In Romans 13:5, St. Paul famously announced that Christians must obey law not only for fear of punishment, but also “for conscience sake.”Footnote 1 Early modern Protestants and Catholics agreed that violations of laws that bound conscience, if unrepented, threatened damnation. But not all law obligated conscience. Natural law typically did. So did Jesus's injunctions and God's moral law revealed in the Old Testament, but not His judicial law governing civic affairs or His ceremonial law regulating Jewish religious observance.Footnote 2 Human laws about things indifferent, matters neither commanded nor forbidden in scripture and nature, presented the most complicated case. Disobedience to only certain classes of human laws—but not all—imperiled the soul. Catholics and Protestants fiercely debated how to distinguish rulers’ ordinances that bound conscience from those that did not. This article explores the principles that animated the dispute and the methods used for linking human law to the fate of the soul or challenging that connection.Footnote 3
The stakes were considerable. To claim that the violation of human law potentially sent the offender to hell enormously multiplied the potency of rulers. Not only monarchs and national assemblies claimed the benefit of Romans 13:5. Early modern theorists commonly held that heads of families could bind the consciences of dependents under their control, as could nobles governing seigneurial territories and councils overseeing cities and corporations, although observers disagreed on whether these subordinate rulers enjoyed authority over conscience from direct divine delegation as “powers that be … ordained of God” (Romans 13:1) or, alternatively, from a revocable concession by the monarch. In either event, a wide variety of higher and lower rulers, painfully aware of their limited coercive abilities, treasured the suggestion that God's ultimate penalty of damnation reinforced their shaky authority over lawbreakers. Human ordinances that bound conscience had the advantage of enlisting in their support the Lord's unerring detection of offenders, a particularly useful service in deterring crimes of omission and concealment that escaped the notoriously inefficient policing of early modern states. Theologians went as far as to say that civil rulers could not keep the peace and enforce justice unless would-be lawbreakers feared for their souls.Footnote 4
This was a mixed blessing, however. A world in which violation of any civil ordinance brought damnation would be terrifying and unlivable for subjects. And such a world would not allow for the negotiations between monarchs, parliaments or estates, nobles, cities, and corporations that enabled early modern states to function, negotiations that required jurisdictions and notables to challenge law openly in tribunals and tacitly through quiet subversion. Tactically minded resistance to law as a prelude to renegotiation of policy was at the heart of early modern politics. It could not be presumed to lead to hell. The application of Romans 13:5 to human law necessarily became a dialectical endeavor. Theorists generated arguments to bind conscience and release it. These principles, as a branch of casuistical reasoning, were characteristically sensitive to circumstances: which laws, created for which purposes, obligated the consciences of which persons, in which contexts, and under threat of which penalties? The answers to these questions mattered in high politics, in day-to-day decisions about legal obligations, and in individual Christians’ prospects for the afterlife.
Although rulers, lawyers, and political controversialists participated in these discussions, theologians took the lead. This article will consider how Spanish Thomists and English Protestants from the mid-sixteenth through the later seventeenth century debated how best to apply Romans 13:5 to human law. Building upon Thomas Aquinas’ Summa Theologica, such figures as Francisco de Vitoria, Domingo De Soto, Luis de Molina, and Francisco Suárez, along with the jurist Fernando Vázquez Menchaca and the not-Spanish but intellectually omnipresent Cardinal Robert Bellarmine, brought the Catholic discussion of binding in conscience to new heights of sophistication and prominence. Intensely aware of the Spanish Thomists’ efforts, noisily dissenting on some issues and appropriating much, were the English divines William Perkins, Richard Field, John Buckeridge, Roger Fenton, Andrew Willet, William Ames, William Fenner, Robert Sanderson, Joseph Hall, Jeremy Taylor, Richard Baxter, John Sharp, and George Dawson. My focus will be on clerical intellectuals whose writings and lectures stand as the leading explorations of the relationship of human law to conscience in the English Protestant and Catholic Thomist traditions. Reading theologians as primarily “Catholics” or “Protestants” has the disadvantage of muting disagreements within each group, such as between the contrarian-minded Vázquez Menchaca and his fellow Spaniards, or between English Puritans and mainstream churchmen. But this approach does allow sharper appreciation of confessional resemblances and disputes and of the development of the English tradition over time.
My article begins with the problem of how to tell whether a violation of human law brought damnation, lesser divine punishment, or solely temporal consequences. Grading could occur in two ways: when defining the duties of the soul (which human laws bound conscience in what contexts); or when assessing punishment (what are the consequences in the afterlife of breaking a law that obligated conscience). Catholics engaged in this second kind of scaling by employing the distinction between mortal and venial sin. The definition of the two types of transgressions is familiar in general terms. However, the details of differentiation—the assignment of offenses to the categories of mortal, venial, or no sin—depended greatly on context. Section I of this article reconstructs how theologians did this work within the framework of Romans 13:5.
Sections II and III examine the other strategy for reducing the threat to the soul by grading: the use of jurists’ categories to identify human laws that did not obligate conscience in particular contexts, or at all. English Protestants rejected the notion of venial sin and its services in downgrading punishment. The flexibility created by principles of legal interpretation was consequently even more important for English Protestants, as recounted in Section II. But they were hardly alone in using jurists’ categories to assess—to mitigate or reinforce—the grip of law on conscience. This effort cut across both confessions. Using examples drawn particularly from cases involving taxation, Section III explores how Catholic and Protestant theologians alike measured the obligations of conscience by directing careful attention to the presumptions underlying ordinances, to the formation and promulgation of statutes, to the implications of contrary customs, to questions of proof and procedure, and to desuetude, impossibility of performance, cessation of reason, and a host of other principles of legal interpretation. They produced a subtle dialectical system. With but a slight change of emphasis, jurists’ categories could produce a bias toward either binding or releasing conscience. To see this system in action, we turn from taxation to a case examining the public regulation of worship: English minister Robert Sanderson's examination of whether Parliament's 1645 order abolishing the Book of Common Prayer bound conscience.
At the turn of the seventeenth century, English Protestants had not been manipulating jurists’ concepts with the same intensity or sophistication as the Spanish Jesuits. The English put those concepts in the foreground by the middle of the century. Section IV considers the development of the English tradition by taking a fresh look at the relationship of “legalism” to conscience, a vexing problem that has preoccupied early modern theorists and modern scholars alike.
Scholars, who have long stressed the special prominence of casuistical reasoning in the early modern period, have studied the problem of law binding conscience from a number of perspectives. Theologically minded historians have reconstructed disputes among both Catholics and Protestants about whether Scripture, truly understood, allowed not only divine and natural law, but also human ordinances to obligate conscience. If violation of these ordinances constituted a sin, then what kind of sin? Venial or mortal, and with what gradations within each category?Footnote 5 Scholars treating binding in conscience as a component part of casuistical reasoning have traced its impact on literary expression and on the conduct of tribunals self-consciously attentive to the demands of conscience, such as the English Court of Equity.Footnote 6 Finally, and most prominently, historians have studied how officials, jurists, and theologians invoked Romans 13:5 to demand obedience to regimes and to particular monarchs. Such appeals, and rebuttals to them, proliferated at moments of rebellion and of interstate or interconfessional competition over the legitimacy of rulers.Footnote 7
Although crucial, such contests over the basic legitimacy of regimes and royal houses were not routine events. And they are not my area of discussion. Instead, my object is to understand how Romans 13:5 operated in the everyday, incessant debates over whether or not this or that quotidian human law bound conscience and implicated the afterlife. Historians of theology have ably mapped contemporaries’ debates about the first and third stages of the process of law binding in conscience. The first stage, or foundation, rested on the answer to the question “why does scripture imply that human law obligates conscience at all?” The third stage concerned the implications of violating law for the soul in the afterlife.
