , p. 35). H e says that 'they deprive t h e m [Dissenters] o f their estate, m a i m t h e m w i t h c o r p o r a l Punishments, starve and t o r m e n t t h e m in n o i s o m Prisons, and in the end e v e n take a w a y their lives' ( L T , p. 24, cf. p . 52). Y e t , o n L o c k e ' s account, n o t h i n g should be transacted in religion, 'relating to the possession o f C i v i l and W o r l d l y G o o d s ' , or civil rights ( L T , p. 30, cf. p p . 3 1 , 32—3, 39, 43). Further, those w h o favour intolerance really m e a n that 'they are ready u p o n any occasion to seise the g o v e r n m e n t , and possess the Estate and Fortunes o f their F e l l o w - S u b j e c t s ' ( L T , p . 50, cf. p. 49). Dissenters, b y the i m p o s i t i o n o f u n i f o r m i t y , are 'stript o f the G o o d s , w h i c h they h a v e g o t b y their honest Industry' ( L T , p. 55). T h e preservation o f p r o p e r t y in the sense o f lives, liberties, and estates earned b y industry is the reason w h y p e o p l e enter civil g o v e r n m e n t in b o t h A Letter Concerning Toleration and the Two Treatises (LT, pp. 47—8, T T , n . i x . 1 2 3 , p . 368). T h e v i o l a t i o n o f this trust is also the f o r m o f oppression L o c k e is specifically concerned to c o n d e m n ( T T , 11.xix.222, pp. 430-2, n.xviii.209, P P - 4 2 2 - 3 , LT, p p . 48-9). A Letter Concerning Toleration thereby illuminates the t y p e o f p r o p e r t y that the Two Treatises is w r i t t e n to defend. It is n o t the private p r o p e r t y o f the bourgeoisie but the properties — the legal, political and religious rights — o f an oppressed m i n o r i t y w h o , in the course o f time, b e c a m e the b a c k b o n e o f English w o r k i n g - c l a s s radicalism and adopted L o c k e as their philosopher (Beer 1 9 2 1 , esp. p. 1 0 1 ; Ashcraft and G o l d s m i t h 1983). R e v o l u t i o n , p r o p e r t y , and toleration are all o f a piece for L o c k e . If the strategy o f religious u n i f o r m i t y is as L o c k e suggests, then w e should n o t e x p e c t religious elites to pay any heed to his a r g u m e n t s that it is the cause o f civil unrest. R a t h e r , w e should e x p e c t t h e m to defend their use o f political p o w e r , the h i n g e o n w h i c h their d o m i n a t i o n turns. T h i s w a s indeed the response. Jonas Proast, chaplain o f A l l Souls, O x f o r d , defended the use o f force to b r i n g Dissenters to consider the true religion in his three assaults o n A Letter Concerning Toleration and o n L o c k e ' s t w o f o l l o w i n g letters (Proast 1690, 1 6 9 1 , 1703; cf. L o n g 1689). In addition, An Essay Concerning Human Understanding (used as a text in Dissenter academies), as w e l l as The Reasonableness of Christianity, w e r e seen, 650

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Locke correctly, as threatening the established religious order, attacked b y A n g l i c a n s , and defended b y Dissenters ( Y o l t o n 1956, pp.26—72). T h e T o l e r a t i o n A c t o f 1689 s h o w s h o w far outside reasonable o p i n i o n w a s L o c k e ' s call for toleration o f a n y o n e w h o believed in any g o d and for the end o f c o e r c i o n in religion. T h e A c t denied f r e e d o m o f w o r s h i p to u n o r t h o d o x Dissenters (those w h o denied the T r i n i t y ) and R o m a n Catholics, and granted it, as a r e v o c a b l e e x e m p t i o n f r o m earlier legislation, to Protestant Trinitarian Dissenters w h o t o o k the oath o f allegiance and obtained a licence to meet, but denied t h e m access to public office. L o c k e w a s w e l l a w a r e that just s h o w i n g that the public g o o d is disrupted b y policies o f u n i f o r m i t y and is best served b y toleration w o u l d h a v e n o positive effect o n the ruling elite. A s in the Two Treatises, he repeats that the rulers w i l l s i m p l y claim that those w h o protest and dissent f r o m the p o l i c y w i l l be said to be the cause o f unrest, and their protestations used to justify further repression ( T T , II.XIX. 2 1 8 , p . 428, L T , pp. 52—5). His practical solution to the p r o b l e m is to argue in the same w a y as in the Two Treatises that individuals must exercise their popular s o v e r e i g n t y and j u d g e for themselves w h e t h e r any l a w c o n c e r n i n g religious practice is for the public g o o d . If the magistrate enjoins a n y t h i n g 'that appears u n l a w f u l to the C o n s c i e n c e o f the private i n d i v i d u a l ' and it is also j u d g e d to be 'directed to the p u b l i c k G o o d ' , then 'a private person is to abstain f r o m the A c t i o n that he j u d g e s u n l a w f u l [according to his conscience]; and he is to u n d e r g o the P u n i s h m e n t ' ( L T , p. 48). A person has the right to disobey a just l a w i f it conflicts w i t h his conscience, p r o v i d e d he recognises his political o b l i g a t i o n to the public g o o d b y suffering the punishment. T h e case L o c k e is, o f course, primarily concerned w i t h is w h e n the l a w appears not o n l y u n l a w f u l to the conscience but also contrary to the public g o o d ( L T , p. 48). W h a t i f the magistrate continues to believe it is for the public g o o d and the subjects believe the contrary? L o c k e answers w i t h the same r e v o l u t i o n a r y doctrine as in the Two Treatises: ' W h o shall be J u d g e b e t w e e n them? I answer, G o d alone. For there is n o j u d g e u p o n earth b e t w e e n the S u p r e m e Magistrate and the P e o p l e ' ( L T , p. 49). A n d he leaves n o d o u b t as to w h a t this means: ' T h e r e are t w o sorts o f Contests a m o n g m e n : the one m a n a g e d b y L a w , the other b y Force: and these are o f that nature, that w h e r e the one ends, the other a l w a y s begins.' T h e r e f o r e , as in the Two Treatises, people are justified in turning to r e v o l u t i o n w h e n they are stripped o f their properties and their religion and 'to defend their natural R i g h t s . . . w i t h A r m s as w e l l as they can' ( L T , p. 55). C i v i l wars w i l l continue as l o n g as the 'Principle o f Persecution for R e l i g i o n ' 651

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Natural law and utility continues to prevail. T h e attempt to i m p o s e u n i f o r m i t y b y c o e r c i o n is n o t o n l y the justification o f r e v o l t but also its cause. T h e reason is that oppression naturally causes people to struggle to cast off this ' Y o k e that galls their N e c k ' ( L T , p. 52). R e v o l u t i o n is thus necessary to establish and protect toleration. C h u r c h e s w o u l d then be required to preach toleration as the basis o f their freedom, to teach that ' L i b e r t y o f C o n s c i e n c e is e v e r y man's natural right', and that n o b o d y should be c o m p e l l e d b y l a w or force in religion ( L T , p. 5 1 ) . T h i s w o u l d u n d e r m i n e the link b e t w e e n religious and political p o w e r that legitimates religious d o m i n a t i o n and, hence, 'this one thing w o u l d take a w a y all g r o u n d o f C o m p l a i n t s and T u m u l t s u p o n account o f C o n s c i e n c e ' . U n l i k e a national church, w h i c h causes t u r m o i l , a plurality o f equally treated c o n g r e g a t i o n s w o u l d be, a c c o r d i n g to L o c k e , the best g u a r d and support o f public peace. K n o w i n g they can d o n o better than m u t u a l toleration, the churches ' w i l l w a t c h one another, that n o t h i n g m a y be i n n o v a t e d or c h a n g e d in the F o r m o f the G o v e r n m e n t ' ( L T , p. 53; cf. Kessler 1985). A g a i n , his point seems to be that the o n l y solid foundation for civil and religious liberties is the readiness to g o v e r n those w h o violate t h e m b y means o f popular political rebellion. P o p u l a r religious s o v e r e i g n ty, in concert w i t h popular political s o v e r e i g n t y , is the solution to the p r o b l e m o f oppression and w a r based o n religion.

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Conclusion

Sharp c h r o n o l o g i c a l lines can s e l d o m be confidently d r a w n across the p a g e o f any historical record — and n e v e r in the history o f ideas. Y e t a b o o k must end s o m e w h e r e , and it is desirable that the point at w h i c h it ends should be supported b y s o m e k i n d o f rationale. In the present case, that rationale cannot w e l l be derived f r o m the general history o f the period. T h e turn o f the century in 1700 w a s not, e v e n i f w e a l l o w for s o m e years' m a r g i n o n either side, distinguished b y any significant turning point in E u r o p e a n d e v e l o p m e n t . Y e t in intellectual history there is at least a certain sense, at that point or soon afterwards, o f a stage b e i n g cleared b y the demise o f leading characters. O f the major thinkers discussed a b o v e perhaps o n l y Leibniz (d. 1 7 1 6 ) s u r v i v e d m u c h b e y o n d the earliest years o f the n e w c e n t u r y . A n d b y coincidence the year 1704 w a s m a r k e d b y the deaths o f t w o figures w h o s e ideas encapsulate s o m e o f the m a i n contrasting and indeed conflicting tendencies in the political t h o u g h t o f e a r l y - m o d e r n Europe. 1

J o h n L o c k e and J a c q u e s - B e n i g n e Bossuet did not, it is true, m e e t in c o n t r o v e r s y as Filmer did, p o s t h u m o u s l y , w i t h L o c k e . Y e t there is, it can be said, an implicit dialectic in w h i c h the thesis a d v a n c e d b y Bossuet, particularly in his Politique tiree des propres paroles de VEcriture sainte, is m e t and challenged in L o c k e ' s Two Treatises of Government. W h e r e L o c k e sees an all but indissoluble link b e t w e e n p o w e r that is absolute and p o w e r that is arbitrary, and an almost inevitable degeneration f r o m that conjuncture into the t y r a n n y o f the ruler and the slavery o f his subjects, Bossuet rejects b o t h the equation and the deduction: for h i m the k i n g ' s absolute p o w e r , neither despotic n o r tyrannical, is 'sacred, paternal, and subject to reason'. 2

1. A n d even so the w o r k s o f Leibniz that are most relevant here w e r e largely written a decade or m o r e before his death. 2. N o t published until 1709, but written several decades earlier.

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Conclusion In this, plainly, Bossuet w a s a d o p t i n g a traditional and, for that v e r y reason, a b a c k w a r d - l o o k i n g approach to the p r o b l e m s o f political society. E v e n in the defence o f absolute p o w e r , m o r e original, less t i m e - w o r n concepts w e r e b y then b e i n g v i g o r o u s l y applied. Y e t it is i m p o r t a n t to bear in m i n d that the doctrine or i d e o l o g y o f ' d i v i n e right' kingship retained at least its formal place in the politics o f m o s t o f E u r o p e t h r o u g h o u t the eighteenth century and w a s n o t finally extinguished e v e n b y the r e v o l u t i o n a r y upheavals o f 1789 and after. It is o n l y subject to that n o t insubstantial p r o v i s o that w e m a y say (as w e m a y indeed and doubtless must) that the future o f E u r o p e a n political t h i n k i n g lay w i t h the n e w e r ideas that had e m e r g e d and a d v a n c e d t o w a r d s maturity in the period c o v e r e d b y this b o o k . M o r e especially in the last h u n d r e d years or so o f that period, the sense o f n o v e l t y , o f a m o r e or less radical break w i t h the received ideas o f a l o n g past, is inescapable. W e m a y think here o f the ' m o d e r n i s e d ' t h e o r y o f natural l a w d e v e l o p e d b y G r o t i u s and elaborated b y Pufendorf; o f b o t h the e m p i r i c i s m and the m a t h e m a t i cally inspired rationalism generated b y the n e w forms o f natural science; o f the materialism and mechanistic m o d e l s w e find in H o b b e s ; o f the connections H a r r i n g t o n suggests b e t w e e n p r o p e r t y and p o w e r and b e t w e e n b o t h and 'political personality' ( P o c o c k 1 9 7 5 , p . 386); o f the radical individualism s o m e w o u l d see c o m i n g to fulfilment in L o c k e after adumbrations in the Leveller tracts o f the Puritan R e v o l u t i o n . In all these, and in other phases o f seventeenth-century t h o u g h t , that sense o f i n n o v a t i o n , o f n e w departures, is insistently present. O n the other side o f the same coin w e see, or seem to see, a c o r r e s p o n d i n g pattern o f rejection. L o c k e ' s rejection o f traditional royalist i d e o l o g y is an o b v i o u s e x a m p l e . M o r e fundamentally, in the intellectual life o f the period, w e h a v e the various w a y s in w h i c h scholastic and Aristotelian ideas w e r e rejected. It is entirely appropriate that the v o l u m e should, already in its penultimate part, be c o n c e r n e d w i t h 'the end o f Aristotelianism', and n o t e w o r t h y that the sceptics and 'Tacitists' are j o i n e d there in the obsequies b y thinkers o f such radical originality as Grotius, H o b b e s , and Spinoza. H o b b e s ' c o n t e m p t for the s c h o o l m e n (p. 132 a b o v e ) is relevant again here, and perhaps especially his attack o n the folly o f those w h o use - that is, misuse — the 'counters' o f l a n g u a g e as m o n e y , v a l u i n g w o r d s ' b y the authority o f an Aristotle, a Cicero, or a Thomas, or any other D o c t o r w h a t s o e v e r , i f but a m a n ' ( H o b b e s 1 6 5 1 , p . 29). Y e t it m a y be as w e l l to recall also that i f the end had indeed n o w c o m e it had been l o n g in c o m i n g . T h e humanist c o n t e n t i o n w i t h scholasticism had b e g u n before the period 654

Conclusion o f this b o o k opened; and w e l l w i t h i n our first century the doctrines o f such a s c h o o l m a n as J o h n M a i r w e r e earning the c o n t e m p t o f adversaries as diverse as M e l a n c h t h o n and R a b e l a i s . W a s it, in any case, the end e v e n n o w ? W e r e the 'obsequies' premature? T o o m u c h need n o t be m a d e o f the fact that, as late as 1706, substantial texts in m e d i e v a l political t h o u g h t w e r e r e p r o d u c e d in the Ellies D u p i n edition o f the w o r k s o f Jean G e r s o n . For this there w e r e n o d o u b t political reasons connected w i t h the stubborn relevance o f ' G a l l i c a n i s m ' in the French church. M o r e i m p o r t a n t perhaps is the persistence - for e x a m p l e , in Leveller literature — o f w h a t has been called (p. 442 a b o v e ) 'second-hand scholastic p h i l o s o p h y ' . A g a i n , w h e n L o c k e himself, preparing his S e c o n d Treatise for publication, decided to bolster its arguments b y q u o t i n g at l e n g t h f r o m H o o k e r ' s Ecclesiastical Polity, he w a s a m o n g other things helping to preserve and transmit the ideas H o o k e r had in his turn b o r r o w e d f r o m T h o m a s A q u i n a s . Facts such as these, w h a t e v e r their intrinsic i m p o r t a n c e , m a y be valuable pointers t o w a r d s s o m e t h i n g m o r e significant. In the dialectic o f scholastic and anti-scholastic thinking there w a s perhaps a genuine m o m e n t o f synthesis and n o t m e r e l y a confrontation o f opposites. If P u f e n d o r f can be described as 'a G e r m a n Suarez' (p. 563 a b o v e ) ; i f L e i b n i z — h i m s e l f ' a great admirer o f S u a r e z ' - w a s concerned in part 'to rescue w h a t w a s valuable in . . . scholasticism' (p. 681 b e l o w ) : granted these points, there must be a sense in w h i c h scholastic thinking died to rise again. T h i s makes it n o t less but m o r e i m p o r t a n t to recognise that, insofar as synthesis t o o k place, it w a s n o m e r e a m a l g a m o f discordant elements. T h e ' m o d e r n t h e o r y o f natural l a w ' — for this is a b o v e all w h a t is at issue here — w a s m u c h m o r e than that and certainly m u c h m o r e than the tired restatement o f second-hand T h o m i s m it has sometimes been m a d e to appear (cf. T u c k , in P a g d e n 1987, esp. p p . 9 9 - 1 0 3 ) . G r o u n d e d in a sceptical rethinking o f the foundations o f m o r a l p h i l o s o p h y and jurisprudence, that doctrine b e c a m e 'in m a n y w a y s the m o s t i m p o r t a n t l a n g u a g e o f politics and ethics in E u r o p e ' (ibid., p. 119). T h e E u r o p e o f the E n l i g h t e n m e n t had that l a n g u a g e m a d e available most extensively t h r o u g h the w o r k o f Jean B a r b e y r a c and his translators, w h o ensured the diffusion o f the w r i t i n g s o f G r o t i u s and P u f e n d o r f in French and English as w e l l as in their original Latin. T o recall the i m p o r t a n c e o f that k i n d o f political science for thinkers 3

3. T r e n t m a n in K r e t z m a n n , K e n n y , and P i n b o r g 1982, p. 826. T h e w h o l e chapter, 'Scholasticism in the Seventeenth C e n t u r y ' , provides valuable b a c k g r o u n d to matters discussed here.

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Conclusion as diverse as R o u s s e a u and B l a c k s t o n e is one w a y o f appreciating the i m p a c t on eighteenth-century t h o u g h t o f s o m e o f the crucial ideas analysed in these pages. T o say that is not, o f course, to i m p l y that the E n l i g h t e n m e n t o f the eighteenth century w a s n o m o r e than a culture o f inheritance f r o m the past. A l r e a d y beneath the surface, as it w e r e , o f seventeenth-century intellectual life, still n e w e r departures w e r e b e g i n n i n g . Giambattista V i c o w a s thirtyt w o w h e n the century ended. M o n t e s q u i e u w a s then a b o y o f eleven; but his Lettres per sane s saw the light four years before V i c o ' s Scienza nuova, and his mature ideas w e r e , o f course, to h a v e far greater c o n t e m p o r a r y effect. B y the time De Vesprit des lois w a s published in 1748, yet another n e w dimension had been added b y the publication — ' d e a d - b o r n ' t h o u g h it m a y h a v e been — o f D a v i d H u m e ' s Treatise of Human Nature. ' N e w sciences' o f m a n and society w e r e n o d o u b t in the m a k i n g , and a n e w w o r l d w a s in m a n y w a y s to e m e r g e w h e n an age o f r e v o l u t i o n succeeded the age o f E n l i g h t e n m e n t . W h a t w a s n e w , h o w e v e r , still m a r c h e d alongside w h a t w a s old; and the old had lost neither its savour n o r its sting. W h e n , in 1801, The British, Critic said o f a recently published w o r k that 'the chief principle . . . is o f a dangerous t e n d e n c y ' and added, ' w e cannot consider this as a w e l l - t i m e d publication', the subject w a s n o t some n e w l y w r i t t e n piece o f Jacobin pamphleteering: it w a s R o b e r t Macfarlan's translation o f G e o r g e B u c h a n a n ' s De jure regni apud Scotos.

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Biographies

T h e s e n o t e s p r o v i d e o u t l i n e b i o g r a p h i e s for t h e p r i n c i p a l w r i t e r s discussed in this b o o k . T h e i r chief w o r k s are m e n t i o n e d e i t h e r in these n o t e s o r can b e f o u n d in t h e B i b l i o g r a p h y , w h e r e details o f e d i t i o n s are g i v e n . A t t h e e n d o f each e n t r y t h e r e is a g u i d e t o s e c o n d a r y l i t e r a t u r e , t o g e t h e r w i t h an i n d i c a t i o n o f t h e p a r t o f t h e b i b l i o g r a p h y in w h i c h t h e i t e m s are to be found. ALCIATO, ANDREA 1 4 9 2 - 1 5 5 0 . As a professor o f l a w at t h e U n i v e r s i t i e s o f A v i g n o n , P a v i a , B o l o g n a , Ferrara, a n d B o u r g e s , A l c i a t o c o m b i n e d t h e n e w h u m a n i s t l e a r n i n g a n d m e t h o d s associated w i t h t h e w o r k o f his friend E r a s m u s w i t h t h e o l d - f a s h i o n e d ('Bartolist') science o f l a w a n d d e f e n d e d t h e p a p a l as w e l l as t h e i m p e r i a l political t r a d i t i o n . Besides his f u n d a m e n t a l s t u d y o f t h e Alciato published D i g e s t title ' O n t h e M e a n i n g o f W o r d s ' (De Verborum significatione), v a r i o u s p h i l o l o g i c a l a n d historical essays o n t h e l a w , collected especially in his Parerga Praetermissa Paradoxa a n d Dispunctiones. His n e w h u m a n i s t style o f t e a c h i n g a n d w r i t i n g w a s later called t h e ' F r e n c h m e t h o d ' (mosgallicus iu is docendi) after his disciples at t h e U n i v e r s i t y of Bourges. SECONDARY LITERATURE

(part I): V i a r d 1 9 2 6 ; K e l l e y 1 9 7 0 a .

ALLEN, WILLIAM 1532—94. A d e v o u t C a t h o l i c , Allen left O x f o r d for L o u v a i n in 1 5 6 1 . O r d a i n e d priest at M e c h l i n , h e o p e n e d a s e m i n a r y at D o u a i in 1 5 6 8 t o train E n g l i s h exiles as m i s s i o n a r y priests t o r e c o n v e r t E n g l a n d . In 1 5 7 8 t h e s e m i n a r y m o v e d t o R e i m s , a n d A l l e n also h e l p e d t o establish a college at R o m e in 1 5 7 9 . In 1 5 8 4 h e r e s p o n d e d in p r i n t t o W i l l i a m Cecil's assertion t h a t E n g l i s h C a t h o l i c s w e r e n o t p e r s e c u t e d for t h e i r r e l i g i o n b u t for their secular d i s l o y a l t y . H e lived in R o m e in his last years, b e i n g m a d e a c a r d i n a l in 1 5 8 7 . A t this t i m e h e n o l o n g e r p r e a c h e d l o y a l t y t o Q u e e n E l i z a b e t h b u t e n c o u r a g e d r e b e l l i o n in s u p p o r t o f P h i l l i p II's A r m a d a . S E C O N D A R Y L I T E R A T U R E (part II): C l a n c y 1 9 6 4 ; K i n g d o n , in A l l e n 1 9 6 5 ; P r i t c h a r d 1 9 7 8 ; Holmes 1982. ALMAIN, JACQUES c. 1 4 8 0 — 1 5 1 5 . B o r n in t h e diocese o f Sens, s t u d i e d a n d t a u g h t in arts a n d t h e o l o g y at Paris, w h e r e h e w a s a p u p i l o f J o h n M a i r . S o o n after o b t a i n i n g his d o c t o r a t e in t h e o l o g y in 1 5 1 2 h e w a s c o m m i s s i o n e d b y t h e faculty t o r e p l y t o t h e anti-conciliarist v i e w s expressed b y T o m m a s o d e V i o (Cajetan) a n d d i r e c t e d against t h e claims o f t h e C o u n c i l o f Pisa—Milan ( 1 5 1 1 - 1 2 ) . T h i s p r o d u c e d A l m a i n ' s Libellus de auctoritate ecclesiae. His ecclesiology a n d

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Biographies political t h o u g h t w e r e f u r t h e r d e v e l o p e d in Expositio circa decisiones quaestionum M. Guillermi Ockham, super pote state summi pontificis\ b u t this, like m a n y o f A l m a i n ' s o t h e r w o r k s , w a s p u b l i s h e d o n l y after his p r e m a t u r e d e a t h . S E C O N D A R Y L I T E R A T U R E (part I): O a k l e y 1 9 6 4 - 5 ; La Brosse 1 9 6 5 ; O a k l e y 1 9 7 7 ; F a r g e 1 9 8 0 , p p . 1 5 - 1 9 ; Burns 1983a. ALTHUSIUS, JOHANNES 1 5 5 7 - 1 6 3 8 . B o r n in W e s t p h a l i a , s t u d i e d at C o l o g n e a n d Basle. H e t a u g h t l a w at t h e University of H e r b o r n , founded by C o u n t J o h n of Nassau, w h o s e counsellor Althusius b e c a m e . S u m m o n e d t o E m d e n , t h e c e n t r e o f n o r t h e r n C a l v i n i s m , in 1 6 0 4 , h e h a d art active digesta, a n d influential career as s y n d i c o f t h e city. His m a j o r w o r k , Política methodice a p p e a r e d in 1 6 0 3 , w i t h later m u c h e x p a n d e d e d i t i o n s in 1 6 1 0 a n d 1 6 1 4 . H i s Dicaelogicae libri tres ( 1 6 1 7 ) a t t e m p t e d t o establish a s y s t e m o f u n i v e r s a l j u r i s p r u d e n c e f r o m e l e m e n t s o f s c r i p t u r a l , R o m a n , a n d v a r i o u s c u s t o m a r y laws. S E C O N D A R Y L I T E R A T U R E (part II): F r i e d r i c h , in A l t h u s i u s 1 9 3 2 ; G i e r k e 1 9 2 9 , 1 9 6 6 ; M e s n a r d 1 9 5 2 ; S a l m o n 1 9 5 9 ; C a r n e y , in A l t h u s i u s 1 9 6 5 . A M M I R A T O , SCIPIONE 1 5 3 1 — 1 6 0 0 . B o r n in Lecce in s o u t h e r n Italy, A m m i r a t o spent m u c h o f his life (from 1 5 6 9 o n ) in M e d i c i service, w r i t i n g o n h i s t o r y a n d o t h e r subjects. His b e s t - k n o w n w o r k is t h e Discorsi sopra Cornelio Tácito ( 1 5 9 4 ) . SECONDARY LITERATURE

ANDREAE, JOHANN

(part I V ) : B e r n e r 1 9 7 0 ; C o c h r a n e 1 9 7 3 . VALENTIN

1586—1654. S o n o f a L u t h e r a n cleric, a n d g r a n d s o n o f an i m p o r t a n t L u t h e r a n t h e o l o g i a n , J a k o b A n d r e a e ( 1 5 2 8 - 9 0 ) . Like t h r e e o f his b r o t h e r s A n d r e a e b e c a m e a L u t h e r a n pastor. E d u c a t i o n at T u b i n g e n , h e r e t u r n e d t h e r e , after e x t e n s i v e travels, t o b e o r d a i n e d in 1 6 1 4 a n d t o t a k e u p a life o f pastoral activities a n d w r i t i n g . In t h e n e x t six years h e p r o d u c e d a l m o s t a n d a series o f social satires in t h e E r a s m i a n / L u c i a n i c t w e n t y w o r k s , i n c l u d i n g Christianopolis t r a d i t i o n . H e w a s interested in t h e idea o f a Societas C h r i s t i a n a d e d i c a t e d t o m o r a l a n d social r e f o r m . His pastoral a n d intellectual w o r k w a s severely d i s r u p t e d b y t h e T h i r t y Y e a r s W a r . S E C O N D A R Y L I T E R A T U R E (part II): H e l d , in A n d r e a e 1 9 1 6 ; M o n t g o m e r y 1 9 7 3 . ANDREWES, LANCELOT 1 5 5 5 — 1 6 2 6 . A n ecclesiastic a n d scholar, A n d r e w e s w a s e d u c a t e d at C a m b r i d g e , w h e r e his d i s t i n g u i s h e d a c a d e m i c career c u l m i n a t e d in his a p p o i n t m e n t as M a s t e r o f P e m b r o k e C o l l e g e . U n d e r J a m e s I, h e rose t o h i g h office in t h e c h u r c h , as b i s h o p first o f C h i c h e s t e r , o f Ely, a n d finally o f W i n c h e s t e r . In t h e o l o g y , A n d r e w e s inclined t o w a r d s i A r m i n i a n i s m , b u t his absolutist political ideas w e r e t y p i c a l o f h i g h l y placed J a c o b e a n clerics o f all t h e o l o g i c a l c o m p l e x i o n s . H i s political v i e w s are set o u t especially in Tortura Torti (1609) a n d Responsio ad apologiam Cardinalis Bellarmini ( 1 6 1 0 ) . S E C O N D A R Y L I T E R A T U R E (part III): R e i d y 1 9 5 5 . A N T O N I N U S ( A n t o n i n o Pierozzi), ST, O F F L O R E N C E 1 3 8 9 - 1 4 5 9 . B o r n in F l o r e n c e , h e e n t e r e d t h e D o m i n i c a n o r d e r a g e d sixteen at Fiesole. After n o v i t i a t e studies at C o r t o n a , h e c a m e r a p i d l y t o t h e fore as p r i o r o f a succession o f D o m i n i c a n h o u s e s , i n c l u d i n g t h e M i n e r v a in R o m e . In 1 4 3 6 h e f o u n d e d t h e c o n v e n t o f San M a r c o in F l o r e n c e ; a n d in 1 4 4 6 , h a v i n g t a k e n a m a j o r p a r t in t h e C o u n c i l o f F l o r e n c e , w a s n o m i n a t e d b y E u g e n i u s IV as a r c h i b i s h o p t h e r e . A n o u t s t a n d i n g diocesan b i s h o p a n d ecclesiastical s t a t e s m a n , A n t o n i n u s w a s also a n o t a b l e scholar. His p r i n c i p a l w o r k s w e r e t h e

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Biographies Summa Theologica (or Summa moralis), w r i t t e n b e t w e e n 1 4 4 0 a n d 1 4 5 9 ; a n d t h e Chronicon, an a c c o u n t o f w o r l d h i s t o r y for t h e p u r p o s e s o f m o r a l edification. S E C O N D A R Y L I T E R A T U R E (part I): M o r ç a y 1 9 1 4 ; G a u g h a n 1 9 3 1 ; W a l k e r 1 9 3 3 ; Dizionario Biogrâfico degli Italiani; Dictionnaire de Théologie Catholique; Dictionnaire d'Histoire et de Géographie Ecclésiastiques. A R N A U L D , A N T O I N E (the elder) 1 5 6 0 — 1 6 1 9 . E d u c a t e d at Paris a n d B o u r g e s , A r n a u l d , despite his C a l v i n i s m , succeeded his a n d a u d i t o r in t h e h o u s e h o l d o f C a t h e r i n e d e M é d i c i s . H e father as procureur-général c o n v e r t e d t o C a t h o l i c i s m , a n d w r o t e e l o q u e n t l y against t h e L e a g u e a n d its Spanish allies o n b e h a l f o f H e n r i I V . H e g a i n e d forensic f a m e as an avocat b e f o r e t h e parlement o f Paris. H e p e r s u a d e d t h e parlement t o d e c r e e t h e e x p u l s i o n o f t h e Jesuits in 1 5 9 4 , a n d p l e a d e d against t h e i r r e t u r n in 1 6 0 3 . A m e m b e r o f a family o f t h e r o b e , h e h e l d t h e h e r e d i t a r y office o f conseiller de la ville in Paris. His m a n y c h i l d r e n , i n c l u d i n g t h e y o u n g e r A n t o i n e A r n a u l d , w e r e t h e f o u n d e r s o f t h e Jansenist m o v e m e n t . S E C O N D A R Y L I T E R A T U R E (part II): S e d g w i c k 1 9 7 7 . ARNISAEUS, HENNING 1 5 7 6 / 9 — 1 6 3 6 . A p h y s i c i a n b y t r a i n i n g , h e w a s also an e r u d i t e Aristotelian w i t h a special interest in political t h e o r y . In 1 6 2 0 h e b e c a m e a political adviser t o K i n g C h r i s t i a n IV o f D e n m a r k as w e l l as his p e r s o n a l p h y s i c i a n . A theorist o f s o v e r e i g n t y in t h e B o d i n i a n style, h e a d v o c a t e d u n d i v i d e d a n d a b s o l u t e s o v e r e i g n t y in t h e ruler a n d rejected t h e r i g h t o f 1 6 1 1 ) . Y e t Arnisaeus w a s resistance (De auctoritate principum in populum semper inviolabili, a m o n g t h e first t o s h o w t h a t t h e m a i n r i g h t s o f s o v e r e i g n t y c o u l d b e separated. His t h r e e m a i n w o r k s o n politics — Doctrine politica ( 1 6 0 6 ) , De jure majestatis ( 1 6 1 0 ) , a n d De republica ( 1 6 1 5 ) — m o v e t o w a r d a r e m a r k a b l y s y s t e m a t i c a n d c o m p r e h e n s i v e treatise o n t h e p u b l i c law of sovereignty. SECONDARY LITERATURE

ARUMAEUS,

(part II): D r e i t z e l 1 9 7 0 .

DOMINICUS

1 5 7 9 — 1 6 7 3 . H e s p e n t his e n t i r e career as a teacher o f l a w at J e n a b e g i n n i n g in 1600. D e s p i t e occasional service t o t h e c o u r t at W e i m a r as an adviser a n d a m b a s s a d o r , h e w a s a b o v e all an a c a d e m i c , a n d e v e n died at a faculty m e e t i n g at t h e ripe age o f n i n e t y - f o u r . His m a i n c o n t r i b u t i o n w a s his p i o n e e r i n g effort t o establish p u b l i c l a w as an i n d e p e n d e n t a c a d e m i c discipline t h r o u g h a p r o g r a m m e o f d i s p u t a t i o n at J e n a in w h i c h a h i g h l y influential c o r p u s o f scholars w a s f o r m e d . A n d p a p e r s d e l i v e r e d t h e r e - t o g e t h e r w i t h o t h e r w r i t i n g s o f his o w n , his colleagues, a n d his s t u d e n t s - w e r e p u t b e f o r e t h e p u b l i c in t w o i m p o r t a n t collections: t h e Discursus academici de jure publico (6 vols., 1 6 1 5 - 2 3 ) a n d t h e Discursus academici ad Auream Bullam ( 1 6 1 7 ) . A T W O O D , WILLIAM c. 1 6 6 1 - c . 1 7 0 5 . P e t y t ' s friend a n d disciple, this little-studied W h i g barrister a n d p a m p h l e t e e r a d v o c a t e d s h a r e d p a r l i a m e n t a r y s o v e r e i g n t y in his Jani Anglorum Fades Nova ( 1 6 8 0 ) , Jus Anglorum ab Antiquo ( 1 6 8 1 ) , a n d Fundamental Constitution of the English Government ( 1 6 9 0 ) . T a k i n g issue w i t h L o c k e , A t w o o d a r g u e d t h a t g o v e r n m e n t d e v o l v e d in 1689 o n t h e C o n v e n t i o n P a r l i a m e n t b u t n o t o n t h e c o m m u n i t y . In this h e w a s r e p r e s e n t a t i v e o f t h e W h i g l e a d e r s h i p in p a r l i a m e n t . In a response s u b s e q u e n t l y t o W i l l i a m M o l y n e u x , A t w o o d asserted t h e E n g l i s h p a r l i a m e n t ' s s o v e r e i g n t y o v e r Ireland. In 1 7 0 1 h e b e c a m e chief justice of N e w Y o r k , but, quarrelling w i t h the royal g o v e r n o r , he returned to England, w h e r e his p a m p h l e t e e r i n g e n d e d o n l y w i t h his d e a t h . S E C O N D A R Y L I T E R A T U R E (part III): P o c o c k 1 9 5 7 ; F r a n k l i n 1 9 7 8 ; Ashcraft 1 9 8 6 .

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Biographies BACON, FRANCIS 1 5 6 1 — 1 6 2 6 . S o n o f Sir N i c h o l a s B a c o n a n d n e p h e w o f L o r d B u r g h l e y , B a c o n w a s e d u c a t e d at T r i n i t y C o l l e g e , C a m b r i d g e , a n d G r a y ' s I n n . His political career u n d e r Elizabeth I w a s frustrated b y r i v a l r y w i t h t h e Cecils a n d a finally a b a n d o n e d b u t d a n g e r o u s alliance w i t h Essex. U n d e r J a m e s I h e rose t o b e l o r d c h a n c e l l o r o n l y t o b e i m p e a c h e d in 1 6 2 1 . His w r i t i n g s r e p r e s e n t a brilliant flourishing o f R a m i s t a n t i - A r i s t o t e l i a n i s m in n a t u r a l p h i l o s o p h y , a n d o f M a c h i a v e l l i a n i s m t e m p e r e d b y royalist pessimism a n d A n g l i c a n Instauration, s y m p a t h y . His vision o f t h e a d v a n c e m e n t o f n a t u r a l p h i l o s o p h y , t h e Great exercised g r e a t influence o n m i d - s e v e n t e e n t h - c e n t u r y scientific, e d u c a t i o n a l , a n d social reformers. S E C O N D A R Y LITERATURE

BANCROFT,

(part II): R o s s i 1 9 6 8 ; V i c k e r s 1 9 6 8 ; W e b s t e r 1 9 7 5 .

