The suggestion that the Elizabethan polity might best be regarded as a “monarchical republic” has proven one of the most fecund recent interventions in Elizabethan studies. The notion was first canvassed by Patrick Collinson in relation to a series of expedients devised by Lord Burghley and his associates to avert the worst effects of what, in an equally resonant phrase, Collinson called “the Elizabethan exclusion crisis.”Footnote 1 Collinson's “monarchical republic” rapidly became associated with two other historiographical trends. First came the attempt to recuperate, from the thought and practice of Elizabethan and early Stuart England, a distinctively civic republican mode of discourse.Footnote 2 Second was a move to reorganize elements in the English polity that had hitherto been seen in the localist model of English government as weaknesses, sources of actual or potential breakdown between the center and the localities, under the rubric of the (both local and national) state. In this way institutions and offices grounded on royal authority could be seen integrating the interests, hierarchies, and, indeed, the conflicts that made up local society into the workings of something that certain commentators have started to portray as a remarkably effective participatory state, an entity to which contemporaries often referred as the “commonwealth.”Footnote 3
At times, Collinson was only too ready to embrace, and even to claim as his own, both these trends. At others, he retreated back into the dynamics of the exclusion crisis, dwelling on the very particular constitutional and institutional expedients developed by Burghley and others to stave off that ultimate threat, the accession of a popish queen. If we were to pursue that line of inquiry and assume that, whatever else we might mean by the phrase “monarchical republic,” its primary referent must be the various interregnum schemes designed by the circles around Lord Burghley, we might then take whatever arguments were deployed in favor of such schemes as the primary sources for reconstructing the “ideology of monarchical republicanism.” But up until now anyone adopting that approach was likely to find themselves frustrated by the decidedly laconic nature of the crucial sources. After all, proposals to perpetuate the Elizabethan state into the period after Elizabeth's death, and thus to enable the current establishment to settle the succession in its own interest, could work only if the queen's councilors could persuade her to accept those proposals. But whenever the structuring assumptions that produced such plans were most coherently stated, the queen tended to react very badly indeed. On this basis, elsewhere I have described “monarchical republicanism” as the ideology that dared not speak its name.Footnote 4 And so, for obvious reasons, when, in the winter of 1584–85, the likes of Burghley or Thomas Digges were making their pitch to the queen, they restricted themselves to prudential, practical arguments, grounded in “policy” rather than in first principles or grand statements of purpose. Rather than formal exercises in “political thought,” elaborated pieces of argument, based on explicitly stated first premises, the resulting documents were exercises in political persuasion, policy documents and memoranda, typically Cecilian attempts to weigh the pros and cons in ways that would induce the queen to act.Footnote 5 Consequently, when Collinson went in search of the informing principles of “monarchical republicanism,” he found them not in 1584–85, but in the debates in the 1572 parliament about the fate of Mary Stuart, from which, in his pathbreaking London thesis, Gerald Bowler extracted the outlines of various sorts of resistance theory.Footnote 6
However, of late has come to light a group of sources that directly address the political and polemical conjuncture that called forth the interregnum scheme, and, in one instance, seeks to justify that very scheme. These texts thus provide proof positive that, even after the failure of 1584–85 to turn talk about an interregnum into formal legislative proposals, let alone enacted law, there were elements somewhere near the center of power who retained a certain fondness for some sort of interregnum scheme as the best means to defuse the issue of the succession in the event of the queen's sudden death. At the same time, because they represent far more elaborated and discursive discussions of the crucial issues, these same texts enable us for the first time, I would argue, to recuperate the structuring assumptions, indeed the “political thought,” underlying Collinson's “monarchical republic.”
The two texts in question took the form of replies to the 1584 edition of the tract by John Leslie, bishop of Ross, on the Stuart claim. The first originated as a reply to a Latin edition of 1580, addressed, it was claimed, “to all the estates in Europe.”Footnote 7 Two copies of that first response to Leslie's book survive: one in the Bodleian and the other in the Northamptonshire Record Office.Footnote 8 A later version, somewhat redacted and rearranged in order to serve as a refutation of the 1584 English edition of Leslie's tract, is to be found in London, British Library, Stowe MS 273. Leslie's screed had first been published in 1569.Footnote 9 Both versions of the response sought to use the course of events after his tract's first appearance—from the revolt of the northern earls through the pope's excommunication of the queen to the Ridolfi conspiracy—to tar the bishop of Ross's tract with the brush of popish conspiracy and rebellion, a trick that the later version sought to repeat on the back of the recently uncovered, and even more recently publicized, Throckmorton conspiracy.Footnote 10
Our second text, the original, authorial version of which is in Cambridge University Library (CUL Additional MS 9212), survives in multiple copies under a seemingly anodyne title: “Certain errors upon the statute made 25 Edward II anno domini 1350 of children born beyond sea, conceived by Sergeant Brown, confuted by Mr Sergeant Fairfax in manner of dialogue.” However, since the arguments of Sergeant Brown, refuted by Sergeant Fairfax, constitute a series of direct quotations from Leslie's tract, the contents turn out to be anything but anodyne.Footnote 11
That these texts take the form of replies to Leslie's tract is doubly significant because, as I argued in my Ford lectures of 2011, the summer of 1584 saw a concerted Catholic propaganda push, centered on three tracts: Leicester's commonwealth; William Allen's reply to Burghley's The execution of justice in England; and a reprint of John Leslie, the bishop of Ross's defense of Mary Stuart's right to the English throne should Elizabeth die without an heir of her body.Footnote 12 These were all published in Rouen within months, if not weeks, of one another, two of them on a press controlled by Robert Parsons. Taken together, these tracts constitute a propaganda campaign to support a scheme to associate Mary with her son James in the government of Scotland.Footnote 13 The Elizabethan regime's recourse, over the autumn and winter of 1584–85, first to the bond of association, then to the interregnum scheme and finally to the anti-Catholic and anti-Marian legislation of 1585, was itself a direct response to the association scheme and the propaganda offensive that attended it.Footnote 14
In attacking Leslie's case for Mary, both responses defended the notion that the crown-in-parliament could settle the succession. As Alan Cromartie explains, this was a widespread opinion, if only because, since “Elizabeth was Henry's bastard (declared so by a protestant archbishop),” her “claim depended utterly on Henry's will, which in its turn depended on the last succession statute. In consequence, her supporters were committed to the view that England's monarch could be determined by a parliament.” Precisely the same logic, of course, committed the Stuarts, both mother and son, to the opposite position; hence the debate that is the subject of this paper.Footnote 15 Our second tract held, in addition, that in the event of the monarch's death without a clear successor, the aristocratic and democratic elements in a mixed monarchy could reconstitute the monarchical bit. That the two tracts did all this while replying to Ross relates both to the interregnum scheme of 1584–85, although the fact that neither mentions any attempt to give that scheme legislative form surely dates them after the failure of Digges' and Burghley's proposals in December–January of 1584–85.
Both texts were anonymous and neither was printed. Given the multiple copies that survive of both, it seems likely that they circulated fairly widely in manuscript.Footnote 16 These, then, were in some sense “private,” certainly anonymous, and wholly unofficial documents. The first has been confidently attributed to Robert Glover, Somerset herald and client of both Burghley and Walsingham.Footnote 17 Both Christopher Brooks and Sir John Baker have attributed the Cambridge manuscript to William Fleetwood,Footnote 18 who, as well as being identified by Michael Graves as (along with Thomas Norton) one of Burghley's leading “parliamentary men of business,” was also a client of the earl of Leicester, ridiculed in Leicester's commonwealth as the earl's “mad recorder” [of London].Footnote 19 Moreover, the copy of our first text in the Northamptonshire Record Office has some admittedly rather brief marginalia in what has been identified as the hand of Sir Walter Mildmay.Footnote 20 Thus, if Glover and Fleetwood were the authors (and even, perhaps, if they were not), these treatises would seem to represent uniquely elaborated justifications for the notion of an interregnum, emanating from circles close to the very center of the Elizabethan regime. As such, they constitute something as close to “the political thought of the monarchical republic” as we are likely to get. They thus provide us with an opportunity not only to gauge, once and for all, just how “republican” the “monarchical republic of queen Elizabeth I” really was, but also to evaluate the vision of the English polity articulated by central elements in the Elizabethan regime at a point when the very existence of that regime seemed to be at serious risk.
THE “BARBAROUS TYRANNY” OF “FOREIGN GOVERNMENT” V. THE “DOMINIUM POLITICUM ET REGALE” OF A “NATURAL ENGLISH PRINCE”
Both texts were organized around rival visions of English history and law and, thus, of the English monarchical state. The bishop of Ross was pictured as a proponent of indefeasible hereditary right. His vision of English political society was portrayed as centered on the person and prerogatives of the monarch, both of which he located above the dictates of mere English law.Footnote 21 He made such claims not so much in order to maximize the absolute powers and prerogatives of the crown as to free the succession, and the rights of various hereditary claimants, from the limitations allegedly placed upon them by the laws of England—laws Leslie equated exclusively with the common law, which, in turn, he characterized as unwritten and based on general custom. Throughout his book, Leslie sought to appeal from the municipal laws of England to the laws of nature and of nations, which he took to determine questions of succession in every monarchical state and which he also believed underwrote the (on his account) universal principles of free hereditary succession and primogeniture upon which Mary's claim to the English crown was based.