My article innovates by directing further attention to the second, or middle, stage: the categories and distinctions that enabled one to know which human laws obligated conscience under what circumstances. This work drew upon jurists’ concepts for assessing the validity, limits, and meaning of law. There are a number of important implications to reconstructing how theologians, using borrowed legal categories, turned Romans 13:5 into a vital system for governing conduct at the ground level. First, it helps recover the repertoire of available moves among early modern Christians for subjecting conscience to human law or releasing it, with crucial effects in politics and in the endless, routine disputes over obligation in daily life. Second, it furthers understanding of early modern interconfessional borrowing and conflict. Finally, as Section IV suggests, English Protestants’ increasing use of jurists’ categories bore a complicated relationship to the often-discussed problem of “legalism” in religion and society. On the one hand, English casuists, scorning what they saw as an unduly forensic approach to sin among Catholics, strove to be less “legalistic” in reconciling offenders to God even as they became more willing to use jurists’ categories to identify which subset of human laws bound conscience. On the other hand, their reliance on legal concepts may have had the unintended effect over the course of the seventeenth century of undermining the cultural salience of theological casuistry by suggesting that lawyers, even more than divines, offered persuasive answers to conflicted questions of conscience. Seeing Romans 13:5 from the perspective adopted in my article directs attention to the deep and changing intersections of legal and religious thought from the middle sixteenth through the late seventeenth century across the confessional divide.
I. The Basic Framework for Applying Romans 13:5, and the Distinction between Mortal and Venial Sin
Catholics and Protestants disagreed about what happened to offenders who violated human laws that obligated conscience. Protestants treated such transgressions as mortal sins that, if unrepented, destroyed the offender's relationship with God's grace and resulted in the eternal punishment of damnation on top of any penalties imposed by human rulers.Footnote 8 By contrast, Catholics believed that unrepented violations might constitute either mortal or venial sin. The latter damaged but did not destroy the offender's connection to God's grace and brought a term in purgatory. As applied to Romans 13:5, the Catholic distinction between mortal and venial sin created an intricately complicated system. It served as a baseline for understanding the English Protestant framework that grew up in response by absorbing, rejecting, or refashioning ideas.
Catholics working in the Thomist tradition stressed that human precepts did not bind conscience if they were “unjust.” Only just ordinances participated in God's eternal law, which provided the background authority that rulers drew upon in order to obligate conscience.Footnote 9 A law might be unjust in several ways. It might contravene a natural or divine precept, further the ruler's greed or vainglory rather than the common good, exceed the power committed to the legislator, or impose unequal burdens on the community. Should a law be found “just”—no perfunctory matter—then a complicated set of objective and subjective tests determined whether its violation constituted a mortal or merely a venial sin. Clerics argued about the best form of the tests and spent many pages applying them to cases, determining how circumstances altered the implications for the afterlife of offenses from defamation to tax evasion.
The starting point for theologians’ analysis was the inherent gravity of an offense. Violations of divine or natural law commonly was considered mortal sin.Footnote 10 When it came to human laws, a serious transgression was considered mortal sin; a trivial wrong, only venial sin.Footnote 11 Clerics looked to a number of considerations to tell the difference. First, the greater the social ills unleashed by infringement of an ordinance, the stronger the case that transgression would be a mortal sin. The Dominican friar Jerónimo Moreno, for example, considered the case of Spanish New World corregidores who, against regulations, purchased land and conducted business in their districts. They sinned mortally because their wrongs produced grave social misfortunes for vulnerable Indians.Footnote 12 Second, the more severe the punishment imposed by a civil ruler for breach of an ordinance, the more likely that its violation was a mortal sin. The death penalty, for example, almost always signaled a matter grave enough to bind under penalty of mortal sin.Footnote 13
A third indication—fascinating to theologians—came from considering which virtues would be harmed by violations of a precept. Clerics became quite inventive in arguing that workaday ordinances sustained justice, prudence, temperance, fortitude, faith, hope, and charity to such a degree that violation was a grave matter that laid the burden of mortal sin upon the offender. Francisco Suárez could read an edict regulating prices as a guardian of the virtue of justice because the law established the true worth of goods against the manipulations of merchants.Footnote 14 But not every transgression against the virtues was a mortal sin. Duties of gratitude and friendship stood as “counsels of perfection” rather than necessary obligations in the style of the cardinal and theological virtues. As such, violation did not impose mortal guilt.Footnote 15 Meanwhile not all transgressions against the virtues were equally serious. Catholics could scale infringements because they understood the virtues to be arrayed from more to less excellent. Clerics could, at a grosser level, allocate offenses against the virtues to either the category of mortal or venial sin; and, at a finer level, could rank transgressions within each of those categories. As Cardinal Robert Bellarmine explained, the prohibition against murder “obliges more seriously” than the ban against theft. It is “worse to kill than to steal since it is more against charity.”Footnote 16
Not surprisingly, theologians disputed over these rankings. Was robbery a worse sin than fornication? In one view, fornication damaged temperance, whereas robbery harmed justice, a more excellent virtue. Taking a contrary view, fornication undercut life itself and, therefore, stood as worse than robbery.Footnote 17 The connection between transgressions and virtues would have been complex enough if clerics had maintained that each offense undermined a determinant virtue, and had merely disagreed over the nature of the linkages. But to add further complication to the system, theologians maintained that circumstances determined the particular virtues damaged by a violation. The linkage was not invariant, but rather context specific. Defamation, for example, commonly offended justice. But suppose that a person was denigrated at a trial? The public nature of the defamation meant that an onlooker repeating the charge elsewhere did not sin against justice, but only against charity.Footnote 18 Circumstances could also exacerbate or mitigate the gravity of an offense enough to induce reassignment between the categories of mortal and venial sin. A nonviolent theft of negligible property was typically a venial sin. But to repeat the theft or to steal from a poor victim would transform the offense to a mortal sin.Footnote 19 Given the range of potentially relevant circumstances and theologians’ casuistical inventiveness, it was no easy matter to label transgressions as mortal or venial sins based on their damage to the virtues.
Catholics maintained an exception to the general rule that only just laws bound conscience. Unjust laws obligated if their violation would cause a public scandal.Footnote 20 From this strong commitment to prevent public disruption, striking conclusions followed. Catholics must follow laws that endangered their welfare, even their life, if violation would cause a scandal among the unlearned. Suárez held that the prince must obey his own laws—one of the most contentious points in early modern political theory—in order to preclude scandal.Footnote 21
Assessing the gravity of an offense or its propensity to create scandal were “objective” inquiries in a particular sense. They sought to categorize the severity of violations based on their inherent nature, and from a public (rather than individual) perspective. What, then, of the “subjective” element, the varying desires and outlooks of particular men and women? With regard to rulers, theologians minimized subjective perceptions by insisting on the irrelevance of a legislator's opinions about whether violation of his laws brought mortal or venial sin.Footnote 22 This preserved the objective quality of the Catholic inquiry. Laws bound to mortal sin because of the intrinsic gravity of the subject matter and not because of the legislator's intentions, hesitancies, or petulance.
