THE DIVINE RIGHT THEORY reveals one of the significant processes at work in seventeenth-century England—the Protestantization of political thought. However, just as a sumptuous variety of strains and forms of Protestant theology emerged, so did a plethora of versions of Protestant political thought. Although it is not altogether fruitful to directly correlate major Protestant theologies with the variants of Protestant political thought, some important parallels exist. The divine right doctrine, with its emphasis on the divine ordination of public authority and its focus on human subjection, shares much with Luther’s own version of reformed Christianity and of its authoritarian political implications. This is not to say that Luther was a divine right thinker or that theorists like Filmer agreed with Luther in detail; there were many and significant differences. There were, moreover, significant enough echoes and parallels with Calvinist theology in the divine right thinkers to foreclose any simple Luther-Calvin dichotomy.1
Neither Lutheran theology nor Luther-like political thought monopolized the scene. In England there had always been a traditional understanding of political life, largely rooted in Aristotle and expressed by such writers as Fortescue, which was very distant from both the practical and theoretical claims of the emergent divine right position. In the face of the development of the new divine right doctrine parliamentary writers in the seventeenth century appealed to this earlier line of thought, first in the form of the doctrine of the ancient constitution, and then in the form of the theory of the mixed regime or mixed monarchy, as it was most frequently called in England.
These versions of Aristotelian constitutionalism finally gave way in the 1640s to parliamentary contractarian doctrines. With the acceptance of contractarian doctrines, the parliamentary writers made an important break with Aristotle himself and with the forms of Aristotelianism that had prevailed in England to that point. The emergence of parliamentary contractarian thought occurred in response to three somewhat separate kinds of pressure to which the older Aristotelian constitutionalism was subjected. One was the dialectical necessity of responding to novel challenges posed by one or another version of the divine right alternative. Secondly, events in the ongoing struggle between king and Parliament combined with these novel theoretical issues to face the old constitutionalism with unprecedented tasks to which it did not seem able to respond in its inherited form. Contract was a plausible but by no means a necessary response to both these challenges. Finally, the parliamentary thinkers, like their royalist opponents, faced the ongoing challenge of altogether rethinking politics in the light of the Reformation. Precisely because Aristotelian constitutionalism was so old, predating the Reformation by many years, it was subjected to reconsideration in the light of the new truths and new attitudes of reformed Christianity.
Parliamentary contractarianism emerged in the 1640s as the result of these various forces. It, too, was in its most important formulations a version of Protestant political thought (or theology), but it was a different Protestantism. I will not attempt in this chapter, any more than in the last, to correlate this other form of Protestant political thinking with formal Protestant theological doctrines; but it is surely no accident that contractarianism emerged among those associated with the so-called Puritan wing of English Christianity. The difference between this form of Protestant politics and the royalist form derives from divergent understandings of the role of Christian liberty in the matters of this world. In Luther himself and in doctrines leaning in Luther’s direction, Christian liberty freed humanity from earlier forms of bondage but remained abstract and highly indeterminate in its contact with the world. At the extreme opposite pole from Luther, antinomians attempted to take Christian liberty more seriously as a force within the world. The Puritans and parliamentary writers of the 1640s surely were no antinomians, but they attempted to find a more determinate presence for liberty in ethical and political life. Contractarian politics became the vehicle by which Christian liberty found a positive presence in the world without falling into the antinomian stance of fundamentally challenging or even overturning the fact of subjection or the attitude of obedience.
With the emergence of contractarian thinking, the English political tradition came to contain a form of thought that resonates far more with Locke and the American Declaration of Independence than with the divine right doctrine, the political understanding implicit in the Declaration of Rights, or the various forms of Aristotelian constitutionalism favored by parliamentary writers of the early seventeenth century. In this case, as in so many others, however, superficial similarities can be misleading. The contractarianism of the parliamentary thinkers was in fact almost as distant from Lockean thought as was divine right theory itself. Indeed, parliamentary contractarianism and divine right theory shared more with each other than even the former shared with Locke. We cannot, in other words, understand Locke or his American successors as standing in some single line of succession to an already established tradition of political thought tracing back to the early years of the Civil War or before. Change occurred between the early 1640s and Locke, the recognition of which fact is indispensible to any further attempt to understand the nature and significance of that innovation—that is, any attempt to deal with the modernity problem.
Even before his accession to the throne of England in 1603, James had published his views on the source and nature of royal power, a practice that the greater eminence and more visible “bully pulpit” of his new position encouraged him to continue. Moreover, partly under the sway of his theories and partly under the press of necessity, he asserted his powers into gray areas of the constitution. He seldom, if ever, took actions that were clearly illegal, but in many areas where the constitution was less than decisively settled, he stated his claims to authority. In 1604, for example, after the Hampton Court conference convened to consider Puritan calls for reform in the church, James issued a proclamation defending his power to make policy for the church, a position that had been opposed in Parliament earlier in the year. “Our duty towards God,” asserted James, “requireth at our hands that what intractable men do not perform upon admonition they must be compelled into by authority, whereof the supreme power resting in our hands by God’s ordinance we are bound to use the same in nothing more than in preservation of the church’s tranquility, which by God’s grace we are fully purposed to do.”2
At almost the same time, James acted in another equally controversial area. Perpetually short of funds and unable to prevail upon Parliament to vote him sufficient supplies, the king moved to increase his revenue from the impost by levying new duties on goods without any authorization from Parliament. In Bate’s Case of 1606 James was upheld in this action by the courts, but he clearly was trenching on an area very dear to Parliament, and in a constitutionally questionable manner.3
From the very earliest moments of his reign, Parliament reacted negatively to both James’s theory and his practice, and in that context put forward a competing conception of politics.4 Parliament was quick to challenge the particular powers exercised by the king. In June 1604, even before James issued his proclamation on the church, Parliament denied him the powers he claimed: “For matters of religion, it will appear by examination of truth and right that Your Majesty should be misinformed if any man should deliver that the kings of England have any absolute power in themselves either to alter religion, . . . or to make any laws concerning the same otherwise than as in temporal causes, by the consent of Parliament.”5 Parliament also firmly asserted its role in the exercise of the taxing power: “The policy and constitution of this your kingdom appropriates unto the kings of this realm, with the assent of Parliament, as well the sovereign power of making laws, as that of taxing or imposing upon their subjects’ goods or merchandises”—notwithstanding the judges’ decision in Bate’s Case.6 Not only did the king possess but a portion of the legislative power, but also—contrary to the right he claimed to decide legal causes personally—James was told by Sir Edward Coke in no uncertain terms that he was severely limited in his judicial powers. “The king in his own person cannot adjudge any case, either criminal . . . or betwixt party and party . . . but this ought to be determined and adjudged in some court of justice according to the law and custom of England.”7
Even more broadly, the Parliamentary spokesmen rejected James’s theories on the source and nature of his (and Parliament’s) power. He was king hardly a year before Parliament spoke out against the view (which they associated with him) that Parliament “held not our privileges of right, but of grace only, renewed every Parliament by way of donature upon petition, and so to be limited.” On the contrary, said the House of Commons, “our privileges and our liberties are our right and true inheritance, no less than our very lands and goods. . . . These rights and liberties of the whole commons of [the] realm of England . . . they and their ancestors from time immemorial have undoubtedly enjoyed.”8 The great parliamentary leader John Pym, leading the effort to impeach Roger Manwaring for his sermons favoring divine right absolutism, insisted that “the law of England, whereby the subject was exempted from taxes and laws not granted by common consent of Parliament, was not introduced by any statute, or by any charter or sanction of princes, but was the ancient and fundamental law, issuing from the first frame and constitution of the kingdom.”9 At the time of the contest over imposts, Parliament contended that “the law of property be originally and carefully preserved by the common laws of this realm, which are as ancient as the kingdom itself.” Any proclamations by kings or statutes of Parliament affirming these rights of subjects and Parliament were merely confirmations of the preexisting law.10
