A very important piece of historical interpretation
The change in political thought - or at least in political sentiment - which was beginning in the sixteenth century was stealthier. It has left its mark on some purely literary texts. In Malory Sir Mador says to Arthur, Though ye be our king in that degree, yet ye are but a knight as we are (xviii. iv). The slaying of a bad king like Mark excites nobody's disapproval (xix. xi). Lancelot spares Arthur in battle, not because he is a king simply, but because he is that most noble king that made me knight (xx. xiii). In Jacobean drama we find a very different tone. Amintor, on learning that the man who has injured him is the king, says that that very name wipes away all thoughts revengefull, and has in it a terror which paralyses mortal arms (Maid's Tragedy, II. i). Camillo cannot find in all history a single instance of a man who has struck an anointed king and flourished after (Winter's Tale, I. ii. 358). No doubt allowance should be made for court patronage in these dramatic examples, and for the French origin in Malory. But there is no question that in these quotations we hear the echo of a very important change in men's attitude to the royal power. The doctrine of Divine Right has risen above the horizon. During the following century it will reach its full blaze of paradox in Filmer’s Patriarchia, Hobbes's Leviathan, and Bossuet's Politique tirée de l'Escriture Sainte.
It would, however, be easy to exaggerate the adherence to this doctrine in sixteenth-century England. Emphasis on the sacred authority of the Prince does not necessarily mean that the Crown is being exalted against Parliament or the Common Law. "Prince" could often be translated "government" or "State". It would also be easy to miss the true and permanent significance of what was happening if we overstressed its connexion with one particular form of government, the monarchical. That connexion (as Hobbes knew) was temporary and largely accidental. The Divine Right of Kings is best understood as the first form of something which has continued to affect our lives ever since - the modern theory of sovereignty. It is often called Austinian, but might just as well be called Johnsonian, for it is very clearly stated in Taxation No Tyranny; all government is ultimately and essentially absolute. On this view, total freedom to make what laws it pleases, superiority to law because it is the source of Iaw, is the characteristic of every state; of democratic states no less than of monarchical. That doctrine has proved so popular that it now seems to many a mere tautology. We conceive with difficulty that it was ever new because we imagine with difficulty how political life can ever have gone on without it. We take it for granted that the highest power in the State, whether that power is a despot or a democratically elected assembly, will be wholly free to legislate and incessantly engaged in legislation.
It seems, however, quite certain that many ages (not barbarous) believed nothing of the sort. Aristotle (Politics, 1282b) explicitly ruled that the highest power should hardly legislate at all. Its function was to administer a pre-existing law. Any legislation there was should be directed to supplementing and particularizing that law where its necessary generality failed to meet some concrete situation. The main outlines of the law must be preserved. It creates, and is not created by, the State. I do not know that Aristotle ever tells us where this original and immutable law came from; but, whether derived from our ancestors or from a philosophical constitution-maker, it must be accepted by the State as a datum. There is no sovereign in the Johnsonian sense. Roman practice and Roman jurisprudence took a very different view, but the Middle Ages (at first unconsciously) reverted to Aristotle. Two factors worked against the emergence of a theory of sovereignty. One was the actual dominance of custom in medieval communities. England, says Bracton, uses unwritten law and custom (De Legibus, I. i) - speaking truly about England, though wrongly thinking that this was peculiar to her. A. J. Carlyle quotes coronation oaths (not English) in which the king swears to keep les ancienes costumes. Pleas are to be decided selonc les costumes: custom is to be determined either by the previous decision of a court, or, significantly, by the fact that no one can remember when it was not so. This law or custom is the real sovereign. The King is under the Law for it is the Law that maketh him a King (Bracton, I. viii). It is true that Bracton often exalts the power of the king, but he is thinking of it as an executive power. The other factor was the doctrine of Natural Law. God, as we know from Scripture (Rom. i.15), has written the law of just and reasonable behaviour in the human heart. The civil law of this or that community is derived from the natural by way of particular determination' (Aquinas, Summa Theol. 1a. 2ae. xcv. iv). If it is not, if it contains anything contrary to Natural Law, then it is unjust and we are not, in principle, obliged to obey it (ibid. 2a. 2ae. LX. v). Sedition is, of course, a sin; but then the perturbatio of a tyrant (defined, from Aristotle, as one who rules in his own interest) is not sedition, for his rule is unjust (ibid. 2a. 2ae XLIi. ii). Thus for Aquinas, as for Bracton, political power (whether assigned to king, barons, or the people) is never free and never originates. Its business is to enforce something that is already there, something given in the divine reason or in the existing custom. By its fidelity in reproducing that model it is to bejudged. If it tries to be original, to produce new wrongs and rights in independence of the archetype, it becomes unjust and forfeits its claim to obedience.
It would be quite impossible here to suggest the causes, or even to trace the process, of the change which introduced the concept of sovereignty. Wycliffe, a pioneer of the new theory, was exceptional in his own age. The years 1445 and 1446 are important: in the first the Cortes of Olmedo announced that it was contrary to divine law to touch the Lord's Anointed, and the second saw the publication of Aeneas Sylvius' De Ortu Imperii Romani in which he declares the emperor to be legibus solutus. Nor can I here deal with works which attacked the novelty. Its naturalization in England may be seen in Tyndale's Obedience of a Christian Man (1528), where we are told that The King is in this world without lawe and may at his owne lust do right and wrong and shall give accounts to God only. It is true that this quotation gives (by itself) a false impression of Tyndale's character and of that strange treatise in which he flings such appalling power to Henry VIII almost scornfully, like a bone to a dog; but it is a fair illustration of Tyndale's political theory. The First Book of Homilies (or, to give it its true title, Certain Sermons or Homilies) (1547) substantially agrees with him: rebellion is in all circumstances sinful.