The legislator's desires did matter, however, for a related, but distinguishable, question: Did the ruler wish to impose a “true law” that bound conscience, or a “penal law” or “counsel” that did not? A counsel merely advised, but did not compel, subjects. An injunction to “love God” directed subjects toward virtue, but lacked a censure for violation. A pure penal law regulated a morally indifferent action by establishing a “conditional” penalty (if one did deed X, one suffered punishment Y). This “price” was not a precept; it did not, strictly speaking, ethically require or forbid an action. A common example was the municipal bylaw fining citizens of a town who refused to serve when appointed to local office.Footnote 23 A pure penal law, like a counsel, did not obligate conscience because it lacked an intent to command.Footnote 24 Only the true law, which expressed the legislator's directive or prohibition, bound conscience. It served as the efficient cause by which earthly rulers drew on God's authority to place the subject under a duty whose violation brought sin.Footnote 25 A legislator could address an issue through any of these three ways: through a mere counsel, through a pure penal law that imposed temporal punishment without touching the conscience, or through a true law subjecting violators to both civic sanctions and moral guilt.Footnote 26 The ruler's will, his free choice, mattered greatly as he selected among these three options, but once the ruler decided to promulgate a true law, once he expressed his intention, he could not go further and decide whether his ordinance obligated to mortal or venial sin. The legislator's preferences were irrelevant on this crucial point. The inherent gravity of the precept mattered.Footnote 27
When theologians turned their attention from the creators of law to the followers—or violators—of law, subjective perceptions began to matter greatly. The phrase “subjective perceptions” does not here refer to any mental process accompanying lawbreaking. Understood this broadly, the term would encompass heedlessness, “invincible” (rather than voluntary) ignorance of rules, and all the other venerable excuses that absolved offenders from moral guilt because a culpable mental state had not accompanied the outward act of disobedience to law. Rather, the question, more narrowly, was this: When a wrongdoer consciously broke a valid human law, to what extent did subjective states of mind influence whether mortal, venial, or no sin resulted from the transgression? Clerics devoted most attention to contempt. Fernando Vázquez Menchaca held, in a widely shared opinion, that human law obligated mortal sin if disdain for a superior motivated disobedience.Footnote 28 The subjective orientation of the offender—the contempt—elevated to a mortal sin a transgression of modest gravity that would normally constitute a venial sin or invite only temporal punishment. A nonviolent theft of an inexpensive object was typically a venial sin; the same act done to embarrass a constable became a mortal sin. Francisco Suárez characteristically qualified and elaborated. Offenders acting out of contempt knew that they were violating a law; they intended to break it and created a plan toward that end. Their deliberation, their knowledge, did not, by itself, raise the transgression to mortal sin. Rather, the contempt itself did so. One might knowingly violate a precept without intending disdain toward the maker of the ordinance. Unlike the merely deliberate lawbreaker, the contemptuous lawbreaker, meant to insult and undermine the legislator. This offended against the virtues. To break divine law was to register disdain against God and corrode the virtue of piety. To violate human law was to undermine the virtue of justice, which demanded due esteem for the rulers who drew their authority to legislate from God.Footnote 29 One implication of this framework was that subjects who had a just cause for breaking the law might negate insinuations of contempt and the resulting mortal sin. Juan de Solórzano Pereira explained how offenders as various as feudal vassals, conscripts, and New World Indians could escape the unfair obligations imposed by the officials and priests above them without signaling disdain for God and his human lieutenants.Footnote 30
II. The Implications of English Protestants Rejecting the Notion of Venial Sin
No less than Catholics, English Protestant divines and pamphleteers struggled to make sense of Romans 13:5. What stands out at the outset is how much of the Protestant system parallels its Catholic counterpart. Both confessions agreed that only just laws bound conscience.Footnote 31 Protestants no less than Catholics insisted that rulers might oblige their subjects in conscience only if they intended to create a true law (rather than a mere penal law or counsel),Footnote 32 and they acknowledged that the violation of even an unjust ordinance or a penal law might imperil the soul if the offender acted from contempt or caused public scandal.Footnote 33 But Protestants broke decisively with Catholics in rejecting the concept of venial sin and classifying all transgressions as mortal.Footnote 34 From this, much followed.
To begin with, and surprisingly, the intricate categories that Catholics used to separate venial from mortal sin did not fall away. Protestants recycled them. Both Catholics and Protestants contrasted “grave” precepts with less weighty ones, and both assumed that one way to identify a grave ordinance was to see if following it brought great social benefits and breaking it provoked significant harms. But where Catholics used these tests to distinguish precepts that bound under mortal sin from less serious ones threatening only venial sin, Protestants redeployed them to distinguish precepts that compelled conscience from those that did not.Footnote 35 Meanwhile, Protestants used justice, charity, and the virtues not as a way to differentiate mortal and venial sin, but as a grounds for justifying rulers’ power to bind conscience. Richard Field contended that we must obey human laws under penalty of sin “because the things they command are of the nature that not to perform them is contrary to justice, charity, and the desire we should have to procure the common good.”Footnote 36
If the categories for distinguishing types of sin were turned to new purposes, however, the idea of venial sin did disappear, and this removed some of the scaling available to Catholics. At first glance, Protestants seemed to have created a stark dichotomy between precepts that did not obligate conscience at all and those whose violation constituted a mortal sin that threatened the soul with damnation. They escaped this unwelcome rigidity in a variety of ways. First, in the realm of theology, Protestants mitigated rigorism by grading sins from less to more serious. Although “every sin be of itself mortal,” wrote William Perkins, “yet all are not equally mortal.” There “be sundry steps and degrees, whereby one and the same sin may … become more or less heinous before God.” Like Catholics, Protestants canvassed circumstances that aggravated or mitigated offenses, while insisting that no extenuation downgraded transgressions to “venial.” Sins proceeding from “strong affections of the heart,” for example, appeared less grievous. Serious sins emerged not from momentary loss of control but from presumption and “set purpose,” and they injured more important parties, occurred in public places, and were repeated often enough to harden into habit.Footnote 37
Acknowledging degrees of mortal sin introduced more theological precision but still left Protestants vulnerable to damnation if they broke human laws. And there were so many laws. An offender might commit a grievous mortal sin by violating one ordinance, and a lesser mortal sin by infringing another; however, both transgressions, if unrepented, threatened hell. How could one reduce the grip of law on conscience? Some statutes might be reasonably characterized as “unjust” or merely “penal,” designations that left the conscience free. But many others could not. Here is where jurists’ categories provided a service in reducing the exposure of the soul. Suppose that just laws that commanded obedience in an important matter turned out, on further examination, not to obligate particular persons in specific contexts? Perhaps there were improprieties in the creation of an ordinance, confusions in its wording, divergences between the apparent and actual objects of its regulation, rivalries among overlapping jurisdictions over its meaning, or contraction of its scope as a result of changed circumstances, desuetude, impossibility of performance, or the dozens of other devices that lawyers used to unbind those who were seemingly bound. These matters of legal interpretation introduced a second, and highly significant, flexibility into the Protestant system.
Catholic theologians spent no less time than Protestants thinking about questions of legal interpretation. Disputes about the validity, scope, and meaning of law were critical to how the notion of binding in conscience operated on the ground level as a means of regulating conduct. However, legal interpretation presented an even more pressing problem for Protestants given their exclusive reliance on mortal sin and their theological rigorism that did not allow scaling at the moment of punishment. To ask not just “what are the varieties of sin?” but “what is law?” offered another way to expand or contract the threat of hell. It is worth looking into how the fate of the soul could hang on jurists’ categories: numerous, uncertain, and conflicting.
