The fictional frame narrative of the Conference about the next succession to the crowne of Ingland reports that, in April 1593, a group of gentlemen ‘of divers nations, qualities, and affections, as wel in religion as otherwise’, met to discuss the vexed question of the succession to Elizabeth I. News was brought to them that an attempt to have parliament settle the matter, namely the meetings led by Peter Wentworth and Henry Bromley, had failed.Footnote 1 At this point, a civil lawyer and a common lawyer among them argued that this failure was fortunate for the realm, and that nominating a successor during Elizabeth's lifetime would imperil the queen and the kingdom. Each offered reasons to think that there were too many candidates, with too little to distinguish them. The common lawyer outlined the difficulties in discerning the identity of the heir-presumptive, which revolved around whether dynastic lines might be excluded from the succession, either through attainder or bastardy. The different ways in which the relevant statutes might be interpreted left, he said, ten or eleven plausible pretenders to the throne. The civil lawyer further complicated matters with his argument that the heir-presumptive, even if his (or her) identity were known, might be barred from succession under certain circumstances, such as ‘if he should be taken by Turkes or Moores in his infancy and brought up in their religion, and would mayntayne the same in your countrey without al his forces’.Footnote 2 After the common lawyer signalled his disquiet, the two agreed to set forth their arguments at greater length. These two speeches, that of the civil lawyer followed by that of the common lawyer, form the two parts of the Conference.
The Conference, the work of the Jesuit Robert Persons (1546–1610), intervened in a succession debate which has begun to receive sustained scholarly attention only recently.Footnote 3 Historians have challenged Mortimer Levine's view that, with regard to the succession, ‘[t]he remainder of Elizabeth's reign [after 1571] is, for our purposes, an epilogue’, that there was in fact no other viable candidate to succeed Elizabeth, and that Robert Cecil ‘stage-managed’ the succession.Footnote 4 Susan Doran, in particular, has stressed the extent to which it seemed far from certain during the 1590s that James VI of Scotland would become James I of England.Footnote 5 Persons's Conference, with its message of uncertainty, is widely recognized to have been one of the most provocative interventions in the succession debate; Blair Worden's afterword to a volume edited by Susan Doran and Paulina Kewes remarks that Persons ‘might almost be called the presiding spirit’ to the preceding pages.Footnote 6
The Conference has, for some time, also attracted the attention of historians of political thought, primarily for its contribution to ‘resistance theory’: its argument that every commonwealth has the right to resist or depose its ruler, if the latter rules tyrannically.Footnote 7 Peter Holmes describes the Conference as ‘the best expression of sixteenth-century monarchomach ideas in English’.Footnote 8 While, as the term ‘monarchomach’ implies, the Conference may be compared with works of ‘Calvinist resistance theory’, such as the Vindiciae, contra tyrannos or George Buchanan's De iure regni apud Scotos (both 1579), there is broad agreement that the Conference’s intellectual influences were exclusively, or at least primarily, Catholic, and more specifically drawn from neo-Thomist thought. Harro Höpfl, for instance, argues that ‘the Jesuit Persons reproduced the scholastic account of political authority without citing a single scholastic’, while both Michael Carafiello and Victor Houliston have pointed to a particular link between Persons and the Jesuits Francisco Suárez and Luis de Molina.Footnote 9 Peter Lake, in an important article, suggests that James VI and I's The true lawe of free monarchies was, in addition to being a refutation of Buchanan, also intended as an attack on Persons's Conference.Footnote 10
Within the historiography of the Conference, Persons's theory of royal succession has received significantly less attention than his theory of political resistance. Royal succession is a relatively neglected topic in intellectual history, but although it was of only intermittently pressing relevance, it raised questions which were no less important than those prompted by the subject of resistance and obedience theory.Footnote 11 The central question for any theory of royal succession to answer, namely how anyone acquired a right to be king, could only make sense in the light of a wider theory of the relationship between king and kingdom.Footnote 12 It was a dangerous business; a theory of succession might be used to imply that a reigning monarch lacked just title, and was thus a tyrant by usurpation. Early modern political thinkers found it rather easier to countenance resistance to a usurper, after all, than to a tyrant by exercise.Footnote 13 This article, following in the footsteps of Howard Nenner's The right to be king, argues that the Conference’s impact in the politics of the succession was matched by that of its attack on the idea of an indefeasible right of succession.Footnote 14 In the wake of Tudor constitutional legislation, Persons put forward the position that statutes could alter the royal succession precisely because kings were always subject to parliament. In short, an argument for quasi-elective monarchy became a manifesto for popular sovereignty.
