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Sovereignty and the SwordHarrington, Hobbes, and Mixed Government in the English Civil Wars$

Arihiro Fukuda

Print publication date: 1997

Print ISBN-13: 9780198206835

Published to Oxford Scholarship Online: October 2011

DOI: 10.1093/acprof:oso/9780198206835.001.0001

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The New English Theory of Mixed Government, 1642–1644:

The New English Theory of Mixed Government, 1642–1644:

Balance, Authority, Conscience

Chapter:
(p.22) 2 The New English Theory of Mixed Government, 1642–1644:
Source:
Sovereignty and the Sword
Author(s):

Arihiro Fukuda

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198206835.003.0002

Abstract and Keywords

This chapter examines the emergence of a new English theory of mixed government and the innovative approach to theories of mixed government during the period from 1642 to 1644. It suggests that the word ‘balance’ was addressed in this new theory as a problem of authority rather than of liberties and that the discussion about this theory moved from limitation to stability. During the debate on the theory of mixed government some writers discussed the constitution in the Fortescuian framework, while others turned to the Polybian idea.

Keywords:   political theory, England, mixed government, authority, liberties, constitution, Fortescuian framework, Polybian idea

1. Introduction

When King Charles I called the parliaments of 1640—the first in April, the second in November—England possessed a theory of mixed government which had been made widely available by Fortescue.1 We have seen that this English theory of mixed government had little to do with that derived from Graeco-Roman antiquity. While Fortescue considered the English constitution to be a mixed one, he did not describe a mixture of different functions of government.

Around 1641–2 there emerged a new interpretation of the English constitution. This view, like that of Fortescue and his disciples, denied that England was a pure monarchy. Unlike that conventional belief, it adopted the Polybian idea of mixed government, and used that idea to redefine the English constitution. The redefinition is what we call in this chapter ‘the new English theory of mixed government’ The theory was ‘new’, since it employed Polybius. And it was still ‘English’, since it referred to the king, the lords, and the commons. In other words, the new English theory of mixed government Anglicized the Polybian idea, and redefined the English constitution at the same time.

Among a number of events in the history of English political thought in the early 1640s, we shall concentrate on two which have a special bearing on our topic in the following chapters: the emergence of the theory of sovereignty and the innovative approach to theories of mixed government. Both (p.23) those developments were responses in the field of political thought to the political crisis of the time. They attempted, in two different directions, to prevent civil war and to keep the country together. Thomas Hobbes's theory of sovereignty will be examined in Chapter 3. Here, we focus upon the ascendancy of the new English theory of mixed government. It will be suggested that the word ‘balance’ was addressed in the new theory to the problem of authority rather than to that of liberties; and that the aim of discussion moved from limitation to stability. While others discussed the constitution in the Fortescuian framework, some writers turned to the Polybian idea.

Neither the exact date nor the writing which marked the innovation can be specified. There were writers in this period who read Polybius. The first person to have referred to Polybius in connection with the English constitution appears to have been John Milton, who may have known book vi of Polybius’ Histories. In Of Reformation, which appeared in late May in 1641, he wrote:

There is no Civill Goverment [sic] that hath beene known, no not the Spartan, not the Roman, though both for this respect so much prais’d by the wise Polybius, more divinely and harmoniously tun'd, more equally ballanc'd as it were by the hand and scale of Justice, then is the Common-wealth of England: where under a free, and untutor'd Monarch, the noblest, worthiest, and most prudent men, with full approbation, and suffrage of the People have in their power the supreame, and finall determination of highest Affaires.2

Milton, however, did not develop that thought.3 His priority was the reformation of the Church, not the diagnosis of the constitution. He did not suggest how the components of the constitution could be held to correspond to the idea of functional differentiation advanced by Polybius.

Thomas Hobbes did. We do not know whether he ever read Polybius. But we do find him, in De Cive, attributing to parliamentarian writers an understanding of the English constitution which corresponds to Polybius’ idea.4 We cannot tell which writer or writers he had in mind. He cannot have been referring to the authors of the Answer to the Nineteen (p.24) Propositions, for the manuscript of De Cive had been completed by November 1641, seven months before the publication of the Answer.5

In De Cive Hobbes denounced the Polybian idea of mixed government, which he believed to be conducive to civil wars. Yet when the Polybian definition appeared in the Answer, the aim of its exponent was identical to Hobbes's: to keep the country united and avoid a civil war.

2. The Answer and Authority

The first Polybian definition of the English constitution which I have found appeared during the critical months before the civil war. His Majesty's Answer to the Nineteen Propositions of both Houses of Parliament, tending towards a Peace, written by Viscount Falkland and Sir John Colepeper, was published in June 1642.6 It warned the two Houses that once the Polybian balance was lost, remediless anarchy would follow.7 Where Parker wrote against tyranny, the Answer fought against anarchy.