III. The Centrality of Legal Interpretation
Both Catholics and Protestants made jurists’ categories fundamental to their treatment of Romans 13:5. What does this mean? It does not imply, merely, that they thought that law rather than habit or subjective impression should guide conscience. This latter notion was foundational to early modern reflection about conscience. English Bishop Robert Sanderson, in a widely shared option, contended that conscience could not satisfy itself with “the pretense of a good intention, the authority of examples, or the fallible judgment of others.” The Christian must look for the appropriate “law or rule to govern and direct” the conscience.Footnote 38 But beyond this is something more. Theologians from both denominations used categories drawn largely from the civilian and canonist legal traditions to identify which human laws in what contexts bound the conscience or left it untouched.Footnote 39
The latter—the freeing of conscience from the apparent claims of law—stands out. Theologians used many devices to shield the soul from laws enforced unproblematically by the ruler in temporal tribunals. Examples drawn from cases of conscience, particularly from those over taxation, will demonstrate these devices in action. This section will progress from the grandest, most sweeping interventions down to temporary and context-specific ones. Protestants and Catholics alike accepted the Thomist positions that unjust laws did not obligate the conscience, and that theologians need not be bound by the ruler's assessment of whether a precept was “just.” These commitments allowed for a remarkable degree of interpretive leeway about each of Aquinas’ three classic examples of injustice in lawmaking.
Thomists asserted, first, that an ordinance made by a legislator exceeding his power did not bind conscience. This formula allowed the soul any number of shelters as turbulent conflicts over jurisdiction raged in early modern Europe. Theologians noted that princes, feudal lords, and cities could not levy taxes without the approval of the ruler—unless these subordinates enjoyed the right by custom or tacit delegation or unless they were not really “subordinate” because they exercised full authority over their territory.Footnote 40 These were difficult matters to establish convincingly. Subjects who did know with confidence where political competence began and ended could in good faith think their souls exempt from tax laws of uncertain legality.
Second, Aquinas held that a ruler did not obligate conscience if he furthered his own interests over those of the community. Theologians allowed the prince, a “public person,” to impose levies to support his palace and pageantry in the interests of the common good.Footnote 41 However, he was not to lay taxes for his own convenience. How could subjects tell the difference when they lacked reliable knowledge of the crown's needs and the purpose of its expenditures? Subjects could release their souls from threat with uncharitable readings of their rulers’ motivations.
Third, Thomists contended that no law bound the soul if it inflicted unequal burdens on the community. If a ruler demanded that every village care for its own poor. English theologian Jeremy Taylor observed that some villages would bear greater expenses than others. The law, although charitably intended, violated equity and did not bind conscience. Taylor then went further. Not only must subjects bear relatively equal tax and labor impositions, but there must be “proportion” between the subject's obligations and the “cause of the imposition.” The burden must be no “greater than the evil it intends to remedy, nor the remedy greater than the disease.”Footnote 42
Beyond the ambiguities in the Thomist definitions of unjust law lay other resources for removing a precept's hold over the conscience. These emerged from three key legal concepts: promulgation, consent, and custom. Valid law required sufficient promulgation. Theologians acknowledged that each subject need not receive individual notice of new laws. Promulgation “can arrive but to most persons” through an “outward sign” directed to the community, such as writing, engraving, or public proclamation. This formula allowed for much ambiguity. A Spanish lawyer held that solemn declaration in the royal court or council adequately promulgated a law, recounted Jeremy Taylor, disagreeing. Most jurists required “proclamation in one or more places, according to the greatness of the province or jurisdiction.” But, conceded Taylor, “it can never be agreed how much is enough.” Confusions about the proper method of promulgation were multiplied by Taylor's insistence that a subject “is not bound to seek after the law, but only to see that he does not turn his ear from it.” Laws restrain our natural liberty, and “no man is bound to seek his own fetters.” Under these conditions, subjects could readily shield their souls by doubting the “sufficiency of the promulgation.”Footnote 43
Disagreements over the degree of consent necessary to enact a valid law offered another resource for disobligating the conscience. Some polities allowed a prince to legislate irrespective of popular consent. Others restricted the ruler's authority according to the terms of the original social compact that empowered his ancestors, or required that new laws earn the approval of parliaments or estates. England, for example, required the lords and commons to consent to tax levies in Parliament, but the king could, on his own authority, impose trade duties and levies for military emergencies. The difference between these unilateral crown impositions and a true “tax” requiring parliamentary consent was by no means clear. In the decades before the English Civil War, disputes over which levies required popular consent—pursued in Bate's Case and the conflict over ship money—divided the Stuart kings, parliament, and the political nation. Throughout early modern Europe, persistent conflicts over the scope of rulers’ legislative power and the proper modes of signaling consent afforded subjects opportunities to raise scruples about the power of ordinances over their souls.Footnote 44
Finally, custom, which as a species of law could bind the conscience, brought no more certainty than enacted ordinances. A valid usage emerged when the majority of a community, for the duration of the prescriptive period, voluntarily and openly did certain acts that were reasonable and not inconsistent with divine and natural law. Custom provided an unsteady resource for binding the conscience given the scattered record keeping of early modern communities and the contested nature of some of key terms—what, for example, counted as reasonable, and what, precisely, did divine and natural law demand?Footnote 45
Let us imagine that a law overcame these hurdles and its legitimacy was widely accepted at the moment of enactment. Catholic and Protestant theologians identified numerous ways that such initially valid ordinances might cease binding the conscience over time. The legislator could expressly revoke a law, but there were other possibilities whose ambiguity made them potentially further reaching. A law could stop obligating the conscience—while still remaining valid in the ruler's tribunals—because of changes in the relationship of the ordinance to its social context or to the larger legal landscape of surrounding precepts. This could occur in a number of ways. First, drawing on the jurist's doctrine of desuetude, theologians reasoned that laws consistently neglected by rulers no longer obligated even if the ordinances remained “on the books.” Taylor argued that the legislator's continuing will rather than the formalities of a precept's creation linked a human ordinance to God's eternal law, thereby binding conscience. With the removal of the ruler's resolve to enforce an ordinance, “the law dies” and “the conscience is at ease.”Footnote 46 Theologians assumed that parents could bind the conscience of their dependents as rulers could do for their subjects.Footnote 47 But, as with rulers, the law set boundaries around the extent to which parents could obligate conscience. Suppose a father in a European polity following civil law derived from Roman law asserted the broad paternal power rooted in the Roman patria potestas. Perhaps he claimed ownership of property earned by an unemancipated adult son, or asserted the right to withhold consent to that son's proposed marriage. Was the son bound in conscience to respect the father's demands? To shield himself, the son might turn to a legal treatise listing provisions of Roman law, including much of the patria potestas, that had fallen into disuse in the tribunals of early modern rulers.Footnote 48 Through studied avoidance, rulers had removed their will from portions of Roman law, draining these precepts of life. Fathers could not point to dead law as a justification to bind the conscience of their children.
