Posted by: Democratic Thinker | August 5, 2016

Monarchical Theory of Modern Europe

Background of the American Revolution

 
 
In 1830, John Allen—Master of Dulwich College—publishes a history of the rise of the monarchy in England.

The Kings of the Barbarians were delighted with the titles and trappings of the empire, and with childish vanity in the imitation of Roman forms and customs.


 

 

INQUIRY
INTO THE
RISE AND GROWTH
OF
THE ROYAL PREROGATIVE
IN
ENGLAND

—————

Monarchical Theory of Modern Europe.
[Second Chapter]

—————

Canon and Feudal Law.

IT is in the first place to be observed that the fiction of an ideal King, to whom all the powers of sovereignty are confided, is not peculiar to England. It is to be found in all the monarchies of Europe, established on the subversion of the Roman empire. However different in other respects, all these governments agree in recognizing, as the fundamental principle of their constitution, that the sovereign power of the commonwealth resides in the King. It is in the next place a coincidence not less remarkable, that, after teeing down this principle in terms the most general and unqualified, they all agree in admitting certain constitutional checks and limitations on the exercise of the supreme and absolute authority with which he is vested. What the law appears to give, long-established usage is supposed, in the most arbitrary governments, to moderate and restrain. In theory the King of France, before the revolution, was held in law to be an absolute, but in practice to be a limited, monarch. His power was said to be supreme, but it was to be administered according to fundamental laws. He was the source of all authority civil and political, but he was to govern by the fixed courts and magistracies of his kingdom. His will was law, and, as such, was to be obeyed; but in issuing his commands, he was bound to respect the honour and even the prejudices of his subjects. He was the judge of his people, but he could not exercise any judicial function in person. He was the sole proprietor of land in his kingdom, but he could deprive no man of his inheritance, unless by a judgment of law, over which he had no control. If he transgressed these rules, he ceased to be a King, and degenerated into a despot.1

1 Esprit des Lois, ii. 1,4; iii. 8, 10; vi. 5; viii. 6; xxvi. 15.

Antiquity of this theory.

This opposition between monarchy in theory and in practice is as ancient as the existence of regal government in modern Europe. We find it in the earliest records of the Barbarians after their establishment in the empire, and the collisions to which it has given rise between kings and their subjects form none of the least interesting portions of the history of the middle ages. The farther back we carry our researches the stronger is the evidence we discover, that, however the monarchical theory may have been proclaimed in law books and magnified by churchmen, it was never reduced, strictly and completely, to practice; nor was it ever recognized or quietly submitted to by the people as the government handed down to them by their ancestors. We meet with continual struggles between Kings and their subjects, in which both parties appeal to their rights in support of their pretensions. If the King claims the prerogative vested in him by law, the people oppose to him ancient usages and privileges that restrain its exercise. On some occasions the King has proved victorious. At other times his subjects have had the advantage. Every nation in its turn has been threatened with anarchy or subjected to despotism. Like the good and evil principles of the Persian magi, liberty and prerogative have been in perpetual conflict; and though in this country, and latterly in France, the better principle has gained the ascendency, arbitrary power has more frequently prevailed, and by force or artifice has extended its empire over the fairest portions of the continent. But in no country, where the forms of royalty have been retained, has the feud been ever completely extinguished. In the most limited monarchy the King is represented in law books as in theory an absolute sovereign. In countries, where the constitutional checks to his will are the least powerful, there are obstacles, more or less effective, to his caprices. But where a government presents such contradictions between its theory and practice, it cannot have been founded originally on any uniform or systematic plan. The theory, which ascribes absolute power to the monarch, cannot have been derived from the same principles that oppose constitutional checks to his prerogative. Such a government is manifestly the result of two separate, independent forces, acting in different directions, and producing, as they alternately preponderate, an inclination, sometimes to liberty, at other times to despotism. Nor is it difficult to discover from what sources these impelling forces had their origin.