On this basis, our two tracts depicted Ross as the defender of an essentially foreign and tyrannical absolutism. In order to do so, they started where he started: with the laws of nature and of nations. Our first author claimed that “the law of nature” served to imprint “only general grounds and impressions in the mind as well of beasts as of man” and therefore “descendeth not to particular cases, which make the principal part of all positive laws.” Accordingly, it was “no rule to guide commonwealths.” Even the law of nations was subject to similar objections, since it was “common to all men and teacheth general grounds for the preservation of the society of all mankind.” Therefore the law of nations could not descend to the detailed ordering of particular political societies. Holding only “that all commonwealths, for the preservation of mankind, require some form of government,” the law of nations could give no further guidance as to what form of government to adopt.Footnote 22 Of the law of God, our second author asserted that it “bindeth not all nations to have kings, much less bindeth them to some forms of succession. If God gave any form either it is general or special. The special may seem only to apply to the Jews.” And even there divine injunction was of no use in deciding the current dispute. “For 450 years, until the time of Samuel the prophet,” “judges were, by God's policy, given to them. Kings, as it were, by their own. Therefore judges or kings are officers both by the word of God approved. Sometime kings were appointed by God's own mouth, sometime by descent.”Footnote 23 Since by the law of nations “it appeareth that every several crown hath his several law,” “how,” Ross was asked, “do you then refer us to the nations?”Footnote 24 As our second author concluded, “God now speaketh to us in our law (when it striveth not with his) and therefore we must resort thereunto to know his will.”Footnote 25
On this basis, both texts accused Ross of trying to remove the succession from the only legal context in which it could be adjudicated, and of doing so for the most sinister of motives.Footnote 26 “By laboring to draw the title of the crown out of the list and limits of our common laws” Ross was trying “to bring the right to be in no body and so be to catch as catch may.” “Without law there can be no right and, if our common law guide not the right, and we have no other law to direct it, nor no other judge to determine it” then it “must be determined by the sword.” In such circumstances, “the realm must, of force, run to confusion and one brother embrue himself in another's blood,” “which will be the joy of our enemies and the utter desolation of our common wealth.” It was no surprise, therefore, that an Elizabethan statute had “deemed and doomed” the opinion “that the crown of this realm is not to be examined, disposed and ordered by the rules of the common laws of the realm” to be no “less than high treason.”Footnote 27
Expounding on the origins of political society, our second author argued that
after the people, by choice of a king, had framed a kingdom, they, with their kings, successively consented to customs and laws for the conservation of the political body, unto which both king and subjects, as to a rule, most indifferent and void of all humane affection, humbled themselves, the king being otherwise exempted from all subjection to any man's voice or authority. Therefore Bracton hath these sentences . . . “the king ought not to be under man but God and the law.” “Let the king attribute to the law that which the law attributeth to him, power and dominion.” “The law maketh the king.” “The king can do nothing but the law.” “The law is the highest inheritance the king hath, for to the law the king himself and all his subjects stand bound and if the law were not there should be no king, nor inheritance.”Footnote 28
Aware that he was treading on some very thin ice here, our author hastily assured his readers, “these are not my words, but the books,” and took refuge in a host of legal authorities, chiefly Fortescue and Bracton (again). He then proceeded to cite the statue 19 Henry 6 and Justice Wilby before concluding that “these authorities prove flatly that the law maketh the king and are to him made a rule, as to subjects.”Footnote 29
Nor did our author restrict himself to merely English examples and authorities. He cited Tacitus and Aristotle to prove that early Rome was governed by “laws whereto the kings themselves were subject, no less than the citizens,” that the “Lacedaemonian kings ruled not by power but by law only,” and that the “prerogative of being loose from laws in Rome was first granted to Augustus, whereby it is evident that all these prerogatives are iure gentium, because they have not been always, from the beginning, and in all nations, allowed.”Footnote 30 But despite that, “the authors of the Roman laws always numbered prerogatives among laws, some with an addition calling them beneficia legum, the benefits of laws, ergo given by laws and so not above laws, but as one law may be above another.”Footnote 31 He also cited the contention of “Theodosius and Valentinian, emperors” that their own “authority” itself “dependeth altogether upon the authority of laws . . . By the decretals princes are tied with their own laws.”Footnote 32 “Ferault, writing to king Louis XII of the twenty principal prerogatives of the crown of France,” “termeth them laws of the kingdom of France . . . Of the rest . . . the authors (of the statute now in question) call the prerogative given to the king's children the law of the crown.”Footnote 33
What was true even of imperial Rome and of France was even more so of England. Since “the crown of England is imperial in itself,” our second author argued, there was no reason to derive the prerogatives of the crown “from the pope or emperor,” but only “either from the law or usurpation.”Footnote 34 Citing both Bracton and Stanford, our author plumped for the law. “You set the cart before the horse,” our author told Ross, “for the king and the crown were before they received all the prerogatives by you recited, therefore they made not the crown, neither hath the crown yet received them all so absolutely, as you do give out.”Footnote 35 Our first author concurred, maintaining pithily that “our princes are not soluti legibus, but tied and bound by their laws, and that England is not governed by such a barbarous tyranny as he would bring upon us by his foreign [Carte MS 105 has “Antichristian”] government.”Footnote 36 Our second author cited the inevitable passages in which Sir John Fortescue outlined his famous distinction between “political” and merely “regal” modes of rule.Footnote 37 The aim here was to establish the starkest of contrasts between, on the one hand, the style of rule being ascribed to Ross, which both our authors maintained was all that England could expect from Mary Stuart, and, on the other, traditional English governance “Wherefore let us pray to God that we may long continue under a natural English prince and be delivered from an unnatural stranger who, instead of English laws, will bring upon us Machiavel's principles and maxims, or a more monstrous government than Machiavel's is.”Footnote 38
“ONE GOD, ONE KING, ONE LEGIANCE”
Both our texts were suffused with a strong dose of English nationalism. Indeed, the integrity of national monarchies, and, accordingly, the true relations between the sovereign states of England and Scotland, was yet another thing that our authors claimed that Ross simply did not understand. Not only did he want to saddle England with a foreign-born ruler, but he was also peddling a set of claims about the feudal basis of kingship that undermined the national integrity of both England and Scotland. Confronted by the contention that Mary was banned from the crown of England by English law because she was foreign born, Leslie retorted that, since Mary had been born in Scotland and the kings of Scotland had once done homage to the kings of England, Mary was not foreign at all, since those acts of homage meant that Scotland belonged historically to the allegiance of England. Both our authors poured scorn on this argument.
Things would have reached a pretty pass, observed our first author, if Mary's right to the English throne could only be established by subjugating the crown of Scotland to that of England. How many Scots, he wondered, would think that a fair exchange? “Who knoweth not,” he asked, “that in all wars they [the Scots] have been ransomed as enemies not executed as rebels?”Footnote 39 Homage and legiance were quite separate things, our second author explained; indeed, legiance had a logical, chronological, almost an ontological priority over homage. Whereas “this legiance hath been between the prince and subjects from the beginning, by the law of nations,” and was thus of the essence of political society, mere “homage is a later invention, a term, as it were, more of good neighborhood than of subjection.” As “the gravest writers” agreed, the term had first been “invented in France,” during the reign of “king Capet,” and then “from thence transplanted to other regions.”Footnote 40 Accordingly, homage done between monarch and monarch created no permanently hierarchical relationship, since “many princes hold of mere gentlemen by homage, which were too much absurd if homage require legiance and subjection.”Footnote 41 The homage once done by the kings of Scotland to those of England was thus not, our first author maintained, “grounded upon our laws, neither do our laws take notice thereof . . . but it was gotten by the sword, kept by the sword and by the sword must be recovered again or never had.”Footnote 42 Our second author agreed.Footnote 43
As for the Scots, they could never be convinced “to consent in heart that their princess and our prince should join in marriage, only lest an alien (as they thought, though a cousin and chief sovereign indeed) might happen to reign over them.”Footnote 44 Indeed, the resulting Anglo-Scottish jars had ensured that both Mary's “father and mother were never at the king of England's allegiance, but mortal enemies to the realm, even ‘til their death and at their death.”Footnote 45 Thus, our second author asked Ross, “with what art you can frame, in one figure, Scotland to stand both within the legiance of the crown of England and within the legiance of the crown of Scotland, when there is, in every kingdom, one God, one king, and one legiance?” Since “the place of legiance is bounded within the limits and bounds of every prince's territories and dominion,” “to set Scotland within the legiance of England” was tantamount to saying that “Scotland is one of the queen's majesty's dominions and territories, where she hath mere jurisdiction . . . and to whom Scots, as to their chief sovereign, in default of justice, may appeal.” But however much he might “affirm” that to be the case, Ross would surely have a hard job persuading the “Scots to confess legiance, which deny homage.”Footnote 46
We have here, therefore, a vision of a world made up of sovereign, or, as these texts put it, “imperial,” monarchical states, each with its own “dominion or territories” and each blessed “with one God, one king and one legiance.” Between those autonomous entities, disputes over precedence or power were decided by the sword, not adjudicated by higher judicial authority or predetermined by relationships like homage.
