PART TWO

Whigs

CHAPTER FOUR

Whig Contractarianisms and Rights

THE SEARCH for the “one true Protestant politics” produced a civil war, the regicide, the Commonwealth, Cromwell’s Protectorate—and, finally, a general and widespread revulsion against the whole enterprise. The ultimate outcome was then a restoration of the monarchy and the Stuart line of monarchs, of the old church, and of the old House of Lords. Given the astounding fragmentation and conflict of political opinion during the preceeding half century, the degree of unanimity of opinion favoring the Restoration was truly remarkable. By 1660, Milton’s eloquent voice protesting the return of kings could no longer raise an answering echo; blind and unhappy, he returned to private life and poetry.

That unanimity was not, in the event, to last very long; well before the 1660s had run their course, many of the grave issues arose once again to shake the nation. Despite resemblances to the earlier conflicts, the post-Restoration political world was subtly transformed as well. Two external facts indicate some of the differences. The whole process culminated, it is true, in another revolution, and another displacement of a king, but this time the process was relatively peaceful and restrained, and surely did not bring the kind of radical tearing at the bonds of social life that occurred in the 1640s. A second difference between the post-Restoration crises and those of the first half of the century lay in the nature of the opposition. The opposition to the king, centered once again in Parliament, was this time led by a group of men known as Whigs rather than by a group known (loosely) as Puritans. “Whigs” is a purely political category; although it is not entirely devoid of religious content, that is not at its center, and it is not marked by the effort to find the “one true Protestant politics.”

The Whigs remained as opposed to royalist absolutism as their predecessors had been (perhaps more single-mindedly so), but they just as firmly opposed the descent into chaos and tyranny their predecessors had produced. Recognizing the search for the “one true Protestant politics” as a major source of the problem, the Whigs shifted the grounds of their political thinking. Nobody had succeeded in finding the “one true Protestant politics,” and the Whigs turned their backs on the attempt. True Protestantism (in politics) came to be well enough defined as non- or anti-Catholicism, and non- or anti-absolutism. During this era of Whig opposition, contentious and undecidable conflicts over theological politics gave way to more moderate and more rationalist modes of political thought. The post-Restoration world thus saw political men turning to the rationalist and universalist principles of natural law and natural religion. Although he had written decades earlier, Richard Hooker’s moderate natural law writings made their mark during these years. Even more significantly, the new natural law philosophy of Hugo Grotius immigrated from Holland and came to the center of Whig consciousness.

In appealing to natural law and natural reason—that is, to rational principles—the post-Restoration Whigs certainly approached much more closely to the kind of thought Locke and the American Declaration of Independence represented. The latter, for example, spoke of “the laws of nature and of nature’s God,” not the law or principles of Scripture as understood by one or another Christian sect—not sola scriptura, but sola ratio. This fact gives plausibility to a revised version of the old story of “immemorial continuity” in Anglo-American political principles from Magna Charta to Pym and Milton to Locke and Jefferson: Perhaps the pre–Civil War opposition was more committed to constitutionalist contractarianism or to reformation political theology than to a doctrine like the American Declaration; perhaps the ambiguous consensus won for the Glorious Revolution and “contained in the public documents of the time” differed from Locke and the American Declaration; yet the post-Restoration Whigs, who had been unable to entirely carry the day in the Convention Parliament of 1688–89, did understand politics much as Locke and later the Americans did. The Americans, according to this story, adopted a mode of political thinking that had failed to win official recognition in the Glorious Revolution, but was nonetheless well established and traditional within English politics. “It was left to Locke,” said J. R. Jones, “to publish . . . after 1688 the classical Whig exposition of the origin, nature, and purpose of political institutions.”¹ From the Whigs to Locke to the Americans—a chain of transmission of well-worn and widely, if not universally, accepted political ideas.

Even this revised story has met with much criticism of late, criticism that will be accepted and even extended here. The Whigs, rationalist as they were, were neither uniformly contractarian nor were they contractarians of the sort Locke and the Americans were. They represented a distinct and quite different style of political thought both from Locke and from their parliamentary predecessors. They differed almost entirely from Locke, but such are the ironies of history that their political thought went some way toward making possible the ultimate emergence of modern—that is, Lockean—contractarianism, and that fact helps to account for the preeminence it later attained.

THE RESTORATION AND THE EMERGENCE OF THE WHIGS

Whiggism was a product of the post-Restoration world. Despite a continuing commitment to Protestantism and an opposition to divine right absolutism, Whiggism differed in important respects from pre-Commonwealth Opposition thought. After the Restoration everything was the same, and yet everything was different. The Stuarts were on the throne again, and on very favorable terms. So hungry was the nation for a return to “the good old days,” so discredited was the immediate past by civil war and Cromwellian military rule, by Presbyterian oppression and Independent rebellion, by Levellers, Muggletonians, and a clutch of other eccentrics scheming to reconstitute England’s social, political, and economic life that with no apparent regrets the political nation made every effort to pretend that most of the whole period after 1642 had been but a bad dream.

“The Restoration Settlement was based on the undertakings given [by Charles II] in the Declaration of Breda, and on the legislation of 1641 and 1642 to which Charles I had given his assent.”² At Breda, Charles had committed himself to a general pardon, to a degree of “Liberty to tender consciences,” to a parliamentary settlement of all property claims brought into confusion by the war and the Interregnum, and even to full pay for the army that had marched out against his father.³ The established church, which had been unbearable to Parliament only a few years before, was restored, complete with bishops. Not even the gestures toward a more liberal ecclesiastical policy that Charles had pledged at Breda were adopted. In 1662 Parliament passed the Uniformity Act, premised on the belief that “nothing conduceth more to the settling of the peace of this nation . . . unto the honour of our religion and the propagation thereof than a universal agreement in the public worship of Almighty God.” Accordingly, the law mandated that all ministers acting in any “place of public worship” use the Book of Common Prayer and required of them an oath declaring their “unfeigned assent and consent to the use of all things in the said Book” on pain of being deprived of their positions. Perhaps two thousand out of nine thousand clergy did surrender their livings because their “tender consciences” would not allow them to take the pledge.⁴