This appeal to a set of parliamentary privileges and subjects’ rights “as ancient as the kingdom itself” had two aspects. First, it served to reject the very idea of an “original of political power.” There was no such thing; the beginning was itself originless. Therefore, there was no original authority that ordained the constitution and the rights it embodied, and if no authority in the past to establish the constitution, then no authority in the present to disestablish or override it.11 The early parliamentary position thus differed from the divine right theory, not in offering a popular or social contract in place of the king as source of the constitution, but in refusing to credit any original authority. The Commons Journal for 1604 (the first Parliament under James I, and the one that registered the very strong objection to James’s divine right theories quoted above) reported that the House rehearsed a theory of “the true original pedigree of government.” This theory could identify no specific origin of the English regime, and surely was no theory of popular sovereignty:
Order, the lustre of Nature, guided by a First Essence, put all government into form: First, in two, who, by procreation, . . . made a Family, with one Head; by propagation, a Tribe or Kindred, with one Elder, or Chief; by multiplication, a Society, a Province, a Country, a Kingdom, with one or more guides or leaders, of spirit aptest, or of choice fittest, to govern.12
The Commons no more affirmed that political society arises from an agreement of the people, as an exercise of some original popular power, than did the more clearly royalist formulation in the unlicensed canons of 1606:
If any man shall affirm that man at first . . . ran up and down the woods and fields, as wild creatures . . . acknowledging no superiority one over another . . . until . . . they chose some among themselves to order and rule the rest, giving them power and authority to do so; and that consequently all civil power, jurisdiction and authority was first derived from the people, and disordered multitudes or either is originally still in them, or else is deduced by their consents actually from them, and is not God’s ordinance originally descending from him and depending on him; he doth greatly err.13
Likewise, Pym, in his major attempt at refuting Manwaring’s doctrines, did not endorse an original power in the people but held only that the powers of Parliament and the rights or immunities of subjects were “the ancient and fundamental law, issuing from the first frame and constitution of the kingdom”—that is, as old as, but not older than the “the first frame and constitution,” derivative from and not the source of the constitution.14
As the passage from the Commons Journal suggests, the Parliamentary theory of the “ancient constitution” was an attempt to say something Aristotelian—or rather, two things: the constitution is natural, and the constitution cannot be understood by reducing it to its parts or elements. Political society is natural because it grows up naturally out of the lower human associations of family, tribe, and so on, just as Aristotle traced the process in the first book of his Politics. Human beings naturally constitute such associations, and these associations always have a principle of rule as a part of them.15
Some scholars—for example, J. G. A. Pocock—have speculated that the emphasis on the antiquity of the ancient constitution reflects the authority of the old as such: the old, ultimately old custom is the only legitimate authority.16 Echoes of such a view surely exist in the documents, but these scholars have perhaps overemphasized this theme at the expense of the more significant nonreductionist point the Parliamentarians were making. Pocock is led by his view of the authority of antiquity as such to assimilate the argument regarding the ancient constitution to the argument made by the seventeenth-century common lawyers in favor of the common law over statutory law, an argument (complexly) resting on the antiquity of the former. As Sir John Davies put it in what is usually considered the classic formulation of the common lawyer’s point of view, “The customary law of England . . . does far excel over written laws, namely over statues or acts of Parliament: which is manifest in this, that when our Parliaments have altered or changed any fundamental points of the common law, those alterations have been found by experience to be so inconvenient for the commonwealth, as that the common law has in effect been restored again, in the same points, by other acts of Parliament in succeeding ages.”17 But the Parliamentary doctrine of the ancient constitution contained no such hostility to legislation as this common lawyer voiced. Parliamentarians merely insisted that Parliament shared that power and had always done so. Even Fortescue in the fifteenth century, a common lawyer himself, accepted the legislative power and welcomed its capacity to change the common law.18
The doctrine of the antiquity or even immemoriality of the constitution seems rather a way of expressing in temporal terms an Aristotelian conception of the nature of constitutions as such: they are not merely the sum of their parts; although they grow out of prior elements, they cannot be reduced to those parts.19 King, Parliament, subject—all are co-constitutively original elements of the constitution. Without the constitution there is no king, no subject. The part is a part only in relation to the whole, which is exactly coterminous with the part and not derivative from it. Thus Pym said that the “ancient and fundamental law”—and therefore Parliament, King, and subjects, with their respective rights and powers—“issue from the first frame and constitution of the kingdom.” As Aristotle put it, the whole is prior to the parts, or, as Fortescue said, “A people does not deserve to be called a body while it is acephalous, that is, without a head. Because, just as in natural bodies, what is left over after decapitation is not a body, but is what we call a trunk, so in bodies politic a community without a head is by no means a body.”20 This was Fortescue’s way of denying popular sovereignty, but the general principles hold more broadly for all the elements or parts of the polity. The body politic is in this sense what Fortescue called a corpus mysticum. The doctrine of the ancient constitution thus takes Aristotle’s organic image of the polity just as seriously as does the divine right doctrine.
None of the elements or parts of the constitution can be prior to the whole; certainly none can be the cause of the whole, in the sense in which the divine right theory makes the king the cause of the constitution. And therefore, the theory of the ancient constitution takes Aristotle’s organic image of the polity more seriously than does the divine right theory. Anything prior to the constitution is simply external to it, in essence irrelevant to it as a constitution. The ancients expressed that externality in terms of the great Founder, who brought the constitution into being but was no part of it, and whose only “representative” in it was the whole. Within the doctrine of the ancient constitution, the immemorial past served exactly the same role. Even if the origin of the constitution were not, strictly speaking, beyond the memory of man, that would not matter. Nothing prior to the origin has any further authority over the present; only the ongoing constitution itself has authority.
Like the divine right theory, the parliamentary doctrine of the ancient constitution thus came to expression in Aristotelian language.21 More than the divine right theory, the doctrine of the ancient constitution remained close to its Aristotelian roots, as became clearer later, when efforts were made to articulate the doctrine in a yet more fully Aristotelian way. The Aristotelian provenance of this pristine version of parliamentary theory is one indication of how far it stands from the philosophy of the American Declaration of Independence. The theory of the ancient constitution does not conceive human beings as equal in the sense that by nature they are born owing no subjection; rather, it is natural that they be born into a community, and it is natural that every community have a principle of rule. In this respect the theory of the ancient constitution and the theory of divine right monarchy are far more like each other than either is like the Declaration. The parliamentary theory of the early seventeenth century, in fact, is most like the parliamentary theory of the late seventeenth century embodied in the Declaration of Rights. The notion of the ancient constitution, despite some setbacks later in the century, had remarkable resilience and power to define political reality for large and important segments of the political class.
In almost all respects the early parliamentary conceptions matched those of the chief documents of 1688–89. Under the parliamentary theory subjects are said to have rights, and the king is bound to respect these, but the rights are not natural rights. They do not precede the constitution but “issue” from it, in Pym’s term. Referring to the “rights” of king, commons, peers, and other entities is another way of identifying the powers and immunities each has under the constitution. The rights differ according to the place of the rights-holder in the constitution. Thus the rights of king, commons, and peers are all different, not universally human.