‘We are resolved’, the Answer reads, ‘not‥ to subvert…the ancient, equal, happy, well-poised, and never-enough commended Constitution of the Government of this Kingdom; nor to make our Self, of a King of (p.25) England, a Duke of Venice; and this of a Kingdom, a Republick’8 By themselves, those words can be understood within the traditional view of the balanced polity, the Fortescuian idea of mixed government. Indeed, they look similar to Parker's praise for the constitution.9 Yet after this passage, the Polybian idea of mixed government is introduced.

There being three kinds of Government among Men, Absolute Monarchy, Aristocracy, and Democracy: and all these having their particular Conveniences and Inconveniences. The Experience and Wisdom of your Ancestors, hath so moulded this out of a Mixture of these, as to give to this Kingdom (as far as humane Prudence can provide) the Conveniences of all three, without the Inconveniences of any one, as long as the Balance hangs even between the three Estates, and they run jointly on in their proper Chanel, (begetting Verdure and Fertility in the Meadows on both sides) and the overflowing of either on either side, raise no Deluge or Inundation. The Ill of Absolute Monarchy is Tyranny, the Ill of Aristocracy, is Faction and Division; the Ills of Democracy, are Tumults, Violence, and Licentiousness. The Good of Monarchy, is the uniting a Nation under one Head, to resist Invasion from Abroad, and Insurrection at Home; the Good of Aristocracy, is the conjunction of Council in the ablest Persons of a State for the publick Benefit; the Good of Democracy, is Liberty, and the Courage and Industry which Liberty begets.

The Answer goes even further. The famous passage above repeats the Polybian idea at an abstract level. More remarkable is the next passage, where the writers distribute the functions of government among the king, the lords, and the commons, the three estates of the English constitution.

In this Kingdom the Laws are jointly made by a King, by a House of Peers, and by a House of Commons chosen by the People, all having free Votes and particular Priviledges. The Government according to these Laws, is trusted to the King; Power of Treaties of War and Peace, of making Peers, of chusing Officers and Counsellors for State, Judges for Law, Commanders for Forts and Castles; giving Commissions for raising Men; to make War Abroad, or to prevent or provide against Invasions or Insurrections at Home; benefit of Confiscations, power of Pardoning, and some more of the like kind are placed in the King. …the House of Commons, (an excellent Conserver of Liberty, but never intended for any share in Government, or the chusing of them that should Govern) is solely intrusted with the first Propositions concerning the Levies of Monies, (which is the Sinews as well of (p.26) Peace as of War); and the impeaching of those, who for their own Ends, though countenanced by any surreptitiously gotten Command of the King, have violated that Law, which he is bound (when he knows it) to protect:…And the Lords being trusted with a Judicatory Power, are an excellent Skreen and Bank between the Prince and People, to assist each against any Incroachments of the other; and by just Judgments to preserve that Law, which ought to be the Rule of every one of the Three.10

The significance of the passage lies in its identification of a functional division among the three estates, and in the allocation of functions to each of the three. Distinctive functions are allotted to the House of Commons and to the House of Lords, as well as to the king himself. Here lies the crucial cleavage between the Answer and Parker. The meaning of the words ‘the ancient, equal, happy, well-poised, and never-enough commended Constitution’ departs from tradition. The crux of the argument has moved, from ‘balance’ between the prerogative and the liberties, to that among functional divisions within the king-in-parliament. The Fortescuian idea of mixed government has been replaced by the Polybian one.

Why did the writers of the Answer bring the Polybian theory into the heart of the constitution?

First, they needed a theory to justify, from King Charles's point of view, the substantial concessions he had made since the meeting of the Long Parliament in November 1640. The king had consented to the impeachment and the execution of Strafford, the abolition of the prerogative courts, the Triennial Bill, and the Bill forbidding the dissolution of the Long Parliament without its own consent. Charles needed to deny that those were unprincipled concessions forced on him by the Houses. The Answer explained that the concessions had been made so as to let the constitution work more efficiently. In a bid to resume the political initiative from the parliamentarians, the king, rather than the Houses, was portrayed as the real defender of the constitution. The king, explained the Answer, knew how the English constitution worked, and what the essence of it was. Since he understood the essence to be the Polybian balance within the government, he could appreciate the importance of the proper functions allotted to the two Houses. When he saw that the constitution was in trouble, he was ‘willingly contented to oblige’ himself to call a parliament every three years, and to give up his right of dissolving the Long Parliament for the better enabling’ the functions of the Lords and Commons to be carried out. Thus the king's concern was to keep the balance workable. He expected (p.27) ‘an extraordinary Moderation’ from parliament in return. By contrast, claimed the Answer, the parliament wanted to shatter the balance, as The Nineteen Propositions showed.11

