England: Preparation for Civil War. Before the outbreak of the civil wars in England in the 1640’s the lines between rival political ideas were much less clearly drawn than they had become in France in the last quarter of the sixteenth century, In the latter country the right to resist had become definitely attached to the ancient idea that political power resides in the people, the duty of passive obedience was definitely attached to the theory of monarchical divine right, while Bodin’s Republic had given a fair approximation to a theory of constitutional unity under the crown.
In England, where no serious threat of civil disorder occurred until after the first quarter of the seventeenth century, these ideas remained in the inchoate state in which they existed in the medieval tradition. The Tudor monarchs were virtually absolute, but their power rested on the acquiescence of a substantial middle class which they were too prudent to alienate. Hence there was no faction that had any serious interest in supporting royal absolutism with a theory of divine right, and none that had to seek a theoretical defense for the right to resist.
No one had as yet been forced to contemplate the consequences of a break between the powers of the constitution, such as the king and parliament or the king and his courts. The older assumption of comity and harmony between these powers under the fundamental law of the realm could still be made, without considering the ultimate legal supremacy of any of them. The traditional rights and limitations which fixed, vaguely but with sufficient precision, the status of all parts of the constitution had not yet been strained to the breaking point.
As the sixteenth century advanced, in England as everywhere else in Europe, all other considerations were overshadowed by political problems arising from the Protestant Reformation. The political ambitions of the various churches obscured and concealed the serious economic dislocation that attended the rise of modern trade and the destruction of the older economy.
The older stratum of thought may be seen in such a pre-Reformation work as Sir Thomas More’s political satire, the Utopia. Though modeled externally on Plato’s Republic,the Utopia really expressed its author’s dislike of an acquisitive society in which it was becoming good morals to buy abroad very cheap and sell again exceeding dear.
The satire follows a pattern which might serve for any period of economic maladjustment crime is alarmingly common and is met by corresponding savagery in the criminal law, yet severity avails nothing, for crime is the only means of livelihood open to great numbers of persons. What other thing do you do than make thieves and then punish them? Men trained for soldiers are thrown, by the cessation of war, upon the community with no possibility of being absorbed into industry.
Industry, especially agriculture, cannot even support those already in it, since wool, the most profitable crop, requires the turning of arable land into pasture and the dispossessing of peasant occupiers. Sheep consume, destroy, and devour whole fields, houses, and cities, and while peasants starve, or rob to live, the rich affect a strange and proud new fangledness in their apparel and too much prodigal riot and sumptuous fare at their table. Government, instead of attacking this social disease, is engaged in legal chicanery to extort taxes and in pernicious schemes of war and conquest. More’s sharpest shafts of irony were reserved for the perfidy of international diplomacy.
This attack upon the economics of business enterprise, however, was really motivated by a longing for the past. It went back to the ideal, though hardly the actuality, of a cooperative commonwealth, which the new economy was displacing. More’s conception of what was socially right was derived professedly from Plato’s analysis of society into a system of cooperating classes, but perhaps more truly from the assumed validity of this conception in most of the social theory of the Middle Ages.
According to this view, current at any time after St. Thomas, a community consists of classes, each entrusted with some task necessary to the common good, each performing its proper function and receiving its due reward without encroaching upon the equal right of others. In such a scheme individual enterprise has practically no place. Perhaps an English manor may have formed an economic unit, and ideally a moral unit, not too remote from such a conception.
The moral purpose of a community, as More idealized it, was to produce good citizens and men of intellectual and moral freedom, to do away with idleness, to supply the physical needs of all without excessive labor, to abolish luxury and waste, to mitigate both poverty and wealth, and to minimize greed and extortion; in short, to reach its consummation in “free liberty of the mind and the garnishing of the same.
If a worthy moral idea can ever be pitiable surely this of More, appearing on the threshold of the religious wars and the expansion of modern trade, might be called so. It expressed, as More’s life did, the reasonableness and open-mindedness of humanism, and withal the futility of a moral aspiration that cannot make its account with brute fact.
Even the effort to give prominence to social and economic problems with their human consequences, failed before the rising tide of theological strife and the problems of political organization which it involved. For this reason the Utopia remained comparatively an isolated and unimportant episode in the political philosophy of its time. It illustrated rather the dying utterance of an old ideal than an authentic voice of the age that was coming into being.