Not derived from the ancient Germans,

It is plain the monarchical theory cannot have been derived from the ancient Germans. In most considerable of the Germanic tribes the form of government was republican. Some of them had a chief, whom the Romans designated with the appellation of King, but his authority was limited, and in the most distinguished of their tribes the name as well as the office of King was unknown. The supreme authority of the nation resided in the freemen of whom it was composed. From them every determination proceeded that affected the general interests of the community, or decided the life or death of any member of the commonwealth. The territory of the state was divided into districts, and in every district there was a chief, who presided in its assemblies, and, with the assistance of the other freemen, regulated its internal concerns, and in matters of inferior importance administered justice to its inhabitants. These chiefs met in council by themselves, and discussed, in private, affairs relating to the general welfare; but their resolutions had no authority till they had been confirmed and ratified by the general assembly of the tribe. When a national war was undertaken, one of the chiefs was selected to command the army; but on the return of peace his rank and authority as general ceased, and he reverted to his former station. This form of government subsisted among the Saxons of the continent so late as the close of the seventh century, and probably continued in existence till their final conquest by Charlemagne. Long before that period, however, the tribes that quitted their native forests and established themselves in the empire, had converted the temporary general of their army into a permanent magistrate, with the title of King. But that the person decorated with this appellation was invested with the attributes ascribed to royalty in after times is utterly incredible. Freemen, with arms in their hands, accustomed to participate in the exercise of the sovereign power, were not likely, without cause, to divest themselves of that high prerogative, and transfer it totally and inalienably to their general. Chiefs, who had been recently his equals, might, in consideration of his military talents, and from regard to their common interest, acquiesce in his permanent superiority as commander of their united forces; but it cannot be supposed that they would gratuitously and universally submit to him as their master. There are no written accounts, it is true, of the conditions stipulated by the German warriors with their general when they converted him into a King. But there is abundance of facts recorded by historians, which show beyond a doubt, that, though he might occasionally abuse his power by acts of violence and injustice, the authority he possessed by law was far from being unlimited.

but from the Roman Provincials.

Widely different was the condition of the Provincials. Whatever were the artifices by which Provincial Augustus had disguised his usurpation of the sovereign power, they had been long since laid aside. Whatever had been the moderation he affected in the exercise of that authority, it had been long since discarded by his successors. The government of the Roman world had been for ages a pure, unmitigated despotism, in its worst and most odious colours. The prince possessed in theory, and exercised in practice, every power of the state. He was invested with the most ample and most absolute authority ever enjoyed by man. The legislative, judicial, and executive functions of government, were united in his person, and used according to his caprice. He was the sole magistrate of the commonwealth, the others being merely his delegates, and answerable only to him. The lives, liberties, and properties of his subjects were at his mercy. His word was law, his sentence without appeal, and the course of judiciary proceeding dependent on his will. He could impose what taxes he pleased, and levy them at his discretion. He had the right of peace and war, the sole and exclusive command of the army, the power to levy troops, to appoint and displace their officers, to regulate their discipline, and to reward or punish them without control. There was no authority in the state, civil or political, that was not derived from him, and was not revocable at his pleasure. The only barrier against his vices was the power of the military, whose support or defection raised him to the purple or precipitated him from the throne. The Christian clergy had acquired a sectarian influence over their flocks, but they had not yet ventured to interfere with the civil power, or attempted to regulate and disturb the state. If they ever exercised control over the imperial despot, it was by their authority over his conscience, and by appeals to his piety or superstition. It was an ascendency entirely spiritual, unconnected with temporal dominion.

In what manner introduced among the Barbarians.