These rights, of course, must be respected. According to Pym’s account, “the form of government is that which doth actuate and dispose every part and member of a state to the common good.”22 Rights must be respected, for they keep each part in its proper relation to the whole and thus to the common good. In this view, the common good is the ultimate source of rights, rather than the security of rights being more or less the sum and substance of the common good, as in the Declaration of Independence.23 If rights are not respected, said Pym, “the whole frame will quickly be dissolved, and fall in pieces, and instead of this concord and interchange of support . . . they will miserably consume and devour one another.”24
Regard for constitutional rights thus stands as a central means to the successful conduct of political life; but security of rights is not affirmed as the very end for which government exists. Many generations earlier, Fortescue had made the point very clearly: the end of the laws (and constitution) of England is “the perfect virtue that is called by the name of legal justice,” which “eliminates every vice and teaches every virtue, so that it is itself rightly called the whole virtue.”25 That is to say, Fortescue endorsed the classical Aristotelian idea that the political association exists for the sake of the most comprehensive human good, complete virtue: the political may come into being for the sake of mere life, but continues to exist for the sake of the good life.26 The political as comprehensively ordered to all the requirements of the good life, or of “perfect virtue,” is a far cry from the relatively narrow Lockean conception that government exists solely for the sake of securing rights.
We have no reason to doubt that the parliamentary writers of the seventeenth century saw the ends of political life much as Fortescue, and before him, Aristotle, had done. Accordingly, the original parliamentary theory endorsed none of the most typical of the American Declaration’s set of truths—no state of nature, no artificial construction of government through a social contract, and therefore no popular sovereignty, no natural rights, no understanding of rights as the end of political life, no right of revolution. In sum, the ancient constitution differed from the American Declaration in just the same places as did the Declaration of Rights of 1688.
Between 1629 and 1640 no Parliaments met. The first Parliament after that long hiatus, known to history as the Short Parliament, met for only three weeks before King Charles I dissolved it. Seven months later a new Parliament, the Long Parliament, was convened. By that time even the avid proponents of the doctrine of the ancient constitution had been pressed by events and the logic of their fundamental commitments to abandon, or at least to modify extensively, the doctrine of the ancient constitution as they had previously articulated it.
For eleven years Charles had attempted to rule without Parliament, and for a time his effort bid fair to succeed. The immediate incitement toward such a course was provided by the Parliaments of the early years of his reign, which turned toward him an Oppositionist face—refusing to vote him the traditional revenues, insisting on “redress of grievances” as a precondition for further funding, and in general asserting their desire for different policies in both church and state. The high point of Parliament’s success came in 1628 with the adoption of the Petition of Right, affirming or reaffirming much of the parliamentary view of the constitution. The height of contention between king and Parliament came in 1629, when members of the House of Commons forcibly held the Speaker of the House in his chair in order to carry on further business rather than comply with the king’s order to dissolve.
The precondition for Charles’s effort to govern alone lay in his powers, conceded generally to be part of the ancient constitution itself, to control the meetings of Parliament. The king issued writs for the election of members of the House of Commons, set the date for opening, and had the power to conclude all sessions. Armed with those powers, Charles could ensure that there would be no Parliament. He still needed to find alternate ways to furnish himself with the fiscal resources Parliament had traditionally supplied. Despite his acceptance in the Petition of Right of the proposition that parliamentary consent was required for all taxation in the kingdom, the king and his ministers resourcefully exploited all existing sources of funds and cultivated new or extended old ones.27 Most ingenious was the laying of ship’s-money levies against all the counties of England; port towns were traditionally liable to such levies, but never before had inland counties been required to pay. Since this was simply an extension of an existing valid tax, the king argued that parliamentary consent was not necessary.
In the Ship’s Money Case (Rex v. Hampden) of 1638 the judges upheld the king. That decision was but one in a series that supported the monarch. Much earlier, Bate’s Case had endorsed the king in his levying of new imposts. The Five Knights’ Case of 1627 supported the king’s practice of holding men without charge (arguably contrary to the Magna Charta) in service of his efforts to extract a forced loan from the merchants. Those decisions reflected in part the ambiguity of the constitution, the fact that much of it truly was unsettled and thus genuinely controvertible; but they also reflected the fact that the judges held office at the pleasure of the king—and prior to the decision in the Ship’s Money Case he had vented his displeasure on several occasions by dismissing judges who disagreed with him.28
Charles’s efforts to govern without Parliament fell afoul of his war in Scotland over the structure of the Scottish Church. To fight this war he required funds that even his creative finance measures failed to provide. Charles’s hopes that in the emergency conditions of war Parliament might vote him the supplies he required proved baseless. By the time the Long Parliament convened in November 1640, positions had hardened among the members: there would be no quick granting of supplies to the king with a “thank you very much” in return. No, Parliament most recalcitrantly insisted that all the rubs in policy and constitution that had accumulated over eleven years would be raised. As Pym thundered within four days of the opening of the new Parliament, “There is a design to alter the kingdom both in religion and government. This is the highest of treason.” Therefore there must needs be “a reformation,” there must needs be a “finding out the authors and punishment of them.”29 In a word, there would be no business as usual, no voting of revenues for the king until the constitution was secured.
Parliament indeed went forward on both the tracks Pym announced: villains (or scapegoats) were identified and punished, and legislation was introduced with the intention of reforming the political system. In the course of things, the ancient constitution was so modified as to leave the king, plausibly, as its champion and Parliament as the sponsors of innovation.
During the period 1641–42 parliamentary leaders advocated and at times succeeded in enacting a series of measures that clearly would change the terms of the ancient constitution. Traditionally, the king possessed the power to convene and dismiss Parliaments, a power he had been using to prevent any Parliaments. In 1641 Parliament passed, and forced Charles to accept, the Triennial Act, which began with the concession that the power “to appoint the time and place for the holding” of Parliaments had always belonged to the monarch, but then went on to provide for other ways to call a Parliament if the king failed to do so. In addition, reacting to the recent experience of the Short Parliament, it also set stringent limits on the king’s power to dissolve Parliament.30 In rapid succession, Parliament passed statutes abolishing the Star Chamber and the High Commission, two well-established if not ancient courts.31 These acts were followed by the Grand Remonstrance, which, among other things, demanded that the bishops, many “corrupted” by “Jesuits and other engineers and factions for Rome,” be deprived of their traditional seats in the House of Lords, and that Parliament be conceded the right to approve the king’s ministers.32
Other novel demands soon followed, most of which were collected in the Nineteen Propositions issued in June 1642. Parliament pressed for control over so many matters in the conduct of government that it would “have made the two houses masters of the state.” Parliament demanded involvement in appointment to the government, control over the education and marriage of the royal children, the right to reform the church as it wished, that all judges serve for good behavior, that Parliament have a say in the selection of military officers and a share in powers over the militia, and so on.33 There was no question that Parliament was pushing well beyond the boundaries of the ancient constitution, even in the most pro-parliamentary interpretation of that uncertain institution.
Now the king, only yesterday the great innovator, was able to appear in the guise of defender of the ancient constitution. In 1641 he expressed his entire willingness to join in a reformation of the government, by which he meant a routing of “all innovations in church and commonwealth.” He vehemently distinguished that from “alteration of government,” which he would not abide. Therefore, he felt compelled to resist many of Parliament’s most ardent wishes. For instance, on the issue of the bishops and the House of Lords, Charles demurred, saying that he could not “consent for the taking away of their voice in Parliament, which they have so anciently enjoyed, under so many of my predecessors, even before the Conquest, and ever since.” As J. W. Allen rightly observed, by 1642 “the Royalist party was essentially a constitutional party.”34
Thus Parliament abandoned the conservative position to the royalists. The parliamentarians were driven to this for at least one fairly obvious reason: the events of the past eleven years had proven the ancient constitution to be more or less a failure. Its failure lay especially in its non-self-executing character. The constitution armed the king with prerogatives that enabled him to circumvent it in both letter and spirit. Even where the king stepped into relatively clear unconstitutionality—for instance, on ship’s money—the constitution failed to provide adequate means of redress for subject or for Parliament, especially if, as Charles showed was possible, Parliament could be prevented from coming into session. That is why so many of the most persistent efforts during the early years of the Long Parliament were directed toward ensuring that Parliament could come into session even against the king’s will. That is also why Parliament pressed so hard on its demand for a hand in the appointment of those who surrounded the king, so that he could have no independent agents bent on dishonoring the constitution. Structural changes like these were seen as preconditions for the preservation of the ancient constitution.