Hooker: The National Church:-
The conception of a cooperative commonwealth, present in More and in all the English writers of the sixteenth century, formed a matrix from which the sharper issues of the mid-seventeenth century emerged. By the end of the sixteenth century the old conception tad become strikingly incoherent; all parties were inclined to rely upon untenable compromises which had to be given up when various claims, really incompatible, were pushed. The main regions of stress were two. There was, in the first place, the old question of the church and secular government, in no way solved by the secession from Rome, but transformed into an internal problem involving national relations with the English church and the other branches of Protestant dissent, Presbyterian, Independent, and sectarian.
In all these ecclesiastical and theological positions there were, and continued to be, political implications which could not be avoided, Hence it is necessary to take account of the political differences between the religious parties into which Englishmen were divided. In the second place, there was the question of the centralization of power and its incidence upon the supposedly cooperative relation between the various parts of government. Specifically this concerned the king and his control over his courts, first over the courts of common law and, more seriously in the end, over parliament.
This article will describe, first, the political positions characteristic of the main religious bodies, and especially the bearing of these positions on the theory of the relation between church and state. Second, it will describe the growing tension between the crown and other elements of the constitution which was gradually breaking down the old belief in the harmony of powers.
For reasons that were quite unavoidable under the circumstances the independence of the English church from Rome could only mean that the king became its temporal head, but the temporal head of a church was a new and incomprehensible idea.
Ecclesiastical government must Include the power to decide what doctrines were to be believed by its members, yet no Christian could seriously think that the king of England was able to say what was true doctrine. A lawyer who knew little about theology and cared less might content himself with the practical conclusion that heresy was defined in the king’s courts like other offenses.
A man who earnestly believed that the doctrine of the church was eternal truth might well feel some misgiving at seeing this truth put into the keeping of the bishops, who were appointed by the king to govern the church. The truth is that the temporal headship was plausible just in so far as it was not necessary to understand it. It meant in effect not a theory but a practicable compromise which was unavoidable and on the whole conducive to public order. The religious wars in France presented an alternative that prudent Englishmen willingly took to heart.
One essential fact in the situation was that everyone still lived in the shadow of a supposedly universal Christianity, believing that the divisions between the churches were temporary and would presently disappear, restoring the normal condition of a common belief. No one touched with Calvin’s strong views on the independence of the church could contemplate the temporal headship as a permanence.
The controversy about the royal headship of the church produced one treatise of lasting importance, The Laws of Ecclesiastical Polity by Richard Hooker.? In purpose it was controversial, being intended to refute Puritan criticism of the established church, but in temper and breadth of learning it was at the opposite pole from the usual controversial tract. Though dealing explicitly with church government, the book was really an examination of the philosophy of law and government at large, since Hooker conceived church government to be only one aspect of all civil society.
Taken as representing the thought of its own day, the Ecclesiastical Polity was notable because it was the last great statement of what might be called the medieval tradition, before that tradition was snapped by the stresses and strains of civil war. The striking thing about it was the variety of issues which it could conciliate, instead of making them irreconcilable conflicts as they became a generation later.
In the long run, however, the importance of the book lay in providing a means by which this medieval tradition could carry over, with some necessary changes, into the modern political philosophy of the era after the civil wars. John Locke was glad to acknowledge his indebtedness to the judicious Hooker, and in fact the conservative character of his summing up of the results of the Revolution depended in no small degree upon the continuity of his ideas with those of the earlier thinker.
The main object of Hooker’s argument was to show that the Puritans, in refusing obedience to the established church, were implicitly denying the foundations of all political obligation: Englishmen are bound by reason to obey the ecclesiastical law of England, while Puritans are not bound, either by reason or religion, to disobey it. The defense of this thesis took him first into a philosophical examination of all law and the basis of political obligation, and here he followed the lead of Thomas.
There are various types of law the eternal law, or the law of God’s own nature, the natural law, or the ordinances which ‘God has laid down for governing things after their various kinds, and the law of reason, which man as a rational being is especially obligated to follow.
Reason enables a man to perceive the good and his will leads him to follow it. Hence the rule of men’s lives is the sentence that reason give concerning the goodness of those things which they are to do. And the sign by which such rules of reason may be known is the general assent of mankind. That which all men have at all times learned, nature herself must needs have taught.