Second, even if a ruler had not withdrawn his will from an ordinance and condemned it through disuse, his subjects’ consciences might still be freed from obligation if the reason for the law had ceased. An ordinance whose purpose had expired no longer furthered the good of the community—an essential precondition for obliging conscience. Consider a tax imposed to build a bridge. When the bridge was completed, the levy no longer bound conscience.Footnote 49
Third, even if the reason for a statute had not ceased, the soul's obligation to follow the ordinance might be overborn by a contrary custom generated by the people and tacitly accepted by the ruler. Bishop Gaspar de Villarroel's Gobierno Eclesiástico Pacífico (1656) gave the example of a Spanish American custom permitting consumption of dairy products during Lent despite a canonical prohibition. Initiated by soldiers in battle, and justified by scholars aware of the difficulty of observing Lent restrictions in underdeveloped new settlements, the custom grew out of violations of the canonists’ rule that were repeated often enough to release the conscience from obedience.Footnote 50
These various notions offered a way to argue that a law, having been valid for a period of time, no longer bound a given territory. But there was a still more precise strategy for releasing the conscience. Perhaps laws that remained in force for most people most of the time might did not bind specific individuals under particular circumstances. Rulers sometimes excused persons or situations from the reach of an ordinance through interpretation or by providing dispensations.Footnote 51 More intriguingly, clerics, jurists, and subjects also declared exemptions without rulers’ explicit approval. These exemptions could range quite widely because they lacked the limits spelled out in the ruler's interpretations and dispensations, and because a variety of parties with differing interests claimed them.
Both Catholics and Protestant theologians freed subjects’ consciences from the obligation to follow statutes that were impossible to perform. This was an easy case. A harder case arose when a subject could obey a law but only at extraordinary cost, whether of death, grave injury, or significant loss of wealth.Footnote 52 The degree of harm to the subject did not, by itself, determine whether the conscience was bound. Statutes might oblige the subject to face death but not pay a fee. To assess the duties of the conscience, theologians looked to the intent of the legislator and to the balance between the benefit to the commonwealth and the injury to the individual from complying with a law. These two considerations explained why the legislator could compel subjects to brave death by, say, serving in the army or providing medical assistance in a plague. In both instances, the community faced exigent circumstances; and rulers understood the risk that the law imposed on the subject and, further, intended that subjects face death to preserve the commonwealth.
However, this justification carried within it the rationale for disobliging the conscience in other circumstances. The less the state's need and the weaker the ruler's intent that subjects suffer ruin on behalf of the common good, the greater the case for releasing the conscience, particularly as the costs to the subject mounted.Footnote 53 Theologians so inclined could read expansively the doctrines of impossibility of performance and unjustified ruin. To assess “impossibility” and “ruin,” they looked to the powers and circumstances not of the average person but of particular subjects seeking to free their conscience from a law. A tax that some but not all could bear “obliges every subject who is able to obey it, but it does not oblige” the impoverished or those laboring under too many other tributes. A law forbidding beggars to wander in search of relief did not bind the conscience of a pauper whose home village afforded no charity. This individuation potentially allowed the poor and weak generous exemptions.Footnote 54
The doctrines of desuetude, cessation of reason, and contrary custom could also be stretched. Given scant popular knowledge of law enforcement patterns across jurisdictions and over time, subjects interested in claiming desuetude could readily suppose that a ruler suspended a precept's enforcement. An active imagination could also make it easier to prove that the reasons for a statute had ceased. As a first step, one needed to know for what purpose an ordinance existed. Only sometimes did statutes list their goal(s) in the text of the law itself. This allowed interpreters to become creative in finding that a statute served purposes that were no longer relevant. Establishing the implications of customs was an even more flexible business. Theologians allowed that a law's grip over conscience might be relaxed by contrary usages. Creative interpretation could expand the number of such usages. Jurists and villagers frequently disagreed over the content and reach of customs. Many usages contradicted ordinances in part rather than in all particulars, and by implication rather than directly. These uncertainties multiplied the number of customs that potentially could undermine an ordinance and disobligate the conscience. In sum, then, theologians worked with an impressive repertoire of legal moves for shielding conscience from ordinances deemed, variously, intrinsically improper, initially valid but no longer in force, or still operative but inapplicable to particular persons or situations.
Legal categories could, however, in true dialectical fashion, preserve and expand the sway of law over conscience as readily as they could constrain it. If a subject claimed that the reason for a law had ceased, freeing his or her conscience, a skeptical theologian could make several replies. First, had the subject truly discovered “the reason of the laws made by our forefathers?” For “unless the reason be expressed in the law”—and frequently it was not—“our conjectures are very often so wild and far amiss, that they will be very ill measures of conscience.”Footnote 55 Second, because the subject must prove that all reasons for a law, and not merely one, had lost relevance, the theologian could point to additional goals of the ordinance as yet unfulfilled. A ruler who laid a tax for a particular purpose that had been accomplished—for example, the building of a road—could legitimately redirect the revenues to new projects that benefited the realm. And there was never a shortage of new projects. Even more broadly, a law whose reason had ceased could nonetheless bind conscience on the grounds that it cultivated “natural rectitude.” Consider a fast imposed on 2 days of the week for 6 months in order to implore God to remove a plague. Should the plague stop before the end of the 6 months, thereby fulfilling the purpose of the statute, the subject might still be bound to fast for the full period in order to cultivate piety and humility.Footnote 56
Theologians could narrow the Thomist principle that unjust law did not bind conscience by contracting the meaning of “unjust.” Aquinas termed statutes unjust if rulers used them to further their own interests over those of the community. Clerics cut back on this notion by distinguishing between motivations and effects. A lawgiver who commanded out of bad intentions, such as “hatred or private interest, or out of ambition, and from the lust of empire,” was a sinner; but if the end of the ordinance was lawful, the subject's conscience was bound. Taylor observed that even if Henry VIII broke with Rome out of lust and revenge, the foundation of the Church of England benefited the public and therefore obliged conscience.Footnote 57 Bishop Sanderson went further by declaring that if “a law be unjust with respect to the efficient, the final, or the formal cause [respectively, the intent of the lawgiver, promotion of the public good, and equality in laying burdens], yet if … the act to be performed by the subject may be executed by him without any sin of his own, that justice is of itself sufficient to induce an obligation.” Laws binding conscience need not be positively just. They must only avoid the “negative justice” of a sin or a vice.Footnote 58
Theologians’ treatment of proof was perhaps their most powerful tool for keeping conscience bound despite the many doctrines that could be mobilized to release it. So many of the categories that could disobligate the conscience required as a predicate exceedingly contested and hard-to-obtain information. To what extent could early modern subjects accurately know the limits of rulers’ legislative competence, the social effects of law, the motivations behind ordinances, and the requisites of valid promulgation? How could they discover the scope of valid customs among the numerous pretended and exaggerated usages; or the moment when scant enforcement shaded into desuetude; or the point when communal need grew so exigent as to demand the sacrifice of life and fortune? Under such conditions, presumptions and rules of evidence readily determined the duties of conscience.
Theologians gave law's command over conscience the benefit of the doubt. They insisted that those seeking to disobligate conscience not only bore the burden of proof but needed to prove their case by “clear evidence” to the high standard of “moral certainty.” A subject who deceived himself did not “err with a good conscience unless he use[d] all the diligence and ingenuous inquiries that he can.” Ambiguities and gaps in knowledge should be resolved in favor of a challenged law. Suárez, for example, announced that a tax bound conscience only if public notables understood its reason, but he hastened to add that existing tributes presumptively served a valid goal, even if presently unknown. Variants of this move recur throughout both Catholic and Protestant tracts; for example, a theologian offers a doctrine that could disobligate conscience over a wide range of cases and then virtually nullifies it through a presumption. Some clerics went so far as to deny the individual's right to assess whether law bound conscience. Only the community as a whole, or “the wise,” could judge. Release of conscience required that the community vouch for the injustice or invalidity of a law in a collective judgment that was “certain, notorious, and relied upon.”Footnote 59 Only a dogged and remarkably well-informed soul could rebut all the presumptions that would keep the conscience bound under human law.
