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Sir Robert Filmer Refuted

King Clothar had ordered all the churches of his kingdom to pay into his treasury a third of their revenues. But when all the other bishops, though grudgingly, had agreed to this and signed their names, the blessed Injuriosus [Bishop of Tours] scorned the command and manfully refused to sign, saying, "If you attempt to take the things of God, the Lord will take away your kingdom speedily because it is wrong for your storehouses to be filled with the contributions of the poor whom you yourself ought to feed." He was irritated with the king and left his presence without saying farewell. Then the king was alarmed and being afraid of the power of the blessed Martin he sent after him with the gifts, praying for pardon and admitting the wrongfulness of what he had done, and asking also that the bishop avert from him by prayer the power of the blessed Martin.

-- Gregory of Tours, History of the Franks, Book IV, Ch 2, illustrating the influence of sacerdotium over imperium, in contradistinction to absolutist pretensions

Some would rather be Klansmen, in robes of snowy white, and not Roman Catholics, in robes as dark as night. For a Klansman loves his people and his nation, but a Catholic is no more than a fifth column, ever prepared to commit treachery at the command of his master, the Dago Pope of Rome, his supreme overlord who lives ultra montes.

"Anarchists! Liberals! Monarchomaques!," so runs the accusation against all who reject Jean Bodin and his politique solution to the problem of religious strife, by electing one man supreme, above all law, with both sceptre and sword in his hands. His follower Sir Robert Filmer, too.

Although English jealousy of papal jurisdiction would be enshrined under Richard II, it would take the English Reformation for claims of temporal supremacy to really take precedence.

With the Submission of the Clergy Act 1533, clergy were forbidden to "enact, promulge, or execute any such canons, constitutions, or ordinances provincial, by whatsoever name or names they may be called" without royal assent. Additionally, the Court of Chancery began handling cases formerly pertaining to the archbishop.

With the Act of Supremacy 1534, it was declared such that the king "shall have full power and authority from time to time to visit, repress, redress, record, order, correct, restrain, and amend all such errors, heresies, abuses, offenses, contempts and enormities, whatsoever they be, which by any manner of spiritual authority or jurisdiction ought or may lawfully be reformed, repressed, ordered, redressed, corrected, restrained, or amended, most to the pleasure of Almighty God, the increase of virtue in Christ's religion, and for the conservation of the peace, unity, and tranquility of this realm; any usage, foreign land, foreign authority, prescription, or any other thing or things to the contrary hereof notwithstanding."

(This provision was briefly repealed under Mary's reign before being restored in 1559 by Elizabeth in her religious settlement. In both acts, an Oath of Supremacy was included that required all taking public or clerical offices to acknowledge the monarch as the supreme governor in all spiritual or ecclesiastical things or causes.)

The Act of Uniformity 1559 set the Book of Common Prayer as the official liturgy of the Church of England, to the dismay of dissenters across the country.

Stephen Gardiner tried to defend Anglican royal supremacy using a nominalist claim, later reused by Thomas Hobbes, that the Church of England consists of the same sort of people that comprise the realm of which the king is head, and that therefore if he is head of the men in the realm of England, he considers it an absurdity that the same men united as the Church of England are to be exempt.

Nevertheless, royal supremacists tried to routinely emphasize that the king was not consecrated with ministerial power to administer sacraments. After all, among other things, if the Sovereign is a Queen, this would entail ordaining a woman as a priest.

Hobbes takes this one step beyond, though. In Leviathan he states, that the authority of the Church makes a book canonical. But in De cive, the Church is defined as "the commonwealth whose will is contained in his [sovereign] will." The sovereign thus bears the person of state in politics and the person of the Church in ecclesiastical affairs. "Without the Head the Church is mute."

This was not a new line of argument. It was seen as early as 1100 with the publication of the Norman Anonymous (authorship unknown), as an English entry into the investiture controversies of the time -- and one of the most radical political texts to come out then and for a long time after.

The Norman Anonymous argued that the anointing of a monarch imputed him with the divine nature of Christ, whereas the consecration of a priest only imputed Christ's human nature. The NA thus made out the monarch to be some Judaic-esque priest-king. The king, therefore, seems to acquires the role of a priest in the order of Melchizedek (king of the righteous), putting him on par with the very incarnation of the Divine Word. A very moderate viewpoint, indeed.