These states represented distinct cultural as well as jural entities, which bred infrangible solidarities and loyalties between and among both rulers and ruled, the sum totality of which provided, in the lexicon of our second author, the true meaning of “legiance.” Locally generated attachments and identities of this sort applied even to the rulers of the greatest multiple monarchies, like the emperor Charles V, whose “affection,” despite his being the king of Spain, had always remained “Allemagne,” “because he was born among them. The case and affection is changed in King Philip, for that he is born in Spain.”Footnote 47 Yet Leslie termed “the birthplace but an accidental and external thing, which all wise men confess to work above all human power.”Footnote 48
THE RULE OF LAW AND “THE COMMON LAW MIND”
As our authors insisted that the common laws of the realm made the king, defined his prerogatives, and guided the succession, we might ask ourselves just what sort of law they took this to be. Both rejected out of hand Ross's assertion that the common law was merely an unwritten law of general custom. Our second author cited Fortescue (again) to prove that “of customs, statutes and of laws of nature, the laws of the realm have their beginning and not one word more of the description of general custom in all that book.”Footnote 49 He then turned to Christopher St. Germain's Doctor and Student (1518), which identified “six principal cornerstones” underpinning “the laws of the realm.” These were “God's law, reason, otherwise called the law of nature, general customs, particular customs, maxims and acts of parliament.” To these our author added “the martial, civil and canon laws,” arguing that, just as “laws brought from foreign countries to Rome by special commissioners obtained afterward the name of Roman laws” so “in like manner” in England “so many” of the laws “by me recited as are current and naturalizated within this realm deserve the name of laws of the realm and to be the prince's laws, for there is no court, no law, no jurisdiction in England but only the queen's majesty's.”Footnote 50
Both our authors could be dismissive of Ross's appeals to the civil law, and never more so than in response to his claim that since the Latin word liberi meant more than the immediate offspring of the king, the term enfants du roi should be similarly extended.Footnote 51 But, by the same token, both our authors could also use the civil law without embarrassment to make their own case on precisely this point, citing the tenet “they are termed strange, which cannot be in the father's power, as the sons of his daughter,” “as if the king of England should marry his daughter to the Scottish king, the child of his daughter by the Scottish king should not be in the power of the king of England but in the power of the Scottish king, and kin to his father but alienus, a stranger, to the king of England, which assertion is grounded upon Justinian.”Footnote 52 “By this rule,” Ross was informed, “you must confess a king of England's daughter, delivered in marriage to a king of Scots, is now incorporate Scottish and that her child is a complete Scot and no whit English.”Footnote 53 But having started out citing the civil law, our author ended by appealing directly to “nature,” which established that “the knot be greater between the wife and the husband than between the father and the daughter,” “the degree between the son and the father be nearer and the conjunction greater than between the nephew and the grandfather,” and that “the birth place hath an operation in all creatures.”Footnote 54
Thus, having dismissed the direct pertinence of the laws of God, of nature, and of nations to the question in hand, neither of our authors was above using all of the above to shore up his own view of the matter. Our first author asserted that the “law of nature and of nations . . . both seeking the preservation and benefit of mankind by good and quiet government, would utterly reject foreign government as most repugnant to nature, to reason and to the good of the commonwealth.” Having cited the current examples of Naples and Flanders, which respectively “groaneth” and “moaneth under the tyranny of foreign rule,” he concluded that “reason teacheth and experience proveth that a foreign prince, instead of food, giveth poison and in place of bread, a scorpion.”Footnote 55 Moreover, “God giveth his people an express commandment to choose them a king of their own brethren and blood.” “Thus you see both the law of God and nature so far from defending Ross’ foreign government that they both impugn it, the one in meaning, the other in express words.”Footnote 56
Leslie cited a number of common-law maxims and practices that shaped private inheritances but did not apply to the crown in order to justify his wider claim that “no maxim or rule of the law can extend to or bind the king or the crown, unless the same be specially mentioned therein.”Footnote 57 In response, our authors cited legal maxims—for instance, “that inheritance descendeth and not ascendeth, that a bastard is the son of the people and not capable of heritage”—of such blinding obviousness that they were never challenged in the courts, but which all admitted did indeed bind the crown. To these our second author added a series of more technical legal rules and regulations from the common law, concluding triumphantly that “these few, out of a great number of authorities, prove sufficiently that the rules of the law deal with the king and the crown.”Footnote 58
While our first author agreed with Ross that the maxims that he had cited did not bind the crown, he maintained that this was so only because “the commonwealth should be destroyed, the crown impoverished and the king not able to maintain the majesty of a prince, if, in these cases, the crown should follow the course of the common laws”—all of which led our author to the general principle that “our law, and every law grounded upon reason, hath ever a special regard to the preservation of the commonwealth. But, where the commonwealth is not prejudiced, the king and the crown are bound by the maxims of our law and guided and directed by the common course of law, though they be not named therein.” And so our author triumphantly concluded that only when “Ross can prove that the commonwealth is in danger to be ruined if strange government be barred” could he be said to have won the argument. But, since the contrary was true, thence “ensueth a contrary conclusion, viz. that, though the queen of Scots were, by the common course of law, undoubted heir to the crown in respect of nearness of blood, yet, because her foreign government must needs tend to the overthrow of the commonwealth and realm, she is to be barred by the same reason that leadeth these cases above rehearsed against the course of the common laws.”Footnote 59
Thus both our authors sought to get Ross coming and going, using both the technicalities of common and statute law and general maxims culled from the laws of God, nature, and nations, as well as those extrapolated out of the common law itself, to prove that Mary was in fact barred from the succession to the throne because she had been born abroad of parents out of the allegiance to the English crown.