The Cavalier Parliament tripped over itself in its eagerness to denounce its predecessors’ constitutional pretensions. Parliament’s earlier efforts to curb the royal prerogative were denounced as being “in derogation of his Majesty’s just rights and prerogatives inherent to the Imperial Crown of this realm for the calling and assembling of parliaments.” Those attempts by Parliament to establish independence from the King were denounced as productive of “manifold mischiefs and inconveniences,” and repealed, every jot and tittle of them. In their place, Parliament “humbly beseeched” the king to call Parliaments frequently.⁵ The king’s full power over appointment of his own ministers was reaffirmed; Parliament’s efforts to say otherwise were renounced, disowned, and abjured. The king had the right to command the military, when and how he liked; Parliament’s efforts to say otherwise were denounced as misguided, mistaken, and mischievous.⁶ At the same time, the Restoration Settlement endorsed an unequivocal duty of obedience to the king and rejected all theories of the right of resistance—Hunton’s moderate theory as much as Milton’s more untrammeled views.⁷

Yet not even the Cavalier Parliament accepted an absolutist monarchy. They sought a return to the ancient constitution, more or less: Parliament had to agree to taxation bills, Parliament had a share in the legislative powers. Englishmen did have certain rights the king must respect. Not even the Cavalier Parliament was willing to sign on to a Filmerean royal absolutism.

As an attempt to restore a status quo that had produced all the evils the Cavalier Parliament wished to renounce, the Restoration seemed to set the stage for a replay of the first half of the century. It almost happened that way: years of intense religio-political conflict between king and Parliament; efforts by the king to rule without Parliament; efforts by parliamentary leaders to outfox the King; charges of royal usurpation, charges of parliamentary usurpation; deep-going social unrest, centering largely on conflicts over religion; and all culminating in a revolution—not a regicide this time, but a new king set on the throne and the old king, despite the ironclad oath, dependent on the hospitality of the French king.

Yet it was not quite a return of the same. Instead of the chief line of cleavage lying between those who supported the orthodox or established church and those who wished to make the church yet more Protestant, the main divide this time lay between those who supported the established church and the “papists,” a relatively small but well-placed minority.⁸ In part, the new placement of the barricades represented a deliberate effort by some Opposition leaders to shape a different, perhaps less explosive politics for the second half of the century. Except for the fact that the Duke of York was an avowed Catholic who favored other Catholics, fomenting conflict with the Catholics was surely a lower risk policy domestically than the religious conflicts of the first half of the century had been. Anti-Catholicism was one thing all the different sorts of Protestants could underwrite, even if they could agree on little else.

The Whigs arose as a party, or at least as an identifiable and identified group, in the struggle of the late 1670s and early 1680s to prevent the Catholic James, Duke of York, from succeeding Charles II as king.⁹ The effort slightly followed and slightly overlapped the notorious and malodorous affair of the Popish Plot. Much if not all of the plot was fabrication—complete with perjured witnesses, religious fanatics, and manipulative politicians. The plot—the main charge was that the Catholics intended to kill Charles so that his brother could succeed and thence lead the nation back to the Roman church—directly inspired Exclusion. If a Protestant succession could be guaranteed, it was said, there would be little point in a Catholic attempt on Charles’s life.

EXCLUSION AND WHIG NON-CONTRACTARIANISM: GROTIAN LEGALISM

The leader of Exclusion, the leader of the Whigs, was the Earl of Shaftesbury, a politician extraordinaire and the patron of John Locke, who lived in the earl’s household as physician, political confidant, and resident intellectual. Despite Locke’s closeness to Shaftesbury and thus to the center of Whig activity, recent scholarship on Whig political thought of the era from Exclusion to the Glorious Revolution draws a picture of a body of thought remarkable un-Lockean. Neither before, nor during, nor for a long while after the 1680s were Lockean ideas dominant within the Whig party. The recent scholarship finds that Locke’s Treatises was not “very influential during the Revolution period.” It did not “become straightaway the principal authority of the Whigs.”¹⁰ That may have been because “Locke was unlike . . . all the other leading Whig theorists.” Whatever the cause, the outcome was that “in supporting the Revolution Settlement of 1689 . . . few men justified their actions by reference to such radical concepts as the original contract, the sovereignty of the people or the natural rights of all men.”¹¹ Locke as spokesman for the Whigs, the Whigs as Lockeans—two illusions of historical judgment produced by an overly anachronistic reading of the seventeenth century. The “remarkable lack of immediate response to Two Treatises seems to indicate that hindsight has inflated our sense of Locke’s importance as a political writer during the late seventeenth and early eighteenth centuries.”¹² From the dominance Locke later came to have over Whig thought, historians had read him backwards into history.¹³

Not merely did “the Whigs who came to power in the wake of the Glorious Revolution . . . not rush to embrace the ideas of Locke,” but they “went to considerable lengths to disassociate themselves from the . . . opinions contained in the Two Treatises.”¹⁴ Locke-like views were seen by the Whigs as a liability. “The strength of support [in the nation] for Toryism drove the Whigs to abandon some of their more liberal views and to stress their commitment to conservative principles.”¹⁵ More fundamentally still, recent historians argue, “contractarian thought had fallen into general disfavor . . . as a result of the ‘murder’ of Charles I and the ‘tyranny’ of Oliver Cromwell.” Whig defenders of the Revolution like Benjamin Hoadley “eschewed all mention of Locke and Sidney, preferring to base his case on Hooker and St. Paul.” In so much “disfavor” were Lockean principles, concluded J. P. Kenyon, that “the Whigs were not anxious to be associated in the public mind with what we now regard as the fathers of Whig political thought.”¹⁶

Locke and the relatively few Whigs who agreed with him returned the favor. In a recently rediscovered commentary on the aftermath of the Revolution, Locke denounced the reasoning by which most men were endorsing the Revolution. If one rested one’s acceptance on mere possession of the throne, without recognizing explicitly the rightfulness of removing James and of replacing him with William, then the distinction between lawful king and usurper is no more. The only path to safety and national unity, thought Locke, lay along the lines of public avowal of the principles he had defended in the Two Treatises.¹⁷