Filmer was in agreement with Hobbes on almost everything the latter taught regarding sovereignty except its instantiation through a hypothetical long-distant social contract. A strict Filmerite absolutism thus seems to legitimate priest-kings.

The king acquires the canonical power of dispensation. Accordingly, he can grant toleration and relax uniformity as he wills, as when Charles II tried to extend the Royal Declaration of Indulgence in 1672. Suddenly, all that talk of royal supremacy put the high-church Anglicans in a pickle.

The Anglican episcopacy freaked out and began turning a Whiggish eye with the crown-in-parliament idea. Their priest-king had basically acquired ultramontane powers, not unlike an Anglican version of the Unam Sanctam. Suddenly, they began imputing the provisions of the (now defunct) canon law into the common law, making Parliament and the Court of Chancery the source of canonical provisions, and not the person of the king himself.

For when you intertwine reasons of faith with reasons of state, you cannot expect heresy to be stamped out. The king as Supreme Governor of the Church is caught in the dilemma where he must undercut the uniform liturgy and practice of the Anglican Communion, one of the bulwarks to his legitimacy, so the more mundane advantages from toleration of Catholics and nonconformists be reaped. Royal supremacy defeats its own purpose.

The classic example of a "realist" solution to religious division in a realm is, of course, the Peace of Augsburg. Cuius regio, eius religio -- a total hack, but it did the job. However, applying this principle to ecclesiastical territories like prince-bishoprics is a most distressing thing. If the Archbishop of Cologne decides he's a Calvinist, does this mean the Holy Church loses a diocese, protests of the Bishop of Rome be damned? Clearly not, and so the clause of reservatum ecclesiasticum was introduced to deal with this contingency.

If our Anglican sovereign king-bishop reneges on his religious commitments, however, you are done for. Which is why the Anglican sovereign king-bishop had to be turned into a parliamentary puppet so that this might be prevented. Or, in order to be a better "father to his people," he would have had to take a stance of religious neutrality for greater inclusiveness, which would have meant leaving his post sede vacante in practice. But if Canterbury wants a uniate with Rome? At which point, the king is reduced to being a statue that reads "Not Catholic" -- a mere formality that exists as a device to prevent schism.

(Indeed, many of the arguments used against papal primacy can be applied to the theory of Adam's kingship also.)

Thomas Pierce stated in his Vindication (1683) that "all [agreed that] English kings have the power to suspend or deprive a bishop," and that moreover, the king is "himself in Person, the Supreme and Sovereign Bishop of every Diocese in England." This amounted to a civil control of religion, and could not stand for those who wanted the episcopal polity to remain secure. Else what could prevent a triumph of Presbyterianism, or, God forbid, a restoration of Romanism?

In making their king a pope, the only way the Anglicans could rid themselves of popery was to get rid of their king. This is the substance of 1688 in a nutshell.

The traits of a wicked prince have long been known. As early as Sedulius Scottus' De Rectoribus Christianis in 850, they are: royal license, abundance of material goods, wicked friends and detestable courtiers. A king who carries both the sword temporal and spiritual simultaneously has plenty of opportunity for license.

Abbot Suger, in his Deeds of Louis VI the Fat written in the 12th century, links his performance of kingship with his piety, as in the coronation ritual (Chapter XIV): " On the feast of the invention of the holy Protomartyr Stephen, the archbishop anointed Louis with the most holy oil of unction. After a mass of thanksgiving, the archbishop took off his sword of secular chivalry and replaced it with the church's sword for the punishment of evil-doers, crowned him most willingly with the royal diadem, and with great devotion bestowed on him the sceptre and rod as a sign that he must defend the church and the poor, and various other royal insignia, to the delight of the clergy and people." The implication is that his will cannot reign unbounded. Moreover, when describing the rebellious baron Thomas of Marle, Suger reiterates that when the king takes the royal power, he vows to put down "insolent tyrants whensoever he sees them vex the state with endless wars, rejoice in rapine, oppress the poor, destroy the churches."

