CHAPTER FIVE Richard Hooker

“Laws, as all other things human, are many times full of imperfection,” a learned divine once observed,

and that which is supposed behoveful unto men, proveth often-times most per­nicious.

Such a categorical embrace of the mutability of law and the pragma­tism inherent in its creation and evolution as the Reverend Richard Hooker (1554-1600) displays here was rare among churchmen in the age of the Ref­ormation. The competing certainties of ecclesiological authority and dog­matic theology of the last medieval schism and the first modern revolution left little room for ascription to mere human agency of anything governing belief or behavior. So few were those things divine that the combatants agreed were not necessary to be believed or practiced that one is reminded of the redoubtable bookseller, a citizen of the People's Republic of Berkeley in the 1970’s, who produced a stunningly sardonic poster with the caption “Everything not prohibited is compulsory.” In the mid-sixteenth century, on the same lines, Lutheran believers quarreled violently over whether cere­monies not enjoined or forbidden by Scripture were permissible. The term applied to such ceremonies by those who would accept such diversity was the Greek term adiaphora, “things indifferent.” It took a quarter-century for the German Lutherans to agree that there were indeed things indifferent and that the individual Churches still grasping a scintilla of hope of Chris­tian reunification might determine what they were and how far they might be observed.

The tradition of adιapbιora found its happiest home for a season in the Church of England of Hooker's day. In fact, underlying Hooker's pragma­tism was a belief that there were some things that Christians might agree upon and many things that Christians might agree need not be agreed upon. He was preeminent among those Anglican adiaphorists who re­sponded to the challenge not only of Rome but of Geneva by seeking com­mon ground in accepting as indifferent uncommon beliefs and practices, while still maintaining the fundamentals of the Faith and the integrity of the Church of England.

Rome saw the Church of England as heretical, schismatic, and apostate. It had first broken with a pontifical authority when Henry VIII (1509-1547), in order to obtain an annulment of his marriage to Katherine of Aragon, ex­pelled papal jurisdiction and secured from a pliant (though not Protestant) Parliament statutory recognition

that the King our sovereign lord, his heirs and successors kings of this realm, shall be taken, accepted and reputed the only supreme head in earth of the Church of England called Anglicana Ecclesla.²

With Henry's first heir, Edward VI (1547-1553), the English Church under its regal Supreme Head became avowedly “Reformed Protestant,” that is, looked increasingly to Swiss Protestantism, ultimately Calvin's Geneva, rather than to Luther's Germany. When the boy-king died, succeeded by Henry's eldest daughter, Mary (1553-1558), the issue of Katherine of Aragon, England and its Church were reconciled to Rome. The nation's schism and apostasy was absolved under the watchful, brutal, and rigidly orthodox­Catholic eye of Mary, who dissembled the royal style of Supreme Head by cloaking it under an “etc.” Those clergy and laity who would not recant or reconvert either fled—many to the Reform Protestant havens in Switzer­land and the Rhineland of Germany—or else faced immolation at the stake, which claimed one archbishop, four bishops, and sixteen priests along with almost three hundred resolute and strident laymen and laywomen.

Largely under the influence of clergymen returned from Reformed centers whence they had fled during the Marian persecution, the Anglican Church became substantially Reformed Protestant on the Genevan model: in its dogmatic theology, by accepting John Calvin's categorical soteriology, the doctrine of Predestination; in its worship by the least possible ritualistic observance in its liturgy and emphasis on the sermon at the expense of the prescribed rites; and in its government with an alternative authority struc­ture based on congregationally imposed discipline aimed at the eventual substitution of presbyterian governance for that of episcopacy. The mental­ity and the agenda of what was soon called Puritanism left little scope for adiaphora. It also demanded a response and rebuttal to its challenge, an exercise in apologetics, by which a reasoned defense of and rational expla­nation for the faith and practice of the Church would be advanced.

This is what the Reverend Richard Hooker undertook. Though he was neither learned in “both laws”— viz., civil law and canon law—nor an “ap­prentice del ley” at the Inns of Court, he executed a compelling defense which went far beyond any existing apologia for any ecclesiastical body, sect, or cult of the day.

The preeminence of Hooker's concern with law is clear from the title of his monumental treatise, the first four (of eight) volumes of which were published in 1594: Of the Laws of Ecclesiastical Polity. Of the three elements in the title, “laws” demands treatment at some length. “Ecclesiastical” raises no inherent difficulty, since it refers to matters pertaining to the Church as an organized body of believers admitting one faith under one spiritual authority. A slight ambiguity at Hooker's hands results from the fact that in ecclesiastical matters the English state was no less intimately involved than the Anglican Church, the temporal authority (Queen) no less important than the spiritual (Supreme Governor), and neither easily distinguishable from the other.