This article is as concerned with the reception of Persons's theory of succession as with the theory itself. It suggests that an appreciation of the Conference’s theory of succession, and of its practical political implications, may further our understanding of its impact in English and Scottish political thought at the turn of the seventeenth century. While there is a great deal still to be said about which works influenced the Conference’s political thought, that topic, for reasons of concision, is not considered here.Footnote 15 Instead, after outlining the foundation of Persons's argument, as put forward in the printed version of the Conference, this article discusses both the practical and theoretical elements of its intervention into the Elizabethan succession debate.Footnote 16 The second part of the article then considers the public impact of the Conference by studying some of the earliest printed responses to it.Footnote 17 The authors of all but one are known: the puritan parliamentarian Peter Wentworth, imprisoned in the Tower for his earlier attempt to have Elizabeth nominate a successor; Henry Constable, an English Catholic convert writing from Paris; James VI and I himself; and John Hayward, an English civil lawyer and historian.Footnote 18 Hayward's Answer to the first part of the Conference is particularly worthy of greater attention than it has hitherto received, and not just because it was the only response to Persons which Robert Filmer was to mention at the beginning of his Patriarcha.Footnote 19 It is argued here that Hayward was alert to the implications of Persons's argument, particularly in the light of Jean Bodin's concept of sovereignty, and also that he extended several of the points made by Persons's other respondents. By turning towards natural rather than positive law or custom as a basis of royal succession, it is suggested, Hayward tacitly acknowledged that Persons had made it unthinkable to voice propositions which, a short while before, had been uncontroversial.
I
Although the Conference claims to be the orations of two lawyers, Persons's political thought had a distinctly Aristotelian colouring. The ‘civil lawyer’ makes only a smattering of references to the Corpus iuris civilis and to the work of jurists; rather surprisingly, it is in the ‘common lawyer's’ speech that we find, in relation to the well-worn debate over the relative rights of succession of a nephew and his uncle, the densest gathering of legal citations.Footnote 20 For all intents and purposes, then, the Conference is in the tradition of the arts faculties, not those of law. As such, in chapter 1, Persons begins with two uncontroversial premises. First, political society exists according to God's will as it is manifest in nature: ‘sociability in mankind, or inclination to live in company, is by nature, and consequently ordeyned by God’.Footnote 21 Second, ‘goverment also…is likewise of nature, for that it followeth of the former [proposition]’, and that otherwise ‘it is impossible for men to live together with help and commodity of the one to the other’.Footnote 22 Government is thus natural to the extent that it benefits the governed ‘for the common benefit of al’.Footnote 23 Not all polities are governed alike precisely because government must be for the benefit of the governed, and because of ‘the diversity of mens natures, customes, educations and other such causes’, a fact that ‘Aristotle proveth throughout al the second and fourth books of his politiques’.Footnote 24 It was with his third premise that Persons moved to rockier ground. Since the ‘formes of goverment’, which refers both to the number of rulers and to the manner of choosing them, ‘are not determyned by God or nature, as the other two poyntes before’, therefore ‘thes particuler formes are left unto every nation and countrey, to chuse that forme of goverment which they shal like best’.Footnote 25 Although Persons expresses a preference for monarchy which, with significant exceptions, passes by succession rather than election, this is not to say that it is any more natural than democratic or aristocratic government.Footnote 26 While, then, it is natural for humans to live in political society, nature is indifferent to the constitutional forms in which they do so.
In chapter 1, Persons might seem to have provided little more than a mildly heterodox iteration of the Thomist account of the origins of political authority. His insistence that all constitutional forms were equally natural might have raised a reader's eyebrow, but thus far the Conference’s argument said little about England as it existed in 1593. What made the Conference so radical an intervention in the succession crisis of the 1590s was the way in which Persons's concept of the ‘commonwealth’ allowed him to connect the self-constitution described in chapter 1 to the kingdoms of the present day. Rather revealingly, he both defines the term as ‘the good goverment of a multitude gathered together to live in one’ and also uses it as shorthand for his first premise, that ‘sociability in mankind, or inclination to live in company, is by nature’.Footnote 27 At the same time, Persons uses ‘commonwealth’ in the sense of ‘polity’, as when he states that, from natural sociability, there ‘do proceede first al private houses, then villages, then townes, then cityes, then kingdomes and commonwealthes’.Footnote 28 Persons's ‘commonwealth’ thus carries much of the meaning of the Latin respublica, and it should come as no surprise that, in the Latin edition, it was translated as such.Footnote 29 The commonwealth is, for Persons, both a concrete constitutional entity and a product of nature.
