THE ORIGINS OF MODERN CONSTITUTIONALISM
By
Francis D. Wormuth
Francis D. Wormuth
Contents
Preface ix
CHAPTER
1. INTRODUCTION
I. The Tradition of Constitutionalism 3
II. The Greek Conception of Law 10
III. The Classification of Governments 18
IV. Some Roman Ideas of Law 26
V. Double Majesty 30
2. THE CROMWELLIAN CONSTITUTIONS
VI. The English Civil Wars 43
VII. Mixed Monarchy 50
VIII. The Separation of Powers 59
IX. The Agreement of the People 73
X. The House of Lords 86
XI. Republicanism 89
XII. The Instrument of Government 98
XIII. The Humble Petition and Advice 112
XIV. James Harrington 128
XV. The Constitutions of 1659 140
3. THE GOTHIC CONSTITUTION
XVI. Liberty and Authority 163
XVII. The Gothic Constitution 169
XVIII. Checks and Balances 174
XIX. The Alterability of the Constitution 184
XX. The Separation of Powers 191
XXI. Double Majesty and Judicial Review 207
XXII. The Rule of Law 211
Notes 216
Index 239
Preface
The french revolution has not received more attention than it deserves; but in comparison disproportionately little attention has been given to the English Civil Wars of the seventeenth century. In a more modest way, these too helped fix the shape of the modern world. Specifically, most of the devices and ideas which have found expression in subsequent constitutions date from the experiments and theories of that day.
The present study undertakes to describe the introduction into political science of these devices, the most familiar of which are the separation of powers, bicameralism, the written constitution, and judicial review. No attempt is made to carry on the story in eighteenth- and nineteenth-century America, but connective tissue is supplied to form a juncture with the work of Haines, Corwin, and Wright, who have already dealt with the American materials more competently than the present writer could hope to do. Nor has any effort been made to trace the undeniable connection between English constitutionalism of the seventeenth and eighteenth centuries and the constitutional documents of continental Europe in the late eighteenth, nineteenth, and twentieth centuries.
The author acknowledges with pleasure the assistance of numerous friends: among others, his colleague, Otto Brendel, who read and criticized the classical and medieval sections, and another colleague, the late William T. Morgan, who supplied valuable advice on eighteenth-century materials; Frederick G. Marcham and the late Carl L. Becker of Cornell University; Wallace Notestein and George L. Lam of Yale University. The John Simon Guggenheim Memorial Foundation made it possible to undertake the study.
F. D. W.
1
INTRODUCTION
CHAPTER I
The Tradition of Constitutionalism
A CONSTITUTION is often defined as the whole body of rules, written and unwritten, legal and extralegal, which describe a government and its operation. This is a permissible and indeed a highly convenient usage. But there is a more restricted idea equally deserving of a name — the idea of a constitution as a contrivance which not only describes but confines government, at least in its everyday activities. The argument for such confinement was stated by Alexander Hamilton in The Federalist: "In framing a government which is to be administered by men over men, the greatest difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on government; but experience has taught mankind the necessity of auxiliary precautions."
To these auxiliary precautions we give the name constitutionalism. The tradition of constitutionalism begins in ancient Athens and has had a long, interrupted, and irregular history to the present day. It has embraced devices of two kinds. Institutional arrangements of one sort or another have been advocated on the ground that they protected substantial interests from governmental encroachment. "Checks and balances" have been the machinery on which most of these contrivances relied; they have been nothing less than a fetish with constitution-makers. Furthermore, there has been a persistently recurring idea of the character of law. Two inferences have been drawn from the proposition that law is a rule of conduct — that it is general, and that it is prospective. To implement this conception, the doctrine of the separation of the legislative from the executive power was introduced, and it will be argued below that judicial review relies heavily on the same idea.
Among substantial interests property is prominent, and it is natural that the "auxiliary precautions" which take the form of institutional arrangements should aim at the protection of property. In the ancient world, with its republican institutions, the propertied class undertook to defend itself against the propertyless; in the Middle Ages, when kingship was the chief political institution, property opposed itself to the royal power. But constitutionalism has been used to protect other interests as well. In Athens in the fourth century before Christ there were institutional arrangements intended to prevent the democracy from being overthrown by a tyrant. From the beginning of modern constitution-making in seventeenth-century England, freedom of conscience has been an object of primary concern. The American constitutions of the eighteenth century gave great attention to the protection of persons accused of crime.