The new story about the Whigs and the Glorious Revolution thus has the following elements: The Whigs were not sole begetters of the Revolution, dominating the political landscape with their ideas; moreover, the Whigs themselves splintered into conservative, moderate, and radical blocs. Accordingly, says one scholar, “rather than an approach to the political theory of the Whigs that is premised upon a consensus, we require a framework that highlights and explains the importance of a split within Whig political theory in the 1680s and 1690s.” Seen in that light, “Locke’s Two Treatises expresses a distinctive radical perspective, and . . . it does so in language that contemporaries clearly perceived to have those qualities.”¹⁸ That “distinctive radical perspective” was also distinctly a minority perspective. In addition to the testimony we have already seen regarding Whig reluctance to endorse Lockean theory, there is Mark Goldie’s careful tally of the types of arguments made in the political pamphlets of the revolutionary era: no more than ten percent endorsed a view of politics at all like Locke’s. Lockean argument, concluded Goldie, was “utterly uncharacteristic” because it was “unusually abstract.”¹⁹

The previously prevailing consensus that pegged Locke as a mainstream Whig and the Whigs as nascent or actual Lockeans, so far as it was not mere anachronism, arose from the presence of contractarian language within the writings of many Whigs and in Two Treatises as well. This is a double mistake, however; in the first place, the idea of contract was by no means universal or entirely dominant within Whig thought, and second, as we have already seen, not all contractarianisms are the same.

Post-Restoration Whig thought not only continued to be un-Lockean in character, but it also differed noticeably from pre-Restoration Opposition thought. Its continuing tie to the Reformation lay not in an effort to find “the one true Protestantism” but rather in its virulent anti-Romanism. “There is no question but that anti-popery feeling was the glue that held together the various constituencies comprising the political movement that emerged during the Exclusion crisis.” The Whigs appealed to “a deeply ingrained cultural prejudice against Catholicism.”²⁰ And to a fear of it: in 1681 one of the Whig pamphleteers demanded to know “what Mercy, Favour, or Compassion would a Popish prince exercise over Protestant subjects,”²¹ stirring memories of Bloody Mary, of St. Bartholomew’s Day, of the Irish Massacre. As bad as a Catholic king would be in himself for the Protestant interest of England, the Whigs also feared that Catholicism led—perhaps inevitably—to political absolutism.²² “Where Popish lords are in power, there rages tyranny,” raged the Exclusionist author of the pamphlet “Percat Papa.”²³ The most visible themes in Whig writings of the Exclusionist period were thus themes centering on the Catholic threat and the evils of absolutism. “No Popery, No Slavery” was the chief slogan of the day.²⁴ The Earl of Shaftesbury probably captured the fear most picturesquely in a 1679 speech to the House of Lords: “Popery and Slavery, like two sisters, go hand in hand, sometimes one goes first, sometimes the other, in a door, but the other is always following close at hand.”²⁵

The Whigs proposed to exclude James via ordinary legislation—a bill to be passed by Parliament and signed by the king. The question naturally arose whether it was possible for Parliament and king to alter the laws of inheritance in this manner.²⁶ Although O. W. Furley is correct in asserting that the Whigs attempted to establish “that Exclusion was constitutional and not innovatory,” he overstates the case when he implies that they tended to limit themselves to measuring the lawfulness of Exclusion in terms of “their ideas of the ancient constitution.”²⁷

A new sort of legalism appeared in Whig thought, different in emphasis from anything before the Civil War. Even those Whigs who refused to follow Hunton and Parker into an original contract anterior to the constitution tended to place their consideration of the lawfulness of Exclusion in the context of this broader legalism. There was now not only an appeal to the laws and constitution of England but also a systematic canvassing of the provisions of the laws of nature, of nations, and of God. These other laws were important to the argument in two ways. First, the Whigs sought to address the issue not only of the legality but of the justice of Exclusion. Exclusion seemed just under the laws of God, for example, because the Scriptures show instances of God displacing one ruler in favor of another ruler in Israel itself. “Now if God permitted and allowed of this in his own commonwealth, no doubt but he approveth also the same in other realms, viz., that the ordinary line of succession be altered, when just occasions are offered.”²⁸ Likewise, concluded the same pamphleteer, “that it is lawful for king and Parliament to alter succession is evident from the Law of all Nations,” as evidenced in the fact that the nations do this very thing when the occasion arises.²⁹

The appeal to the broader context of law served another function as well: it supplied an interpretive principle for construing the laws and constitution of England. The chief legal arguments under the laws of England were precedential ones; king and Parliament had together regulated the succession in the past.³⁰ But the opponents of Exclusion denounced such precedents as “unconstitutional, . . . null and void.”³¹ The Whigs had to have some sympathy for this objection, because they were unwilling to concede that every historical precedent had the force of law. Many times kings had taken actions that the Whigs considered usurpations. The Whigs therefore appealed to the broader context of law in order to establish a version of the law and constitution beyond mere precedent. Once again, the ancient constitution in itself proved inadequate. “It is contrary to the Law of Nature and Reason to suppose that the King and Parliament together cannot alter the succession.” According to the law of nature, “government being ordained for the benefit of the publick and not for its destruction,” there must exist a power in the political authorities—king and Parliament—to do what the public benefit requires.³² The standard for measuring the power of king-in-Parliament is “the safety of the nation,” and therefore they “may for weighty causes refuse the Heir presumptive”; given the very great potential harm to the whole public, this is not at all the same case as an ordinary inheritance.³³ “No government can want power to preserve itself and obtain its great end, viz, the preservation of the community and the polity itself.”³⁴ Those laws that transcend the positive laws of England provided the Whigs the key to construing the positive laws and constitution. “In the last analysis,” the Whigs “rested upon an interpretation of the Law of Nature.”³⁵ On the basis of that interpretation, they pronounced (their) legal precedents sound. The noncontractarian Whig position outlined here combines appeal to the constitution, even the “ancient constitution,” with appeals of a less historical and less narrowly English character. Richard Ashcraft thus counsels wisely when he advises against “positing a dichotomy between” ancient constitution and natural law arguments. The Whigs used both, and used them together with no sense of incompatibility between them.³⁶