Accordingly, it is the political authority of the commonwealth that Persons extols in the Conference, as when he states that ‘every king and kings sonne hath his dignity and preheminence above other men by authority only of the common wealth’.Footnote 30 As for what, or who, constitutes the commonwealth, Persons proves somewhat unclear; this, as Peter Lake has argued, was surely deliberate, allowing him to move breezily from commonwealths’ hazy pre-history to their more recent interventions in politics.Footnote 31 The term might seem little more than a synonym for ‘the people’: we are told both that ‘the election and consent of the people had made their first Princes’ and also that ‘every king and kings sonne, hath his dignity and preheminence above other men, by authority only of the common wealth’.Footnote 32 Examination of Persons's historical examples, however, makes it clear that Persons takes acts of England's parliament, and of its alleged equivalents abroad, to have been acts of the commonwealth; Richard II was, for instance, ‘deposed by act of parlament holden in London, the yeare of our Lord 1399, and condemned to perpetual prison in the castel of Pomfret’.Footnote 33 What matters here is that the commonwealth can be represented, or perhaps embodied, by a group of individuals; it moves away from being an abstract entity towards playing a very real part in present politics. Moreover, while Persons is happy to think of it as a body, a common enough metaphor for a kingdom, he denies that it is beholden to its head, for commonwealths may ‘cutt of their heades if they infest the rest, seing that a body civil may have divers heades by succession and is not bound ever to one, as a body natural is’.Footnote 34
We have now arrived at one of the most well-known parts of the Conference’s political thought, its foray into ‘resistance theory’. Since it is so familiar to historians, Persons's argument here can be summarized briefly. In the third and fourth chapters of part i, he argues that ‘Princes are subject to law and order, and…the common wealth which gave them ther authority, for the common good of al, may also restrayne or take the same away agaynef if they abuse it to the common evel.’Footnote 35 Indeed, this has happened: ‘common wealthes have chastised somtymes lawfully ther lawful Princes’, and ‘God approved and prospered the same, by the good successe and successors that ensewed thereof.’Footnote 36 Persons supports this with a strongly providential interpretation of historical example: first, the Israelites’ replacement of Saul and Amon with David and Josias; second, various Roman assassinations, including those of Romulus in favour of Numa Pompilius, of Tarquin the Proud in favour of consular government, and of Caesar for Augustus; third, of depositions in France, Spain, and England.Footnote 37
What is important here is that the Conference’s support for political resistance was itself part of its theory of royal succession. If the commonwealth had this right of deposition over ‘kings lawfully set in possession’, Persons writes, ‘then much more hath the said common wealth power and authority to alter the succession of such as do but yet pretend to that dignity, if ther be dew reason and causes for the same’.Footnote 38 For Persons, if the commonwealth acts prudently, it could use its authority to exclude an heir-apparent, or heir-presumptive, who would harm it so as to prevent the tyranny which was, itself, the justification for the commonwealth's authority in this matter. Persons thus holds that ‘heyres apparent are not true kings until ther coronation, how just soever ther title of succession otherwise be’.Footnote 39 If, then, the commonwealth of England decided that James VI of Scotland were not ‘whosoever [were] most likely to defend, preserve, and benefite most his realme and subjects’, it might justly refuse to make him James I of England, because ‘succession…includeth also an election or approbation of the common wealth’, and at the coronation ‘the people are demaunded agayne, if they be content to accept such a man for their King’.Footnote 40
On the subject of what constitutes ‘dew reason’ for a deposition or exclusion, Persons is somewhat inconsistent. In chapter 9, he first argues that it is a matter for each commonwealth to decide, since ‘he who is judge and hath to give the sentence in the thing itself is also to judge of the cause’.Footnote 41 As with his imprecision as to what counts as a commonwealth, this seems deliberate; it lets him avoid having to establish criteria which might reduce in number his stock of examples of just depositions. When the commonwealth's will is unclear, Persons writes, as in the case of civil war, ‘it is enough for every particuler man to…obey simply without any further inquisition, except he should see that open injustice were done therein’.Footnote 42 If, for instance, ‘a Turke or Moore…or some other notorious wicked man or tyrant should be offred by succession’, then ‘every man…is bound to resist what he can, for that the very end and intent for which al goverment was first ordeyned is herein manifestly impugned’.Footnote 43 Persons goes on to argue that the main criterion in this case must be the ‘weal publique’, but it is at this point that he shows his religious sympathies, for he argues that ‘the first, cheefest, and highest ende that God and nature appointed to every common wealth was not so much the temporal felicity of the body as the supernatural and everlasting of the soule’.Footnote 44 Since the commonwealth exists primarily for its members’ spiritual benefit, ‘nothing in the world can so justly exclude an heyre apparent from his succession as want of religion’.Footnote 45 Indeed, for any individual ‘to give his helpe, consent or assistance towards the making of a king whom he judgeth or beleveth to be faultie in religion’ is not just ‘a most grevous and damnable sinne’, but also ‘great folly’.Footnote 46 In practice, then, Persons's civil lawyer is setting Catholic, Anglican, and Puritan against one another.Footnote 47 Chapter 9's language of private conscience undercuts the possibility of the commonwealth arriving at a collective decision, and in this Persons's desire to unsettle the Elizabethan succession debate is quite evident. Allowing for this divergence, however, it may be said that the majority of the Conference operates according to the assumption that the commonwealth can do whatever the common good is.