The most fundamental rules of season are therefore universally accepted as soon as they are understood, and rules of less generality may be deduced from them. So far Hooker hardly went beyond the commonplaces of all medieval political thought, since it was his purpose to argue from principles generally accepted. He restated the theory of law from which Grotius started a generation later, and nothing is lacking except the more rationalist form of argument which Grotius added to the inherited theory.
Manifestly the law of reason is binding upon all men absolutely, even if society and government did not exist. Men are led to form societies, according to Hooker, because they have a native sociability and are unable to satisfy their needs in a life of isolation.
A society is impossible without government, and government in turn is impossible without human or positive law. To take away the mutual grievances which inevitably arise when men associate together there is no way but by growing into composition and agreement amongst themselves, by ordaining some kind of government public, and by yielding themselves subject thereunto. Hooker did not enlarge upon the notion of a contract, though the idea was implied in what he said.
The rules by which men elect to live together are agreed upon either expressly or tacitly, and the order thus established is law for the commonwealth, the very soul of a politic body, the parts whereof are by law animated, held together, and set on work in such actions as the common good require. The ground of political obligation is therefore the common consent by which men agree to be ordered by someone.
As Hooker says, in words that recall Nicholas of Cusa, without this consent there is no reason why one man should take upon him to be lord or judge of another. He expressly held, however, that consent may be given through representatives and that, a commonwealth once existing, Its laws are binding upon its members for all time, for corporations are immortal.
Accordingly, though he says that, Laws they are not which public approbation have not made so, and though he holds that to govern without consent is tyranny, he claimed no right of rebellion. There is no way in which a society can withdraw its consent from an authority it has set up.
The noteworthy fact about this system so far is its substantial agreement with Thomas: the human law of the community is derivative, in-a series of descending steps, from the eternal law of God and has behind it all the authority of its origin. The positive law gives effect to what nature requires in general, and the community, as a natural unit, has an inherent capacity to bind its members under the organic law of its own being.
When Hooker begins to deal with Puritan attacks on the English church, however, the resemblance to Thomas stops. In brief he argued that the ecclesiastical law of England is not contrary to reason or Christian faith and hence is binding, like the rest of English law, upon all Englishmen.
The fostering of religion is a first charge on every body politic, and any society which has a true religion is at once a church and a state. The English church and the English nation are exactly identical in membership, for every Englishman is a Christian and every Christian in England is an Englishman. Ecclesiastical law, therefore, has the same kind of authority as any other law, and disobedience to it undermines all social order.
For Hooker the offense of Puritanism is that it makes church and state two distinct societies, as he thinks Roman Catholicism does. In practice, as he pretty clearly implies, this is covertly a way of making the church supreme over the state. Consequently both papalism and presbyterianisrn are causes of confusion and disorder in the state and ultimately in the church.
This argument is a truly extraordinary combination of medievalism and nationalism. It assumes, first, that the English nation is a commonwealth or a community, a self-sufficing corporate entity whose laws bind its members not only in their individual capacity but as organs of the community. Hence the law prescribes what both princes and prelates may do, and their power belongs not to their personal will but to their offices.
On the constitutional side Hooker’s theory is still that of the cooperative commonwealth. With respect to religion it assumes, quite in the medieval fashion, that any complete society must be at once church and state, including an ecclesiastical as well as a secular constitution.
It takes for granted that Christianity is true-presumably not truer for Englishmen than for others-and yet, it assumes also, what would certainly have amazed Thomas, that this universal truth needs no universal institution of its own but can be put into the keeping of a national government and a national church.
Finally, and this forms its fatal weakness from a Puritan point of view, it assumes that the indubitable truth of Christianity leaves the form of church government-the choice between episcopalianism and presbyterianism -a matter of indifference so far as faith is concerned. Obviously no Calvinist could admit this, any more than a catholic could admit that the spiritual authority of the pope had nothing to do with faith.
If Hooker’s theory be taken as representing the state of political thought in England at the end of the sixteenth century, it is as notable for what it omits as for what it includes. His version of the theory of consent was not at all a defense of the right to resist, but equally he made nothing of passive obedience.
The ethical belief that rebellion is wrong was stated strongly enough by other English writers in the sixteenth century, and by Puritans as much as by others, but the grounds for the belief were utilitarian and it implied no theory of royal absolutism. In particular, though Hooker wrote as an Anglican, his theory is at the opposite pole from any doctrine of monarchical divine right.