HISTORY
Leslie had used repeated appeals to English history to demonstrate that, as a matter of fact, various claimants of royal blood but foreign born had become kings and queens of England. Both our authors used the very examples cited by Leslie to prove the precise opposite. Thus, on their account, Edmund the Confessor's attempt to make Edgar Aetheling his heir had failed “partly because of his [Edgar's] youth and his folly . . . and partly (as it is to be presumed) because of his foreign birth.”Footnote 60 The fate of Richard I's nephew, Arthur of Brittany, proved the same point.Footnote 61 Indeed, the very fact that King Richard had “meant” “to have dealt with his state for the ennoblement of Arthur duke of Brittany” proved that Arthur did not already enjoy an untrammeled claim, for “in truth where there is an undoubted right, what needeth any such establishment?”Footnote 62 Our second author made the same point about Arthur before asking “what became of it? Even such a succession as the Lady Jane had by like institution of king Edward VI.”Footnote 63
When Leslie cited King Stephen as a claimant born abroad who had been advanced legitimately to the throne of England, our authors countered that Henry I had twice “pronounced” his daughter Maud his “heir apparent and confirmed his fact by parliament, with the oaths of all the nobility and namely with the oath of Stephen himself.”Footnote 64 As for Stephen, “notwithstanding that he were of William the Conqueror's race, yet he had no right to the crown by descent, but held it either by usurpation . . . or by election of the people, or by color of King Henry I's testament.”Footnote 65
A deal was done between Stephen and Maud's son, the future Henry II, to make Henry Stephen's heir, despite the fact that Stephen's mother, Maud, was still alive. Our first author attributed that outcome to the fact that “the realm would not obey a woman of so intolerable pride and insolency.”Footnote 66 This again implied the capacity of “the realm” to divert the succession according to criteria other than strict hereditary right. Thus, our first author concluded, Henry II “came not to the crown by descent, but by parliament.” First, because his grandfather Henry I had twice in a parliament declared Maud and her children his heirs, and second because “when the peace was concluded between this Henry and king Stephen, by a full and whole consent of all the states of the realm, [Henry] was declared heir apparent to the crown.”Footnote 67
English practice in this respect was, our authors alleged, entirely in line with that of other polities. Our first author claimed that the Salic law was designed only for the “avoiding of strange government.”Footnote 68 The contest between Philip Valois and Edward III over the French crown had been “solemnly debated before the state of France and the crown set upon Philip's head, whether by right or wrong I am not now to dispute.” The same thing had happened “in Spain . . . in the controversy between divers competitors for the crown of Aragon, after the death of king Martin.” When Robert duke of Normandy and his brother Henry I had been “contending for the crown of this realm . . . by dent of sword,” they had been “nevertheless contented (to avoid slaughter of their people and the destruction of their country) to submit their controversy to the examination and determination of their nobility . . . So also did Richard, duke of York plead his title to the crown in open parliament, where, after long debating, he was declared successor after King Henry VI's death.”Footnote 69 As we shall see, this last was an example of which both our authors made much.Footnote 70
These historical precedents were then directly applied to the case of Mary Queen of Scots. When Leslie's cited “the elder brother,” Edward Crouchback's having been passed over so that “the younger brother” could be “crowned king,” our first author crowed that “you see here an example, produced by himself . . . according whereunto the younger line may now be accepted and the elder rejected.” Noting that “the same authority that was in the king and his estate then” was in “her majesty and her estate now,” our author concluded with some glee that, by Ross's “own example,” Mary's claim, be it never so good in purely hereditary terms, “might . . . upon urgent causes, be cut off and extinguished, if it so pleased the queen's majesty and her estate.” Moreover, if and when that happened, Mary would have “no more wrong offered her than the said Edmund had.”Footnote 71
Similarly, since “the queen of Scot's title” was “in truth” “as good now as king Stephen's was, before he was a possessed king, and shall be no better till it be supplied as his was, which I hope shall be never,” the example even of King Stephen told against Mary.Footnote 72 Only when Mary's “defects shall be supplied as King Stephen's and King Henry II's were”—that is, by parliamentary compact, composition, or election, and then by actual possession of the crown— “will we acknowledge her to be queen, as we do them to be kings, but, in the meantime, her right is nothing.”Footnote 73
The statute of Edward III, which was the subject of our second tract, contained an exception for Henry of Beaumont. Mary, like Beaumont before her, was “a descendant from the crown, but a stranger born” and thus eligible for the same treatment. It was just that neither “king Henry VIII in his lifetime,” nor “her majesty during the whole space of her most happy reign,” had “found, at any time” the sort of “kindness, either in king James V or the now queen, his daughter” that might have prompted them “to supply those defects by parliament that nature hath cast upon them [the Stuarts] by birth.” Rather, “on the contrary side, they have found continually so great unkindness in them that they have had, and yet have, just cause to procure declaration rather to their prejudice than in favor of them.”Footnote 74 When our first author added that “it is manifest, by manifold examples, practiced both in this realm and divers others, that nearness of blood is not always sufficient to guide the descent of the crown, but that both the state and the laws of every country consider divers other circumstances which may be an impediment in the parties that are to succeed, among the which our laws accompt foreign birth one of the chiefest,” the case against the Stuarts was complete.Footnote 75
King Richard I's impulse to establish Arthur's claim, despite his foreign birth, was cited as a prime example of the praiseworthy practice of many “kings of this realm,” who, “in their lifetime, foreseeing the dangers that might grow to the realm, after their death, by the uncertainty of the succession, have travailed with their state (when they have found their next of blood loving and kind to them) that, either by act of parliament, the defect that were in the next of blood by foreign birth might be supplied, or that the king himself, by his last will and testament, might, with their consent, declare the heir to the crown.”Footnote 76 In so doing they had chosen “rather to prejudice themselves, than to put in peril their whole realm, and thus much for answer for Ross' tyrannical principle.”Footnote 77 Commenting on the conduct of Richard, duke of York, in parliament, our second author instructed Ross to note “the power of parliament to grant a state of freehold of the crown, and the same conditional subject to forfeiture and the form of claim,” all of which, he added, was “contrary to your mind, but we may not lay away our laws and precedents to follow private men's fancies.”Footnote 78
Such passages served not only as heavy hints about what queen Elizabeth ought to do, indeed ought already to have done, but also as reminders to the Stuarts (and their supporters) that “the competent court for” trying “the title” to the crown “is parliament.”Footnote 79 They thus sent a stern reminder to the young James VI that he could only come to the crown not through the mere assertion of his mother's right but through the good graces of the crown-in-parliament, and for that to happen in the future, he would have to keep his nose clean in the present.
Our second author argued that many of the characteristics identified by Ross as fundamental to the nature of the crown were in fact subject to alteration by the crown-in-parliament, which prompted him to ask “if these foundation stones of your corporation were so by parliament taken away, what should become of your corporation, without which the crown, notwithstanding, standeth in perfection, and the inheritance like as before?”Footnote 80 On this account, parliament was not only the competent court to determine the succession: it could also shape many of the central (if not defining) characteristics and capacities of the crown itself.
There can thus be no doubting the commitment of these tracts to a positively Eltonian vision of the ultimate sovereignty of the crown in parliament.Footnote 81 After all, even Queen Mary had “made the statute of limitation of succession the chiefest foundation of her title.” All of which betokened a fundamental truth about the governance of England. “Though the queen's majesty be always queen in all places yet in her parliament she exceedeth herself and is (if I may borrow the astronomer's term) in her highest exaltation, without any other measure or stint of power than the law of God and nature.” Since “a parliament cannot be summoned (so long as there is a right king in possession and not distressed) without his consent” it was true that neither the queen acting without the parliament, nor the parliament acting without the queen could “dispose of a successor, yet to the parliament with her it is a thing as lawful as a natural heir out of her womb, though nothing so comfortable or direct.”Footnote 82
THE MONARCHICAL REPUBLIC THEORIZED
Leslie contended that without the crown there could be “neither king nor allegiance, and, so long as the crown resteth only in demand, not being vested in any person, there is no allegiance at all.” He did so in order to argue that if the crown itself created allegiance, and passed by indefeasible hereditary right, then no hereditary heir to the English crown could be outside the “allegiance of England.”Footnote 83 But, as both of our authors immediately grasped, this position also implied that “the laws of the realm” “die with the king.”Footnote 84 In other words, interrupt the course of hereditary succession and all bets would be off. The laws would fall silent and the realm descend into chaos until a winner emerged from the ensuing melee of rival claimants. Only then would stable royal rule, and with it the allegiance of the subjects and the working of the laws, be reestablished. Such, Ross implied, would be the chaotic consequences of any refusal of the just claims of the right heir, Mary Queen of Scots. That very prospect had been brought to lurid life in Leicester's commonwealth, which conjured, through myriad historical examples drawn from the Wars of the Roses and other moments of crisis in English and Roman history, precisely the sort of political meltdown that, it claimed, any attempt to block the succession of Mary Stuart would inevitably prompt.