“Polity” demands attention, because it was in Hooker's time a neolo­gism, and never achieved common use. In what may have been its earliest use, in the 1530’s, polity was defined as the civil order without which man existed only in a state of nature. A state of nature was what Thomas Hobbes decried a century later: “No arts; no letters; no society; and which is worst of all, continual fear and danger of violent death; and the life of man, soli­tary, poor, nasty, brutish, and short.”³ Hooker used polity in that sense in discussing whether any single form of civil order in religious usage was obligatory:

But we must note, that he which affirmeth speech to be necessary among all men throughout the world, doth not thereby import that all men must neces­sarily speak one kind of language. Even so the necessity of polity and regiment in all Churches may be held without holding any one certain form to be neces­sary in all of them.⁴

It is difficult to recapture that meaning. Post-Lockean as we are, we think of a state of nature as merely a heuristic device, never a historical reality.

In order to do this, Hooker posited that that polity must be ruled by law, by laws that were divine in origin and sanction but human and positive in prescription and promulgation. This rested upon the Christian tradition that had obtained from the Church's beginnings, founded upon the Deca­logue that Moses brought down from Mt. Sinai, the stern and awesome elaboration of those injunctions in Leviticus, and Christ's own assurance:

Think not that I am come to destroy the law, or the prophets: I am not come to destroy, but to fulfill. For verily I say unto you, till heaven and earth pass, one jot or one tittle shall in no wise pass from the law, till all be fulfilled.⁵

The Latin Church, as it recovered from the onslaught of the barbarians who had destroyed the Roman Empire and received the Roman law codi­fied by the Emperor Justinian, fashioned a universal code of ecclesiastical regulation, the canon law.

There was a notable precedent for a lawyer-become-theologian produc­ing a great work of dogmatic theology profoundly marked by legal con­struct and rhetoric: Jean Calvin's Institutes of the Christian Religion (1536). But it was less common for a theologian to turn lawyer. If Richard Hooker seems at first glance an unlikely figure to write an apologetical ecclesio- logical treatise fundamentally legal in form and substance as well as in title, tone, and objective, his background, education, and professional formation fitted him well for the undertaking.

Richard Hooker was born in March 1554 in a suburb of Exeter, the county seat of Devon and the largest city in southwestern England after the great port, Bristol. He came of a distinguished provincial-bourgeois family, Vowell alias Hooker, that played a leading role in the affairs of the city and its hinterland for some generations. Hooker's great-grandfather and grandfather both had been mayor of Exeter. Though his father was in reduced circumstances, his uncle John Hooker alias Vowell was both schoolmaster of Exeter grammar school and city chamberlain, Exeter's chief financial officer. John Vowell (1529-1601) was educated at Oxford, and in a long life—his nephew Richard would pre-decease him—produced nu­merous antiquarian works, most devoted to the topography and history of Exeter, a biography of a noted Devonshire warrior of the age, and a new edition of the chronicler Raphael Holinshed, whose work undergirded the age's historical understanding. He was a Member of the Irish Parliament in 1568 (keeping a journal of the proceedings), and he sat for Exeter in the English Parliament of 1586. It was uncle John who taught young Richard the essentials of Latin grammar, mathematics, and the other subjects requi­site for university study. In the process, Richard learned a great deal about the way a polity worked, the manageable discrete civic polity of Exeter.

It was also John who brought Richard to the attention of his friend and fellow antiquarian, John Jewel, Bishop of Salisbury. Jewel interviewed the fourteen-year-old Richard at Salisbury, was impressed by him, settled a modest pension on his parents for his support, and in 1568 secured him a clerk's place at Corpus Christi College, Oxford.