If the ancient constitution required alteration for its salvation, then its mere antiquity, the merely inherited character of its elements and features, could no longer suffice as a way of identifying the desirable constitutional order. Thus parliamentarians were forced to develop a new conceptualization of the old constitution.
Thoughtful parliamentarians themselves recognized that the recent changes threatened a crisis of authority. Henry Parker, for example, reported that “some lawyers doubt how far the Parliament is able to create new forms and precedents and [whether] it hath a jurisdiction over itself.”35 Paradoxically, one of the earliest and best statements of a doctrine meant partly to justify recent deviations from the ancient constitution issued not from Parliament but from the king. In 1642 Charles I promulgated his Answer to the Nineteen Propositions of Both Houses of Parliament. He made no mention of divine right absolutism;36 instead, he defended the ancient constitution, as he had been doing since 1640, but he also defended the legitimacy of the constitutional innovations recently adopted. The new arrangements agreed to by king and Parliament, he said, went “beyond the examples of any of our ancestors,” but he justified the changes as “better enabling” Parliament to play its proper role in the constitution.37
Charles’s Answer still conceived of the constitution in Aristotelian categories, this time as a variant of the classical mixed regime, a doctrine developed by Aristotle, adumbrated by Cicero, Polybius, and others, and possessing much currency in Europe thereafter. According to Corine Weston, “during the conflicts of the seventeenth century” this theory of the mixed regime “became the leading theory of the English constitution.” Although the theory had classical origins and appeared in England as early as Elizabethan times, it was “rarely used” until the 1640s; the “metamorphosis in public opinion” that made it so prominent began with Charles’s use of it in his Answer.38 Each of the three pure types of government—monarchy, aristocracy, and democracy—has its “particular conveniences and inconveniences,” Charles wrote. The ancient constitution of the English is good not because it is ancient but because their “ancestors . . . so moulded [it] out of a mixture of these [pure forms] as to give this kingdom (as far as human prudence can provide) the conveniences of all three, without the inconveniences of any one, as long as the balance hangs even between the three states, and they run jointly on in their proper channels (begetting verdure and fertility in the meadows on both sides), and the overflowing of either on either side raise no deluge or inundation.”39 Charles implicitly conceded that his efforts to rule without Parliament represented such an “overflowing,” and thus accepted the innovations Parliament had managed to impose on him as a means of restoring the balance.
The House of Commons, as late as 1646, put forward a very similar account of its aims in promoting constitutional innovation:
We are so far from altering the fundamental constitution and government of this kingdom by king, lords, and commons, that we have only desired, that with the consent of the king, such powers may be settled in the two Houses without which we can have no assurance but that the like or greater mischiefs than these which God hath hitherto delivered us from may break out again.40
Just as the innovations were presented by both sides as preservative of some underlying balance or mixture contained in “the fundamental law,” so the doctrine of the mixed constitution was used to oppose some of the proposed innovations. Charles appealed to the doctrine in his rejection of Parliament’s demands to share in the choice of the king’s ministers. “The House of Commons,” said he, is “an excellent conservator of liberty, but [was] never intended for any share in government, or the choosing of those that should govern.” Likewise the king objected to Parliamentary efforts to control the militia and to preempt his share of the legislative power.41
Although the theory of the mixed regime emphasized somewhat different themes than the theory of the ancient constitution—above all, the goodness, not the oldness, of the constitution—nonetheless the two doctrines had much in common. The constitution as described in the one theory was recognizable, more or less, as the constitution described in the other. Granted, the theory of the mixed constitution had a more logical or theoretically satisfying sense of coherence to it. The constitution was not merely an inheritance, nor even merely an organic whole prior to its parts, but was a particularly well-made whole in general and could be made even better with some judicious reform.
Not insignificantly, both theories proceeded largely within an intellectual framework supplied by Aristotle’s Politics. The closeness of the two is visible in the writings of earlier thinkers like Fortescue, whose treatments of the constitution contained elements of both. Another factor common to both is their distance from the theory of the American Declaration of Independence: neither constitutional doctrine evokes the political universe of natural rights, consent, and right of revolution. Despite the fact that the American founders would retain a great concern with balance in the constitution—witness two such magnificent statements as John Adams’s Thoughts on Government and The Federalist—yet the Americans transformed the theory of the constitution drastically and attached it to a doctrine of the foundations of politics that had few precedents in this earlier theorizing.
The constitutional vision of Charles’s Answer was, of course, far closer to the earlier parliamentarian ancient constitution than it was to the earlier royalist commitment to divine right. That the document was chiefly authored by a group of moderate parliamentarians helps explain that otherwise paradoxical fact.42 The dominant emphasis of this theory was on the balance among the constitutional elements and the indispensability of all to the proper functioning of the regime. That notion of balance served, in turn, as a criterion by which to impose or resist changes in the ancient constitution. The constitutional debate turned not so much on whether some practice or power was immemorial custom, but on whether it would contribute to the desirable constitutional balance.43 The ongoing debate revealed a fundamental indeterminacy at the root of the theory, however. In the view of Charles’s advisors, the theory implied that further augmentation of parliamentary authority would be deleterious to the future health of the constitution. In the view of parliamentary partisans like Henry Parker and William Prynne, however, the preservation of the constitution required the very augmentation rejected by the king’s supporters.
The mixed constitution analysis proved, moreover, to stand in a certain tension with the onrush of events in the 1640s. If at first the question was what might justify innovations in the ancient constitution, after 1642 the question became instead what might justify Parliament in resisting the king and claiming the authority to act legally on its own, independent of the king’s concurrence—for with the outbreak of war between royalist and parliamentary forces this became the actual situation in England. The theory of mixed monarchy, with its emphasis on shared, concurrent powers, was not congruent with the situation facing Parliament.
Accordingly, Parliament was driven to modify the doctrine of the mixed constitution in novel ways. Perhaps the most striking fact about those modifications was Parliament’s continued failure to adumbrate anything like a theory of revolution, or even of resistance. True, Parliament did emit a defense of its various acts of resistance to commands of the king, and of its open warfare against his supporters, but it did so in terms of a distinction between the king’s own person and his legal person. In the Militia Ordinance of March 1642 Parliament in effect acted to take control of the military power of the kingdom from Charles. The king reacted strongly, denying the legality of Parliament’s action, and by the ancient constitution he surely was on strong ground there, as even Parliament admitted: “It is acknowledged that the king is the fountain of justice and protection.” That is, under normal circumstances the power over the military resides in the king; but, Parliament asked, “if the king shall refuse to discharge that duty and trust, whether there is not a power in the two Houses to provide for the safety of the Parliament and peace of the kingdom, which is the end for which the ordinance concerning the militia was made.” Parliament’s answer to its own question was yes, because although the king has the power, these “acts of justice and protection are not exercised in his own person, nor depend upon his pleasure, but by his courts, and by his ministers, who must do their duty therein, though the king in his own person should forbid them.” And in a daring sweep to a conclusion, Parliament declared that even if it delivered judgments against the king’s will and personal command, “yet are they the king’s judgments. . . . What they do herein hath the stamp of royal authority, although his majesty, seduced by evil counsel, do in his own person oppose or interrupt the same; for the king’s supreme and royal pleasure is exercised and declared in this high court of law and counsel, after a more eminent and obligatory manner than it can be by personal act or resolution of his own.”44
Parliament claimed no right to overturn or act against the constitution. The constitution as coaction of king, lords and commons remained operative—except lords and commons now played the role of king as well. In the case of a reprobate king, Parliament could speak more truly for him than he could for himself. The incoherences of the parliamentary position are clear enough, but it is nonetheless worth noticing that Parliament is saying something quite important here.45 The king is not so much a person as a public function. Political life is in no sense the private preserve of a person, the king, but is a public thing. Thus the kingdom is not in any sense his private property.46 In a word, Parliament has here extirpated all remnants of the feudal mingling of public and private authority, an intermingling that persisted, in modified form to be sure, in the royalist divine right doctrine. In this respect, the parliamentary doctrine shares something very important with the philosophy of the Declaration of Independence, for the latter understands all political power as public in nature.