Secondly, the writers were anxious to preserve the king's several powers within the constitution. Disaster would follow, they warned, if the parliamentarians encroached further on the prerogative. The intention of the Answer is clear in their description of the three pure forms of government. The defect of monarchy, we learn, is tyranny; that of aristocracy is faction and division; that of democracy is tumults, violence, and licentiousness. Why is the defect of aristocracy not—as the previous tradition of political thought would lead us to expect—oligarchy, but faction and division? The authors were arguing that the ‘inconveniences’ of aristocracy and those of democracy are the same: in essence, anarchy. The proper balance could be, and ought to be, maintained between the two extremes, tyranny and anarchy. In the Answer the focus of the argument moves to the prevention of the latter, for, claimed the authors, the concessions made by the king had made tyranny impossible: ‘the Power, legally placed in both Houses, is more than sufficient to prevent and restrain the Power of Tyranny’ The logical conclusion of the argument was simple: if the Houses challenged the balance, the result would be anarchy. The Houses were claiming ‘a pure Arbitrary Power’ and demanding ‘at once to confirm what was so taken, and to give up almost all the rest’ Their ambition would ‘destroy all Rights and Proprieties, all Distinctions of Families and Merit’, and ‘this splendid and excellently distinguished Form of Government’ would ‘end in a dark equal Chaos of Confusion, and the long Line of Our many Noble Ancestors in a Jack Cade, or a Wat Tylor12

In this redefinition of the constitution, the prerogative defended by the Answer was mainly the power to appoint governmental officers. The writers credited that power with an important role in the balance. After the issue of the Militia Ordinance (March 1642) and of the Commissions of Array (June 1642), what was at stake was the nomination and appointment of military commanders, namely, lieutenants and deputy lieutenants.13 The king's rejection of the Ordinance was repeated in the Answer. The ground on which he opposed the idea of the Ordinance was that it would lead to social disorder.

But the Answer did not say that the use of force by the Houses would cause disorder. Instead, it warned that the very usurpation of the power of (p.28) appointment by parliament would destroy the finetuning of the constitution and endanger peace. That power was the basis of the king's authority, the authority which bound the government together. The new definition of the constitution enabled the king to claim that the prerogative of appointing officers and ministers was indispensable to the preservation of the king's authority, without which the balance would be lost and anarchy follow.

The authority of the king is the heart of the balance. It withstands the defects of the lords and the commons, namely, ‘the Ills of Division and Faction’, and ‘Tumults, Violence, and Licentiousness’ The king's authority will give the laws binding force, and will keep the nation united as long as the king draws ‘due Esteem’, ‘Respect’, and ‘Fear and Reverence’ from the subjects. But if the exclusive power of appointing officers is taken from him, he will lose his authority: nothing will be left for him ‘but to look on’; and the nation will disintegrate. If the Houses interfere in the process of nomination and appointment, and confront the king's nomination with ‘the scorn of refusall’, the King of England will be made ‘despicable both at home and abroad’, and his loss of authority will ‘beget eternal Factions and Dissentions (as destructive to publick Happiness as War)’14 If the authors of the Answer had merely claimed that the king was entitled to the ‘esteem’ and ‘fear’ of the subjects, they would have said nothing new or contentious. Instead the Answer asserted that only the exclusive power of nominating officers, which is allotted to the king within the government, could keep alive the respect for the king without which the nation would fall apart.

The Answer was published when the deep antagonism between the two sides was spreading from Westminster across the country, and when military conflict seemed increasingly likely. Its tenor of moderation reflected the king's anxiety to gain wider support. Unhappily for him, as Weston and Greenberg show, some presbyterian pamphleteers exploited the Answer by developing arguments for the legitimacy of resistance and for parliamentary sovereignty.15 In the Answer, Charles officially recognized that the English constitution consisted of three estates, the king, the lords, and the commons. The pamphleteers claimed that Charles had recognized in the Answer that the crown was no more than one of the three estates.16 (p.29) Yet they did not acknowledge or accept the new idea of mixed government advanced by the Answer. Instead they turned the Answer to the development of their own ideas, which derived from the concept of government by consent. Although their concept of the balance leant decisively towards the subjects’ side, they worked comfortably within the Fortescuian framework. What makes the Answer distinctive, in the perspective of this book, is its new idea of mixed government, not the old idea to which the pamphleteers adapted it.

The Answer introduced the Polybian idea of balance to English constitutional theory. Adjusting the Polybian idea of functional division to the English constitution, that is, to the powers of the king, the lords, and the commons, the Answer at the same time inherited the main concern of Polybius, internal stability in peacetime. Like Polybius, the writers of the Answer asked how to prevent the disintegration of the government. As Polybius found his model in the balance of the Roman constitution, so Falkland and Colepeper discovered their own answer in that of the English constitution. The very essence- of the English balance is to defend the authority of the king, and the king's authority alone can restrain the divisive and anarchic tendency of the two Houses. In seventeenth–century England, the Polybian idea of mixed government served to warn against anarchy. The Answer, in adopting the Polybian idea, opened a new chapter in political thought.