From this contrast of imperial despotism with the free institutions and independent character of the Germanic tribes, it is impossible to mistake the origin of that monarchical theory, which soon began to rear its head in every country occupied by the Barbarians. Repugnant to the genius, and at variance with the usages and ideas of the Germans, it was a phantom borrowed from imperial Rome, and insinuated by its servile ministers into the legal forms and language of their conquerors. It was the doctrine of civilians that the Roman people had transferred to their emperor the whole power and authority of the state, in consequence of which he became the sole organ and representative of the commonwealth. Whatever he pleased to ordain, was law. Whatever he commanded, was to be obeyed. These maxims had been theoretically established and practically enforced for ages when the empire became a prey to the Barbarians. The conquerors, accustomed to different notions of government, were not inclined to part with the liberty and freedom from restraint, which they had enjoyed in their native woods; but the new situation in which they were placed, their dispersion over a vast territory, amidst nations they had subdued and plundered, made it necessary, for their common safety, to strengthen the arm of government, and entrust to a few what had formerly been the property of the whole. In practice, they gave up as little as possible of their ancient independence, and when roused by a sense of real or imaginary wrong, they were ready at all times to assert with their swords the rights they had inherited from their ancestors. But, in the changes that became necessary in their written laws, in the instructions to public officers for the administration of their internal government, and in the legal forms required for the secure possession and transmission of property, to which they had formerly been strangers, they were compelled to have the aid of provincial churchmen and lawyers, the sole depositaries of the religion and learning of the times. These men, trained in the despotic maxims of the imperial law, transfused its doctrines and expressions into the judicial forms and historical monuments of their rulers; and thus it happened, that if the principles of imperial despotism did not regulate the governments, they found their way into the legal instruments and official language of the Barbarians. An imaginary King or prince was created, in whom, by a legal fiction, was invested all the power and majesty of imperial Rome. The same names were even affected. The Barbarian, who had recently exchanged his title of heretoga for that of King, was persuaded to style himself Basileus, in imitation of the eastern emperors, or to prefix the appellative Flavius to his name; his sons and cousins were called Clitones or illustrious; his servants became Palatine officers, and his crown an Imperial diadem.

Conditions of the Provincials under their new masters.

Abject and degraded as the Provincials had become in the last ages of the empire, they were superior in knowledge and mental attainments to their conquerors, and speedily acquired an influence in the direction of their affairs. As a body they were placed on an inferior footing, the life of a Barbarian being estimated at twice the value of that of a Roman of the same condition; but individually they found admission into the courts and palaces of their new masters, and were elevated to the highest offices of the state, and received among the guests or companions of the King. Churchmen for several generations were taken almost exclusively from their ranks1; and as the Barbarians, on their conversion, transferred to the Christian clergy the veneration and deference they had entertained for their ancient priests, the class from which churchmen were selected could not fail to obtain consideration and respect. Bishops were employed in secular concerns, entrusted with embassies, invested with judiciary authority, and placed on a par with the chiefs and magistrates who directed the affairs of government. Though the empire was subverted, everything Roman was not destroyed. The distinctions of rank and condition in the great body of the provincials were maintained. The Roman proprietor was despoiled of part of his lands, but he was secured in the possession of the rest. The Roman law continued in force, as the personal law of the vanquished, in every part of the continent subjected to the dominion of the Barbarians. In many of the countries they subdued, it finally predominated over their original customs; and in all it entered largely into the collections and codes of law which they subsequently framed for their own use. The municipal institutions of Rome survived, in all or in most of her provinces, the destruction of her empire, and came at length to be amalgamated and indissolubly united with the inferior magistracies of her conquerors2. Is it then to be wondered at that the political maxims and principles of her government insinuated themselves into the states erected on her ruins, and tainted, if not the substance, the forms at least and language of their public law?

1 Fleury, Hist. Eccles. xiii. 27. Edition of 1721. Montesq. Espr. des Lois, lib. 30. ch. 12.1 Savigny’s History of the Roman Law in the Middle Ages, i. 274, 295-306, 387-433.

2 Savigny’s History of the Roman Law in the Middle Ages, i. 274, 295-306, 387-433.

Progress of the monarchical theory among the Barbarians.

When the servile language of the empire was first addressed to their rulers, the rude and illiterate Germans must have disregarded and despised the the unmeaning flattery of the abject herd they had subdued. They could hear with indifference their Kings invested with the plenitude of despotic authority, and proclaimed the representatives and sole depositaries of the national power. They looked, not to parchments and to legal forms, but to their valour and to the recollections of their ancient freedom, for the preservation of their rights; and with the carelessness and improvidence of Barbarians, they tolerated and tacitly acquiesced in the exaltation of their rulers, so long as it was confined to words and empty declarations. When roused by long-continued and wide-spreading oppression, or provoked by taxes and impositions without their consent, they flew to arms, and punished with merciless severity the authors and instigators of these iniquities. But if the oppression was local and occasional, it excited no general sympathy in their minds. They were accustomed to inflict or endure violence and injustice; and whether these proceeded from governments or individuals, none but the actual sufferers complained or called for redress. We must not, therefore, judge from particular acts of power of the general spirit of their government; nor allow ourselves to be misled by the judicial forms and expressions it was suffered to employ. The Barbarian, who had justice done to him in the ancient tribunals of his nation, inquired not in whose name it was administered. If he obtained the lands he wanted, it was indifferent to him in what form they were granted. He received them from the public authorities of the state, and cared not whether, in the act of donation, they were described as gifts of the King or of the kingdom.