Nonetheless, the parliamentary doctrine remains far from Locke and the Declaration for the same reasons the more pristine doctrine of the ancient constitution was remote from them. One measure of that distance is the lengths to which Parliament went to remain within the theory of the mixed constitution—by repairing to the distinction between the king’s “own person” and his legal or properly royal status, a distinction whose chief vice is its contradictory stance in relation to the theory of the mixed monarchy, of which it is a part. The theory of mixed monarchy holds that the common good is served through separated yet shared powers; the parliamentary application of the theory, on the other hand, implies that the common good is reached through the artificial maintenance but actual overcoming of the separation.47 The parliamentary doctrine fails not because it has recourse to a legal fiction, but because that fiction is so purely fictitious. Julian Franklin, who has reviewed the parliamentary doctrines of this early period of the Civil War with great care, found the parliamentary theory “inconsistent,” in that under it Parliament affirmed its right to appropriate the king’s “true” royal powers but rejected any right to depose the king. That observation, surely just in some respects, also misses a central point—that Parliament failed to claim a power to depose the king because it remained committed to the doctrine of mixed monarchy.48 It failed to claim for itself a power over the constitution on grounds of either parliamentary or popular sovereignty, but instead doggedly attempted to remain within the mixed constitution. The effort proved just how great was Parliament’s official commitment to some version of the mixed constitution. And, as we have seen already, the doctrine of the mixed constitution, like that of the ancient constitution, contained within it great powers of resistance to the move toward the pre-constitutional power that constituted it. Thus Parliament was attempting to do quite the opposite of what J. W. Allen has accused it of doing: “In spite of confusion and ambiguity it seems the House was really claiming sovereignty for themselves as the representatives of the nation.” That is just what Parliament, at this moment, twisted itself into awkward and clumsy positions to avoid doing.49
Nonetheless, despite the great force of the Aristotelian resistance to the preconstitutional, in 1642–43 writers sympathetic to the parliamentary cause (although not Parliament itself) were to take the momentous step of introducing into Opposition discourse the notion of a preconstitutional contract. Such ideas were not invented at this time, of course, but from this point onward contractarian thinking of some sort or other became and remained centrally important to Anglo-American political thought. Although it was far from carrying the day, as we have already seen, a form of contractarian thought was a strong contender for favor at the time of the formulation of the Declaration of Rights. With the acceptance of contractarianism, moreover, English political discourse appears to draw much closer to the Lockean style of thought. Nonetheless, before discussing these parliamentary doctrines further, we must pause to consider more generally the theme of contractarianism in political thought.
From the 1640s on, contract was a powerful theme in parliamentarian thought, and later in Whig thought. Recent research in the history of political thought has made it increasingly clear, however, that not all contractarian doctrines are identical; nor are all best understood as efforts to achieve some paradigmatic or standard doctrine. Most of the earlier scholarship was more or less “permeated by the belief that there is, as it were, a or the theory of contract, a model to which actual writers more or less conformed.” The appearance within a political statement of any “allusion to consent, consensus, or mutual obligation” was taken as indication of the presence of this more or less uniform contract theory.50
Historians like John Gough, Ernest Barker, and their mutual source, Otto von Gierke, often drew distinctions among contract ideas, but the assimilative result remained. These writers frequently differentiated types of contract—for example, a government contract from a social contract proper—but they identified the full-blown social contract theory as paradigmatic and other contractarian ideas as “anticipations” or “approaches” to this mature “fulfillment” of the contract idea. Whatever differences there may be, Gough, for example, still spoke of the contractarian theory.51
Instead of the old “unicontractarian” approach (to borrow a phrase from the literature of totalitarianism), Höpfl and Thompson advocate greater sensitivity to particularity and difference.52 They insist that at least two very different types of contract theory need to be distinguished as relevant to political discussion in seventeenth-century England. Both deployed the language of covenant, contract, or compact, but this common language appeared in a context and with a function that made the overall doctrines importantly different from each other. One variant—the older, and in the seventeenth century the practically more important version—was “constitutional contractarianism.” It “set covenant within the terminological context of ‘fundamental law’, ‘fundamental rights’ or ‘liberties’, ‘original contract’, and ‘ancient’ or ‘fundamental constitution’.” This form of contractarianism would then appear to have a prima facie connection to the types of parliamentary thought under consideration in this chapter. “In constitutional contractarianism particular positive laws and the institutional inheritance of specific polities were most relevant and important, rather than universal propositions about all men and all polities.” The other tradition, “philosophical contractarianism”, had much greater “theoretical ambitions and [intended] generality of thought”; it “spoke of ‘natural right’, ‘natural liberty’, ‘natural equality’, ‘condition [state] of nature’, ‘covenant’, and ‘sovereignty’.”53
Applying their distinction specifically to the period after 1660, Höpfl and Thompson observe that the Whig polemicists of the age remained almost entirely within the constitutional contractarian tradition, in that they “placed emphasis almost exclusively on justifications in constitutional law for political action and the historic rights of Englishmen.” The Whig appeal to the “original contract” in the Convention Parliament deployed this language of constitutional contractarianism, not of philosophical contractarianism—a “contract that had established the ancient English constitution, that had been rendered in each coronation oath, and that was embodied in English fundamental laws.”54
An alternative view is John Dunn’s, who spoke of Locke’s Two Treatises, and their influence in America, as follows:
Above all, it was only one work among a large group of other works which have expounded the Whig theory of the revolution. . . . The readiness with which many scholars have detected the influence of the Two Treatises in England and America is at least in part a product of the fact that they have read so little else of the English political writing contemporary with it.55
Dunn’s is a good example of unicontractarianism, for, according to Höpfl and Thompson, Locke and “only Locke, it appears, produced a treatise . . . that relied solely upon notions of natural right, natural law, state of nature, and social contract”—a treatise, that is, wholly of the philosophical type. “Locke’s uniqueness . . . helps account for the initial failure of his Two Treatises of Government to achieve the task Locke set himself in publishing: the justification of the Revolution of 1688.”56
Just as Höpfl and Thompson’s distinction between constitutional and philosophical contractarianism serves to separate Lockean theory, and thus the American Declaration, from other sorts of Whig political thought in the period 1688–90, so their categories bring out the same sort of fundamental difference between Lockean contractarianism and the appeals to contract that began to appear in parliamentary writings on the mixed monarchy in the early 1640s.
Contract became part of the theory of the mixed regime in the early 1640s, and its meaning was much determined by the context of thought in which it emerged. Part of that context was set by the rush of events that led Parliament to assert for itself the powers of the monarchy; possession by Parliament of such powers was in fact incompatible with the original form of the theory of the mixed regime. More thoughtful writers thus sought a rationale that would do less damage to underlying parliamentary theory. For a whole group of writers between 1642 and 1644—Charles Herle, Henry Parker, William Prynne, John Goodwin, Philip Hunton, and Samuel Rutherford—contract was the answer. However, more than the need to find a better way to justify parliamentary actions in the superheated setting of civil war promoted contractarianism’s rise to prominence. The mixed regime analysis was also subjected to theoretical pressure by royalist writers attempting to integrate the theory of Charles I’s Answer with earlier doctrine to support the king’s stance in the increasingly escalating conflicts of the day.