The popularity of divine right among Anglicans was strictly a phenomenon of the civil wars and after. It was a clerical theory, most violently held in the universities, and after the execution of Charles I, a peg on which to hang sentimentality about the royal martyr. It never affected any constitutional issue and probably played a negligible part in the realistic thinking even of royalists. Certainly it had no spokesman in parliament during the reigns of James | and Charles. Later it received lip-service, but it probably never played a significant part in English political philosophy.
Catholic and Presbyterian Opposition:-
On the other hand, Hooker’s defense of the royal headship of the national church was intolerable to two classes of Englishmen, the Presbyterians and the Catholics. Both agreed that royal supremacy in the church was an invasion of spiritual independence. Behind the newer doctrinal disputes and differences about church government there still lay the ancient questions of clerical dictation and spiritual freedom. Anglicans stressed opposition to the first; Presbyterians and Catholics stood upon the second as an essential article of Christianity.
The fundamental position of Catholics is illustrated by a passage between Sir Thomas More and the King’s Solicitor at More’s trial. The Solicitor tried to trap More into a denial of the binding force of an act of parliament by asking him if even the election of a pope must not be settled for Englishmen if parliament chose to pass on it. More replied:
To your first case, the Parliament may well meddle with the state of temporal princes; but to make answer to your, second case, will put you this case. Suppose the Parliament would make a law that God should not be God, would then you, Master Rich, say God were not God?
More’s thought was one with which any conscientious Catholic must have agreed. If king and parliament govern religious belief, then there is no universal organization of all Christians. To a Catholic some acknowledgment of papal authority seemed essential to preserve the unity and freedom of the church. He need not believe with the Jesuits that the pope had even an indirect power to depose the king, but he must believe that royal supremacy in the church was inconsistent with any except a mystical meaning for Christian unity.
The earnestness with which Calvinists detested the pope made them no readier to admit a secular head to the church, for they agreed with Catholics in regarding this as an invasion of the church’s spiritual independence. The bent ct Calvinism wherever it had a free hand was not toward political control of the church but toward clerical control of politics.
The moral and doctrinal discipline over the whole community, which was an essential part of the plan, required that the church should have the support of government, but it implied not less that the church should be free to determine for itself what constituted sound doctrine and godly living.
The separation of church and state was therefore an essential element of Calvinism, but not in the modern sense that leaves the state a wholly secular institution. The separation that Calvinism contemplated was one that left the church autonomous but also made its decisions compulsory. Hence the Presbyterians, like the Anglicans, held to a substantial part of the medieval Christian tradition but were always in process of being ,forced to violate bath the letter and the spirit of that tradition.
The Anglicans brought over from the Middle Ages the conception of a church-state, which resulted in the astonishing innovation of a church conceived on national lines. The Presbyterians brought over the conception of spiritual independence in the church, which resulted in the no less astonishing innovation of a state that was no church at all. In the sixteenth century the separation of church and state was regarded as a novelty fostered Puritans and Jesuits.
It is true that so-called Independents accepted this momentous principle and its implications only in varying degrees. In the first place, none desired and few countenanced a real breaking-up of religious unity. Like every plan of religious reform, Independence began under the presumption that honest inquiry would reveal a demonstrable body of Christian beliefs and practices and would therefore lead to uniformity. In the second place, few Independents desired the abolition of all synodal influence over the congregations, though they stood for less control than the presbyterian system made possible.
The Independents in Massachusetts hotly rejected the epithet separatist and practiced anything rather than toleration. Within Independent congregations, moreover, the principle of voluntary adhesion could be accepted in varying degrees; they were by no means unifermly democratic in allowing to every member a voice in settling either doctrinal or disciplinary questions.
On the other hand, there was a general connection between the principle of free assent in religion and consent to government, and congregationalism, far more than presbyterianism, was in a position to countenance resistance, not only to the king but to parliament itself, in defense of fundamental liberties.
Finally, though Independents were necessarily committed to some degree of toleration, the degrees were innumerable, and only occasional Independents took the advanced ground that any religious belief should be permitted which did not adversely affect civil order. Like most religious minorities, they were more zealous in claiming toleration for themselves than in vindicating it for others.
This was not so hypocritical as it seems, since with most of them toleration was incidental to the primary purpose of religious reform. They never meant to deny that government ought to repress idolatry. The most advanced position was taken by Roger Williams in Rhode Island, where for the first time a government was set up on a general principle of toleration. In 1644 he defended this principle in his Bloudy Tenent of Persecution, which was regarded at the time as one of the most scandalous books in a scandalous literature.