Bishop Jewel's patronage and friendship, which endured unabated until his death in 1571, had an enormous impact on Richard Hooker. It determined where Hooker received his higher education, since Jewel had been a fellow of Corpus, 1542-1553, until deprived of his position by Mary's churchmen. While Jewel had been forced to flee to Frankfurt, and thence to Strasbourg and Zurich, he was less radically infected with Reformed Prot­estantism than many of his fellow Marian exiles, in great part because he eluded the dogmatic grasp of Geneva and Calvin. At Frankfurt he opposed the unyielding, fanatical, Calvinist radical, John Knox, who was destined to bring Reformed Protestantism to Scotland with profoundly revolutionary results, the effects of which have resonated since in all of the British Isles (most recently in the explosions that terrorized Londonderry, Belfast, and London). Returning to England on Elizabeth's accession, Jewel debated and defeated Roman Catholic divines, and in 1560 was appointed to the see of Salisbury. He demonstrated thoroughly orthodox Anglican tenets in his treatise Apologia pro Ecclesiae Anglicanae (1562). While written to defend the validity of the Church of England's reform against attack by Roman Catho­lic polemicists, the book also served to blunt Puritan demand for further “godly reformation.” Jewel's apologetic was the first attempt in a thorough­going and rational way to explain what Anglicanism stood for against all of its detractors on both sides of the ecclesiastical divide. Testifying to its importance was the order to parish churches that it be placed, chained, on a lectern beside the Holy Bible. And what Jewel began would be brought to final form and full fruition three decades later by his protege Richard Hooker in his treatise.

Hooker's scholarly formation owed most to his college. Corpus Christi College was a very young institution, founded in 1517 by one of Henry VII's and Henry VIII's most astute ministers, Richard Fox, Bishop of Win­chester.⁷ Corpus was to nurture and teach the Christian humanism of the Renaissance, and its first professor was the luminous Spanish humanist, Ludovico Vives. With twenty fellows and twenty scholars, a handful of clerks and others, Corpus endured the change in religion and worked to en­sure the increase of learning in Church and commonwealth. Fox's intention had been that Corpus should institute and endow the teaching of Greek in the university in furtherance of the new learning of the Renaissance. The new learning was built on new scholarship and new skills applied to old learning, and that by thorough command of the three languages of antiqui­ty, Greek, Hebrew, and Latin. While Latin had been the vernacular of West­ern learning for a millennium, Greek and Hebrew were recent novelties. No less a figure than Erasmus prophesied that the trilinguis Inblioteca, the college's library containing as many works in the three antique tongues as Fox and his faculty could secure, would make Corpus famous in the world of learning.⁸ A half century after its foundation when Richard Hooker went up to Corpus it was still the college of new learning, full of vitality, graced with a learned faculty, and enjoying a deserved reputation for scholarly ex­cellence.

In 1573, Hooker became a scholar, which brought him full maintenance, even though he was technically over the age limit—a clear sign of the es­teem in which he was held by the president and fellows. Processing through the BA and MA, he was made a probationary fellow in 1577. In 1579, he was made a regular fellow and was appointed by the university to give the public Hebrew lecture. In effect, he became professor of Hebrew, and he held that post until he left Oxford in 1584. This was a mark of genuine distinction, not only because of the rarity of those commanding Hebrew well enough to teach it, but because that language exacted particular lin­guistic skills that sharpened rhetorical logic and inculcated minute respect for the use of words. The great clarity of Hooker's English prose, which has helped to keep current Ofthe Laws OfEcclesiastical Polity over the course of four centuries, owed much to the Hebrew of the Old Testament, and almost as much to the Greek of the New. Hooker's command of those two ancient tongues effectively “de-Latinized” him, and thus helped “English” him. Hooker was also a lecturer in logic, and so mightily equipped for the exacting labors demanded later by his apologetical masterpiece.

Hooker's sixteen years at Oxford was a relatively long tenure by con­temporary standards. He made full use of them, and all of his subsequent theological scholarship was founded in those years, spent at the great press­es in the library holding the chained books, printed and manuscript, which provided Scripture, the Latin and Greek Fathers of the early Church, litur­gical works, the full range of systematic theology, and much of the history and muniments of the Catholic Church. Hooker also made lasting friend­ships with his contemporaries and students, many of whom would hold important places in the Church or government. Yet a college fellowship was not a career in itself but a stage in professional development. Having been ordained deacon in 1579, Hooker was in due course ordained priest. Upon marrying a London draper's daughter (who apparently was so disliked by his numerous friends that she has been roundly calumnied ever since), Hooker in 1584 was required to give up his fellowship and to leave Oxford for a country vicarage. Though anyone other than Richard Hooker might have rested satisfied with the cure of souls in a bucolic setting, performing with assiduity and compassion pastoral duties and following a strict regime of fasting and private prayer as he did, he never gave over study and scholar­ship.