RICHARD

1 5 4 4 — 1 6 1 0 . A n ecclesiastical c o m m i s s i o n e r a n d c a n o n o f W e s t m i n s t e r , B a n c r o f t d e f e n d e d e p i s c o p a c y b y d i v i n e r i g h t against t h e M a r p r e l a t e tracts. A n i n v e t e r a t e critic o f P r e s b y t e r i a n i s m , h e b e c a m e chaplain t o A r c h b i s h o p W h i t g i f t in 1 5 9 2 , a n d p u b l i s h e d Dangerous Positions a n d Survey of the Pretended Holy Discipline, c o n d e m n i n g resistance t h e o r y , in t h e f o l l o w i n g year. B i s h o p o f L o n d o n in 1 5 9 7 , h e e n c o u r a g e d loyalist C a t h o l i c secular priests in t h e i r c o n t r o v e r s y w i t h t h e Jesuits. In 1604 J a m e s I a p p o i n t e d h i m a r c h b i s h o p o f C a n t e r b u r y . H e d e f e n d e d t h e ecclesiastical c o u r t s against c o m m o n l a w claims of jurisdiction. SECONDARY LITERATURE

(part II): C r o s s 1 9 6 9 ; C o l l i n s o n 1 9 8 2 .

BARCLAY, WILLIAM c. 1 5 4 6 - 1 6 0 8 . E d u c a t e d first at A b e r d e e n , B a r c l a y m o v e d t o F r a n c e in 1 5 7 1 , a n d studied a n d t a u g h t R o m a n l a w at B o u r g e s . H e t h e n b e c a m e professor o f civil l a w at t h e U n i v e r s i t y o f P o n t - a - M o u s s o n in L o r r a i n e . T h e r e h e w a s i n v o l v e d in a s t r u g g l e for c o n t r o l o f t h e u n i v e r s i t y b e t w e e n t h e faculties o f l a w a n d h u m a n i t i e s , t h e latter b e i n g d o m i n a t e d b y t h e Jesuits. B a r c l a y w a s a v i g o r o u s d e f e n d e r o f a b s o l u t e m o n a r c h y . His b e s t - k n o w n b o o k , De regno (1600), w a s an attack u p o n b o t h C a t h o l i c a n d P r o t e s t a n t theorists o f resistance. H e w a s offered posts a n d p e n s i o n s b y J a m e s I o n c o n d i t i o n h e b e c a m e an A n g l i c a n , b u t refused. H e died at A n g e r s w h e r e h e h a d b e c o m e d e a n o f t h e l a w faculty. H e also w r o t e against t h e temporal p o w e r of the papacy. (part II): C a r l y l e 1 9 3 6 ; Allen 1 9 4 1 ; C o l l o t 1 9 6 5 .

SECONDARY

LITERATURE

BARON,

EGUINAIRE

1 4 9 5 - 1 5 5 0 . A m o n g A l c i a t o ' s first s t u d e n t s at t h e U n i v e r s i t y o f B o u r g e s , B a r o n w e n t o n t o teach in t h e l a w faculty t h e r e u n t i l his d e a t h . Besides a defence o f t h e n e w ' m e t h o d ' o f A l c i a t o , w h i c h i n c l u d e d t h e s t u d y o f h i s t o r y a n d p h i l o l o g y as w e l l as p h i l o s o p h y , B a r o n p u b l i s h e d several ' b i p a r t i t e ' c o m m e n t a r i e s o n t h e D i g e s t a n d Institutes o f R o m a n l a w , d r a w i n g e x t e n s i v e , often i n v i d i o u s , c o m p a r i s o n s w i t h c o r r e s p o n d i n g F r e n c h legal, social, a n d political i n s t i t u t i o n s . H e w a s a p i o n e e r in t h e n e w field o f c o m p a r a t i v e l a w a n d t h e s t u d y o f t h e m o d e r n ' l a w o f n a t i o n s ' (jus gentium), a n t i c i p a t i n g in s o m e w a y s t h e w o r k o f B o d i n a n d t h e s e v e n t e e n t h - c e n t u r y school o f n a t u r a l l a w . S E C O N D A R Y L I T E R A T U R E (part I): Kelley 1 9 8 1 b . BAXTER, RICHARD 1 6 1 5 - 9 1 . T h e m o s t influential a n d m o s t prolific o f t h e P r e s b y t e r i a n t h e o l o g i a n s o f t h e English C i v i l W a r a n d R e s t o r a t i o n . His a u t o b i o g r a p h y a n d d e v o t i o n a l w o r k s are classics o f English P u r i t a n l i t e r a t u r e . H e w a s a chaplain in t h e p a r l i a m e n t a r m y a n d later suffered for his

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Biographies n o n c o n f o r m i t y . His intellectual o u t l o o k w a s a t r a d i t i o n a l English R e f o r m e d m i x t u r e o f C a l v i n i s m a n d A r i s t o t e l i a n i s m , so t h a t , a l t h o u g h hostile t o C a v a l i e r s a n d A n g l i c a n s , h e s h a r e d m a n y o f t h e i r a s s u m p t i o n s in t h e c o n t r o v e r s y w i t h H o b b e s . His m o s t sustained ( 1 6 5 9 ) ; its a r g u m e n t s w e r e c o n s i d e r a b l y d e r i v e d political w o r k is A Holy Commonwealth f r o m his friend G e o r g e L a w s o n . S E C O N D A R Y L I T E R A T U R E (part V ) : L a m o n t 1 9 7 9 . BAYLE, P I E R R E 1647—1706. A c a n o n i c a l f o u n d e r figure o f t h e E n l i g h t e n m e n t . W h e n Louis X I V ' s d r i v e against t h e H u g u e n o t s intensified, B a y l e fled t o H o l l a n d in 1 6 8 1 . W h i l s t s o m e H u g u e n o t s c o n t i n u e d t o u p h o l d t r a d i t i o n a l C a l v i n i s t t h e o l o g i c a l a n d ecclesiological d o g m a s ( f o l l o w i n g P i e r r e J u r i e u ) , B a y l e a d o p t e d a sceptical, anti-clerical, a n d t o l e r a t i o n i s t a p p r o a c h . His j o u r n a l s b e c a m e a clearing h o u s e for t h e E u r o p e a n R e p u b l i c o f Letters. H i s Historical and Critical Dictionary (1696) is his p r i n c i p a l m o n u m e n t , its ideas expressed in t h e f o r m o f e n c y c l o p a e d i a articles. SECONDARY LITERATURE

BECAN,

(part V ) : L a b r o u s s e 1 9 8 3 .

MARTIN

1550—1624. A Jesuit, b o r n in B r a b a n t ; in later life t a u g h t t h e o l o g y in M a i n z , W u r z b u r g , a n d V i e n n a . H e w a s confessor t o t h e e m p e r o r F e r d i n a n d II. H e p u b l i s h e d several w o r k s against J a m e s I a n d his s u p p o r t e r s in t h e o a t h o f allegiance c o n t r o v e r s y . So e x t r e m e w a s his v i e w o f p a p a l a u t h o r i t y t h a t P a u l V w a s o b l i g e d t o c e n s u r e his Controversia Anglicana in 1 6 1 3 . S E C O N D A R Y L I T E R A T U R E (part II): M c l l w a i n 1 9 1 8 . B E L L A R M I N E (ST), R O B E R T 1 5 4 2 — 1 6 2 1 . E n t e r e d t h e Jesuit o r d e r at e i g h t e e n , a n d in t h e 1 5 7 0 s t a u g h t t h e o l o g y at L o u v a i n . F r o m 1 5 7 6 h e t a u g h t at t h e college in R o m e f o u n d e d b y G r e g o r y X I I I . Sixtus V sent h i m t o F r a n c e in 1 5 9 0 w i t h t h e legate C a r d i n a l G a e t a n o . C l e m e n t VIII m a d e h i m a cardinal in 1 5 9 8 , a n d P a u l V a p p o i n t e d h i m k e e p e r o f t h e V a t i c a n l i b r a r y in 1 6 0 5 . H e t o o k p a r t in m a n y c o n t r o v e r s i e s as t h e i n d e f a t i g a b l e c h a m p i o n o f p a p a l a u t h o r i t y (De potestate summi pontificis, 1 6 1 0 ) . H e p l a y e d a m a j o r p a r t in t h e c o n t r o v e r s y o v e r J a m e s I's o a t h o f allegiance. SECONDARY LITERATURE

(part II): B r o d r i c k 1 9 6 1 .

BELLERS, J O H N 1 6 5 4 — 1 7 2 5 . S o n o f a p r o s p e r o u s L o n d o n m e r c h a n t a n d p r o m i n e n t Q u a k e r , Bellers b e c a m e an i m p o r t a n t Q u a k e r o r g a n i s e r a n d p h i l a n t h r o p i s t . H e m a r r i e d i n t o t h e G l o u c e s t e r s h i r e g e n t r y a n d c o m b i n e d t h e life o f a c o u n t r y g e n t l e m a n w i t h religious activities, scientific interests (he b e c a m e F R S in 1 7 1 8 ) a n d t h e p r o m o t i o n o f s c h e m e s for social i m p r o v e m e n t , religious t o l e r a t i o n , a n d E u r o p e a n peace. H i s b e s t - k n o w n tract is t h e Proposals for Raising a College of Industry ( 1 6 9 5 ) . SECONDARY LITERATURE

(part II): F r y 1 9 5 3 ; B e r n s t e i n 1 9 6 3 ; D a v i s 1 9 8 1 a ; C l a r k e , in Bellers

1987. BELLOY, PIERRE DE 1 5 4 0 - 1 6 1 3 . B e l l o y s t u d i e d l a w in T o u l o u s e a n d p l e a d e d b e f o r e t h e parlement t h e r e as an avocat. H e w a s a p p o i n t e d a j u d g e in t h e T o u l o u s e presidial. A d e d i c a t e d royalist, h e d e f e n d e d t h e c l a i m o f C a t h e r i n e d e M e d i c i s t o t h e P o r t u g u e s e c r o w n in 1 5 8 2 . F r o m 1 5 8 5 h e p u b l i s h e d several o u t s p o k e n attacks u p o n t h e C a t h o l i c L e a g u e . H e w a s arrested b y t h e L e a g u e in Paris d u r i n g t h e b a r r i c a d e s o f M a y 1 5 8 8 , a n d w a s h e l d for a y e a r b e f o r e e s c a p i n g . H e n r i IV

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Biographies a p p o i n t e d h i m avocat-général in t h e T o u l o u s e parlement in 1 5 9 3 , b u t h e c o u l d n o t r e t u r n t o t h e city u n t i l t h e L e a g u e s u r r e n d e r e d t h e r e in 1 5 9 6 . S E C O N D A R Y L I T E R A T U R E (part II): W e i l l 18.91; A l l e n 1 9 4 1 . B E R N A R D I N O O F SIENA, ST 1 3 8 0 - 1 4 4 4 . B o r n at Massa M a r i t t i m a in T u s c a n y o f a d i s t i n g u i s h e d Siennese family, t h e Albizeschi, h e b e c a m e a Franciscan in 1 4 0 2 at Siena. O r d a i n e d priest in 1 4 0 4 , h e b e g a n a l o n g a n d influential career as a p r e a c h e r t h r o u g h o u t Italy. In 1 4 3 0 h e b e c a m e v i c a r - g e n e r a l o f t h e Franciscans o f t h e Strict O b s e r v a n c e , w h o s e effectual s e c o n d f o u n d e r h e b e c a m e : n u m b e r s g r e w m o r e t h a n t e n f o l d b y t h e t i m e o f his d e a t h . D e s p i t e earlier O b s e r v a n t hostility t o l e a r n i n g , B e r n a r d i n o insisted o n t h e s t u d y o f t h e o l o g y a n d c a n o n l a w as p a r t o f t h e friars' t r a i n i n g . H i s o w n l e a r n i n g is d e m o n s t r a t e d b y his h a v i n g addressed t h e G r e e k p a r t i c i p a n t s in t h e C o u n c i l o f F l o r e n c e in t h e i r o w n l a n g u a g e . S E C O N D A R Y L I T E R A T U R E (part I): Ferrers H o w e l l 1 9 1 3 ; O p p e l t 1 9 7 7 ; Analecta Bollandiana, 7 1 (1953): 282-322. BESOLD, C H R I S T O P H 1 5 7 7 — 1 6 3 8 . A j u r i s t w h o t a u g h t at T u b i n g e n a n d I n g o l s t a d t . After c o n v e r t i n g t o C a t h o l i c i s m in 163 5, h e w a s i n v i t e d t o B o l o g n a b y t h e p o p e a n d t o V i e n n a b y t h e e m p e r o r . His e r u d i t i o n w a s f o r m i d a b l e in d e p t h a n d r a n g e a n d e x t e n d e d n o t o n l y t o p u b l i c l a w b u t t o h i s t o r y , c o m p a r a t i v e g o v e r n m e n t , r e l i g i o n , a n d p h i l o l o g y . H e w a s a lifelong friend o f J o h a n n e s K e p l e r . In a d d i t i o n t o i m p o r t a n t studies o f t h e r i g h t s o f s o v e r e i g n t y a n d o f t h e m i x e d c o n s t i t u t i o n , B e s o l d p r o v i d e d a h i g h l y influential t h e o r y o f federalism t o a c c o u n t for t h e s t r u c t u r e o f t h e G e r m a n E m p i r e . M o s t o f his w o r k in political science is in t h e f o r m o f collected m o n o g r a p h s . A c o n v e n i e n t b r i e f i n t r o d u c t i o n t o this political t h o u g h t is his Synopsis doctrinae politicae ( 1 6 2 3 ) . S E C O N D A R Y L I T E R A T U R E : Neue

Deutsche

Biographie.

BEZA, T H E O D O R E 1 5 1 9 — 1 6 0 5 . After s t u d y i n g l a w at O r l e a n s , h e w e n t t o Paris a n d g a i n e d a r e p u t a t i o n as a Latin p o e t . A serious illness in 1 5 4 8 led t o his c o n v e r s i o n t o P r o t e s t a n t i s m , a n d h e w e n t t o G e n e v a t o j o i n C a l v i n . H e b e c a m e a professor o f G r e e k at L a u s a n n e a n d s p e n t several years t r a v e l l i n g t h r o u g h E u r o p e t o p r o m o t e t h e P r o t e s t a n t cause. In 1 5 5 9 h e b e c a m e t h e first r e c t o r a n d professor o f t h e o l o g y at t h e n e w a c a d e m y in G e n e v a . H e b e c a m e t h e leader o f t h e G e n e v a n c h u r c h after C a l v i n ' s d e a t h in 1 5 6 4 a n d thereafter d i r e c t e d t h e spread o f t h e R e f o r m e d c h u r c h . O f his m a n y p u b l i c a t i o n s , t h e o n e w h i c h deals m o s t fully w i t h politics is his Du droit des magistrats, first p u b l i s h e d in 1 5 7 4 . S E C O N D A R Y L I T E R A T U R E (part II): D e n n e r t 1 9 6 8 ; K i n g d o n 1 9 8 8 . BIEL, G A B R I E L c. 1 4 1 0 - 9 5 . B o r n at S p e y e r , s t u d i e d at H e i d e l b e r g , Erfurt a n d , C o l o g n e . As a m e m b e r o f t h e Obedientiae Apostolicae in 1 4 6 2 o n t h e c a t h e d r a l c l e r g y at M a i n z h e w r o t e his Defensorium p a p a l side in t h e conflict o v e r t h e a r c h i é p i s c o p a l succession t h e r e . In t h e late 1470s h e p r e s i d e d o v e r t h e B r e t h r e n o f t h e C o m m o n Life at U r a c h . In 1 4 8 4 , despite his a d v a n c e d a g e , h e b e c a m e professor o f t h e o l o g y (in t h e via moderna) at T u b i n g e n , w h e r e h e t a u g h t for seven years. H e d i e d in r e t i r e m e n t w i t h t h e B r e t h r e n o f t h e C o m m o n Life at Einsiedel. H i s m a j o r in quattuor libros Sententiarum. w o r k s are t h e Canonis Missae Expositio a n d t h e Collectorium S E C O N D A R Y L I T E R A T U R E (part I): H e r m e l i n k 1906; O t t 1 9 5 2 ; O b e r m a n 1 9 6 7 a ; Picascia 1 9 7 9 ; Dictionnaire de Théologie Catholique; Dictionnaire d'Histoire et de Géographie Ecclésiastiques; Lexikon fur Théologie und Kirche.

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Biographies BILSON, 1547-1616. warden of transferred o f J a m e s I.

THOMAS A s t r o n g d e f e n d e r o f e p i s c o p a c y , an critic o f resistance t h e o r y . Bilson w a s W i n c h e s t e r C o l l e g e . H e b e c a m e b i s h o p o f W o r c e s t e r in 1 5 9 6 , a n d w a s t o W i n c h e s t e r in t h e f o l l o w i n g y e a r . H e d e l i v e r e d t h e s e r m o n at t h e c o r o n a t i o n

SECONDARY LITERATURE

(part II): CrOSS I969; C o l l i n s o n I 9 8 2 .

BLACKWOOD, ADAM 1539—1613. A S c o t s m a n , e d u c a t e d in h u m a n i t i e s at Paris a n d l a w at T o u l o u s e . A s t r o n g d e f e n d e r o f m o n a r c h i c a l a b s o l u t i s m , B l a c k w o o d p u b l i s h e d t h e first parts o f D e conjunctione religionis et imperii in 1 5 7 5 , m a i n t a i n i n g a c o m p l e m e n t a r i t y b e t w e e n t e m p o r a l a n d spiritual p o w e r s . His Pro regibus apologia o f 1 5 8 1 w a s an attack u p o n C a l v i n i s t resistance t h e o r y in g e n e r a l , a n d G e o r g e B u c h a n a n in p a r t i c u l a r . His defence o f M a r y Q u e e n o f Scots after h e r e x e c u t i o n in 1 5 8 7 w a s w i d e l y k n o w n . H e h e l d office as a j u d g e at Poitiers. S E C O N D A R Y L I T E R A T U R E (part II): W e i l l 1 8 9 1 ; Allen 1 9 4 1 . BOCCALINI, T R A I A N O c. 1556—1613.- F r o m L o r e t o in t h e P a p a l States, w h e r e , after a t r a i n i n g in l a w at t h e U n i v e r s i t i e s o f P e r u g i a a n d P a d u a , h e h e l d l o w - r a n k i n g a d m i n i s t r a t i v e posts. H e died at V e n i c e (but t h e s t o r y o f his m u r d e r has b e e n s h o w n t o b e w i t h o u t f o u n d a t i o n ) . His Ragguagli da Parnasso (satirical ' N e w s f r o m Parnassus') w e r e p u b l i s h e d in 1 6 1 2 — 1 3 ; his Pietro del Paragone Politico (a m o r e o u t s p o k e n c o n t i n u a t i o n o f t h e Ragguagli), p o s t h u m o u s l y , in 1 6 1 5 ; a n d t h e Osservationi sopra Cornelio Tacito, o n l y in 1 6 7 8 , in a v o l u m e e n t i t l e d Bilancia Politica. SECONDARY LITERATURE

(part I V ) : M e i n e c k e 1 9 5 7 ; Varese 1 9 5 8 .

BODIN, JEAN 1529/30—96. B o r n at A n g e r s , s t u d i e d civil l a w at T o u l o u s e , w h e r e h e also t a u g h t . Practised historiarum as an avocat in Paris in t h e 1560s, w h e n h e also w r o t e his Methodus ad facilem cognitionem ( 1 5 6 6 ) a n d his Response à M. de Malestroit ( 1 5 6 8 ) o n price-inflation. H e j o i n e d t h e d u k e o f A l e n ç o n ' s h o u s e h o l d in 1 5 7 1 a n d t o o k p a r t in t h e 1 5 7 6 m e e t i n g o f t h e Estates at Blois. T h e s a m e y e a r s a w t h e p u b l i c a t i o n o f his Les Six Livres de la République, of which a Latin v e r s i o n a p p e a r e d t e n years later. H e b e c a m e procureur du roi for L a o n in 1 5 8 7 a n d Colloquium c o l l a b o r a t e d w i t h t h e C a t h o l i c L e a g u e . His c o n t r o v e r s i a l (and p o s t h u m o u s ) Heptaplomeres a r g u e d for religious t o l e r a t i o n a n d i n d i c a t e d t h a t his o w n religious belief h a d a Judaised character. S E C O N D A R Y L I T E R A T U R E (part II): M e s n a r d 1 9 5 2 ; M c R a e , in B o d i n 1 9 6 2 ; F r a n k l i n 1 9 6 3 , 1973; Denzer 1 9 7 3 ; Skinner 1978; R o s e 1980. BOSSUET, JACQUES-BENIGNE 1 6 2 7 - 1 7 0 4 . A C a t h o l i c controversialist a n d o r a t o r , B o s s u e t w a s b o r n at D i j o n , a n d e d u c a t e d at t h e Jesuit college t h e r e , a n d t h e n at Paris. H e w a s o r d a i n e d priest a n d t o o k a d o c t o r a t e o f d i v i n i t y in 1 6 5 2 . In 1 6 6 9 h e w a s d e s i g n a t e d b i s h o p o f C o n d o m , b u t r e s i g n e d o n b e c o m i n g t u t o r t o t h e D a u p h i n in 1 6 7 0 . In 1 6 8 1 h e w a s a p p o i n t e d b i s h o p o f M e a u x . H e w a s r e n o w n e d for t h e e l o q u e n c e o f his funeral o r a t i o n s . H i s o u t l o o k w a s typical o f t h e Gallican b r a n d o f C a t h o l i c o r t h o d o x y , v i e w i n g m o n a r c h i c a l a b s o l u t i s m as a b u l w a r k against papalist (1681) - a p r e t e n s i o n s . B o s s u e t ' s w r i t i n g s i n c l u d e t h e Discours sur Vhistoire universelle p r o v i d e n t i a l i s t a c c o u n t o f h i s t o r y — a n d his m a i n political w o r k , t h e Politique tirée des propres paroles de l'Ecriture sainte, w r i t t e n in t w o stages a n d finally p u b l i s h e d p o s t h u m o u s l y in 1 7 0 9 . S E C O N D A R Y L I T E R A T U R E (part III): M a r t i m o r t 1 9 5 3 ; C a l vet 1 9 6 8 .

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Biographies BOTERO, GIOVANNI 1 5 4 4 - 1 6 1 7 . F r o m B e n e in P i e d m o n t , B o t e r o j o i n e d t h e j e s u i t s a n d t a u g h t in Jesuit colleges in Italy a n d F r a n c e , b u t w a s recalled f r o m Paris because o f his political activities d u r i n g t h e religious w a r s . H e b e c a m e secretary t o C a r l o B o r r o m e o , a r c h b i s h o p o f M i l a n a n d adviser Universali, a g e o p o l i t i c a l w o r l d s u r v e y (published in t o his n e p h e w F e d e r i c o ; his Relazioni 1 5 9 1 ) , o r i g i n a t e d as a collection o f i n f o r m a t i o n o n t h e e n v i r o n m e n t o f C a t h o l i c missions. F r o m 1 5 9 9 t o 1 6 1 0 h e w a s in t h e service o f t h e d u k e o f S a v o y . His b e s t - k n o w n w o r k is t h e Ragione di Stato ( 1 5 8 9 ) , t h e first o f a l o n g line o f b o o k s discussing 'reason o f state'. His delle citta (1588) also deserves an i m p o r t a n t place in analysis o f u r b a n g r o w t h , t h e Grandezza intellectual h i s t o r y . SECONDARY LITERATURE

(part I V ) : M e i n e c k e 1 9 5 7 ; C h a b o d 1 9 6 7 .

BOUCHER, JEAN 1 5 4 8 - 1 6 4 4 . A m e m b e r o f a p r o m i n e n t Parisian b o u r g e o i s family, B o u c h e r t a u g h t at R e i m s for s o m e years b e f o r e j o i n i n g t h e S o r b o n n e in 1 5 7 6 . H e served as p r i o r , t h e n r e c t o r o f t h e u n i v e r s i t y , t a k i n g his d o c t o r a t e in t h e o l o g y in 1 5 8 3 . A p p o i n t e d c u r e o f S a i n t - B e n o i t , h e b e c a m e a fervent m e m b e r o f t h e C a t h o l i c L e a g u e , p r e a c h i n g s e r m o n s a n d w r i t i n g satires a n d treatises against H e n r i III a n d his f a v o u r i t e , t h e d u e d ' E p e r n o n . H e w a s a leader o f t h e r e v o l u t i o n a r y radical g r o u p , t h e Sixteen, a n d called for t h e assassination o f H e n r i III a n d H e n r i IV (De iusta Henrici Tertii abdicatione, 1 5 8 9 ) . H e fled t o t h e N e t h e r l a n d s w h e n H e n r i IV r e c o v e r e d Paris in 1 5 9 4 , a n d lived at T o u r n a i u n t i l his d e a t h . S E C O N D A R Y L I T E R A T U R E (part II): B a u m g a r t n e r 1 9 7 5 ; S a l m o n 1 9 8 7 . BRACCIOLINI, POGGIO 1380—1459. B o r n at T e r r a n u o v a n e a r M o n t e p u l c i a n o , P o g g i o b e c a m e a m e m b e r o f t h e h u m a n i s t i c circle a r o u n d C o l u c c i o Salutati in F l o r e n c e . W o r k i n g w i t h N i c c o l o N i c c o l i , h e t o o k p a r t in t h e d i s c o v e r y o f m a n y l i t t l e - k n o w n Latin classical texts, especially d u r i n g his t i m e at t h e C o u n c i l o f C o n s t a n c e ( 1 4 1 4 - 1 8 ) . H e served in t h e p a p a l curia for m u c h o f his career, a n d in 1453—8 w a s c h a n c e l l o r o f F l o r e n c e . In this p e r i o d h e w r o t e a h i s t o r y o f F l o r e n c e f r o m t h e m i d - f o u r t e e n t h c e n t u r y t o t h e Peace o f L o d i . P o g g i o e n g a g e d in f a m o u s c o n t r o v e r s i e s w i t h o t h e r h u m a n i s t s , n o t a b l y G u a r i n o o f V e r o n a a n d L o r e n z o Valla. His political a n d social w r i t i n g s , n o t a b l y t h e d i a l o g u e . On Avarice are m o r e r e m a r k a b l e for v i v i d satire t h a n for s t r o n g p o s i t i o n s . S E C O N D A R Y LITERATURE

BRADY,

(part I): W a l s e r 1 9 1 4 ; K o h l a n d W i t t 1 9 7 8 , p p . 2 3 1 - 9 .

ROBERT

1 6 2 7 - 1 7 0 0 . E d u c a t e d at C a m b r i d g e in arts a n d m e d i c i n e , m a s t e r o f G o n v i l l e a n d C a i u s C o l l e g e f r o m 1 6 6 0 u n t i l his d e a t h , h a v i n g g o n e i n t o exile after t h e p a r l i a m e n t a r y v i c t o r y in t h e C i v i l W a r . H e served C h a r l e s II a n d J a m e s II as physician a n d t o o k t o historical scholarship late in life, e n t e r i n g t h e c o n t r o v e r s y o v e r t h e h i s t o r y o f English i n s t i t u t i o n s in 1 6 8 1 . In his m a j o r w o r k s , Introduction to the Old English History (1684) a n d A Complete History of England (1685—1700), B r a d y emphasises t h e i m p o r t a n c e o f t h e N o r m a n c o n q u e s t a n d a r g u e d for s t r o n g m o n a r c h i c a l p o w e r . S E C O N D A R Y L I T E R A T U R E (part III): P o c o c k 1 9 5 1 , 1 9 5 7 ; W e s t o n 1 9 7 2 ; W e s t o n a n d G r e e n b e r g 1981. BRAMHALL, JOHN 1 5 9 4 - 1 6 6 3 . T h e e p i t o m e o f C a v a l i e r A n g l i c a n c h u r c h m a n s h i p , h e b e c a m e a b i s h o p in Ireland in 1 6 3 4 a n d w a s an e n e r g e t i c e x e c u t o r o f A r c h b i s h o p L a u d ' s a n d C h a r l e s I's policies. H e w a s j a i l e d in 1 6 4 1 , a n d later fled t o Paris. H e r e h e m e t H o b b e s ; their f a m o u s c o n t r o v e r s y c o n c e r n i n g ' l i b e r t y a n d necessity' w a s p u b l i s h e d in t h e 1650s. In 1 6 6 1 h e b e c a m e a r c h b i s h o p

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Biographies o f A r m a g h . In t h e n i n e t e e n t h c e n t u r y his w o r k s w e r e p u b l i s h e d in t h e L i b r a r y o f A n g l o Catholic Theology. SECONDARY LITERATURE

(part V ) : B o w i e 1 9 5 1 ; M i n t z 1 9 6 2 .

B R A N D O L I N I , A U R E L I O LIPPO c. 1 4 5 4 - 9 7 . B o r n in F l o r e n c e , h e e m i g r a t e d a r o u n d 1 4 6 6 w i t h his father t o N a p l e s , w h e r e h e r e c e i v e d , a l t h o u g h h a l f - b l i n d (lippus), a h u m a n i s t e d u c a t i o n . A u t h o r o f p o e m s in Latin a n d Italian, o f an o r a t i o n o n t h e d i g n i t y o f t h e art o f w a r a n d o f l i t e r a t u r e , a n d o f a c o m m e n t a r y o n t h e Georgics, h e w e n t t o R o m e in c. 1480 a n d t o B u d a in 1 4 8 9 , w h e r e h e c o m p o s e d for K i n g M a t t h i a s C o r v i n u s De humanae vitae conditione et toleranda corporis aegritudine a n d t h e De comparatione reipublicae et regni, c o m p l e t e d in F l o r e n c e after t h e d e a t h o f M a t t h i a s in 1 4 9 0 , a n d d e d i c a t e d t o L o r e n z o d e M e d i c i . A r o u n d 1 4 9 1 h e j o i n e d t h e A u g u s t i n i a n o r d e r in Florence. S E C O N D A R Y L I T E R A T U R E (part I): T h o r n d i k e 1 9 2 9 , p p . 2 3 3 - 6 0 ; Dizionario biografico degli Italiani, x i v , p p . 2 6 - 8 . BRUNI, LEONARDO 1 3 7 0 - 1 4 4 4 . B o r n in A r e z z o , B r u n i b e c a m e t h e p r e e m i n e n t p r o t e g e o f Salutati a n d a deft s t u d e n t o f t h e B y z a n t i n e scholar M a n u e l C h r y s o l o r a s . H e translated a n d a d a p t e d n u m e r o u s G r e e k w o r k s , p r o v i d i n g versions o f A r i s t o t l e ' s Politics a n d t h e p s e u d o - A r i s t o t e l i a n Oeconomica, a m o n g o t h e r w o r k s , u s i n g a m o r e classical a n d a t t r a c t i v e Latin t h a n t h e m e d i e v a l versions. H i s o w n w o r k s o n m o r a l p h i l o s o p h y a n d h i s t o r y ( n o t a b l y t h e History of the Florentine People) a n d his early Praise of Florence established h i m as t h e m o s t e l o q u e n t o f all R e n a i s s a n c e s p o k e s m e n for t h e C i c e r o n i a n v i e w t h a t t h e o n l y life w o r t h y o f a free m a n w a s active life in t h e service o f t h e r e p u b l i c a n state. H e s e r v e d as c h a n c e l l o r o f F l o r e n c e f r o m 1 4 2 7 u n t i l his d e a t h . S E C O N D A R Y L I T E R A T U R E (part I): B a r o n 1 9 6 7 , 1 9 6 8 , 1 9 8 8 ; K o h l a n d W i t t 1 9 7 8 , p p . 1 2 1 - 3 3 ; Griffiths et al. 1 9 8 7 . BUCER, MARTIN 1491—15 5 1 . A r e f o r m e r o f h u m a n i s t s y m p a t h i e s w h o h a d b e c o m e a D o m i n i c a n friar in 1 5 0 6 , secured p a p a l d i s p e n s a t i o n f r o m his v o w s in 1 5 2 1 , a n d m a r r i e d in 1 5 2 2 , h e b e g a n t o p r e a c h a m o d i f i e d v e r s i o n o f L u t h e r ' s evangelical t h e o l o g y in 1 5 2 3 a n d w e n t o n t o lead t h e r e f o r m at S t r a s b u r g for t h e n e x t q u a r t e r o f a c e n t u r y . As t h e n a t u r a l leader o f t h e R e f o r m e d c h u r c h e s o f S w i t z e r l a n d , t h e R h i n e l a n d a n d S o u t h G e r m a n y after Z w i n g l i ' s d e a t h in 1 5 3 1 , h e s o u g h t unsuccessfully t o m e d i a t e b e t w e e n P r o t e s t a n t s a n d C a t h o l i c s . In 1 5 4 9 h e w e n t t o E n g l a n d , t a u g h t at C a m b r i d g e , a n d set f o r t h his ideas for t h e r e f o r m o f C h r i s t i a n society in his De regno Christi, p o s t h u m o u s l y p u b l i s h e d in 15 5 1 . SECONDARY LITERATURE

BUCHANAN,

(part II): b i b l i o g r a p h y in D e K r o o n a n d K r u g e r 1 9 7 6 .

GEORGE

1506—82. E d u c a t e d at St A n d r e w s a n d Paris ( w i t h J o h n M a i r a m o n g his teachers), h e t a u g h t in Paris, B o r d e a u x , a n d C o i m b r a ( w h e r e h e fell foul o f t h e I n q u i s i t i o n ) . H e b e c a m e o n e o f t h e l e a d i n g h u m a n i s t s o f his g e n e r a t i o n , n o t e d especially as a Latin p o e t , p u b l i s h i n g Latin plays o n biblical t h e m e s (Jephthes, Baptistes) a n d a Latin p a r a p h r a s e o f t h e p s a l m s . R e t u r n i n g t o S c o t l a n d in 1 5 6 1 a n d c o n v e r t e d t o C a l v i n i s m , h e s e r v e d as m o d e r a t o r o f t h e G e n e r a l A s s e m b l y o f t h e K i r k a n d later as k e e p e r o f t h e p r i v y seal a n d t u t o r t o t h e y o u n g k i n g J a m e s V I . H e d e v e l o p e d his political ideas in defence o f t h e d e p o s i t i o n o f M a r y S t u a r t , especially in Historia his Dejure regni apud Scotos ( w r i t t e n 1 5 6 7 - 8 , p u b l i s h e d 1 5 7 9 ) . His Rerum Scoticarum w a s c o m p l e t e d s h o r t l y b e f o r e his d e a t h . S E C O N D A R Y L I T E R A T U R E (part II): T r e v o r - R o p e r 1 9 6 6 ; S k i n n e r 1 9 7 8 ; M c F a r l a n e 1 9 8 1 ; Mason 1982; Salmon 1987.

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Biographies BUDÉ, GUILLAUME 1 4 6 8 - 1 5 4 0 . T h e greatest Hellenist o f his d a y , B u d é w a s a c h a m p i o n n o t o n l y o f ' e n c y c l o p a e d i c ' h u m a n i s m — Philologia, w h i c h w a s t h e title o f o n e o f his scholarly w o r k s — b u t also o f t h e F r e n c h m o n a r c h y a n d its c u l t u r a l mission. F o l l o w i n g Italian a n t e c e d e n t s , especially L o r e n z o Valla, a n d A n g e l o P o l i z i a n o , h e c a r r e d o n t h e critical, p h i l o l o g i c a l , a n d historical s t u d y o f R o m a n l a w in his Annotations on the Pandects o f 1 5 0 8 , w h i c h assailed t h e i g n o r a n c e a n d philistinism o f legal scholasticism a n d c o n t a i n e d digressions o n F r e n c h i n s t i t u t i o n s such as t h e parlement o f Paris a n d his o w n office (maître des requêtes). B u d é ' s political v i e w s are also d i s p l a y e d in his Institution of the Prince, w h i c h w a s a m o r e c o n v e n t i o n a l a n d m o r a l i s t i c c o n t r i b u t i o n t o t h e ' M i r r o r o f P r i n c e s ' g e n r e , closer t o t h a t o f his rival E r a s m u s t h a n t o M a c h i a v e l l i . S E C O N D A R Y LITERATURE

(part I): K e l l e y 1 9 7 0 a ; M c N e i l 1 9 7 5 .