The Konungs skuggsjá [King's Mirror], published c.1250, a century after the establishment of the Archdiocese of Nidaros in Norway, and written for the education of Magnus VI of Norway, talks about the authority of kings and bishops in the last chapter. The work is structured as a dialogue between father and son. The father states that the king must not pluck anything away from the house which the bishop has in his keeping, for neither should rob the other. Moreover, the "rod of punishment" has been given to both king and bishop. Now, the mirror is rather roundabout in trying to subordinate the bishop's rod to the king and to deny him a deposing power, but it reiterates that both wield it nonetheless - the bishop's to use it with words, and the king's to use it with hands. It is added that when the bishop's rod strikes rightfully, it wounds more deeply than the king's. The bishop is supposed to be king's teacher, counselor, and guide. What we see then is the author having no choice but to accept the Gelasian diarchy of the two swords as clearly right, yet trying also in a somewhat forced manner to secure the royal prerogative.

King Saint Stephen of Hungary admonished his son Emeric: "My dearest son if you desire to honor the royal crown, I advise, I counsel, I urge you above all
things to maintain the Catholic and apostolic faith with such diligence and care that you may be an example for all those placed under you by God and that all the clergy may rightly call you a man of true Christian profession."

Francisco Suarez, one of Filmer's punching bags, makes a distinction in De legibus concerning natural law. He says that one must differentiate between natural law being from God as a first efficient cause, and for it to be from God as a lawgiver. As such, natural law indicates what is good and bad in itself.

As Suarez says, even if one is an atheist, this does not exempt you from the law of nature. Filmer does not deny this.

But what this means is that a higher law above the sovereign does exist. The king can will all he wants, but permitting sodomites to marry, infringing on the rights of fathers to discipline their children, permitting no-fault divorce, etc. etc. are always intrinsically disordering acts that will cause his realm to plummet into suicide. Since under this model the realm is the extension of the sovereign's body, it thus follows that the sovereign disobeying natural law constitutes the murder of his own body, which is a mortal sin. And yet we are told that the clergy cannot impose any discipline on this sinner, as if their ordained powers are a dead letter. The king is thus advised to be, let's call it, a "higher law fictionalist": he must act under the assumption there is such a thing if he is to be a sane man, even if he wills otherwise.

Filmer says that any system which subordinates a monarch to law makes the law the primum mobile, turning the monarch into a servant of the law rather than vice versa. In this model, all law is positivist and a Weberian monopoly on force is taken for granted as an axiom.

Giles of Rome, archbishop of Bourges, was one of those rare medieval schoolmen who defended imperial and papal claims with near equal vigor. In De regimine principum, his primary work on statecraft written c.1277-1280, written for Philip III "the Bold" of France. In Book III, Chapter 29, Giles investigates the question of whether it is better to be ruled by the best law or the best king.

He comes to the conclusion that a king must govern as an intermediary of natural and positive law. If a king ought to follow right reason in ruling others, he ought to follow natural law as a consequence. Now, of course, he is the author of positive law by his own authority and so cannot be above it. Positive law is above the ruler only to the extent that it contains the natural law. The king, however, comes into play when it comes to dealing with particulars, the positive law being the qualifications of the universal pronouncements of the natural law, and in this context he can choose not to observe laws when it is right. The king thus has a great deal of prerogative and leeway, but it is not supreme.

The premier French absolutist jurist Jean Domat did not deny the natural equality of man, he, in fact, derived absolute monarchy from natural equality as a starting point: "Because all men are equal by nature, that is to say, by their basic humanity, nature does not make anyone subject to others... But within this natural equality, people are differentiated by factors that make their status unequal, and forge between them relationships and dependencies that determine the various duties of each toward the others, and make government necessary."

It is clear why, for absolutism entails liberating one from any intermediary bonds below the king (and often a few superior bonds above him also, namely divine law), elevating the person to the immediacy of being a royal subject, which in former times was regarded as a great liberty, since one was exempted from the jurisdiction of barons. Now it is all too normal.

Is it possible for an absolute monarch to acknowledge someone on parity with him, and establish a diarchy? This is how Andorra was created and is still on paper supposed to be run, for instance. The absolute monarch is not obligated to respect any laws or oaths of his predecessors, nor is he subject to anyone but his own will and the expediency of nature. Therefore, he ought to be capable of enacting constitutional changes that can subvert him.