3. Philip Hunton and Henry Ferne

After the publication of the Answer, while some writers—particularly Henry Parker and Charles Herle—developed their ideas within the traditional political thinking, a new debate about the right to revolt began within the new framework of the Polybian idea of mixed government.17 (p.30) Philip Hunton and Henry Ferne were the main theorists in this debate. Hunton was an ordained priest, who was later appointed master or provost of Cromwell's University at Durham. Ferne was another divine, who became one of Charles I's chaplains in 1643. Although the two men had the same starting-point, that is the innovation to be found in the Answer, they reached quite different conclusions. Hunton allowed people to fight for the parliamentarian cause, while Ferne forbade them to do so. Yet for all their conflicting conclusions they had much in common. They agreed that neither king nor parliament had the final say if conflict arose between them, and that the judgement whether resistance is right or wrong ought to be left to an individual's ‘conscience’18 They hoped to end the civil war by restoring the accord between king and parliament. They used the Polybian theory of mixed government to re-establish the authority of the king-in-parliament. The Polybian idea of ‘balance’, which was newly introduced by the Answer, was not used by Hunton and Ferne to defend the prerogative or the subjects’ rights. It was used to secure internal peace.

Philip Hunton proposes three ways of classifying governments.19 They are absolute/limited, elective/successive, and simple/mixed. The first and the last are important in his argument. In absolute monarchy, writes Hunton, the exercise of the king's power may or may not be limited by checks. If the limitation derives not from his own will but from an imposition upon it, the monarchy is a limited one. If the king can govern by his own will, it is absolute. The word ‘will’ is crucial to Hunton's theory, for he considers all sovereignty, whether limited or absolute, to be based upon the consent of the people. In his view, a man is ‘a voluntary agent’, and subjection ‘essentially depend[s] upon consent’ A conqueror is not necessarily an absolute monarch, for the condition of subjection is specified by the subjects’ agreement to it rather than by the conquest itself. In the case of a ‘successive’ or hereditary monarchy, the initial act of giving consent is supposed to have committed subsequent generations to it.20

It was only when he discussed the third distinction, between simple and mixed governments, that Hunton took up the argument of the Answer. A simple government, to him, is a government where the supreme authority lies exclusively with either monarchy or aristocracy or democracy. Each of these has an innate bad tendency which leads, respectively, to tyranny, (p.31) destructive factions, and confusion and tumult. ‘Experience’ and ‘wisdom’ have taught us another form of government, a mixture of the three.

Unity and strength in a Monarchy, Counsell and Wisedome in an Aristocracy; Liberty and respect of Common good in a Democracy. Hence the wisedome of men deeply seen in State matters guided them to frame a mixture of all three, uniting them into one Forme, that so the good of all might be enjoyed, and the evill of them avoyded.21

Hunton places an emphasis, which is not present in the Answer, on the principle that ‘the supreme power’ must be shared in a mixed government. Hunton calls that principle ‘a mixed principle’ Whereas the Answer was published before the civil war broke out, Hunton's A Treatise of Monarchie appeared in the midst of the military confrontation between the two sides. The location of ‘the supreme power’ was a vital question, since it directly led to the question of the command of the army. Hunton refers to the Answer, which adopted the Polybian idea of mixture and distributed the powers of the government to the three components of the constitution, but still considered the legislative power to belong to all three components. According to Hunton, the Answer had acknowledged ‘the supreme power’ to be shared by the three.

At this stage of discussion, Hunton articulates the theoretical relationship between the notion of ‘limited monarchy’ and that of ‘mixed monarchy’ Whereas not all limited monarchy is necessarily mixed monarchy, all mixed monarchy is limited.22 What does it mean to say that the power of a monarch is ‘limited’ by the ‘mixed principle’? In the case of the English constitution, argues Hunton, it means that none of the three can exercise its power alone. That is because the powers in the English constitution are not ‘Complete independent powers’ but ‘incomplete independent powers’23

Hunton, when he discussed the legitimacy of armed resistance to the king, had to deal with the question of the relationship between the king's prerogative and the subjects’ liberties. As we saw in Chapter 1 above, that relationship had been conventionally discussed within the framework of the Fortescuian idea. Hunton did not invoke the traditional approach. Instead he articulated the question in a different manner. He discussed, not how to limit the governing powers, but how to construct a ‘complete’ power out of‘incomplete’ ones. In other words, his approach to the question of the relationship between the power of the government and the liberties of the people was not direct. His argument was twofold: he addressed, (p.32) first, the question of the relationship among the powers within the government, and, secondly, the relationship between the government and the people. In the case of the English constitution, of course, the government in this formula means ‘the king-in-parliament’, and the people ‘the subjects’