CAJETAN, T O M M A S O ' D E VIO, CARDINAL 1 4 6 8 - 1 5 3 4 . B o r n at G a e t a , h e e n t e r e d t h e D o m i n i c a n o r d e r in 1 4 8 4 a n d s t u d i e d at N a p l e s , B o l o g n a , a n d P a d u a u n t i l 1 4 9 3 . A t P a d u a h e t a u g h t p h i l o s o p h y in t h e T h o m i s t m o d e a n d t h e o l o g y f r o m 1 4 9 5 t o 1 4 9 9 . After t e a c h i n g for t w o years in M i l a n , h e w e n t t o R o m e , w h e r e h e t a u g h t p h i l o s o p h y a n d s c r i p t u r e . As t h e m a s t e r - g e n e r a l o f t h e o r d e r , h e t o o k p a r t in t h e fifth L a t e r a n C o u n c i l f r o m 1 5 1 2 t o 1 5 1 7 . H e b e c a m e cardinal in t h e latter year a n d w a s d e e p l y i n v o l v e d in t h e o l o g i c a l c o n t r o v e r s y w i t h L u t h e r . In a d d i t i o n t o his i m p o r t a n t A r i s t o t e l i a n c o m m e n t a r i e s , his m o s t influential w o r k w a s his e d i t i o n , w i t h c o m m e n t a r y , o f A q u i n a s ' Summa Theologiae; b u t for specifically political ideas his c o n t r o v e r s i a l w r i t i n g s o f 1 5 1 1 - 1 2 - Auctoritas Papae et Concilii sive Ecclesiae Comparata a n d Apologia de Comparatione Auctoritatis Papae et Concilii - are o f p a r t i c u l a r significance. S E C O N D A R Y L I T E R A T U R E (part I): H e n n i g 1 9 6 6 ; W i c k s , in C a j e t a n 1 9 7 8 ; Dictionnaire d'Histoire et de Géographie Ecclésiastiques; Dictionnaire de Théologie Catholique. CALVIN, J O H N 1509—64. H i s career as a l a w y e r , based o n t r a i n i n g at O r l e a n s , a n d as a classical h u m a n i s t , based o n s t u d y in Paris, w a s c u t s h o r t b y a s u d d e n c o n v e r s i o n t o P r o t e s t a n t i s m . H e fled t o Religion, Basle a n d t h e r e p u b l i s h e d in 1 5 3 6 t h e first e d i t i o n o f his Institutes of the Christian w h i c h h e e x p a n d e d a n d revised for t h e rest o f his life. It b e c a m e t h e m o s t influential single s u m m a r y o f P r o t e s t a n t t h e o l o g y , a n d includes occasional reflections o n politics. After b r i e f p e r i o d s as p u b l i c l e c t u r e r in G e n e v a a n d as pastor t o a c h u r c h o f F r e n c h refugees in S t r a s b u r g , t h e city o f G e n e v a in 1 5 4 1 asked h i m t o lead its R e f o r m e d c h u r c h . H e spent t h e rest o f his life m a k i n g o f t h a t city a ' P r o t e s t a n t R o m e ' , a m o d e l c o m m u n i t y t h a t p r o f o u n d l y influenced t h e life a n d t h o u g h t o f t h e R e f o r m e d t h r o u g h o u t t h e w o r l d . S E C O N D A R Y L I T E R A T U R E (part II): B o h a t e c 1 9 3 7 ; C h e n e v i è r e 1 9 3 7 ; P a r k e r 1 9 7 5 ; L l o y d 1 9 8 1 a ; Hopfl 1982. CAMPANELLA, T O M M A S O 1568—1639. A s h o e m a k e r ' s son o f C a l a b r i a , C a m p a n e l l a e n t e r e d t h e D o m i n i c a n o r d e r in 1 5 8 2 . His defence o f T e l e s i o , G a l i l e o , a n d t h e v a l i d i t y o f e m p i r i c a l o b s e r v a t i o n caused h i m t o b e e x a m i n e d b e f o r e t h e H o l y Office in P a d u a . H e a r g u e d in f a v o u r o f p a p a l w o r l d s u p r e m a c y b u t in 1 5 9 9 w a s c o m m i t t e d t o a N e a p o l i t a n p r i s o n o n c h a r g e s o f heresy a n d c o n s p i r a c y . H e w a s t o r e m a i n in c o n f i n e m e n t for t h e n e x t t w e n t y - s e v e n years. D u r i n g this t i m e h e w r o t e m a n y w o r k s , i n c l u d i n g t h e Città del Sole a n d his defence o f Galileo. R e l e a s e d in 1 6 2 6 h e fled t o F r a n c e in 1 6 3 4 a n d p l a c e d h i m s e l f u n d e r t h e p r o t e c t i o n o f R i c h e l i e u a n d Louis X I I I . H i s last years w e r e s p e n t w o r k i n g for t h e c o n v e r s i o n o f t h e P r o t e s t a n t s a n d t r y i n g t o p r o l o n g his life b y a s t r o l o g y . S E C O N D A R Y L I T E R A T U R E (part II): M e i n e c k e 1 9 5 7 ; B o n a n s e a 1 9 6 9 .

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Biographies CARAFA, DIOMEDE 1406/8—87. N e a p o l i t a n s t a t e s m a n a n d soldier. H a v i n g e n t e r e d t h e service o f A l f o n s o o f A r a g o n , k i n g o f N a p l e s , h e b e c a m e o n e o f t h e chief counsellors o f his son a n d successor F e r r a n t e , w h o c o n f e r r e d h i g h offices o n h i m . H e w r o t e a n u m b e r o f m e m o r a n d a (memoriali) c o n t a i n i n g a d v i c e for p r i n c e s , a m o n g t h e m t h e Memoriale sui doveri delprincipe for E l e o n o r a o f A r a g o n , wife o f E r c o l e d'Este, d u k e o f Ferrara, a n o t h e r for h e r b r o t h e r A l f o n s o , d u k e o f C a l a b r i a , h e i r t o t h e N e a p o l i t a n t h r o n e , for w h o m h e also w r o t e , d u r i n g t h e w a r o f t h e Pazzi c o n s p i r a c y , a treatise o n t h e art o f w a r . T h e r e are t w o Latin translations o f t h e Memoriale, o n e o f t h e m , b y G i o v a n n i Battista G u a r i n o , c o m m i s s i o n e d b y E l e o n o r a . S E C O N D A R Y L I T E R A T U R E (part I): Persico 1 8 9 9 ; Dizionario Biografico degli Italiani, x i x , pp. 524-30. CARBONE, LODOVICO 1435—82. A s t u d e n t o f G u a r i n o da V e r o n a , C a r b o n e l e c t u r e d at Ferrara in t h e 1450s a n d w r o t e m a n y o r a t i o n s a n d d i a l o g u e s . T h e o n e in m e m o r y o f G u a r i n o p r o v i d e d a v e r y influential p o r t r a i t o f t h e greatest o f h u m a n i s t teachers. S E C O N D A R Y L I T E R A T U R E (part I): G a r i n 1 9 5 2 , p . 3 8 1 . C A S A U B O N , ISAAC 1 5 5 9 — 1 6 1 4 . A classical scholar, b o r n in G e n e v a . His p a r e n t s w e r e H u g u e n o t refugees. C a s a u b o n t a u g h t at G e n e v a a n d M o n t p e l l i e r b e f o r e m o v i n g t o Paris, w h e r e in 1 6 0 4 h e b e c a m e k e e p e r o f t h e r o y a l l i b r a r y . In 1 6 1 0 h e w a s i n v i t e d t o E n g l a n d a n d h e spent t h e r e m a i n d e r o f his life t h e r e . In a d d i t i o n t o p r o d u c i n g texts o f a n u m b e r o f classical a u t h o r s , C a s a u b o n also d e f e n d e d V e n i c e against t h e I n t e r d i c t in De libertate ecclesiastica ( 1 6 0 7 ) , a n d a t t a c k e d papalist ideas in Ad Frontonem Ducaeum S.J. Theologum Epistola ( 1 6 1 1 ) , a n d in De rebus sacris et ecclesiasticis exercitationes XVI ( 1 6 1 4 ) . S E C O N D A R Y L I T E R A T U R E (part III): P a t t i s o n 1 8 9 2 . C A S T E L L I O , S E B A S T I A N ( C h a t e i l l o n , Sebastien) 1515—63. B o r n in S a v o y , h e r e c e i v e d a h u m a n i s t e d u c a t i o n at L y o n s . In 1 5 4 1 h e w e n t t o G e n e v a , r e c o m m e n d e d b y C a l v i n , as r e c t o r o f t h e college t h e r e ; b u t his t h e o l o g i c a l a n d s c r i p t u r a l v i e w s — n o t a b l y his rejection o f t h e belief t h a t C h r i s t d e s c e n d e d i n t o hell a n d his r e g a r d i n g t h e S o n g o f S o l o m o n as s i m p l y an e r o t i c p o e m — alienated h i m f r o m C a l v i n a n d h e left G e n e v a in 1 5 4 4 for Basle, w h e r e h e s p e n t t h e rest o f his life. In 1 5 5 4 h e p u b l i s h e d , p s e u d o n y m o u s l y , his De Haereticis, c o n d e m n i n g t h e e x e c u t i o n o f S e r v e t u s a n d s t r o n g l y d e f e n d i n g religious t o l e r a t i o n . H e also p u b l i s h e d , in t h e early 1550s, Latin a n d F r e n c h translations o f t h e B i b l e . SECONDARY LITERATURE

CASTIGLIONE,

(part II): B u i s s o n 1 8 9 2 ; O z m e n t 1 9 7 3 .

BALDASSARE

1478—1529. B o r n in M a n t u a a n d e d u c a t e d t h e r e a n d in M i l a n , h e a c c o m p a n i e d Francesco G o n z a g a in his c a m p a i g n against t h e S p a n i a r d s in t h e k i n g d o m o f N a p l e s in 1 5 0 3 . H e then s e r v e d t h e d u k e o f U r b i n o o n d i p l o m a t i c missions, i n c l u d i n g o n e t o E n g l a n d in 1 5 0 6 . Sent t o Spain as p a p a l n u n c i o in 1 5 2 4 , h e d i e d t h e r e five years later. His m o s t c e l e b r a t e d w o r k // libro del cortegiano, b e g u n in U r b i n o as early as 1 5 0 7 , w a s p u b l i s h e d in 1 5 2 8 . It a c h i e v e d w i d e c u r r e n c y t h r o u g h o u t E u r o p e a n d w a s translated i n t o English b y Sir T h o m a s H o b y in 1 5 6 1 . C a s t i g l i o n e also w r o t e p o e m s in b o t h Latin a n d Italian a n d left i m p o r t a n t c o r r e s p o n d e n c e . S E C O N D A R Y L I T E R A T U R E (part I): C a r t w r i g h t 1 9 0 8 ; W o o d h o u s e 1 9 7 8 . C H A R R O N , PIERRE 1 5 4 1 — 1 6 0 3 . T h e son o f a Paris b o o k s e l l e r , C h a r r o n s t u d i e d p h i l o s o p h y a n d l a w b e f o r e b e c o m i n g a priest, a w e l l - k n o w n p r e a c h e r , a n d a c a n o n o f C o n d o m . H e a d h e r e d t o t h e

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Biographies C a t h o l i c L e a g u e for a s h o r t t i m e in 1 5 8 9 , b u t h e b e c a m e a c q u a i n t e d w i t h M o n t a i g n e at this p e r i o d a n d c a m e t o share his scepticism (in 1600 C h a r r o n h a d t h e w o r d s 'je n e scay' inscribed o v e r t h e d o o r o f his h o u s e at C o n d o m ) . H i s Trois Vhites a p p e a r e d in 1 5 9 4 , u n d e r a p s e u d o n y m , a n d his Sagesse in 1 6 0 1 (it w a s r e p r i n t e d in 1 6 0 4 w i t h cuts, a n d in 1 6 0 7 w i t h additions). SECONDARY LITERATURE

(part I V ) : Battista 1 9 6 6 ; A b e l 1 9 7 8 , p p . 1 5 3 - 2 2 7 ; K e o h a n e 1 9 8 0 ,

pp. 135-54. CHASSENEUZ, BARTHELEMY DE 1480—1541. B o r n n e a r A u t u n o f b o u r g e o i s p a r e n t a g e , C h a s s e n e u z s t u d i e d l a w at several universities i n c l u d i n g B o l o g n a , T u r i n , a n d Pavia b e f o r e g r a d u a t i n g d o c t o r in utroque jure in 1 5 0 2 . H a v i n g a l r e a d y acted as maitre des requites t o t h e F r e n c h g o v e r n o r o f t h e M i l a n a i s , h e w e n t o n d i p l o m a t i c missions b e f o r e r e t u r n i n g t o A u t u n in 1 5 0 6 , t o practise as an avocai a n d t h e n t o serve as bailli. H i s Commentarla in consuetudines Burgundiae, w h i c h established his r e p u t a t i o n , w a s p u b l i s h e d f r a g m e n t a r i l y in 1 5 1 7 a n d fully in 1 5 2 8 . Conseiller successively in t h e parlements o f D i j o n a n d Paris, h e b e c a m e in 1 5 3 2 president in t h e parlement o f A i x . C h a s s e n e u z s o u g h t v i g o r o u s l y t o r e f o r m t h e latter c o u r t , a n d h e m a y h a v e inspired t h e major Provencal judicial reform of 1 5 3 5 . S E C O N D A R Y L I T E R A T U R E (part II): P i g n o t 1880. C L A R E N D O N , E A R L O F : see H Y D E ,

EDWARD

COKE, SIR E D W A R D 1 5 5 2 - 1 6 3 4 . A l e a r n e d l a w y e r , j u d g e o f incalculable influence, a n d c o m m o n l a w c h a m p i o n o f p a r l i a m e n t a r y p r i v i l e g e a n d n a t i o n a l liberties, C o k e w a s e d u c a t e d at T r i n i t y C o l l e g e , C a m b r i d g e , a n d t h e I n n e r T e m p l e . C a l l e d t o t h e b a r in 1 5 7 8 , h e b e c a m e s o l i c i t o r - g e n e r a l , speaker o f t h e H o u s e o f C o m m o n s , a n d a t t o r n e y - g e n e r a l u n d e r Elizabeth; a n d u n d e r J a m e s I, chiefjustice o f t h e c o m m o n pleas ( 1 6 0 6 ) , a n d o f k i n g ' s b e n c h ( 1 6 1 3 ) . Dismissed in 1 6 1 6 , h e r e a p p e a r e d in t h e p a r l i a m e n t s o f t h e 1620s, w h e r e h e w a s c o n s p i c u o u s a m o n g t h e p r o m o t e r s o f t h e Protestation a n d t h e P e t i t i o n o f R i g h t . After t h e first p a r t o f t h e Institutes a p p e a r e d in 1 6 2 8 , C h a r l e s I, fully alert t o t h e d a n g e r s o f C o k e a n h i s t o r i o g r a p h y , seized C o k e ' s p a p e r s ; a n d t h e last t h r e e parts r e m a i n e d in m a n u s c r i p t u n t i l rescued b y t h e L o n g P a r l i a m e n t . S E C O N D A R Y L I T E R A T U R E (part III): T h o m p s o n 1 9 4 8 ; K e n y o n 1 9 6 6 , 1 9 8 6 ; Russell 1 9 7 9 ; Weston and Greenberg 1 9 8 1 . CONTARINI, GASPARO 1 4 8 3 - 1 5 4 2 . V e n e t i a n patrician; h e l d h i g h offices in t h e r e p u b l i c b e f o r e b e i n g c r e a t e d cardinal b y P a u l III in 1 5 3 5 . A l e a d i n g figure in t h e m o v e m e n t o f C a t h o l i c r e f o r m ; a u t h o r o f w o r k s o n p h i l o s o p h i c a l a n d t h e o l o g i c a l subjects a n d o n ecclesiastical r e f o r m . H e b e g a n t h e c o m p o s i t i o n o f t h e De magistratibus et república Venetorum d u r i n g his e m b a s s y t o C h a r l e s V ( 1 5 2 1 - 5 ) a n d c o m p l e t e d it in V e n i c e b e t w e e n 1 5 3 1 a n d 1 5 3 4 . First p u b l i s h e d in Paris in 1 5 4 3 , in F r e n c h in 1 5 4 4 , a n d in English in 1 5 9 9 , t h e w o r k l o n g r e m a i n e d t h e a u t h o r i t a t i v e description of the Venetian constitution. SECONDARY

LITERATURE

(part I): G i l b e r t 1 9 6 9 ; Dizionario

Biografico

degli Italiani,

xxvm,

pp.172-92. COQUILLE, GUY 1 5 2 3 - 1 6 0 3 . B o r n at D e c i z e i n t o a family active in t h e j u d i c i a l a n d m u n i c i p a l life o f N e v e r s , C o q u i l l e s t u d i e d arts in Paris ( C o l l è g e d e N a v a r r e ) f o l l o w e d b y l a w at P a d u a a n d t h e n at O r l e a n s . In 1 5 5 0 h e j o i n e d t h e Paris b a r , b u t s o o n r e t u r n e d t o D e c i z e a n d in 1 5 6 8 w a s elected

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Biographies premier échevin o f N e v e r s . In 1 5 7 1 h e b e c a m e t h e d u c h y ' s procureur-général and remained t h e r e despite offers o f office in t h e capital. A d e p u t y at t h e O r l e a n s a n d at t h e Blois Estates G e n e r a l (1560—1, 1 5 7 6 ) , C o q u i l l e c o m m e n c e d thereafter t o w r i t e o n l a w a n d h i s t o r y . His w o r k s , w h i c h i n c l u d e d tracts o n c u s t o m s , an Institution au droit desfrançois a n d his Histoire du pays et duché de Nivernois, w e r e p u b l i s h e d p o s t h u m o u s l y . S E C O N D A R Y L I T E R A T U R E (part II): M a u m i g n y 1 9 1 0 . C O R A S , JEAN DE 1 5 1 3 — 7 2 . Best k n o w n as t h e j u d g e in t h e case o f M a r t i n G u e r r e , C o r a s w a s a d i s t i n g u i s h e d professor o f l a w at t h e U n i v e r s i t i e s o f T o u l o u s e , A n g e r s , a n d O r l e a n s , a n d a c o n v e r t t o P r o t e s t a n t i s m . H e c o m m e n t e d e x t e n s i v e l y o n t h e texts o f R o m a n l a w a n d w r o t e v a r i o u s w o r k s o n legal t h e o r y a n d p r a c t i c e , such as his De Iuris arte libellus o f 1 5 6 0 . A r g u i n g t h a t j u r i s p r u d e n c e w a s b o t h ' a r t ' a n d 'science', C o r a s carried o n t h e a n c i e n t p r o j e c t o f ' r e d u c i n g l a w t o an a r t ' in t h e c o n t e x t o f m o d e r n theories o f ' m e t h o d ' a n d n e o - A r i s t o t e l i a n c o n c e p t i o n s o f legal a n d political 'causes'. S E C O N D A R Y L I T E R A T U R E (part I): Fell 1 9 8 3 - 7 . COWELL, J O H N 1 5 5 4 - 1 6 1 1 . C o w e l l w a s regius professor o f civil l a w in C a m b r i d g e f r o m 1 5 9 4 , a n d m a s t e r o f T r i n i t y H a l l f r o m 1 5 9 8 . H e w a s a close ally o f R i c h a r d B a n c r o f t , a r c h b i s h o p o f C a n t e r b u r y , w h o m h e s e r v e d as v i c a r - g e n e r a l f r o m 1 6 0 8 , a n d t o w h o m h e d e d i c a t e d his m o s t f a m o u s w o r k , t h e Interpreter ( 1 6 0 7 ) , a l a w d i c t i o n a r y . T h e political o p i n i o n s expressed in this b o o k w e r e t y p i c a l o f t h e h i g h e r c l e r g y u n d e r J a m e s I, b u t t h e c a n d o u r w i t h w h i c h C o w e l l v o i c e d his a b s o l u t i s m a r o u s e d hostility in t h e H o u s e o f C o m m o n s , a n d t h e k i n g f o u n d it politic t o suppress t h e w o r k in 1 6 1 0 . It w a s reissued u n a l t e r e d in 1 6 3 7 . S E C O N D A R Y L I T E R A T U R E (part III): M c l l w a i n 1 9 1 8 , appendix B; Sommerville 1986b, pp. 1 2 1 - 7 . CRAIG, SIR T H O M A S 1 5 3 8 - 1 6 0 8 . E d u c a t e d at St A n d r e w s f r o m 1 5 5 2 , a n d Paris f r o m 1 5 5 5 , C r a i g s t u d i e d l a w u n d e r t h e c e l e b r a t e d legists P i e r r e Rebuffi a n d François B a u d o u i n . R e t u r n i n g t o S c o t l a n d in 1 5 6 1 , h e w a s at first a barrister, a n d t h e n j u s t i c e - d e p u t e for t h e earl o f A r g y l l . In 1 5 6 6 h e w a s t h e j u d g e at t h e trial o f u n d e r l i n g s i n v o l v e d in t h e m u r d e r o f R i z z i o , secretary t o M a r y Q u e e n o f Scots, a n d in 1 5 6 7 h e p r e s i d e d at a similar trial o f m i n o r c o n s p i r a t o r s i m p l i c a t e d in t h e m u r d e r o f h e r h u s b a n d , L o r d D a r n l e y . H e b e c a m e sheriff-depute o f E d i n b u r g h in 1 5 7 3 . A n e x p e r t in feudal l a w , h e p u b l i s h e d lus Feudale in 1 6 0 3 . H e also w r o t e o n t h e claim o f J a m e s VI a n d I t o t h e English t h r o n e . S E C O N D A R Y L I T E R A T U R E (part II): P o c o c k 1 9 5 7 . C R O M É , F R A N Ç O I S M O R I N DE fl. 1589—93. H e c a m e f r o m a w e l l - c o n n e c t e d legal family in B u r g u n d y . Like his father, h e b e g a n his career as a j u d g e in t h e parlement o f D i j o n a n d m o v e d t o Paris t o b e c o m e a m a g i s t r a t e in t h e grand conseil. After t h e assassination o f H e n r i III in 1 5 8 9 , C r o m é j o i n e d t h e r e v o l u t i o n a r y e l e m e n t in t h e Parisian L e a g u e k n o w n as t h e Sixteen. H e b o r e a g r u d g e against B a r n a b e Brisson, t h e first p r e s i d e n t o f t h e L e a g u e r parlement in Paris, a n d in 1 5 9 1 C r o m é a n d several confederates m u r d e r e d Brisson as a suspected t r a i t o r t o t h e L e a g u e . C r o m é escaped r e t r i b u t i o n , a n d w h i l e in h i d i n g in 1 5 9 3 w r o t e t h e radical tract Dialogue d'entre le maheustre et le manant. S E C O N D A R Y L I T E R A T U R E (part II): Ascoli, in C r o m é 1 9 7 7 ; B a r n a v i 1 9 8 0 ; B a r n a v i a n d Descimon 1985.

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Biographies CUJAS, J A C Q U E S 1520—90. After s t u d y i n g civil l a w at t h e U n i v e r s i t y o f T o u l o u s e , Cujas, t h e greatest o f t h e ' e l e g a n t ' o r p h i l o l o g i c a l s c h o o l o f j u r i s p r u d e n c e , t a u g h t at v a r i o u s t i m e s d u r i n g t h e religious w a r s at t h e U n i v e r s i t i e s o f C a h o r s , V a l e n c e , a n d especially B o u r g e s . A l t h o u g h h e also w r o t e p o l e m i c a l w o r k s after t h e St B a r t h o l o m e w ' s D a y massacres, his scholarly life w a s d e d i c a t e d t o exegeses o f t h e D i g e s t a n d o t h e r texts o f R o m a n l a w , w h i c h w e r e collected in his massive Observationes et Emendationes a n d w h i c h w e r e a i m e d at r e s t o r i n g t h e historical m e a n i n g , c o n t e x t , a n d f o r m o f classical j u r i s p r u d e n c e . S t u d e n t s o f Cujas, i n c l u d i n g E t i e n n e P a s q u i e r a n d t h e b r o t h e r s P i t h o u , carried his p h i l o l o g i c a l a n d historical t e c h n i q u e s o v e r i n t o t h e s t u d y o f m e d i e v a l l a w a n d i n s t i t u t i o n s , a n d h e l p e d establish t h e f a m e o f Cujas as t h e p r i n c i p a l restorer of R o m a n law. SECONDARY LITERATURE

CUMBERLAND,

(part I): B e r r i a t - S a i n t - P r i x 1 8 2 1 .

RICHARD

1 6 3 1 — 1 7 1 8 . B e c a m e a fellow o f M a g d a l e n e C o l l e g e C a m b r i d g e in t h e 1650s, a n d w a s a friend o f S a m u e l P e p y s a n d o f t h e l a w y e r Sir O r l a n d o B r i d g e m a n , L o r d K e e p e r u n d e r C h a r l e s II, t o w h o m his g r e a t w o r k o f j u r i s p r u d e n c e is d e d i c a t e d . H e w a s m a d e b i s h o p o f P e t e r b o r o u g h in 1 6 9 1 . His career w a s u n r e m a r k a b l e , b u t his De Legibus Naturae ( 1 6 7 2 ) , translated as A Treatise of the Laws of Nature ( 1 7 2 7 ) , h a d a c o n s i d e r a b l e influence o n e i g h t e e n t h - c e n t u r y ethical t h e o r y a n d j u r i s p r u d e n c e . H e w a s , b r o a d l y , a ' t h e o l o g i c a l u t i l i t a r i a n ' , a n d despite criticising H o b b e s , h e shares m a n y o f his p r e m i s e s . S E C O N D A R Y L I T E R A T U R E (part V ) : T u c k 1 9 7 9 ; K i r k 1 9 8 7 . DE DOMINIS, M A R C A N T O N I O 1560—1624. T h e C a t h o l i c a r c h b i s h o p o f S p a l a t o (Split), D e D o m i n i s sided against t h e p a p a c y at t h e t i m e o f t h e V e n e t i a n I n t e r d i c t . Dissatisfaction w i t h t h e c h u r c h o f R o m e led h i m t o E n g l a n d in 1 6 1 6 . T h e r e h e w a s m a d e D e a n o f W i n d s o r a n d M a s t e r o f t h e S a v o y , b u t h e b e c a m e disillusioned w i t h t h e English c h u r c h , a n d in 1 6 2 2 r e t u r n e d t o R o m e . U n a b l e t o p e r s u a d e t h e a u t h o r i t i e s t h a t h e w a s sincere in r e n o u n c i n g his earlier v i e w s , D e D o m i n i s e n d e d his life a p r i s o n e r o f t h e I n q u i s i t i o n . H e translated B a c o n ' s De sapientia veterum i n t o Italian, a n d his w r i t i n g s i n c l u d e a w o r k o n optics, b u t b y far his m o s t i m p o r t a n t b o o k w a s De republica ecclesiastica (3 vols., 1 6 1 7 - 2 2 ) . T h e first t w o v o l u m e s w e r e p u b l i s h e d b y J a m e s I's p r i n t e r a n d d e d i c a t e d t o t h e k i n g , w i t h w h o s e o p i n i o n s t h e y largely a g r e e d . T h e w o r k i n c l u d e d an a t t a c k o n S u a r e z . S E C O N D A R Y L I T E R A T U R E (part III): M a l c o l m 1 9 8 4 . D E L A C O U R T (or V a n D e n H o v e ) , P I E T E R a n d J O H A N 1 6 1 8 - 8 5 (Pieter); 1 6 2 2 - 6 0 (Johan). P i e t e r s t u d i e d at Leiden; t r a v e l l e d a b r o a d 1 6 4 1 - 3 ( m e e t i n g C o m e n i u s in L o n d o n in 1 6 4 2 ) . H e r e t u r n e d t o Leiden U n i v e r s i t y in 1643 as a t h e o l o g i c a l s t u d e n t a n d b e c a m e a passionate C a r t e s i a n . N e x t h e s t u d i e d m e d i c i n e u n d e r R e g i u s at U t r e c h t , 1645—8, a n d t h e n e n t e r e d t h e family business (cloth m e r c h a n t s ) . S u p p o r t i n g t h e r e p u b l i c a n cause in t h e 1650s, h e p u b l i s h e d a succession o f political w o r k s in t h e 1660s, p r o b a b l y i n c o r p o r a t i n g m a t e r i a l f r o m his b r o t h e r J o h a n ' s p a p e r s . H e addressed a m a n u s c r i p t o n t r a d e t o H a r r i n g t o n in 1 6 7 4 . J o h a n also s t u d i e d at L e i d e n , a t t e n d i n g B o x h o r n ' s lectures o n c o n s t i t u t i o n a l t h e o r y in 1 6 4 3 . H e e n t e r e d t h e family business, a n d s u p p o r t e d t h e r e p u b l i c a n cause in t h e 1650s. S E C O N D A R Y L I T E R A T U R E (part IV): V a n T h i j n 1 9 5 6 . DIGGES, D U D L E Y 1613—43. B o r n in K e n t , t h e son o f Sir D u d l e y , a n o t e d l a w y e r a n d politician, h e w a s e d u c a t e d at U n i v e r s i t y C o l l e g e , O x f o r d , a n d b e c a m e a fellow o f All Souls in 1 6 3 3 . A

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Biographies v i g o r o u s royalist p o l e m i c i s t f r o m t h e o u t s e t o f t h e C i v i l W a r , h e p u b l i s h e d a n u m b e r o f tracts. T h e m o s t i m p o r t a n t w a s The Unlawfulness of Subjects taking up Arms ( 1 6 4 3 ) , in r e p l y t o H e n r y P a r k e r ' s Observations, w h i c h w e n t t h r o u g h several e d i t i o n s a n d w a s r e p r i n t e d at t h e R e s t o r a t i o n . T h e tract is based m a i n l y o n n a t u r a l - r i g h t a r g u m e n t s a n d t h u s is closer t o t h e H o b b e s i a n t h a n t o J a m e s I's a n d F i l m e r ' s school o f royalist t h o u g h t . S E C O N D A R Y L I T E R A T U R E (part III): A l l e n 1 9 3 8 ; J u d s o n 1 9 4 9 ; T u c k 1 9 7 9 , ch. 5. DOMAT, JEAN 1 6 2 5 - 9 6 . A Jansenist s y m p a t h i s e r a n d friend o f Pascal, D o m a t p u b l i s h e d in 1 6 8 9 a m a s t e r w o r k w h i c h w a s an a t t e m p t t o establish a s y s t e m o f F r e n c h l a w o n t h e basis o f m o r a l principles a n d is o n e o f t h e classics o f universal, ' n a t u r a l l a w ' . A g e n e r a t i o n b e f o r e M o n t e s q u i e u , D o m a t ' s Loix civiles dans leur ordre naturel s o u g h t t h e 'spirit o f t h e l a w s ' in n a t u r e , a n d t r i e d t o c o n n e c t t h e p r i v a t e a n d p u b l i c spheres, a l t h o u g h in fact his w o r k , w h i c h c o n s t i t u t e d an i m p o r t a n t s o u r c e o f i n s p i r a t i o n for t h e N a p o l e o n i c C o d e , f o l l o w e d for t h e m o s t p a r t t h e substance a n d c o n v e n t i o n s o f R o m a n l a w . S E C O N D A R Y L I T E R A T U R E (part I): V o e l t z e l 1 9 3 6 ; T o d e s c a n 1 9 8 7 . DORLÉANS, LOUIS 1542—1629. S o n o f a Parisian procureur (solicitor) D o r l é a n s b e c a m e an avocat. H e s t u d i e d w i t h t h e h u m a n i s t a n d Latin p o e t J e a n D o r a t , a n d h i m s e l f w r o t e p o e t r y . A fervent C a t h o l i c , h e j o i n e d t h e r e v o l u t i o n a r y g r o u p o f t h e Paris H o l y L e a g u e , t h e Sixteen. H e w a s a prolific p r o p a g a n d i s t for t h e L e a g u e , p o s i n g as a C a t h o l i c E n g l i s h m a n w a r n i n g F r e n c h C a t h o l i c s o f t h e d a n g e r o f a P r o t e s t a n t ruler. In 1 5 8 9 h e b e c a m e avocat-général in t h e L e a g u e r parlement o f Paris. G r o w i n g m o r e c o n s e r v a t i v e , h e dissociated h i m s e l f f r o m t h e Sixteen a n d r e c o m m e n d e d t h e L e a g u e r estates n o t t o accept t h e T r i d e n t i n e decrees w i t h o u t Gallican safeguards. H e fled f r o m Paris t o A n t w e r p in 1 5 9 4 a n d p u b l i s h e d a satire vilifying H e n r i IV. H e w a s a l l o w e d t o r e t u r n in 1 6 0 3 . In 1 6 2 2 h e p u b l i s h e d reflections o n T a c i t u s ' Annals. S E C O N D A R Y L I T E R A T U R E (part II): S a l m o n 1 9 8 7 . DUDLEY, SIR E D M U N D c. 1 4 6 2 — 1 5 1 0 . E q u i p p e d for p u b l i c service at O x f o r d a n d t h e l a w at G r a y ' s I n n , D u d l e y served H e n r y VII in several capacities. H e g a i n e d n o t o r i e t y as t h e a g e n t , w i t h R i c h a r d E m p s o n , o f a p o l i c y o f legal t e r r o r c o n d u c t e d b y t h e k i n g t h r o u g h t h e e x p l o i t a t i o n o f b o n d s a n d r e c o g n i s a n c e s . In t h e r e a c t i o n after H e n r y ' s d e a t h h e w a s f o u n d g u i l t y o f c o n s t r u c t i v e Commonwealth t r e a s o n a n d e x e c u t e d . D u d l e y ' s intellectual r e p u t a t i o n rests o n The Tree of ( 1 5 1 0 ) w r i t t e n w h i l s t u n d e r sentence in t h e T o w e r . It is an e x a m p l e o f t h e r e f o r m i n g g e n r e m o r e f a m o u s l y r e p r e s e n t e d b y M o r e ' s Utopia, a n a l y s i n g t h e c o m m o n w e a l t h ' s ills a n d p r o p o s i n g r e m e d i e s . F o r t h e m o s t p a r t c o n v e n t i o n a l l y m o r a l i s t i c , its t h e m e o f t h e i m m u t a b l e social o r d e r reflects a g r o w i n g Erastian o u t l o o k associated w i t h t h e c o m m o n l a w y e r s . His c o n c e r n t h a t t h e n o b i l i t y e q u i p t h e m s e l v e s b y e d u c a t i o n t o w a r d off c o m p e t i t i o n for p u b l i c office f r o m t h e i r social inferiors anticipates a p r o b l e m addressed b y Sir T h o m a s E l y o t ' s Boke Named the Governour ( 1 5 3 1 ) . S E C O N D A R Y L I T E R A T U R E (part I): B r o d i e 1 9 4 8 ; S k i n n e r 1 9 7 8 . D U G D A L E , SIR WILLIAM 1 6 0 5 - 8 6 . T h i s d i s t i n g u i s h e d m e d i e v a l i s t w o n h i g h praise for his Monasticon, w r i t t e n w i t h Sir of Warwickshire R o g e r D o d s w o r t h , w h i c h b e g a n t o a p p e a r in 1 6 5 5 ; his The Antiquities ( 1 6 5 6 ) , a n d his The Baronage of England ( 1 6 7 5 ) . His political s y m p a t h i e s w e r e H i g h T o r y . W h i l e in C i v i l W a r O x f o r d h e served as secretary o f t h e royalist c o m m i s s i o n at U x b r i d g e . A t t h e R e s t o r a t i o n h e r e c e i v e d an a p p o i n t m e n t in t h e C o l l e g e o f A r m s , w h e r e in 1 6 7 7 h e b e c a m e G a r t e r K i n g o f A r m s . H e w o r k e d closely w i t h A r c h b i s h o p Sancroft in m o u n t i n g

671

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Biographies T o r y p r o p a g a n d a o n b e h a l f o f J a m e s , d u k e o f Y o r k . H e r e l u c t a n t l y a g r e e d t o publish his h i g h l y c o l o u r e d Short View of the Late Troubles ( 1 6 8 1 ) ; a n d at his d e a t h h e w a s p r e p a r i n g a second, enlarged edition. S E C O N D A R Y LITERATURE

(part III): P o c o c k 1 9 5 7 ; W e s t o n a n d G r e e n b e r g 1 9 8 1 ; W e s t o n 1 9 8 7 .

D U HAILLAN, B E R N A R D DE G I R A R D c. 1 5 3 5 - 1 6 1 0 . B o r n at B o r d e a u x , t h e son o f a local j u d g e , D u Haillan w a s t h e p r o t é g é o f t h e t h r e e b r o t h e r s de N o a i l l e s , t w o o f w h o m h e a c c o m p a n i e d o n d i p l o m a t i c missions t o E n g l a n d a n d e l s e w h e r e . In 1 5 6 1 h e b e c a m e secretary t o t h e d u k e o f A n j o u , t h e future H e n r i III. A p p o i n t e d r o y a l h i s t o r i o g r a p h e r b y C h a r l e s I X , D u Haillan r e t a i n e d t h e post u n d e r t h a t k i n g ' s successors. In a d d i t i o n t o his D e l'Estat et succez des affaires de France ( 1 5 7 0 ) , his w o r k s i n c l u d e d translations o f a g o o d deal o f Latin a n d Italian verse, an Histoire de France ( 1 5 7 6 ) , a n d a Discours de l'extrême cherté qui est aujourd'huy en France et sur les moyens d'y remédier (1574). S E C O N D A R Y LITERATURE

DU MOULIN,

(part II): B o n n e f o n 1 9 0 8 , 1 9 1 5 .