For instance, let me quote from the Chronicle of James I of Aragon ("the Conqueror"), a rare example of a royal autobiography and military chronicle, dictated in the mid-13th century, earliest extant manuscript published c. 1313. From Ch. 400, in the context of a noble revolt:

While the letters patent summoning my vassals were on their way, I being then at Barbastro, the Aragonese knights sent to say that if I gave them a safe-conduct, they would come to me. I gave it them, and there came Fernan Sanchez de Castro, Don Berenguer Garcia de Entenza, and Don Ferris de Lizana, who among others had bound themselves by oath to make a league. We met in the great church of Saint Mary of Barbastro; Fernan Sanchez spoke for them, and said that the oath they had sworn was not against me individually, but because I, as King, had infringed their "Fueros," and had asked of them things contrary to custom. In Exea, for instance, I had, he said, caused divisions among them, when Don Exemen de Urrea, Don Artal de Alagó, and the other barons and knights held with me, against Fernan Sanchez, Don Berenguer Garcia, and Don Ferris. I replied to those three that I had done them no injury, broken no "Fuero," taken nothing from them; on the contrary, I had given them hereditaments; Don Ferris was the holder of a good honour when he went into this business, and I had endowed the father of Don Berenguer Garcia with all he had in the world; wherefore I marvelled much they did so harsh a thing against me. And that I may make it short to you [reader] they could not come to terms with me, and I told them, since it was thus, I would have to defend myself against them.

There is a very clear contractual element here, but not with the people so-called, but rather with the king's liegemen. The respect of fueros (customary rights) and the maintenance of liegemen with benefices are the two conditions here.

Much earlier in the Chronicle, in Ch. 20, James I as a young man aged 14 describes one of his royal favorites, Don Nuño Sanchez, getting in trouble with a baron and his retinue. James says that he considered "an affront done to him equal to an affront to my own person."

Filmer, in Ch XIII of Patriarcha, actually acknowledges that "It is true that by politic human constitutions, it is oft ordained that the voices of the most shall overrule the rest. And such ordinances bind, because, where men are assembled by a human power, that power that doth assemble them can also limit and direct the manner of the execution of that power. And by such derivative power, made known by law or custom, either the greater part, or two-thirds parts, or three parts of five or the like, have power to oversway the liberty of their opposites."

As to the human power which convenes such an assembly, it could be a bishop, prelate, military commander, or simply a Big Man of some sort. Under pure absolutist assumptions, whoever could convene and direct this assembly must be the king. So be it. We can thus have a multiplicity of petty kingdoms through this process.

Alright, let us say then that the granting of military benefices with heritable jurisdiction, under the pure Filmerite absolutist schema, constitutes an act of the king deposing himself. He is surely capable of doing that. What we would then conclude is that absolute monarchy is an ideal type, and that all actually existing monarchies are, in fact, vacant thrones owing to some sort of delegation of power on part of the king that constitutes an abrogation of the pure monarchical type itself. "But this would no longer be a monarchy, then." Okay, fine. I'm not that anal about definitions. Now, the second more powerful claim is that all government must be monarchical. As Filmer himself says, if people don't know who Adam's rightful heir happens to be at the moment, that's their problem. He is always there. A more modern way of making this argument is that all governmental decision-making must logically end with one person having the final veto, who then is the de facto king. We may not know who he is, but he has to logically exist. However, I do not see why this has to be the case. It seems much more likely that due to the differentiated functions of the state, that in an oligarchy (and all government is oligarchy at the end of the day) there is not merely one person who acts as a court of appeal, but several, depending on what is being appealed, if for no other reason that there is always a specialization of tasks in every complex society. Moreover, there is no contradiction in saying that each oligarch can individually exercise the legislative-judicial-executive triad, since it all depends on his organizational acumen and influence. Thus, an oligarchy or aristocracy (which to an absolutist is by definition a disordered state little better than, if not identical to anarchy) is a series of simultaneous rotating monarchs, or a conciliar government.