What gives the commonwealth this perpetual authority to protect its interests is its foundation in the natural law of human sociability. It must, again, be conceded that Persons is not entirely clear on this point. When discussing why depositions are justified, he ‘slip[s] into contractual vocabulary’, to use Harro Höpfl's phrase.Footnote 48 Later, Persons uses the rather similar vocabulary of marriage: ‘this agreement, bargayne and contract betweene the king and his common wealth, at his first admission, is as certayne and firme…as any contract or marriage in the world can be’, but only ‘when it is solemnized by wordes de praesenti…betwene parties espoused before by wordes de futuro’.Footnote 49 Elsewhere, however, Persons states that the relationship between commonwealth and king is not that of broadly equal contracting parties but of superior and subordinate. Thus, ‘the whole body, though it be governed by the Prince as by the head, yet is not inferior but superior to the Prince, neither so giveth the common wealth her authority and power up to any Prince, that she depriveth her selfe utterly of the same’.Footnote 50 He goes on to describe the king as little more than an appointed officer: ‘the power and authority which the Prince hath from the common wealth is in very truth, not absolute, but potestas vicaria or deligata [sic], as we Civilians cal it, that is to say a power delegate, or power by commission from the common wealth’.Footnote 51 In the light of how Persons considers the commonwealth as an instrument for securing the common good, it makes a great deal of sense to suggest that Persons's commonwealth has an inalienable right to pursue its own good. This interpretation certainly fits the civil lawyer's opening statement, that it is ‘manifestly against al reason, and conscience, and against the very first end and purpose of institution of common wealthes and magestrates’, for the admission as king of ‘a madd or furious heyre apparent, or of one by education a Turke or a Moore in religion, or by nature deprived of his witt or senses’.Footnote 52
The first part of the Conference, then, makes the argument that the commonwealth of England has the right to prevent James VI's succession. It clearly complements the work's second part, the common lawyer's speech. In the voice of his common lawyer, Persons assesses the claims of a long list of pretenders, categorized into five noble houses: those of Scotland, Suffolk, Clarence, Brittany, and Portugal. With studied, or at least pretended, indifference, Persons presents the arguments for and against each candidate without coming to any explicit conclusions.Footnote 53 Alarmingly uncertain as this might make the matter of the succession, the civil lawyer's argument comes to the rescue; rather than worrying about which candidate should be considered heir-presumptive, he suggests, it is more important to consider which candidate will serve the common good of the realm. Given Persons's history of collaboration with Spain, it is perhaps unsurprising that many historians have taken the Conference as a covert argument for the Infanta Isabella, whose claim is treated as part of the House of Portugal.Footnote 54
II
The Conference’s contribution to the succession was not, however, confined to this. It is the contention of the rest of this article that Persons's argument offered an interesting and provocative theory of royal succession. As before, this began with his concept of the commonwealth; in particular, the fact that, since there is no one natural form of government, it is ‘left unto every nation and countrey to chuse that forme of goverment, which they shal like best’.Footnote 55 The ‘forme of goverment’ amounts to a constitution, at least as defined broadly, such that the commonwealth may be said to possess a right to settle its own constitutional affairs, just as it has a right to pursue its interests.Footnote 56 This right of constitutional self-establishment is no mere artefact of history, something to be used and discarded. In fact, Persons argues that not only has the commonwealth ‘power to chuse their own fassion of goverment’, it also may ‘change the same uppon resonable causes’.Footnote 57 His most telling historical example was that of Rome: ‘[T]he Romans first had Kings and, after rejecting them for their evil goverment, they chose Consuls…and thes mens power was restrayned also by adding tribunes of the people, and some tyme dictators, and finally they came to be governed last of al by Emperors.’Footnote 58 He also offers the example of Switzerland, ‘which once was one common wealth only under the dukes and Marqueses of Austria and now are devided into thirtene Cantons or common wealthes under populer Magestrates of their own’.Footnote 59 Persons relates this general right of constitutional self-establishment and modification to the particular practice of succession, for ‘divers kingdomes have divers lawes and customes in the matter of succession’.Footnote 60 This implies that the commonwealth of England, in the form of parliament, ought to modify the succession; after all, ‘who made thes lawes but the common wealth it selfe?’.