The royalist writer who attracted most attention from writers on the other side was Dr. Henry Ferne, a royal chaplain and one of the more prolific polemicists on behalf of King Charles. Ferne introduced a distinction into the controversy that proved to be of capital and long-lasting significance: as the Answer said, England had a mixed constitution with shared powers, but that was only at the level of the exercise of power. The supreme power or sovereignty “belonged wholly to the monarch.” Such powers as Parliament had—and Ferne did not deny it had them—derived from the king. Ferne differed from the earlier forms of divine right theory chiefly in emphasizing more strongly the political desirability of the sharing of powers, and thus he endorsed, to a degree, the mixed regime. For example, he stated his desire “to take off that false imputation laid upon the divines of this kingdom and upon all those who appear for the King in this cause that they endeavour to defend an absolute power in him, and to raise an arbitrary way of government: this we are as much against on his part as against resistance on the subject’s part.”57 Yet Ferne gave nothing on the principle-in-chief: where power primordially resided, whence it derived. Thus Ferne introduced into the heart of the debate precisely the sort of consideration the mixed regime analysis had in principle avoided—an insistent resolution of the constitution into a preconstitutional source of power. Ferne derived a series of conclusions from his conception of the preconstitutional origins of the English mixed monarchy. Two were particularly important. First, Parliament shared in the legislative power, but had no call to share in governance itself; thus Parliament’s demands to approve the king’s ministers or control the militia were way out of bounds. Equally important in the context, Ferne concluded that since all legitimate power originally belonged to the king, resistance such as parliamentary forces were offering was wholly unjustifiable.58
The most obvious response to Ferne was that put forth by Charles Herle, rector of Winwick in Lancashire, in a series of pamphlets in 1643–44. England’s government “is not simply subordinative and absolute,” he argued, “but a co-ordinative and mixed monarchy. This mixture or co-ordination is in the very supremacy of power itself,” which implies that Parliament is not “subordinate to the king. . . . Every member . . . taken severally is a subject; but all, in their Houses, are not.”59 From this premise, Herle articulated a doctrine of parliamentary power that came relatively close to expressing the views officially adopted in parliamentary actions. “If the king violated the law or failed to provide for the safety of the kingdom, the other estates would have to supply the necessary co-ordination to carry on the government and form ‘virtually the whole.’”60
Similar to Herle’s work, but more thoughtful and ultimately more revealing, was the development of the theory of mixed monarchy from a parliamentary perspective by the Puritan divine Philip Hunton in his work of 1643, A Treatise of Monarchy. Hunton’s marvelously systematic treatise avoids some of the most obvious defects of Herle’s (and Parliament’s) position, and at the same time more thoroughly brings out the basis, nature, and goals of parliamentary contractarianism. According to Hunton, “The sovereign power must be originally in all three, viz. the composition be of all three, so that one must not hold his power from the other, but all equally from the fundamental constitution; for, if the power of one be original, and the other derivative, it is no mixture, for such a derivation of power to others is the most simple monarchy.”61 Hunton’s language is instructive: he attempts to trace all power back to “the fundamental constitution” itself, revealing thereby the continuing power of Aristotelian nonreductionist constitutionalism, even when, as we shall see, he was moving away from it under the joint pressure of events and theoretical challenge.
From the premise he shared with Herle, that the mix resided in the “sovereign power” itself, Hunton drew the more consistent conclusion that Parliament’s claims, too, required trimming. As Weston observes, Hunton was “abler and more moderate than Herle.” Allen comments on Hunton’s “cool detachment and . . . unusual fairness to opponents.”62 Hunton took it to be the principle of “every mixed government” that “there must be necessity of concurrence of all three estates in the production of acts belonging to that power which is common to them. Else . . . you put it in the power of two by a confederacy at pleasure, to disannul the third, or suspend all its acts, and make it a bare cipher in government.” Hunton shared Charles’s concern that the king not be overborne, no more than he should overbear. Thus even in the hands of this important parliamentary writer the mixed monarchy theses came to stand against certain of the more innovative and unbalancing of the parliamentary demands. Hunton insisted that Parliament share the power of constituting “courts of judicature,” for example, but conceded that “the choice of persons” to staff these courts “is entrusted to [the king’s] judgment.”63
Hunton nonetheless grounds the whole on a doctrine of contract. The English constitution establishes a limited and mixed monarchy—that is, a monarchy in which the powers of the ruler are constrained by limitations derived from a source other than the will of the monarch. The sovereign power itself is shared and held independently and directly from the constitution by those who share in it. The English constitution derives this character from the consent of the people, as does even the most absolute monarchy. Both the type of government in any place—that is, the constitution—and the particular persons or family holding power under the constitution derive from “the tacit and virtual, or else express and formal consent of that society of men they govern.”64
Hunton relishes complexity. In a system like the English one there are four levels of political authority, each requiring more or less separate treatment. The very “constitution or power of magistracy in general” derives from God himself. “It is God’s express ordinance that, in the societies of mankind, there should be a magistracy or government.” At this level, Hunton finds the relevance of classic Christian texts like Romans 13. But God does not normally mandate any particular form of government; that is up to each human society to do for itself. At this second level, in all societies except those few in which God directly ordains a particular constitution, a presovereign power of the people rules. The people exercise this power to establish a third level of authority, the constitution, which establishes where sovereign power resides for that society. Finally, in the fourth sphere are those who actually exercise power within a given constitution. A great variety of permutations and combinations are theoretically possible, but for England the four levels are marked respectively by the rule of God, the people of England, and, for the final two, the mix of king and Parliament.65
The more purely Aristotelian theory of the mixed regime provided only for Hunton’s third and fourth levels; Hunton has added onto the idea of the autonomy of the constitution a supervening prepolitical power in the people and, supervening over that, the power of God. At Hunton’s second level, then, contractarian ideas make their entrance into parliamentary constitutionalism. The most obvious reason for that entrance would appear to be the need to counter Ferne’s claim that the mixed monarchical constitution itself derives from the monarch; the constitution derives instead from the nation. But why does Hunton say so, and why could he have not remained within a more purely Aristotelian frame and denied Ferne’s assertion about the origin of the constitution and, more to the point, denied the very relevance of that origin?
The answer to these questions is suggested in the form in which Hunton poses the question to which his Treatise is addressed: “Government and subjection are relatives; so that what is said of the one, may in proportion be said of the other.” The question of government is strictly correlative to the question of subjection, or obligation, of subjects; the question of political philosophy resolves itself into the source, nature, and degree of subjection. This is surely foreign to the approach of Aristotle himself, for to the ancients the question of obligation or degree of subjection is no thematic part of political science. Hunton’s deviation from classical Aristotelianism in developing a doctrine of contract is paralleled by the deviation of putting at the center the question of subjection.