CHARLES

1500—66. B o r n at Paris, t h e son o f an avocat in t h e parlement, D u M o u l i n s t u d i e d civil l a w at O r l e a n s a n d c a n o n l a w at Poitiers b e f o r e h i m s e l f practising at t h e Paris b a r . H e e m e r g e d as t h e m o s t d i s t i n g u i s h e d F r e n c h legist o f his d a y , n o t a b l y t h r o u g h his lifelong w o r k o n c u s t o m . L u t h e r a n in his religious leanings f r o m a b o u t 1 5 3 9 , h e t h e n t u r n e d t o C a l v i n i s m o n l y t o b r e a k w i t h that at t h e o u t b r e a k o f t h e religious w a r s . His position w a s essentially ' G a l l i c a n ' - w i t n e s s his Commentaire de l'édit des petites dates ( 1 5 5 2 ) a n d his Conseil sur le fait du Concile de Trente ( 1 5 6 4 ) ; a n d t h a t position w a s o f a piece w i t h his firm belief in t h e desirability o f legal u n i f o r m i t y u n d e r t h e k i n g . S E C O N D A R Y LITERATURE

(part II): A u b é p i n 1 8 5 5 ; Filhol 1 9 5 3 ; T h i r e a u 1 9 8 0 .

D U P E R R O N , JACQUES DAVY,

CARDINAL

1 5 5 6 — 1 6 1 8 . D u P e r r o n b e l o n g e d t o a H u g u e n o t family w h i c h t o o k refuge in S w i t z e r l a n d . A m a n o f g r e a t e r u d i t i o n , h e c o n v e r t e d t o C a t h o l i c i s m o n c o m i n g t o Paris in 1 5 7 6 , a n d b e c a m e a c o u r t p r e a c h e r . H e s u p p o r t e d H e n r i IV in t h e w a r s o f t h e L e a g u e , a n d b e c a m e b i s h o p o f E v r e u x in 1 5 9 1 . In 16oo h e g o t t h e b e t t e r o f t h e celebrated H u g u e n o t P h i l i p p e Duplessis M o r n a y in a d e b a t e at F o n t a i n e b l e a u . H e b e c a m e a cardinal in 1 6 0 4 , a n d t h e n a r c h b i s h o p o f Sens a n d g r a n d a l m o n e r . W h e n M a r i e d e M é d i c i s b e c a m e r e g e n t in 1 6 1 0 , h e served o n t h e r o y a l c o u n c i l as h e r p r i n c i p a l adviser o n religious affairs. H e w a s a m o d e r a t e U l t r a m o n t a n e a n d s p o k e against t h e t h i r d estate's p r o p o s a l at t h e Estates G e n e r a l o f 1 6 1 4 t o pass a l a w e x c l u d i n g t h e p o p e f r o m i n t e r f e r e n c e in F r e n c h secular affairs. H e presided at t h e assembly o f n o t a b l e s at R o u e n in 1 6 1 7 . S E C O N D A R Y L I T E R A T U R E (part II): Feret 1 8 7 7 ; H a y d e n 1 9 7 4 . D U P L E S S I S M O R N A Y , P H I L I P P E : see M O R N A Y , P H I L I P P E D U P L E S S I S D U VAIR, GUILLAUME 1 5 5 6 - 1 6 2 1 . B o r n in a Parisian famille de robe, h e s t u d i e d l a w a n d p r o c e e d e d in 1 5 7 2 t o t h e Paris b a r . After a p e r i o d in t h e service o f t h e d u k e o f A l e n ç o n , h e r e t u r n e d t o Paris in 1 5 8 2 a n d w r o t e his Discours politiques ( 1 5 8 6 ) . H e p l a y e d a m e d i a t i n g r o l e in t h e conflict o v e r t h e C a t h o l i c L e a g u e , w r i t i n g De la Constance d u r i n g t h e siege o f Paris in 1 5 9 0 a n d his Exhortation à la paix in 1 5 9 2 . H e w a s later maître des requêtes, conseiller d'état, a n d in 1616—17 garde des sceaux. H e b e c a m e b i s h o p o f Lisieux in 1 6 1 8 . H e w a s o n e o f t h e m a j o r r e p r e s e n t a t i v e s o f t h e tradition of Christian Stoicism. S E C O N D A R Y L I T E R A T U R E (part I V ) : R a d o u a n t 1908; Dictionnaire de spiritualité, ni, p p . 1 5 5 4 - 7 ; Dictionnaire d'Histoire et de Géographie Ecclésiastiques, x i v , p p . 1 2 1 1 — 1 3 .

672 Cambridge Histories Online © Cambridge University Press, 2008

Biographies EACHARD, JOHN c. 1636—97. Elected m a s t e r o f St C a t h a r i n e ' s C o l l e g e C a m b r i d g e in 1 6 7 5 , v i c e - c h a n c e l l o r in 1 6 7 9 a n d 1 6 9 5 . H e is k n o w n t o c h u r c h historians for his Grounds and Occasions of the Contempt of the Clergy ( 1 6 7 0 ) . His t w o d i a l o g u e s , Mr Hobbes's State of Nature Considered ( 1 6 7 2 ) a n d Some Opinions of Mr Hobbes ( 1 6 7 3 ) w e r e i m m e n s e l y successful. T h e i r clever p a r o d i e s a n d j a u n t y c o n v e r s a t i o n a l w i t p u t A u g u s t a n p r o s e at t h e service o f a c o n v e n t i o n a l t h e o l o g i c a l a t t a c k o n H o b b e s . R e p r i n t e d as late as 1 7 7 4 , t h e y a p p e a r e d in G e r m a n translation in 1 6 8 0 . T h e T o r y j o u r n a l i s t O l d i s w o r t h , w h o p u b l i s h e d d i a l o g u e s against H o b b e s , L o c k e , a n d W h i g g i s m , d r e w heavily from the 'famous dialogue' o f ' t h e incomparable Eachard' (1709, p. xiv). SECONDARY LITERATURE

ELYOT, SIR

(part V ) : B o w i e 1 9 5 1 ; M i n t z 1 9 6 2 .

THOMAS

c. 1490—1546. E l y o t w a s a m e m b e r o f T h o m a s M o r e ' s circle a n d , like M o r e , a t t a i n e d h i g h office as secretary t o t h e k i n g ' s c o u n c i l in t h e latter p a r t o f W o l s e y ' s a d m i n i s t r a t i o n . H e differed f r o m M o r e b o t h o n t h e issue o f t h e r o y a l d i v o r c e ( c o n d u c t i n g an e m b a s s y t o C h a r l e s V in s u p p o r t o f H e n r y VIII's case in 1 5 3 1 ) a n d t h a t o f t h e r o y a l ecclesiastical s u p r e m a c y . H o w e v e r , h e w a s n o t closely associated w i t h t h e r e g i m e o f t h e 1530s a n d w i t h d r e w t o w r i t e . His b e s t - k n o w n w o r k , The Boke Named the Governour ( 1 5 3 1 ) , b e l o n g s t o t h e g e n r e best r e p r e s e n t e d b y C a s t i g l i o n e ' s Book of the Courtier ( 1 5 2 8 ) , w h i c h b r o u g h t h u m a n i s m t o b e a r o n t h e task o f t r a n s f o r m i n g t h e E u r o p e a n n o b i l i t y f r o m chivalric w a r r i o r s t o civil c o u r t i e r s . T h e b o o k e l a b o r a t e s a N e o p l a t o n i c c o n c e p t i o n o f t h e h i e r a r c h i c c o s m i c o r d e r . E l y o t shared M o r e ' s e n t h u s i a s m for d e v e l o p i n g t h e v e r n a c u l a r , p r o d u c i n g m a n y translations f r o m t h e classical c o r p u s , t h e first full Latin—English d i c t i o n a r y ( 1 5 3 8 ) , as w e l l as several m o r a l a n d d e v o t i o n a l essays. SECONDARY LITERATURE

(part I): L e h m b e r g i 9 6 0 ; M a j o r 1 9 6 4 .

ERASMUS, DESIDERIUS 1 4 6 6 - 1 5 3 5. After b e i n g s c h o o l e d u n d e r t h e B r e t h r e n o f t h e C o m m o n Life, a n d a b a n d o n i n g a m o n a s t i c v o c a t i o n , E r a s m u s s p e n t his career as a p e r i p a t e t i c scholar. U n c o n s t r a i n e d b y p r i n c e l y service o r u n i v e r s i t y t e a c h i n g , h e m o v e d a b o u t E u r o p e ' s centres o f s c h o l a r s h i p , a d v a n c i n g h u m a n i s m t h r o u g h research, t h e p r o d u c t i o n o f critical texts, t h e d e v e l o p m e n t o f a l i t e r a t u r e o n stylistics a n d p e d a g o g y , an a d m o n i t o r y p r o p a g a n d a . T h e c o n t r o l l i n g i n s p i r a t i o n w a s t h e vision o f a r e f o r m e d Respublica Christiana, Christendom renewed spiritually, c u l t u r a l l y , a n d politically. It can b e s u m m a r i s e d in t h e n o t i o n o f t h e Philosophia Christi, t h e p e r f e c t i o n o f h u m a n w i s d o m t h r o u g h d i v i n e r e v e l a t i o n . T h e p h i l o s o p h i c a l basis is laid o u t in t h e Antibarbari (1488—93); t h e idea is p o p u l a r i s e d in t h e d e v o t i o n a l classic, Enchiridion Militis Christiani ( 1 5 1 6 ) . M e a n w h i l e , E r a s m u s d e l i v e r e d d e v a s t a t i n g critiques o f late m e d i e v a l m o r e s in Encomium moriae (1508) a n d in brillinat essays in s u c c e e d i n g e d i t i o n s o f t h e Adagia. Later h e t u r n e d t o a furious assault o n L u t h e r , b e g i n n i n g w i t h De libero arbitrio (1524). SECONDARY LITERATURE

FAUCHET,

(part I): H u i z i n g a 1 9 5 2 ; Kisch i 9 6 0 ; T r a c y 1 9 7 8 ; B r a d s h a w 1 9 8 2 .

CLAUDE

1530—1602. F a u c h e t w a s t h e son o f a procureur at t h e Paris C h á t e l e t , a n d h i m s e l f b e c a m e a j u d g e t h e r e . In 1 5 6 8 h e r e c e i v e d a h i g h e r office as s e c o n d p r e s i d e n t o f t h e com des monnais, a d v a n c i n g t o first p r e s i d e n t in 1 5 8 1 . A l t h o u g h h e h a d b e e n t r a i n e d in l a w at O r l e a n s , h e h a d s t r o n g l i t e r a r y interests, a n d f r e q u e n t e d t h e circle o f P i e r r e R o n s a r d . H e left Paris d u r i n g t h e w a r s o f t h e L e a g u e , a n d r e t u r n e d t h e r e in t h e train o f t h e v i c t o r i o u s H e n r i IV in 1 5 9 4 . H e w a s o n e o f t h e greatest a n t i q u a r i a n s o f his t i m e , a n d p u b l i s h e d collections o f m e d i e v a l l i t e r a r y a n d historical sources. H e also w r o t e a w o r k o n t h e o r i g i n o f F r e n c h magistracies, a n d translated T a c i t u s . S E C O N D A R Y L I T E R A T U R E (part II): E s p i n e r - S673 c o t t 1 9 3 8 ; Kelley 1 9 7 0 .

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Biographies FILMER, SIR

ROBERT

1 5 8 8 - 1 6 5 3 . A K e n t i s h g e n t l e m a n , o n e o f e i g h t e e n c h i l d r e n , F i l m e r w a s e d u c a t e d at T r i n i t y C o l l e g e , C a m b r i d g e , a n d L i n c o l n ' s I n n . K n i g h t e d in 1 6 1 9 , h e i n h e r i t e d his father's estate in 1 6 2 9 . F i l m e r m a r r i e d t h e d a u g h t e r a n d co-heiress o f M a r t i n H e t o n , b i s h o p o f Ely, a n d his friends i n c l u d e d P e t e r H e y l i n , a L a u d i a n cleric o f o u t s p o k e n l y absolutist v i e w s . H i s ideas are t y p i c a l o f English absolutist t h i n k i n g in t h e decades b e f o r e t h e C i v i l W a r , t h o u g h his m a i n w o r k , Patriar cha, w a s n o t p u b l i s h e d u n t i l 1 6 8 0 . D u r i n g t h e C i v i l W a r h e w a s briefly imprisoned by the parliamentarians. H e w r o t e on blasphemy and witchcraft, and published political w o r k s i n c l u d i n g c o m m e n t a r i e s o n A r i s t o t l e , G r o t i u s , H o b b e s , a n d M i l t o n . S E C O N D A R Y L I T E R A T U R E (part III): Laslett 1 9 4 8 ; S c h o c h e t 1 9 7 5 ; D a l y 1 9 7 9 ; T u c k 1 9 8 6 . FLETCHER A N D R E W 1 6 5 5 — 1 7 1 6 . H e i r t o a c o u n t r y g e n t l e m a n o f S a l t o u n in East L o t h i a n , Fletcher travelled a b r o a d in his y o u t h . H e b e c a m e associated w i t h t h e W h i g cause in S c o t l a n d f r o m 1 6 7 8 , a n d j o i n e d M o n m o u t h ' s unsuccessful i n v a s i o n in 1 6 8 5 a n d W i l l i a m Ill's successful o n e in 1 6 8 8 , a l t h o u g h thereafter h e s t r u g g l e d t o c o n t a i n W i l l i a m ' s p o w e r s in S c o t l a n d . His Discourse concerning Militias ( 1 6 9 7 - 8 ) w a s t h e first o f his m a j o r political w r i t i n g s , w h i c h offered incisive if n o s t a l g i c a c c o u n t s o f S c o t l a n d ' s political, e c o n o m i c , a n d social difficulties. S E C O N D A R Y L I T E R A T U R E (part III): R o b e r t s o n 1 9 8 5 . F O R T E S C U E , SIR J O H N c

- 1395—c. 1 4 7 7 . T h e son o f a D e v o n s h i r e k n i g h t , F o r t e s c u e e n t e r e d L i n c o l n ' s I n n . H e w a s several t i m e s a m e m b e r o f p a r l i a m e n t b e f o r e b e c o m i n g s e r j e a n t - a t - l a w in a b o u t 1 4 3 0 . H a v i n g served o n i n n u m e r a b l e j u d i c i a l c o m m i s s i o n s , h e w a s a p p o i n t e d chief j u s t i c e o f K i n g ' s B e n c h in 1 4 4 2 . D i s p l a c e d a n d a t t a i n t e d in 1 4 6 1 o w i n g t o his Lancastrian allegiance, h e a c c o m p a n i e d t h e q u e e n a n d P r i n c e E d w a r d a b r o a d . H e r e t u r n e d w i t h t h e m t o E n g l a n d in 1 4 7 1 o n l y t o b e c a p t u r e d at t h e b a t t l e o f T e w k e s b u r y , b u t e v e n t u a l l y o b t a i n e d a reversal o f his a t t a i n d e r . F o r t e s c u e ' s p r i n c i p a l w o r k s , t h e De natura legis nature, t h e De laudibus legum Anglie, a n d t h e De dominio regale et politico, a p p e a r all t o h a v e b e e n c o m p o s e d d u r i n g his d e c a d e o f exile. SECONDARY LITERATURE

GANSFORT, JOHN

(part II): C h r i m e s , in F o r t e s c u e 1 9 4 9 ; B u r n s 1 9 8 5 . WESSEL

c. 1 4 1 9 - 8 9 . B o r n at G r o n i n g e n , h e w a s first a p u p i l a n d t h e n a t e a c h e r in t h e s c h o o l at Z w o l l e , w h e r e h e e n c o u n t e r e d t h e B r e t h r e n o f t h e C o m m o n Life. After s t u d y i n g in t h e arts faculties o f C o l o g n e , L o u v a i n , a n d Paris, h e t a u g h t for t h r e e years at C o l o g n e b e f o r e r e t u r n i n g t o Paris in 1 4 5 9 , w h e r e h e r e m a i n e d u n t i l a b o u t 1 4 7 4 , also t w i c e visiting R o m e . B a c k in Z w o l l e f r o m 1 4 7 5 h e i n c u r r e d s o m e suspicion o f heresy, b u t e n j o y e d episcopal p r o t e c t i o n a n d g a i n e d a c o n s i d e r a b l e r e p u t a t i o n . T h e last years o f his life f o u n d h i m o n c e m o r e in G r o n i n g e n , w h e r e h e lived in t h e c o v e n t o f t h e P o o r C l a r e s . A p a r t f r o m c o r r e s p o n d e n c e , his s u r v i v i n g w r i t i n g s are o n spiritual a n d d o c t r i n a l subjects. T h e m o s t ecclesiastica. i m p o r t a n t i t e m for his political t h i n k i n g is t h e De dignitate et potestate S E C O N D A R Y L I T E R A T U R E (part I): M i l l e r , in G a n s f o r t 1 9 1 7 , 1 ; V a n R h i j n 1 9 3 3 ; O a k l e y 1 9 8 8 . GARDINER, STEPHEN c. 1490—1555. T r a i n e d in c o m m o n a n d civil l a w , h e c a m e t o p l a y an i m p o r t a n t r o l e in t h e unsuccessful d i p l o m a t i c effort t o secure p a p a l a n n u l m e n t o f H e n r y VIII's m a r r i a g e t o C a t h e r i n e o f A r a g ó n . A p p o i n t e d b i s h o p o f W i n c h e s t e r in 1 5 3 1 , h e s u p p o r t e d t h e r o y a l s u p r e m a c y o v e r t h e E n g l i s h c h u r c h a n d in its defence w r o t e his De vera obedientia ( 1 5 3 5 ) . His later o p p o s i t i o n t o t h e i n t r o d u c t i o n o f P r o t e s t a n t v i e w s led t o his d e p r i v a t i o n a n d

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Biographies i m p r i s o n m e n t d u r i n g t h e r e i g n o f E d w a r d V I . S u b s e q u e n t l y r e s t o r e d t o his see b y M a r y T u d o r , he accepted the restoration of Catholicism and b e c a m e lord chancellor. S E C O N D A R Y L I T E R A T U R E (part II): M u l l e r 1 9 2 6 ; S m i t h 1 9 5 3 . GENTILI, A L B E R I C O 1552—1608. A j u r i s t e d u c a t e d at P e r u g i a , w h e r e his family w a s suspected o f P r o t e s t a n t i s m . H e fled t o E n g l a n d , a r r i v i n g in O x f o r d in 1 5 8 0 , w h e r e h e t a u g h t l a w in t h e o l d scholastic style, a t t a c k i n g t h e legal h u m a n i s t s . A p p o i n t e d regius professor o f civil l a w in 1 5 8 7 , h e t h e n b e g a n p u b l i c a t i o n o f De iure belli, w h i c h established h i m as o n e o f t h e f o u n d e r s o f m o d e r n i n t e r n a t i o n a l l a w . H e d e f e n d e d a b s o l u t e m o n a r c h y in his Regales disputationes. H e spent his last years in L o n d o n , b e c o m i n g a d v o c a t e t o t h e Spanish a m b a s s a d o r in 1 6 0 5 . S E C O N D A R Y L I T E R A T U R E (part I): P h i l l i p s o n , in G e n t i l i 1 9 3 3 ; V a n d e r M o l e n 1 9 3 7 ; Panizza 1981. GENTILLET, I N N O C E N T c. 1532—88. A n active lay leader o f t h e P r o t e s t a n t m o v e m e n t in t h e p r o v i n c e o f D a u p h i n c , p a r t i c u l a r l y in t h e city o f V i e n n e , G e n t i l l e t is n e v e r t h e l e s s b e t t e r k n o w n for t h e p o l e m i c a l treatises h e p u b l i s h e d d u r i n g t w o p e r i o d s o f exile in G e n e v a , f r o m 1 5 7 2 t o 1 5 7 8 , a n d again f r o m 1 5 8 5 t o his d e a t h in 1 5 8 8 . H e w a s b y t r a i n i n g a j u r i s c o n s u l t a n d served as a m e m b e r o f t h e bi-confessional c o u r t o f his n a t i v e p r o v i n c e b e t w e e n his p e r i o d s o f exile. H e is best k n o w n for his Antimachiavel, first p u b l i s h e d in 1 5 7 6 , w h i c h links t h e a m o r a l political t h o u g h t o f M a c h i a v e l l i w i t h t h e p o l i c y o f t h e F r e n c h r o y a l g o v e r n m e n t u n d e r the influence of Catherine de Medicis. S E C O N D A R Y LITERATURE

GIANNOTTI,

(part II): M e i n e c k e 1 9 5 7 ; S t e w a r t 1 9 6 9 ; M a s t e l l o n e 1 9 7 2 .

DONATO

1 4 9 2 — 1 5 7 3 . S t u d i e d in F l o r e n c e ; b e t w e e n 1 5 2 0 a n d 1 5 2 5 l e c t u r e d at Pisa o n p o e t r y , r h e t o r i c , a n d G r e e k . W h e n t h e r e p u b l i c a n r e g i m e w a s r e s t o r e d in 1 5 2 7 , h e w a s elected t o t h e post o f secretary o f t h e T e n w h i c h M a c h i a v e l l i h a d h e l d until 1 5 1 2 . H a v i n g b e e n b a n i s h e d f r o m the city after t h e fall o f t h e r e p u b l i c in 1 5 3 0 , h e c o m p o s e d t h e Delia repubblica fiorentina a n d c o m p l e t e d t h e final v e r s i o n o f t h e Libro della repubblica de' Viniziani. After t h e assassination in 1 5 2 7 o f D u k e A l e s s a n d r o d e ' M e d i c i , h e j o i n e d t h e F l o r e n t i n e exiles at B o l o g n a a n d V e n i c e . In 1 5 6 2 h e settled in V e n i c e , later in P a d u a , a n d finally in R o m e . A m o n g his literary w o r k s are Italian c o m e d i e s a n d t h e Dialogi de* giorni che Dante consume* nel cercare VInferno e 'I Purgatorio (c. 1 5 4 6 ) , in w h i c h h e extols t h e t y r a n n i c i d e o f B r u t u s . After t h e Siennese r e v o l t against t h e Spanish in 1 5 5 2 , h e w r o t e a Discorso sopra il riordinare la repubblica di Siena. S E C O N D A R Y L I T E R A T U R E (part I): R i d o l f i 1 9 4 2 ; S t a r n 1 9 6 8 ; C a d o n i 1 9 7 8 b . GOODMAN, CHRISTOPHER c. 1520—1603. E d u c a t e d at O x f o r d a n d b e c a m e professor o f d i v i n i t y in 1 5 4 8 . After M a r y T u d o r ' s accession h e left E n g l a n d for t h e c o n t i n e n t a n d e v e n t u a l l y settled in G e n e v a w h e r e , in 1 5 5 5 , h e w a s a p p o i n t e d p a s t o r for t h e c h u r c h o f English refugees. His How Superior Powers Ought to be Obeyed w a s p u b l i s h e d in G e n e v a in 1 5 5 8 . His w r i t i n g s d e n o u n c i n g w o m e n c r e a t e d a b a c k l a s h in E n g l a n d w h i c h p r e v e n t e d his r e t u r n t h e r e after Elizabeth's accession, a n d h e s p e n t six years in S c o t l a n d a n d four m o r e in Ireland. H e r e t u r n e d t o E n g l a n d p e r m a n e n t l y in 1 5 7 0 a n d w a s accused o f n o n c o n f o r m i t y t h e f o l l o w i n g year. S E C O N D A R Y L I T E R A T U R E (part II): C o l l i n s o n 1 9 6 7 . GOTT, SAMUEL 1 6 1 3 — 7 1 . A g e n t l e m a n scholar, G o t t w a s s t r o n g l y c o n n e c t e d w i t h t h e g e n t r y - i r o n m a s t e r families o f East Sussex a n d L o n d o n . E d u c a t e d at C a m b r i d g e a n d t h e Inns o f C o u r t h e

675

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Biographies e m b o d i e d t h a t c o m b i n a t i o n o f classicism, h e b r a i s m , a n d m i l l e n a r i a n p i e t y t o b e f o u n d in t h e circles o f M i l t o n , H a r t l i b , D u r y , a n d W i l l i a m P e t t y . H e w a s elected t o t h e L o n g P a r l i a m e n t in 1 6 4 5 a n d in 1 6 5 0 a r g u e d for de facto r e c o g n i t i o n o f t h e n e w English r e p u b l i c . As w e l l as Nova Solyma (1648) h e p u b l i s h e d An Essay of the True Happiness of Man (1650) a n d The Divine History of the Genesis of the World ( 1 6 7 0 ) . S E C O N D A R Y LITERATURE

GRÉGOIRE,

(part II): B e g l e y , in G o t t 1 9 0 2 ; P a t r i c k 1 9 7 7 ; D a v i s 1 9 8 1 a , ch. 5.

PIERRE

1 5 4 0 — 1 6 1 7 . After s t u d y i n g b o t h c a n o n a n d civil l a w G r é g o i r e t a u g h t at T o u l o u s e a n d C a h o r s . In 1 5 8 2 D u k e C h a r l e s III o f L o r r a i n e chose h i m as professor o f b o t h laws at P o n t - a M o u s s o n , w h e r e G r é g o i r e a n d W i l l i a m B a r c l a y resisted Jesuit influence. Besides c o n t r i b u t i n g t o t h e d e b a t e o n ' m e t h o d ' in t h e s t u d y o f l a w , h e p u b l i s h e d t w o m a j o r treatises: Syntagma iuris universi ( 1 5 8 2 ) a n d De república ( 1 5 9 6 ) , t h e latter m o d i f y i n g t h e absolutist v i e w s o f Bodin. S E C O N D A R Y LITERATURE

GROTIUS,

(part I): C a r l y l e 1 9 0 3 - 3 6 , vi; C o l l o t 1 9 6 5 ; G a m b i n o 1 9 7 5 .

HUGO

1583—1645. H u g o G r o t i u s (the Latinised n a m e o f H u i g dc G r o o t ) w a s b o r n at Delft in t h e U n i t e d P r o v i n c e s . H e w a s e d u c a t e d at Leiden U n i v e r s i t y , t h e n b e c a m e adviser t o the D u t c h s t a t e s m a n O l d e n b a r n e v e l t . In 1 6 1 9 h e w a s i m p l i c a t e d in O l d c n b a r n e v e l t ' s fall, tried for treason a n d i m p r i s o n e d ; b u t h e escaped a n d lived in exile until his d e a t h in 1 6 4 5 , a c t i n g as S w e d i s h a m b a s s a d o r in Paris f r o m 1 6 3 4 . H e w r o t e a n u m b e r o f i m p o r t a n t w o r k s o n D u t c h politics, 1 5 9 9 — 1 6 1 9 , a n d t h e m a n u s c r i p t De lure Praedae o n n a t u r a l l a w ( 1 6 0 5 ) , o n e c h a p t e r o f w h i c h w a s p u b l i s h e d as Mare Liberum ( 1 6 0 9 ) . His m a j o r w o r k w a s De Jure Belli ac Pads ( 1 6 2 5 ) , b u t his t h e o l o g i c a l w r i t i n g s w e r e also i m p o r t a n t , n o t a b l y De Veritate Religionis Christianae (1627). SECONDARY

LITERATURE

(part IV): K n i g h t 1 9 2 5 ; T u c k 1 9 7 9 , ch. 3.

GUEVARA, ANTONIO

DE

c. 1480—1545. B o r n o f an A s t u r i a n family, h e b e c a m e a p a g e in t h e h o u s e h o l d o f P r i n c e J u a n , son o f F e r d i n a n d a n d Isabella. After t h e p r i n c e ' s d e a t h in 1 4 9 7 , G u c v e r a b e c a m e a Franciscan a n d w a s later a c e l e b r a t e d p r e a c h e r . H e w a s successively i n q u i s i t o r o f T o l e d o a n d b i s h o p first o f G u a d i x a n d t h e n o f M o n d e ñ a d o . His w r i t i n g s c i r c u l a t e d w i d e l y in m a n u s c r i p t , t h e first t o b e p u b l i s h e d , a n d p e r h a p s t h e m o s t n o t a b l e , b e i n g his Relox de principes ( 1 5 2 9 ) . H e has been excellence'. described as ' t h e c o u r t i e r - w r i t e r par SECONDARY

LITERATURE

GUICCIARDINI,

(part I): C a s t r o 1 9 5 6 , p p . 5 3 - 7 2 ; G i b b s i 9 6 0 ; G r e y 1 9 7 3 .

FRANCESCO

1 4 8 3 - 1 5 4 0 . B o r n in F l o r e n c e i n t o a patrician family p r o m i n e n t u n d e r L o r e n z o d e ' M c d i c i , he b e g a n , after s t u d y i n g l a w , a p u b l i c career in his city, and c o n t i n u e d it, u n d e r t h e M e d i c i p o p e s Leo X and C l e m e n t VII, in t h e a d m i n i s t r a t i o n o f t h e Papal States; in 1 5 2 6 - 7 h e w a s l i e u t e n a n t o f t h e p o p e in the a r m y o f t h e L e a g u e o f C o g n a c . After t h e fall o f t h e last Florentine republic, he was g o v e r n o r of Bologna (153 1-4) and then counsellor of D u k e A l e s s a n d r o d e ' M e d i c i , a n d in 1 5 2 7 p l a y e d a l e a d i n g r o l e in s e c u r i n g C o s i m o ' s succession. A u t h o r o f t w o histories o f F l o r e n c e , the Storia fiorentina ( 1 5 0 8 - 9 ) a n d the ( f r a g m e n t a r y ) Cose fiorentine (1528—9), a n d o f t h e Storia d'Italia ( 1 5 3 7 - 4 0 ) , his greatest w o r k . A p a r t f r o m t h e Dialogo del reggimento di Firenze (c. i$2i—c. 1 5 2 5 ) , he w r o t e a n u m b e r o f discourses o n political subjects, an (unfinished) c o m m e n t a r y on t h e Discorsi o f M a c h i a velli ( 1 5 3 0 ) , m a x i m s 676 collected in t h e Ricordi, a n d m e m o i r s . S E C O N D A R Y L I T E R A T U R E (part I): R i d o l f i i 9 6 0 ; G i l b e r t 1 9 6 5 ; Sasso 1 9 8 4 .

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Biographies HAKEWILL, WILLIAM 1 5 7 4 - 1 6 5 5. O n e o f L i n c o l n ' s I n n ' s m o s t respected chief b e n c h e r s , H a k e w i l l w a s a m e m b e r o f t h e S o c i e t y o f A n t i q u a r i e s a n d possessed copies o f t h e Modus. T h e s e interests h a r d l y e n d e a r e d h i m t o J a m e s I, n o r d i d his o p p o s i t i o n t o i m p o s i t i o n s , y e t h e w a s m a d e solicitor general to the queen. A veteran m e m b e r of parliament, Hakewill was a p r o p o n e n t of the Protestation a n d in 1628 assisted C o k e in a crucial c o n f e r e n c e w i t h t h e L o r d s . S i d i n g w i t h t h e L o n g P a r l i a m e n t h e b e c a m e m a s t e r in c h a n c e r y a n d sat w i t h t h e c o m m i s s i o n e r s o f t h e g r e a t seal t o h e a r causes. B o t h his Libertie of the Subject a n d t h e Manner of Holding Parliaments w e r e p u b l i s h e d in 1 6 4 1 , a n d t h e latter w a s e n l a r g e d as Modus Tenendi Parliamentum ( 1 6 5 9 , 1 6 7 1 ) . S E C O N D A R Y L I T E R A T U R E (part III): T h o m p s o n 1 9 4 8 ; R u s s e l l 1 9 7 9 ; P r o n a y a n d T a y l o r 1 9 8 0 . HALE, SIR M A T T H E W 1609—76. E d u c a t e d at M a g d a l e n H a l l , O x f o r d , a n d L i n c o l n ' s I n n , this legal h i s t o r i a n a n d scholar w a s t h e m o s t e m i n e n t l a w y e r a n d j u d g e o f his a g e . L i v i n g t h r o u g h t h e C i v i l W a r a n d I n t e r r e g n u m , h e m a d e t h e necessary a c c o m m o d a t i o n s . H e w a s successively j u s t i c e o f t h e c o m m o n pleas, l o r d chief b a r o n o f e x c h e q u e r , a n d chief j u s t i c e o f k i n g ' s b e n c h . As a practising l a w y e r , h e offered his services t o Strafford, L a u d , a n d C h a r l e s I, b u t s u b s e q u e n t l y c h a i r e d a l a w r e f o r m c o m m i s s i o n u n d e r C r o m w e l l a n d s e r v e d h i m as m e m b e r o f a t r a d e c o m m i t t e e o f t h e c o u n c i l o f state. H e w a s an i n a c t i v e m e m b e r o f C r o m w e l l ' s first p a r l i a m e n t a n d o f t h e c o n v e n t i o n p a r l i a m e n t o f 1 6 6 0 . A m o n g his p u b l i s h e d w r i t i n g s are History of the Common Law ( 1 7 1 3 ) a n d The Prerogatives of the King ( 1 9 7 6 ) , b o t h p u b l i s h e d posthumously. S E C O N D A R Y LITERATURE

HARDING,

(part III): P o c o c k 1 9 5 7 ; I n t r o d u c t i o n s t o H a l e 1 9 7 1 , 1 9 7 6 ; Y a l e 1 9 7 2 .

THOMAS

1 5 1 6 - 7 2 . Like J o h n J e w e l , w h o s e defence o f t h e A n g l i c a n c h u r c h h e refuted, H a r d i n g w a s a D e v o n m a n . H e w a s e d u c a t e d at W i n c h e s t e r a n d N e w C o l l e g e , O x f o r d , w h e r e h e b e c a m e a fellow in 1 5 3 6 . H e w a s a p p o i n t e d professor o f H e b r e w at O x f o r d a n d chaplain t o H e n r y G r e y , d u k e o f Suffolk. H e w a s a P r o t e s t a n t u n d e r E d w a r d VI, b u t c o n v e r t e d t o C a t h o l i c i s m at t h e e n d o f t h e r e i g n , for w h i c h h e w a s r e p r o a c h e d b y L a d y J a n e G r e y , Suffolk's d a u g h t e r . U n d e r M a r y h e w a s chaplain t o B i s h o p G a r d i n e r . In 1 5 5 8 h e w a s d e p r i v e d o f his offices, a n d fled t o L o u v a i n . His v a r i o u s w o r k s against J e w e l w e r e p u b l i s h e d at A n t w e r p a n d L o u v a i n in t h e years 1564—8. S E C O N D A R Y LITERATURE

(part II): H o l m e s 1 9 8 2 .

H A R R I N G T O N , JAMES 1 6 1 1 - 7 7 . T h e eldest son o f Sir S a p c o t e H a r r i n g t o n o f U p t o n , N o r t h a m p t o n s h i r e , H a r r i n g t o n w a s e d u c a t e d at T r i n i t y C o l l e g e , O x f o r d , a n d thereafter travelled e x t e n s i v e l y in E u r o p e . H e a v o i d e d t a k i n g ideas in t h e C i v i l W a r , b u t in 1 6 4 7 , w i t h p a r l i a m e n t s a p p r o v a l , b e c a m e an a t t e n d a n t t o C h a r l e s I. His first p u b l i s h e d w o r k . Oceana ( 1 6 5 6 ) , w a s his m o s t i m p o r t a n t . It w a s f o l l o w e d b y a series o f s h o r t e r w o r k s . In 1 6 5 9 h e p r o p o s e d a r e p u b l i c a n solution to the b r e a k d o w n of authority that followed C r o m w e l l ' s death, and chaired m e e t i n g s o f t h e R o t a C l u b , a c o n s t i t u t i o n a l d e b a t i n g society. After t h e R e s t o r a t i o n , w h e n h e p u b l i s h e d n o t h i n g , h e w a s suspected ( i m p r o b a b l y ) o f c o n s p i r i n g against C h a r l e s II. H i s close friends i n c l u d e d H e n r y N e v i l e a n d A n d r e w M a r v e l l . S E C O N D A R Y L I T E R A T U R E (part III): Fink 1 9 4 5 ; M a c p h e r s o n 1 9 6 2 ; S m i t h 1 9 7 1 ; P o c o c k , in Harrington 1977; Goldie 1987. H A Y W A R D , SIR J O H N c. 1 5 6 4 - 1 6 2 7 . After t a k i n g his M A at P e m b r o k e C o l l e g e , C a m b r i d g e , H a y w a r d d e v o t e d h i m s e l f t o h i s t o r y a n d l a w . H e w a s a client o f R o b e r t D e v e r e u x , earl o f Essex, t o w h o m in

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Biographies 1 5 9 9 h e d e d i c a t e d his a c c o u n t o f t h e d e p o s i t i o n o f R i c h a r d II. His b o o k w a s used as e v i d e n c e o f p r e m e d i t a t i o n in Essex's trial after t h e failed c o u p o f 1 6 0 1 . H a y w a r d w a s i m p r i s o n e d , b u t w a s r e s t o r e d t o f a v o u r b y J a m e s I, b e c o m i n g h i s t o r i o g r a p h e r t o P r i n c e H e n r y . H e p u b l i s h e d an a n s w e r t o R o b e r t P a r s o n s ' Conference about the Next Succession in 1 6 0 3 . H e w a s a p p o i n t e d t o Chelsea C o l l e g e in 1 6 1 0 a n d k n i g h t e d in 1 6 1 9 . A m o n g his o t h e r w o r k s w e r e histories o f t h e first N o r m a n k i n g s a n d o f t h e r e i g n o f E d w a r d V I . S E C O N D A R Y L I T E R A T U R E (part II): L e v y 1 9 8 7 . HERLE, CHARLES 1598—1659. P u r i t a n d i v i n e a n d political theorist, h e w a s e d u c a t e d at E x e t e r C o l l e g e , O x f o r d . A p e r i o d as t u t o r t o t h e earl o f D e r b y led t o his a c q u i r i n g t h e rich r e c t o r y o f W i n w i c k in Lancashire. H e r l e s y m p a t h i s e d w i t h t h e L o n g P a r l i a m e n t , a n d A n t h o n y W o o d t h o u g h t h i m ' e s t e e m e d b y t h e factious p a r t y t h e p r i m e m a n o f n o t e a n d p o w e r a m o n g t h e c l e r g y ' . T h i s r e m a r k w a s d u e t o t h e w i d e l y influential Fuller Answer ( 1 6 4 2 ) , b u t also t o H e r l e ' s services in t h e W e s t m i n s t e r a s s e m b l y , o f w h i c h h e b e c a m e p r o l o c u t o r in 1 6 4 6 . H i s tracts i n c l u d e An Answer to Dr Feme's Reply ( 1 6 4 3 ) a n d Ahab's Fall ( 1 6 4 4 ) . After C h a r l e s I's d e a t h H e r l e w i t h d r e w t o W i n w i c k a n d , r e a c t i n g against t h e C o m m o n w e a l t h , w a s suspected o f c o m p l i c i t y in royalist p l o t t i n g . SECONDARY LITERATURE

(part III): W e s t o n 1 9 6 5 ; W e s t o n a n d G r e e n b e r g 1 9 8 1 .