Thus Leslie's entire approach was completely antithetical to any notion of an interregnum; a period during which, in the absence of a monarch, the laws and political authority more generally construed continued to operate, so that, if necessary, the body politic could reconstitute itself by choosing its own head. This had been precisely the state of affairs that Burghley and his intimates had been trying to legitimate in 1584–85. Predictably enough, therefore, our first author proclaimed Ross's argument “utterly false and untrue; for there is always a kingdom, a crown and an allegiance due to the crown. The right also whereto is never unknown to the law, though sometimes naked swords put law to silence, for our law saith that the crown never dieth.” Thus, “suits are not discontinued by the king's death,” and “immediately after the king's death all writs go forth in his successors name, who is ever known to the law.” Therefore, it was “as gross an absurdity in policy to say that there is no crown nor allegiance when the king is dead, or when the crown is in quarrel, as to say in popery there is no popedom or no church when the church is in schism, or the pope, the head of their synagogue, dead and his see vacant.”Footnote 85
Our second author pointed out that Ross's position conceded “to the people” “absolution . . . a poena et culpa, from all legiance during the question,” a position that “savoureth of frenzy and of something worse. For although the old king be dead and no new yet settled in his chair” and “the crown in question,” yet “legiance, and also the laws of the realm, are not dead together with the prince.” On the contrary, offenses of all sorts continued to be committed and agreements and bonds made, all of which, “as soon as the new king cometh to the helm,” became immediately “answerable and punishable.” Thus established practice proved “that the laws were in the meantime transgressed and therefore in esse and living,” wanting only “their mouth, for learned authors call the law a dumb master, and the king and magistrate, the mouth and minister of the law.” It was true, our author conceded that if the “laws fall down with their old king, of necessity they must be new born of the new king.” However, “continual experience teacheth” that in fact when one monarch died and his successor took his place the laws “are not so much as revived or confirmed, only for execution of them new commissions go forth, but not new laws.” The result was that “contrary to the old proverb, (we may happily say) new lord, old laws.”Footnote 86
At this point in the argument, the second of our authors grasped the nettle of the interregnum, outlining how his previous claims that neither “legiance” nor the law died with the monarch did indeed mean that the state could perpetuate itself and settle the succession, even in the absence of a reigning monarch.Footnote 87 Remarkably, given how dismissive both our authors had been of Ross's resort to the laws of God and nature at the very outset of his argument, that was precisely where our second author now went, asserting that “that there are two laws in man's nature whereby we are moved and drawn to do justly. To wit, natural affection to conserve itself, termed (by the latter lawyers) the instinct of nature, and a mind whereby we look into the necessity of human things and provide for them, that tranquility and society may, in this life, be retained.” Those instincts and (rational) impulses revealed that “the most common and best means (for the preservation and conservation, as well of private as public tranquility and society), used in all ages and by all nations, is, by the way of a lawful assembly and consultation, which we call parliament.” For uniquely parliament provided the means “to look into the necessity of the public condition and state and so to foresee seasonable remedy.” These faculties and privileges Ross wanted to deny to the English, “which, if you will take from us in time of vacation of the crown (a time most perilous), you restrain us from the use of the law of nature and nations, while you colorably refer us to them both, meaning that England should die with her king as the natural body doth with his.”Footnote 88
Here our author enlisted Plowden's distinction between the “king's two bodies,”Footnote 89 to explain that while the natural body was destroyed when deprived of its head, the same was not true of the “political body,” which not only “remaineth quick” but retained the capacity to create out of itself a new head. Just “as nature formeth the head out of one and the same body,” and just as “consent of voices at the first produced the political head out of the political body,” so now the political body could repeat that trick again, producing a new head for itself out of its own political materials. “Wherefore the head ceasing, the mean remaining, necessity provoking, why should it not now be lawful for us, which ever and in every region hath been lawful by the same mean, to renew a king by which he was first made. The weight of the matter lieth chiefly in foresight to produce the head political out of his proper and right body and place to avoid degeneration and monstrosity.”Footnote 90
“This,” our author maintained, “is the law of nature, this is the law of nations,” laws of which Ross talked a great deal but understood “nothing.” But, rightly understood, the determinations of precisely these laws were always “to be used in question of the crown.” On “a question doubtful and ambiguous about the crown,” according to the laws of God, of nations or and indeed “our own laws” some sort of “consultation” there must be. Indeed those same laws “of God, nature and nations permit a people distressed of their head to assemble themselves together to form a new, after their own rites and ceremonies.” And so, our author concluded, “by the law of nations, the body of the realm of England is to discern of the title of the crown in question, during the vacation, which body is lively and orderly represented in parliament.”Footnote 91
Of course, the assertions of what was in effect the sovereignty of crown-in-parliament, within the imperial realm of England, and the regulation or redirection of the succession by that body, with instances of which these two texts were peppered, all involved action by the monarch and his states assembled in parliament. By definition “the body of the realm of England” included its natural head, the prince, which raised the crucial question: In the absence of a reigning prince, what remained to the parliament? Our second author summoned that seemingly irresolvable problem only summarily to dismiss it: “The law, which giveth remedy always (in supposition by our learning) giveth also a mean to use the remedy, and seeing the law of nature and of nations join in that consent, why should you be therein curious or scrupulous?”Footnote 92
As we shall see, when it suited them, both of our authors could savage Leslie's characterization of the crown as a corporation, but now our author seized on it, asking Ross why “do you imagine the crown a corporation and not afford it the privilege of a corporation? In the question and vacation of a mayor the corporation assemble themselves; they examine whether the competitors be free men or aliens; they admit or reject, by their own customs.” They even did so “in the vacation of the crown, for all bodies political are reputed as successors to their head during the vacation and, by that imputation, receive authority to assemble.”Footnote 93 What was true locally applied with equal force to the realm as a whole. Just as in England “the question for the crown between Henry VI and Richard, duke of York” had been “heard and determined by the body of parliament, neither of them sitting in that case as head and president,” so in France “when John of France was prisoner, the states (without him) assembled themselves together for his deliverance at the Grey Friars in Paris.”Footnote 94
These examples raised again the vexed question of the role of royal authority in such transactions. It could, of course, be alleged that “it sufficeth to use the [king's] name,” but, our author admitted, that would be “absurd, unless you can prove the king's consent.” It was a far more “heinous” “offence in law” “to summon a parliament in the name of a king living, without his will and consent, than in the name of a king departed' in the case of “whose will we ought to make a charitable interpretation towards the state.” At which point our author had recourse to the limiting cases of a king “being prisoner,” and “brought by fear to write to the princes of his land and directly prohibiting them to assemble themselves in parliament or a prince stricken with lunacy.”Footnote 95
And so we came to the central question: “Shall it not be lawful for the magistrates to use the name of the prince, though contrary to his will, or without his consent, to preserve the whole state from ship wrack?”Footnote 96 This formulation invoked the earlier principle—enshrined in the common law—that the highest value, even when dealing with the crown itself, was the preservation of the commonweal. Here was a version of the highest of royal prerogatives, lodged in the common law—the power to take executive execution, as we might say, to use emergency powers, to preserve the common weal—being exercised, not by the prince, but by “the magistrates,” and indeed by “the parliament.”
Remarkably, when our author sought to justify this claim it was not only to the English past, or indeed to the practice of any monarchical state, that he turned. Rather, he invoked the mixed government of republican Venice, asserting that “if the use of the king's name, for form's sake, without further respect, suffice, as St Mark's name doth in Venice, truly the name of the prince departed may, with more reason, be used than of a . . . mad or infant king, against their expressed commandment or without their assent.” Moving from Venetian precedent to English legal principle, our author concluded that since “the law rather suffereth a mischief than any inconvenience” and “seeing it is both the greatest mischief and the greatest inconvenience to leave this act undone, it may not be but lawful and well done. Substance is more to be considered than accidents.”Footnote 97
These were sufficiently extraordinary claims to force our author to concede that “many good minds are not resolute in this point,” but only because such people were “not well instructed of the duty and authority of magistrates.” To resolve such doubts, our author had recourse again to the notion of the king's two bodies, explaining that magistrates owed an “allegiance” not merely to “the king's natural body” but also to his “political body and universal state.” They received “authority (besides that which is given them by the king) from the law” and that (legal) authority “departeth not from them by the king's departure from life to death, as the other doth.” The very titles held by the greatest English officers of state proclaimed that “the Chancellor of England, Treasurer of England, Admiral of England and such like” were “officers to the realm, as well as to the king's person.” It was quite true that these, “the chiefest offices of state, are given by the king's letters patent to have continuance at the king's will and pleasure.” But that did not mean that the mere accident of the “prince's death” could cancel out or countervail “a demonstration of his contrary will,” made while he was still alive.
This was a conclusion rendered all the more compelling “by the infinite and extreme calamities that . . . of necessity must follow,” if the contrary position were accepted. For if “the death of the king be to all officers a sufficient discharge, then the Lord Treasurer needeth use no final eye to the treasure, the Lord Admiral to the navy, the Lieutenant of the Tower and captains of the peace may lay the key under the door and depart. If there be nobody left to command, there be nobody left to obey. All is reduced into chaos and no frame left of political government.” All of which led our author to pronounce of such officers of state, “if the king placed him, let him by a king be displaced. If the law abled him, let the law disable him.”Footnote 98
Indeed, our author maintained, this principle extended well down the institutional and legal food chain. In the localities, “the law still liveth and retaineth her officers,” “mayors and constables of boroughs and cities continue so still for the government of them” and sheriffs retained “the custody of shires.” In the instance of the “Justices of peace,” our author produced an elaborate legal explanation of just why this was so. Justices, he explained, were “entitled by statute as well as by the king's commission and have their authority without certain limitation of time, whose discharge orderly is either by a supersedeas or a new commission.” While the king had “authority from parliament to assign” or appoint justices of peace, that “authority followeth chiefly from statute.” Our author then traced the statutory empowerment of justices from a law of 1 Edw 3 through various statutes of Richard II to prove that “in silence of laws, that power is executory.” “This authority cannot be intended extinct in public magistrates, when the common law maketh every such officer in all times to arrest a traitor, murderer, felon and a notorious riotous disturber of the peace.”Footnote 99
As his initial recourse to the laws of nature and nations positively required him to do, our author maintained that “all foreign laws agree with our own.” Here he cited the authority of Bartolus of Sassoferrato invoking “the assertion of Leopoldus de Babenburg” that even after “they had surrendered up their whole authority to the emperor,” “the Roman people” retained the capacity, “in the vacation of the imperial office,” to “make new laws, as well as dispose of a successor.” All of which prompted the undoubtedly rhetorical question “and shall it not be lawful for the nobility and commons of England, which retain still their power in parliament, to dispose the question of the crown?”Footnote 100 Earlier our author had asked a similar question in relation to the French evidence: “should it not be as lawful for the high magistrates of England to deliberate and summon a parliament for the public tranquility of the realm as for the French?” That time he had answered his own query: “no wise man can allege anything to the contrary and no true subject doubteth of it.”Footnote 101 But as his argument reached its crescendo, our author did not limit himself to the impeccably monarchical examples of near contemporary France and Imperial Rome. Instead he turned again to the republic of Venice:
As the state of Venice consisteth of three, the most exquisite kinds of commonweal, namely monarchia, aristocratia, democratia, so doth England, but the king, having a far more absolute power, than the duke, wherefore, although, by the death of the king, and through question about the crown, there may chance an intermission of monarchy, yet the aristocratia and democratia, that is the nobility and the commons, remain still and live in force and power natural, and competent judges to decide the question, like as senatus populusque Romanus, and this power, as I have aforesaid, is perpetual by the law of nature, nations and by the laws of the realm, familiar to all corporations, whereof the crown is the highest.Footnote 102
HEREDITARY DESCENT V ELECTIVE SUCCESSION
One might imagine that what with their insistence that the crown-in-parliament could divert the succession in the interests of the commonweal, that questions of blood right did not always determine the succession, that “the realm,” “the state,” or even “the people” had a crucial role in managing the succession and transferring power from one ruler to the next, our two authors would have been relatively comfortable with both elective monarchy, and the right to resist. Precisely because their case had been built up from first principles, from the laws of nature and of nations, as well as from the maxims of the English common law, from the testimony of past statutes and of both English and foreign history, one might assume that both of our authors would have been forced to follow the logic of their own arguments to precisely those destinations. After all, what else did the rhetorical question (cited above) about the magistrates using the “the name of the prince, though contrary to his will or without his consent, to prevent the whole state from ship wrack” imply, other than a form of lesser magistrate resistance theory? According to Glenn Burgess “the ancient constitution and resistance theory could only be reconciled by incorporating the institution of monarchy entirely within the ancient constitution.”Footnote 103 It is surely significant, therefore, that we have seen both our authors make precisely that move.