Hunton’s two innovations are related. In bringing the issue of subjection to the fore, Hunton shares more with the divine right theorists than he does with Aristotle himself. Both Hunton and the monarchists jure divino seek to discern to what degree humans are conscience-bound to obey political authorities. Ultimately, political philosophy for both is but a branch of moral philosophy, or better yet, moral theology. As Hunton put it, “government is . . . the exercise of a moral power,” but that power is defined by the moral subjection of those over whom the power is exercised.66 The most immediate or obvious source of that approach to politics is the common Christian context in which Hunton and the royalists thought about politics: “Ye must needs be subject, not only for wrath, but also for conscience sake.”67
Hunton and the divine right theorists take a fundamentally different approach to the issue of subjection, however. For the latter, unconditional obedience to the ruler is the means whereby the peculiar Reformation combination of freedom and subjection may find expression in the political sphere. Hunton’s superimposition of contract onto an Aristotelian constitution represents an alternative attempt to discover the political embodiment of the Reformation.68 The chief function of contract or consent for Hunton is to generate obligation or subjection. Subjection is not natural and universal, something one is simply born into, but is undertaken voluntarily. “An oath to a lawful thing is obligatory,” indeed is one of the ways, if not the prime way, in which obligation as such is incurred. “Man, being a voluntary agent, and subjection being a moral act, it does essentially depend on consent. . . . A bond of subjection cannot be put on him, nor a right to claim obedience and service acquired unless a man became bound by some act of his own will.” The generation of obligation through an act of will—that is, through consent and contract—is another way of conceiving the copresence of human freedom and human subjection. God ordained that humanity be subject: to him in general and to public authority in particular. But God does not ordinarily place human beings within a complete structure of authority; their free coaction is required to complete the subjection they are to be under. Human will cocreates the moral ties that bind the species. Not merely does Hunton’s political science culminate in a teaching of the goodness of mixture in the constitution, but in its deepest grounds it is committed to a mixture of divine and human coaction as well.69 Thus humanity can be both free and subject at once.
Contrary to what many present-day scholars believe, Hunton’s contractarianism differs substantially from the version more familiar to us from the Declaration of Independence or the political philosophy of John Locke.70 The keynote of Hunton’s Protestant theory is the power of human will to cocreate moral obligation. To express that morally creative power it is not sufficient that human beings merely consent to an authority already completely established.71 Human will not only freely accepts but partly creates the structures of moral obligation. According to Hunton, there is no paradigmatic contract. For Locke and for the Americans it is impossible, both logically and psychologically, to conceive the contract as one of unlimited subjection: there are always inalienable natural rights to serve as an end and limit to all subjection. But Hunton knows nothing of natural rights or of the contract of subjection as the means to secure them. His contract is perfectly open-ended. Human beings may as well establish an absolute monarchy as a limited and mixed constitution. Absolute monarchy results “when people . . . resign up themselves, to be governed by the will of one man. . . . This is a lawful government. . . . Therefore where men put themselves into this utmost degree of subjection by oath and contract . . . it binds them and they must abide it.” Limited monarchy derives from precisely the same source. “Kings have not divine words and binding laws to constitute them in their sovereignty, but derive it from ordinary providence; the sole means thereof is the consent and fundamental contract of a nation or [sic] men, which consent puts them in their power, which can be no more or other than is conveyed to them by such contract of subjection.” Or, as Hunton put it yet more generally, “In the first original monarchy, yea, any individual frame of government whatsoever, is elective; that is, is constituted and draws its force and right from the consent and choice of that community over which it sways.”72
The constitution, as well as the actual ruler, is determined by this positive act of will: the moral power of human freedom is very great. This power is so great that it can bind whole communities and even the future. The consent is not the consent of individuals but of the community. Hunton neither explores how this can be so nor looks very carefully into how the contract might be executed. Moreover, the contract is not made anew by each generation, much less by each person: future generations are morally bound by past generations. People have no right to complain of their political condition, whatever it may be, if “they or their ancestors have subjected themselves to such a power by oath or political contract.”73 Hunton’s point is to establish the quasi-sovereign coactive power of human will as such, not the power of each individual. Only in a certain sense does government “derive its just power from the consent of the governed.”
Positive, historical consent founds the constitution. The character of the constitution, defining the rights and duties of rulers and subjects, is to be found out by reference to the actual historical terms of the constitution, as established in the original contract. “Thus,” Hunton asserts, “the community, whose consent establishes a power over them, cannot be said universally to have an eminence of power above that which they constitute: sometimes they have, sometimes they have not; and to judge when they have, when not, respect must be had to the original contract and fundamental constitution of that state.”74 There is no abstract “natural constitutional law,” as one finds in Hobbes, Locke, or Jefferson; there is no universal natural right of revolution, as one finds in Locke and Jefferson.75 Hunton’s contractarianism is thus most closely related to Höpfl and Thompson’s category of constitutional contractarianism, for in it contract is conceived as historical and constitutional.
Hunton uses some of the same terms as Locke and the American Declaration, but, it should now be clear, his doctrine lacks all five of the defining elements of Lockean contract theory. Hunton recognizes no general right of revolution, and even when resistance is legitimate, as in the English limited and mixed monarchy, sets severe limits on the kind of resistance allowable.76 The equality of all human beings also forms no part of Hunton’s scheme. The ultimate reference is the nation, which he conceives as organized in its classes and orders in more or less the same way as did the authors of the Declaration of Rights. Hunton does not understand government as an artifact; it is divinely ordained. Consent is required to complete the ordination, and thus a degree of human making enters into the process, but this is not a consent which in its nature constitutes public authority out of some preexisting authority residing only in individuals. Consent for Hunton is connected to an “original contract”; consent is given at some discrete historical moment, but not by each and every individual human being. Finally, and most important, natural rights play no part in Hunton’s political thought.
Like the divine right theory it opposed, Hunton’s mixed monarchy contractarianism emerged as a Reformation-inspired and -infused modification of an essentially Aristotelian line of thought. One of the other mixed monarchy theorists of the day, the parliamentary leader Henry Parker, made the Aristotelian dimensions of mixed monarchy contractarianism even clearer, and in so doing clarified some otherwise inexplicable elements of Hunton’s theory.
Parker, like Hunton, willingly accepted Charles’s description of the English constitution in the Answer as a mixed monarchy, but he rejected far more forcefully than Hunton the proroyalist implications drawn from that characterization.77 In Parker’s Observations upon Some of His Majesty’s Late Answers and Expresses (1642), contractarianism takes on much greater importance at the expense of the loss of authority of the similitudes of rule, so important to divine right political doctrine. He does not deny the similitudes altogether, but he strips them of most of their evocative power by making them mere analogies, perhaps true to some degree but more often than not misleading or even outright false. The divine similitude, if taken in the way James and the royalists did, is “a kind of blasphemy.” The familial similitude does no better at capturing the nature of the political relationship. “The father is more worthy than the son in nature, and the son is wholly a debtor to the father, and can by no merit transcend his dutie, nor chalenge any thing as due from his father. . . . Yet this holds not in the relation betwixt King and Subject, for its more due in policie, and more strictly to be chalenged, that the King should make happy the People, than the People make glorious the King.” Parker also rejects the similitude of the body. “The head naturally doth not more depend upon the body, than that does upon the head, both head and members must live and dye together; but it is otherwise with the Head Political, for that receives more subsistence from the body than it gives, and being subservient to that, it has no being when that is dissolved, and that may be preserved after its dissolution.”78
Even though Parker dismissed the similitudes, and with them the organic polity of Aristotle, nonetheless the remarkable power of Aristotle as a political thinker remains visible in Parker. Unlike Hobbes (who at almost the same moment was developing a contractarian version of politics that, in its mature form, was meant to effect a root-and-branch break with the Greek philosopher’s long-lived and, as he thought, baleful doctrines), Parker quite comfortably set out his contractarianism in essentially Aristotelian terms.