One of Hooker's ex-students, whose father was Archbishop of York, was so disgusted by Mrs. Hooker's petticoat tyranny that he moved for Hooker's appointment as Master of the Temple—in essence, as chaplain to two of the Inns of Court, the Middle Temple and the Inner Temple. As the candidate of John Whitgift, Archbishop of Canterbury, the ham­mer of the Puritans, Hooker received this wealthy living in 1585. His cure was the Templars' old round church by Temple Bar, tucked in between the two Inns. The Master was nominated by the Crown but paid by the Inns; he preached at the Sunday morning service during law terms. The Temple also had an unendowed stipendiary preacher who preached at the Sunday afternoon service and on other days of the week. Since 1580 the preacher had been the Reverend Walter Travers, one of the most prominent and rau­cous Puritans, a devoted disciple of Calvin's successor at Geneva, Theodore Beza. Travers had not received Anglican—episcopal—ordination because he refused to subscribe to the articles required. His loathing of bishops was exceeded only by his rapture with presbyterianism. Whitgift had become archbishop in 1583 after having strenuously and successfully fought Puritan influence at Cambridge. That he was able to put in Hooker at the Temple instead of Travers (who enjoyed the support of Elizabeth's chief minister, William Cecil, Lord Burghley) was more than a political coup; it signaled that Puritanism faced such a challenge as it had not known before.

Travers, disgruntled and made harsher yet in word and spirit, remained preacher. Hooker, not one to turn away from a challenge, entered into a sustained polemic that lasted for more than a year until in 1586 Travers was inhibited from preaching by Whitgift because he was not in Anglican or­ders. The polemics were antiphonal: Hooker preached Sunday morning, Travers on Sunday afternoon, so that “the forenoon sermon spoke Canter­bury and the afternoon Geneva.”⁹ The stakes were high. A contemporary noted that “to suffer one opposite to the English discipline [to preach at the Temple was] in effect to retain half the lawyers of England to be of counsel against the ecclesiastical government.”¹⁰ So high were the stakes, by virtue of this dispute, that Richard Hooker was moved to write Of the Laws of Ecclesiastical Polity.

It is significant that as early as the controversy with Travers, Hooker posited his fundamental canons of interpretation by which the “laws” gov­erning “ecclesiastical polity” were to be determined and construed. The two minor prefatory pieces of his treatise, the sermons on the “Certainty and Perpetuity of Faith in the Elect” and “Justification,” drew their texts from Habakkuk, 1: 4, and were preached in the Temple.¹¹ Both argued, contrary to Travers, that reason attending Scripture, rather than mere Scrip­ture alone, was the source for authority, the source for law. Nowhere is this more powerfully put than at the outset of “Certainty of Faith in the Elect”:

That which we see by the light of grace, though it be indeed more certain; yet is it not to us so evidently certain, as that which sense or the light of nature will not suffer man to doubt of. Proofs are vain and frivolous except they be more certain than is the thing proved: and do we not see how the Spirit every where in the Scripture proveth matters of faith, laboreth to confirm us in the things which we believe, by things whereof we have sensible knowledge? I conclude therefore that we have less certainty of evidence concerning things believed, than concerning sensible or naturally perceived.¹²

This exalted the use of reason, natural reason revealing natural law. In the eyes of the literal Scripturalists of Travers's confession, it was not only erro­neous, and conceivably heretical, but also verged on blasphemy. Similarly, Hooker appealed to reason in the matter of “Justification,” the central con­tention of that sermon being that those in faith are justified though they slip from grace:

The case is clear, long experience hath made this manifest, it needs no proof. I grant we are apt, prone, and ready to forsake God; but is God as ready to forsake us? Our minds are changeable; is his so likewise? Whom God hath justified, hath not Christ assured, that it is “his Father’s will to give them a Kingdom?”¹³

Here in brief is the ground upon which Hooker would challenge the Puri­tans’ Biblical fundamentalism in Book II, especially Chapter 7, “An examina­tion of their opinion concerning the force of arguments taken from human authority for the ordering of men’s actions and persuasions.”¹⁴ And here is the seed that blossomed in the triumphal Chapter 8, “A declaration what the truth is in this matter,”¹⁵ in balanced condemnation of both extremes of the Reformation’s great disputation over the source of authority:

Two opinions therefore there are concerning sufficiency ofHoly Scripture, each extremely opposite unto the other, and both repugnant unto truth. The schools of Rome teach Scripture to be so unsufficient, as if, except traditions were add­ed, it did not contain all revealed and supernatural truth, which absolutely is necessary for the children of men in this life to know that they may in the next be saved. Others [Puritans] justly condemning this opinion grow likewise unto a dangerous extremity, as if Scripture doth not only contain all things in that kind necessary, but all things simply, and in such sort that to do any thing ac­cording to any other law were not only unnecessary but even opposite unto salvation, unlawful and sinful.¹⁶