The king's will, therefore, when expressed outside the parliament, has no authority over the subjects, since the law is ‘the Kings publike and authoritative Will’24 The same principle is also applied to the parliament. Even if the two Houses work together, they are not empowered to override the king's veto. In sharp contrast both to Charles Herle and to Henry Parker, who were aggressive parliamentarians, Hunton bitterly denounced the idea of sovereignty by the two Houses:

whereas some make answere, that he is Singulis major, but Vniuersis minor, so the Answerer to Doctor Ferne, I wonder that the Proposition of the Observator, that the King is Vniuersis minor, should be so much exploded. Every member seorsim is a subject, but all collection in their houses are not: And hee sayes simply, the Houses are co-ordinate to the King, not subordinate; that the Lords stile, Comites, or Peeres, implies in Parliament a co-ordinative society with his Majesty in the Government. I conceive this Answerer to avoid one extreme falls on another; for this is a very overthrow of all Monarchy, and to reduce all Government to Democracy.25

Parker and Herle, who maintained that the two Houses were entitled to override the king's veto if necessary, had to explain why there was no need to worry lest parliamentary power, unchecked by the king, should become arbitrary. Parker insisted that parliament would not dare to adopt an extreme position since it was located between the king and the people. Herle stressed the diversity of self-interest among the numerous members of the parliament, and explained that this diversity would prevent the parliament from running into tyranny.26 Hunton felt no need to deny that (p.33) sort of risk. Instead he praised the mixed constitution, saying ‘I conceive it unparalleled for exactnesse of true policy in the whole world’27

Although he denies that parliament can be sovereign without the king, Hunton defends the right of the Houses to resist. That the Houses share the law-making power with the king means, Hunton argues, that the king's most important power is fundamentally limited. No limitation without the right to resist by arms can ever be effective.28 Once the king transcends the limit, his will has no authority; the subjects are allowed to disobey him.

Henry Ferne, a royalist, has a similar view of the English constitution. England is a mixed monarchy which maintains an ‘excellent temper of the three estates’ Each of the three has a power of veto in the legislature. That is good ‘for the security of the Commonwealth’, since no law can be imposed on the people without their consent. The parliament consists of the king and the two Houses. Neither the king without the Houses, nor the Houses without the king, can make laws. Ferne concurs with Hunton's sharp criticism of Herle's idea of ‘coordination’, the idea which paves the way for the two Houses’ overriding power over the king's veto. Herle and Hunton attack Ferne's The Resolving of Conscience; Ferne rebukes Hunton's A Treatise of Monarchie; and yet both Ferne and Hunton condemn Herle's A Fuller Answer.29

However, Ferne urges the people not to resist the king. Ferne's ‘mixture’ is slightly different from Hunton's. Ferne sees that the king's power is limited only in ‘the exercise of it’, and that the limitation is not ‘a power of forceable constraint, but only of Legall and Moral restraint’ When the king violates the limit, the subjects may be set free from obedience to him, but do not acquire the right to resist.30

4. Conscience and the Constitution

Ferne has a number of further points to make. Even if the king's misconduct offers a justification for resistance, who is to judge when resistance becomes justifiable? Although the Houses may consider the king to have (p.34) violated the limitation imposed by the constitution on him, they cannot force the people to fight the king, for the Houses cannot get the consent of the third part, the king.31 At this point, Ferne and Hunton are in agreement. No more than Ferne does Hunton think that the Houses have the right to command the people to resist. The king, the lords, and the commons have the binding power over the people as long as the proper balance among the three is maintained. None of the three has the power to decide when the balance has collapsed.32 Here, the two thinkers reach the same conclusion: the judgement ought to be left to an individual's ‘conscience’ Both of them resort to that notion in order to save their notion of ‘balance’ from deadlock. Ferne writes,

If Conscience could be perswaded, that it is lawfull in such a case to resist, and that this rising in arms is such a resistance as they say may in such a case be pretended to, yet can it never (if it be willing to know any thing) be truly perswaded that such a case is now come.33

And according to Hunton,

if it be apparent, and an Appeale made ad conscientiam generis humani, especially of those of that Community, then the fundamentall Lawes of that Monarchy must iudge and pronounce the sentence in every mans conscience; and every man (as farre as concernes him) must follow the evidence of Truth in his owne soule, to oppose, or not oppose, according as he can in conscience acquit or condemne the act of carriage of the Governour. For I conceive, in a Case which transcends the frame and provision of the Government they are bound to, People are unbound, and in state as if they had no Government; and the superior Law of Reason and Conscience must be judge.34

Even so, the practical implications of the arguments of the two men are totally different. Ferne's ‘conscience’ urges a man to stay calm and help restore the constitution: Hunton's suggests the need to fight for the same purpose.