Persons's point was a compelling one, not least because it corresponded, at least superficially, to a great deal of Tudor constitutional precedent.Footnote 61 This began with Henry VIII's three succession acts. The first two altered the order of succession by excluding, respectively, Mary and Elizabeth, but this was not so much a change to the law of succession as two declarations of illegitimacy.Footnote 62 The Second Succession Act also, however, declared that Henry VIII had the right, apparently ex officio, to determine the succession if he lacked legitimate heirs.Footnote 63 The act
most humbly beseech[es] your Highness…that your Highness shall have full and plenary power and authority to give, dispose, appoint, assign, declare, and limit by your letters patents under your great seal, or else by your last will made in writing…at your only pleasure, from time to time, hereafter the imperial crown of this realm.
The Third Succession Act of 1544 reinstated Mary and Elizabeth in the order of succession without legitimizing them, and passed over the Stuart line of succession. Edward VI's ‘Devise for the succession’, which initially sought to ensure a male succession before, in a later version, settling on Lady Jane Grey as the preferred successor, would almost certainly have been put through parliament if Edward had lived longer.Footnote 64 Under Elizabeth, there passed two acts of 1571 and 1585 which both outlawed discussion of the succession and insisted that it was treason to deny that Elizabeth, or rather Elizabeth-in-parliament, could settle it.Footnote 65 Persons's interpretation of the succession was, on the face of it, similar, but he approached the matter from the opposite direction. Instead of the authority of king-in-parliament, Persons was concerned with parliament alone; for him, the king's authority was parliament's, or rather the commonwealth's, and not the other way around. His argument was all the more dangerous in the wake of a number of Protestant suggestions that the succession should be settled in parliament, such as Peter Wentworth's Pithie exhortation of c. 1587.Footnote 66 Thanks to Persons, any such suggestion now seemed tantamount to an attack on the queen's authority.
The Conference thus makes the case for an essentially elective form of kingship which derives its authority from a sovereign commonwealth.Footnote 67 While Persons writes that ‘priority and propinquity of blood in succession is greatly to be honored, regarded, and preferred in al affaires of dignity’, and that by ‘adding…election, consent, and approbation of the realme to succession, we remedy the inconveniences of bare succession alone’, this can only be called succession in a qualified sense.Footnote 68 At every king's death, the commonwealth has to decide which pretender it will appoint as king; the only fixed order of succession is one decreed by the commonwealth itself, and even this is only, really, an order of consideration. Persons, in other words, denies the possibility of there being a positive law governing the succession so strict that, when circumstances demanded it, it might not be changed. Moreover, such a law of succession might, itself, be altered or abolished by the commonwealth if it were found inconvenient. England's laws of succession were entirely statutory, and testified to the independent authority of parliament. Reflection on the Elizabethan succession had prompted Persons, then, to put forward a theory of popular, parliamentary, sovereignty.
III
By the end of 1595, James VI of Scotland had a copy of the Conference, which caught his attention so much that it was reported that ‘the king keeps [the Conference] so charily that it cannot be wanting from its keeper above one night’.Footnote 69 What with the ban on discussing the succession in England, the printed replies to the Conference came from abroad: Peter Wentworth's Judgement concerning the person of the true and lawfull successor to these realmes of England and Ireland was printed in 1598 in Edinburgh by Robert Waldegrave, two years after it had been written; and John Constable's Discoverye of a counterfecte conference was printed in Paris, in 1600.Footnote 70 Wentworth was a Puritan imprisoned for a previous attempt to have Elizabeth I declare a successor, whereas Constable was an English Catholic convert. To these explicit replies, we may add two others, both also printed by Waldegrave: Irenicus Philodikaios's Treatise declaring and confirming against all objections the just title and right of the most excellent and worthie Prince James the Sixt of 1599, which mentions the Conference; finally, James VI's own The true lawe of 1598 was likely intended as a reply to Persons. The most thorough response came from England in 1603, shortly after Elizabeth's death, that of Dr John Hayward. Far more than the other replies, it recognized Persons's particular assault on succession law, and for that it deserves attention.