This was a goodly reminder, less directed at and less relevant to Rome than to Geneva, that while Scripture is indeed God’s Word, fallible humans do not always hear it the same way, though all admit its authority. Luther’s soteriology, Justification by Faith, was raised on St. Paul’s Epistle to the Romans (10:9): That if thou shalt confess with thy mouth the Lord Jesus, and shalt believe in thine heart that God hath raised him from the dead, thou shalt be saved. Calvin’s soteriology, Predestination or Election, was raised on the same letter, by the same apostle, to the same Church (Romans 11: 5-6): Even so then at this present time also there is a remnant according to the election of grace. And if by grace, then is it no more of works: otherwise grace is no more grace. But if it be of works, then it is no more grace; otherwise work is no more work. These two passages of the New Testament are just a page apart. Their respective exponents in the Protestant Reformation were a world apart.

One of the most astute historians of English Christianity, who bril­liantly surveyed in five volumes the interaction of worship and theology from the Reformation to the present day, has written: “Hooker gloried in a church freed of the superstition of Rome and the scrupulosity and intensity of Geneva, affirming that Anglicanism’s first loyalty was to Scripture, its second to the pure traditions of the primitive and undivided church, and its third to reason.”¹⁷

Horton Davies’s use of the word “loyalty” is apt, for it avoids the cat­egoricalness and rigidity of “belief,” or “commitment,” or “postulate,” or any one of a number of other terms that bespeak unyieldingness. Hooker’s three “loyalties” are not mutually exclusive, they are complementary, and they admit of varying emphasis depending upon circumstance and neces­sity. Hooker would not accept that anything clearly repugnant to Scripture could be believed. At the same time, he believed that the tradition of the primitive Church, the Church of the Apostles, of the first century of the Christian era, configured Scripture to speak to the explicit needs of the Christian. One of the best illustrations of this is to be found in the matter of ministry. The New Testament speaks of two orders, bishops and deacons; it is silent with regard to a third order, presbyter (priest). Nonetheless, in the primitive Church, a priesthood developed to share the bishop's respon­sibility and burden for the liturgical life of the congregation. Thus evolved the three orders that obtained in the Church, Latin and Greek, until in the Reformation in the West the principal Protestant bodies came to deny the necessity for and the authority of the bishop.

Geneva equated presbyter with bishop, and denied the validity of the subsequent development of the episcopal office with its increasing pow­ers.¹⁸ Opposing this, Hooker argued that by the use of reason the tradi­tion of the primitive age completed Scripture and revealed what Scripture meant as well as what it said, thus establishing a place for both episcopal and priestly offices and reason and confirming the wisdom and necessity of recognizing both roles. If Scripture spoke clearly about bishops and was silent on presbyters, to admit a role for the latter did not require jettisoning the former. It only meant respecting the divine wisdom which reason in the primitive age had revealed and which reason in the present age confirmed. For Hooker, reason was not merely a tool—it was the hook on which hung all the law and the prophets of Anglicanism!

Why speak of “laws” for the Church's polity? The most superficial rea- son—but not a negligible one—is simply that the debate giving rise to the treatise took place before lawyers in their chapel. As his ideas developed, Hooker might well have decided to address in their own language his con­gregation of men trained and experienced in the laws, themselves masters of logic, the grave and learned men whose professional consensus was what Edward Coke of the Inner Temple called the “artificial reason” of the law. Coke himself produced a dozen or more aphorisms on reason in law: Ratio est legis anima, for example—or Lex semper intendit quod convenit rationi, or Nihil quod est contra rationem est licitum. None of these commonplaces was inconsistent with what the Temple's Anglican chaplain was asserting about the laws of the Church, and all of them would encourage the framing of theological arguments along legal lines.¹⁹

Moreover, Hooker's principal adversary, behind Travers and his fellow Puritans—an adversary dead for a generation, yet always present—was Jean Calvin, and the thesis to which Hooker's work was to be the antithesis was Calvin's Institutes of the Christian Religion. A small volume of six chapters published in Latin in 1536, Calvin's reform manifesto grew to seventeen chapters in 1539, and thereafter steadily expanded until the last edition in 1559 comprised eighty chapters, a massive tome that carried conviction by sheer weight rather than a sharp point. (Such a phenomenon should not be strange to lawyers.) Calvin displayed his early professional deformation as a lawyer in continually updating his work to account for new “cases” to deal with changed circumstances, recent criticisms, and new insights. The very title Institutes is more closely associated with legal works—from Justinian to Coke—than theological. In taking up the Calvinist challenge, Hooker recognized that his response to it would have to reflect those rigorous legal attributes of form and rhetoric dominating Calvin's work.

