Until very late in his career, Filmer argued that Divine Providence could change the ruler, the dynasty, or the form of government;
Kingship might usually be best; but rule by a Queen, and aristocracy, or a democracy was possible and valid;
In every case, the ruler’s power was the same as Adam’s: fatherly/ political, absolute, and unaccountable (except to God).
Filmer undermined contract theory;
And harnessed conventional social thinking to royal absolutism and Divine Right; the Fifth Commandment; Arthur Capell, Baron Capell (1608-1649).
In Filmer’s theory, as in Bodin’s, mixed government was impossible; England was an absolute monarchy.
There was little about religion in Filmer, perhaps making it good Tory propaganda 1679-80.
Arthur Capell, Baron Capell (1608-49): a Martyr for the Fifth Commandment
In 1649, the King was executed and monarchy abolished; in terms of his earlier principles, Filmer could (/should) have recognized these developments as caused by Divine Providence, and have recognized the sovereignty of the new republic;
But he remained a royalist and so came to argue that (1) monarchy is the only form of government; and (2) the old royal line always retains its rights;
Filmer and the Heir of Adam
The claim that the old dynasty keeps it rights was intended to favor the Stuarts in England;
But it had the awkward implication that if Adam’s one true heir turns up, the Stuarts too should give up their claims; in fact, all states should try to find Adam’s heir and make him /her queen/ king of the world;
Locke made much of problems like this, poking fun at Filmer.
Filmer and Feminism
Filmer’s opponents (like Locke) argued that families and states are quite different; the power of a father in the family is not the same as the power of a sovereign in the state; sovereigns get their powers from the people by contract
But Filmer noted that if his opponents were consistent they would give women and children equal political rights with men; if women are not politically subordinate to men (but only subordinate to them in the family), they should have the same political rights as them.
Filmer, Feminism, and the Sexual Contract.
According to Locke, we are all born free and equal politically; though there are inequalities in the family, these are not political.
But Locke – and many later thinkers in the liberal/ contractual tradition – took it for granted that women would be excluded from political activity.
In The Sexual Contract (1988), Carole Pateman draws on Filmer to argue that Locke’s theory requires not just a contract setting up government, but a contract among males to exclude females from politics.
Common Law and Constitutionalism: Outline
(1) Introduction: Roman Law and Common Law;
(2) Some lawyers and Cases, from Sir John Fortescue to Sir Edward Coke;
(3) Common Law Theory on Politics, Society, and the Law;
(4) The Common Law and Individual Rights.
The Common Law, Roman Law, and Custom
Roman Law: codified by Justinian 530s; not adopted in medieval England.
Mos italicus; Mos gallicus. Jacques Cujas (d. 1590); François Duaren (d. 1559); François Hotman (d. 1590).
Common law thinking: supremacy of law; neither king nor people holds sovereignty above the law.
Conservatism; Edmund Burke on 1688 and 1789.
Lawyers: Sir John Fortescue (c. 1397-1479) (01)
Perhaps a soldier when young; elected to parliament 1421; trained as a lawyer; Chief Justice of the King’s Bench 1442; knighted about the same time.
In the Wars of the Roses, he sided with the Lancastrians; in 1461 he was at the battle of Towton; he then fled with Lancastrians to Scotland and France;
1470 he was important in the “readeption” of Henry VI.
Sir John Fortescue (02)
1471: Lancastrians defeated at Tewkesbury; Fortescue captured, but pardoned after agreeing to write in support of the Yorkists; d. 1479.
Two main books: De Laudibus Legum Angliae (written 1468-71); The Governance of England (or The Difference between an Absolute and a Limited Monarchy) 1470s.
De Laudibus frequently printed from 1540s; it was the most commonly cited law-book in parliaments of Shakespeare’s time.
Tomb of Sir John Fortescue, Ebrington, Glos. (The Tomb is slowly sinking; there’s an appeal online to repair it)
St Eadburgha’s Church, Ebrington
Sir John Fortescue: Ideas
The English constitution the best – much better than the French;
Custom defines the constitution; regimen politicum et regale; no taxation without consent;
Lawyer and poet; wrote Orchestra, or a Poem of Dancing (1596); Nosce Teipsum (on knowledge, and the immortality of the soul; c. 1594; published 1599 and much reprinted);
1603: Solicitor General for Ireland; knighted.
1612: A Discoverie of the true causes why Ireland was never entirely subdued nor brought under obedience of the crown of England until his majesties happie reigne
Davies’s Discoverie of the State of Ireland (1613 reprint).
Sir John Davies (02)
1615: Le primer report des cases & matters en ley (Dublin; in Law French)
1626: Sir Ranulphe Crewe, Chief Justice of the King’s Bench, refused to support the Forced Loan; Charles I sacked him and appointed Davies instead;
Davies celebrated with a party the day before the appointment was to take effect; he died in the night.