In the same year William Walwyn, a merchant of London who himself disclaimed membership in any of the left-wing sects, published his Compassionate Samaritane, defending effectively the toleration of Separatists and Anabaptist, Both Williams and Walwyn were exceptional even among writers known as Independents.
Though they had their origin in the sixteenth century, the Independents were not very numerous in England until the 1640’s. Then they formed the backbone of resistance to the king, in so far as resistance depended upon religion. Independence came to its greatest power in Cromwell’s New Model Army and in the political experiments which followed the second civil war and the execution of the king.
By this time, however, the economic and political disadvantages suffered during the war by the less prosperous part of the middle class had produced in the Levellers a genuine political party. The Levellers were no doubt in the main Independents though most Independents -were not Levellers. The political philosophy of the Levellers was in some measure a continuation of left-wing Independence, but it deserves and must receive separate treatment.
Sectaries and Erastians:-
Still further toward the left wing of the Protestant Reformation lay the Baptist and Quaker sects, which had effectively disposed of the question of church government by reducing the organization of the church and its relation to secular power practically to a nullity. Since for them the essence of religion lay in an inward illumination of a spiritual experience, the government of the church was a matter of little moment, and they had abandoned even the notion of a national religious establishment.
Between the various bodies that were known as Baptist or Quaker there need be no very substantial agreement, and most of the writers who vilified them spent little care in finding out what they believed. In any case there is no reason to suppose that the sectaries as such had any distinctive political opinions or to doubt that their members were for the most part simple, law-abiding folk.
The detestation with which they were regarded was partly due to the overwrought nerves of heresy-hunters like Thomas Edwards,?! but also to the fact that fantastic notions which really had a sporadic existence were imputed wholesale to any sect that was thought to be fanatical. Thus there were persons, commonly called Baptists, who believed that men of true religious illumination had no need of law and could not rightly be held to obedience by magistrates.
This belief was usually associated with the idea that the end of the world was at hand and that in the new dispensation the saints would inherit the earth. It might lead to political quietism or to nihilism, and in the latter case it might end in attacks on both property and law. to so far as communism had any part in English political philosophy at this time, it was in the so called Diggers, whose leader, Gerrard Winstanley, will be discussed later.
Such an enumeration of religious sects as has just been given should mention a strain of English opinion which was bred of opposition to all of them but more especially to the pretensions of presbyterianism. This is usually called (not very correctly) Erastianism and john Selden may be taken as representing it. Selden’s opinions both of politics and religion grew from a kind of secularism not very common in the seventeenth century and from a shrewd worldly-wisdom that pricked the pretenses of both politicians and clergy. Constitutional arrangements he regarded as merely agreements for the sake of order and security.
The king’s power is just what the law gives him, and effectively the law is what the courts can enforce. Similarly the church’s establishments and the privileges of the clergy are what civil authority makes them. Pretensions to divine fight anywhere he regarded as juggling tricks to extract money and power from the laity, a judgment which he passed impartially on all denominations but more particularly on the Presbyterians.
Presbyters have the greatest power of any clergy in the world, and gull the laity most. The office of a priest is merely a profession like the practice of law. Selden’s utilitarianism, secularism, and rationalism were far from typical but they appeared again in his friend Thomas Hobbes and in a sense they had the last word at the Revolution in the thought of Halifax.
Constitutional Theories: Smith and Bacon:-
The urgency of ecclesiastical questions and the power of the king as temporal head of the church tended to throw the constitution out of its medieval balance but a variety of other causes also, connected with the growing independence of the upper middle class, tended to produce tensions between the king and the courts by which his power was limited.
The civil wars occurred when these tensions reached the breaking point. The result, generally speaking, was that the older constitutional conception of a harmony of powers had to be abandoned for the more modern conception of delegation from a sovereign source of power. Prior to the civil wars there was no clear-cut theory that supremacy resided in any part of the constitution.
The powers which belonged by immemorial custom to the king, to parliament, and to the other courts were thought to be inherent in them. Within the limits of its proper liberty each acted on its own initiative. If supremacy resided anywhere, it was in the realm itself and not in any of its organs.