Ferne expects that ‘Every man may be clearly perswaded in Conscience…that he is bound not only to forbear from resisting, but also to assist His Majesty in so just a cause.’ For Ferne, an individual's conscience is, above all, what preserves allegiance to the king and tells the individual from within not to resist the king ordained by God.35 Conscience cannot (p.35) be controlled by the Houses. The decisions of the Houses are no more than the results of voting, which merely satisfies ‘the formality of Law’ and has nothing to do with ‘an unanimous, free, and generall consent’36 Ferne, who appeals to the individual's conscience, claims that collective decisionmaking is not a proper way to judge whether resistance is warrantable to restore the balance of the constitution. He denounces the two Houses for assuming the right to that judgement. His aim is to leave the matter to the individual's conscience, which works in a sphere separate from political institutions. If only conscience is left alone by the claims of the Houses, Ferne believes, it will command a man to stay with ‘the Supreme Head of the Body’, and ‘to let Nature work it out’, for conscience always values ‘the safer way’ and prefers suffering to revolt. Although the king himself cannot exercise the authority which gives the laws binding legal force, the king himself is still ‘the Object of our subjection and obedience’ Ferne's conscience instructs the subjects to wait until the antagonism between the king and the Houses is healed, until the balance is restored, and until the king-in-parliament recovers its authority.37

Ferne can wait, but Hunton cannot, since Hunton's conscience does not recognize a debt of allegiance to the king once the constitution breaks down. When the balance collapses, nothing can master Hunton's conscience. While Hunton considers that the right to resist is justified in extremis, he claims that the parliament without the king cannot be ‘a legal court’ to judge the king's transgression. Even if the Houses resolve to resist, the decision, which is not ‘authoritative’, does not have a legal binding force. The people are not obliged to take up arms for the Houses against the king. When the constitution breaks down, the people do not have to ‘receive and rest in their [=the Houses’] judgement for conscience of its authority’38 Conscience is now freed from the authority of parliament, and begins to work on its own. In other words, as long as the king and the Houses work together and the balance is maintained, the people should adjust their moral judgements to the judgement of the parliament. In Hunton's formula, ‘conscience’ is the individual's judgement by which his consent is understood to have been given to the constitution when it was established. Judgement in conscience is a ‘moral’ judgement, not a ‘legal’ one, since it cannot force others’ judgements to reach the same conclusion. (p.36) Yet this ‘morall Power’ of judging survives under the constitution.39 A man is expected to exercise moral judgement as ‘a voluntary agent’. If there is no government, the exercise of moral judgement is left to itself. It is the government which gives the legal judgement as a form of law or command which binds men's judgement. Only the constitution of the government retains the legal authority which guides and unites the courses of the moral judgements of every individual, since under the constitution men have given their consent. The constitution, not the king or the Houses, is the repository of authority.

That is why Hunton feels so concerned about ‘the Frame’ and ‘the Being of the Government’40 Once the balance is lost, there remains nothing to control the consciences of individuals. If the balance is in danger, it must be restored before it is too late. Hunton believes, therefore, that conscience will instruct the subjects to defend the constitution. This may involve armed resistance to the king, if the purpose of that resistance is to restore the basis of obedience to the government. For Hunton, there is a clear-cut distinction between a war for peace and a mere anarchy. A short civil war might be needed to avoid a lasting civil war, for ‘a temporary evill of war is to be chosen rather then a perpetuall losse of liberty, and subversion of the established frame of a Government’41

Hunton and Ferne share a primary concern to stop the civil war, yet their approaches differ. Hunton's approach is to maintain, or to restore, the being of the government, which alone, in his eyes, can keep the legal authority alive. The constitution of the government and the social order are not the same thing. The former is the basis of the latter. Thus Hunton can assert, without any confusion of his vocabulary, that when the existence of the government is endangered, the frame should be restored at the expense of social order. For Ferne, that statement would be self-contradictory, for he believes that ‘resistance…doth tend to the dissolution of that order, for which the power it self is set up of God’42 A body politic is an enlarged image of a natural body, and any resistance to the king involves a rebellion of the body against the head, ‘which tends to the dissolution of the whole’43 It is better to suffer than resist, no matter how unreasonable the suffering may appear.44 One cannot be too cautious or too prudent, for revolt leads to anarchy. A man should not act before his ‘conscience’ is ‘truly persuaded’ In Ferne's view, the social order is not supported only by the constitutional legal authority. Even if the balance is endangered, (p.37) order can still be preserved, at least for the time being, by conscience, since conscience will tie the subjects’ obedience to the king. But once armed conflicts take place between the king and the Houses, the balance will be lost and never return.

Before the civil war, as Pocock pointed out, England faced an unprecedented situation, with which conventional political thinking was not equipped to deal.45 The regime of the king-in-parliament had broken down. Certainly, as Sommerville claims, theorists of government by consent could easily develop theories of legitimate resistance.46 What they could not offer, in my view, was a theory to consolidate the unity of the nation. It was the Answer which provided England with a theory for the consolidation of the government. Adapting the Polybian idea to English soil, the Answer maintained the Polybian concern for domestic peace. The Answer offered a new formula, ‘balance’, to sustain the authority of the government. When the balance is lost, the authority of the government is lost, and anarchy and confusion will follow. Ferne and Hunton inherited this concept. For the Answer, ‘esteem’ for the king and ‘fear’ of him were the keepers of the balance: for Ferne and Hunton, ‘conscience’ worked to support the balance and recover it when it was in danger. Hunton conceded the necessity of resistance in extremis, but did so on the ground that it could save the balance within the constitution.