It was just this appeal beyond mere English law and history that distinguishes this type of Whig theory from the doctrines of the Declaration of Rights of 1689. The Declaration resolutely resisted any transconstitutional, translegal reference, a resistance made possible by James II’s convenient “abdication.” The Declaration of Rights was clearly a legalist document, and it remained entirely within the ambit of the English positive law. The new Whig legalism, even in its noncontractarian form, appealed outside the positive law to a trio of laws: the laws of nature, of nations, and of God. That trio in turn betrayed the influence of the Dutch political philosopher Hugo Grotius, whose 1620 treatise The Law of War and Peace, a work of great popularity in mid-century England, proceeded precisely in terms of the systematic and orderly appeal to these three types of law. The prominence and parallelism of the three serve as a marker for the presence of Grotius: earlier natural law writers, like Richard Hooker, either did not deploy all three or did not use them in this parallel form.³⁷ In most of his substantive discussions of topics like “the rights of captives in war” and “the rights of killing enemies in lawful war,” Grotius first lays out the mandate of the law of nature, then of the law of nations, and finally of the law of God, just as the Whig Exclusionist writers increasingly did.³⁸ Thus, even when they did not mention Grotius explicitly, his signature was clearly visible; many did in fact cite Grotius as an (or the) authority.³⁹ The details of the argument did not always strictly adhere to the Grotian original, since the Whig writers often misconstrued Grotius on the law of nations, yet the style of argument was unmistakably Grotian. Moreover, in order to establish the content of the various laws, the Whig writers followed Grotius’s empirical method: the uniform or common practice of the nations points to the content of the relevant laws.⁴⁰ Although earlier writers like Hunton showed more than a few signs of a Grotian presence in their thinking, it is really in the post-Restoration context that Grotius became the overwhelming force that led to the conclusion that in the second half of the seventeenth century he was “the master of Whig thought.”

The Whigs’ Grotian appeal to the triumvirate of laws beyond the English positive law brought this noncontractarian Whiggism closer to the doctrines of Locke and of the American Declaration of Independence than the Declaration of Rights was. As in the American Declaration, there are natural standards to guide, shape, and judge political life. As in the Declaration, there is clear recognition of a naturally established public good as the defining end for political life. Even so, this Whig theory remains notably different from the American doctrine. The Whigs affirmed the primacy of the “public benefit,” but left that almost entirely unspecified and surely made no suggestion that it ought to be understood in terms of securing individual rights. While the Whig theory deploys the law of nature, it contains no notion of a prepolitical condition or of original equality. Accordingly, this Whig theory knows nothing of the political as artifact, constituted through “consent of the governed”—rather the contrary, in fact, for the mandates of the law of nature are applied directly to government, implying its naturalness. That is, the “just powers” of government do not “derive from the consent of the governed” but from the law of nature.

In the period leading up to and beyond the Glorious Revolution, noncontractarian arguments remained prominent among the politically active elements of the nation and even among the Whigs. Goldie’s thorough survey of the pamphlet literature shows that more than fifty percent of those who wrote in defense of the Revolution failed to make a contractarian argument of any sort; among the Whigs a full one-third failed to do so. Moreover, Goldie suspects contractarianism to have been even less widespread than these figures suggest. On the basis of “observations of contemporaries” regarding the prevalence of different sorts of political principles, he thinks “the printed frequencies of arguments . . . with their large contractarian Whig wing may well provide a misleading picture.”⁴¹ Goldie’s suspicion coheres with the conclusion of H. T. Dickinson, who, on the basis of his own resurvey of the literature, believes that the appeal to contract was less prevalent among the Whigs than the various appeals to law, natural, and positive.⁴²

WHIG CONTRACTARIANISM AND THE GLORIOUS REVOLUTION: RIGHT GROTIANS

Notwithstanding the many Whigs who avoided contractarian arguments, prominent Whig writers did commit themselves to contractarian political docrine. An especially important instance of Whig writing, said by some to “coincide with ideas expounded by Locke,” to “present ideas that were strikingly close to those of Locke,” is Gilbert Burnet’s “Enquiry into the Measures of Submission to the Supream Authority” (1689).⁴³ Burnet, a Scot living in exile in Holland at the time of the Glorious Revolution, had been something of a prodigy in his time; he had mastered Latin, Greek, Aristotelian philosophy, civil law, and theology by the age of eighteen. His Whig leanings had caused him difficulties with Charles after the Exclusion Crisis, and, under ban in England, he became a member of the large English exile colony in Holland in the 1680s, a colony that then also included John Locke. By 1687 he had become a political advisor to Prince William of Orange and spiritual advisor to his wife, Princess Mary. When William invaded England toward the end of 1688 Burnet accompanied him. So did Burnet’s “Enquiry,” “printed in large numbers for distribution at William’s landing.”⁴⁴ In its original form, it bore the imprint “by authority,” and “was surely published with the approval of William,” and almost as surely “written after consultation with distinguished English emigrés in Holland.”⁴⁵ Burnet’s “Enquiry” thus comes as close as we can get to an official theory of their actions by those who actually made the Revolution.

At first glance, Burnet’s “Enquiry” is not easily placed into any of the categories in terms of which Whig thought is usually discussed. It surely is neither exclusively a rationalist nor exclusively a legal-historical argument, for although it appeals to the English constitution, it also appeals to the “law of nature,” “natural religion,” and the teachings of the Bible. Indeed, what characterizes Burnet’s argument most decisively is just the way he combines constitutionalist and philosophical arguments. His inquiry in the pamphlet—prepared, it must be recalled, at the moment of William’s march on England—is into “the measures of submission to the Supream Authority,” by which he means the extent of obedience due to rulers, or alternatively, whether and when “it may be lawful or necessary for subjects to defend their religion, lives and liberties.”⁴⁶

The answer to those questions, he says, is not determined by natural or divine laws, but by the particular laws and history of particular polities, and accordingly the answer will vary from place to place. That is, one nation, such as England, may owe only a limited degree of submission to its king and may possess a right of resistance under some circumstances, whereas another nation may owe unlimited submission and retain no right of resistance.

The measures of power, and by consequence of obedience, must be taken from the express laws of any state or body of men, from the oaths they swear, or from immemorial prescription, and a long possession, which both give a title. . . . The degrees of all civil authority are to be taken either from express laws, immemorial customs, or from particular oaths.⁴⁷

Thus far, Burnet fits the model of the constitutional contractarian; his concern is with “particular positive laws and the institutional inheritance of specific polities.”⁴⁸ The “laws, customs, and oaths” to which he looked are all taken as evidence of the content of a specific and positive original contract that empowered the rulers and subjected the ruled: a human being “becomes in the power of another, only so far as it was provided by the contract.”⁴⁹ Burnet thus assimilated the themes of ancient constitution (“immemorial custom”) and original contract in a way that belies those who see them as distinctly different modes of argument.