However, from the outset, both our authors displayed a decided ambivalence on the subject of elective monarchy, which was at most a position that they might imply, but certainly did not want overtly to state, still less defend, and that at times they moved actively to repudiate. Quite remarkably, they did so by seeking to impute a version of the doctrine to Ross himself. On the face of it, this was an unlikely claim that they attempted to justify through a detailed critique of Ross's account of the English crown as a corporation.
That account was itself an attempt to prove that, as a corporation, the crown was not subject to the sort of common law rules that governed private inheritances. Thus, Leslie had compared the crown to other corporations, like monasteries, cathedrals, parsonages, and mayoralties, that passed by succession and not by (hereditary) descent. His opponents used this argument, and its (alleged) consequences, to qualify any gestures toward election or elective monarchy to be found in their own works.Footnote 104
Even as our second author maintained that “the king, with his lords and commons in parliament,” was “a corporation, instituted by the common law,” he denied that this meant that the succession of the crown should follow “the manner of succession of corporations” rather than hereditary descent.Footnote 105 The comparison between the king and other corporate persons and bodies was at best inexact. “No more than of a vicar” was “the person of a king” “a full corporation in law, unless you behold him in parliament, but is termed a corporation in part and in respect of certain resemblances.”Footnote 106 Nowhere was this clearer than in the matter of succession. “Parsons and vicars succeed by presentation and induction, deans and abbots by solemn election, and neither of these forms observed in the succession to the crown.”Footnote 107 Unlike a parson or an abbot, “the heir of the king of England hath title to the supreme office and royal dignity . . . by title of lineal descent in blood, as from his ancestors, and not by bare election, as an abbot.” When an abbot died the maxim “the dead putteth the quick in seisin” did not apply until an election had taken place to appoint his successor. That was simply not the case “in the inheritance of the crown, and in all others which go likewise by descent.”Footnote 108
If the crown were simply a corporation in the sense implied by Ross, our author asked, “what availeth the nearness of blood to the crown?” For if hereditary “descent” did not “direct the crown” then nobody could claim it by blood right but only by succession, by which our author meant, in this context, “election, for every succession implieth an election.” While it was true that “the coronation of every prince” implied “a kind of election, yet the descent by blood investeth a right in the king before he be crowned and pointeth him out to the people that is to be their natural prince. For long custom, which is a most strong law, hath bound the election of the people (which at the first was free) to him only that hath the right to the crown by descent.”Footnote 109
Our authors thus claimed that, pursued to their logical conclusions, Ross' own arguments must mean that “the crown of this realm” should be drawn “to a succession without a descent and so consequently to a mere election (which notwithstanding is the ruin of his mistress' cause, for then can she not make claim to it by any right).”Footnote 110 This left Ross caught between a rock and a hard place. For “if Ross will have the crown to come to his queen by succession, not by descent, then must he tarry till she be elected and crowned . . . But if he will entitle it to her by descent then must he prove her capable of it by the laws of the realm, which hitherto he hath not done.”Footnote 111
Our authors thus claimed to be avoiding both a slavish addiction to indefeasible hereditary right and a straightforward endorsement of the principle of election. By imputing both of these equally obnoxious (and mutually exclusive) opinions to the popish foreigner, Ross, they cast him as the epitome of everything that they were not. They were thus able to pose (against Ross of all people) as stalwart defenders of the principle of hereditary descent, even as they subjected the process of succession to what they presented as the traditional legal controls; controls that culminated in the principle that the course of the succession must bend before the need to protect the commonweal; a consideration that would, under normal circumstances, bar those of foreign birth—and most decidedly, as things stood now, Mary Stuart—from the succession. Unless and until, that is, the crown-in-parliament decided otherwise, which, in Mary Stuart's case, both these authors devoutly hoped would be sometime never.
(NOT) AN ELECTIVE MONARCHY
Our first author went considerably further than this in modifying his initial position, if not quite closing down, then certainly obfuscating some of the more radical conclusions to which his arguments led. For while his response to the Latin edition of Leslie's tract (of 1581) had advanced not only a doctrine of elective monarchy but also more than implied a version of resistance theory, the second version of his tract, directed at the English translation of Leslie's tract (of 1584), entirely omitted the crucial paragraphs where those points were most explicitly made.
In the suppressed passages, our author had argued that all monarchies were, in effect, elective. He denied that there was “any realm in Christendom where the people have not a free election in cases of extremity, though in some countries this freedom be less general than in some. The Empire, Poland, Denmark, Hungary, whilst it was a Christian realm, and some other, have, at all times, an absolute and free election to choose whom best liketh them, the which resteth in the power of them to whom the people have of trust transferred their authority to elect.” The kingdom of the Jews had, and England, France and Spain now have, a “kind of election,” with the elective principle implicit in their coronation rites but with “no forced election, unless some case of great extremity do chance. For here the people are, by custom, (which is a most strong and mighty law) bound to elect him upon whom the law casteth the descent, unless they see the manifest ruin of their country like to ensue by his government, in which case both God's law permitteth them, and the law of nature teacheth them, to proceed to a new choice.”
To demonstrate the truth of these claims, our author listed four basic principles or maxims: “the prince is ordained for the benefit of the realm, not the realm for the benefit of the prince, therefore the whole realm is to be preferred before the prince”; “the people choose the king, not the king the people, therefore the whole people be to be regarded before the king”; “that is most worthy that is best able to consist of itself, but the people may be without a king, not the king without a people, therefore the realm to be respected before the king”; “the law of nature teacheth every creature, as well man as beast, to preserve itself, then is it against nature to receive a wolf to be a shepherd of the sheep, who, instead of feeding them, will devour them.” Aware of the radical monarchomach implications of these tenets, our author tried to reassure himself and his readers that “every good prince will allow and approve them.” He then went on to illustrate his case with a series of examples from the bible, to prove that it been “God's pleasure that a form of election should remain” and that “the king, entering into his kingdom with the consent of his people, might remember that he was appointed for the people's good and so be put in mind of his duty and withal might the better serve his subjects, considering that he attained the crown partly by their means.”Footnote 112
Our author followed these biblical precedents with the series of examples from English history outlined above, running from Edgar Aetheling through Stephen and Maud, Henry II, King John and the duke of York, and Henry VII. The reader was then asked to “consider” whether “the states of England have not juster cause to do the like now in the Scots queen's cause.” That, of course was an entirely rhetorical question, its answer rendered obvious by the tract's earlier demonstration that “both by sound reasons and true examples” “every people, governed by God's laws and not by barbarous Turk or Muscovite, have, in such cases of extremity as now in question is, by all the laws both of God and man, absolute power to provide themselves of a head convenient.”Footnote 113 Thus, in the earliest version of the tract, precedents culled from English history had served as merely local illustrations of far more general principles, culled from the laws of God, nature, and nations.