Although these refutations of Persons focused on defending the strength of James's title in terms of common law, they touched upon the broader question of royal authority at several points. Much of this derived from the grounds upon which the second part of the Conference questioned that claim. First, Persons's common lawyer argues that James ‘is excluded by the common lawes of Ingland from succession to the crowne, for that the said lawes do bar al strangers borne out of the realme’.Footnote 71 Second, he alludes to the 1585 Act for the Queen's Surety, which declared that traitors would forfeit their rights of succession to the crown; ‘seeing that afterward the lady Mary late Queene of Scotland, mother of the king, was condemned and executed by the authority of the said parlament, it seemeth evident…that this king who pretendeth al his right to the crowne of Ingland by his said mother can have none at al’.Footnote 72 For Persons, as has been seen, parliament was the natural institution to oversee the succession; not just these statutes, but also the Tudor changes to the succession, could all be justified as acts of the commonwealth. His opponents, repeating points which dated back to the 1560s, had to deny parliament's authority in the matter.Footnote 73 Philodikaios thus denies that Henry VIII had been allowed the right to dispose of the crown at will, for ‘it is not credible that King Henrie would against lawe and justice disherite the line of his eldest sister’, and he concludes that his examples show ‘of how little force is the authoritie of Parliament to exclude a Prince from the right due to him by inheritance’. He and Wentworth, formerly a champion of parliament's authority over the succession, argue that James ‘is not heire or successor because the parliament declareth him to be so, but because hee is so’.Footnote 74
The early attacks on the Conference do not, in general, approach directly the question of succession laws. This is not to say that they do not see the force of Persons's argument; if the king, Constable writes, ‘holdeth his Crowne as tenant of at wil of the common wealth…consequently he hath no state of inheritance nor succession’.Footnote 75 Their preferred strategy is rather to attack Persons's theory of royal authority and thus, indirectly, to undermine his theory of succession. James begins with the argument that writers like Persons, whom he does not name, had confused illegal rebellion with just resistance: ‘the smiling successe that unlawfull rebellions haue oftentimes had against Princes in aages past…hath byway of practise strengthened many in their errour’.Footnote 76 He moves to the example of the mythical conqueror of Scotland, King Fergus, in order to show that in Scotland ‘the kings were the authors and makers of the Lawes, and not the Lawes of the kings’.Footnote 77 Wentworth makes the distinct but similar point that the people had formerly alienated their political authority in appointing kings, and thus ‘by consequence this posterity, thus dispossessed of the power and interest of bestowing the right, cannot make voide the act of their ancestors’.Footnote 78 While this was a perfectly reasonable way to go about refuting Persons's understanding of popular sovereignty, it brought these writers no closer to an explanation of why there existed one particular order of succession in England. Philodikaios at least offers two examples, the accession of Henri of Navarre in France, and the failure of Lady Jane Grey in England, to support his case that ‘this right of succession by blood is accounted among al nations, subject to this kinde of Monarchie, a thing sacred, and in no wise to be violated’.Footnote 79 Yet the French order of succession was quite different from the English, thanks to the so-called ‘Salic Law’.Footnote 80 James merely states that ‘at the very moment of the expiring of the king reigning, the nearest and lawful heire entreth in his place: And so to refuse him, or intrude another, is not to holde out uncomming in, but to expell and put out their righteous King.’Footnote 81 These four writers failed to explain, in short, why the English crown passed by succession at all, let alone its particular order of succession.Footnote 82 It was left to Dr John Hayward to provide at least partial answers to these questions.
IV
Although Hayward came to similar conclusions about English royal authority as his predecessors in the battle against Persons, his was the only printed treatise to discuss royal succession per se in any detail.Footnote 83 His Answer of 1603, dedicated to ‘the Kings Most Excellent Majestie’, and avoiding the sensitive matter of genealogy by replying only to part i of the Conference, was an attempt to repair his reputation following the disastrous publication of his The first part of the life and raigne of King Henrie IV in 1599.Footnote 84 It was more than flattery, however, and sought to explain precisely why James's title to the English throne had been unassailable. Hayward's Answer expands both on the early arguments against Persons and also upon their governing assumptions about succession.
For Hayward, as for Persons, royal succession could only make sense in the context of a wider theory of political authority. Much of his political thought revolved around the concept of sovereignty; indeed, the way he explained it resembled closely that of Jean Bodin, who defined sovereignty as ‘puissance absolue et perpétuelle’ or ‘summa perpetuaque potestas’.Footnote 85 Hayward writes that ‘all states take denomination from that part wherin the supreme power is setled’, whether monarchical, aristocratic, or democratic.Footnote 86 In other words, sovereignty can belong to the king, aristocracy, or people. Sovereignty for Hayward is not the same as government, for he explains that a sovereign people may appoint a king without losing its sovereignty; there have, he writes, ‘beene divers states wherein one hath borne the name and title of king, without power of Majestie’.Footnote 87 In states such as Lycurgus's Sparta, the Gaul of Caesar's age, and seventeenth-century Venice, ‘the Prince is not soveraigne, but subject to that part of the common wealth which retaineth the royaltie and majestie of state’. This whole passage is taken almost verbatim from Hayward's Life and raigne, but the section which Hayward had written four years before was little more than a reworking of part of Bodin's République.Footnote 88 A further link with Bodin appears when Hayward argues that Persons's aim is to allow kings ‘to be deposed…upon pleasure and at will’ by the commonwealth, because ‘they who have given authoritie by commission doe alwaies retaine more then they graunt’.Footnote 89 Bodin had made a similar point, namely that the sovereign ‘n'en donne jamais tant qu'il n'en retienne tousjours davantage’, which was justified with exactly the same citation of canon law.Footnote 90 Such a view of sovereignty necessarily conceded that the political authority of Persons's commonwealth was theoretically possible. Hayward denied only that it applied to England, for ‘our laws do acknowledge supreme authority in the prince within the realme and dominions of england, neither can subjects beare themselves either superior or equall to their soveraigne’.Footnote 91 The other side of this position is, of course, that Hayward's popular sovereignty looked very like the authority held by Persons's commonwealth.