The constitution provides the authoritative answer to the question of what degree of submission a particular human being is under, but Burnet deploys a very different, rationalist or philosophic, argument in order to establish the authority of the constitution. Indeed, his philosophic-theological arguments function precisely to establish the authority of the constitution, and only that. “We are then at last brought to the constitution of our English government: so that no general considerations from speculation about sovereign power, nor from any passages either of the Old and [sic] New Testament, ought to determine us in this matter; which must be fixed from the laws and regulations that have been made among us.”⁵⁰ Natural and divine law carry him only so far as the positive law and then set him down before it. For Burnet, therefore, the rational principles run out at a particular moment, but they nonetheless perform a crucial function: they provide the normative ground for the positive constitution. Burnet combines philosophic and constitutionalist contractarianism just enough to validate the authoritativeness of the appeal to the constitution. He may legitimately be classified as a constitutional contractarian, but only with a major proviso regarding the universalistic philosophic ground that gets him there.

The significant dimension of rationalist or philosophic contractarianism in Burnet does not, however, bring him very close to Locke or the Declaration of Independence. The important difference lies not merely in the commonplace observation that Burnet deploys historical-legalist arguments in addition to his philosophic arguments, which Locke does not. Much more important is the fact that Locke and the Declaration insist that natural principles of right settle the question regarding the “measures of submission” for all peoples, and for all peoples affirm a right to revolution. “Whenever any government becomes destructive of these ends”—that is, the securing of the rights that all men everywhere possess—then it is the right of all men “to alter or abolish” their government. It matters not at all what the particular positive law and constitution of the place may be.

Nonetheless, there is a certain plausibility in identifying Burnet as the source of “ideas that were strikingly close to Locke’s.” There is at least an arguable case for attributing to Burnet three of the five doctrines at the heart of the theory of politics in the Declaration: natural equality, the artificiality of government, and consent.⁵¹ (There is no comparable case to be made for the other two doctrines, the centrality of natural rights and the right of revolution.)

According to Burnet, “The law of nature has put no difference nor subordination among men, except it be that of children to parents, or of wives to their husbands; so that with relation to the law of nature, all men are born free.”⁵² That is, the law of nature puts no one under political subjection. Men are “born free” under the law of nature in the sense of being born equal, free of the authority of any other human being. It is surely plausible to see a parallel here to the doctrine of the state of nature, even if (significantly) Burnet never used that term.

Natural religion does not disturb the mandate of natural law: “It cannot be supposed, by the principles of natural religion, that God has authorized any one form of government, any other way than as the general rules of order and of justice, oblige all men not to subvert constitutions nor disturb the peace of mankind, or invade those rights with which the law may have vested some persons.”⁵³ Natural religion mandates peace, order, and justice, and does so by commanding obedience to the positive laws and constitution of one’s polity, but it does not establish any particular government or any possessors of political authority. It establishes certain natural duties of obedience toward one’s rulers, but it does not establish those rulers or the extent of their authority.

Positive religion also confirms the mandate of the law of nature. The Old Testament presents the story of the Jews, a people ruled by kings “that were immediately designated by God.” No other rulers “can pretend to such designation.” Thus “all that was done in that dispensation, either for or against princes, is not to be made use of in any other state.”⁵⁴ The New Testament has a more abiding relevance, but extends no further than the teaching of natural religion in the content of its political commands: “All Christians are bound to acquiesce in the government, and submit to it, according to the Constitution that is settled by law.”⁵⁵ But the New Testament does not settle the constitution nor designate the holders of power, nor place any obligations on anyone beyond those imposed by the settled constitution.

Human beings are born free under the law of nature, “and this liberty must still be supposed to be entire, unless so far as it is limited by contracts, provisions, and laws.” This seems a plausible rendering of the Declaration’s doctrine of the artificiality of government: it exists only as made by human beings, the natural condition being one of no-rule. The means by which government is made is contract—again plausibly parallel to the Declaration’s assertion that consent of the governed is the origin of the “just powers” of government.

Despite these apparent similarities, Burnet’s position is in fact very different, on all counts, from that of Locke and the Declaration. According to Burnet, the law of nature has put no orders of political subordination among men, but that does not imply that all men are born free and equal, that is, outside political subordination, for each man who is born under a political constitution is subject to that constitution, the governors designated by it, and the “degree of submission” ordained in it. The original or natural freedom and equality applies, or is relevant, only to those who lived before the constitution was established. They who founded it ended not only their own condition of nonsubjection but also that of all subsequent human beings born under the constitution they established. The positive law entirely supersedes the law of nature for all later human beings, as is evident in the fact that nobody in 1688 could look to the law of nature to ascertain the limits of his or her subjection, but only to “the laws and regulations that have been made among us.”⁵⁶

The Declaration insists quite otherwise: “All men are created equal,” not only those who lived at some moment of founding, but even those living here and now, in 1776, or in 1994. Thus “all men” retain the right to appeal to “the laws of nature and of nature’s God” and to assert their rights, which precede and do not derive from government. Locke states the point at greater length than the Declaration does, but it is the same point: “Men being, as has been said, by nature, all free, equal and independent, no one can be put out of this state and subjected to the political power of another, without his own consent.” That later human beings are born into already existing political societies does not change matters: “’Tis true, that whatever engagements or promises any one has made for himself, he is under the obligation of them, but cannot by any compact whatsoever, bind his children or posterity.” Since “every man” is “naturally free . . . nothing [can] put him into subjection to any earthly power, but only his own consent.”⁵⁷

It should be obvious, therefore, that the doctrine of consent in the Declaration is quite different from what appears to be a similar idea in Burnet. For Burnet, consent or compact occurs but once; for Locke and the Americans consent must occur as often as human beings come to take up a place within a polity. The most obvious token of the abiding relevance of consent is the right of revolution: when government no longer does what needs to be done, then the subjects may withdraw their consent and alter or abolish it.