HOBBES, T H O M A S 1588—1679. T h e son o f an A n g l i c a n priest, h e s t u d i e d at O x f o r d , 1603—8. E m p l o y e d as t u t o r a n d secretary b y t h e C a v e n d i s h family, h e t o o k his p u p i l o n a t o u r o f F r a n c e a n d Italy in 1 6 1 4 - 1 5 . H e w o r k e d occasionally as secretary t o B a c o n , c. 1 6 1 8 - 2 5 , a n d w a s a m e m b e r o f t h e V i r g i n i a C o m p a n y , 1622—4. H i s t r a n s l a t i o n o f T h u c y d i d e s a p p e a r e d in 1 6 2 9 . H e visited t h e c o n t i n e n t a g a i n in 1629—30 a n d 1634—6, a n d d e v e l o p e d an interest in c o n t i n e n t a l science a n d p h i l o s o p h y . His first political w o r k , The Elements of Law, w a s w r i t t e n in 1 6 4 0 . H e lived (published in F r a n c e , 1 6 4 0 - 5 1 , w h e r e h e w r o t e De Cive ( p u b l i s h e d 1 6 4 2 ) a n d Leviathan 1 6 5 1 ) . H e n e x t r e t u r n e d t o E n g l a n d a n d t h e service o f t h e C a v e n d i s h f a m i l y . H e p u b l i s h e d a m a j o r w o r k o n l o g i c a n d physics, De copore ( 1 6 5 5 ) , a n d e n g a g e d in scientific c o n t r o v e r s i e s w i t h W a l l i s a n d B o y l e in t h e 1650s a n d 1660s. Late w o r k s i n c l u d e Behemoth (a h i s t o r y o f t h e C i v i l W a r ) a n d A Dialogue . . . of the Common Laws of England: w r i t t e n in t h e 1660s, t h e y w e r e n o t p u b l i s h e d u n t i l 1 6 7 9 a n d 1 6 8 1 respectively. S E C O N D A R Y L I T E R A T U R E (part I V ) : P o l i n 1 9 5 3 ; W a r r e n d e r 1 9 5 7 ; B r o w n 1 9 6 5 ; W a t k i n s 1 9 6 5 ; Skinner 1966a, 1966b, 1969, 1972; C r a n s t o n and Peters 1972; P o c o c k 1972; O a k e s h o t t 1 9 7 5 ; Raphael 1977; Reik 1977; Tuck 1979, 1989; Johnston 1986. H O L B O U R N E , SIR R O B E R T d. 1 6 4 9 . A g r e a t l a w y e r a n d royalist a d m i n i s t r a t o r , H o l b o u r n e w a s e d u c a t e d at L i n c o l n ' s I n n , w h e r e h e b e c a m e a b e n c h e r a n d r e a d e r in l a w . As a practising l a w y e r h e d e f e n d e d ( 1 6 3 3 ) a n d J o h n H a m p d e n ' s refusal t o p a y S h i p M o n e y . W i l l i a m P r y n n e ' s Histriomastix H o l b o u r n e w a s still a n t i - c o u r t w h e n elected t o t h e S h o r t P a r l i a m e n t b u t w a s c o n v e r t e d t o t h e k i n g ' s cause in t h e L o n g P a r l i a m e n t . A t O x f o r d h e w a s k n i g h t e d , c r e a t e d D C L , a n d a p p o i n t e d a t t o r n e y g e n e r a l t o t h e p r i n c e o f W a l e s . His r e a d i n g o n t h e statute o f treason w a s p u b l i s h e d in 1 6 4 2 a n d again in 1 6 8 1 . H e sat in t h e p a r l i a m e n t at O x f o r d a n d w a s at U x b r i d g e in 1 6 4 5 b u t n o t at N e w p o r t in 1 6 4 8 . His last years w e r e s p e n t in L o n d o n , w h e r e h e w a s b a r r e d f r o m t h e inns o f c o u r t . SECONDARY LITERATURE

(part III): W e s t o n 1 9 8 0 , 1 9 8 7 ; W e s t o n a n d G r e e n b e r g 1 9 8 1 ; D a l y

1983.

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Biographies HOOKER, RICHARD 1554—1600. B o r n n e a r E x e t e r , a n d e d u c a t e d at t h e local g r a m m a r s c h o o l , H o o k e r b e c a m e a p r o t e g e o f J o h n J e w e l a n d E d w i n S a n d y s , t w o o f Elizabeth's first episcopal a p p o i n t e e s . H e p r o c e e d e d t o C o r p u s C h r i s t i C o l l e g e , O x f o r d , w h e r e h e b e c a m e a fellow in 1 5 7 7 . H e t a u g h t l o g i c in t h e college a n d H e b r e w in t h e u n i v e r s i t y , a n d interested h i m s e l f a b o v e all in t h e o l o g y . After a b r i e f i n c u m b e n c y in B u c k i n g h a m s h i r e h e w a s a p p o i n t e d in 1 5 8 5 t o t h e m a s t e r s h i p o f t h e T e m p l e a n d r a p i d l y b e c a m e e m b r o i l e d in c o n t r o v e r s y w i t h t h e T e m p l e ' s p u r i t a n r e a d e r , W i l l i a m T r a v e r s . In 1 5 9 1 h e r e t i r e d t o t h e l i v i n g o f B o s c o m b e in W i l t s h i r e in Politie, m o v i n g finally ( 1 5 9 5 ) t o B i s h o p s b o u r n e n e a r o r d e r t o w r i t e his Lawes ofEcclesiasticall Canterbury. S E C O N D A R Y L I T E R A T U R E (part II): D ' E n t r é v e s 1 9 3 9 ; K e a r n e y 1 9 5 2 ; M u n z 1 9 5 2 ; M c G r a d e 1963; Cargill T h o m p s o n 1972; Sommerville 1983. HOTMAN, FRANgOIS 1524—90. B o r n at Paris, r e c e i v e d his d o c t o r a t e in l a w at O r l e a n s , t h e n practised a n d later t a u g h t l a w in Paris. After c o n v e r t i n g t o P r o t e s t a n t i s m in 1 5 4 7 , h e t a u g h t l a w successively in L y o n s , L a u s a n n e , a n d S t r a s b u r g , finally r e t u r n i n g t o F r a n c e in 1 5 6 3 t o teach at V a l e n c e , t h e n at B o u r g e s . After t h e St B a r t h o l o m e w ' s D a y massacre, h e fled t o G e n e v a a n d t a u g h t t h e r e u n t i l 1 5 7 8 . H e t h e n m o v e d t o Basle, w h e r e h e died. H e w a s a prolific w r i t e r o f b o t h legal treatises a n d p o l e m i c a l tracts, such as his Epistre envoiée au tigre de la France o f 1 5 6 0 . His m o s t i m p o r t a n t c o n t r i b u t i o n t o political t h e o r y w a s his Francogallia, first p u b l i s h e d in 1 5 7 3 . S E C O N D A R Y L I T E R A T U R E (part II): R e y n o l d s 1 9 3 1 ; D e n n e r t 1 9 6 8 ; Kelley 1 9 7 3 ; K i n g d o n 1 9 8 8 . H U N T O N , PHILIP 1 6 0 4 - 8 2 . A p u r i t a n d i v i n e a n d political theorist, H u n t o n w a s e d u c a t e d at W a d h a m C o l l e g e , O x f o r d . H e w a s s c h o o l m a s t e r at A v e b u r y , m i n i s t e r at D e v i z e s , a n d vicar in W e s t b u r y , W i l t s h i r e . Later h e w a s p r o v o s t o f C r o m w e l l ' s u n i v e r s i t y college at D u r h a m . It d i s a p p e a r e d at t h e R e s t o r a t i o n , a n d so d i d his l i v i n g at W e s t b u r y , w h e r e h e is said t o h a v e h e l d c o n v e n t i c l e s . His Treatise of Monarchie ( 1 6 4 3 ) w a s o n e o f t h e s e m i n a l tracts o f t h e c e n t u r y . P u b l i s h e d in t w o e d i t i o n s , it w a s d e f e n d e d in H u n t o n ' s Vindication ( 1 6 4 4 , 1 6 5 1 ) , r e p r i n t e d d u r i n g t h e E x c l u s i o n Crisis, b u r n e d b y O x f o r d U n i v e r s i t y in 1 6 8 3 , a n d reissued at t h e R e v o l u t i o n . H u n t o n w a s a n s w e r e d b y H e n r y F e m e , Sir R o b e r t F i l m e r , R o b e r t Sheringham, and Nathaniel Johnston. S E C O N D A R Y LITERATURE

(part III): J u d s o n 1 9 6 4 ; W e s t o n a n d G r e e n b e r g 1 9 8 1 ; W o o t t o n 1 9 8 6 .

H Y D E , E D W A R D (Earl o f C l a r e n d o n ) 1609—74. A n o p p o s i t i o n m e m b e r o f p a r l i a m e n t in t h e early stages o f t h e L o n g P a r l i a m e n t , H y d e j o i n e d C h a r l e s I's side in 1 6 4 1 , a n d s h a p e d t h e k i n g ' s m o r e m o d e r a t e p r o n o u n c e m e n t s at t h e o p e n i n g o f t h e C i v i l W a r . H e w a s C h a r l e s II's chief adviser in F r a n c e in t h e 1650s a n d l o r d c h a n c e l l o r f r o m 1 6 6 0 u n t i l i m p e a c h e d a n d exiled in 1 6 6 7 . H e d e v o t e d his last years t o a n d Brief View revising his classic History of the Rebellion, a n d t o w r i t i n g his Autobiography and Survey of Leviathan ( 1 6 7 6 ) . S E C O N D A R Y L I T E R A T U R E (part V ) : W o r m a l d 1 9 5 1 . J A M E S VI and I 1566—1625. J a m e s b e c a m e k i n g o f S c o t l a n d in 1 5 6 7 , a n d o f E n g l a n d in 1 6 0 3 . H e r e a c t e d s t r o n g l y against t h e ideas o f his t u t o r B u c h a n a n a n d against t h e P r e s b y t e r i a n s w h o d o m i n a t e d S c o t l a n d d u r i n g his m i n o r i t y . In 1 6 1 6 J a m e s p u b l i s h e d his collected w r i t i n g s in a substantial folio v o l u m e . M o s t o f these w o r k s w e r e c o n c e r n e d w i t h q u e s t i o n s o f political t h e o r y , a n d i n c l u d e d The True Law of Free Monarchies ( 1 5 9 8 ) , Basilikon Doron ( 1 5 9 8 ; a b o o k

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Biographies o f a d v i c e for his s o n ) , a n d t h r e e treatises against papalist theories o n c h u r c h - s t a t e relations. J a m e s ' ideas w e r e absolutist, b u t h e w a s w i l l i n g t o listen t o criticism o f his exercise o f p o w e r . H e d i d , h o w e v e r , resent attacks o n t h e p o w e r itself, a n d this caused friction w i t h p a r l i a m e n t . T h e k i n g ' s influence e n s u r e d t h a t absolutist ideas w e r e expressed w i t h increasing f r e q u e n c y d u r i n g his r e i g n . S E C O N D A R Y L I T E R A T U R E (part III): M c l l w a i n , in J a m e s I 1 9 1 8 ; G r e e n l e a f 1 9 6 4 ; M a s o n 1 9 8 2 ; Sommerville 1986b. JEWEL, J O H N 1 5 2 2 - 7 1 . A s a fellow o f C o r p u s C h r i s t i C o l l e g e , O x f o r d , J e w e l fell u n d e r t h e influence o f P e t e r M a r t y r V e r m i g l i , t h e Italian P r o t e s t a n t professor o f d i v i n i t y f r o m 1 5 4 8 . After t h e accession o f Q u e e n M a r y J e w e l fled t o F r a n k f u r t , w h e r e h e s u p p o r t e d t h e m o d e r a t e R i c h a r d C o x against J o h n K n o x . H e r e t u r n e d t o E n g l a n d in 1 5 5 9 , a n d w a s c o n s e c r a t e d b i s h o p o f Salisbury in t h e f o l l o w i n g year. T h r o u g h his s e r m o n s at St P a u l ' s C r o s s , his Apology for the Church of England, a n d o t h e r p u b l i s h e d w o r k s , h e w a s t h e p r i n c i p a l d e f e n d e r o f t h e A n g l i c a n c h u r c h in t h e first d e c a d e o f E l i z a b e t h ' s r e i g n . S E C O N D A R Y L I T E R A T U R E (part II): C r o s s 1 9 6 9 . KECKERMANN, BARTHOLOMAEUS 1 5 7 1 - 1 6 0 8 . T r a i n e d initially in t h e o l o g y a n d p h i l o s o p h y , K e c k e r m a n n t a u g h t briefly as professor o f H e b r e w at H e i d e l b e r g in 1600 b e f o r e r e t u r n i n g t o his n a t i v e D a n z i g t o teach p h i l o s o p h y u n t i l his d e a t h in 1 6 0 8 . K e c k e r m a n n w a s an e n t e r p r i s i n g a n d u n t i r i n g d e v o t e e o f t h a t ' m e t h o d i s i n g ' a n d s y s t e m a t i s i n g t e n d e n c y w i t h w h i c h a c a d e m i c s w e r e so often p r e o c c u p i e d in t h e late s i x t e e n t h a n d early s e v e n t e e n t h c e n t u r i e s , e v e n t h o u g h h e w a s m o r e partial t o A r i s t o t l e t h a n t o R a m u s . A l o n g w i t h his Systerna disciplinae politicae (1606) h e w r o t e similarly e n t i t l e d ' s y s t e m s ' o f logic, m a t h e m a t i c s , ethics, a s t r o n o m y , t h e o l o g y , g e o m e t r y , g e o g r a p h y , a n d optics. H i s Opera omnia a p p e a r e d in G e n e v a in 1 6 1 4 . S E C O N D A R Y L I T E R A T U R E : Neue

Deutsche

Biographie.

KNOX, JOHN 1505—72. H a v i n g b e c o m e a P r o t e s t a n t p r e a c h e r in 1 5 4 6 , h e s p e n t several years in E n g l a n d b u t w a s forced t o leave for t h e c o n t i n e n t after M a r y T u d o r ' s accession. H e served as p a s t o r t o t h e c h u r c h o f English refugees in F r a n k f u r t u n t i l forced t o leave in a d i s p u t e o v e r c h u r c h order; he then w e n t to Geneva and b e c a m e pastor of the English church there. H e returned t o S c o t l a n d in 1 5 5 9 a n d w a s active in establishing t h e R e f o r m a t i o n t h e r e , d r a w i n g u p t h e C o n f e s s i o n o f Faith, t h e First B o o k o f D i s c i p l i n e a n d t h e B o o k o f C o m m o n O r d e r . H e p u b l i s h e d a n u m b e r o f political tracts, t h e best k n o w n o f w h i c h w a s his First Blast of the Trumpet Against the Monstrous Regiment of Women, t h o u g h t h e m o s t t h o u g h t f u l w a s his Appellation to the Nobility. H e w a s m i n i s t e r o f t h e H i g h K i r k in E d i n b u r g h u n t i l his d e a t h . S E C O N D A R Y L I T E R A T U R E (part II): J a n t o n 1 9 6 7 ; R i d l e y 1 9 6 8 . LANGUET, HUBERT 1 5 1 8 - 8 1 . H e r e c e i v e d his d o c t o r a t e in l a w at P a d u a in 1 5 4 8 . H e c o n v e r t e d t o P r o t e s t a n t i s m after r e a d i n g M e l a n c h t h o n ' s w o r k s a n d spent t w o years in W i t t e n b e r g . After t r a v e l l i n g e x t e n s i v e l y t h r o u g h E u r o p e for several years, h e r e t u r n e d t o Paris in 1 5 6 0 as d i p l o m a t i c a g e n t for t h e E l e c t o r o f S a x o n y . H e left in 1 5 6 7 a n d carried o u t several missions for t h e E l e c t o r in G e r m a n y , b e i n g sent b y t h e E l e c t o r in 1 5 7 0 t o C h a r l e s I X t o s u p p o r t t h e cause o f t h e H u g u e n o t s . H e r e m a i n e d in Paris for t w o years a n d n a r r o w l y escaped d e a t h in t h e St B a r t h o l o m e w ' s D a y massacres. In 1 5 7 6 t h e E l e c t o r m a d e h i m d i p l o m a t i c a g e n t at t h e c o u r t o f t h e e m p e r o r . T h e Vindiciae contra tyrannos, first p u b l i s h e d in 1 5 7 9 , is often a t t r i b u t e d t o h i m as w e l l as t o his friend P h i l i p p e Duplessis M o r n a y . S E C O N D A R Y L I T E R A T U R E (part II): C h e v r e u l 1 8 5 2 .

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Biographies LAS C A S A S , B A R T O L O M E D E 1476—1566. B o r n in Seville, h e s t u d i e d l a w a n d w e n t , in 1 5 0 2 , t o S a n t o D o m i n g o . H e w a s o r d a i n e d priest in 1 5 1 0 a n d r e t u r n e d t o t h e N e w W o r l d - t o C u b a - in 1 5 1 2 . T w o years later h e g a v e u p his g r a n t o f serfs a n d e s p o u s e d t h e cause o f t h e Indians, t o w h i c h h e d e v o t e d t h e rest o f his l o n g life. His a t t e m p t s t o r e f o r m t h e colonial r e g i m e , e v e n w i t h r o y a l s u p p o r t , w e r e frustrated. H a v i n g b e c o m e a D o m i n i c a n , h e e n d e a v o u r e d t o secure f a v o u r a b l e c o n d i t i o n s for t h è Indians o f P e r u b e f o r e t h e Spanish c o n q u e s t a n d u n d e r t o o k t h e pacification o f n o r t h e r n G u a t e m a l a . H e b e c a m e b i s h o p o f C h i a p a s in M e x i c o in 1 5 4 4 , b u t in 1 5 4 7 r e t u r n e d finally t o S p a i n . His chief w o r k s w e r e t h e p r o d u c t o f his c o n t r o v e r s y o v e r t h e t r e a t m e n t o f t h e Indians w i t h Ginés d e S e p û l v e d a : Apologètica Historia; Historia General de las Indias; Brevissima Relación de la Destruyción de las Indias. S E C O N D A R Y LITERATURE

LAWSON,

(part II): Fabié 1 8 7 9 ; H a n k e 1 9 4 9 , 1 9 5 9 , 1 9 7 4 ; P a g d e n 1 9 8 7 , ch. 4.

GEORGE

c. 1 5 9 8 - 1 6 7 8 . A P r e s b y t e r i a n d i v i n e w h o s u p p o r t e d t h e p a r l i a m e n t a r i a n cause, a n d w a s a friend o f R i c h a r d B a x t e r . H i s m a j o r w o r k , Politica sacra et civilis ( 1 6 6 0 ) , a r e m a r k a b l e synthesis o f E n g l i s h radical t h o u g h t as d e v e l o p e d in t h e 1640s a n d 1650s, has b e e n c r e d i t e d w i t h a n t i c i p a t i o n s o f L o c k e ' s t h e o r y o f t h e dissolution o f g o v e r n m e n t . L a w s o n ' s ecclesiological a n d political ideas r e v i v e d t h e ideas o f Marsilius o f P a d u a . Earlier t h e r e h a d a p p e a r e d his Examination of the Political Part of Mr Hobbes his Leviathan ( 1 6 5 7 ) . Like B a x t e r ( w h o c o p i e d h i m ) his P r e s b y t e r i a n i s m d i d n o t p r e v e n t h i m f r o m a d o p t i n g p h i l o s o p h i c a l positions w h i c h p l a c e d h i m close t o H o b b e s A n g l i c a n critics. S E C O N D A R Y L I T E R A T U R E (part V ) : B o w i e 1 9 5 1 ; F r a n k l i n 1 9 7 8 ; C o n d r e n 1 9 8 9 . LE C A R O N , L O U I S C H A R O N D A S 1 5 3 4 - 1 6 1 3 . A g r a d u a t e in l a w o f B o u r g e s , w h e r e h e s t u d i e d w i t h B a r o n a n d B a u d o i n , Le C a r o n w a s a m a n o f letters, ' v e r n a c u l a r h u m a n i s t ' , p e r i p h e r a l m e m b e r o f t h e Pléiade, a n d P l a t o n i s t p h i l o s o p h e r as w e l l as j u r i s t a n d h i s t o r i a n o f t h e F r e n c h legal t r a d i t i o n . F o r h i m ' t r u e p h i l o s o p h y ' w a s active, n o t c o n t e m p l a t i v e , a n d i n d e e d h e identified it w i t h t h e profession o f j u r i s p r u d e n c e . A m o n g his m a n y w o r k s w e r e his ' n a t i o n a l i s t ' p a n e g y r i c s t o C h a r l e s I X a n d his massive Pandectes, ou Digestes du droit françois, w h i c h c o r r e l a t e d , a n d invidiously c o m p a r e d , the laws and institutions of the French m o n a r c h y w i t h those of a n c i e n t R o m e , a n d w h i c h r e p r e s e n t e d an early c o n t r i b u t i o n t o t h e unification o f F r e n c h l a w s , an effort w h i c h h e r e g a r d e d as essential for t h e ' s o v e r e i g n g o o d ' o f t h e F r e n c h n a t i o n . S E C O N D A R Y L I T E R A T U R E (part I): K e l l e y 1 9 7 6 a . LEIBNIZ, G O T T F R I E D WILHELM 1 6 4 6 — 1 7 1 6 . O n e o f t h e greatest o f G e r m a n p h i l o s o p h e r s . H e stands s o m e w h a t a p a r t f r o m figures like D e s c a r t e s , H o b b e s , S p i n o z a , a n d L o c k e (all o f w h o m h e criticised) in his d e t e r m i n a t i o n t o rescue w h a t w a s v a l u a b l e in A r i s t o t l e , P l a t o , a n d scholasticism, a n d s o m e h o w t o synthesise t h e m w i t h m o d e r n materialist a n d sceptical insights. As a critic o f H o b b e s h e g e n e r a l l y a p p e a r s r e m a r k a b l y P l a t o n i c . H e w a s official h i s t o r i a n at t h e c o u r t o f t h e E l e c t o r o f H a n o v e r . H e e n g a g e d w i t h C a t h o l i c s in search o f a s c h e m e t o r e u n i t e C h r i s t e n d o m ; h e q u a r r e l l e d w i t h N e w t o n o v e r w h i c h o f t h e m d i s c o v e r e d calculus; a n d h e u n d e r t o o k w i t h S a m u e l C l a r k e a classic p h i l o s o p h i c a l c o r r e s p o n d e n c e . M o s t o f his political w o r k s are in t h e f o r m o f s h o r t essays (see R i l e y , in Leibniz 1 9 7 2 ) b u t o f special i m p o r t a n c e is his b o o k - l e n g t h Theodicy ( 1 7 1 0 ) . S E C O N D A R Y LITERATURE

(part V ) : R i l e y , in L e i b n i z 1 9 7 2 ; R i l e y 1 9 7 3 ; J o l l e y 1 9 7 5 , 1 9 8 4 .

LESCHASSIER, J A C Q U E S 1550—1625. an avocat b e f o r e t h e parlement o f Paris u n t i l a p p o i n t e d procureur-général o f t h a t c o u r t b y H e n r i I V . H e d e f e n d e d t h e Salic l a w g o v e r n i n g t h e descent o f t h e F r e n c h c r o w n ,

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Biographies a n d in 1 6 0 6 p u b l i s h e d a c e l e b r a t e d defence o f Gallican i n d e p e n d e n c e based o n a n c i e n t p r e c e d e n t s . In 1 6 0 7 h e p u b l i s h e d a defence o f t h e r e p u b l i c o f V e n i c e in its conflict w i t h P o p e Paul V. SECONDARY LITERATURE

(part II): S a l m o n 1 9 8 7 .

L'HÔSPITAL, MICHEL DE 1507—73. B o r n in t h e A u v e r g n e , t h e son o f a physician, L ' H ô p i t a l s t u d i e d l a w at P a d u a a n d s e r v e d in t h e R o m a n curia b e f o r e r e t u r n i n g t o F r a n c e a n d g a i n i n g t h r o u g h m a r r i a g e t h e office o f a conseiller in t h e Paris parlement. T h e n c e h e rose via t h e h o u s e h o l d o f H e n r i II's sister a n d a succession o f h i g h - l e v e l j u d g e s h i p s t o b e c o m e c h a n c e l l o r in 1 5 6 0 . C o u p l i n g m o d e r a t i o n in r e l i g i o n w i t h a belief in s t r o n g m o n a r c h i c a l rule, L ' H ô p i t a l s o u g h t j u d i c i a l a n d a d m i n i s t r a t i v e r e f o r m s , m o s t n o t a b l y t h r o u g h t h e edicts o f O r l e a n s ( 1 5 6 1 ) a n d M o u l i n s ( 1 5 6 6 ) . His w r i t i n g s , a m o n g t h e m six v o l u m e s o f Latin verse a n d n u m e r o u s speeches, are n o l o n g e r t h o u g h t t o i n c l u d e t h e Traité, de la réformation de la justice o n c e a t t r i b u t e d p a r t l y t o him. S E C O N D A R Y LITERATURE

(part II): B u i s s o n 1 9 5 0 .

LILBURNE, J O H N 1615—57. Leveller. S e c o n d son o f a D u r h a m g e n t l e m a n , h e w a s a p p r e n t i c e d in L o n d o n , a n d pilloried a n d i m p r i s o n e d b y t h e star c h a m b e r in 1 6 3 8 , for attacks o n t h e b i s h o p s a n d calls for t h e s e p a r a t i o n o f c h u r c h a n d state. O n his release h e s e r v e d in t h e p a r l i a m e n t a r y a r m y , b e i n g t h e o n l y officer t o resign r a t h e r t h a n t a k e t h e C o v e n a n t . In 1 6 4 5 his association w i t h W a l w y n a n d O v e r t o n b e g a n . H i s radical v i e w o f t h e r i g h t s o f E n g l i s h m e n led t o his b e i n g i m p r i s o n e d seven t i m e s , 1645—52, b y v a r i o u s a u t h o r i t i e s ( H o u s e s o f C o m m o n s a n d L o r d s , c o u n c i l o f state). In 1 6 4 9 a n d again in 1 6 5 3 h e w a s a c q u i t t e d o n c h a r g e s o f treason, b u t h e w a s n o t released after his final a c q u i t t a l , a n d d i e d in p r i s o n , a Q u a k e r . H e w r o t e s o m e e i g h t y political p a m p h l e t s . SECONDARY LITERATURE

(part III): G r e a v e s a n d Z a l l e r 1 9 8 2 - 4 a n d w o r k s cited t h e r e .

LIPSIUS, J U S T U S 1547—1606. F r o m t h e n e i g h b o u r h o o d o f Brussels, t h e son o f a b u r g o m a s t e r , Lipsius w a s e d u c a t e d b y t h e Jesuits a n d at t h e u n i v e r s i t y o f L o u v a i n . H e b e c a m e Latin secretary t o C a r d i n a l G r a n v e l l e a n d visited R o m e in his r e t i n u e . H e b e c a m e a u n i v e r s i t y t e a c h e r , l e c t u r i n g at J e n a , L e i d e n , a n d L o u v a i n (and c o n f o r m i n g t o L u t h e r a n i s m , C a l v i n i s m , a n d C a t h o l i c i s m respectively: it is t h o u g h t h e w a s a m e m b e r o f t h e u n d e r g r o u n d religious g r o u p t h e F a m i l y o f L o v e ) . O f his m a n y w o r k s , t h e m o s t f a m o u s are his e d i t i o n s o f T a c i t u s a n d Seneca, his d i a l o g u e De Constantia ( 1 5 8 4 ) a n d his treatise Politicorum libri sex ( 1 5 8 9 ) . H e p l a y e d an i m p o r t a n t p a r t in l a u n c h i n g b o t h T a c i t i s m a n d n e o - S t o i c i s m . S E C O N D A R Y L I T E R A T U R E (part I V ) : S a u n d e r s 1 9 5 5 ; A b e l 1 9 7 8 , p p . 6 7 - 1 1 3 ; O e s t r e i c h 1 9 8 2 . LOCKE, J O H N 1632—1704, B o r n in S o m e r s e t a n d e d u c a t e d at W e s t m i n s t e r a n d C h r i s t C h u r c h , O x f o r d . In 1 6 6 7 h e b e c a m e p h y s i c i a n t o t h e earl o f S h a f t e s b u r y a n d so w a s d r a w n i n t o political a c t i v i t y . Concerning H e w r o t e t h e Two Treatises d u r i n g t h e E x c l u s i o n Crisis ( 1 6 7 9 - 8 1 ) a n d Letter Toleration w h i l e in exile in H o l l a n d . B o t h b o o k s w e r e p u b l i s h e d a n o n y m o u s l y after his r e t u r n t o E n g l a n d in 1 6 8 9 . T h e o t h e r g r e a t w o r k s t h a t h a v e m a d e h i m f a m o u s w e r e also t h e n Education p u b l i s h e d : An Essay Concerning Human Understanding ( 1 6 9 0 ) , Thoughts Concerning ( 1 6 9 3 ) , a n d The Reasonableness of Christianity (1695). A weak constitution and continuing c o n t r o v e r s y caused h i m t o retire t o Essex w h e r e h e spent his last years d e f e n d i n g a n d clarifying his u n c o n v e n t i o n a l v i e w s a n d his s i m p l e a n d austere ethics based o n t h e gospels.

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Biographies L I T E R A T U R E (part V ) : F o x B o u r n e 1 8 7 6 ; C r a n s t o n 1 9 5 8 ; M a c p h e r s o n 1 9 6 2 ; D u n n 1 9 6 9 , 1 9 8 5 ; Laslett in L o c k e 1 9 7 0 ; F r a n k l i n 1 9 7 8 ; P a r r y 1 9 7 8 ; T u l l y 1 9 8 0 ; G o l d i e 1 9 8 3 ; Ashcraft 1 9 8 6 .

SECONDARY

LUTHER, MARTIN 1483—1546. T h e son o f a S a x o n m i n e r , h e w a s e d u c a t e d at t h e U n i v e r s i t y o f Erfurt a n d w e n t o n t o s t u d y a n d teach t h e o l o g y at t h e n e w U n i v e r s i t y o f W i t t e n b e r g , w h e r e , in 1 5 1 1 , h e r e c e i v e d t h e d o c t o r a t e o f t h e o l o g y a n d u n d e r t o o k t h e duties o f professor o f s c r i p t u r e w h i c h h e w a s t o d i s c h a r g e u n t i l his d e a t h . H e h a d e n t e r e d t h e A u g u s t i n i a n E r e m i t e s in 1 5 0 7 , a n d it w a s his unsuccessful s t r u g g l e t o find spiritual rest in t h e r i g o r o u s fulfilment o f t h e m o n a s t i c v o c a t i o n t h a t led e v e n t u a l l y t o his historic rejection o f t h e t h e o l o g i c a l f o u n d a t i o n s o f m e d i e v a l C a t h o l i c i s m . T h e e x t e n t o f t h a t rejection b e c a m e u n m i s t a k a b l y clear in t h e four crucial w o r k s h e p r o d u c e d in 1 5 2 0 : The Freedom of the Christian, The Babylonian Captivity of the Church, Address to the Christian Nobility, a n d On the Papacy at Rome. S E C O N D A R Y L I T E R A T U R E (part II): B a i n t o n 1 9 5 5 ; C r a n z 1 9 5 9 ; B o r n k a m m 1 9 7 9 ; C a r g i l l T h o m p s o n 1984. MACHIAVELLI, N I C C O L O 1469—1527. S o n o f a F l o r e n t i n e l a w y e r , elected in 1 4 9 8 s e c o n d c h a n c e l l o r o f t h e r e p u b l i c . As secretary o f t h e T e n h e w a s active in F l o r e n t i n e d i p l o m a c y , his m a n y missions t a k i n g h i m t o F r a n c e , R o m e , C e s a r e B o r g i a , G e r m a n y , a n d v a r i o u s Italian cities. H e a c h i e v e d t h e e s t a b l i s h m e n t o f a F l o r e n t i n e militia in t h e contado in 1 5 0 6 a n d b e c a m e secretary o f t h e Nove della Milizia. H i s close association, f r o m 1 5 0 2 , w i t h P i e r o S o d e r i n i cost h i m his post w h e n t h e M e d i c i r e t u r n e d in 1 5 1 2 . A r r e s t e d o n suspicion o f c o n s p i r a c y in 1 5 1 3 , h e w a s released w h e n G i o v a n n i d e ' M e d i c i b e c a m e p o p e , b u t failed in his efforts t o secure e m p l o y m e n t b y t h e M e d i c i . C o m m i s s i o n e d in 1 5 2 0 t o w r i t e t h e h i s t o r y o f F l o r e n c e , h e d e d i c a t e d it t o C l e m e n t VII in 1 5 2 5 . In 1 5 2 6 h e b e c a m e secretary for t h e city's fortifications. H e d i e d s h o r t l y after t h e r e p u b l i c a n r e s t o r a t i o n in 1 5 2 7 . His w o r k s , besides /7 Principe, t h e Discorsi, a n d t h e Istorie fiorentine, i n c l u d e t h e Arte della guerra, t h e life o f C a s t r u c c i o C a s t r a c a n i , a n d Mandragola. Italian p o e t r y a n d plays, n o t a b l y t h e (part I): C h a b o d 1 9 2 7 ; G i l b e r t 1 9 3 8 ; B u t t e r f i e l d 1940; B a r o n 1 9 6 1 ; H a l e 1 9 6 1 ; G i l b e r t 1 9 6 5 ; A n g l o 1 9 6 9 ; R i d o l f i 1 9 7 2 ; Sasso 1 9 8 0 ; S k i n n e r 1 9 8 1 .