Jurists’ categories for assessing the validity, scope, and meaning of law were so numerous and so often in conflict that they allowed theologians to build a subtle dialectical system that could as readily tilt toward or away from binding conscience. To see this in action, consider one of the cases of conscience written by churchman and moderate royalist Robert Sanderson during the interregnum. In 1645, the Houses of Lords and Commons, without royal concurrence, established the Directory as the new form of worship in the English church. They abolished the Book of Common Prayer and repealed sections of Edwardian and Elizabethan statutes mandating its use.Footnote 60 Later, they criminalized its use in worship, even in private services. Some royalist ministers, unwilling to recognize such a profound change against the king's wishes and in violation of their oaths to him, continued to adhere to the Book and advocated excommunicating ministers who did not.Footnote 61 Sanderson adopted a middle position. To preserve his living, he gave up the Book. But he did not fully adopt the Directory, instead using “his own modified liturgy.” He assessed the obligations of conscience in a widely circulated 1652 manuscript, published in 1678.Footnote 62
Romans 13 called for subjection to the “higher powers,” but in the early 1650s their identity was in doubt. Sanderson acknowledged that both the exiled king and the parliamentary regime exercising de facto authority placed partial and limited demands on his conscience. As a result, he could not scorn as a null act the 1645 order by the two houses of Parliament; to do so would deny the de facto authority of the current Cromwellian government. But neither could he treat the 1645 act as a full and valid revocation of the Edwardian and Elizabethan statutes commanding use of the Book of Common Prayer; to do so would read out of the English constitution the necessity of royal assent to legislation, a right that the crown would reclaim in the future when practicable. Beset by a fracture among the “higher powers,” Sanderson followed a classic jurist's move. He turned an unprofitable analysis of the global validity or invalidity of a law into a search for implied dispensations under changed circumstances. The Edwardian and Elizabethan statutes, he contended, must be construed “according to the intention of the lawgiver.” Amid the unforeseen turbulence of the Civil War, the “particular intention” of these laws (mandating the use of the Book of Common Prayer) must yield to the “general intention of promoting the common good.” Ministers who persisted in using the Book of Common Prayer against the orders of the Cromwellian regime invited suspension from the pulpit, impoverishment of their dependents, and abandonment of their flock to Puritan or, worse, Anabaptist successors. Under such circumstances, the minister might avail himself of an implied private dispensing power and lay aside the Book of Common Prayer lest he ruin himself to little purpose and deprive the public of his services and talents.Footnote 63
Sanderson's resolution of his case of conscience rested on a number of questionable assumptions and inferences. He invented an implied dispensing power and granted it not only to lesser magistrates but also to individuals. He announced the legislator's intent about a circumstance, a Civil War, unforeseen by King Edward VI, Queen Elizabeth, and their Parliaments. Against his habitual advice that subjects should not “too nicely inquire” into the social implications of law, he abandoned interpretive modesty and allowed ministers to assess the balance of public and private advantages from setting aside an ordinance. Where he commonly insisted that subjects follow “hard and uneasy to be borne” statutes unless they were intrinsically immoral, in this instance he found the threat to the clergy's position and estates so dire as to release their obligation to use the Book of Common Prayer.Footnote 64 Amplifying here, he minimized elsewhere. He predicted that subjects watching their shepherds’ casuistry would fall under little temptation to “take liberty to obey and disobey the laws of their sovereign at their pleasure.”Footnote 65 Loyal to an exiled king while respectful of the Cromwellian regime's de facto authority, Sanderson was able to craft a context-specific solution to his dilemma of conscience by drawing on jurists’ categories of legislator's intent, changed circumstances, and unjustified ruin; by comparing private and public costs and benefits; and by manipulating presumptions and standards of proof.
IV. The Vexing Problem of “Legalism”: The Changing Uses and Implications of Jurists’ Categories among English Protestants
Because principles of legal interpretation gave Protestants and Catholics alike the tools to expand or contract the claims of human law upon conscience, it may be tempting to speak, as many scholars do, of theologians’ “legalism” or of the “juridification” of moral theology.Footnote 66 These terms capture something important. However, in their alluring ambiguity, they invite further reflection upon why jurists’ categories came to occupy so important a place and with what effects. The changing nature of English Protestants’ treatment of Romans 13:5 over the seventeenth century makes these questions particularly salient.
“Legalism” has several meanings and, as a result, a number of different narratives have emerged about its relationship to early modern conscience. Focusing on Protestants’ theories of sin and repentance, some scholars believe that the Reformed rejected a deadening Catholic legalism. Others think that seventeenth century English Protestants who made jurists’ categories more central to their casuistry converged toward the highly “juridified” Catholic moral theology. Understanding the intricate and dialectical use of legal interpretive moves by both confessions can challenge and reshape these accounts.
Let us begin with convergence. Only in the latter sixteenth century did English Protestants begin producing cases of conscience, offering a Reformed counterpart to the centuries-long, highly developed Catholic casuistical tradition. These works did not, by themselves, put jurists’ categories at the heart of Protestant cases of conscience. Historians have long contended that whereas Protestant casuists made ready use of divine and natural law, they lagged behind Catholics, particularly Jesuits, in guiding conscience by the lights of human law and by the use of legal interpretive apparatus generated in the common, canon, and Roman law traditions. Jesuit casuistry was “juristic” in a variety of ways: It likened the confessor to a tribunal balancing potentially conflicting sources of law; it weighed the culpability of wrongs and their accompanying mitigating or exacerbating circumstances so as to guide confessors’ imposition of the right penance; and it treated resolutions of cases of conscience delivered in Rome as a form of precedent.Footnote 67 Lacking these elements, the English Protestant approach seemed less juridical. But against this view, a minority of scholars, Edward Vallance among them, contended that by the middle seventeenth century “Anglican casuists in particular spent much of their works discussing the relationship between temporal laws and the conscience.”Footnote 68 In this limited sense, and outside the context of penance and the confessional, the Protestant tradition moved toward the forensic orientation of their Catholic counterparts. I am sympathetic to this interpretation. But what is needed is a more thoroughgoing explanation of when and why Protestant casuists put jurists’ categories in the foreground, and with what results.