Imitations of the Imperial Court by the Kings of the Barbarians;

The Kings of the Barbarians were delighted with the titles and trappings of the empire, and with childish vanity in the imitation of Roman forms and customs. Edwin, a petty King of the Northumbrians, had a standard-bearer to precede him in his progresses through the kingdom, and was not content to go from one house to another without a Roman tufa carried in procession before him1. Leuvigild, the Visigoth, had a diadem fashioned for his use, and assumed with it the style and purple robes of the empire. The fierce Odoacer was flattered with the title of Patrician, which, at the request of the Roman senate, he obtained from Constantinople. Even the great Theoderic condescended to accept from the same quarter the rank of Consul and Patrician; and though his good sense rejected the appellation and emblems of the Imperial dignity, he established in his court at Ravenna all the titles, offices, and gradations of authority, that had dazzled the Provincials while subjects of the empire2. Clovis, in imitation of Theoderic, received from the Emperor Anastasius the empty honours of the Consulate; and after having been decorated with a purple mantle, he had the satisfaction to hear himself saluted Consul and Augustus by his subjects3. His sons obtained from Justinian the concession of all the rights of the empire in Gaul; a transaction from which the Abbé Dubos4 has inferred that the Kings of France acquired a legal right to the absolute authority they afterwards possessed. It is possible that, in the eyes of the Provincials, the cession of Justinian gave a sort of legal sanction to the right of conquest. But the grant was nominal. Gaul had been long separated from the empire. At all events Justinian had no authority and could confer no dominion over the Franks.

1 Bed. Hist. Eccl. ii. 16.

2 Theoderic not only restored the state and household of the Emperors, but preserved entire their provincial government, and filled with Romans almost all the offices in those various departments.—Savigny, i. 320.

3 Gregor. Tur. ii. 38.

4 Hist. Crit. v. 10; vi. 1, 16.

When Charlemagne revived the western empire, he had too much sense to ape the manners of the Imperial Court in his intercourse with his Germanic subjects. In his dress he retained the ancient simplicity of his countrymen1; and in his public acts, with the title of Emperor, he continued to style himself King of the Franks. His feeble successors were not satisfied with this moderation. His grandson Charles wore the ornaments and introduced the ceremonial of the Byzantine Court; and disdaining the appellation of King, he insisted on being called Augustus, and Emperor over all the Kings of the West2. In imitation of this folly, under pretence of maintaining their independence, the petty kings and princes in England and Spain assumed and made ridiculous the Imperial titles they affected3.

1 Eginhard.

2 Théorie des Lois Politiques de France, viii. Preuves, 283.

3 Ducange, Gloss, voce Imperator.

but their real power continured limited.

But, amidst the honours and decorations with continued which royalty was clothed by its flatterers and admirers, the rough garment of the Barbarian was seen to peep from under the borrowed purple of the empire. The real King, to whom these imposing titles and high-sounding claims were attributed, remained, as before, the chief of a warlike and turbulent people, regardless and hardly conscious of this fictitious change in his condition. The ideal King of the churchmen and civilians was an absolute prince, in whom were centred the whole power and majesty of the state. The real King, limited in his authority by ancient usage, depended on his personal qualities for the degree of power he possessed; and when seduced by his imaginary dignity to extend the bounds of his prerogative, he had not unfrequently to pay, with his life or deposal, the penalty of his rashness and presumption.

Gradual progress of royal authority.

After a time, however, the language of adulation, repeated in every act and instrument of government, produced its effect. Men, accustomed to hear their prince described as the source and depositary of their laws, began to think there must have been some ground for the assertion. The real power of the King, as general in war and chief magistrate in peace, when seasonably enforced and skilfully improved, enabled him to prosecute on many occasions with success his encroachments on the ancient usages and privileges of the nation. Order was maintained and justice administered in his name; and as respect for order and justice gained ground, his subjects, who considered themselves indebted for these blessings to his care, were often induced to acquiesce in pretensions and submit to usurpations, which had no other origin than a theory of government, founded on fiction, borrowed from a foreign law, and fortified by time, because it had been suffered to pass without contradiction by those who, rejecting its authority in practice, were hardly aware of its existence in words. After many a struggle between liberty and prerogative, the result has been in England that the real power of the King has been limited and defined by constitutional law and usage, but that the old attributes are still ascribed to him in law books; that an incongruous mixture of real and imaginary qualities has been formed, which has been called the union of his natural with his mystic or politic capacity; and that many privileges and peculiarities have been assigned to him in his natural person, for reasons derived from his ideal or politic character.