“In this contestation between Regall and Parliamentary power,” Parker states at the very beginning of his essay, “for method’s sake it is requisite to consider first of Regall, then of Parliamentary Power, and in both to consider the efficient, and finall causes.”79 Parker begins, in a word, with the recognition of “contestation” among the elements of the constitution. In that respect, he begins in the same way Charles did in his Answer: the authority of the ancient constitution provides inadequate guidance for the present. The difference between Parker and Charles’s moderate parliamentarian ghostwriters centers on the issue of where to look instead. The Answer had proposed as a standard of the constitutional order the mixed regime and thus the balance of the constitution: the goodness of the constitution lies in its balance. For the sake of that balance, Charles concluded, parliamentary demands for greater power must be rejected. Parker, on the contrary, formulates the issue in terms of the efficient and final causes of the elements of the constitution. How can we settle the proper balance of the constitution except in terms of the purpose or end of the constitution? Aristotle himself had pointed the way by distinguishing the regimes from one another not only in terms of the social-political elements dominant in each but in terms of the goodness of each. The theory of the mixed regime was indeed derivative from this primary consideration—an attempt to reap the positive and avoid the negative qualities of each pure regime. Parker sees the “balance” as too formulaic; the point of the mix is to achieve some good beyond the mix itself. Parker attempts to discern the good of the mix by raising the question of the final cause of the constitution, or of its chief elements. “The finall cause of Royal Authoritie,” Parker concludes, is “the people”—that is, the welfare of the people and not the greatness or fame of the ruler. Parker’s understanding is identical to Aristotle’s: the good regime aims at the good of the community rather than the good of the rulers.80
Parker and the Opposition writers of the time, however, drew an inference from the Aristotelian thesis about the final cause that produced a real amendment to Aristotle’s own political philosophy. If the good of the people is the final cause of the constitution, Parker insisted, the same people must be the efficient cause of the constitution as well. “Power is originally inherent in the people, and it is nothing else but that might and vigour which such or such a societie of men containes in itselfe, and . . . by such or such a law of common consent and agreement it is derived into such and such hands.”81 The “original” of political power resides in the people and passes from them to the actual ruling authorities. Parker is so certain of this precisely because he knows the natural end of politics even more certainly: “the paramount law that shall give law to all humane laws whatsoever, and that is Salus Populi.” According to J. W. Allen, with this move Parker becomes the first clear-cut contractarian thinker in England.82
In drawing a contractarian conclusion regarding the efficient cause, Parker breaks with Aristotle on the basis of their common premise regarding the final cause of government. Parker’s essay suggests several reasons for the insertion into parliamentary theory of an Aristotelian contractarianism at this time. First, the broad context of Parker’s ruminations made the issue of the “original” of political power far more pressing than it had been for Aristotle and most of his followers. Parker, like Hunton, was opposing the pretensions of the monarchy, and behind these still hovered the doctrine of divine right—not only that the king’s authority was jure divine, but, à la Dr. Ferne, that the source of the constitution in its entirety was the king’s more primordial power. That claim had implications for the issues in immediate contention. Two visions of what properly could or should be done about the constitution were in conflict, and the party that could claim an originating power over the constitution could surely use that as the basis for a claim to settle the present conflict. That immediate context certainly must have pushed Parker and the others in contractarian directions. If the king has final say on the shape of the constitution, then the constitution can hardly accomplish its final end or purpose, the welfare of the people. If the king retains the kind of supremacy within the mixed constitution that was urged by royalists like Ferne, then the entire notion of mixture and limit was for naught, as was the practical significance of the idea that regal power was for the sake of the people. In case of conflict between king and Parliament, “we must retire to the principles of Nature, and there search, whether the King or the Kingdom be to be lookt upon as the efficient, and finall cause, and as the proper subject of all power.”83 Precisely because the people are the final cause, one must also conceive them to be the efficient cause. If nature ordains the good of the people, then the natural original and ultimate locus of political power must be the people as well. Any other arrangement would be self-contradictory and self-defeating. Parker agrees with Hunton that political authority is ordained prior to any contract, but the one looks to a divine ordination to be completed by human free action, where the other looks to nature for the original and end of political power.
Parker’s context forced him to struggle with the very same problem Herle and Hunton did: In case of conflict over powers in the mixed monarchy, who has the right to define the constitution and what powers exist to enforce any rightful definition?84 Hunton had answered that the nature of the mixed constitution allows no legal answer to that question: if one or another part of the constitution had this legal power, then the constitution would not be truly mixed in its foundation. Hunton conceded this to be an imperfection, but “a frame of government cannot be imagined of that perfection, but that some inconveniences there will be possible for which there can be provided no remedy.”85
Parker attempted to avoid Hunton’s “imperfection” by taking a different tack from both him and Herle:
If we allow the king to be the sole, supream competent Judge, . . . we resigne all into his hands, we give lifes, liberties, laws, Parliaments, all to be held at meer discretion? For there is in the interpretation of law upon the last appeal, the same supremacy of power requisite, as in making it; And therefore grant the King supream interpreter, and its all one, as if we granted him the supream maker of law; and Grant him this, and we grant him above all limits, all conditions, all humane bonds whatsoever.86
Parker is, in a real sense, more practical than Hunton. Some real supremacy must be somewhere, and Parliament is the place. In the final analysis, Parker is only a tentative spokesman for the mixed constitution. “In matters of law and state both, . . . some determination must be supreme, . . . and there can be nothing said against the arbitrary supremacy of Parliaments.”87 Parker accepts, that is to say, the ultimate sovereignty of Parliament. “Parliaments have the same efficient cause as monarchies, if not higher, for in truth, the whole kingdom is not so properly the Author as the essence it selfe of Parliament.”88 Since Parliament embodies or stands as “the essence” of the whole kingdom, any judgments about the character of the constitutional balance can rightly and safely be left to it. “It is indeed the state itself. . . . We had a maxime, and it was grounded in Nature, . . . that a community can have no private ends to mislead it, and make it injurious to itselfe, and no age will furnish us with one story of any Parliament freely elected . . . that ever did injure a whole Kingdome, or exercise any tyranny, nor is there any possibility how it should.”89
Parker’s approach to the problem of the origin of power thus allows him to assimilate the newly developing theory of sovereignty, which had posed extreme difficulties for earlier forms of Aristotelian constitutionalism.90
That there is an Arbitrary power in every State somewhere is true, ’tis necessary, and no inconvenience follows upon it. . . . Every State has an Arbitrary power over itself, and there is no danger in it. . . . If the State intrusts this to one man, or few, there may be danger in it; but the Parliament is neither one nor few, it is indeed the State itself.91
Except for the conclusion that supremacy accrues to Parliament, Parker’s contractarianism was nearly identical to Hunton’s in its main elements. Like Hunton’s, it is an “original contract,” and not, like that in Locke, in effect made and remade by all human beings. Parker also takes for granted that the consenting agent is the community, not the individual; accordingly, he does not begin with natural rights of individuals. Parker has no notion of an abstract and universal right to revolution, but instead a much restricted notion of a right of resistance.92
Parker, however, is far less emphatic in allowing for the legitimacy of absolutist monarchy than Hunton was, and this reflects the stronger role within his system of Aristotelian theory. Absolutism does not comport as well with the final cause of the polity—the welfare of the people—as other forms of rule. Thus, Parker concludes, it is not rational for a people to have authorized absolutist rule and they should not be presumed to have done so.93
For Parker, the moral purpose of the polity is the defining feature of his contractarianism; for Hunton, it is the moral source of the polity in consent. For Parker popular consent or contract is a non-Aristotelian means to an Aristotelian end; for Hunton, consent is posited as the requisite mode for entering into moral obligation.94 In these two forms of parliamentary contractarianism the dominant elements of prior political discourse—Christianity, as understood in the English Reformation, and Aristotelianism—are pulling away from each other but still coexist in a viable form. Indeed, Parker’s more Aristotelian form of the doctrine clarifies an element of Hunton’s more Protestant form.95 Hunton, it will be recalled, conceived the contract as communal, not individual; but his doctrine was grounded in a notion of the relation between consent and moral obligation that would seem to point toward, if not require, a more individualistic consent. Parker’s view indicates why parliamentary contractarianism looked to the community. For Parker, contract and consent are inferences from the final cause of the polity, the welfare of the community, the common good. The required consent is, therefore, the consent of the community. Consent of individuals is not only unnecessary, it is not even to the point.