The leading English Protestant casuists of the first third of the seventeenth century, the puritans William Perkins and William Ames, were preoccupied with rebutting the Catholic explanation of why human law bound conscience. Building on Romans 13:5, Spanish Catholic theologian Francisco de Vitoria insisted that human ordinances on things indifferent obligated conscience because “God is no less the cause of a law produced through secondary causes [human legislation] that He is of those which He produces by Himself immediately [divine and natural law].” A ruler's true laws, added Spanish Jesuit Luis de Molina and Cardinal Bellarmine, “cannot be made except by one with authority, and there is no authority except from God.”Footnote 69 Bellarmine's language fused the two main Catholic arguments: the notion of human laws as a secondary cause engaging divine will behind a human precept; and the straightforward gloss of Romans 13 that the duty of obedience to superiors carried with it the obligation in conscience to follow their just laws.Footnote 70 English puritans rejected the first of these Catholic arguments by reducing it to a straw man. Perkins’ influential Discourse of Conscience (1595) misstated the Catholic position by claiming that the church held that human laws “do as truly and properly bind … to mortal and venial sins as God's law itself.”Footnote 71 Later writers—Richard Field, among many others—reduced Perkins’ complicated argument to the incendiary charge that the Pope and Catholic princes “assume unto themselves that which is proper unto God and seek to rule in the conscience.”Footnote 72 But this critique did not take seriously the Catholics’ insistence that God alone, not human rulers, obligated conscience. To use the omnipresent terminology of the Aristotelian four causes, Catholics held that human precepts did not compel conscience in their own right as a “formal cause” that turned the “matter” of the ordinance into something new, into an obligation upon the soul. Rather, precepts only bound conscience mediately as an “efficient cause” that linked the ordinance to the Lord's eternal law, the actual source of the soul's duty. Having attacked a caricature of the Catholic's first argument, English Protestants then embraced a reworded version of their adversary's second claim. Perkins declared that the real reason that rulers’ laws bound conscience was “by virtue of the general commandment of God, which ordains the magistrate's authority.”Footnote 73 Ironically, this position, if looked at uncharitably, appears vulnerable to the same objection that Perkins leveled at the Catholics’ first argument. However much Protestants insisted that God alone bound conscience, in practice, the magistrate rather than the Lord created laws on earth and placed the soul at risk.Footnote 74
The (supposedly) alternative theological account articulated by Perkins and reiterated by Ames and a host of followers did not give much general advice about how to distinguish rulers’ ordinances that obligated conscience from those that did not. This latter problem drew far more attention from leading Anglican casuists of the middle seventeenth century such as Robert Sanderson and Jeremy Taylor. Sanderson and Taylor largely agreed with Perkins and Ames on why human laws bound conscience even as they moved that problem out of the foreground to ask more precisely which human laws bound conscience.Footnote 75
Answering this question invited the use of jurists’ categories already so prevalent in the Catholic, especially Jesuit, tradition. To demonstrate the point, it is important to consider a specific problem: Under what conditions do taxes obligate the conscience? Theologians carefully debated the issue, not least because their resolutions mattered to rulers, estates and parliaments, and hard-pressed subjects. Reading Taylor side by side with Suárez shows how far the Jesuits’ juridical orientation had come to influence Anglican casuistry by the middle seventeenth century. Both authors lead the reader through a checklist of questions whose answers determine whether or not a tax is “just” and binds conscience.Footnote 76 Has the tribute been imposed by a proper authority: a longstanding custom, a sovereign legislator, or a lesser official drawing on delegated power? Was the tax laid to serve a just cause benefiting the public rather than to satisfy the ruler's personal greed? Has the reason for the levy ceased? Did the tribute exceed the cause that justified it? Has it been diverted to other purposes? Did the tribute maintain “distributive proportion” so that the rich paid more than the poor, and so that the vulnerable did not bear too great a burden? Did subjects grant the proper form of consent in political regimes that required it?Footnote 77 Suárez and Taylor set out presumptions to guide the reader in doubtful cases, which, given the nature of the preceding questions, would be most cases. If an official's power to levy a tribute was uncertain, then the subject was not bound in conscience to pay. But if the ruler enjoyed the power to tax, and only the justice of the levy appeared doubtful, then the subject's conscience was obligated. It must be assumed that legitimate rulers have just cause for taxation. Doubts about the justice or proportion of a tribute must be proven, not merely by credible, but also by preponderant evidence. These presumptions, like the indicia of a “just” tax, served as heads of argument under which theologians could assess circumstances that would pivot conclusions this way or that.
What stands out in all of this is the predominance of legal and political analysis over the scriptural exegesis that would have been in the forefront for Perkins and Ames. Suárez and Taylor looked at the purpose of a tribute, but not the various systems of taxation employed in the Old Testament and among the early Christian communities who knew the apostles. They asked subjects to assess the extent of a legislator's power and his motivations rather than to parse Biblical prooftexts. Taylor and Suárez were on the lookout for desuetude and pretextual justifications for taxation; however, they downplayed exhortations to godliness or counsels of perfection. However much the two authors disagreed about the nature of sin and repentance, they shared a juridical orientation when identifying the subset of human laws that bound conscience, an orientation only nascent in Taylor's Protestant predecessors of the early seventeenth century.
Why had the English Protestant tradition evolved in this way? Historians have long remarked on the importance of political and constitutional casuistical writing in Stuart England, particularly in the middle third of the seventeenth century. Controversialists treated the Civil War, the Solemn League and Covenant, the Engagement controversy, and many other public disputes as cases of conscience that implicated Romans 13.Footnote 78 This mass of scribal and published writing advanced a wide array of different conclusions, and varied in how authors mixed legal, scriptural, and historical arguments. But behind this diversity was a commonality: this literature tended to push toward the background Perkins’ and Ames’ preoccupation with why human laws bound conscience in order to focus on which regimes, laws, and oaths obligated conscience.
To answer this latter question, authors applied to new political contexts categories prevalent in the Catholic tradition, ones drawn originally from the Roman and canon law as well as from scholastics. Civil War era distinctions between de jure, de facto, and usurped power; debates over the degree of popular consent necessary for lawmaking; and disputes over the location of sovereignty, the “coordinate” theory of government, and the extent to which prerogative could release the king from the restraints of law all connected up to the classic Thomist principle that the boundaries of authority must be precisely understood, because no ruler exceeding his power could bind conscience.Footnote 79 The juridical categories so useful in measuring the obligations of conscience in political disputes gained a salience and stature that encouraged mid-seventeenth century casuists to apply them, as has been discussed, to taxation, and to many other quotidian legal issues implicating conscience. In ground level uses of Romans 13:5, “impossibility of performance” freed conscience from human law. At the “high” level of constitutional casuistry, royalists cited the principle to release their oath to Charles I when they were tempted to subscribe to the Engagement.Footnote 80 Contrary custom was another notion with simultaneous workaday and elevated applications. As Jeremy Taylor discussed the extent to which usages could negate the hold of positive law over conscience, he digressed to deny that the people in a monarchy could generate customs valid against royal opposition, a contested, immensely important theoretical issue.Footnote 81 Taylor used concepts employed in constitutional casuistry—unequal burdens, inaccurate presumptions, cessation of reason—to determine the obligations of conscience in everyday matters from poor relief and contract formation to recusancy and the game laws.Footnote 82
Because English Protestants travelled a distinctive pathway, they did not simply copy the Catholics’ juridical orientation even as they employed many of the same concepts. Both confessions, for example, developed an intense awareness of jurisdictional interaction, although of different sorts. Let us begin with the Catholics. Suppose that a law binds in conscience and specifies a penalty for violation. Before condemnation by a judge, which might never happen, must offenders convinced of their guilt inflict the penalty upon themselves: perhaps a whipping, a fine, or suspension of the right to vote? Catholic authors such as De Soto and Suárez returned often to this question.Footnote 83 It raised, in their minds, an issue of jurisdictional collaboration and conflict. Early modern Catholics spoke of the conscience as a kind of tribunal, an internal forum operating in the believer's heart and mind and in the confessional. The external forum of the state, meanwhile, inflicted fiscal and corporal punishments and granted or removed privileges. Must individuals, perceiving themselves condemned in the internal forum, and without guidance from the external forum, subject themselves to the kinds of deprivations commonly imposed by the state? Or does self-punishment at the order of the conscience disrespect the state by ignoring its prerogative to inflict or remit temporal discipline? Here, in the problem of sequencing, was an inherent conflict between the jurisdictions of the internal and external tribunals.Footnote 84
English Protestant theologians likewise maintained a distinction between internal and external fora. But the sequencing between these tribunals did not preoccupy them. Something else did. They lived through persistent constitutional debates that pit against one another the basic constituents of English society: the crown, Parliament, cities, and corporations. This sort of jurisdictional rivalry left a mark on their writing about conscience. Mid-seventeenth century divines asked, in the realm of conscience, a question about jurisdictional relationships that political controversialists debated in the temporal sphere: to what extent did corporations, including municipalities, exercise authority in their own right, and to what extent only through delegation from the crown, which empowered and limited them? Anglican theologians went out of their way to subordinate corporations by denying them intrinsic authority over conscience. By way of counterpoint, consider the family. Protestants recognized the father's divine and natural law dominion over household dependents, which carried with it the right to bind conscience.Footnote 85 But whereas fathers drew their authority to oblige their dependents from God, corporations received theirs “not by their own power but by virtue of the royal donation.” Unlike the monarch and the father, corporations stood twice removed from God. The crown served as the conduit of the original divine dominion over conscience, which the monarch delegated, with limitations, to subordinate corporations within the realm.Footnote 86 Sanderson was not reticent about connecting this downward flowing model to his royalist political conclusion that the king reigned as the supreme sovereign power of the three kingdoms of England, Scotland, and Ireland.Footnote 87 If the Catholics’ preoccupation with penance drew their focus to the interaction between the external and internal tribunals, the constitutional agitation of mid-seventeenth-century England directed the attention of Anglican divines to the collaboration and hierarchies of competing secular jurisdictions that could bind conscience.