Customary Law the best kind of Law: by their survival customs prove their merits;
English customs ideally suited to the English;
But, unlike Fortescue, Hedley, and Coke, Davies argued that custom does not limit royal power in England; monarchs have the power to tax without consent, though they do not usually find it necessary to exercise it.
Sir Francis Bacon (Viscount St Alban; 1561-1626) was another lawyer who took a high view of royal authority.
Thomas Hedley (Hetley; c. 1569-1637)
Speech in parliament 1610, against impositions;
Common law as precedents/ custom, interpreted by (artificial) reason, resulting in maxims or fundamental principles of the law (you must not judge in your own case; no taxation without consent);
Common laws as tried reason, which has passed the test of time, and is wiser than anyone living; like a glove or the skin on a hand.
Sir Edward Coke (1552-1634) (01)
“the Oracle of the Law”
Norfolk minor gentry; Trinity College, Cambridge; Inns of Court; legal practice;
Politically linked to Cecils; married Burghley’s grand-daughter (Salisbury’s niece) 1598;
1592: Solicitor General; Speaker of the House of Commons 1593; Attorney General 1594 (over his rival Bacon); Chief Justice of the Common Pleas 1606; of the King’s Bench 1613.
Sir Edward Coke
Coke upon Littleton (1628; 1639 reprint)
Coke: Works and Cases
13 Reports; 4 parts of the Institutes.
Can the king be a judge? “Artificial reason”.
Bonham’s Case (1608); judicial review.
Edmund Peacham’s Case 1615; Richard Neile and the case of commendams; de non procedendo rege inconsulto; prohibitions; High Commission.
1616: Coke dismissed; 1617 abducts his daughter from his estranged wife to force her to marry the mentally problematical brother of the King’s favorite Buckingham; back on the Privy Council;
1621 on: opposes the crown in Parliament.
Common Law Thought 01
Common Law as ancient custom and tried reason;
Magna Carta (1215) declares customary law;
Coke and John Selden (1584-1654): are all English customs equally ancient, or have they developed? (the repaired ship);
Can Parliament (or the judges) change some/ all customs?
Common law, reason, and Scripture; 12 jurors/ Apostles; artificial reason.
Common Law Thought 02
Royalist interpretations: Davies; Bacon; Sir Thomas Fleming (Bate’s Case 1606).
Coke, Hedley etc. argued that common law limits monarch, but forbade active resistance; conservatism;
What if monarch tries to evade legal limits? People who obey him get punished: “The King can do no wrong”; “Rex nihil potest nisi quod jure potest”. Customs officers 1629.
Common Law and Individual Rights
Common lawyers argued that individuals have absolute rights of property; that they are not bound by laws to which they have not consented (through their representatives in parliament); and (from 1628) that they cannot be imprisoned without cause shown;
They argued that these rights do not give way to the public good, since the public good consists of upholding such rights.
Common Law, Rights, and Civil War
Common law theory did not justify active resistance to the monarch;
Nor did it justify the emergency actions of parliament, which sometimes infringed individual rights;
But common law ideas survived; however, they were open to attack on historical grounds;
A securer basis for defending individual rights than English history was arguably natural law/ reason; that is how John Locke defended them.
Contract and Constitutionalism
(1) Marian resistance theory.
(2) Huguenots after 1572.
(3) George Buchanan.
(4) Catholic Resistance Theory.
(5) England before the Civil War.
Marian Resistance Theory
Thomas Wyatt’s Rebellion 1554; Marian Exiles; Strassburg; Geneva; Zürich.
John Ponet, A Shorte Treatise of Politike Power (1556); Christopher Goodman, How Superior Powers Oght to be Obeyd (1558); John Knox, The First Blast of the Trumpet against the Monstrous Regiment of Women (1558).
Heinrich Bullinger (1504-75)
Huguenots after 1572.
Henry II (1519-59); Catherine de’ Medici.
Francis II (1544-60); Charles IX (1550-74); Henry III (1551-88); Francis (Duke of Anjou; 1555-84).
Concordat of Bologna 1516. Guise.
La Rochelle; Coligny; Henry de Bourbon (Henry of Navarre; heir 1584).
1572: St Bartholomew’s Day Massacres.
Theodore Beza, De Jure Magistratuum in Subditos (1574; 1576).
François Hotman, Francogallia (1573); sovereignty of the Estates.
[Philippe Duplessis Mornay,] Vindiciae contra Tyrannos, 1579.
Natural law; Luther, Melanchthon, Calvin.
Sorbonnists: Gerson; Almain; Major (Mair)
Vindiciae contra tyrannos in English, 1689 (earlier English versions appeared in 1581 and 1648)
Huguenot Arguments 01
Beza: “arguments from reason” show “no one is born a king, and no one is a king by nature”; “a king cannot rule without a people, while a people can rule itself”;
Peoples prior to kings; each people was originally free, and able to institute whatever form of government it liked; kings get power from the people.