Hayward's concept of sovereignty was inherently legislative. Bodin reduced the ‘marks of sovereignty’ to one, ‘la puissance de donner loy à tous en general, et à chacun en particulier…sans le consentement de plus grand, ny de pareil, ny de moindre que soy’.Footnote 92 This was a broad definition, because ‘[s]oubs ceste mesme puissance de donner et casser la loy, sont compris touts les autres droicts et marques de souveraineté’.Footnote 93 For Bodin, making law was not limited to promulgating and withdrawing legislation, and was better understood as ‘le commandement du souverain touchant tous les sugets en general’.Footnote 94 Bodin's sovereign was one who could command all of his subjects and whose commands could not be challenged. It is significant, then, that Hayward argues that ‘the verie sinewes of government doe consist in commaunding and in obeying, but obedience cannot bee performed where the commaundementes are either repugnant or uncertaine’.Footnote 95 For Hayward, this explained the superiority of monarchy, but what is important is that his understanding of good government precludes the possibility of the ruler's commands being challenged. Second, Hayward's enthusiasm for the total authority of a sovereign king over the people is such that he repeats one of The true lawe’s arguments, namely that in some states laws had only ever been made by kings. ‘[I]n the first heroicall ages’, he writes, ‘the people were not governed by anie positive lawe, but their kings did both judge and commaund, by their word, by their will, by their absolute power’. This, moreover, continues, for ‘in manie, yea in most, if not in all countries, the people have received libertie, either from graunt or permission of the victorious Prince, and not the prince authoritie from the vanquished people’.Footnote 96
The total exclusion of a non-sovereign people from political authority was not just an attack on the Conference’s ideas of political resistance, inflammatory as they were. In the first place, by attacking Persons's theory of royal authority, following other replies to the Conference, Hayward undermined his theory of succession; if the commonwealth of England could make no law, it could have no authority over the succession. This was a satisfactory, if entirely negative, response to the Conference, and is quite consonant with the tone of the other print refutations surveyed above. Moreover, Persons had asserted the popular credentials of succession laws so effectively that they too would fall victim to Hayward's sovereignty. The Conference, it will be recalled, had linked laws which could exclude candidates from the succession, such as the Salic Law, with laws which could limit the king's authority. Again, ‘who made thes lawes but the common wealth it selfe?’.Footnote 97 Since Hayward thought that no positive law could limit a sovereign king, a succession law so defined was impossible. The logic of sovereignty, then, demanded a form of succession subject only to the sovereign's oversight.
Just as Persons's sense of succession law would always be compromised by the possibility of the commonwealth's intervention, so too did Hayward's thought tend towards giving oversight to his sovereign king. While the Conference’s succession was always, in a sense, elective, Hayward's ought always to be testamentary. He never admitted this in the Answer, but he later accepted the principle of testamentary succession; in his history of the Norman Conquest, he wrote that ‘the kingdome [of England] at that time could not be settled in any certaine forme of succession by blood, as it hath been since; but was held for the most part in absolute dominion’ and did ‘often passe by transaction or gift’.Footnote 98 Despite this, and the glaring precedent set by the Tudor legislation on the succession, Hayward sought to uphold succession ‘by proximity’, for he had no desire to suggest that Elizabeth, or Elizabeth-in-parliament, might ever have had the right to disinherit his new king.Footnote 99
As R. Malcolm Smuts has observed, Hayward turned to natural law as the basis of his royal succession.Footnote 100 More specifically, Hayward argues that monarchy descending by hereditary succession is alone natural in response to Persons's third major argument, that it is left to the commonwealth's ‘particuler positive lawes’ to determine whether ‘to have many governors, few, or one’, and whether this authority should be ‘by succession or election’.Footnote 101 Persons's claim was based on constitutional variation both in his age and as seen through history; Hayward's response is to exclude the examples favourable to Persons with a restrictive definition of natural law. He argues that the law of nature has prelapsarian and postlapsarian forms, primary and secondary. The ‘primarie lawe of Nature’ came about because ‘God in the creation of man imprinted certaine rules within his soule to direct him in all the actions of his life’; these rules constitute the primary law of nature.Footnote 102 Humans no longer have access to the primary law of nature, for ‘this lawe Thom[as] Aquin[as] affirmeth to be much depraved by the fall of man, and afterwards more by errour, evill custome, pertinacie, and other corrupters of the mind’.Footnote 103 What remains is the secondary law of nature, or law of nations: from the precepts of the primary law of nature ‘are formed certaine customes, generally observed in all parts of the world: which, because they were not from the beginning, but brought in afterward…are called the secondarie lawe of nature, and by many also the law of nations’.Footnote 104 The imperfection has the result that ‘in many, not only men, but nations, evill custome hath driven nature out of place, and setteth up it selfe in steade of nature’.Footnote 105 The secondary law of nature will always, then, admit exceptions, so ‘it to be esteemed the lawe of nations, the common lawe of the whole world, which most nations in the world are found to imbrace’.Footnote 106 For Hayward, Persons's argument describes not the secondary law of nature but rather the corrupt exceptions to it: ‘wil you rake over al histories for examples of rebellion, and then argue a facto ad ius, that every thing is lawful which you finde to have bin done?’.Footnote 107