From one perspective, then, Protestants over the first two thirds of the seventeenth century made jurists’ categories more central in deciding which human laws bound conscience, and, in this limited sense, converged toward Catholic moral theology, without mimicking it. But from another perspective, some scholars have argued that English theologians rejected a stultifying Catholic “legalism.” Henry McAdoo and Thomas Wood claimed that after the Council of Trent, the Church drove apart moral theology “occupied with the question of the legality or illegality of human acts” and ascetic theology “concerned with spiritual progress and holiness.” Moral casuistry calibrating “the minimum that can be required to secure the observance” of precepts made little contribution to training believers in “the way of Christian perfection.” Catholics judged offenses so as to calculate the proper quantum of penance and looked for the opportunity of downgrading mortal sins to merely venial ones: a “legalism,” which, in the eyes of seventeenth century Anglican divines, inevitably led to a “lowering of spiritual tone.” Their solution was to reunite moral and ascetic theology. Proper Anglican casuistical divinity should not only serve as a tribunal demarcating the lawful from the unlawful. It should also lead Christians toward holiness and edification, pointing them toward the requirements for salvation. Central to the Anglican program was a “desire to replace” a “forensic concept of sin” and “a legalist system of penance by a moral concept of repentance” that led, in the long term, to the conversion of character, to regeneration.Footnote 88
In what ways is the McAdoo/Wood position—that the “whole trend of [Anglican] reform was away from legalism”—consistent with the growing use of jurists’ categories?Footnote 89 The question can be better addressed when we realize that the application of Romans 13:5 to human law involved three different layers of analysis. Each layer mixed theological and legal reasoning toward different ends; each partook of distinct sorts of “legalism.” First, and at the foundation, was the problem of why human law obligated conscience at all. Some Catholic and Protestant thinkers doubted that it did.Footnote 90 As has been discussed, early modern Catholic Thomists and English Protestants, particularly such puritan luminaries as Perkins and Ames, set forth an array of arguments for why rulers’ ordinances put the soul at risk.Footnote 91 Although Biblical prooftexts occupied the foreground here, there was much “legalism” insofar as divines analyzed separately the implications of different kinds of law, from Jesus's injunctions; Old Testament moral, judicial, and ceremonial precepts; and natural law, to the ius gentium (law of nations), human ordinances common to multiple societies, and statutes particular to one ruler's domain. Second, once the case for human law's grip on conscience had been made, both Catholics and Protestants drew on jurists’ categories to ascertain which ordinances bound, and which did not. Third and finally, if a Christian violated a human law deemed to be obligating conscience, what followed? How was the believer to be reconciled with God? According to McAdoo and Wood, Catholics “legalistically” characterized offenses as either mortal or venial sins, and calculated penance, whereas Anglicans treated the transgression not in the manner of a tribunal but as a prompt for the regeneration of the spirit.
“Legalism” in the context of Romans 13:5, then, was many things not a single one: neither a particular mode of reasoning, nor a given strategy for governing behavior, nor an affinity for juristic over theological authorities. Distinguishing among the three stages of analysis reveals that casuists might become more “legalistic” along one dimension, and less so in another. The various dimensions of legalism need not move in tandem, and they did not for mid-seventeenth-century English Protestants. Leading Anglican casuists simultaneously became more legalistic, more willing to deploy jurists’ categories, when identifying the subset of human laws imperiling the soul; however, they turned out to be less legalistic, less likely to adopt a forensic approach to sin, when restoring offenders to fellowship with God.
Contrasting the different meanings and uses of legalism puts into a new light a frequently discussed feature of English casuistry—the decline after 1700 of its cultural centrality. The eighteenth century heard less discussion of law binding in conscience. Scholars have offered numerous explanations for the reduced presence of theologians’ cases of conscience in English life. In place of casuistry's careful balancing of multiple sources of scriptural, natural, and legal authority, late seventeenth century and eighteenth century intellectuals increasingly argued that moral choice should rest on self-governed rationality and should be validated more by “sincerity” than by fidelity to rules. This left divines as promoters of piety and good character rather than as arbiters of conflicted cases of justice. Moral philosophers, political theorists, and lawyers increasingly claimed primacy over theologians in the work of determining permissible conduct and of resolving ethical dilemmas in the “secular” realms of statecraft, economics, litigation, and family life.Footnote 92 This account could be read as a tale of disciplinary competition in which theologians lost out to rivals, especially lawyers, who offered more persuasive guidance for conscience.
The story is more complicated, however. Jurists’ categories were not only external to English Protestant divines’ cases of conscience, an alternative system of analysis. They were also internal to it, a set of tools for determining which human laws bound conscience in what contexts. A discourse in which theologians manipulated jurists’ concepts in order to assess the duty that conscience owed law inadvertently suggested a question to readers: might lawyers be better suited to using the tools native to their craft, the ones that they themselves had forged? Despite the minister-casuists’ intentions, did the principles of legal interpretation so important to them for mitigating their theological rigorism facilitate the greater prominence of their disciplinary rivals, the lawyers? Categories such as desuetude and cessation of reason, which reduced the soul's exposure to damnation, began in mercy but ended in prophesy. The more divines used these jurists’ notions for thinking about obsolescence and the progressive weakening of the reason for a thing, the more these categories came to apply to theological casuistry itself and helped bring about its diminished future.
This ironic relationship between jurists’ categories and casuistry is revealed only from a certain perspective. The irony would not stand out to historians of theology interested in the scriptural foundations of the claim that human law obligates conscience. Nor would it be conspicuous to scholars charting early modern typologies of mortal and venial sins. Rather, the perspective adopted in this article—the attempt to reconstruct how borrowed jurists’ categories helped turn Romans 13:5 into a subtle, dialectical system for governing conduct—reveals how legal notions unwittingly and in the long run drained life from the intellectual system they were recruited to serve.