The second, amended version also altered the register of the historical examples. Thus, one passage that had stressed the “choice” of John “to be their king” by “the nobility and clergy”Footnote 114 was omitted, as was another that had explained that “the people, being at liberty after king Edward's death to choose whom they would (for no man could claim by any certainty of right), partly for love and partly for fear . . received Harold, the son of Godwin, earl of Kent, for their king.”Footnote 115 An account of how, in John's reign, first Lewis the dauphin had been “voluntarily called into the realm,” and then Henry III “chosen king,” by “the nobility,” was similarly excised.Footnote 116
Other cuts removed the more strident elements of anti-popery. Thus, in the first version, but not in the second, Ross was denounced as “a practicing popish prelate” ready to make any argument, however extreme or misguided, in the service of his “cruel mistress,” who was herself described as quite the equal of “Cambyses, Caragalla, or Dionysius . . . and such monsters of mankind,” who, grounding “their government on the principals of Ross, one married his sister, the other his mother in law and the third would have accompanied with his own mother.”Footnote 117 A description of Mary's government as “Antichristian” was changed to “foreign” and a claim that should Mary's cause prevail it would mean “the ruin of our religion and consequently the confusion of the whole realm” was removed.Footnote 118 In the first version, but not in the second, having explained that God had forbidden the Israelites foreign rulers in order to avoid “idolatry and tyranny,” our author opined that “whether this strange prince of Ross be like to bring [them both] upon us, it is a matter more apparent than needful to be disputed of.”Footnote 119
These cuts reveal a concerted effort to render the first of our author's responses to Leslie less a parti pris, populist, anti-popish and anti- Marian screed, and more like its newly acquired twin—a formal, almost entirely “secular,” legal, and historical treatise about the incompatibility of foreign rule with English law and history. Thus, at a moment when the future of protestant England seemed to be hanging in the balance, when agents of the regime wanted to sell the interregnum scheme to as wide a spectrum of opinion as possible, they deliberately suppressed the most radical readings and the most aggressively religious aspects of their case. This may well constitute priceless evidence of a debate within the Elizabethan establishment about the best way to sell the interregnum scheme both to the queen and the political nation. Both texts remained unprinted, but if the worst had happened, it seems likely that they, or something very like them, would have found their way into print rapidly enough, as legitimations for precisely the sort of swift collective political action envisaged in the interregnum proposal itself.
THE TERGIVERSATIONS OF THOMAS BILSON, OR HOW TO GET INTO PRINT, AFTER ALL
Unlike the two texts under discussion here, Thomas Bilson's The true difference between Christian subjection and unchristian rebellion was printed—in 1585, in fact, by the university printer at Oxford, complete with a dedication to the queen herself.Footnote 120 Bilson's text was a reply to yet another of the Catholic tracts printed over the summer of 1584: William Allen's A true sincere and modest defence. It can be seen, along with Burghley's tract of 1586, A true declaration of the causes moving the queen to give aid to the defence of the people afflicted and oppressed in the Low Countries, as part of a one-two punch designed to legitimate English intervention into the Low Countries. It thus has some claim to at least pseudo-official status and thus to be the only public (pseudo-) official response to the Catholic propaganda assault of 1584. A comparison between Bilson's book and our two manuscript tracts may well allow us to discern the line between what the regime, or perhaps even the queen herself, was prepared to tolerate and what had been ruled beyond the pale of ideological correctitude or political convenience.
(In)famously, on the topics of resistance and elective monarchy, Bilson hedged his bets.Footnote 121 He distinguished between “free states,” like “Venice, Milan, Florence and Geneva,” not to mention the Roman republic, which “could never abide the name of a king” and other political societies that most definitely could. In the former, the elective principle applied and a residual right to restrain or even depose and replace the magistrate inhered. Thus, in the Holy Roman Empire “the princes, dukes and cities that are under him [the emperor] have power to govern and use the sword” and if the emperor “touch their policies, infringe their liberties or violate the specialities which he, by oath and order of the empire, is bound to keep, they may lawfully resist him and, by force, reduce him to the ancient and received form of government, or else expel as a tyrant and set another in his place.”Footnote 122
This was monarchical republicanism red in tooth and claw, the existence and legitimacy of which Bilson was perfectly happy to acknowledge in certain sorts of polity. Of such polities Zwingli had been writing when he justified resistance, but, in Bilson's view, such strictures could not apply to political societies that he described as not “elected and limited, but succeeding and absolute,” where rebellion against “lawful and absolute princes” could never be justified.Footnote 123 This, of course, appeared to rule out of court the direct application to England of, say, Venetian or Florentine precedent or principle. But Bilson also maintained that while “the law of God giveth no man leave to resist his prince, I never said that kingdoms and commonwealths might not proportion the states as they thought best by public laws which afterwards princes themselves might not violate.”Footnote 124
Bilson used such distinctions to argue, contra Allen, that there was no such thing as distinctively “protestant” resistance theory, or indeed action, for the outbreaks thereof cited by Allen had never been prompted by “religion,” and still less by clerical claims to authority over princes, of the sort asserted by the papacy. Indeed, the outbreaks of resistance in which protestant had been involved had not been based on any sort of universalizable “theory,” drawn either from scripture or the law of nature, but rather, either, as in the Holy Roman Empire and Flanders, on local institutional and legal arrangements, or on the exigencies of particular political circumstances.Footnote 125
Bilson was clear that such precedents did not apply to “lawful and absolute” or “succeeding and absolute” monarchies, like England, France, and Spain, where neither resistance nor elective monarchy had any place. But while he held that “the people” could never constrain tyrants or “reform” peccant princes, he also maintained that, where various sorts of lesser magistrate did exist they might, under the right circumstances, resist. A marginal heading summed up the take-home message: “in some cases the nobles and commons may stand for the public regiment and laws of their country.” Bilson did not speculate about what those cases might look like, or whether England enjoyed any such magistrates or nobles appointed by “the laws of the land” to assist the prince “in doing right and withhold him from doing wrong,” but another marginal apothegm announced that “princes may be stayed from tyranny by their own realms, though not deposed,” which certainly seemed a general enough pronouncement to apply to England.Footnote 126
Bilson produced a similarly nuanced treatment of the issue of succession. Sounding more like Leslie than his critics, Bilson started off with a strong defense of hereditary monarchy: “the greatest kingdoms of the west parts, as France, England, Spain Scotland and others have always gone by succession, since they were divided from the empire and never by election. The like I might say of all profane kingdoms and monarchies, where not election but succession hath prevailed.”
On Bilson's account, “the solemn rites of coronation” were not last vestiges of popular election, nor did they constitute a ceremonial occasion or means to impose essentially contractual terms and conditions on the king's exercise of power. While such ceremonies might contain “good admonishments to put princes in mind of their duty”, they conferred neither power nor authority. Princes remained “God's anointed, not in respect of the material oil, which the bishop useth, but in consideration of their power, which is ordained, of the sword, which is authorized, of their persons, which are elected by God and endued by gifts of the spirit for the better guiding of his people.” “If oil be wanting, they be perfect magistrates notwithstanding, and God's anointed as well.” Moreover, “authority to condition with princes, at the time of their coronation, the bishop hath none.”Footnote 127 On Bilson's account, the same principles had applied to the Jewish kings, “so that succession in kingdoms hath not only the consent of all ages and nations but the manifest subscription of God himself, that it is his special favor and blessing to continue the successions of godly princes.” And yet even here Bilson conceded that “if the right heir be a natural fool or he that is invested with the crown wax mad . . . any realm, by public consent and advice, may choose another.”Footnote 128
When the fudges and refusals, the caveats and qualifications of Bilson's text, the (self-) censorship of the first of our replies to Leslie, and the differences between our two replies to Leslie and Bilson's reply to Allen are all taken into account they cannot but alert us to disagreements, and even debates, within the regime, about resistance, elective monarchy and the succession; the very nexus of issues that has come to define “monarchical republicanism.”Footnote 129 Bilson's tract can, therefore, be seen as a public statement, very likely launched and endorsed from the heart of the regime, designed if not finally to resolve, then most certainly definitively to fudge, some very contentious issues. Might we be witnessing here the restraining influence of the queen on the activities and aspirations of the more enthusiastically “monarchically republican” of her lay councilors and their puritan clients? Certainly the result was a rationale for English intervention in the Low Countries that fell well short of the blanket endorsement of resistance theory that the likes of Allen and Leslie insistently imputed to the Elizabethan state. As such, Bilson's position surely proved far more acceptable to the queen than even the most emasculated versions of our two manuscript tracts under consideration here.
CONCLUSION
Either way, “the monarchical republic” emerges from these texts as not very republican at all. We have rather a vision of mixed monarchy, centered more on English legal and political history than on classical theory or precedent. We are in an intellectual universe in which Bracton and Fortescue, and indeed more recent legal commentators like Plowden, are the authorities of choice, rather than Cicero or Tacitus. Given the recent emphasis placed on the role of “civic republicanism” in Elizabethan political thought and practice, this itself is a finding of some significance.