SECONDARY LITERATURE

M A I R (Major), J O H N c. 1468—1550. B o r n in East L o t h i a n , a n d e d u c a t e d in H a d d i n g t o n , C a m b r i d g e , a n d Paris, w h e r e his first w o r k w a s p u b l i s h e d in 1 4 9 9 . G r a d u a t i n g in t h e o l o g y in 1 5 0 6 , M a i r s o o n b e c a m e o n e o f t h e m o s t influential Parisian teachers o f his g e n e r a t i o n . In 1 5 1 8 h e r e t u r n e d t o S c o t l a n d t o teach first at G l a s g o w a n d t h e n at St A n d r e w s . H e w e n t b a c k t o Paris in 1 5 2 6 for five years, a n d in 1 5 3 1 r e t u r n e d finally t o S c o t l a n d a n d w a s p r o v o s t o f St S a l v a t o r ' s C o l l e g e , St A n d r e w s , u n t i l his d e a t h . M a i r ' s v o l u m i n o u s w o r k s i n c l u d e Aristotelian c o m m e n t a r i e s (especially o n t h e Ethics, 1530) a n d a series o f c o m m e n t a r i e s o n P e t e r L o m b a r d ' s Sentences, b e t w e e n 1 5 0 9 a n d 1 5 3 0 . Also o f i m p o r t a n c e for his political ideas are his 1 5 1 8 c o m m e n t a r y o n St M a t t h e w ' s g o s p e l a n d his Historia Majoris Britanniae ( 1 5 2 1 ) S E C O N D A R Y L I T E R A T U R E (part I): M a c k a y , in M a i r 1 8 9 2 , p p . x x i x - c x x x ; D u r k a n 1950a, 1950b; Burns 1954; O a k l e y 1962, 1 9 6 4 - 5 ; Farge 1980, p p . 3 0 4 - 1 1 ; Burns 1 9 8 1 . M A R I A N A , J U A N DE 1536—1624. B o r n in T a l a v e r a , Castile, M a r i a n a b e c a m e a Jesuit in 1 5 5 4 . H e studied p h i l o l o g y , t h e o l o g y , a n d h i s t o r y at Alcalá b e f o r e t e a c h i n g in R o m e , Sicily, a n d Paris, a n d p r e a c h i n g e v e n farther afield. In 1 5 7 4 h e r e t u r n e d h o m e w a r d s t o T o l e d o a n d d e v o t e d

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Biographies h i m s e l f t o w r i t i n g . His Historiae de rebus Hispaniae w a s p u b l i s h e d at T o l e d o in 1 5 9 2 , his De rege a p p e a r i n g seven years later; t h e latter w a s w r i t t e n at P h i l i p II's r e q u e s t a n d d e d i c a t e d t o P h i l i p III. In his De monetae mutatione (1609) M a r i a n a a t t a c k e d m o n e t a r y d e b a s e m e n t a n d v i r t u a l l y alleged t h a t Spain's fiscal a d m i n i s t r a t o r s w e r e g u i l t y o f fraud. A restive a n d i n d e p e n d e n t - m i n d e d m e m b e r o f t h e Jesuits, h e suffered in 1 6 1 0 a y e a r ' s i m p r i s o n m e n t in a Franciscan h o u s e . SECONDARY LITERATURE

(part II): B a c k e r a n d B a c k e r 1 8 5 3 - 6 1 ; L e w y i 9 6 0 .

M A R T Y R , P E T E R : see V E R M I G L I , P E T E R MELANCHTHON,

MARTYR

PHILIP

1497—1560. A G e r m a n scholar o f d e e p l y h u m a n i s t i c s y m p a t h i e s , h e w e n t o n f r o m studies at H e i d e l b e r g a n d T u b i n g e n t o b e c o m e in 1 5 1 8 professor o f G r e e k at W i t t e n b e r g , w h e r e h e b e g a n a lifelong friendship a n d c o l l a b o r a t i o n w i t h M a r t i n L u t h e r . H a v i n g e m b r a c e d L u t h e r ' s evangelical t h e o l o g y , h e p r o d u c e d in his Loci communes ( 1 5 2 1 ) - a w o r k w h i c h h e w a s t o revise a n d a m p l i f y t h r o u g h o u t his life — t h e first s y s t e m a t i c p r e s e n t a t i o n o f L u t h e r a n d o c t r i n e . In d o c t r i n a l m a t t e r s h e w a s o f m e d i a t i n g disposition, o p p o s i n g Z w i n g l i ' s eucharistic t e a c h i n g at t h e C o l l o q u y o f M a r b u r g ( 1 5 2 9 ) a n d later o r g a n i s i n g t h e c h u r c h o f S a x o n y o n a quasi-episcopal f o o t i n g . S E C O N D A R Y LITERATURE

(part II): M a n s c h r e c k 1 9 5 8 ; Kisch 1 9 6 7 .

MILTON, J O H N 1608—74. D u r i n g t h e P u r i t a n R e v o l u t i o n M i l t o n t u r n e d f r o m his a m b i t i o n t o w r i t e a g r e a t epic p o e m t o p r o d u c e p a m p h l e t s ' o f t h e left h a n d ' . In t h e earlier 1640s his principal c o n c e r n w a s w i t h r e f o r m o f t h e c h u r c h a n d liberty o f conscience, ideals w h i c h h e consistently a d v o c a t e d thereafter. His political loyalties p r o v e d m o r e flexible, a n d like his friend N c d h a m h e s u p p o r t e d t h e successive c o u p s o f t h e I n t e r r e g n u m , e a r n i n g e m p l o y m e n t as Latin secretary t o t h e C o m m o n w e a l t h a n d , b o t h u n d e r t h e R u m p a n d u n d e r C r o m w e l l , w r i t i n g p a m p h l e t s for an English a n d a c o n t i n e n t a l a u d i e n c e in defence o f t h e regicide. U n l i k e N e d h a m h e w o u l d n o t s u p p o r t t h e R e s t o r a t i o n , w h e n his life w a s for a t i m e in danger. S E C O N D A R Y L I T E R A T U R E (part III): I n t r o d u c t i o n s t o M i l t o n 1 9 5 3 - 8 2 ; Hill 1 9 7 7 ; Dzelzainis 1983; Geisst 1 9 8 4 . MOLESWORTH, ROBERT 1 6 5 6 - 1 7 2 5 . O f an A n g l o - I r i s h family w i t h a n c i e n t r o o t s a m o n g s t t h e N o r t h a m p t o n s h i r e g e n t r y , M o l e s w o r t h w a s b o r n in D u b l i n . H e m a d e his n a m e in 1 6 9 4 w i t h An Account of Denmark, a c o u n t r y h e h a d visited t w o years earlier a n d w h e r e h e h a d b e e n d i s m a y e d t o n o t e t h e social a n d e c o n o m i c c o n s e q u e n c e s o f d e s p o t i s m . His o t h e r p r i n c i p a l c o n t r i b u t i o n t o political t h o u g h t is his preface t o an English translation o f H o t m a n ' s Francogallia in 1 7 1 1 . A p r i v y c o u n c i l l o r for Ireland in 1 6 9 7 a n d 1 7 1 4 , he w a s a m e m b e r o f t h e R o y a l S o c i e t y . H e enjoyed the favour of G e o r g e I and under him b e c a m e Viscount M o l e s w o r t h . S E C O N D A R Y L I T E R A T U R E (part III): R o b b i n s 1 9 5 9 . M O L I N A , LUIS DE 5 3 5 — 1 6 0 0 . A p p a r e n t l y o f n o b l e p a r e n t a g e , M o l i n a w a s b o r n at C u e n c a a n d e d u c a t e d briefly at S a l a m a n c a a n d chiefly at Alcalá. In 1 5 5 3 h e b e c a m e a Jesuit, m a k i n g his profession seventeen years later. D u r i n g those years h e s t u d i e d a n d t a u g h t in P o r t u g a l a n d in 1 5 7 1 w a s e l e v a t e d to t h e p r i m e chair o f t h e o l o g y at E v o r a . His De iustitia et iure (1592— ) b e g a n as a c o u r s e o f lectures t h e r e , as d i d his c o m m e n t a r y o n A q u i n a s ' Prima Secundae t o w h i c h h e p l a n n e d to a d d a n e w Summa theologiae o f his o w n . T h r o u g h o u t his career h e e s p o u s e d 1

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Biographies u n c o n v e n t i o n a l o p i n i o n s , n o t a b l y o n slavery, a n d , a b o v e all, o n t h e v e x e d q u e s t i o n o f d i v i n e g r a c e a n d h u m a n free w i l l , his v i e w s u p o n w h i c h w e r e expressed in his h i g h l y c o n t r o v e r s i a l Concordia ( 1 5 8 8 ) . SECONDARY LITERATURE

(part II): B a c k e r a n d B a c k e r 1 8 5 3 - 6 1 ; H a m i l t o n 1 9 6 3 .

MONTAIGNE, MICHEL DE 153 3—92. A n o b l e m a n f r o m P é r i g o r d , M o n t a i g n e r e c e i v e d a g o o d h u m a n i s t e d u c a t i o n at t h e C o l l è g e d e G u y e n n e in B o r d e a u x b e f o r e b e c o m i n g a m a g i s t r a t e in t h e parlement of B o r d e a u x . In 1 5 7 0 h e w i t h d r e w t o his estate (and his t o w e r library) t o escape t h e civil w a r s a n d m e d i t a t e o n life, a l t h o u g h h e visited Italy (1580—1) a n d served t w o t e r m s as m a y o r o f B o r d e a u x (1581—5), as w e l l as h e l p i n g t o n e g o t i a t e t h e e n d o f t h e w a r s o f r e l i g i o n . H e p u b l i s h e d t h e first t w o b o o k s o f his Essais in 1 5 8 0 , a n d t h e t h i r d in 1 5 8 8 , b u t c o n t i n u e d t o revise t h e m t o t h e e n d o f his life. H e c o m b i n e d S t o i c i s m , scepticism a n d C a t h o l i c i s m in a h i g h l y p e r s o n a l synthesis. H i s essays r a r e l y deal d i r e c t l y w i t h political q u e s t i o n s , b u t c o n t a i n m a n y p e n e t r a t i n g a n d o r i g i n a l o b s e r v a t i o n s o n politics. S E C O N D A R Y L I T E R A T U R E (part I V ) : Battista 1 9 6 6 ; C l a r k 1 9 7 0 ; B u r k e 1 9 8 1 . M O R E , SIR T H O M A S 1 4 7 8 — 1 5 3 5 . M o r e ' s e n i g m a t i c p e r s o n a l i t y , m u l t i - f a c e t e d g e n i u s , a n d t r a g i c m a r t y r d o m , for o p p o s i t i o n t o H e n r y VIII's ecclesiastical s u p r e m a c y , h a v e fascinated s u c c e e d i n g g e n e r a t i o n s . A l u c r a t i v e legal career led t o p u b l i c service in 1 5 1 6 . H e b e c a m e l o r d c h a n c e l l o r o n W o l s e y ' s fall in 1 5 2 9 . H i s p r o w e s s as a h u m a n i s t w a s c e l e b r a t e d in E r a s m u s ' Moriae Encomium ( 1 5 0 8 ) , a n d his r e p u t a t i o n sealed b y his Utopia ( 1 5 1 6 ) . H i s passionate, often scurrilous, p o l e m i c s of Tyndale's Answer, against t h e L u t h e r a n s (Responsio ad Lutherum, 1 5 2 3 ; The Confutation 1 5 3 2 ) h a v e s t r u c k less s y m p a t h e t i c m o d e r n c h o r d s . M o r e ' s l i t e r a r y a n d p h i l o s o p h i c a l proclivities are d i s p l a y e d in a p l e t h o r a o f h u m a n i s t w r i t i n g s : translations f r o m G r e e k t o Latin; satirical a n d edificatory Latin verse; a n d a b i o g r a p h y o f R i c h a r d III, w h i c h d a m n e d t y r a n n y in brilliant E n g l i s h v e r n a c u l a r . Utopia is a m a n i f e s t o for t h e idea o f a c h i e v i n g a t r u l y just Christian c o m m o n w e a l t h b y recourse to rational endeavour. S E C O N D A R Y L I T E R A T U R E (part I): C h a m b e r s 1 9 3 5 ; H e x t e r 1 9 5 2 , 1 9 7 3 ; S u r t z 1 9 5 7 ; D o r s c h 1 9 6 6 - 7 ; Fenlon 1981 ; K e n n y 1983; B r a d s h a w 1985; Skinner 1987. M O R N A Y , PHILIPPE DUPLESSIS 1 5 4 9 - 1 6 2 3 . E d u c a t e d a P r o t e s t a n t , h e spent several years in Italy a n d G e r m a n y after c o m p l e t i n g his e d u c a t i o n , r e t u r n i n g t o F r a n c e in 1 5 7 2 . H e w r o t e n u m e r o u s political tracts o v e r t h e n e x t several years. T h e Vindiciae contra tyrannos, first p u b l i s h e d in 1 5 7 9 , has often b e e n a t t r i b u t e d t o h i m as w e l l as t o his friend H u b e r t L a n g u e t . In 1 5 7 6 h e b e c a m e an adviser t o H e n r y o f N a v a r r e a n d c a r r i e d o u t several d i p l o m a t i c missions t o E n g l a n d a n d Flanders for h i m . After H e n r y ' s accession t o t h e F r e n c h t h r o n e , M o r n a y w a s a p p o i n t e d g o v e r n o r o f S a u m u r , b u t his influence w i t h H e n r y w a s w e a k e n e d b y t h e k i n g ' s c o n v e r s i o n t o C a t h o l i c i s m a n d M o r n a y ' s c o n t i n u e d attacks o n t h e C a t h o l i c v i e w o f t h e eucharist. H e w a s d e p r i v e d o f his g o v e r n o r s h i p in 1 6 2 1 . S E C O N D A R Y L I T E R A T U R E (part II): P a t r y 1 9 3 3 . MORTON, THOMAS 1 5 6 4 - 1 6 5 9 . T h e son o f a m e r c e r o f Y o r k , M o r t o n e n t e r e d St J o h n ' s C o l l e g e , C a m b r i d g e , in 1 5 8 2 . H e t o o k o r d e r s a n d r e m a i n e d at C a m b r i d g e u n t i l 1 5 9 8 . In 1 6 0 2 h e a c c o m p a n i e d his p a t r o n , L o r d E u r e , o n an e m b a s s y in G e r m a n y a n d D e n m a r k . After his r e t u r n h e b e c a m e c h a p l a i n t o R o g e r M a n n e r s , earl o f R u t l a n d , a n d b e g a n t o w r i t e p o l e m i c s against R o m e . H e w a s a friend o f J o h n D o n n e , Isaac C a s a u b o n , a n d B i s h o p Bilson. H e w r o t e m a n y w o r k s against t h e Jesuits. H e w a s a p p o i n t e d b i s h o p o f C h e s t e r in 1 6 1 6 , t r a n s f e r r i n g t o Lichfield in

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Biographies 1 6 1 8 , a n d t o D u r h a m in 1 6 3 2 . A C a l v i n i s t in m a t t e r s o f free will, h e w a s a d e f e n d e r o f episcopacy, w h o was imprisoned and deprived d u r i n g the Civil W a r . S E C O N D A R Y L I T E R A T U R E (part II): M c l l w a i n 1 9 1 8 ; S o m m e r v i l l e 1 9 8 6 . MOYLE, WALTER 1 6 7 2 - 1 7 2 1 . A C o r n i s h g e n t l e m a n a n d a n t i q u a r y , M o y l e m o v e d in l i t e r a r y circles in L o n d o n in t h e 1690s, a n d b e c a m e m e m b e r o f p a r l i a m e n t for Saltash in C o r n w a l l in 1 6 9 5 . H e c o n t r i b u t e d t o t h e c a m p a i g n against s t a n d i n g a r m i e s in 1 6 9 7 - 9 , a l t h o u g h his m o s t i m p o r t a n t w o r k s a p p e a r e d o n l y p o s t h u m o u s l y , his Essay upon the Constitution of the Roman Government in 1 7 2 6 a n d his Essay upon the Lacedaemonian Government in 1 7 2 7 . S E C O N D A R Y L I T E R A T U R E (part III): R o b b i n s , in M o y l e 1 9 6 9 . MÜNTZER, THOMAS c. 1490—1525. H a v i n g s t u d i e d at Leipzig a n d F r a n k f u r t , h e w e n t o n t o p r e a c h radical religious a n d social r e f o r m at Z w i c k a u in 1 5 2 0 . C l a i m i n g t h e direct i n s p i r a t i o n o f t h e H o l y Spirit, h e w e n t o n f r o m c h a l l e n g i n g t h e a p p e a l t o s c r i p t u r a l a u t h o r i t y a n d a t t a c k i n g infant b a p t i s m , t o d i s p u t i n g w i t h M a r t i n L u t h e r at W i t t e n b e r g , calling h i m s e l f t h e ' n e w D a n i e l ' , o p e n l y p r e a c h i n g r e b e l l i o n at M ü l h a u s e n in T h u r i n g i a , a n d i n s e r t i n g h i m s e l f i n t o a p o s i t i o n o f l e a d e r s h i p in t h e G e r m a n P e a s a n t s ' R e v o l t in 1524—5. In 1 5 2 5 , after t h e defeat o f t h e peasants at t h e b a t t l e o f F r a n k e n h a u s e n , h e w a s c a p t u r e d a n d p u t t o d e a t h . S E C O N D A R Y L I T E R A T U R E (part II): G r i t s c h 1 9 6 7 . NAUDE, GABRIEL 1600—53. S t u d i e d at P a d u a in 1 6 2 6 w i t h t h e A r i s t o t e l i a n C r e m o n i n i . R e t u r n e d t o Italy, 1631—42, as l i b r a r i a n t o C a r d i n a l B a g n i , for w h o m h e w r o t e Considerations politiques sur les coups d'estat ( 1 6 3 9 ) . H e w a s t h e n called t o Paris b y C a r d i n a l R i c h e l i e u , w h o s e librarian h e b e c a m e (and M a z a r i n ' s after h i m ) . O n e o f t h e so-called libertins erudits ( t o g e t h e r w i t h G u y P a t i n , Francois La M o t h e le V a y e r , a n d o t h e r s ) , h e also c o m p i l e d a b i b l i o g r a p h y o f politics a n d w r o t e a h i s t o r y o f t h e r e i g n o f L o u i s X I (1620) as a s u p p l e m e n t t o C o m m y n e s , a n d an Apologia ( 1 6 2 5 ) 'for all t h e g r e a t m e n w h o h a v e b e e n falsely suspected o f m a g i c ' . S E C O N D A R Y L I T E R A T U R E (part I V ) : M e i n e c k e 1 9 5 7 ; T h u a u 1 9 6 6 , p p . 3 1 8 - 3 4 ; K e o h a n e 1 9 8 0 , pp. 145-50. NEDHAM, MARCHAMONT 1 6 2 0 - 7 8 . Political j o u r n a l i s t f r o m B u r f o r d , e d u c a t e d at O x f o r d . After w r i t i n g o n t h e k i n g ' s b e h a l f in t h e late 1640s, h e e a r n e d his p a r d o n for p l o t t i n g against t h e C o m m o n w e a l t h b y w r i t i n g in defence o f t h e n e w r e g i m e as e d i t o r o f Mercurius Politicus a n d a u t h o r , in of England Stated ( 1 6 5 0 ) . His effective t r i m m i n g p a r t i c u l a r , o f The Case of the Commonwealth c o n t i n u e d u n t i l 1 6 6 0 , w h e n h e fled t o H o l l a n d , b u t h e later r e t u r n e d t o r e s u m e a royalist p o s i t i o n . H e w a s a friend o f M i l t o n a n d o f A n d r e w M a r v e l l . S E C O N D A R Y L I T E R A T U R E (part III): Z a g o r i n 1 9 6 6 ; F r a n k 1 9 8 0 . NEVILE, H E N R Y 1 6 2 0 - 9 4 . R a i s e d at B i l l i n g b e a r in B e r k s h i r e , a n d e d u c a t e d at M e r t o n C o l l e g e , O x f o r d . H e t r a v e l l e d t o Italy in t h e 1640s a n d a g a i n in t h e 1660s, a n d f o r m e d friendships at t h e c o u r t o f F e r d i n a n d II o f T u s c a n y . H e t o o k n o p a r t in t h e C i v i l W a r b u t e n t e r e d p a r l i a m e n t after t h e r e g i c i d e , t h o u g h his political career effectively e n d e d w h e n h e b r o k e w i t h C r o m w e l l o v e r t h e dissolution o f t h e R u m p in 1 6 5 3 . A friend a n d l i t e r a r y c o l l a b o r a t o r o f H a r r i n g t o n , h e t r a n s l a t e d w o r k s o f M a c h i a v e l l i in 1 6 7 5 . H i s Plato Redivivus, a m a j o r c o n t r i b u t i o n t o t h e political l i t e r a t u r e o f t h e E x c l u s i o n Crisis, a p p e a r e d in 1680 a n d w a s revised in 1 6 8 1 . S E C O N D A R Y L I T E R A T U R E (part III): Robbins-, in N e v i l e 1 9 6 9 .

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Biographies O T T O , DANIEL d. 1 6 6 4 . O r i g i n a l l y t r a i n e d as a p h i l o s o p h e r at J e n a , h e t u r n e d t o l a w p e r h a p s u n d e r t h e influence o f A r u m a e u s w h o i n c l u d e d several o f O t t o ' s w o r k s in his Discursus academia de jure publico. T h e m o s t influential o f these w a s his ' D e j u r e p u b l i c o I m p e r i i R o m a n i ' w h i c h w a s also p u b l i s h e d separately in 1 6 1 6 . OVERTON, RICHARD fl. 1631—64. Leveller. T h e details o f his early life are u n c e r t a i n , b u t h e w a s p r o b a b l y in t u r n a Baptist, a C a m b r i d g e u n d e r g r a d u a t e , a n d an a c t o r . B e t w e e n 1 6 4 0 a n d 1 6 4 2 h e w r o t e s o m e fifty p a m p h l e t s (almost all a n o n y m o u s ) against C a t h o l i c i s m a n d r o y a l i s m . In 1 6 4 4 h e p r i n t e d Mans Mortalitie, a treatise d e n y i n g t h e n a t u r a l i m m o r t a l i t y o f t h e soul. H e w r o t e a series o f attacks o n P r e s b y t e r i a n i s m , u n d e r t h e p s e u d o n y m M a r p r i e s t , d u r i n g 1645—6. H e " a w a s t h e a u t h o r o r c o - a u t h o r o f f o r t y Leveller tracts d u r i n g t h e years 1645—9, c o n s e q u e n c e w a s i m p r i s o n e d 1646—7 a n d 1 6 4 9 . H e w a s i n v o l v e d in a n t i - C r o m w e l l plots w h i c h forced h i m t o g o briefly i n t o exile in 1 6 5 5 . In 1 6 5 9 h e d e f e n d e d t h e G o o d O l d C a u s e a n d served a final i m p r i s o n m e n t . a n a

SECONDARY LITERATURE

PALMIERI,

a s

(part III): G r e a v e s a n d Z a l l e r 1 9 8 2 - 4 a n d w o r k s cited t h e r e .

MATTEO

1406—75. F l o r e n t i n e m e r c h a n t a n d h u m a n i s t , w h o h e l d a l a r g e n u m b e r o f h i g h offices in t h e F l o r e n t i n e r e p u b l i c . A loyal a n d t r u s t e d s u p p o r t e r o f t h e M e d i c i , h e w a s a m e m b e r o f M e d i c e a n councils (balie) a n d , b e t w e e n 1 4 5 8 a n d 1 4 6 5 , o n e o f t h e accoppiatori in c h a r g e o f electing t h e S i g n o r i a . H a v i n g r e c e i v e d a h u m a n i s t e d u c a t i o n f r o m C a r l o M a r s u p p i n i a n d p r o b a b l y A m b r o g i o T r a v e r s a r i , h e w r o t e his first w o r k , t h e Vita civile (c. 1 4 3 9 ) , in t h e v e r n a c u l a r in o r d e r t o a c q u a i n t t h o s e u n a b l e t o r e a d Latin w i t h t h e m o r a l a n d political w i s d o m o f t h e A n c i e n t s . A u t h o r o f historical w o r k s , a m o n g t h e m a universal h i s t o r y (De temporibus), a h i s t o r y o f t h e F l o r e n t i n e c o n q u ^ t o f Pisa, a n d c o n t e m p o r a r y annals, his l o n g d i d a c t i c p o e m Citta di vita, o n t h e different k i n d s o f a n g e l , w a s criticised for c o n t a i n i n g heretical o p i n i o n s . SECONDARY LITERATURE

PARKER,

(part I): Messeri 1 8 9 4 ; B e l l o n i 1 9 7 8 ; Finzi 1 9 8 4 .

HENRY

1604—52. B o r n in Sussex, a n d e d u c a t e d at St E d m u n d H a l l , O x f o r d , h e w a s called t o t h e b a r at L i n c o l n ' s I n n in 1 6 3 7 . In t h e C i v i l W a r h e b e g a n as a P r e s b y t e r i a n b u t b e c a m e an I n d e p e n d e n t . H e served as secretary t o t h e a r m y u n d e r t h e earl o f Essex f r o m 1 6 4 2 a n d t o t h e H o u s e o f C o m m o n s f r o m 1 6 4 5 . H e w a s in H a m b u r g in t h e years 1 6 4 6 - 9 , s e r v i n g t h e M e r c h a n t A d v e n t u r e r s C o m p a n y . O n his r e t u r n h e b e c a m e a r m y secretary u n d e r C r o m w e l l in Ireland, w h e r e h e died. A prolific p a m p h l e t e e r , his first w o r k s c o n c e r n e d S h i p upon Some of His Majesty's Late M o n e y (1640) a n d e p i s c o p a c y ( 1 6 4 1 ) . His Observations Answers ( 1 6 4 2 ) is o n e o f t h e m o s t i m p o r t a n t defences o f t h e p a r l i a m e n t a r i a n cause. G o i n g b e y o n d c o n s t i t u t i o n a l a n d historical d e b a t e , h e asserted t h a t political p o w e r derives f r o m c o n t r a c t a n d t h a t t y r a n n i c a l p o w e r m a y b e resisted. Also influential w a s his Political Catechism ( 1 6 4 3 ) . SECONDARY LITERATURE

PARKER,

(part III): A l l e n 1 9 3 8 ; J u d s o n 1 9 4 9 ; T u c k 1 9 7 9 .

SAMUEL

1640—88. A n o t o r i o u s p o l e m i c i s t in R e s t o r a t i o n E n g l a n d , w h o b e c a m e b i s h o p o f O x f o r d in 1 6 8 6 . H e w a s a p p o i n t e d c h a p l a i n t o A r c h b i s h o p S h e l d o n in 1 6 6 7 ana d e f e n d e d t h e religious i n t o l e r a n c e o f t h e re-established A n g l i c a n c h u r c h . H e o u g h t t o h a v e b e e n typical o f A n g l i c a n C a v a l i e r c h u r c h m a n s h i p , b u t n o687 t o n l y d i d h e b e c o m e a s e r v a n t o f J a m e s II's C a t h o l i c policies, h e w a s also intellectually an o d d i t y . His best k n o w n w o r k , A Discourse of

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Biographies Ecclesiastical Polity ( 1 6 7 0 ) a t t r a c t e d an u n p u b l i s h e d c o m m e n t a r y f r o m L o c k e , a n d t h e p u n g e n t w i t o f A n d r e w M a r v e l l . P a r k e r a t t a c k e d t h e ' H o b b e s i a n ' case for religious t o l e r a n c e , b u t his o w n g r o u n d s for i n t o l e r a n c e w e r e t h e m s e l v e s distinctly H o b b e s i a n . P A R S O N S (or P e r s o n s ) , R O B E R T 1 5 4 6 — 1 6 1 0 . A t t e n d e d St M a r y ' s H a l l , O x f o r d , b e f o r e b e c o m i n g successively fellow, b u r s a r , a n d d e a n o f Balliol. E x p e l l e d f r o m Balliol in 1 5 7 4 , h e w e n t t o R o m e , w h e r e h e b e c a m e a Jesuit. H e u n d e r t o o k a mission t o E n g l a n d w i t h E d m u n d C a m p i o n in 1 5 8 0 . After m a k i n g n u m e r o u s c o n v e r s i o n s a n d o p e r a t i n g a secret press, h e escaped t o R o u e n w h e n C a m p i o n w a s arrested in 1 5 8 1 . W i t h t h e p a t r o n a g e o f t h e G u i s e family in F r a n c e , h e w a s i n v o l v e d in plots t o assassinate Q u e e n Elizabeth, s e r v i n g as an i n t e r m e d i a r y w i t h Philip II. H e w a s in R o m e f r o m 1 5 8 5 t o 1 5 8 8 , a n d t h e n in Spain for n i n e years, w h e r e h e established English seminaries. As r e c t o r o f t h e E n g l i s h C o l l e g e in R o m e f r o m 1 5 9 7 , h e q u a r r e l l e d w i t h t h e English secular priests. As a p a m p h l e t e e r for t h e cause o f English C a t h o l i c i s m , h e s o m e t i m e s a d v o c a t e d l o y a l t y a n d at o t h e r t i m e s r e b e l l i o n . SECONDARY LITERATURE

PARUTA,

(part II): C l a n c y 1 9 6 4 ; P r i t c h a r d 1 9 7 8 ; H o l m e s 1 9 8 2 .

PAULO

1540—98. B o r n in V e n i c e , h e t o o k a p r o m i n e n t p a r t in t h e affairs o f t h e city a n d r e p r e s e n t e d t h e r e p u b l i c o n several d i p l o m a t i c missions. His w o r k s i n c l u d e a series o f d i a l o g u e s Delia perfezione della vita politica, a n o t a b l e h i s t o r y o f V e n i c e , a n d t h e Discorsi politici, p u b l i s h e d in t h e y e a r after his d e a t h a n d in E n g l i s h t r a n s l a t i o n , Politick Discourses, in 1 6 5 7 , f o l l o w e d a y e a r later b y The History of Venice. SECONDARY LITERATURE

PASQUIER,

(part II): M o n z a n i , in P a r u t a 1 8 5 2 ; Z a n o n i 1 9 0 3 ; B o u w s m a 1 9 6 8 .

ETIENNE

1 5 2 9 — 1 6 1 5 . B o r n i n t o a w e l l - c o n n e c t e d Parisian family, P a s q u i e r s t u d i e d in F r a n c e a n d Italy u n d e r several d i s t i n g u i s h e d teachers - R a m u s , H o t m a n , Cujas, A l c i a t o . R e t u r n i n g t o Paris in 1 5 4 9 , h e practised as a barrister a n d g a i n e d forensic f a m e in 1 5 6 5 t h r o u g h his a d v o c a c y for t h e u n i v e r s i t y against t h e Jesuits. F r o m 1 5 8 5 h e h e l d t h e office of avocat-général in t h e chambre des comptes. P a s q u i e r ' s friends i n c l u d e d R o n s a r d a n d o t h e r m e m b e r s o f t h e Pléiade as w e l l as M o n t a i g n e a n d a circle o f historically m i n d e d legal scholars. T h e first b o o k o f his Recherches de la France a p p e a r e d in 1 5 6 0 . H i s fear o f p l a g i a r i s m d e l a y e d p u b l i c a t i o n o f s o m e o f t h e later b o o k s , t h o u g h all b u t B o o k i x (published p o s t h u m o u s l y ) h a d a p p e a r e d b y 1 6 1 1 . S E C O N D A R Y L I T E R A T U R E (part II): T h i c k e t t 1 9 7 9 . PATRIZI, FRANCESCO 1413—94. Sienese citizen a n d h u m a n i s t ; P o g g i o d e c r i b e d h i m as doctissimus. After s t u d y i n g at t h e U n i v e r i t y o f Siena, h e h e l d h i g h office in t h e r e p u b l i c a n d acted often as its a m b a s s a d o r . Exiled in 1 4 5 7 , accused o f h a v i n g c o n s p i r e d t o h a n d o v e r t h e city t o J a c o p o P i c c i n i n o , h e r e t u r n e d t o t h e city o w i n g t o t h e i n t e r v e n t i o n o f his friend Pius II, w h o a p p o i n t e d h i m in 1 4 6 1 b i s h o p o f G a e t a a n d g o v e r n o r o f F o l i g n o . After t h e p o p e ' s d e a t h h e r e t i r e d t o G a e t a , w h e r e h e s p e n t t h e rest o f his life. S E C O N D A R Y L I T E R A T U R E (part I): B a t t a g l i a 1 9 3 6 . P A U R M E I S T E R (or B a u r m e i s t e r ) , T O B I A S 1 5 5 5 - 1 6 1 6 . S t u d i e d l a w at H e i d e l b e r g a n d F r e i b u r g . In 1 5 9 4 h e b e c a m e active in p u b l i c service as c h a n c e l l o r a n d p r i v y c o u n c i l l o r t o t h e d u k e o f B r a u n s c h w e i g — L u e n e b e r g . H e w a s also e l e v a t e d t o t h e n o b i l i t y a n d g i v e n a title b y E m p e r o r R u d o l f II. It w a s t h e n t h a t h e c h a n g e d t h e spelling o f his n a m e a n d b e c a m e k n o w n as P a u r m e i s t e r v o n K ö c h s t e d t . His De jurisdictione Imperii Romani (1608) b e c a m e an influential w o r k o n t h e G e r m a n c o n s t i t u t i o n , a n d h e also w r o t e a Commentarium rerum politicarum et juridicarum.

688

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Biographies PETYT, WILLIAM 1 6 3 7 — 1 7 0 7 . A g r e a t a n t i q u a r i a n l a w y e r , e d u c a t e d at C h r i s t ' s C o l l e g e , C a m b r i d g e , a n d t h e I n n e r T e m p l e . D u r i n g t h e E x c l u s i o n Crisis h e w a s t h e chief W h i g p o l e m i c i s t in a g r o u p t h a t i n c l u d e d W i l l i a m A t w o o d , E d w a r d C o o k e , J a m e s T y r r e l l , a n d T h o m a s H u n t . H i s Antient Right of the Commons of England Asserted w a s d e d i c a t e d t o t h e earl o f Essex. H e w o r k e d w i t h Sir G e o r g e T r e b y a n d Francis P o l l e x f e n in p r e p a r i n g t h e legal defence o f L o n d o n ' s c h a r t e r . At the R e v o l u t i o n Petyt was one of the eminent authorities w h o m the Lords consulted c o n c e r n i n g t h e n a t u r e o f t h e ' o r i g i n a l c o n t r a c t ' . A m o n g his o t h e r w r i t i n g s are The Pillars of Parliament ( 1 6 8 1 ) a n d Jus Parliamentarium (1739). S E C O N D A R Y LITERATURE

PITHOU,

(part III): P o c o c k 1 9 5 7 ; W e s t o n 1 9 7 2 ; W e s t o n a n d G r e e n b e r g 1 9 8 1 .

PIERRE

1 5 3 9 - 9 6 . T h e son o f an avocat, a n d an avocat h i m s e l f at t h e parlement o f Paris, P i t h o u s t u d i e d classics u n d e r A d r i e n T u r n è b e in Paris a n d l a w u n d e r J a c q u e s Cujas in B o u r g e s a n d V a l e n c e . As a P r o t e s t a n t h e t o o k refuge in S e d a n a n d Basle in t h e early religious w a r s . H e b e c a m e a C a t h o l i c after n a r r o w l y e s c a p i n g d e a t h at t h e massacre o f St B a r t h o l e m e w in 1 5 7 2 . H e h e l p e d t o c o m p o s e t h e Satire Ménippée against t h e L e a g u e w h i l e residing in L e a g u e r Paris in 1 5 9 3 . In 1 5 9 4 H e n r i IV m a d e h i m procureur-général in t h e Paris parlement. H e p u b l i s h e d a f a m o u s defence o f t h e Gallican liberties, a n d collected o t h e r Gallican treatises. As an a n t i q u a r y , h e p u b l i s h e d a t e x t o f V i s i g o t h i c l a w a n d a collection o f C a r o l i n g i a n capitularies. S E C O N D A R Y L I T E R A T U R E (part II): K e l l e y 1 9 7 0 ; S a l m o n 1 9 8 7 . P L A T I N A (Sacchi), B A R T O L O M E O 1 4 2 1 - 8 1 . B o r n at P i a d e n a (Platina) n e a r M a n t u a , w h e r e h e s t u d i e d u n d e r O g n i b e n e B o n i s o l i , a disciple o f V i t t o r i n o da Feltre, a n d t u t o r e d t h e sons o f t h e m a r q u i s . In 1 4 5 7 h e w e n t t o F l o r e n c e t o s t u d y u n d e r J o h a n n e s A r g y r o p o u l o s ; a p p o i n t e d b y Pius II t o t h e p a p a l college o f a b b r e v i a t o r s , h e lost his post in 1 4 6 4 w h e n P a u l II r e o r g a n i s e d t h a t college. H i s v i o l e n t p r o t e s t led t o his i m p r i s o n m e n t ; released in 1 4 ^ 5 , h e w a s rearrested in 1 4 6 8 , accused o f c o n s p i r a c y against t h e p o p e . R e l e a s e d in 1 4 6 9 , again after G o n z a g a i n t e r v e n t i o n , h e w a s r e h a b i l i t a t e d after t h e accession o f Sixtus I V , w h o m a d e h i m his librarian in 1 4 7 5 . Besides t h e De principe a n d t h e De optimo civt, h e w r o t e a h i s t o r y o f M a n t u a ( 1 4 6 6 - 9 ) a n d a h i s t o r y o f t h e p o p e s u n t i l Sixtus IV a n d , a m o n g o t h e r h u m a n i s t treatises, t h e De falso et vero bono a n d t h e De vera nobilitate o n m o r a l p h i l o s o p h y , a n d t h e De honesta voluptate et valetudine o n f o o d a n d health. S E C O N D A R Y LITERATURE

(part I): G a i d a , in P l a t i n a 1 9 1 3 - 3 2 , p p . i x - x x x i v ; R u b i n s t e i n 1 9 8 6 .

PONET, JOHN c. 1514—56. H e r e c e i v e d his d o c t o r a t e in t h e o l o g y at C a m b r i d g e in 1 5 4 7 , h a v i n g g a i n e d a r e p u t a t i o n as a n o t e d p r e a c h e r . H e w a s a p p o i n t e d b i s h o p o f R o c h e s t e r in 1 5 5 0 a n d o f W i n c h e s t e r t h e f o l l o w i n g year. D e p r i v e d o f his see at M a r y ' s accession, h e w e n t t o Power in 1 5 5 6 , a n d it S t r a s b u r g w h e r e h e w r o t e a n d p u b l i s h e d his Shorte Treatise ofPolitike was there that he died. SECONDARY LITERATURE

(part II): H u d s o n 1 9 4 2 .