The increasing prominence of law in Tudor England should not be overlooked. There was a marked increase in litigation over the course of the century. The creation of new tribunals answered the demand for it; so did expanded jurisdiction in existing courts, sometimes by fictions such as lati­tat (by which King's Bench achieved a large civil jurisdiction) and quominus (by which the Exchequer acquired a civil equity role). Increased litigation was largely an unintended consequence of the Reformation itself. Between 1536 and 1547, Henry VIII's dissolution of the monasteries and Edward VI's suppression of chantries put roughly a quarter of all the real property in England and Wales on the market. This property endowed a new stratum of landowners, the gentry. The gentlemen of England increasingly made their weight felt in Parliament in legislation favoring property owners, even at the expense of the Crown. They sent their sons to the Inns of Court to learn enough law to make them learned lay clients, able to talk knowl­edgeably with the barristers who would conduct their litigation over real property. The new litigants bought the legal talent that invented a myriad of innovative devices to fashion proprietary interests that at the beginning of the century would have been unthinkable. No conveyancing device is worth more than its survival in court, but so many such devices—those that failed as well as those that succeeded—resulted in an enormous amount of clouded title, which multiplied litigation exponentially.

By the time of Hooker's death in 1600, not least because of such endem­ic litigation, the jargon of the law, even more than the rhetoric of the law, had penetrated areas of thought and speech that had nothing necessarily to do with law.²⁰ This was true for the poets and the dramatists—witness the manor-court proceedings that provide the shaping metaphor for Shake­speare's Sonnet 46—and it was true of the theologians. The apex of the phenomenon came in the next century with the “covenant theology” of the Puritans, so influential in New England.²¹ A British historian of the French Revolution, A. B. Cobban, noticing that in the generation before the fall of the Bastille Frenchmen, including Louis XV himself, used rhetoric that 1789 unleashed, remarked that the French had begun to talk revolutionary talk even before they had thought revolutionary thoughts. So it was with the English and their law, analogously, in Hooker's day.

Finally and most pertinent as to why “laws” of ecclesiastical polity is the simple fact that English ecclesiastical polity was raised upon and de­pended upon secular municipal law, as distinct from God's law, natural law, or canon law. Henry VIII did not “found” the Anglican Church any more than Constantine founded the Roman Church. What Henry VIII did was fundamentally to sever from the polity of the Roman Church the polity of the Church in England, two polities that had been tightly joined for almost a millennium. Henry's revolution had been effected by a series of discrete legislative enactments of the “Reformation Parliament,” which sat for nearly seven years, from November 1529 until April 1536. During this Parliament's eight legislative sessions, the organic connection between England and Rome was whittled away by a thousand cuts that stripped the pontiff of his revenues, his jurisdiction, his powers, and finally even his title insofar as they pertained to England. Whatever was done henceforth to the Church of England could only be done ultimately by the King in Parliament. Even the devoutly Roman Catholic Mary had no choice but to undo by acts of Parliament the schism worked by Henry and the Protestantization effected by Edward, and it was by Parliamentary legislation that Elizabeth re-edified a Protestant establishment. Though the term did not become common un­til the eighteenth century, the Church by Law Established came into being in the sixteenth. It was the reality with which any apologist for it had to deal. It was the reality with which any who would attack its validity or its regularity would have to deal, or else lose the argument. Therefore, if the Church was to be defended and justified by Richard Hooker, he had to do it by an argument framed in legal terms that reflected an institution which if divine in origin was regal in operation.

The achievement of Hooker was to cast his argument for the laws of the English Church's polity in so wide a jurisprudential context that his treatise contributes to legal learning as a whole. His definition of law is set out early, clearly, emphatically, and comprehensively:

All things that are, have some operation not violent or casual. Neither doth any thing ever begin to exercise the same, without some fore-conceived end for which it worketh. And the end which it worketh for is not obtained, unless the work be also fit to obtain it by. For unto every end every operation will not serve. That which doth assign unto each thing the kind, that which doth mod­erate the force and power, that which doth appoint the form and measure, of working, the same we term a Law. So that no certain end could ever be attained, unless the actions whereby it is attained were regular; that is to say made suit­able, fit and correspondent unto their end, by some canon, rule or law. Which thing doth first take place in the works even of God himself.²²