When reading these texts we find ourselves in conceptual territory of the sort usually described by terms like “the common-law mind” or “the ancient constitution” rather than “classical republicanism.” Except that neither of our two texts exactly fits those descriptions either, at least as they have been explicated by J. G. A. Pocock and his epigone, most notably Burgess. Admittedly, both our authors had insistent recourse to English history, the entire course of which, from the Saxons to the late fifteenth century, they envisaged as part of a sort of transhistorical, legal, and constitutional, continuum in seamless and unproblematic contact with the legal and institutional structures and the political dilemmas of the current age. But while they gestured towards a type of English exceptionalism, defined against a foreign, absolutist, tyrannical, and popish other, personified by Mary Stuart and theorized by Leslie, these tracts also repeatedly compared the English case with, and indeed often assimilated it to, the experience of the French and Spanish monarchies, not to mention that of the Roman empire. While they might excoriate Leslie for his reliance on the civil law and his constant harping on the laws of nature and of nations, our authors were themselves willing enough to cite all of those authorities when it suited them. And, of course, our second author was prepared (as Bilson was not) to harness his readings of English history and law onto accounts of the Venetian state as a mixed polity, of which political genus both of our authors took England to be a more decidedly monarchical species.
Significantly, it was Leslie, rather than his opponents, who presented the common law as a form of unwritten immemorial custom—a view our two authors explicitly rejected. As we have seen, they rooted the common law in a number of sources, including the laws of nature and of nations, the civil and canon laws, and, of course, statute. We see no trace here of that insistence on the common law as custom and on both English law and custom as immemorial and coeval with “reason” or “rationality” that Burgess, echoing and adapting Pocock, makes a defining characteristic of “the common law mind.”Footnote 130 Indeed, their positively Eltonian insistence on the centrality of statute and on the sovereign authority of the crown-in-parliament within the imperial realm of England was perhaps the defining characteristic of these texts, both of which display a remarkable eclecticism in the way in which they combine a range of different authorities and modes of argument. This eclecticism belies claims that something called the “common-law mind” rendered such discursive miscegenation conceptually impossible before the 1640s and perhaps also calls into question the extent to which early modern political thought is best conceived as composed of distinct, freestanding, and in many ways mutually exclusive discourses or languages, organized under such labels as “the common-law mind,” “civic humanism,” “republicanism,” or “ancient constitutionalism.”Footnote 131 To state the case somewhat less portentously, while we might be dealing here with a version of “ancient constitutionalism,” it is most decidedly not a version that involves the sort of “ancient constitution” or “common-law mind” described by Pocock and Burgess. At least in the 1580s, even people deeply familiar with the common law and inured in the concerns and methods of English legal antiquarianism found it more than possible to think outside of that particular box.Footnote 132
Not only livres de circonstance, designed to meet the exigencies of Collinson's “Elizabethan exclusion crisis,” as we have seen, these texts also have some claim to be regarded as more formal exercises in comparative politics, indeed in pukka “political thought.” Their readings of the precedents and authorizing precepts contained within English history and law can be seen as local applications—particular historical, institutional and legal instantiations—of far more general principles, indeed of a political theory, rooted in the laws of nature and of nations. That theory located the origins of royal authority in an act of “the people,” who, by choosing a king, had created the kingdom in the first place and who thereafter could, if occasion demanded, conjure out of the political body of the realm, a head, whose purpose was to rule and animate that body, in the interests of the commonweal. Where Bilson hedged his bets, our two authors seemed in no doubt that England was indeed a polity in which “the people might preserve the foundation, freedom and form of their commonwealth, which they foreprised when they first consented to have a king.”Footnote 133
Now it would be absurd to argue that the positions adumbrated in these texts were incompatible with strands of discourse or argument deemed by some scholars “republican.” Our second text's recourse to Venice as a model of the mixed polity entirely appropriate for English emulation gives the lie to any such claim. Similarly, Ciceronian cliché about the value of the vir civilis, good counsel and service to the commonweal of the sort so central to the self-image of a host of Elizabethan insiders, was entirely compatible with this view of the English polity. And all of the above could be combined with the equation of the interests of the commonweal with the cause of the gospel and the preservation of true religion from the threat of popery that, as Stephen Alford, John Guy, and others have shown, was of the essence of a certain sort of Elizabethan—Cecilian, but by no means only Cecilian—statecraft.Footnote 134 Indeed, such a view of the polity could be combined, as it was in the Presbyterian platform, with a positively draconian urge to separate not merely the popish and crypto-popish goats from the loyally protestant sheep, but also the godly from the ungodly.Footnote 135 However, in these texts such considerations and authorities were played down, if not entirely suppressed. And that very fact surely has something important to tell us about the extent to which Elizabethan England was (or was not) a “monarchical republic.” In particular, such choices and suppressions reveal how, at a crucial moment of perceived crisis, when the Elizabethan protestant state was seeking to maximize its basis of support, at least some people close to the center of power felt it necessary to suppress overtly confessional arguments, and instead produce an almost entirely “secular” case, one grounded in the lessons of history, the dictates of law and precedent and on an English nationalism pretty much stripped of overtly confessional language.
As we have seen, the positions adopted in these texts led naturally, even logically, towards theories of both elective monarchy and resistance. However, as we have also seen, both of our authors were (or became) desperate to avoid any such conclusions. To do so, they used Leslie as a scapegoat, onto whom they evacuated all the unwanted consequences of their own positions. The result was a radically incoherent version of Leslie as a proponent both of an unlimited and tyrannical absolutism and of a theory of elective monarchy entirely subversive of his core doctrine of indefeasible hereditary right. While this move left our authors the unchallenged occupants of some sort of middle ground, the resulting, bizarrely contradictory, image of Leslie not only revealed just how unstable that middle ground was, it also laid bare the extent to which both these texts had not so much resolved as suppressed (and thus perpetuated, and even reproduced) the contradictions and paradoxes at the heart of both the “monarchical republic” and “the exclusion crisis,” as Collinson first described them. We return again, perhaps, to the dynamics of the ideology that dared not speak its name.
Predictably enough, the dilemmas and paradoxes revealed in these texts continued to dominate Elizabethan thinking on the succession. Shakespeare's history plays staged precisely the same conundra. The Henry VI plays problematized the issue of dynastic right and the various sources of monarchical legitimacy: they centered themselves around the distinctions between the crown and legiance, between de jure and de facto rule; they staged the dilemmas of political and personal obligation confronting ordinary subjects, faced by regime change; and they left the final resolution to the deus ex machina of Henry VII and the verdict of providence and the sword.
In his magnum opus, A conference about the next succession, Robert Parsons made precisely the same case against the claim that hereditary succession and indefeasible hereditary right were direct emanations of the laws of nature and of nations. Parsons placed the same emphasis on the safety of the commonweal as the highest value and used many of the same historical examples and precedents to do it. For instance, his account of King John's reign echoes and develops that given in the first version of our first tract. He also provided essentially the same account of the origins of monarchical authority in an act of the commonweal or political body. But, unlike our authors, Parsons allowed himself to follow the premises and assumptions that all three men shared to their necessary, “logical” conclusions. In so doing, he produced an avowedly elective version of the English polity, and, with it, a powerful justification for resistance.
Parsons, of course, was writing in exile, after the death of Mary Stuart had produced a situation in which some (but by no means all) of the erstwhile Catholic supporters of the Stuart cause were now in search, not merely of reasons to exclude the Stuarts, but of justifications for the diversion of the succession in altogether different directions. The result was the supreme irony that the most fervently “republican” potentials within the “monarchical republic” were realized in the work of a Jesuit polemicist and political operative dedicated to the destruction of precisely the protestant state that the “republic” had been designed to preserve.
As I have argued elsewhere, it was almost certainly in response to Parsons' Conference that, in his True law of free monarchies, James Stuart introduced into anglophone political discourse precisely the style of absolutist theory that our two authors attributed to that Frenchified Scot, John Leslie, bishop of Ross, and that Parsons attributed to those ideological correlatives of the English Catholic loyalist supporters of James VI, the French politique followers of Henry IV.Footnote 136 We have here an ideological dialectic that, over fifteen or so years, had culminated in a showdown between divine right absolutism and various theories of resistance and elective monarchy—a confrontation of a sort that many commentators would have us believe did not exist, indeed could not have existed, in English “political thought” and argument before the 1640s.
Not that these two positions were the only alternatives; there remained the middle ground of common law-regulated and statute-bound mixed monarchy, inhabited (for the most part) by our two authors. And, of course, when, some sixty years later, during a rather different political crisis, members of, and apologists for, the Long Parliament wanted to legitimate resistance to Charles I, it was to precisely the sort of appeal (outlined in these texts) from the king's private body and will to the public political body of the realm, embodied in parliament, that they reverted. And thus an ideology, formulated by Lord Burghley and his kitchen cabinet to defend the Elizabethan establishment from the threat of popish and Stuart (absolutist) rule, became the basis for resistance to a later version of Stuart absolutism, now (once again) indelibly identified with “popery.” But that, thank goodness, is another story altogether.