Despite the great powers enjoyed by the Tudor kings, there was no theory of royal supremacy as clear even as that of Bodin in France. The civil wary forced both royalists and parliamentarians into claims of supremacy for the king or for parliament which went far beyond what either party originally intended.
Though both parties claimed the warrant of English history, both ended by breaking radically with the tradition of the sixteenth century, parliamentarians not less than royalists. The difference was that parliament made good its novel claims and the king failed.
Probably the state of English constitutional theory in the sixteenth century is best indicated by Sir Thomas Smith’s De republica Anglorum. Historians as competent as Frederic Maitland and Sir Frederick Pollock have regarded this book as stating a theory of parliamentary supremacy, but this is almost certainly a misinterpretation.
Smith in fact asserted at once that the king was the authority for everything that is done in English government and that parliament was the most high and absolute power of the realm. He clearly believed that there were certain things that could be done by the king without parliament and some that must be done in parliament. In both cases it was the custom of the country which determined.
The most striking feature of Smith’s book was that it regarded the constitution as consisting mainly of the courts and represented parliament itself as the highest court in the kingdom. It is in this sense that his statement about the absolute power of parliament should probably be understood no other court will reverse a decision by parliament.
He was quite aware that parliament differed from other courts in that it did not usually take cognizance of issues between private parties, but he still thought of it as in the main a judicial body. At all events he had no definite idea of it as a legislature, for he drew no line between making and interpreting law, and he never contemplated a conflict between parliament and the crown.
Supremacy resides in the realm and its law, which assigns to the king and his various courts their proper powers, and the harmonious cooperation of all these powers was everywhere assumed. Consequently, to Smith’s mind there was no incompatibility in the view that the king was the “head” of the whole system while parliament was the chief court.
This conception of the constitution and of parliament persisted long after there was active opposition to the pretensions of James to something like absolute power. James’s first controversy was not with parliament but with the courts of common law and concerned not legislation but the royal prerogative.
In this controversy, in which the chief actors, besides James, were Francis Bacon and Sir Edward coke, the question was not supremacy, either of the crown or of any other part of the government, but the proper balance between the king and his courts.
Circumstances made Bacon the spokesman for a strong royal prerogative, in which he sincerely believed, though he certainly never believed in royal absolutism; they made Coke the chief agent in limiting prerogative, though the supremacy of parliament would have been equally repugnant to him.
Opposed as they were, both men still stood on the conception of harmony or balance, regulated by the customary law of the land, which provided a place for the king and every other organ of government without the supremacy of any.
Bacon’s whole conception of policy tended to emphasize royal power, but he thought always in terms of the Tudor monarchy, in which the king was the trusted leader of the nation and of parliament. When James ascended the throne Bacon tried anxiously to commend himself to the new monarch by advising a policy of vigorous leadership.
The union with Scotland, the colonization of Ireland, and an aggressive policy on the Continent seemed to him well calculated to make England the dominant power in northwestern Europe and the: leader of the Protestant interest. All his life he seems to have believed that, if James could be persuaded to take this line, his difficulties with his English subjects would vanish in a wave of patriotism.
From his Essays it is evident that Bacon’s political ideal was a strong and warlike people, not overburdened with taxes, with no great concentration of wealth, and with a nobility not too powerful-good Tudor ideals allied by a king having great resources in crown-lands, a strong prerogative, and a vigorous policy of national expansion.
In his mind this did not imply absolutism. James’s determination to stand on his prerogative was flatly against Bacon’s ideas of good policy, and his attempt to govern without parliament was contrary to Bacon’s advice. From Bacon’s point of view nothing could have been more injudicious than o force the alternative of king’s right or parliament’s right.
In the controversy between James and the judges of the courts of common law Bacon was obliged by his official position to take an attitude, but his belief in strong royal prerogative was quite sincere. The king regarded himself as the fountainhead of justice and the budges as his ministers, and hence he claimed the right to instruct them n cases touching his prerogative, to set aside decisions, or to draw aches out of the courts and into special commissions. In his famous says “Of Judicature” Bacon emphasized, as James did, the propriety f the courts keeping clear of questions of state and royal prerogative ides should he lions but lions under the throne. The essay seem to be full of oblique to Coke, whom bacon doubtless regarded as the type of a bad Judge.