Divine origin attributed to monarchy.

In one respect the ideal King of the Barbarians was induced by his churchmen to make a higher pretension than had been ever claimed or asserted by the Roman Emperors. The latter, however tyrannical in their conduct, professed to derive their power by delegation from the people; and in proof of that delegation, their lawyers referred to the celebrated Lex Regia, by which the Roman people were supposed to have conferred on their prince the whole power of the commonwealth1. But the ideal King of our ancestors, under the tuition of hi clergy was taught to derive his power from Heaven. Though raised to the station he held by the election of his people, the nomination of his predecessor, or the cabals of his partisans, the instant he attained that dignity, he was made to style himself King by the Grace of God2. In imitation of the Jewish monarchs, he was anointed with oil and consecrated by a priest; and to impress a greater sanctity on his character, he was saluted as the Vicar of Christ over Christian people3. These pretensions, which have given rise to so much idle discussion in times comparatively modern, are as ancient as the Anglo-Saxon period of our history. Under the Normans and Plantagenets they were not abandoned. Henry I., notwithstanding the irregular steps by which he mounted the throne, styles himself King by the Grace of God4; and his grandson, one of the most imperious of our princes, in a controversy he maintained with the Bishop of Chichester concerning the immunities of Battle Abbey, had the hardihood, in the presence of his assembled nobles and clergy, to assert that his royal dignity was given to him by God5, though there were many present who must have known that he had obtained it by a convention with Stephen guaranteed by the great men of the kingdom.

1 Quod principi placuit, legis habet vigorem; utpote cum Lege Regia quæ de imperio ejus lata est, populus ei et in eum omne suum imperium et potestatem conferat.— Pandect. 1. 1. t. 4. See also Instit. Tit. 2. § 6; and Codex, 1. 1. t. 17. § 7.

2 Ancient Laws and Institutes: Preamble to Dooms of Ine; and Codex Diplomaticus, passim. Selden’s Works, iii. 128. Mabillon de Re diplom. 1. 2. c. 3. The letter of Pope Gregory to Æthelbert, King of the Kentishmen, insinuates to that prince, in no ambiguous terms, that he had been set over his people by the special appointment of Providence. Beda, H. E. i. 32.

3 Laws of Æthelred, ix. 2, 42. In the acts of a synod or council held at Cealchythe in 785, the petty King of the Mercians is repeatedly called christus Domini; and texts are accumulated from Scripture, to show that his person is sacred and inviolable. Wilk. Cone. i. 148. In a Saxon homily quoted by Wheloc (Beda, 151) the King is styled Vicar of Christ, consecrated to be Shepherd of the Christian people whom Christ has redeemed, and Christ is said to have given him authority under himself.

4 Charter to Archbishop William, and to the minister of Christ Church, Canterbury. Lye’s Diction. App.

5 Spelman, Cone. ii. 58.

But if Kings derive their power from Heaven, it was held there could be none on earth to control them, or call them to account. However capricious or tyrannical their conduct, it was the duty of subjects to obey, or at least to oppose no active resistance to their commands. Rebellion was declared to be sacrilege; and the persons guilty of so heinous a crime were excommunicated, and devoted to eternal perdition in company with the devil and his angels1. Texts from St. Paul, intended to inculcate obedience on Christian people under every species of government, were restricted by these commentators to the government of Kings; and, what is almost incredible, the prophetic denunciations of Samuel against kingly government were adduced as proofs from Holy Writ, that Kings may lawfully do what they please, and that it is sinful to oppose their will2.

1 Cone. Tolet. iv. 75.

2 Mably, Obs. sur l’Hist. de France, 1. 1, ch. 3.

—John Allen, Inquiry into the Rise and Growth of the Royal Prerogative in England.


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Inquiry into the Rise and Growth of the Royal Prerogative in England.
(Read the entire book.)
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