(C.S.Lewis, History of sixteenth-century English literature, excluding drama, Oxford 1957, pages 46-50)
It would, however, be easy to exaggerate the adherence to this doctrine in sixteenth-century England. Emphasis on the sacred authority of the Prince does not necessarily mean that the Crown is being exalted against Parliament or the Common Law. "Prince" could often be translated "government" or "State". It would also be easy to miss the true and permanent significance of what was happening if we overstressed its connexion with one particular form of government, the monarchical. That connexion (as Hobbes knew) was temporary and largely accidental. The Divine Right of Kings is best understood as the first form of something which has continued to affect our lives ever since - the modern theory of sovereignty. It is often called Austinian, but might just as well be called Johnsonian, for it is very clearly stated in Taxation No Tyranny; all government is ultimately and essentially absolute. On this view, total freedom to make what laws it pleases, superiority to law because it is the source of Iaw, is the characteristic of every state; of democratic states no less than of monarchical. That doctrine has proved so popular that it now seems to many a mere tautology. We conceive with difficulty that it was ever new because we imagine with difficulty how political life can ever have gone on without it. We take it for granted that the highest power in the State, whether that power is a despot or a democratically elected assembly, will be wholly free to legislate and incessantly engaged in legislation.
It seems, however, quite certain that many ages (not barbarous) believed nothing of the sort. Aristotle (Politics, 1282b) explicitly ruled that the highest power should hardly legislate at all. Its function was to administer a pre-existing law. Any legislation there was should be directed to supplementing and particularizing that law where its necessary generality failed to meet some concrete situation. The main outlines of the law must be preserved. It creates, and is not created by, the State. I do not know that Aristotle ever tells us where this original and immutable law came from; but, whether derived from our ancestors or from a philosophical constitution-maker, it must be accepted by the State as a datum. There is no sovereign in the Johnsonian sense. Roman practice and Roman jurisprudence took a very different view, but the Middle Ages (at first unconsciously) reverted to Aristotle. Two factors worked against the emergence of a theory of sovereignty. One was the actual dominance of custom in medieval communities. England, says Bracton, uses unwritten law and custom (De Legibus, I. i) - speaking truly about England, though wrongly thinking that this was peculiar to her. A. J. Carlyle quotes coronation oaths (not English) in which the king swears to keep les ancienes costumes. Pleas are to be decided selonc les costumes: custom is to be determined either by the previous decision of a court, or, significantly, by the fact that no one can remember when it was not so. This law or custom is the real sovereign. The King is under the Law for it is the Law that maketh him a King (Bracton, I. viii). It is true that Bracton often exalts the power of the king, but he is thinking of it as an executive power. The other factor was the doctrine of Natural Law. God, as we know from Scripture (Rom. i.15), has written the law of just and reasonable behaviour in the human heart. The civil law of this or that community is derived from the natural by way of particular determination' (Aquinas, Summa Theol. 1a. 2ae. xcv. iv). If it is not, if it contains anything contrary to Natural Law, then it is unjust and we are not, in principle, obliged to obey it (ibid. 2a. 2ae. LX. v). Sedition is, of course, a sin; but then the perturbatio of a tyrant (defined, from Aristotle, as one who rules in his own interest) is not sedition, for his rule is unjust (ibid. 2a. 2ae XLIi. ii). Thus for Aquinas, as for Bracton, political power (whether assigned to king, barons, or the people) is never free and never originates. Its business is to enforce something that is already there, something given in the divine reason or in the existing custom. By its fidelity in reproducing that model it is to bejudged. If it tries to be original, to produce new wrongs and rights in independence of the archetype, it becomes unjust and forfeits its claim to obedience.
It would be quite impossible here to suggest the causes, or even to trace the process, of the change which introduced the concept of sovereignty. Wycliffe, a pioneer of the new theory, was exceptional in his own age. The years 1445 and 1446 are important: in the first the Cortes of Olmedo announced that it was contrary to divine law to touch the Lord's Anointed, and the second saw the publication of Aeneas Sylvius' De Ortu Imperii Romani in which he declares the emperor to be legibus solutus. Nor can I here deal with works which attacked the novelty. Its naturalization in England may be seen in Tyndale's Obedience of a Christian Man (1528), where we are told that The King is in this world without lawe and may at his owne lust do right and wrong and shall give accounts to God only. It is true that this quotation gives (by itself) a false impression of Tyndale's character and of that strange treatise in which he flings such appalling power to Henry VIII almost scornfully, like a bone to a dog; but it is a fair illustration of Tyndale's political theory. The First Book of Homilies (or, to give it its true title, Certain Sermons or Homilies) (1547) substantially agrees with him: rebellion is in all circumstances sinful.
(C.S.Lewis, History of sixteenth-century English literature, excluding drama, Oxford 1957, pages 46-50)