Glenn Burgess wrote:
Consensus on certain principles need not mean that there is no conflict over how those principles are to be implemented or achieved. In what follows here a complex understanding of the nature of consensus and conflict in early Stuart England will be developed. This will show how it is correct to talk of 'consensus' in the Jacobean period [the reign of James I of England and Scotland 1603–1625], even though this was in some ways a period of conflict as well. We shall also see both the persistence after 1625 of consensualist assumptions and the growth of a feeling that they were being undermined in the reign of Charles I …
… [We] identify three broad languages of political discourse produced by professional groups in early Stuart England: … 1. ‘the common law mind’, which derived from the language of common lawyers; 2. the language of civil or Roman law, attached to a small group of civil lawyers; and 3. theological languages produced by various groups amongst the clergy of the Church of England …
… It is a striking feature of the 'Jacobean consensus' that it co-existed with sharp disagreements over political policy and action, and with a range of seemingly quite different theoretical approaches to politics … How could 'consensus' exist in a world in possession of the variety of languages and theoretical traditions … If there was indeed ideological 'consensus' of some sort in the Jacobean period, then why was this also a period one in which at least some level of political conflict was evident? How did consensus survive, or even generate, conflict? …
… The place to begin any discussion of this problem is with the subject of the royal prerogative. It is around the issues of the scope, nature and limits of royal prerogative that the most significant political debates and disagreements of Jacobean political theory cohere. An examination of the ways available for talking about the royal prerogative will therefore serve well to indicate the nature of 'consensus' in the period. One thing needs to be emphasized: the conventional early Stuart understanding of the royal prerogative was a duplex one.
[Footnote: I have adopted this term [‘duplex’] from Conal Condren, George Lawson’s Politica and the English Revolution (Cambridge, 1989), where the notion of duplexity is used to demonstrate the ambiguity of Lawson's views on resistance: men, as subjects, must obey; men, as citizens, might be able to resist … Condren also uses the concept of duplexity to analyse further terms in Lawson's political vocabulary — e.g. real sovereignty /personal sovereignty, rebellion/resistance, community/polity.]
The power and authority of the king could be viewed in two quite different ways. But — and this is the crucial point — most people at the time did not see these two views as contradictory, even though in our eyes they might appear quite irreconcilable. Kings, it was widely agreed, possessed both an ordinary and an absolute prerogative. 'The King's power is double, ordinary and absolute', as Chief Baron Fleming put it in 1606. Fleming's remarks were made while giving judgement for the crown in Bate's case, and much of the subsequent debate on impositions (particularly in the Commons during the 1610 and 1614 sessions) explored in detail the distinction between absolute and ordinary prerogative … [In] the 1614 session it was stated by Sir Herbert Croft that the king possessed both an absolute and a legal/ordinary power. The general theory of prerogative that Croft proposed seems to have been accepted as a basis for the debate …
Perhaps the most important of the speeches against the royal position, and the one that seems to have structured the terms of the 1614 debate, was that of James Whitelocke. Whitelocke accepted the view that the king had a 'duplex' prerogative, ordinary and absolute (though he did not employ those terms). He argued that in every state there was a sovereign power (potestas suprema), 'a power that can controule all other powers, and cannot be controuled but by itself'. This power lay in the king,
but in the king is a two-fold power; the one in parliament as he is assisted with the consent of the whole state; the other out of parliament, as he is sole, and singular, guided merely by his own will ... : It will then be easily proved, that the power of the king in parliament is greater than his power out of parliament; and doth rule and controule it.
The power of king-in-parliament, therefore, was the suprema potestas, or sovereign power. Though Whitelocke wished to argue that the king's absolute prerogative was subordinate to his ordinary prerogative (i.e. his will exercised through parliament and the law) this was not the point that carried the weight of his position. He still ended up arguing that, though some things were properly the business of absolute prerogative ('denization, coynage, making warre'), taxation of any sort was not amongst them. All actions that amounted to the removal of subjects' property could only be done by the king-in-parliament; here also lay 'the power of erection of arbitrary government'. The distribution of tasks between absolute and ordinary prerogative was a matter of custom that could not be explained in simple rationalistic terms. Some absolute powers ‘the king hath time out of minde practised, without the gainsaying and murmuring of his subjects'. 'No man ever read any law whereby it was so ordained; and yet no man ever read that any king practised the contrary’ …
… Consensus in the period arose, fundamentally, from the recognition by all parties of shared rules for using a duplex notion of kingship. All agreed that the king's prerogatives included a number of rights that were not exercised through law and parliament, as well as many that were. Certain matters could appropriately be assigned to the legal prerogative, and consequently talked about through a language of common law. Other matters might possibly be outside the purview of the common law, matters of absolute prerogative, and thus discussable through the languages of natural law, the law of nations, or even civil law (all three tending to become much the same thing). There was also agreement on the crucial issue: English property rights were protected by common law and not subject to the incursions of the absolute prerogative. What made impositions a difficult issue was that there were good reasons for treating it in terms of both legal and absolute prerogative, and the basic dispute was over which of these the matter belonged to. On the one hand impositions looked like a tax on property: but were they a tax on English property? On the other hand, impositions were an international, not a domestic, matter: but might it be that the common law did extend to the high seas?