Hunton's distinction between a civil war, and a short civil war to prevent an all-out civil war, became irrelevant as the 1640s went on. However, another theory which was also born of the desire to prevent civil war took a different approach. It attempted to eradicate resistance in the first place. This theory, too, was unable to prevent the disaster of the 1640s. Yet it offered a novel and striking foundation for the restoration of government from anarchy. This was Thomas Hobbes's theory of sovereignty.

Notes:

(1) For the development of English theories of mixed government, see Corinne Comstock Weston, English Constitutional Theory and the House of Lords 1556–1832 (London, 1965). Weston takes a different view, which does not differentiate Polybius from Fortescue.

(2) John Milton, Of Reformation, The Complete Prose Works of John Milton, ed. Don M. Wolfe, i (New Haven, 1953), 599. Wolfe explains that Isaac Casaubon made available Greek and Latin texts of Polybius’ Histories in 1609.

(3) Milton's view that England was a mixed monarchy seems to have been heavily influenced by Sir Thomas Smith's De Republica Anglorum. In Milton's ‘Commonplace Book’, Smith appears quite often, whereas no reference to Polybius can be found there. See ‘Commonplace Book’, Prose Works, i. 362–513.

(4) For details, see Sect. 4.1 below.

(5) For the composition of De Cive, see Warrender, ‘Editor's Introduction’, De Cive: The Latin Version, 5. John Sanderson suggests Hobbes's target is Henry Parker's Shipmony (‘The Answer to the Nineteen Propositions Revisited’, Political Studies, 32 (1984), 629), but Parker's position shares little with the one Hobbes attacks. As we saw in Sect. 1.4 above, Parker, unlike the authors of the Answer, did not describe the functional differentiations within the English constitution, and merely referred to the three estates within the Fortescuian framework. Lord Falkland, one of the co-authors of the Answer, was the host of the Great Tew circle, and Hobbes was in contact with that circle. The Polybian definition of the English constitution could have come up in the discussions of the circle. Edward Hyde belonged to the circle. Admittedly, Hyde claimed that he himself had disapproved of the use of the idea in the Answer. But that does not necessarily mean that the idea was new to him. See Edward Hyde, The Life (Oxford, 1759), 66–7; Weston, English Constitutional Theory and the House of Lords,26–33; Richard Tuck, Natural Rights Theories (Cambridge, 1979), 119; David L. Smith, Constitutional Royalism and the Search for Settlement, c. 1640–1649 (Cambridge, 1994), 90–1. Hobbes could have encountered the Polybian definition among the Great Tew circle.

(6) It was one of C. C. Weston's immense contributions to highlight the importance of the Answer. See Weston, English Constitutional Theory and the House of Lords, 5, 23–34. There are several original editions of this document. Here I use a reprinted edition in Historical Collections, ed. John Rushworth, part III, vol. i (London, 1691), 725–35. For the Answer, see also Michael Mendle, Dangerous Positions (Alabama, 1985); Smith, Constitutional Royalism and the Search for Settlement. We do not know how the Polybian idea reached Falkland and Colepeper.

(7) For the notion of balance in the Answer, see particularly Pocock, ‘Historical Introduction’, The Political Works of James Harrington, 19–23; ‘Civil War and Interregnum’ in his The Ancient Constitution and the Feudal Law: A Reissue with a Retrospect (Cambridge, 1987), 310–15.

(8) Answer, 731.

(9) The reference to Venice was not innovative in the discussion of the English constitution. For instance, Sir Thomas Smith writes: ‘So that heerein the kingdome of Englande is farre more absolute than either the dukedome of Venice is, or the kingdome of the Lacedemonians was’ (Sir Thomas Smith, De Republica Anglorum, ed. Mary Dewar (Cambridge, 1982), 85). Although the Venetian constitution was a subject of much interest in England in the late 16th and early 17th century, I can find no sign that the ideas of mixed government discussed in England in the 1640s owed anything to the Venetian model.

(10) Answer, 731.

(11) Ibid. 731–2.

(12) Ibid. 732,725,732.

(13) J. P. Kenyon (ed.), The Stuart Constitution: 1603–1688 (Cambridge, 1986), 219–20.

(14) Answer, 728,731–2.

(15) C. C. Weston and J. R. Greenberg, Subjects and Sovereigns (Cambridge, 1981), ch. iii. However, as I suggest later, I cannot agree with them about the point at which they place Philip Hunton in this group of pamphleteers.