Hayward thus argues that, in fact, succession is the only natural way in which sovereign monarchy can be transferred. He writes that ‘at most times in all nations, and at all times in most… the roialtie hath passed by succession, according to propinquitie of bloud’.Footnote 108 In one important way, he agrees with Persons's claim that if the ideal form of government were ‘determyned by God or nature…they should be al one in al nations…seing God and nature are one to al’.Footnote 109 Hayward does not defend any particular nation's form of succession, but rather the principle itself, since ‘the succession of children is one of the primarie precepts of nature, whereby [a man's] mortalitie is in some sort repaired, and his continuance perpetuated’.Footnote 110 Indeed, his political thought has little or no room for different models of royal succession. He gives little impression of believing that the order of succession can differ across kingdoms, the only exception being one off-handed comment, in order to explain William the Conqueror's inheritance of Normandy, that France admitted bastards to royal succession until ‘in the third race of the kings of France, a law was made’.Footnote 111 The acid test is, of course, the Salic Law; while Hayward does not actually say that it has no legal standing, he does assert that he could ‘plainlie proove that there was never anie such lawe made to bind the discent of the crowne in Fraunce, and that it hath bin the custome in most parts of the world not to exclude women from succession in state’.Footnote 112 It served only as a ‘pretence’ for why Philip of Valois was chosen instead of Edward III in 1328. At the cost of imposing a slightly artificial uniformity onto succession, Hayward had thus offered a reason to think it natural.
What Hayward never makes entirely clear is precisely how his theory of royal authority interacts with his theory of succession. Hayward may have proven to his own satisfaction that only monarchy descending by proximity was natural, but his interpretation of nature prevented him from claiming that it was the only legitimate form of government. Aristocratic and democratic sovereignty might represent a corruption from the primary law of nature, but Hayward considers it no less possible for that; corruption from nature is a necessary part of the landscape because legal right in Hayward's England is necessarily also postlapsarian. Hayward must, then, accept that certain forms of government may not be natural while remaining valid according to positive law. The same applies to the difference between succession by proximity and by testament; as natural as the former might be, Hayward does not quite prove that Elizabeth could not dispose of the crown at will. What rescues his argument is that the natural quality of succession by proximity has a moral aspect which, presumably, will compel the sovereign to dispose of the crown to the nearest heir in blood. To be sure, this is not a position which Hayward voiced explicitly; it would have been imprudent in the extreme to suggest that Elizabeth might in fact have had some legal, if not strictly natural, right to disinherit James. Yet Hayward's political thought pointed in this direction. Sovereignty left the king or queen free choice, but the moral pull of the law of nations reduced the options to one.
V
All of this shows that Persons's Conference was so influential a treatise not merely, or even principally, because it scandalously challenged royal authority, but because its highly astute argument landed blows on several targets at once. The Conference found a way to make legal claims without legal content, and in so doing left its adversaries in no little difficulty, and there are few reasons to doubt Peter Holmes's assessment that the Conference ‘seems almost to have frightened constitutionalism out of fashion’, at least for a time.Footnote 113 The five responses surveyed here certainly show that the need to refute Persons occasioned a great deal of obedience theory. This obedience theory, however, also served as a defence of royal succession precisely because of how Persons had founded his argument on the commonwealth's legal superiority to the king. John Hayward's Answer engaged most closely with the Conference’s political thought, but with the paradoxical result that a work devoted to defending monarchical sovereignty also spelled out a coherent vision of popular sovereignty. When Robert Filmer wrote that Hayward ‘admit[ted]…for a Truth unquestionable’ Persons's ‘Argument drawn from the Natural Liberty and Equality of Mankind’, then, he had a point; instead of attacking Persons directly, Hayward suggested merely that his argument for the commonwealth's liberty did not apply to England.Footnote 114 No less paradoxical was Hayward's vision of royal succession, which natural law would make indefeasible, but which sovereignty would make testamentary. That Hayward found himself pushed into this corner was, in no small way, the final result of that fictional conference between two fictional lawyers in Amsterdam.