The important differences between Burnet and the Declaration ultimately come back, as might be expected, to the issue of rights. The agreement or contract to which Burnet traced political subjection differs from the equivalent idea in the Declaration in at least two respects. As we have already seen, Burnet assumed that the contract could and did bind future generations entirely; and Burnet explicitly affirmed the unlimited power of human beings to contract away the entirety of the liberty (nonsubjection to other men) that the law of nature bequeathed them:

As a private person can bind himself to another man’s service, by different degrees, either as an ordinary servant for wages, or as one appropriate for a longer time, as an apprentice; or by a total giving himself up to another, as in the case of slavery: in all which cases the general name of master may be equally used, yet the degrees of his power are to be judged by the nature of the contract: so likewise bodies of men can give themselves upon different degrees to the conduct of others: and therefore though all those may carry the same name of king, yet every ones power is to be taken from the measures of that authority which is lodged in him.⁵⁸

Or, to use the language of the Declaration, according to Burnet liberty is alienable, entirely alienable, to the extent that an individual may give it all up and become a slave and a people may give it all up and become entirely subjected to an absolute ruler. But the Declaration pronounces liberty to be an “inalienable right”: no individual can voluntarily give it all up and become a slave; no people can voluntarily give it all up and become subjected to an absolute king.

Since human beings can, under Burnet’s law of nature, resign themselves up entirely to their ruler, there is an openness about the end of the political societies thus created. Since they can alienate their liberty, it cannot be insisted, as the Declaration does, that government exists solely for the sake of securing their inalienable rights to that selfsame liberty. Burnet thus has nothing whatever to say about the universal purposes of rightful government. In other words, despite some surface similarities, Burnet’s version of Whig contractarianism is almost as far from that in the Declaration of Independence as the Declaration of Rights was. It is also, as should be apparant, very distinct from Milton’s Christian “contractarianism.”

Thus, it appears, Burnet was not learning his politics from Locke during those years the two spent in Holland. Nonetheless his Dutch exile was far from irrelevant to the “Enquiry,” for in its main outlines it closely follows the political thought of the greatest Dutch thinker of the time, Hugo Grotius. Grotius had published his masterwork, De Jure Belli ac Pacis, the founding work of the field of international law, about two generations before Burnet and Locke involuntarily found themselves residing in his homeland. By the late seventeenth century it was an acknowledged classic, widely read and extraordinarily influential in England as well as on the Continent.⁵⁹ Burnet’s Whig contractarianism was shaped by Grotius to an even greater degree than was the Whig noncontractarianism surveyed above.

The traces of Grotius’s thought appear everywhere in Burnet’s pamphlet, but most importantly in his central argument. Grotius, like Burnet, argued for the origin of political power in the people, but he incisively rejected “the opinion of those . . . who hold that everywhere and without exception sovereignty resides in the people, so that it is permissible for the people to restrain and punish kings whenever they make a bad use of their power.” Grotius found this doctrine not only untrue but dangerous: “How many evils this opinion has given rise to, and can even now give rise to if it sinks deep into men’s minds, no wise person fails to see.” The doctrine of popular sovereignty, understood as a general right under the law of nature to resist or punish kings, is untrue, he said, for the following reason:

To every man it is permitted to enslave himself to any one he pleases for private ownership, as is evident both from the Hebraic and the Roman Law. Why, then, would it not be permitted to a people having legal competence to submit itself to some one person, or to several persons, in such a way as plainly to transfer to him the rights to govern, retaining no vestige of that right for itself? . . . A people can [originally] select the form of government which it wishes.⁶⁰

Grotius does not take the opposite position—that resistance is never justified—but precisely the one taken by Burnet: it all depends on the positive constitution of the country in question. “It may happen that a people, when choosing a king may reserve to itself certain power; but may confer the others on the king absolutely.” The rights and duties of king and people depend entirely on what was actually established. When the people “enjoins upon the future king something in the nature of a perpetual command . . . it is understood that the king can be constrained or punished.” Grotius goes on to list the cases in which “resistance [may] rightly be made to those who hold the sovereign power.” In all cases, the standard Grotius uses is “the purpose of him who laid down the law”—that is, the law of the constitution as fixed at the establishment of the constitution.⁶¹

Burnet’s Grotian doctrine contained features that made it very well suited indeed to the situation in which he proffered it. First, it was a serious and very thoughtful effort to give normative ground to the constitution. The Whigs almost universally accepted the authority of the historical constitution (as they interpreted it), but thinkers like Robert Filmer and Dr. Ferne not only challenged their specific interpretation of it but also posited natural or divine principles of politics that, in effect, superseded the authority of the constitution. In general, the theory of the original contract, most of the tenets of which Burnet captured very well, was the answer to this challenge. The constitution was binding because it had been made via a binding promise between the people (or rather, their ancestors) and the king (or rather, his ancestors).

Burnet presented an especially conservative version of the original contract; he went so far as justifying resistance to James, perhaps justifying replacing James with another (William), but no further. Everything turned on the terms of the inherited constitution and there was no hint that further remodelling of the English polity or society was justified by the theory. As a quasi-official statement, it served William’s needs admirably well; as a conservative version of contractarianism, it spoke well to those who wished to resist the innovatory (as they saw it) aims of King James but who feared and distrusted the kinds of innovations instituted under the auspices of Reformation contractarianism between 1642 and 1660. Burnet’s was, in every way, as reassuring a version of contractarianism as the context could have required or allowed.

