ma Jacobean Political Theology: The Absolute and Ordinary Powers of the King Fag aR S R Francis Oakley Journal of the History of Ideas, Vol. 29, No. 3 (Lal. - Sep., 1968), 323-346. Stable URL: fttpflinksjstor.orgsici?sici=0022-5037% 28 196807542F09%-2029%3 A3%3C323,3AIPTTAA%3E2.0.CO%3B2-D Journal ofthe History of Meas is curcently published by The Fohns Hopkins University Press. Your use of the ISTOR archive indicates your acceptance of ISTOR's Terms and Conditions of Use, available at flip: feworwjtor org/aboutterms.htmal. ISTOR's Terms and Conditions of Use provides, in par, that unless you fave obtained pcior permission, you may not dowaload an cnt isus of @ journal or multiple copies of articles, and you may use content inthe ISTOR archive only for your personal, non-commercial uss. Please contact the publisher cegarding any further use of this work. Publisher contact information may be obtained at bupsforwer,jstor.onp/jounals/jup html. 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For more information regarding ISTOR, please contact jstor-info@umich edu. hup:thrwwjstor.orgy Fri Mar 12 10:04:10 2004JACOBEAN POLITICAL THEOLOGY THE ABSOLUTE AND ORDINARY POWERS OF THE KING By Franets Oaxury * It is the great constitutional eonfliets between the Stuart kings and their opponents and erities that much of the enduring signifi- cance as well as the immediate historical drama of early modern English history lies, In a century scarred by a savage and epie struggle for national survival, generations of English schoolboys con- tinue to cut their historiographie teeth on the chivalrous joustings of Cavalier and Roundhead, and one would like to think that this re- fleets something more than an ironic nationat predilection for the mock-heroie or some sure pedagogic instinct for the peripheral. Tnterest has turned increasingly from the great clash of hostile armies to that of competing politieal and constitutional theories which both presaged and accompanied it. And with this shift of emphasis has ‘come a greater willingness to examine more sympathetically “those murky discussions about emergeney powers and the King’s different persons which tried to justify Stuart despotism.”* Among these dis- cussions, the judgment delivered in 1606 by Chief Baron Fleming in Bate’s Case stands out as being of critical importanes? At its heart lay the crucial remarks which Fleming made about the “absolute” and “ordinary” powers of the King, and this important distinetion has yet to receive the close scrutiny it deserves. ‘The purpose of this essay is to focus attention upon it, to trace the history of its development and diffusion, and to attempt to comprehend its meaning. But frst, the distinction itself and the modest body of secondary literature eon- cerned. with it. Fleming was by no means the only lawyer involved in the great Stuart state trials to make use of the twin categories “absolute” and “ordinary” when disenssing the royal power; they crop up again in the Post-Nati case (1608) Darnel's case (1627),* and the Ship- *T wich to acknowledge my indebtedness to the Frank L. Weil Institute for Studies in Religion z0d the Humanities for the award in 1985 of the Summer Fellow- ship which made possibie the completion of this essay. Geoffrey R. Elton, England under the Tudors (London, New York, 1960), 403. 2 Thus John W. Allen, English Political Thought: 1698-1260 (London, 1938), 8, deserbos it as “a frst halting stop towards the formulation of a thenry of ‘abeolte™ prerogative such ae would cover and justify all the postive claims made and disputed down to 1640." Tn Bacon's speech; TB. Howell, A Complete Cottectin of State Trials, 88 vol (Condon, 1818-28), 1, 680 ‘Tina speech of Attomey-Genecat Heath; ibid, TTT, 35-7. 22at RANCIS OAKLEY Money case (1637) His formulation, however, is the one that has most often engaged the attention of modern historians, and it is cer tainly the most complete. “To the King,” he said, is committed the government of the realm and his people; and Bracton saith, that for his discharge of his offlee, God had given him power, the act ‘of government, and the power to govern, The Kings power is double, or- dinary and absolute, and they have seversl lawes and ends, That of the ‘ordinary is for the profit of particular subjeets, for the execution of civil justice, the determining of meurn; and this is exercised by equitie and justice in ordinary courts, and by the civiliane is nominated jus privatum and with us, common law: and these laws esnnot be changed, without, parliament: and although thet their form and course may be changed, and interrupted, yet they can never be changed in substance. ‘The absolute power of the King is not that which is converted or executed to private use, to the benefit of ‘any particular person, but is only that whieh is epplied to the general bene~ fit of the people and i satus popu; as the people is the body, and the King the head; and this power is guided by the rules, which direct only at the common law, and is most properly named Poltiey and Government; and as the constitution of this body varieth with the time, 20 varieth this absohute law, according to the wisdome of the King, for the common good ‘This statement of Fleming's would seern to suggest that the distinction between the absolute and ordinary powers was eognate to ‘or partially aligned with better known classifications of the royal power” But even if we ignored the existence of such eoncordances we would still find that before Fleming's judgment focused public attention upon it, the distinction had a history (or pre-history) in England stretching back at least to the fifteenth century, Tt appeared in the Year Book for 1480 as potentia ordinata et absoluta, being applied there, however, to the difference between the legal powers wielded by the Court of Chancery and those wielded by the Common Lew Courts It appeared in 1539, in a work by Rycharde Taverner, one of Thomas Cromwell's men;* in 1551, in a report of Daniel Barbaro, the Venetian Ambassador; and, towards the end of Tn the argument of Attomey-Ceeneral Banks; ibid, III, 1018, *7bid, IE, 889. "Into gubernaculam and jurisdicto, “regal” and “politcal” powers, indisputable and disputable, inseparable and separable, indeleguble and delegable prerogatives. Charles H. Mellwain, Conetitutionalism: Ancient. and Modern (rev. ad. Tthacs, NY, 1947), 125; Margaret, Atwood Judsoa, The Crisis of the Constitution: an Bseoy in constitutional and political thought in Broland 1603-1645 (New Brunswick, Nu, 1949}, 112; Francis D. Worrmuth, The Roya! Preroatine 1608-1640. A Study jn English Political and Constitutional Ideas (Ithaca, N.Y. 1989}, 55-40. "YB 9 Edward IV, Trin. 9; ed. as Lee Reports des Cases en Ley du Roy Edvard 4 Quart (London, 1650). Taverner, The garden of Wysedome (London, 1539}, Bk. I, sig. D ir. Report of Daniel Barbaro . .. of his legion in Breland, delivered in the Senate, May, 1551"; Calandar of State Papers: Venetian, ed. Rawden Brown (6 vole, Londox, 1864), ¥, 341-42,