In a world where every nation is a Filmerite absolutist monarchy, if one takes the international system as a whole, it must resemble this conciliar structure. As such, "divided" or "insecure" power so-called is a transaction where a territory occupied by one absolutist is partitioned into several absolutist states. Is this good or bad? We cannot say a priori. Anarchy and polyarchy are not the same, and to say that all polyarchy is intrinsically demotic, is baseless. A polyarchy could viciously guard its prerogatives (as they often tended to do), whereas a monarchy can debase itself into a democracy by pitting factions against each other (again, as they often tended to do).

Filmer's model is so static that it's an open question of how things like ethnogenesis, unification, and secession even work, except solely through Providence. And Filmer's lack of any standards for royal succession (there's always a successor out there, end of story) actually makes it difficult to know when we're dealing with legitimate Providence or with illegitimate usurpation.

Because of this, Filmerism was easily appropriated by defenders of 1688, such as Zachary Taylor, like so:

We have the same Constitution, the same Laws, the same Liberties, or Greater than we had before; and therefore if in want of all these we ought to yield (as the [Convocation Book by Bishop Overall] asserts) Obedience; in the Enjoyment of them, we ought to add unto it, Thankfulness.

[...]

Thus since GOD hath been pleased to Devest the Late King James of that Authority which he had once Committed to him, and Transferred it into another’s Hands; both Clergy and Laity according to the Doctrine of the Church of England, ought to Reverence, Obey, and be Subject to it, not only for Wrath, but also for Conscience’ sake.

's/James/William' is the path to divine-right Whiggery, evidently.

Forget about "consent" or "contract." Filmer makes many good points against their influence in the origins of constitutions, but in his fixed schema there is no way of knowing how a monarchy can autochthonously emerge. Adam is the Father, but this at best only tells us that each unit needs to be monarchical. It does not tell us about their dynamic creation and destruction. If there are many fathers who do not have deeds or charters from a superior lord but are each capable of exercising a monopoly on force on their clans and property, are they usurpers or are they monarchical states in their own right? Filmer begs the question by assuming all political constitutions are already in equilibrium, and that thus any action not originating directly from the sovereign will is a disequilibriating usurpation.

(In Chapter XXVI of Patriarcha we read that "Neither doth the diversity of laws, nor contrary customs, whereby each kingdom differs from another, make the forms of commonweal different unless the power of making laws be in several subjects." -- which seems to suggest a partitioning of states.)

All kings have their legitimating rituals that they engage with the great men and magnates of the realm. It is not merely a "contract," but nor is it merely an extension of his will alone. It is a sign of devotion and martial piety to his great men, which when properly exercised demonstrate the king to be a man above his inferiors not simply within the positive law but as his own person to be revered. And it is above all the feeling of reverence toward a superior that makes the whole absolutist solution to the problem of anarchic pluralism work. Whether you reject the technical existence of such a thing as "tyranny" as Filmer does, virtuous behavior serves to reassure his men of his fidelity as a ruler.

Hence, the Duchy of Brabant had its ceremonial royal entry, the Joyeuse Entrée, which involved the confirmation of an eponymous charter, the Joyous Entry of 1356, reserving rights to the Estates. Joseph II in 1787 decided to follow his guru Voltaire instead of the corporate order that made his possessions in the Austrian Netherlands work as a governable organic whole. Revolt ensued.

Sovereignty is not overlordship. The absolute and indivisible archon of the Bodinian imagination is an invention, picked up by Hobbes in his Leviathan, which attempts to create a fixed point for order and stability in a realm plagued by religious dissent. It posits a de facto demigod of a man who can scarcely exist as is conceived.

Lastly, but by no means most trivially, I would like to address the question of absolutism and property. Since Locke was Filmer's most famous opponent, it has been extrapolated by many that the type of patriarchal absolutism Filmer advocated was opposed to liberal property relations.

My contention is that this is backwards. It was absolutism that created liberal property relations to begin with,

The starting point for liberal property relations was that the various types of feudal tenure and the incidents attached to them, along with the heritable jurisdictions of baronies and manors, were reduced by absolutism such that every subject was elevated to the status of tenant-in-chief of the king, holding in fee simple, or if not in fee simple then all remaining feudal dues were converted to a cash rent in free and common socage, all other dues and taxes going to the royal exchequer, and all vacant estates without a heir escheating to the king automatically in the absence of any lords to exercise a right of preemption on their vassals. Ultimately, everyone but the monarch was removed from enjoying dominium directe.