Not only is law not arbitrary in its creation, it is also not arbitrary in its motivation. It stems always from necessity, some felt need. And there are various levels of necessity, of well-doing:

In Goodness therefore there is a latitude or extent, whereby it cometh to pass that even of good actions some are better than other some;... Degrees of well­doing there could be none, except perhaps if the seldomness and oftenness of doing well. But the nature of Goodness being thus ample, a Law is properly that which Reason in such sort defineth to be good that it must be done. And the Law of Reason or human Nature is that which men by discourse of natural Reason have rightly found out themselves to be all for ever bound unto in their actions.²³

Here the canon is settled: the law, with an exquisite economy founded on necessity, pragmatically ranging to attain goodness, capable of amend­ment to remove imperfections and to fit circumstances, is the means by which humankind fashions a “life fit for the dignity of man.” That law is the basis for society:

Two foundations there are which bear up public societies; the one, a natural inclination, whereby all men desire sociable life and fellowship; the other, an order expressly or secretly agreed upon touching the manner of their union in living together. The latter is that which we call the Law of a Commonweal, the very soul of a politic body, the parts whereof are by law animated, held together, and set on work in actions, as the common good requireth.

Yet unless man is understood to be averse from obedience to the laws of his

nature, such “laws politic” to impose external order cannot be perfected:

in a word, unless presuming man to be in regard of his depraved mind little better than a wild beast, they [laws politic] do accordingly provide notwith­standing so to frame his outward actions, that they be no hinderance unto the common good for which societies are instituted.²⁴

By agreeing to polity, some form of a civil body politic, humans overcame the baneful consequences of their depravity.

Here, Hooker posited that such an agreement constituted consent. He was silent on precisely what kind of consent and (more to the point) what continuity and longevity of consent was necessary. What he gave with one hand, elsewhere he seemed to take away with the other. We cannot make him a founding father of representative government. We can however with John Locke, who a century—and two revolutions—later spoke of “the ju­dicious Hooker,” greet a kindred spirit for the proposition underlying the social contract, and a spirit moreover that understood that there was no single optimum polity:

Howbeit not this the only kind of regiment that hath been received in the world. The inconveniences of one kind have caused sundry other to be devised. So that in a word all public regiment of what kind soever seemeth evidently to have risen from deliberate advice, consultation, and composition between men, judging it convenient and behoveful; there being no impossibility in nature considered by itself, but that men might have lived without any public regi­ment. Howbeit, the corruption of our nature being presupposed, we may not deny but that the Law of Nature doth now require of necessity some kind of regiment; so that to bring things unto the first course they were in, and utterly to take away all kind of public government in the world, were apparently to overturn the whole world.²⁵

Indeed, Locke's Second Treatise on Government sanctioned no more strenu­ous action in defense against tyranny: government might change, but the society undergirding it and for which government existed could not be dis­solved, the social contract abrogated.

Hooker's intention was considerably more limited than either to pre­scribe law for the temporal polity of England or to contribute to political theory. He sought to justify the existing polity of the Church of England as it had developed under the Elizabethan settlement of religion, founded on the first two statutes of Elizabeth's reign in 1559, the Act of Supremacy and the Act of Uniformity.²⁶ The former recreated in the monarch the suprem­acy over the Church, giving full jurisdiction to the Supreme Governor to exercise the authority and the powers wielded by the Pope over the whole Catholic Church before the Reformation. The latter prescribed uniform ser­vices, rites, and the administration of Sacraments by a newly revised Book of Common Prayer sufficiently ambiguous to admit either a Roman or a Genevan interpretation of the function of the Eucharist. Both acts assumed the traditional order of an historic episcopate, presbyters, and deacons; the validity and efficacy of the Sacraments; the structure of cathedral and parish churches; the continued existence of canon law courts; the maintenance of orthodox theology and the Christology of the Fathers of the early Church; the primacy of Scripture—in short, all of the fundamentals of Catholic ec- clesiology short of the Papacy itself. In the course of the next four decades, theology came to be mightily tempered by Calvinist soteriology and wor­ship, and the drumbeat for further reform, banishing remaining “popish practices” (vestments, ring in marriage, kneeling) and formal ceremonies and ritual, substituting the sermon for sacramental prayer, and even abol­ishing episcopacy in favor of Genevan presbyterianism. The principal de­fender of the Elizabethan settlement against further reform was Elizabeth herself. The Supreme Governor’s prominence has earned for the Settlement the appellation, “Erastian,” which means the supremacy of the state over the Church.²⁷ This term, as applied by historians, has been usually pejorative. But it tends to smudge the centrality and primacy of the nontemporal and nonsecular dimensions of the Church. It was these that Hooker intended to explain and justify. His ecclesiastical polity was genuinely ecclesiastical.