PONTANO, GIOVANNI

(GIOVIANO)

1429—1503. N e a p o l i t a n h u m a n i s t a n d s t a t e s m a n . B o r n at C e r r e t o in U m b r i a , h e e n t e r e d t h e service o f A l f o n s o o f A r a g o n , k i n g o f N a p l e s , in 1 4 4 7 . U n d e r his successor F e r r a n t e h e rose t o e m i n e n c e as r o y a l c o u n s e l l o r a n d d i p l o m a t i s t ; f r o m c. 1 4 6 8 t o 1 4 7 5 h e w a s t u t o r t o F e r r a n t e ' s eldest son A l f o n s o , d u k e o f C a l a b r i a . F r o m i 4 8 6 t h e k i n g ' s secretary, o r chief m i n i s t e r , h e lost this office h a v i n g r e c o g n i s e d C h a r l e s VIII as k i n g o f N a p l e s after t h e F r e n c h c o n q u e s t . T h e l e a d i n g N e a p o l i t a n h u m a n i s t689 o f t h e s e c o n d h a l f o f t h e fifteenth c e n t u r y , his

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Biographies m a n y w r i t i n g s i n c l u d e treatises o n m o r a l p h i l o s o p h y , d i a l o g u e s o n l i t e r a r y subjects, a treatise a n d t w o p o e m s o n a s t r o l o g y , a n d a h i s t o r y o f t h e w a r b e t w e e n F e r r a n t e a n d J o h n o f A n j o u . H e w a s a prolific a n d h i g h l y influential Latin p o e t . S E C O N D A R Y L I T E R A T U R E (part I): P e r c o p o 1 9 3 8 ; A l t a m u r a 1 9 4 1 ; T a t e o 1 9 7 2 . P R Y N N E , WILLIAM 1600—69. T h i s m i l i t a n t P u r i t a n p a m p h l e t e e r w a s e d u c a t e d at O r i e l C o l l e g e , O x f o r d , ' a n d L i n c o l n ' s I n n a n d called t o t h e b a r in 1 6 2 8 . A p r o m i n e n t dissident in t h e 1630s, h e b e c a m e L a u d ' s a r c h - e n e m y a n d w a s f o r e m o s t in his i m p e a c h m e n t . F o r a t i m e m e m b e r o f t h e L o n g P a r l i a m e n t , w h o s e s o v e r e i g n t y h e p r o m o t e d , P r y n n e w a s secluded in P r i d e ' s P u r g e . T h e k i n g ' s e x e c u t i o n c o n f i r m e d P r y n n e ' s c r y p t o - r o y a l i s m . As t h e first p o l e m i c i s t t o l a u n c h a full-scale a t t a c k o n C o k e , h e w a s e s t e e m e d b y t h e R e s t o r e d c o u r t a n d m a d e k e e p e r o f t h e T o w e r r e c o r d s . T h e m o s t i d e o l o g i c a l l y significant o f P r y n n e ' s 200 tracts are his Soveraigne Power of Parliaments ( 1 6 4 3 ) a n d t h e f o u r v o l u m e s o f p a r l i a m e n t a r y w r i t s (1659—64). S E C O N D A R Y L I T E R A T U R E (part III): A l l e n 1 9 3 8 ; P o c o c k 1 9 5 7 ; L a m o n t 1 9 6 3 ; W e s t o n a n d Greenberg 1981.

PUFENDORF, SAMUEL 1 6 3 2 - 9 4 . B o r n in S a x o n y , t h e son o f a L u t h e r a n p a s t o r . After s t u d y i n g t h e o l o g y at Leipzig h e w e n t t o J e n a , w h e r e h e s t u d i e d p h i l o s o p h y . N e x t h e b e c a m e t u t o r in t h e h o u s e h o l d o f t h e S w e d i s h a m b a s s a d o r in C o p e n h a g e n . W h i l s t i m p r i s o n e d d u r i n g t h e w a r b e t w e e n S w e d e n Universalis ( p u b l i s h e d 1 6 6 0 ) . T h e E l e c t o r a n d D e n m a r k h e w r o t e his Elementa Jurisprudence P a l a t i n e a p p o i n t e d h i m professor o f l a w o f n a t u r e a n d n a t i o n s at H e i d e l b e r g , w h e r e h e w r o t e his De Statu Imperii Germanici ( 1 6 6 7 ) . N e x t t h e k i n g o f S w e d e n a p p o i n t e d h i m t o t h e n e w chair o f n a t u r a l l a w at L u n d . T h e r e h e p u b l i s h e d his De Jure Naturae et Gentium ( 1 6 7 2 ) . In 1 6 7 7 h e b e c a m e c o u r t h i s t o r i o g r a p h e r at S t o c k h o l m , a n d b e g a n his m o n u m e n t a l histories o f S w e d e n a n d t h e p r i n c i p a l states o f E u r o p e . H e w e n t t o B e r l i n in 1688 at t h e r e q u e s t o f t h e E l e c t o r o f B r a n d e n b u r g , for w h o m h e p e r f o r m e d t h e s a m e h i t o r i c a l tasks. S E C O N D A R Y L I T E R A T U R E (part V ) : W o l f 1 9 2 7 , 1 9 6 3 ; K r i e g e r 1 9 6 5 ; D e n z e r 1 9 6 9 , 1 9 7 2 , 1 9 7 9 ; Dufour 1972, 1976, 1985. Q U E V E D O VILLEGAS, F R A N C I S C O DE 15 8 0 - 1 6 4 5 . F r o m a w e a l t h y family, h e s t u d i e d at t h e universities o f Alcalá a n d V a l l a d o l i d , 1596—1606, b e c o m i n g a n o t e d w i t . F r o m 1 6 1 3 t o 1 6 2 0 h e w a s c o u n s e l l o r t o t h e d u k e o f O s u n a , v i c e r o y o f Sicily, falling f r o m f a v o u r w i t h t h e d u k e . A prolific p o e t , m o r a l i s t , a n d p o l e m i c i s t , h e w a s p l a c e d o n t h e I n d e x in 1 6 3 2 a n d c o n f i n e d t o a m o n a s t e r y f r o m 1 6 3 9 t o 1 6 4 3 . H e b e c a m e k n o w n t h r o u g h o u t E u r o p e for his satires a n d p i c a r e s q u e n o v e l s . In a life d o g g e d b y a d v e r s i t y — ill-health, p e n u r y , lawsuits, i m p r i s o n m e n t , a disastrous m a r r i a g e , a n d battles w i t h t h e censors - his C h r i s t i a n n e o - S t o i c i s m w a s a p t e n o u g h : h e a d m i r e d Lipsius a n d translated Seneca a n d E p i c t e t u s . His Política de Dios ( 1 6 2 6 ) , in t h e M i r r o r o f P r i n c e s t r a d i t i o n , is in p a r t an e l e g y for t h e decline o f Spain; an a b r i d g e d t r a n s l a t i o n w a s p u b l i s h e d t o serve t h e T o r y cause in Q u e e n A n n e ' s E n g l a n d . SECONDARY LITERATURE

QUIRINI,

(part I V ) : C r o s b y in Q u e v e d o 1 9 6 6 ; E t t i n g h a u s e n 1 9 7 2 .

LAURO

c. 1 4 2 0 - c . 1 4 7 9 . V e n e t i a n p a t r i c i a n a n d h u m a n i s t , b o r n at V e n i c e o r C a n d i a ( C r e t e ) . S t u d i e d at V e n i c e a n d P a d u a , w h e r e h e t o o k d o c t o r a t e s in t h e liberal arts a n d in l a w ; l e c t u r e d in V e n i c e o n A r i s t o t l e ' s Ethics; in 1 4 5 2 h e left for C a n d i a , w h e r e h e a p p e a r s t o h a v e s p e n t t h e rest o f his life. H i s w r i t i n g s i n c l u d e , a p a r t f r o m t h e De república, t h r e e treatises o n n o b i l i t y , in

690

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Biographies

w h i c h h e attacks P o g g i o ' s De nobilitate ( 1 4 4 0 ) , a n d a Dialogus de gymnasiis Florentinis m o d e l l e d o n L u c i a n ' s d i a l o g u e . O n e o f his letters, t o N i c h o l a s V , describes t h e fall o f Constantinople. SECONDARY LITERATURE

(part I): I n t r o d u c t i o n s t o Q u i r i n i 1 9 7 7 a a n d 1 9 7 7 b ; K i n g 1 9 8 6 , p p .

118-32, 419-21. R A I N O L D S , W I L L I A M : see R E Y N O L D S , W I L L I A M RASTELL, J O H N 1

5 3 2 - 7 7 . E d u c a t e d at W i n c h e s t e r a n d N e w C o l l e g e , O x f o r d , R a s t e l l w a s o r d a i n e d a priest in 1 5 5 5 . H e left O x f o r d for L o u v a i n after t h e accession o f Q u e e n E l i z a b e t h , a n d , after a stay in A n t w e r p , m o v e d t o R o m e , w h e r e h e e n t e r e d t h e Jesuit o r d e r in 1 5 6 8 . H e p u b l i s h e d attacks u p o n B i s h o p J e w e l ' s justification o f t h e A n g l i c a n s e t t l e m e n t . H e d i e d at I n g o l s t a d t , w h e r e he had b e c o m e vice-rector of the university. S E C O N D A R Y L I T E R A T U R E (part II): H o l m e s 1 9 8 2 . REBUFFI, PIERRE DE 1 4 8 7 - 1 5 5 7 . B o r n n e a r M o n t p e l l i e r , Rebuff! s t u d i e d t h e r e a n d at T o u l o u s e b e f o r e t a k i n g his d o c t o r a t e in utroque jure at C a h o r s in 1 5 2 7 . H e t a u g h t briefly at Poitiers a n d t h e n at B o u r g e s as a c o l l e a g u e o f t h e g r e a t e x p o n e n t o f t h e mos gallicus, A l c i a t o . In 1 5 3 4 h e settled at Paris, t e a c h i n g c a n o n l a w a n d p r a c t i s i n g as an avocai. A l t h o u g h an indifferent speaker, h e n o n e t h e l e s s g a i n e d a sufficient r e p u t a t i o n t o qualify as a p r o s p e c t i v e j u d g e in t h e R o m a n curia. His p r i n c i p a l w o r k s w e r e in c a n o n l a w , p a r t i c u l a r l y o n t h e q u e s t i o n o f ecclesiastical benefices. H i s w o r k as a civilian, n o t a b l y t h e Explicatio ( 1 5 8 9 ) a n d t h e In titulum Dig. de verborum et rerum signijìcatione ( 1 5 7 6 ) , nevertheless r a n k s h i g h . His Commentarla a p p e a r e d in 1554-5SECONDARY LITERATURE

(part II): C h a b a n n e 1 9 6 5 .

R E Y N O L D S (or R a i n o l d s ) , W I L L I A M c. 1544—94. E d u c a t e d at W i n c h e s t e r a n d N e w C o l l e g e , O x f o r d , h e t o o k A n g l i c a n o r d e r s b u t r e s i g n e d his f e l l o w s h i p o f N e w C o l l e g e in 1 5 7 2 because o f his C a t h o l i c beliefs. H e visited R o m e a n d s t u d i e d at D o u a i a n d R e i m s b e f o r e b e c o m i n g a priest. In 1 5 8 0 h e a s s u m e d t h e chair o f d i v i n i t y a n d H e b r e w at R e i m s . H e c o l l a b o r a t e d w i t h G r e g o r y M a r t i n in t h e C a t h o l i c t r a n s l a t i o n o f t h e B i b l e k n o w n as t h e D o u a i v e r s i o n . F o r t h e last five years o f his life h e served as a priest in A n t w e r p . T h e r e h e p u b l i s h e d his m a j o r treatises o n resistance t o heretical a n d t y r a n n i c a l k i n g s , u s i n g t h e p s e u d o n y m ' G u l i e l m u s R o s s a e u s ' . H e also w r o t e o n t h e n a t u r e o f t h e mass, a n d c o m p o s e d a ferocious a t t a c k o n C a l v i n i s m . S E C O N D A R Y L I T E R A T U R E (part II): B a u m g a r t n e r 1 9 7 5 ; S a l m o n 1 9 8 7 . RICHER, EDMOND 1 5 5 9 — 1 6 3 1 . H e a r r i v e d in Paris f r o m L a n g r e s in 1 5 7 7 . T h r o u g h his a c a d e m i c brilliance a n d foreceful p e r s o n a l i t y h e rose f r o m college s e r v a n t t o p r i n c i p a l at t h e C o l l è g e C a r d i n a l L e m o i n e . W h e n h e t o o k his d o c t o r a t e o f t h e o l o g y in 1 5 8 9 h e w a s a s u p p o r t e r o f t h e U l t r a m o n t a n e C a t h o l i c L e a g u e , b u t s u b s e q u e n t l y b e c a m e a s p o k e s m a n for G a l l i c a n i s m . In 1606 h e p u b l i s h e d t h e w o r k s o f G e r s o n w i t h e x t r a c t s f r o m o t h e r early a n t i - p a p a l w r i t e r s . H e b e c a m e a s y n d i c o f t h e S o r b o n n e in 1 6 0 8 , b u t m a n y in t h e faculty o f t h e o l o g y o p p o s e d h i m . H e f o u n d s u p p o r t in t h e parlement for his s h o r t treatise o n church—state relations, p u b l i s h e d in 1 6 1 1 . It w a s c e n s u r e d b y a c o m m i s s i o n o f b i s h o p s a n d h e r e s i g n e d as s y n d i c in 1 6 1 2 . H e c o n t i n u e d t o o p p o s e Jesuit influence a n d h a d t o resign f r o m his post as p r i n c i p a l in 1 6 1 5 . S E C O N D A R Y L I T E R A T U R E (part II): P r e c l i n 1 9 3 0 ; S a l m o n 1 9 8 7 .

691

Cambridge Histories Online © Cambridge University Press, 2008

Biographies

R O S S A E U S , G U L I E L M U S : see R E Y N O L D S , RUTHERFORD,

WILLIAM

SAMUEL

c. 1600—61. B o r n in R o x b u r g h s h i r e , a n d e d u c a t e d at E d i n b u r g h , w h e r e h e w a s a p p o i n t e d r e g e n t o f h u m a n i t y in 1 6 2 3 . A p o p u l a r p r e a c h e r in G a l l o w a y , h e g o t i n t o t r o u b l e w i t h t h e b i s h o p s , b e i n g s u s p e n d e d in 1 6 3 6 . A c t i v e in t h e C o v e n a n t e r r e v o l u t i o n , h e served in L o n d o n as a Scots r e p r e s e n t a t i v e , 1643—7, a n d m e m b e r o f t h e W e s t m i n s t e r a s s e m b l y . H e w a s p r i n c i p a l o f St M a r y ' s C o l l e g e , St A n d r e w s , f r o m 1 6 4 7 , a n d r e c t o r f r o m 1 6 5 1 . H i s w r i t i n g s d e f e n d e d P r e s b y t e r i a n i s m a n d a t t a c k e d A r m i n i a n i s m . His chief political w o r k is his Lex Rex ( 1 6 4 4 ) , w h i c h d e f e n d e d resistance b y t h e pars valentior, b e i n g f i r m l y in t h e t r a d i t i o n o f t h e C a l v i n i s t t h e o r y o f a r i g h t o f r e v o l u t i o n in t h e lesser m a g i s t r a t e s . His h a r a n g u e o n t h e d u t y o f k i n g s t o C h a r l e s II in 1 6 5 0 w a s r e m i n i s c e n t o f B u c h a n a n p r e a c h i n g t o t h e y o u n g J a m e s V I . S E C O N D A R Y L I T E R A T U R E (part III): Allen 1 9 3 8 , p p . 2 8 5 f f ; S m a r t 1 9 8 0 . ST G E R M A N , C H R I S T O P H E R c. 1460—1540. B o r n p r o b a b l y in W a r w i c k s h i r e , t h e son o f a k n i g h t , St G e r m a n p r o c e e d e d via O x f o r d t o t h e M i d d l e T e m p l e f r o m w h e r e h e w a s called t o t h e bar. H e g a i n e d f a m e for his legal l e a r n i n g a n d sufficient professional s t a n d i n g t o serve as M a s t e r o f R e q u e s t s in 1 5 2 8 . T h e first e d i t i o n o f his Doctor and Student a p p e a r e d in Latin (De fundamentis legum Anglie) in 1 5 2 3 ; it w a s a u g m e n t e d in 1 5 3 0 b y t h e Secunde dyalogue a n d in t h e f o l l o w i n g y e a r b y t h e Newe Addycyons. H i s treatise Concernynge the Division betwene the Spiritualtie and the Temporaltie (c. 1 5 3 2 ) a n d his Dialogue betwixte Salem andBizance p r o v o k e d fierce d i s p u t a t i o n w i t h M o r e . In his closing years h e p r o d u c e d a f u r t h e r series o f i n c r e a s i n g l y radical tracts. S E C O N D A R Y L I T E R A T U R E (part II): B a u m e r 1 9 3 6 - 7 ; F o x a n d G u y 1 9 8 6 . SALAMONIO, MARIO c. 1450—c. 1 5 3 2 . D e s c e n d e d f r o m t h e i m p o r t a n t R o m a n family o f A l b e r t e s c h i , S a l a m o n i o s t u d i e d at t h e U n i v e r s i t y o f R o m e w h e r e h e later h e l d a chair o f civil l a w . D i s t i n g u i s h e d as a j u r i s t , h e w a s a m e m b e r o f P o p e A l e x a n d e r VI's c o m m i s s i o n t o r e f o r m t h e R o m a n legal s y s t e m , h e l d n u m e r o u s p u b l i c offices in t h a t city, a n d served for six m o n t h s in F l o r e n c e as Capitano del Popolo. H e acted as peace n e g o t i a t o r in t h e R o m a n u p r i s i n g o f 1 5 1 1 , a n d t w o years later i n t e r v e n e d t o d e m a n d r e f o r m s for t h e city in t h e a f t e r m a t h o f P o p e J u l i u s II's t h o u g h it d e a t h . A t a b o u t this t i m e S a l a m o n i o w r o t e his Patritii Romani de Principatu, r e m a i n e d u n p u b l i s h e d u n t i l 1 5 4 4 . His o t h e r w o r k s i n c l u d e d a v o l u m e o f Commentaria in librum primum Digestorum ( 1 5 2 5 ) . S E C O N D A R Y L I T E R A T U R E (part II): A d d i o 1 9 5 4 . S A L M A S I U S , C L A U D I U S : see S A U M A I S E , C L A U D E

DE

SALUTATI, C O L U C C I O 1 3 3 1 — 1 4 0 6 . B o r n in a p r o v i n c i a l t o w n n o r t h o f F l o r e n c e , Salutati t r a i n e d as a n o t a r y in B o l o g n a a n d b e c a m e c h a n c e l l o r o f F l o r e n c e in 1 3 7 5 . A p u b l i c a n d intellectual figure o f g r e a t i m p o r t a n c e , h e b u i l t u p a s p l e n d i d l i b r a r y , fostered t h e careers o f y o u n g e r scholars, a n d b r o u g h t M a n u e l C h r y s o l o r a s t o teach G r e e k in F l o r e n c e . A scholar o f g r e a t l e a r n i n g , h e w a s n o t a t h o r o u g h g o i n g , o n e - s i d e d classicist a n d r e p u b l i c a n like L e o n a r d o B r u n i ; b u t h e established t h e vital role t h a t h u m a n i s t s c o u l d p l a y in a r t i c u l a t i n g an i d e o l o g y a n d d e f e n d i n g policies. S E C O N D A R Y LITERATURE

(part I): U l l m a n 1 9 6 3 ; W i t t 1 9 8 3 .

S A N D E R S (or S a n d e r ) , N I C H O L A S c. 1530—81. T h e son o f t h e h i g h sheriff o f S u r r e y , h e w a s e d u c a t e d , like H a r d i n g a n d

692

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Biographies

R e y n o l d s , at W i n c h e s t e r a n d N e w C o l l e g e , O x f o r d , w h e r e h e b e c a m e a fellow in 1 5 4 8 . After t h e d e a t h o f Q u e e n M a r y h e left O x f o r d for R o m e , w h e r e h e w a s a w a r d e d a d o c t o r a t e o f d i v i n i t y , a n d t o o k h o l y o r d e r s . In 1 5 6 3 - 4 h e t r a v e l l e d in Prussia a n d P o l a n d . H e w a s professor o f t h e o l o g y at L o u v a i n in t h e y e a r 1 5 6 5 - 7 2 . F o r a t i m e h e w a s a p a p a l c o m m i s s i o n e r for E n g l i s h C a t h o l i c affairs. H e w r o t e a treatise o n t h e a u t h o r i t y o f t h e p o p e , a n d e n d o r s e d Pius V b u l l e x c o m m u n i c a t i n g Q u e e n E l i z a b e t h . In 1 5 7 3 h e w e n t t o M a d r i d , a n d for several years u r g e d P h i l i p II t o i n v a d e E n g l a n d . In 1 5 7 9 h e a c c o m p a n i e d an e x p e d i t i o n t o Ireland, w h e r e h e s u r v i v e d for t w o years b e f o r e d y i n g o f t h e h a r d s h i p h e e n d u r e d . H i s a t t a c k o n E n g l i s h P r o t e s t a n t i s m w a s p u b l i s h e d p o s t h u m o u s l y in 1 5 8 5 . S E C O N D A R Y L I T E R A T U R E (part II): H o l m e s 1 9 8 2 . S A R A VIA, H A D R I A N c. 1 5 3 2 — 1 6 1 3 . B o r n at H e s d i n in A r t o i s , Saravia fled f r o m t h e L o w C o u n t r i e s for religious reasons. N a t u r a l i s e d in 1 5 6 8 as an E n g l i s h m a n , h e w a s h e a d m a s t e r o f K i n g E d w a r d VI S c h o o l , S o u t h a m p t o n , f r o m 1 5 7 2 t o 1 5 7 8 . D u r i n g t h e 1580s h e w a s for a f e w years professor o f t h e o l o g y at L e i d e n , b u t h e r e t u r n e d t o E n g l a n d , b e c o m i n g r e c t o r o f T a t e n h i l l in 1 5 8 8 a n d later h o l d i n g o t h e r livings in t h e E n g l i s h c h u r c h . His De diversis gradibus ministrorum o f 1 5 9 0 rejected P r e s b y t e r i a n i s m in f a v o u r o f t h e d i v i n e r i g h t o f b i s h o p s . In De imperandi authoritate ( 1 5 9 3 ) h e a t t a c k e d t h e political ideas o f b o t h P r o t e s t a n t a n d C a t h o l i c m o n a r c h o m a c h s , a n d set o u t a t r e n c h a n t l y absolutist t h e o r y o f g o v e r n m e n t . H e w a s o n e o f t h e translators o f K i n g James' Authorised Version of the Bible. SECONDARY LITERATURE

(part III): N i j e n h u i s 1 9 8 0 ; S o m m e r v i l l e 1 9 8 3 .

SARPI, P A O L O 1 5 5 2 — 1 6 2 3 . A V e n e t i a n scholar w h o s e interests i n c l u d e d t h e o l o g y , m a t h e m a t i c s , a n d O r i e n t a l l a n g u a g e s . H e w a s o n e o f t h e l e a d i n g d e f e n d e r s o f V e n i c e at t h e t i m e o f t h e I n t e r d i c t , p u b l i s h i n g several p o l e m i c a l w o r k s against papalist political ideas. After t h e w i t h d r a w a l o f t h e I n t e r d i c t , Sarpi w a s s u m m o n e d t o R o m e t o a c c o u n t for his c o n d u c t . W h e n h e refused t o o b e y h e w a s e x c o m m u n i c a t e d , a n d an a t t e m p t t o assassinate h i m n a r r o w l y failed. His Istoria del concilio Tridentino ( 1 6 1 9 ) w a s h i g h l y critical o f t h e p a p a c y . T h o u g h h e d e f e n d e d t h e l i b e r t y o f t h e V e n e t i a n r e p u b l i c , Sarpi w a s an absolutist as t o i n t e r n a l affairs. H i s v i e w s , a n d especially his hostility t o clerical p r e t e n s i o n s , a t t r a c t e d t h e a p p r o v a l o f such figures as V o l t a i r e . SECONDARY LITERATURE

(part III): B o u w s m a 1 9 6 8 ; W o o t t o n 1 9 8 3 .

S A U M A I S E , C L A U D E D E (Salmasius, C l a u d i u s ) 1 5 8 8 - 1 6 5 3 . A F r e n c h classical scholar, h e s t u d i e d at Paris a n d H e i d e l b e r g . H e b e c a m e a H u g u e n o t a n d in 1 6 5 1 t o o k u p a professorship at L e i d e n , w h e r e h e r e m a i n e d u n t i l his d e a t h , e x c e p t for a year in S w e d e n (1650—1). In a d d i t i o n t o his classical w r i t i n g s (of w h i c h t h e m o s t i m p o r t a n t w a s Plinianae exercitationes in Solinum, 1 6 2 9 ) h e also p r o d u c e d a defence o f u s u r y . S a u m a i s e ' s m o s t i m p o r t a n t political w o r k w a s t h e Defensio regia pro Carolo I, in w h i c h h e a t t a c k e d t h e E n g l i s h I n d e p e n d e n t s a n d t h e e x e c u t i o n o f C h a r l e s I. T h e b o o k a t t r a c t e d a r e p l y f r o m J o h n M i l t o n . S a u m a i s e , like m a n y C o n t i n e n t a l P r o t e s t a n t s , w a s clearly a n x i o u s t o distance P r o t e s t a n t i s m f r o m t h e activities o f C r o m w e l l a n d his s u p p o r t e r s . SAVONAROLA, GIROLAMO 1452—98. B o r n at F e r r a r a , h e j o i n e d t h e D o m i n i c a n o r d e r at B o l o g n a in 1 4 7 5 . A p p o i n t e d l e c t u r e r at t h e F l o r e n t i n e c o n v e n t o f S. M a r c o , h e w a s elected p r i o r in 1 4 9 1 a n d set a b o u t its r e f o r m . T h e F r e n c h i n v a s i o n o f Italy in 1 4 9 4 s e e m e d t o fulfil his p r o p h e c i e s o f i m p e n d i n g d o o m a n d vastly increased his a u t h o r i t y in F l o r e n c e , w h i c h h e used, after P i e r o d e ' M e d i c i ' s flight, t o b r i n g a b o u t t h e c r e a t i o n o f a G r e a t C o u n c i l o n t h e V e n e t i a n m o d e l . W h i l e 693

Cambridge Histories Online © Cambridge University Press, 2008

Biographies

p r e a c h i n g t h e m o r a l r e g e n e r a t i o n o f t h e laity in his N e w J e r u s a l e m o f F l o r e n c e , h e also d e m a n d e d t h e r e f o r m o f t h e c h u r c h , a n d this, w i t h his s u p p o r t o f t h e city's F r e n c h alliance, led t o o p e n conflict w i t h A l e x a n d e r V I , w h o e x c o m m u n i c a t e d h i m in 1 4 9 7 . T h e f o l l o w i n g y e a r h e w a s i m p r i s o n e d , t o r t u r e d , s e n t e n c e d t o d e a t h for h e r e s y , a n d b u r n e d . H e w r o t e , a p a r t f r o m his m a n y s e r m o n s , w o r k s o n t h e o l o g i c a l , m o r a l , a n d p h i l o s o p h i c a l subjects, a m o n g t h e m t h e Trionfo della Croce o n C a t h o l i c d o c t r i n e , as w e l l as t h e Trattato circa el reggimento e governo della città di Firenze. H e s u m m a r i z e d his p r o p h e c i e s in t h e Compendium revelationum. SECONDARY LITERATURE

(part I): R i d o l f i 1 9 5 2 ; W e i n s t e i n 1 9 7 0 .

SCALIGER, JOSEPH-JUSTE 1540—1609. Scaliger w a s t h e t e n t h o f t h e fifteen c h i l d r e n o f J u l e s - C é s a r Scaliger, t h e h u m a n i s t critic o f E r a s m u s . H e s t u d i e d u n d e r M a r c - A n t o i n e M u r e t at B o r d e a u x , a n d w e n t t o Paris o n t h e d e a t h o f his father in 1 5 5 8 . T h e r e h e b e c a m e r e m a r k a b l y l e a r n e d in m a n y a n c i e n t a n d m o d e r n l a n g u a g e s . In 1 5 6 2 h e b e c a m e a C a l v i n i s t , a n d , after visits t o Italy, E n g l a n d , a n d S c o t l a n d , f o u g h t for t h e H u g u e n o t s in t h e r e l i g i o u s w a r s o f 1567—70. H e w e n t t o V a l e n c e t o s t u d y w i t h J a c q u e s Cujas, a n d fled t o G e n e v a after t h e massacre o f St B a r t h o l e m e w . H e b e g a n t o establish his g r e a t r e p u t a t i o n as a classical scholar w i t h c o m m e n t a r i e s o n A r i s t o t l e a n d C i c e r o . In 1 5 9 3 h e a c c e p t e d t h e chair v a c a t e d b y J u s t u s Lipsius at L e i d e n . H e substantially revised classical a n d early C h r i s t i a n c h r o n o l o g y . S E C O N D A R Y L I T E R A T U R E (part II): G r a f t o n 1 9 8 3 . SELDEN, J O H N 1584—1654. Selden w a s t h e s o n o f a Sussex y e o m a n , e d u c a t e d at O x f o r d a n d called t o t h e b a r . H e a c t e d as legal adviser t o v a r i o u s n o b l e families, a n d sat in p a r l i a m e n t , 1621—9 a n d 1 6 4 0 - 5 3 . H e w a s a s u p p o r t e r o f t h e o p p o s i t i o n t o t h e k i n g in t h e 1620s, a n d a m o d e r a t e p a r l i a m e n t a r i a n in t h e 1640s. B e t w e e n 1 6 1 0 a n d 1 6 1 7 h e p u b l i s h e d a n u m b e r o f w o r k s o n legal h i s t o r y , a n d in 1 6 1 7 his History of Tithes in w h i c h h e a t t a c k e d clerical a u t h o r i t y . H e p r o v i d e d a s y m p a t h e t i c c r i t i q u e o f G r o t i u s in Mare Clausum ( 1 6 3 5 ) a n d a sophisticated t h o u g h i d i o s y n c r a t i c t h e o r y o f n a t u r a l l a w in De lure Naturali o f 1640. H i s last w o r k w a s a m a j o r s t u d y o f H e b r e w g o v e r n m e n t , De Synedriis (1650—5). A p o s t h u m o u s v o l u m e o f Table Talk c a p t u r e d his e n g a g i n g a n d w i t t y c o n v e r s a t i o n . SECONDARY LITERATURE

(part I V ) : T u c k 1 9 7 9 , ch. 4, 1982; C h r i s t i a n s o n 1 9 8 4 ; S o m m e r v i l l e

1984. SENAULT, JEAN-FRANÇOIS 1 5 9 9 — 1 6 7 2 . B o r n in A n g e r s , h e s t u d i e d at D o u a i a n d in Paris, w h e r e h e w a s a t t r a c t e d t o B é r u l l e ' s r e c e n t l y f o u n d e d O r a t o r y . After five years, in 1 6 2 3 , h e left, o n l y t o r e t u r n in 1 6 2 8 a n d t o b e c o m e , in t i m e , possibly t h e m o s t c e l e b r a t e d a n d influential p r e a c h e r o f his t i m e . In 1662 h e b e c a m e t h e f o u r t h s u p e r i o r - g e n e r a l o f t h e O r a t o r y . In a d d i t i o n t o Le Monarque ( 1 6 6 1 ) , a treatise o n t h e duties o f t h e s o v e r e i g n , his w o r k s i n c l u d e L'Homme criminel, L'Homme chrétien, a n d De l'usage des passions. S E C O N D A R Y L I T E R A T U R E : Dictionnaire

de Théologie

Catholique.

SERVIN, LOUIS 1 5 5 5 — 1 6 2 6 . S e r v i n s t u d i e d l a w u n d e r François B a u d o i n . Apolitique b e l i e v e r in d i v i n e r i g h t m o n a r c h y , h e w a s a p p o i n t e d avocat-général o f t h e royalist section o f t h e parlement o f Paris w h e n H e n r i III o r d e r e d t h e c o u r t t o m o v e t o T o u r s in 1 5 8 9 . H e r e t a i n e d his post w h e n t h e royalist a n d L e a g u e r sections w e r e r e u n i t e d b y H e n r i I V in 1 5 9 4 , a n d c o n t i n u e d in office u n t i l his d e a t h . H e a d o p t e d an aggressive stance against t h e L e a g u e a n d its U l t r a m o n t a n e policies in his v i n d i c a t i o n o f t h e Gallican c h u r c h in 1 5 9 0 . In 1603 h e p u b l i s h e d a collection o f 694

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Biographies

his forensic p l e a d i n g s , o n l y t o find t h e i r e x t r e m e Gallicanism c e n s u r e d b y t h e S o r b o n n e . In s u b s e q u e n t years h e d e f e n d e d t h e Gallican p o s i t i o n o f E d m o n d R i c h e r . H e died d u r i n g a lit de justice w h e n Louis X I I I i n t e r r u p t e d his criticism o f r o y a l fiscal edicts. S E C O N D A R Y L I T E R A T U R E (part II): S a l m o n 1 9 8 7 . SEXBY, E D W A R D c. 1 6 1 6 - 5 8 . Leveller. P r o b a b l y a g e n t l e m a n ' s son a n d a L o n d o n a p p r e n t i c e , h e w a s a soldier a n d a g i t a t o r in 1 6 4 7 , a n d p a r t i c i p a t e d in t h e P u t n e y debates. H e left t h e a r m y b e t w e e n 1 6 4 7 a n d 1 6 4 9 , r e j o i n e d as an officer, b u t w a s c o u r t - m a r t i a l l e d , o n flimsy c h a r g e s , in 1 6 5 1 . H e w a s t h e n sent b y t h e c o u n c i l o f state t o e n c o u r a g e r e v o l u t i o n in F r a n c e . F r o m 1 6 5 3 until his d e a t h in p r i s o n in 1 6 5 8 h e w a s e n g a g e d in plots against C r o m w e l l ' s life, t h e l e g i t i m a c y o f w h i c h h e d e f e n d e d in Killing No Murder ( 1 6 5 7 ) . SECONDARY LITERATURE

(part III): G r e a v e s a n d Z a l l e r 1 9 8 2 - 4 a n d w o r k s cited t h e r e .