The Tenures Abolition Act was passed in 1660, under the reign of Charles II (shortly after the Restoration), reading in part:

And that all tenures hereafter to be created by the Kings Majestie his Heires or Successors upon any gifts or grants of any Mannours Lands Tenements or Hereditaments of any Estate of Inheritance at the common Law shall be in free and common Soccage, and shall be adjudged to be in free and common Soccage onely, and not by Knight service or in Capite, and shall be discharged of all Wardship value and forfeiture of Marriage Livery Primer-Seizin Ouster le main Aide pur faier fitz Chivalier & pur file marrier, Any Law Statute or reservation to the contrary thereof any wise notwithstanding.

(It did exempt frankalmoin, but new grants of it by anyone other than the king were abolished in 1290.)

Henry VIII had set up a Court of Ward and Liveries in 1540 to aggressively collect revenues in estates held in knight-service from wardship of heirs below the age of majority. Additionally, the monarch had a right to propose an arranged marriage. The gentry hated it, naturally.

By that point, most obstacles on the free alienation of land had been overcome. Subinfeudation had been abolished in 1290, such that every form of alienation became a substitution (owing dues to chief lords and not mesne lords), with the Crown eventually the sole lord.

Let us look at one of the classic works of French customary law, the Etablissements de Saint Louis (1273) -- containing coutumes of Tours, Orleans and Paris.

The Etablissements open up with a prologue appealing to their legitimacy on basis of respect for tradition, that "these laws were made after great consultation of wise men and good clerks, through the concordance of laws and canons and decretals, to confirm the good practices and ancient customs, which are adhered to in the kingdom of France, in all disputes and all cases that have arisen there, and that still arise every day."

There is a clear separation between the royal demesne, administered by provosts; and baronial jurisdictions, administered by the retinue of the baron in question.
(Legal status and tenant status are distinct. The Coutumes de Beauvaisis, another great work of jurisprudence [the most famous of its particular genre, perhaps], state that: Freedom of the holder does not free the villeinage. Contra liberalism, property does not make you free. Your freedom is the product of your personal relation to your superiors, and property is always an obligation of some form -- from lands held in quitrent to copyhold lands demanding labor services, to fiefs that demand certain improvements on behalf of one's lord.)

Jurisdiction is a piece of real property in of itself.

Judicial battles are forbidden in royal lands run by provosts ("We forbid judicial battles in our whole domain in all suits"), but not in baronial ones.

The concept of levels of justice (high, middle, low) is illustrated in the case of Jews, who at the time had all their personal property held as a ward by their superiors. If a man who lives in a castellany presided by a baron owes money to one of the king's Jews and asks that the case be sent down to the baronial court, he will be denied. Similarly, Jews whose personal belongings are owned by a baron who ask that their case be sent down to a lower liegeman, will be denied.

The ecclesiastical jurisdiction was the most striking, by far. The ultramontane interpretation under the Roman canons essentially had the force of law, which is not surprising for a king as pious as Saint Louis:

If the king or the count, or a baron or some vassal who has the administration of justice in his lands arrests a clerk, or a crusader, or some man in religion, even though he were a layman, he should be handed over to the Holy Church, whatever crime he had committed. And if a clerk commits an offense for which he should be hanged or killed, and he does not have a tonsure, the secular authority should deal with him. And if he has a tonsure and a clerk's habit and can read, no admission and no answer he makes can be to his detriment; for [the secular judge] is not the judge having jurisdiction over him [ordinaire]; and an admission before a judge who is not his proper judge is invalid, according to written law in the Decretals.

From each according to his status, to each according to his law.

When we deal with aggregates like "the people," we resort to extremes. When we divide the people into functionally differentiated groups pursuing their own ends and governed by uniquely applicable laws, the pieces fall into place.

There are few greater evils than to be equal under the law, and this is where absolutism, Filmerite or any other, must lead.

Republished from Carlsbad 1819.

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