(16) Weston, English Constitutional Theory and the House of Lords, 28; Sanderson, ‘The Answer to the Nineteen Propositions Revisited’, 636. In Subjects and Sovereigns, ch. iii, Weston and Greenberg go further, and maintain that the Answer is an essential document in the development of the idea of parliamentary sovereignty because the theoretical origin of the arguments of those pamphleteers is to be found in the Answer. I disagree. First, the view which appears in the Answer, that the English constitution consists of the three estates, had been widely available before the appearance of that document, particularly since the calling of the Short Parliament. Secondly, and more importantly, that view of the English constitution was held by all sides since it was uncontroversial, as Sommerville has pointed out. Rather, the theoretical basis of those pamphleteers who endorsed the idea of parliamentary sovereignty is to be found in the concept of government by consent, which had been far from uncommon long before 1640. See Sanderson, ‘The Answer Revisited’; Mendle, Dangerous Positions; J P. Sommerville, Politics and Ideology in England, 1604–1640 (London, 1986), 74–80.

(17) For the debates among Parker, Herle, Hunton, Ferne, and others in the period of 1642–4, see also Margaret A. Judson, The Crisis of the Constitution (New Brunswick, 1949), ch. x; Weston, English Constitutional Theory and the House of Lords, 34–43; John Sanderson, ‘But the People's Creatures’ (Manchester, 1989), chs. i, ii; Richard Tuck, Philosophy and Government (Cambridge, 1993), 226–35; Smith, Constitutional Royalism and the Search for Settlement, ch. vii; M. Mendle, Henry Parker and the English Civil War (Cambridge, 1995), 97–101.

(18) Cf. Pocock, ‘Historical Introduction’, The Political Works of James Harrington, 22.

(19) Philip Hunton, A Treatise of Monarchie (London, 1643).

(20) Ibid. 19–20, 23,34.

(21) Ibid. 25.

(22) ibid. 27.

(23) Philip Hunton, A Vindication of the Treatise of Monarchie (London, 1644), 15.

(24) A Treatise of Monarchie, 56.

(25) Ibid. 42–3. In Subjects and Sovereigns, 53–61, Weston and Greenberg place Herle and Hunton in a single group as ‘co-ordination’ theorists who undermined the idea of the exclusive legal sovereignty of the king. According to them, it was the Answer which opened the way for ‘co-ordination theory’ This theory was that the legal authority is shared by the three co-ordinate estates, the king, the lords, and the commons. More importantfy, in Weston and Greenberg's view, the theory implied the possibility that the two Houses possessed the discretionary authority without the king. They are correct in saying that Herle felt less hesitation than Hunton in allocating the discretionary authority to the two Houses; that Hunton adopted the argument of the Answer; and that Hunton admitted that parliamentary control of the Militia without the king's consent was ‘not formally legall’ but an ‘eminendy legall’ action. However, the Answer has little to do with ‘co-ordination theory’, and Hunton never says that the decision of the Houses has a legal binding force over the people.

(26) Henry Parker, Observations upon some of his Majesties late Answers and Expresses (London, 2 July 1642), 23; Charles Herle, A Fuller Answer to A Treatise Written by Doctor Ferne, entitled The Resolving of Conscience (London, 1642), 12–14. As for the change in Parker's ideas between 1640 and 1642, see M. Mendle, ‘The Ship Money Case, The Case of Shipmony, and the Development of Henry Parker's Parliamentary Absolutism’, Historical Journal, 32 (1989), 513–36; Henry Parker and the English Civil War, 70–89.

(27) A Treatise of Monarchie, 44.

(28) Ibid. 53; A Vindication, 5,13,15–16.

(29) Henry Ferne, The Resolving of Conscience (London, 1642), 25–6; Conscience Satisfied (Oxford, 1643), 6,11,16,19,25.

(30) A Reply unto Severall Treatises (Oxford, 1643), 13, 17–18,29–30,37.

(31) A Reply unto Severall Treatises, 37–8.

(32) A Treatise of Monarchie 69.

(33) The Resolving of Conscience, 4–5.

(34) A Treatise of Monarchie, 18. Also see pp. 29,73, and A Vindication, 49.

(35) A Reply unto Severall Treatises, 4.

(36) Ferne, The Resolving of Conscience, 35. Ferne says he prefers substance to formal procedure. See A Reply unto Several Treatises, 41,69.

(37) The Resolving of Conscience, 4; Conscience Satisfied, 20; A Reply unto Severall Treatises,4, 69, 91.

(38) Hunton, A Treatise of Monarchie, 73.

(39) Hunton, A Treatise of Monarchie 18.

(40) Ibid. 63,67.

(41) Ibid. 61.

(42) Ferne, The Resolving of Conscience,12.

(43) Ibid. 8.

(44) Ibid. 31–2; A Reply unto Several Treatises, 91.

(45) J. G. A. Pocock, The Machiavellian Moment (Princeton, 1975), 361–71.

(46) Sommerville, Politics and Ideology in England, 1604–1640, 69–77.