The same animus Burnet shows against the 1640s is more explicit in a pamphlet written some months after William’s success by the great publicist and novelist Daniel Defoe. Defoe’s “Reflections upon the Late Great Revolution,” one of his very early works, repeats Burnet’s arguments exactly, although somewhat less incisively, at greater length, and with more attention to biblical history. But on essentials it is just the same: “The magistrate’s power and the measures of the subjects subjection, are only to be judged of by the particular laws and constitutions of the kingdom; for that may be very lawful in one place which is not so in another.” The ground for this judgment is also just the same as in Burnet. “The power of kings” derives “being” from “that original contract which is made between the people and the person or family they shall think fit to advance to the kingship. . . . The people at the first institution and setting up of monarchy among them make over so much of the power, and such and such rights and privileges to the king, which if afterwards they refuse to make good, they are and ought to be looked upon as rebels and traitors.” But just as the people become “rebels and traitors” when they fail to live up to the terms of the original contract, so the king “forfeits” his authority when he exercises power beyond his legal bounds. All covenants are “conditional,” all obligations established by covenant are “mutual.” According to Defoe, 1689 did not in the least reprise 1642 or 1649, which “was the most open and notorious rebellion that ever was rendered in story.” Charles I, “that good king and true martyr,” had but one fault—“complying too much with his people,” in contrast with the character of his son James, who had launched a concerted attempt to subvert the laws.⁶²

The character of the American Declaration of Independence stands out by way of contrast. Burnet’s form of contractarianism was in principle oriented to the past, and to history: not merely were the standards for political action in the present to be found exclusively by reference to historically established laws and principles, but the past remained exclusively authoritative over every future. Burnet’s theory could never preside over the inauguration of a “new order for the ages”; it could only restore, over and over, the old order—quite without regard, by the way, for the inherent goodness of that past order. The Americans, by contrast, affirmed the ever-present right “to alter or abolish” their government “and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.” The Americans were thus, in principle, progressive, or open to the future.⁶³

The daring of the Americans stands out when contrasted with the discernible conservatism of Burnet, Defoe, and Grotius. Surely the latter group would have seen the doctrine of consent in the Declaration, as well as the ever-open appeal to nature—over the head, so to speak, of history and law—as potentially unsettling of all political life. Surely they would have seen the Declaration’s openness to an open future as potentially unsettling of all political life. The very suitability of Burnet’s “Enquiry” to his situation reveals the truly radical bearing of the American Declaration.⁶⁴

WHIG CONTRACTARIANISM AND THE GLORIOUS REVOLUTION: LEFT GROTIANS

Popular as Burnet’s type of contractarianism was,⁶⁵ there were other, much less conservative versions put forward in the late seventeenth century. In addition to using contractarian arguments to justify resistance to and replacement of King James, this strain of thought also promoted changes in the constitution, some more and some less far-reaching, but all less committed to the continuing sway of the inherited constitution and the terms of the “original contract.” Like Milton, and unlike Burnet, these Whigs endorsed the right to change the constitution, to modify the terms of the original contract; but, like Burnet and unlike Milton, they did not transform this right into a cryptorepublicanism, to be opened up for use whenever the people or some part of the people cared to. Like Burnet, like Hunton, like Locke, and like the authors of the Declaration of Independence, they limited the occasions on which a people may have recourse to this power.

This relatively large group of Whig thinkers would appear, then, to be most like Locke; so far as the Whigs served as antecedents for the theory of politics contained in the Declaration of Independence, these are the predecessors we might identify. With the exception again of Locke, however, that seems not to be the case. This group of Whigs, surprisingly perhaps, turns out to be Grotians as much as Burnet and Defoe were. Although they emphasized certain of the Dutch jurist’s themes ignored by Burnet, and thus produced a somewhat less conservative version of the contract doctrine, they nonetheless differed from Lockeanism almost as much as Burnet himself.⁶⁶

In some of these Whig writers the Grotian connection is even more obvious than in Burnet, for Grotius is explicitly quoted as the authority on the law of nature and on the right of subjects to resist kings.⁶⁷ In other cases the Grotian presence is less explicit—in the seventeenth century authors were not always generous in citing by name authorities from whom they borrowed ideas—but nonetheless discernible. For example, a pamphlet frequently attributed to the former Leveller John Wildman affirmed Grotian doctrines we have already noticed in Burnet: “All power is originally or fundamentally in the People”; government is set up by the people and they “may set up what government they please . . . a monarchy absolute or limited; or an aristocracy or democracy.” The present situation of the people, with respect to their relationship to government, must therefore be ascertained not by reference to abstract principles of natural law, but by reference to the constitution.⁶⁸ Another pamphlet, usually attributed to the clergyman John Humphrey, not only endorses the same Grotian ideas but adds the following, which captures the center of the Grotian position in language almost directly taken from the Dutchman:

Whatsoever reservation of liberty the people make in their agreement, these are to be looked upon as their rights by the laws of the constitution, and essential thereunto, and consequently inviolable by any of these governments whom they set up for the administration.⁶⁹

The doctrine of the “left Grotians” differs from Burnet’s in but one essential: Not only may the king forfeit his rightful power, or exceed his authority and therefore ask more submission of the people than they owe him, but the government may be “dissolved,” in which case “the supreme authority . . . does escheat or fall to the community.” When that happens the people may remake government in whatsoever way seems desirable to them, for the old constitution, which “lay in the original agreement of the people,” is then “at an end.”⁷⁰ Because 1689 was such a moment of dissolution and reversion, the “left Grotians” argued, the opportunity for revision of the constitution was at hand. With the memory of the Commonwealth and the Protectorate behind them, few in 1689 proposed truly radical reformation, such as abolition of the monarchy, but a few did recommend fairly substantial reshuffling of the powers of government between king and Parliament.

The ideas of royal forfeiture and reversion of sovereign powers to the people affirmed by this group of Whigs can also be traced to Grotius. The Dutch jurist, even though he rejected a general right of resistance, developed a lengthy table of cases in which resistance to the king was justifiable and in which the king was dethroned, or dethroned himself. Whig writers appealed to almost all the possibilities Grotius listed, singly or in combination, and although they seldom mentioned him by name in this context, he was clearly the source of Whig thinking about forfeiture and the resultant dissolution. One pamphlet that did mention Grotius by name on the subject, and that was also very thorough in charging King James with all the offenses deserving resistance that Grotius had discovered, was “Some Short Considerations Relating to the Settling of the Government.” The anonymous author found the government to be dissolved, because two parts of the constitution—the King and the House of Commons, which depended on the king to call it into session—were not operative. The writer found that the king had forfeited his power in “several ways,” including his effort to “alienate the kingdom” by accepting subjection to the Pope; his “desertion” of the kingdom; his “abdication,” which the Convention Parliament had made so much of (with Grotian warrant); and, most interesting, his forsaking of his true constitutional powers and attempt to usurp powers not his. The English constitution “allows no such king.”⁷¹