The Jacobean consensus worked, in spite of linguistic diversity, because there were agreed rules governing which languages applied in which situations. The debates on impositions broke out over a matter where the rules gave no simple answer. It was a debate that, in the true sense, was an exception that proved the rule (or rules, in this case). Striking, over the whole period from 1606 to 1614, was James's care to avoid breaking the rules. He believed that he inherited the right to impose customs duties from his predecessors, and he was careful to convey messages that emphasized the moderation and legality of his actions.
To put the matter in the terms we have been developing, the Jacobean consensus was based not on uniformity of opinion (or even of theory), but on a recognition by most players in the political game that there were a variety of languages of politics, each appropriate in some areas and for some audiences. Of course, most would not have put the point with this clarity. We might put the matter more informally by saying that the working of consensus required political agents not to use political languages in wildly inappropriate ways. As we shall see, it was the fact that [King] James recognized this and [his son, King] Charles did not that was one of the key differences between their kingship …
… Therefore it can be concluded that the competing languages for discussing politics — common law, civil law, and theology — were held together by the duplex understanding of royal authority. This amounts to the same thing as saying that the Jacobean consensus was held together by this same duplex theory … Royal authority was normally seen as duplex in nature. Different writers used different terminology to formulate this distinction, but we have generally employed the terms absolute (or extraordinary) prerogative and legal (or ordinary) prerogative. The relationship between these two types of prerogative was not generally conceived as hierarchical (one ruling the other), or as one between different functions (a power of 'government' versus a power of ‘jurisdiction'). Rather, the distinction was based primarily on sphere of operation. The king's ordinary prerogative was coterminous with the common law; his absolute prerogative was exercised in spheres where the common law did not hold sway (the church, international affairs) or where the common law left room for the king to act of his own will (the power of coining money, for example). In practice, however, absolute prerogative did need some sort of legal definition, and this was provided by judicious employment of civil law.
To this duplex view of kingship were fitted three languages of political discourse. Two of them related to the absolute prerogative (theology and civil law), the other to the ordinary prerogative (common law). In addition, the common law was usually thought responsible for constructing the overall framework that assigned some matters to one sphere, and others to a different one. Consequently, it could function as a sort of 'master language', which laid down the place that the other languages could have (as James acknowledged in 1610).
… Like most complex societies, England in the early-seventeenth century was characterized by complicated and subtle structures of discourse. It is only at our peril that we attempt to read particular uses of the political languages of the period without first uncovering the structures that helped to give them meaning. Part II of this book has attempted to sketch a model of these structures. Like all models it simplifies and abstracts from reality. It also tends, by the very nature of being reduced to writing, to convert unspoken, internalized conventions into written rules, and to make the whole look too schematic. But the real test of a model must be whether it goes with, or cuts against, the grain of the reality it attempts to model. If it does the former then it will prove enlightening, whatever its simplicities.
We began by examining the 'Jacobean consensus', which used three languages to discuss a duplex theory of kingship. Each of those languages could, and normally was, used quite uncontentiously. Divine right theory was quite happily used to stress the absolute duty of subjection. There was nothing controversial about this, nor was it seen as contradicting the idea that kings must do at least some things legally, provided (a) that the language was used non-specifically, without reference to particular questions of law; and (b) that it was used to an appropriate audience. Similarly, civil law language (including reason of state) could be used to discuss the kings powers outside of England and of the common law (for example in Ireland or over international commerce), without arousing controversy. The third language, that of the common law, possessed hegemonic status. It defined the appropriate sphere within which other languages operated. Above all, it was the primary (not quite the sole) language used for the discussion and resolution of domestic political conflict. There was, in short, no conflict between the divine right of kings and the common law, or theories of government by consent: they were used to address different problems in different contexts.
After 1625 this model began to dissolve (though we should not overemphasize either the speed or extent of this dissolution). It dissolved under the impact of a king who did not govern his utterances by the unspoken conventions that have just been summarized …
… Thus the period 1625-42 in the history of English political discourse is marked by the transition between two systems of discourse. The first — the Jacobean consensus — was dominated by a hegemonic common law. The common law provided a mentalité within which men thought of liberty and property, though this did not exclude them thinking also of divine right and conquest in other areas. Under the pressure of Charles's attempt to use the law as a weapon for his own battles there developed a crisis of the common law. This breaking of confidence in the law also destroyed the hegemony of common law discourse and the 'common-law mind’ as mentalité.
Glenn Burgess*, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603-1642, Palgrave Macmillan 1992 [pp. 113, 116-117, 139-141,143, 144-145, 212-213, 225]
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