SEYSSEL, C L A U D E D E c. 1450—1520. T h e i l l e g i t i m a t e son o f a S a v o y a r d n o b l e m a n , Seyssel s t u d i e d civil l a w at T u r i n a n d P a via. In 1 4 9 2 h e e n t e r e d t h e service o f C h a r l e s VIII o f F r a n c e a n d s u b s e q u e n t l y b e c a m e c o u n s e l l o r t o Louis d ' O r l e a n s w h o s e m e r i t s h e e x t o l l e d in his Louenges du roy Louis XII ( 1 5 0 8 ) . F r e q u e n t l y e m p l o y e d b y t h a t k i n g u p o n d i p l o m a t i c missions, Seyssel h e l d n u m e r o u s j u d i c i a l a n d a d m i n i s t r a t i v e offices b e f o r e r e t i r i n g in 1 5 1 5 t o his b i s h o p r i c o f Marseilles. H i s Monarchie de France is a b o o k o f a d v i c e for princes, b u t s h o w s m o r e a w a r e n e s s t h a n d i d M a c h i a v e l l i o f t h e i n s t i t u t i o n a l a n d c u l t u r a l c o n d i t i o n s o f stability; it i n s p i r e d n e w studies o f F r e n c h legal a n t i q u i t i e s . Seyssel's o t h e r w o r k s i n c l u d e d c o m m e n t a r i e s in Bartolist fashion o n civil l a w , translations o f classical histories, a n d religious tracts. S E C O N D A R Y L I T E R A T U R E (part II): P o u j o l , in Seyssel 1 9 6 1 a ; H e x t e r 1 9 7 3 ; K e l l e y , in Seyssel 1981. SHERLOCK, WILLIAM c. 1 6 4 1 — 1 7 0 7 . A p o p u l a r H i g h T o r y p o l e m i c a l d i v i n e in t h e 1680s, h e at first r e p u d i a t e d t h e R e v o l u t i o n o f 1 6 8 9 ; his c o n v e r s i o n t o it p r o v o k e d c o n t r o v e r s y a n d led t o his a p p o i n t m e n t as d e a n o f St P a u l ' s . His Case of Allegiance ( 1 6 9 1 ) is a ' d e facto' defence o f t h e R e v o l u t i o n , parallel t o similar H o b b e s i a n tracts o f t h e 1650s. D e s p i t e his talk o f t h e d i v i n e r i g h t o f p r o v i d e n t i a l r e v o l u t i o n s , his critics d e t e c t e d H o b b i s m . L o c k e w r o t e a m a n u s c r i p t c o m m e n t a r y against S h e r l o c k , a n d L e i b n i z p r o d u c e d a m o r e f a v o u r a b l e essay in w h i c h h e t o o c a m e close t o H o b b e s i a n stances. S E C O N D A R Y L I T E R A T U R E (part V ) : R i l e y 1 9 7 3 ; J o l l e y 1 9 7 5 . SIDNEY, A L G E R N O N 1 6 2 3 - 8 3 . A g r e a t - n e p h e w o f Sir P h i l i p S i d n e y , a n d y o u n g e r son o f t h e s e c o n d earl o f Leicester. H e f o u g h t for p a r l i a m e n t in t h e C i v i l W a r a n d b e c a m e a m e m b e r o f p a r l i a m e n t after it. H e a c h i e v e d s o m e p r o m i n e n c e in t h e r e p u b l i c a n r e g i m e in 1652—3, b u t d i s o w n e d C r o m w e l l ' s P r o t e c t o r a t e . H e r e t u r n e d t o politics in 1 6 5 9 a n d t o o k p a r t in an e m b a s s y t o t h e Baltic. T h e R e s t o r a t i o n o f 1 6 6 0 e n d e d his political influence. M o s t o f his later years w e r e s p e n t in exile. H e p l o t t e d w i t h t h e D u t c h a n d F r e n c h against E n g l a n d in 1 6 6 4 - 5 , b u t r e t u r n e d in 1 6 7 7 . In 1683 h e w a s e x e c u t e d for his p a r t in t h e R y e H o u s e P l o t against C h a r l e s II. His p r i n c i p a l w o r k s are his ' C o u r t M a x i m s ' a n d his Discourse concerning Government. S E C O N D A R Y L I T E R A T U R E (part III): W o r d e n 1 9 8 5 ; S c o t t 1 9 8 8 , 1 9 9 1 . SLEIDAN, J O H A N N E S c. 1 5 0 6 - 5 6 . After b e i n g e d u c a t e d in t h e h u m a n i t i e s at Liege a n d L o u v a i n , Sleidan m o v e d t o F r a n c e in 1 5 3 3 , t o t a k e a d e g r e e in l a w at O r l e a n s a n d e n t e r t h e service o f t h e p r o m i n e n t d u 695

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Biographies

Bellay family, h e l p i n g t h e m w i t h several h i s t o r i o g r a p h i e projects. H i s increasing interest in C a l v i n i s t P r o t e s t a n t i s m led h i m t o m o v e t o S t r a s b u r g in 1 5 4 1 , w h e r e h e s p e n t t h e rest o f his life, as a d i p l o m a t for t h e city a n d its p r i n c e l y allies a n d as an official h i s t o r i a n . H i s De statu religionis et reipublicae, Carolo Quinto Caesare first p u b l i s h e d in 1 5 5 5 , w a s t h e m o s t a u t h o r i t a t i v e early h i s t o r y o f t h e R e f o r m a t i o n in G e r m a n y a n d p a i d special a t t e n t i o n t o t h e political c o n s e q u e n c e s o f religious c h a n g e . (part II): D i c k e n s a n d T o n k i n 1 9 8 5 , p p . 1 0 - 1 9 .

S E C O N D A R Y LITERATURE

SMITH, SIR I

I

THOMAS

_

5 3 7 7 - B o r n o f f a r m i n g stock at Saffron W a l d e n , Essex, S m i t h e n t e r e d Q u e e n s ' C o l l e g e , C a m b r i d g e , in 1 5 2 6 , a n d w a s elected a fellow four years later. In 1 5 4 0 h e w a s a p p o i n t e d t o t h e n e w r e g i u s chair o f civil l a w , b u t t h e n t o u r e d several f o r e i g n universities, t a k i n g a d o c t o r a t e at P a d u a . S e c r e t a r y o f state u n d e r P r o t e c t o r S o m e r s e t , h e lost f a v o u r w h e n t h e P r o t e c t o r fell, o n l y to r e - e m e r g e u n d e r Elizabeth. H e b e c a m e a m e m b e r o f p a r l i a m e n t , a c o m m i s s i o n e r for t h e religious s e t t l e m e n t , a n d ( 1 5 6 2 - 6 ) a m b a s s a d o r t o F r a n c e . In 1 5 7 2 h e b e c a m e t h e q u e e n ' s p r i n c i p a l secretary. S m i t h ' s De República Anglorum, w r i t t e n in F r a n c e , w a s p u b l i s h e d in 1 5 8 3 ; a n d h e m a y also b e t h e a u t h o r o f t h e a n o n y m o u s Discourse of the Commonweal (1581). S E C O N D A R Y LITERATURE

SOTO, DOMINGO

(part II): D e w a r 1 9 6 4 .

DE

1495—1560. B o r n in S e g o v i a , S o t o w a s e d u c a t e d at Alcalá a n d Paris b e f o r e e n t e r i n g t h e D o m i n i c a n o r d e r in 1 5 2 5 . H e p r o c e e d e d t o S a l a m a n c a w h e r e h e t a u g h t t h e o l o g y . H e a t t e n d e d early sessions o f t h e C o u n c i l o f T r e n t a n d also assisted at A u g s b u r g in p r e p a r i n g t h e I n t e r i m w h e r e b y C h a r l e V m a d e m i n o r concessions t o p r o t e s t a n t s . S o t o ' s w r i t i n g s , o f w h i c h t h e De iustitia et iure a p p e a r e d in 1553—4, i n c l u d e d m u c h - r e p r i n t e d c o m m e n t a r i e s o n A r i s t o t l e a n d u n p u b l i s h e d treatises criticising t h e Spanish c o n q u e s t o f t h e Indies. T h e q u e s t i o n o f t h e t r e a t m e n t o f t h e A m e r i n d i a n s i n v o l v e d h i m in 1550—1 in a d j u d i c a t i n g , w i t h o t h e r t h e o l o g i a n s a n d j u r i s t s , u p o n t h e f a m o u s d i s p u t e b e t w e e n S e p u l v e d a a n d Las Casas. S E C O N D A R Y L I T E R A T U R E (part II): H a m i l t o n 1 9 6 3 ; H a n k e 1 9 7 4 . SPELMAN, SIR H E N R Y 1 5 6 2 — 1 6 4 1 . E d u c a t e d at L i n c o l n ' s I n n , this c u l t i v a t e d N o r f o l k g e n t l e m a n e m b a r k e d late o n a scholarly career. A b o u t 1 6 1 4 , in c o n c e r t w i t h Sir R o b e r t C o t t o n , W i l l i a m C a m d e n , Sir J o h n D a v i e s , a n d H a k e w i l l , h e a t t e m p t e d unsuccessfully t o resurrect t h e S o c i e t y o f an historical d i c t i o n a r y o f legal a n d A n t i q u a r i e s . In 1 6 2 6 h e p u b l i s h e d his Glossary, c o n s t i t u t i o n a l t e r m s ; b u t such i m p o r t a n t w o r k s as t h e s e c o n d v o l u m e o f t h e Glossary ( 1 6 6 4 ) , a n d Reliquiae Spelmannianae (1698), were published posthumously. Spelman's highly d e v e l o p e d linguistic skills a n d w i d e r e a d i n g in English a n d c o n t i n e n t a l legal sources e n a b l e d h i m t o ' d i s c o v e r ' feudalism a n d discern t h e i m p a c t o f t h e N o r m a n C o n q u e s t o n E n g l i s h l a w and institutions. S E C O N D A R Y LITERATURE

(part III): F o x 1 9 5 6 ; P o c o c k 1 9 5 7 -

S P I N O Z A , B A R U C H (Benedict) D E 1 6 3 2 - 7 7 . B o r n in A m s t e r d a m o f an é m i g r é P o r t u g u e s e (originally Spanish) J e w i s h f a m i l y ; e d u c a t e d at a J e w i s h s c h o o l u p t o t h e age o f t h i r t e e n . H e j o i n e d his father's business, b u t ceased after b e i n g e x c o m m u n i c a t e d f r o m t h e s y n a g o g u e in 1 6 5 6 . H e s t u d i e d p h i l o s o p h y at L e i d e n , c. 1656—7; lived in A m s t e r d a m again c. 1657—60, w h e n h e c o m p o s e d his first p h i l o s o p h i c a l w o r k , t h e Short Treatise. N e x t h e l i v e d at R i j n s b u r g (near L e i d e n ) , 1 6 6 0 - 3 , g i v i n g p r i v a t e lessons o n C a r t e s i a n p h i l o s o p h y . D u r i n g t h e 1660s h e w o r k e d o n his Ethics. 696

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Biographies

H e lived at o r n e a r T h e H a g u e f r o m 1 6 6 3 , a n d w a s b e f r i e n d e d t h e r e b y t h e r e p u b l i c a n c. 1 6 6 5 ( p u b l i s h e d 1 6 7 0 ) . T h e politician J a n d e W i t t . B e g a n Tractatus theologico-politicus, Ethics a n d t h e u n f i n i s h e d Tractatus politicus w e r e p u b l i s h e d p o s t h u m o u s l y in 1 6 7 7 . S E C O N D A R Y L I T E R A T U R E (part I V ) : M e i n s m a 1 8 9 6 ; W e r n h a m , in S p i n o z a 1 9 5 8 ; R e v a h 1 9 5 9 ; McShea 1968; Mugnier-Pollet 1976; Popkin 1979; Scruton 1986. STARKEY, THOMAS c. 1 4 9 9 - 1 5 3 8. O f C h e s h i r e e x t r a c t i o n , S t a r k e y w a s e d u c a t e d at M a g d a l e n C o l l e g e , O x f o r d , w h e r e h e h e l d a f e l l o w s h i p . His m o s t influential f o r m a t i v e e x p e r i e n c e w a s s o m e t h i r t e e n years (1521—34) spent in R e g i n a l d P o l e ' s h o u s e h o l d in P a d u a , w h e r e h e a d d e d l a w t o his earlier qualifications in t h e o l o g y . S t a r k e y b r o k e w i t h P o l e in 1 5 3 4 o n t h e issue o f t h e r o y a l ecclesiastical s u p r e m a c y , r e t u r n i n g t o E n g l a n d in 1 5 3 5 , w h e r e h e a t t a c h e d h i m s e l f t o T h o m a s C r o m w e l l , in h o p e s o f e n c o u r a g i n g social a n d e c o n o m i c r e f o r m a t i o n o f t h e c o m m o n w e a l t h o n h u m a n i s t principles. H e m a y h a v e influenced C r o m w e l l ' s legislative p r o g r a m m e , t h o u g h his plea t h a t t h e w e a l t h o f t h e dissolved m o n a s t e r i e s b e r e d e p l o y e d for social r e f o r m fell o n d e a f ears. M o s t o f S t a r k e y ' s Dialogue between Pole and Lupet w a s p r o b a b l y w r i t t e n in 1529—32. H i s Exhortation to the People Instructynge theym to Unitie and Obedience ( 1 5 3 7 ) b e l o n g t o C r o m w e l l ' s p r o p a g a n d a for t h e R e f o r m a t i o n . S E C O N D A R Y L I T E R A T U R E (part I): Z e e v e l d 1 9 4 8 ; E l t o n 1 9 7 3 ; B r a d s h a w 1 9 7 9 ; M a y e r 1 9 8 9 ; M a y e r , in S t a r k e y 1 9 8 9 . SUÁREZ, FRANCISCO 1 5 4 8 - 1 6 2 7 . B o r n in G r a n a d a i n t o a family d i s t i n g u i s h e d b y l o n g service t o t h e c r o w n , S u á r e z s t u d i e d c a n o n l a w f r o m 1 5 6 1 at S a l a m a n c a . In d u e c o u r s e h e b e c a m e a Jesuit a n d d e v e l o p e d i n t o an o u t s t a n d i n g t h e o l o g i a n . After t e a c h i n g at several i n s t i t u t i o n s , h e b e c a m e professor o f t h e o l o g y at t h e Jesuit college at R o m e . F r o m t h e r e h e r e t u r n e d t o Alcalá a n d t h e n c e t o S a l a m a n c a . E v i d e n t l y m o r e at ease as a w r i t e r t h a n as a teacher, h e w a s n o n e t h e l e s s n o m i n a t e d b y P h i l i p II in 1 5 9 3 t o t h e t h e o l o g y chair at C o i m b r a w h e r e h e d e l i v e r e d t h e lectures w h i c h w e r e p u b l i s h e d as De legibus ( 1 6 1 2 ) . W i t h his Defensio fidei ( 1 6 1 3 ) Suárez e n g a g e d in t h e f a m o u s c o n t r o v e r s y b e t w e e n J a m e s I o f E n g l a n d a n d C a r d i n a l B e l l a r m i n e . S E C O N D A R Y L I T E R A T U R E (part II): B a c k e r a n d B a c k e r 1 8 5 3 - 6 1 ; H a m i l t o n 1 9 6 3 ; M e l i a 1 9 7 7 ; Sommerville 1982. SUMMENHART, CONRAD c. 145 5 - 1 5 0 2 . B o r n at C a l w , h e m a t r i c u l a t e d in 1 4 7 2 at H e i d e l b e r g , later m i g r a t i n g t o Paris a n d c o m p l e t i n g his arts c o u r s e in 1 4 7 8 at t h e t h e n r e c e n t l y f o u n d e d U n i v e r s i t y o f T u b i n g e n . In 1 4 8 9 h e b e c a m e a d o c t o r o f t h e o l o g y t h e r e a n d is first m e n t i o n e d as ordinarius in t h e o l o g y in 1 4 9 7 . H i s t e a c h i n g w a s realist, i n c l i n i n g t o S c o t i s m . H i s m o s t i m p o r t a n t wlprk w a s t h e opus de contractibus. Septipertitum S E C O N D A R Y L I T E R A T U R E (part I): H e r m e l i n k 1 9 0 6 , p p . 1 5 2 - 6 ; Lexikon für Theologie und Kirche; Auctarium Chartularii Universitatis Parisiensis, vi, p . 5 3 9 n . 5. TENISON, THOMAS 1 6 3 6 — 1 7 1 5 . As a fellow o f C o r p u s C h r i s t i C o l l e g e , C a m b r i d g e , in t h e 1660s h e h e l p e d p r o c u r e t h e r e c a n t a t i o n a n d ejection o f t h e 'licentious H o b b i s t ' D a n i e l Scargill. H i s Creed of Mr Hobbes Examined a p p e a r e d in 1 6 7 0 . In t h e 1680s h e b e c a m e a p o p u l a r L o n d o n p r e a c h e r , in 1 6 9 1 a b i s h o p , a n d in 1 6 9 4 a r c h b i s h o p o f C a n t e r b u r y . A l t h o u g h r e g a r d e d as a l a t i t u d i n a r i a n a n d c o u r t W h i g b i s h o p , b e f o r e t h e R e v o l u t i o n t h e r e w a s little t o distinguish h i m f r o m t h e political a n d ecclesiastical T o r y i s m t h e n p r e v a i l i n g . S E C O N D A R Y L I T E R A T U R E (part V ) : M i n t z 1 9 6 2 .

697

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Biographies

TOLAND, JOHN 1670—1722. A n I r i s h m a n best k n o w n for his c o n t r o v e r s i a l deist w r i t i n g s , a b o v e all his Christianity not Mysterious ( 1 6 9 6 ) , T o l a n d also h a d an active political career f r o m his arrival in L o n d o n in t h e e a r l y 1690s. H e e d i t e d t h e p r i n c i p a l w o r k s o f H a r r i n g t o n , w r o t e a life o f M i l t o n , a n d p r o b a b l y e d i t e d S i d n e y a n d L u d l o w t o o . H e w a s also a c t i v e in t h e c a m p a i g n against s t a n d i n g a r m i e s , in w h i c h h e c o l l a b o r a t e d w i t h W a l t e r M o y l e a n d J o h n T r e n c h a r d a n d w i t h radical W h i g p u b l i s h e r s . SECONDARY LITERATURE

(part III): W o r d e n , in L u d l o w 1 9 7 8 ; Sullivan 1 9 8 2 .

TYNDALE, WILLIAM c. 1494—1536. B o r n in G l o u c e s t e r s h i r e , h e s t u d i e d first at M a g d a l e n C o l l e g e , O x f o r d , a n d t h e n at C a m b r i d g e , w h e r e h e b e c a m e a c q u a i n t e d w i t h t h e n e w religious ideas e m a n a t i n g from W i t t e n b e r g . C o m m i t t i n g himself to the R e f o r m and to the project of translating the B i b l e afresh i n t o English, h e left E n g l a n d for H a m b u r g in 1 5 2 4 a n d n e v e r r e t u r n e d . His B i b l e w a s p r i n t e d in 1 5 2 5 - 6 a n d h i s political tract, The Obedience of a Christen man and how Christen rulers ought to governe, in 1 5 2 8 . H a v i n g m o v e d t o t h e L o w C o u n t r i e s , h e w a s arrested, i m p r i s o n e d , a n d b u r n t at t h e stake as a h e r e t i c . S E C O N D A R Y L I T E R A T U R E (part II): M o z l e y 1 9 3 7 . TYRRELL, JAMES 1 6 4 2 — 1 7 1 8 . A close friend o f L o c k e . T h e r e are signs o f t h e latter's c o l l a b o r a t i o n in t h e w r i t i n g o f Patriarcha non Monarcha ( 1 6 8 1 ) , o n e o f t h e t h r e e m a j o r W h i g ripostes t o t h e T o r y ' s i d e o l o g i c a l flagship, F i l m e r ' s Patriarcha, t h e o t h e r t w o b e i n g S i d n e y ' s Discourses a n d L o c k e ' s Two Treatises. T y r r e l l ' s b o o k includes i m p o r t a n t r e m a r k s o n H o b b e s , a n d t h e r e are b o r r o w i n g s f r o m P u f e n d o r f t o o . In t h e 1690s h e t u r n e d t o w r i t i n g h i s t o r y a n d t o a r é s u m é o f Politica. W h i g c o n s t i t u t i o n a l t h e o r y in his Bibliotheca S E C O N D A R Y L I T E R A T U R E (part V ) : G o u g h I 9 7 6 . VERMIGLI, PETER M A R T Y R 1500—62. B o r n in F l o r e n c e , e n t e r e d t h e A u g u s t i n i a n o r d e r in 1 5 1 6 . H e s t u d i e d at P a d u a , t h e n l e c t u r e d o n t h e B i b l e in several A u g u s t i n i a n c o n v e n t s in Italy. H e w a s influenced b y t h e biblical c o m m e n t a r i e s o f B u c e r a n d Z w i n g l i a n d w a s s u m m o n e d t o a p p e a r b e f o r e a g e n e r a l c h a p t e r o f his o r d e r in 1 5 4 2 . H e fled t o S w i t z e r l a n d , t h e n t o S t r a s b u r g , w h e r e h e b e c a m e professor o f t h e o l o g y . I n v i t e d t o E n g l a n d b y C r a n m e r , h e b e c a m e r e g i u s professor o f d i v i n i t y at O x f o r d in 1 5 4 8 . After M a r y T u d o r ' s accession h e r e t u r n e d t o S t r a s b u r g b u t e n c o u n t e r e d o p p o s i t i o n t o his eucharistic t e a c h i n g f r o m L u t h e r a n pastors t h e r e a n d so a c c e p t e d an i n v i t a t i o n t o t e a c h at Z u r i c h . His m a n y p u b l i s h e d biblical c o m m e n t a r i e s , p a r t i c u l a r l y o n J u d g e s a n d R o m a n s , c o n t a i n a n u m b e r o f c o m m e n t s ^>n political topics. S E C O N D A R Y L I T E R A T U R E (part II): A n d e r s o n 1 9 7 5 ; K i n g d o n , in V e r m i g l i 1 9 8 0 . VIRET, PIERRE 1 5 1 1 — 7 1 . B o r n in t h e c a n t o n o f V a u d , S w i t z e r l a n d . H e s t u d i e d t h e o l o g y in Paris, t h e n r e t u r n e d t o S w i t z e r l a n d w h e r e , influenced b y Farei, h e b e c a m e a P r o t e s t a n t p r e a c h e r . H e h e l p e d establish t h e R e f o r m a t i o n in G e n e v a a n d L a u s a n n e , a n d as a p r e a c h e r a n d professor at t h e L a u s a n n e A c a d e m y , h e o r g a n i s e d t h e R e f o r m e d c h u r c h in V a u d . H e w a s forced t o leave L a u s a n n e in 1 5 5 9 b e c a u s e o f d i s a g r e e m e n t s w i t h t h e a u t h o r i t i e s o v e r c h u r c h discipline. H e s e r v e d as a p r e a c h e r in G e n e v a , t h e n w e n t t o s o u t h e r n F r a n c e in 1 5 6 3 . In 1 5 6 7 h e b e c a m e professor o f t h e o l o g y at t h e a c a d e m y established at O r t h e z b y t h e q u e e n o f N a v a r r e . O f his m a n y t h e o l o g i c a l w o r k s c o n t a i n i n g occasional references t o political topics, t h e m o s t i m p o r t a n t is his Instruction chrestienne, first p u b l i s h e d in 1 5 5 6 . S E C O N D A R Y L I T E R A T U R E (part II): L i n d e r 1 9 6 4 , 1 9 6 6 . 698

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Biographies

VITORIA, F R A N C I S C O DE c. 1 4 8 3 - 1 5 4 6 . A B a s q u e b o r n at V i t o r i a in A l a v a , V i t o r i a e n t e r e d t h e D o m i n i c a n o r d e r at B u r g o s b e f o r e p r o c e e d i n g t o t h e C o l l è g e d e St J a c q u e s in Paris w h e r e h e stayed as s t u d e n t a n d t e a c h e r for s o m e sixteen years. B a c k in Spain, h e t a u g h t at V a l l a d o l i d b e f o r e a p p o i n t m e n t in 1 5 2 6 t o t h e chair o f t h e o l o g y at S a l a m a n c a . F a m o u s as a l e c t u r e r , h e e v e n t u a l l y a c h i e v e d an i m p o r t a n t c u r r i c u l a r r e f o r m t h r o u g h partially r e p l a c i n g P e t e r in L o m b a r d ' s Sentences w i t h A q u i n a s ' Summa. H i s De Indis a n d De jure belli Hispanorum barbaros b e g a n as p u b l i c lectures. T h e y f o r m t h e basis o f V i t o r i a ' s c l a i m t o b e a f o u n d i n g father o f i n t e r n a t i o n a l l a w , a n d o f his r e p u t a t i o n as a d e f e n d e r o f t h e A m e r i n d i a n s . S E C O N D A R Y L I T E R A T U R E (part II): G e t i n o 1 9 3 0 ; H a m i l t o n 1 9 6 3 ; P a g d e n 1 9 8 7 . VIVES, J U A N LUIS 1492—1540. V i v e s w a s t h e m o s t d i s t i n g u i s h e d o f t h e Spanish h u m a n i s t s , a l t h o u g h m o s t o f his career w a s s p e n t as a p e r i p a t e t i c scholar a n d teacher. After studies at B e a u v a i s ( 1 5 0 9 - 1 2 ) h e m o v e d t o B r u g e s , a n d t h e n t a u g h t at L o u v a i n (1519—23) a n d O x f o r d (from 1 5 2 3 ) . H e w a s a t t a c h e d t o Q u e e n C a t h e r i n e o f A r a g o n ' s circle, a n d his o p p o s i t i o n t o H e n r y VIII's d i v o r c e led t o b r i e f i m p r i s o n m e n t in 1 5 2 7 a n d r e t i r e m e n t t o B r u g e s . V i v e s ' v o l u m i n o u s w r i t i n g s c o m p r e h e n d classical studies, patristics, m o r a l p h i l o s o p h y , a n d p s y c h o l o g y (De anima et vita libri tres, 1 5 3 8 ) , e d u c a t i o n a l t h e o r y (De disciplinis, 1 5 3 1 ; De institutione feminae Christianae, 1 5 2 4 ) , politics a n d social affairs (De subventione pauperum, 1 5 2 6 , o n t h e alleviation o f p o v e r t y b y s t a t e - s p o n s o r e d p u b l i c w o r k s ) . His w r i t i n g s against w a r align h i m w i t h t h e E r a s m i a n circle. SECONDARY LITERATURE

WALWYN,

(part I): A d a m s 1 9 6 2 ; N o r e n a 1 9 7 0 .

WILLIAM

1 6 0 0 - 8 0 . Leveller. S e c o n d son o f a W o r c e s t e r s h i r e g e n t l e m a n , a p p r e n t i c e d in L o n d o n , h e b e c a m e a m e m b e r o f t h e M e r c h a n t A d v e n t u r e r s ' C o m p a n y . B e g i n n i n g in 1 6 4 1 h e w r o t e a n u m b e r o f p a m p h l e t s in f a v o u r o f religious a n d political f r e e d o m . A l w a y s radical in his political v i e w s , h e early o p p o s e d a r g u m e n t s f r o m t h e a n c i e n t c o n s t i t u t i o n _as t o o c o n s e r v a t i v e . H e d e f e n d e d religious t o l e r a t i o n , b u t r e m a i n e d a m e m b e r o f his parish c h u r c h . F r o m 1 6 4 6 t o 1 6 4 9 h e c a m e u n d e r a t t a c k for ' a t h e i s m ' , a c h a r g e h e r e p e a t e d l y d e n i e d . His association w i t h t h e o t h e r Leveller leaders b e g a n in 1 6 4 5 , a n d h e w a s briefly i m p r i s o n e d w i t h t h e m in 1 6 4 9 . Later h e d e v e l o p e d an interest in m e d i c a l practice. S E C O N D A R Y L I T E R A T U R E (part III): G r e a v e s a n d Z a l l e r 1 9 8 2 - 4 a n d w o r k s cited t h e r e . WHITE, THOMAS 1 5 9 3 — 1 6 7 6 . T h e m o s t intellectually i n t e r e s t i n g C a t h o l i c priest in s e v e n t e e n t h - c e n t u r y E n g l a n d , c o n d e m n e d for h e r e s y b o t h b y t h e English p a r l i a m e n t a n d b y R o m e . His p h i l o s o p h i c a l r e p u t a t i o n w a s h i g h ; Leibniz l i n k e d h i m w i t h Descartes a n d Gassendi a m o n g t h e l e a d i n g lights o f n e w p h i l o s o p h y . His alias w a s B l a c k l o ; ' B l a c k l o i s m ' i n v o l v e d a n t i p a p a l i s m a n d an excessively rationalist style o f t h e o l o g y . O n e o f H o b b e s ' earliest w o r k s w a s a c r i t i q u e o f W h i t e ' s De Mundo; in later years t h e t w o e n j o y e d a r g u m e n t s t o g e t h e r ; t h e y w e r e l i n k e d in C o k e ' s 1 6 6 0 c r i t i q u e a n d in p a r l i a m e n t ' s 1 6 6 6 c o n d e m n a t i o n . W h i t e ' s Grounds of Obedience ( 1 6 5 5 ) i s t h e e x a m p l e o f politics o n H o b b e s ' sceptical f o u n d a t i o n s . S E C O N D A R Y L I T E R A T U R E (part V ) : M i n t z 1 9 6 2 . D e s t

WILDMAN, JOHN 1623—93. Leveller, p l o t t e r , p a m p h l e t e e r . H e served in t h e p a r l i a m e n t a r y a r m y , a n d first a p p e a r s as an a g i t a t o r in 1 6 4 7 , w h e n h e h e l p e d draft t h e A g r e e m e n t o f t h e P e o p l e . H e w a s arrested in 1 6 4 8 , b e c a m e a l a n d s p e c u l a t o r o n his release, a n d r e - e n t e r e d m i l i t a r y service, r e a c h i n g t h e r a n k o f m a j o r in 1 6 5 3 . H e w a s a d o u b l e a g e n t u n d e r C r o m w e l l . A t t h e 699

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Biographies

R e s t o r a t i o n h e b o t h w o n r o y a l f a v o u r a n d e n g a g e d in r e p u b l i c a n plots. H e w a s in exile 1 6 6 1 - 7 ; later h e w a s an associate o f S h a f t e s b u r y a n d S i d n e y , p a r t i c i p a t i n g in t h e R y e H o u s e P l o t ( 1 6 8 3 ) , M o n m o u t h ' s R e b e l l i o n a n d W i l l i a m ' s i n v a s i o n . H e briefly b e c a m e p o s t m a s t e r ^ g e n e r a l in 1 6 8 9 , b u t w a s s o o n dismissed. H e w a s k n i g h t e d in 1 6 9 2 , t h o u g h h e h a d t u r n e d t o Jacobite plotting. SECONDARY LITERATURE

WILLIAMS,

(part III): G r e a v e s a n d Z a l l e r 1 9 8 2 - 4 a n d w o r k s cited t h e r e .

ROGER

c. 1603—83. B o r n in L o n d o n , son o f a m e r c h a n t tailor, h e s t u d i e d at C a m b r i d g e , a n d e m i g r a t e d t o Massachussetts in 1 6 3 1 , w h e r e h e insisted o n t h e n e e d for c o m p l e t e s e p a r a t i o n f r o m t h e c h u r c h o f E n g l a n d . H e w a s e x p e l l e d f r o m Massachussetts in 1 6 3 5 , accused o f a n t i n o m i a n i s m . H e t h e n established P r o v i d e n c e , R h o d e Island, a n d r e t u r n e d t o E n g l a n d in 1643 t o seek a c h a r t e r . T h e r e h e p u b l i s h e d A Key into the Language of America, t h e p r o d u c t o f a mission t o t h e Indians d u r i n g w h i c h h e h a d c o n v i n c e d h i m s e l f o f t h e i r l a n d r i g h t s , a n d The Bloudy Tenent of Persecution for Cause of Conscience ( 1 6 4 4 ) , a defence o f t h e r i g h t s o f all believers. H e r e t u r n e d t o R h o d e Island, b u t w a s b a c k in E n g l a n d 1 6 5 2 - 4 , w h e n h e p u b l i s h e d The Bloudy Tenent Yet More Bloudy. H e w a s p r o m i n e n t in R h o d e Island politics u n t i l his death. SECONDARY LITERATURE

WINSTANLEY,

(part III): G r e a v e s a n d Z a l l e r 1 9 8 2 - 4 a n d w o r k s cited t h e r e .

GERRARD

1 6 0 9 - 7 6 . T h e son o f a b u r g e s s o f W i g a n , W i n s t a n l e y w a s a p p r e n t i c e d in 1 6 3 0 t o a L o n d o n w i d o w . H e b e c a m e a f r e e m a n o f t h e M e r c h a n t T a y l o r s C o m p a n y in 1 6 3 7 b u t b y 1643 t h e collapse o f his business led t o his t a k i n g u p a g r i c u l t u r a l e m p l o y m e n t in S u r r e y . In 1648 h e b e g a n t o p u b l i s h a series o f w o r k s o n universal salvation a n d t h e c o m i n g m i l l e n n i u m . The New Law of Righteousness (1649) announced the end of covetousness and the beginning of c o m m u n i t y . In A p r i l 1 6 4 9 t h e f a m o u s d i g g i n g e x p e r i m e n t s b e g a n at St G e o r g e ' s Hill, S u r r e y . B y early 1 6 5 0 similar c o m m u n i t i e s h a d d e v e l o p e d in several m i d l a n d a n d s o u t h e r n c o u n t i e s . T h e y a p p e a r t o h a v e collapsed d u r i n g t h a t year. W i n s t a n l e y w e n t o n ^ o w r i t e his a p p e a l t o C r o m w e l l . The Law of Freedom ( 1 6 5 2 ) . After t h e R e s t o r a t i o n h e s e r v e d a A n g l i c a n c h u r c h w a r d e n at C o b h a m , b u t m a y h a v e d i e d a Q u a k e r c o r n dealer in L o n d o n . S E C O N D A R Y L I T E R A T U R E (part II): Hill 1 9 7 2 , 1 9 8 6 ; Hill, in W i n s t a n l e y 1 9 7 3 ; D a v i s 1 9 7 6 , 1981a; Aylmer 1984. ZAMPINI, MATTEO fl. 1586—94. B o r n in R e c a n a t i in t h e M a r c h o f A n c o n a , t h e j u r i s c o n s u l t Z a m p i n i j o i n e d t h e r e t i n u e o f C a t h e r i n e d e M e d i c i s in F r a n c e . His first w o r k t o b e p u b l i s h e d in F r a n c e w a s an a t t e m p t t o s h o w t h a t t h e C a p e t i a n s w e r e d e s c e n d e d f r o m C l o v i s . In 1 5 8 6 h e p r i n t e d t h e Elogia o f his p a t r o n e s s , f o l l o w e d b y a s t u d y o f t h e F r e n c h Estates G e n e r a l in 1 5 8 7 a n d t w o tracts o n t h e r i g h t o f t h e C a r d i n a l d e B o u r b o n t o succeed H e n r i III, a p p e a r i n g in 1 5 8 8 . In 1 5 9 1 h e criticised t h e refusal o f t h e royalist parlements t o receive briefs f r o m P o p e G r e g o r y X I V . H e r e t u r n e d t o Italy after H e n r i IV's r e c o v e r y o f Paris in 1 5 9 4 . S E C O N D A R Y L I T E R A T U R E (part II): Allen 1 9 4 1 . ZASIUS, U L R I C H 1 4 6 1 — 1 5 3 5 . T h e l e a d i n g G e r m a n j u r i s t o f his d a y , friend o f E r a s m u s , a n d m e m b e r ( w i t h B u d e a n d Alciato) o f an i n t e r n a t i o n a l ' i m a g i n a r y t r i u m v i r a t e ' o f legal h u m a n i s m , Zasius h a d a career b o t h as a practising l a w y e r a n d as a t e a c h e r o f l a w at F r e i b u r g . C o m b i n i n g t h e o l d scholastic w i t h t h e n e w h u m a n i s t i c styles o f scholarship, h e p u b l i s h e d a v a r i e t y o f legal w o r k s , m o s t n o t a b l y t h e collection o f his legal o p i n i o n s (consilia), his w o r k o n t h e status o f

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Biographies

J e w s , his lectures o n feudal l a w ( c o m m e n t a r y o n t h e L o m b a r d Libri Feudorum), a n d a v a r i e t y o f critical a n d r e f o r m i s t studies o f R o m a n l a w , especially his influential treatise On the Origin of Civil Law, w h i c h w a s a s u r v e y o f R o m a n legal, i n s t i t u t i o n a l , a n d political h i s t o r y f r o m t h e s t a n d p o i n t b o t h o f i m p e r i a l i d e o l o g y a n d a h u m a n i s t 'sense o f h i s t o r y ' . S E C O N D A R Y L I T E R A T U R E (part I): R o w a n 1 9 8 7 . ZWINGLI, HULDREICH 1 4 8 4 - 1 5 3 1 . B o r n at W a l d h a u s in t h e Swiss c a n t o n o f St Gall, h e w a s e d u c a t e d at B e r n e , V i e n n a , a n d Basle. O r d a i n e d as a priest in 1 5 0 6 , h e s e r v e d as a p a s t o r at G l a r u s u n t i l 1 5 1 6 w h e n h e m o v e d t o Einsiedeln. M o v e d b y t h e spirit o f E r a s m i a n h u m a n i s m , a n d led b y his scriptural studies t o d e v e l o p t h e d o c t r i n a l c o m m i t m e n t s t h a t c a m e later t o characterise t h e P r o t e s t a n t i s m o f t h e R e f o r m e d c h u r c h e s o f S w i t z e r l a n d , h e b e g a n t h e w o r k o f p u t t i n g his r e f o r m i n g ideas i n t o effect at Z u r i c h after h e h a d b e e n elected p r e a c h e r at t h e O l d M i n s t e r t h e r e in 1 5 1 8 . T h e t u r n i n g p o i n t in t h e r e f o r m at Z u r i c h c a m e in 1 5 2 3 w h e n t h e city c o u n c i l b a c k e d t h e d o c t r i n a l p o s i t i o n h e h a d d e f e n d e d in p u b l i c d i s p u t a t i o n . H e w a s killed at t h e battle of Kappel. S E C O N D A R Y L I T E R A T U R E (part II): W a l t o n 1 9 6 7 ; P o t t e r 1 9 7 6 .

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The Cambridge History Of Political Thought 1450-1700

The Cambridge History of Eighteenth-Century Political Thought (The Cambridge History of Political Thought)

The Cambridge History of Eighteenth-Century Political Thought (The Cambridge History of Political Thought)

The Cambridge History of Nineteenth-Century Political Thought (The Cambridge History of Political Thought)

The Cambridge History of Eighteenth-Century Political Thought (The Cambridge History of Political Thought)

The Cambridge History of Nineteenth-Century Political Thought (The Cambridge History of Political Thought)

Cambridge History of 20th Century Political Thought

Political Essays (Cambridge Texts in the History of Political Thought)

History of Political Thought