Huguenot Arguments 02
Kings bound by contract;
Vindiciae: double contract ((1) between king and peeople in secular matters; (2) between God, king, and people in religion);
Like the earlier Catholic Sorbonnists, the Huguenots did not give the church power over the state;
Huguenots stressed the role of inferior magistrates.
Huguenots from 1584
In 1584, the death of the Duke of Anjou, brother of the French king, left Henry of Navarre as heir to the throne; Protestants now argued against resistance, and Catholics argued for it; Henry became Henry IV in 1589.
Some Huguenots reverted to resistance theory after the Revocation of the Edict of Nantes in 1685; e.g. Pierre Jurieu;
Others rejected it; e.g. Pierre Bayle.
Shakespeare and Huguenots
Jacqueline Vautrollier, a Huguenot, was the business partner and then wife of Richard Field, who printed Shakespeare’s early poems.
In 1612 Stephen Belott sued Christopher Mountjoy over money he said Mountjoy had promised him at the time (1604) Belott married Mountjoy’s daughter (Belott had a Huguenot mother the Mountjoys were Huguenots;
Shakespeare was called as a witness because he had been a lodger in the Mountjoys’ house.
In Henry V, the French herald is Mountjoy (/ Montjoy).
George Buchanan (1506-82) 01
John Mair/ Major; Montaigne.
Mary Queen of Scots; Henry Stuart, Lord Darnley (d. 1567); Rizzio; Bothwell; Buchanan supports deposition of Mary;
De Jure Regni apud Scotos 1579;
Kings established by people to protect themselves against rich.
Buchanan, Ane Detectiovn of the duinges of Marie Quene of Scottes, 1571
Distinction between the office of king – which we should respect – and the person of the king – who may not merit respect;
Power comes from the people; it cannot enslave itself – a contract to do so would be invalid;
Kings who break their contracts can be resisted; individuals can use violence against a deposed king.
Catholic resistance theory
Modern democracies: Catholic roots?
Cortes of Castile; French Estates General.
The (Holy) League; Guise (Duke of Guise assassinated 1588); Henry III assassinated 1589.
Henry IV converts to Catholicism 1593; takes Paris 1594; the Sixteen.
1610 assassination of Henry IV: Catholics move away from resistance theory.
The Counter- (or Catholic) Reformation and the School of Salamanca
Allen; Parsons; Council of Trent 1545-63; Jesuits;
Francisco de Vitoria (c. 1483-1546); Domingo de Soto (1494-1560; De Justitia et Jure 1553-7; Luis de Molina (1535-1600; Molinism [=Pelagianism?]; De concordia liberi arbitrii & gratiae 1588; DeJustitia et Jure 1592; Juan de Mariana (1536-1624), Historiae de Rebus Hispaniae (1592; 1605); De Rege et Regis Institutione 1599.
A Conference about the Next Succession, 1595
The University of Salamanca
Vitoria, at Salamanca
The School of Salamanca
Mariana and Ravaillac; De Rege condemned by Paris Parlement 1610.
Francisco Suárez (1548-1617); Disputationes Metaphysicae 1597; De Legibus ac Deo Legislatore 1612; Defensio Fidei Catholicae 1613.
Robert Bellarmine (1542-1621), Disputationes de Controversiis 1581-93; De Potestate Summi Pontificis 1610 (against William Barclay).
Francisco Suárez – Doctor Eximius
Catholic Resistance Theory: Arguments 01
Human nature makes the family and the state necessary, to secure human survival and welfare;
Husbands/ fathers rule in the family, but no one has any more right to rule the state than anyone else;
States are at first ruled by the whole people;
Government is valid and natural to Christians and non-Christians alike;
Catholic Resistance Theory: Arguments 02
Non-Christians in America have every right to govern themselves; Aristotle wrong about natural slavery; Vitoria; Bartolomé de las Casas; Juan Ginés de Sepúlveda.
Suárez: original democracy in every state; kings get power by contract; constitutions vary in accordance with contract; permissive and obligatory natural law;
Mariana: the people are above the king; Suárez: the king is above the people except if he breaks the contract or misgoverns.
Catholic Resistance Theory: Arguments 03
If a king misgoverns in a way that harms religion, the pope can intervene to discipline him;
The representative assembly of the state is the proper institution to decide whether the monarch is a tyrant;
Huguenots emphasized the role of the inferior magistrate; Catholics did not;
Some Catholics gave individuals the right to resist even when the pope and the representative assembly had not spoken: Mariana; Parsons writing as Philopater 1592.
Contract and resistance in England before the Civil War
From 1642, ideas of contract and resistance were commonplace in Parliamentarian writings;
Defending active resistance could be dangerous;
Ideas of contract were expressed in parliament by Sir Edwin Sandys, John Pym, Sir Robert Phelips, and others;
And in books by Richard Hooker, William Ames and John Selden;
Ponet’s Shorte Treatise was republished in 1639 and 1642.