The remaining three books of Hooker’s treatise spring from Book I’s disquisition on law. Book II establishes the Scriptural and primitive ori­gins and Patristic development of authority for Church polity. Book III challenges directly the Puritan (and obliquely the Roman Catholic) critics of the Anglican Church’s polity, making the essential distinction between what is grounded in Scripture and what is commanded by Scripture. Book IV, with remarkable vigor and candor, argues that the Anglican Church maintains continuity in practice with the universal Catholic observations in rites and ceremonies, certainly shorn of features without Scriptural war­rant but not damned merely because they remain yet in Roman usage. In defense of continuity, Hooker went far beyond either Rome or Geneva in recognizing the Judaic origins of Christian practice. He ends on a note of exultation:

Wherefore, if any refuse to believe us disputing for the verity of religion es­tablished, let them believe God himself thus miraculously working for it, and wish life even for ever and ever unto that glorious and sacred instrument [the Church] whereby he worketh.²⁸

The first four books were published—notably, in English, in keep­ing with their intended audience—in 1593. Hooker cut his final ties with the Temple in 1595 and retired to a country living in Kent (in the Queen’s gift), there to continue on the project. He was still at work there when he died in 1600. He had published Book V in 1597. The subsequent three books were published posthumously, very late, VI and VIII in 1648 and VII in 1661. Hooker appears to have written the posthumous books, but they were in various states of completion, especially VI and VIII, which are clearly drafts. The posthumous books are detailed examinations of the basic structures of both spiritual and civil power, a coda to the more general meditations of Books I-IV. Book VIII, especially, is a brilliant analysis of the Supreme Governorship, reflecting as deeply on the theory of monarchy as on the theory of supremacy.

The posthumous publication, along with the continuing currency of Books I-V, is the highest compliment that the English could give to them. Hooker's texts were appealed to by the New Anglicans of a high-church persuasion, skeptics of Calvinist predestination, ceremonialists with a com­mitment to Sacramentalism and liturgy, and loyalists to a fully episcopalian polity. These churchmen came to dominate the higher clergy in the first half of the seventeenth century—such clerics as Lancelot Andrewes, Bishop of Winchester, John Donne, Dean of St. Paul's, and William Laud, Archbish­op of Canterbury. All were disciples of Hooker, and he can rightly be seen as the morning star of that new tradition. At the same time, those Puritans who stood in diametric opposition to the New Anglicans and who achieved political and ecclesiastical triumph over them in the mid-seventeenth cen­tury English Revolution—taking off in the process the heads of Archbishop Laud and of King Charles—also appealed to Hooker. They cited Hooker for his spirit of adiaphora, irenic tone and disposition, and certain latitudi- narian acceptance of different usages which Laud and his set appeared to threaten. A half-century after his controversy with Walter Travers, Hooker had become a prophet with honor almost everywhere. His judicious and exacting labor reflected St. John's Gospel: “In my Father's house are many mansions....” So it became in the course of the following, tortured, cen­tury in England and its Church.

Richard Hooker would not like that to be his epitaph. He had contend­ed too long and too strenuously with those who denigrated the practices and observances of the Church by Law Established to go so gentle into that good night. Book V, devoted particularly and in detail to liturgy, is in many ways the most explicitly New Anglican exposition of the Laws of Ecclesiasti­cal Polity. In it he manages to give eloquent voice to the governing aesthetic of the rites prescribed in the Book of Common Prayer, which perhaps more than any other single feature of the Anglican tradition distinguished it:

That which inwardly each man should be, the Church outwardly ought to tes­tify. And therefore the duties of religion which are seen must be such as that affection which is unseen ought to be. Signs must resemble the things they signify. If religion bear the greatest sway in our hearts, our outward religious duties must shew it as far as the Church hath outward ability. Duties of religion performed by whole societies of men ought to have in them according to our power a sensible excellency correspondent to the majesty of him whom we wor­ship. Yea, then are the public duties of religion best ordered when the militant Church doth resemble by sensible means, as it may in such cases, that hidden dignity and glory wherewith the Church triumphant in heaven in beautified.²⁹

Nunc dimittis, Lord, now lettest thou thy servant depart in peace....