Not all the Whigs were as eclectic as the author of “Short Considerations,” and there were frequent disagreements among them as to just what “brought things back to their first original,” but the details of these controversies are not important here. Beneath these disagreements was a more fundamental consensus on the point Grotius had argued: under certain circumstances the sovereign power reverts to the people and thus makes possible a new “original contract.”⁷²

Even though the “left Grotianism” of the Whigs is less conservative than Burnet’s “right Grotianism,” nonetheless all the differences between Burnet’s Grotianism and the American Declaration that we have discussed earlier also apply to theirs. It, too, remains very close to Höpfl and Thompson’s “constitutional contractarianism.” The “left Grotians” continue to speak of “the original contract” as an historical and historically binding event; they conceive the contract as occurring between the ruler and the people; they trace the power given to the ruler to the community, to which it reverts in case of dissolution, instead of to individuals; the actual historical legal-constitutional arrangements of particular peoples remain the indispensable point of reference for deciding major questions of political right and obligation. On all of these matters, as we have seen above, the Declaration of Independence takes a different position.⁷³

CONTRACTARIANISMS

Despite the usefulness of Höpfl and Thompson’s classification of contractarianisms, their typology now appears in need of some refinement. For one thing, the distinction between constitutional and philosophic contractarianism is too rigidly drawn. As the Whig Grotians of both left and right reveal, this particular version of constitutional contractarianism contained a heavy dose of philosophic matter. Moreover, their dichotomy is not fine enough to pick out the kinds of differences that exist between, say, Burnet and Wildman.

Höpfl and Thompson’s claim about the relative uniqueness of Locke is well borne out, however. The differences between Locke and his American followers, on the one hand, and the English Whigs of the seventeenth century, on the other, are far more striking than the similarities, although judgments of that sort must always be made with a context of comparison in mind. Despite the differences we have just emphasized, Locke and the Americans were Whigs and rightly saw themselves as making common cause against divine right monarchy, against absolutism, and for constitutionalism. Despite the changes, that common heritage remains important; despite the changes and the differences, there is something valid to the idea of a tradition of Anglo-American constitutionalism reaching back to Magna Charta if not earlier.

Höpfl and Thompson also treat philosophic contractarianism too narrowly. They wish to challenge the unicontractarianism of past scholarship, but substitute for that a notion of philosophic contractarianism too closely tied to Locke’s coattails. Locke is taken as paradigmatic, but, as we have seen, the Grotians, Hunton, and Milton all proffered versions of contractarianism with strong claims to the title “philosophic” (or at least nonconstitutional), but that differ greatly from Locke. Had we extended our survey of Whig literature a bit, we could have discussed yet other modes of philosophic contractarianism, versions that share little with Locke, Grotius, or Milton.⁷⁴ Some of the limits of Höpfl and Thompson’s scheme reflect the fact that they developed their categories largely through the study of, on the one hand, Protestant thinkers who developed a doctrine of resistance in the sixteenth century (in particular the treatise Vindiciae Contra Tyrannos), and, on the other hand, Locke. They thus failed to see that most Whig contractarianism differed from both of their two chief sources, in that it had a heavy infusion of Grotian political philosophy. Indeed, the story of seventeenth-century Whig thought is the story of the rise to dominance of Grotius, who by 1689 had gone far toward supplanting earlier natural-law or purely legal-constitutional political theory. It might be more accurate to say that Whig contractarianism represented an amalgam of an earlier contract/resistance doctrine, which found its best expression in the Vindiciae, and of Grotius. The Vindiciae supplied a more sharp-edged notion of contract than Grotius, while the latter supplied the natural law grounding, including the materials out of which the doctrine of dissolution was constructed.⁷⁵ The Vindiciae itself had incorporated a doctrine of the law of nature taken over from the old Roman law and developed it toward conclusions inconsistent with its own foundations. Grotius began his great work with a withering critique of the Roman-law version of natural law and supplied a new doctrine that more or less swept the field and shaped the broad contours of the various Whig theories that drew on it.⁷⁶

Grotius, in turn, was supplanted by Locke, who became so much the quintessential thinker of the Whig tradition that it has taken a generation of scholars a great effort to recapture a truer perspective within which Locke appears as quite unrepresentative of trends of thought in 1689. But the story of Locke’s triumph is a story that does not become at all visible unless we take a more fine-tuned approach to contractarianism than even Höpfl and Thompson did. As Julian Franklin has well said, “an impression of blandness is conveyed” by Locke’s Second Treatise because he “makes no attempt to distinguish his own position from that of the writers whose political objectives were similar to his.” But, says Franklin, that “blandness” is deceiving: “subtle and acute distinctions often lie beneath the surface.”⁷⁷ Locke’s politically inspired reticence has for too long had too great an impact on scholars.

The story we must note first, however, is the story of the relative failure of both Lockean and “left Grotian” contractarianism in 1689: both positions remained minorities within a minority, unable to achieve the official recognition of the legalist-historical doctrine of the Declaration of Rights or even the quasi-official recognition of Burnet’s conservative version of Grotius. They were, in Franklin’s mild term, “unwelcome,” because they were seen as potentially unsettling and therefore dangerous. A Whig admirer of Locke, William Atwood, captured the Whig concern very clearly when he insisted, as Franklin says, that the Revolution “required a defence that did not rest upon an appeal to natural law, natural rights, and the dissolution of government, but one which appealed instead (or as well) to the constitutional rights of Englishmen and which restricted the limits of constitutional change to the ‘restoration’ of the Ancient Constitution.”⁷⁸

The Whigs were happy with the ancient constitution—or their version of it anyway—and were not eager to set off toward whatever “brave new world” the appeal to the dissolution and thus possible remaking of government might lead to. Atwood’s formulation makes perfectly clear how much more unsettling Lockean contractarianism was than even “left Grotianism”; the latter doctrine posed far less challenge to the received order, for it only opened the possibility of a remaking; and once a new “original contract” was made, “left Grotianism” would be entirely indistinguishable from the conservative Grotianism of Burnet. But as Atwood clearly saw, this was not so with Lockeanism.

That “brave new world,” that “new order of the ages,” is what the Americans embraced when they embraced the natural rights doctrine of government—even though they were not entirely clear themselves what that new world would look like and spent many years disagreeing, first with the British and then among themselves, over the appropriate terms of the new order.