Sir Edward Coke:-
The head and front of the opposition to James’s effort to Stretch the royal prerogative was the chief justice, Sir Edward Coke. The rand of all Coke’s political ideas lay in his reverence for the common law which he conceived as at once the fundamental law of the realm and the embodiment of reason, though of reason as grasped only by the lawyers guild. The common law was a mystery and Coke esteemed himself as its chief technician. He reported one of his conferences with James as follows:
Then the king said, that he thought the law was founded upon reason, and that he and others had reason, as well as the judges to which it was answered by me, that true it was, that God had endowed his Majesty with excellent science, and great endowments of nature; but his Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it
With which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said: to which I said,
“that Bracton saith, Quod rex non debet esse sub homine, sed sub Deo et lege.”
In Coke’s view it was the common law which assigned to the king his powers, to each of the courts of the realm its proper jurisdiction, and indeed to every Englishman the rights and privileges of his station. The common law, therefore, included all that would now be counted as the constitution, both the fundamental structure of government and the fundamental rights of subjects. Certainly he contemplated these fundamentals as substantially unchangeable.
It was this conception of the law which enabled Coke to render his most famous decision in limitation of the prerogative, that the king cannot create any offense by his prohibition or proclamation, which was not an offense before. It was the ground also of the writs of prohibition oy which the courts of common law sought to restrain other courts and of Coke’s sturdy opposition to James’s attempts to withdraw cases from the courts and to decide them either by himself or y special commissions.
Finally, it provided the reasons for Coke’s belief that parliament itself is unable to change the underlying principles of justice embodied in the common law. He was not very definite about the nature of these limitations but he was explicit in asserting their existence. Thus in Bonham’s case he said,
It appears in our books, that in many cases, the common law will control acts of Parliament, and sometimes adjudge them to be utterly void for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.
This opinion, which though extreme was certainly not peculiar to Coke, shows how little hold the idea of parliamentary sovereignty had on English lawyers in the earlier seventeenth century and also how deeply the American plan of judicial review was rooted in the English legal tradition.
Coke was peculiarly a practitioner of the common law, but aside from this fact, his fundamental beliefs were extraordinarily like those of Sir Thomas Smith and H6oker. Like Smith, he thought of English government as mainly comprised in the courts, of which parliament is the chief; neither for Coke nor for Smith was parliament primarily a legislative body nor was the making of law primarily the purpose for which government existed.
None of the three would have felt that there was any intelligible sense in which law could be said to he made, though all would have agreed that specific provisions of law were changed from time to time. For Coke law was an indigenous growth within the realm; for a philosopher like Hooker it was a natural part of the cosmos, but in practice the difference was not great.
The law assigned to every man, public or private, his rights and duties, his liberties and his obligations; it fixed the standards of justice by which he was constrained to act or forbear, and no less so if he were the king than if he were a subject. The king’s rights were not the same as the subject’s, but both had their rights within the law. Consequently, though the law supported innumerable powers, it knew nothing of a Sovereign power, for king and parliament and the several courts of common law had each its powers indefeasibly as the law provided.
There was none of which all the others were delegates. Consequently Coke’s defiance of James grew out of the fact that he was a thoroughgoing conservative, even a reactionary. If circumstances had made him en opponent of parliament, he could have played this role with equal consistency. For he represented a conception of law, and of the relation of law to government, more ancient than the absolutist philosophy of the king or the absolutist philosophy to which the parliamentarians were driven.
It was only slowly and under the stress of circumstances that any one abandoned the familiar idea of harmony and adopted the novel idea of supremacy. The earlier opposition to Charles is attempts at personal government grew from a dislike of royal absolutism-exhibited in the imposition of taxes without parliamentary approval and in the imprisonment of subjects without legal process-but it implied no counter theory of parliamentary sovereignty.
Even in the early months of 1641 Parliament was mainly content to limit the use of the prerogative, to abolish extraordinary courts, and to insure its participation in levying taxes-in short, to lop off what were felt to be excrescences with which Tudor times had marred the ancient perfection of the constitution.
As a practical measure Parliament had to claim the right not to be dissolved without its own consent, and by the end of 1641 it had Seen forced to claim the power to appoint and dismiss ministers, and to control all the military, civil, and religious affairs of the kingdom.
These claims were revolutionary, for they were more at variance with constitutional custom as known to Smith or Coke than the king’s broad interpretation of his prerogative. In England as in France the stress of civil war produced a government centralized in theory as it had tended to be in fact, but in England the legal headship of the nation passed to a representative assembly.