Conscious constitution-making appears to have entered the Mediterranean world when the clan organization weakened and the contest of rich and poor became a significant factor in politics. Solon was perhaps the first constitution-maker. Plutarch says of his legislation for Athens: "Wishing to leave all the magistracies in the hands of the well-to-do, as they were, but to give the common people a share in the rest of the government, of which they had hitherto been deprived, Solon made an appraisement of the property of the citizens."1 Property qualifications were established for office-holding, but not for the franchise, a device intended to protect the interests of both classes.
A sort of bicameralism was another classical device. The Athenian Areopagus and the Roman Senate, in the days of empire-building, directed foreign policy and shared domestic power with the popular assemblies. Cicero found in the Roman Senate itself a combination of aristocracy and democracy gratifying to both principles.2
But the constitutional arrangements of democratic Athens were the most elaborate. When the oligarchic Areopagus had been stripped of its power, the chief concern was the protection of the democracy. At the time of Demosthenes the jurymen of the great popular court, the Heliaea, swore: "I will give verdict in accordance with the statutes and decrees of the people of Athens and the Council of Five-hundred. I will not vote for tyranny or oligarchy. If any man try to subvert the Athenian democracy or make any speech or any proposal in contravention thereof, I will not comply. I will not allow private debts to be cancelled, nor lands nor houses belonging to Athenian citizens to be redistributed. I will not restore exiles or persons under sentence of death. I will not expel, nor suffer another to expel, persons here resident in contravention of the statutes and decrees of the Athenian People or the Council. ..."3
In addition, every Athenian citizen took this oath:
(1) All notes will be found on pp. 216 ff.
If it be in my power, I will slay by word and deed, by my vote and by my hand, whosoever shall suppress the democracy at Athens, whosoever shall hold any public office after its suppression, and whosoever shall attempt to become tyrant or shall help to install a tyrant. And if another slay such an one, I will deem him to be without sin in the eyes of the gods and powers above, as having slain a public enemy. And I will sell all the goods of the slain and will give over one half to the slayer, and will withhold nothing from him. And if anyone shall lose his life in slaying such an one or in attempting to slay him, I will show to him and to his children the kindness which was shown to Harmodius and Aristogeiton and to their children. And all oaths sworn at Athens or in the army or elsewhere for the overthrow of the Athenian democracy I annul and abolish.4
But the chief constitutional device was the indictment for proposing illegal measures, the graphe paranomôn. This turned largely on the distinction between laws ornomoi and decrees or psephismata. The nomoi were of greater dignity and were subject to change only at an annual revision. If the citizens assembled in the Ecclesia so directed, a large court of jurymen, Nomothetai, were chosen by lot from the Heliaea. Before them might be brought proposals for the repeal of old nomoi and the enactment of new. After hearing debate the Nomothetai ruled in favor of the new law or the old. This procedure suggests that of a constitutional convention. If the nomoi are compared to constitutional rules, the psephismata stand in the position of statutory law. A psephisma was proposed by the Boulé or Council of Five Hundred, a democratic body chosen by lot. It was approved, with or without amendments, by the assembly of all citizens, the Ecclesia. But no psephisma was valid which was inconsistent with a nomos, nor was a nomos valid unless it expressly repealed any earlier inconsistent nomos. Against the original sponsor of such an illegal measure, whether decree or law, any citizen might bring the indictment called graphe paranomôn. The passage of a proposed psephisma would be interrupted by the indictment; a psephisma or nomos already passed would be suspended until the decision of the case by one of the popular courts. If a year had elapsed since the proposal of the measure, its mover was exempt from prosecution, but the indictment might still be brought against the measure itself. This procedure has points of resemblance to judicial review.5
But what survived the ruin of the ancient world was none of these devices; it was Polybius' fanciful description of the Spartan and Roman constitutions as mixtures of monarchy, aristocracy, and democracy. In seventeenth-century England this conception was drawn into the active current of constitution-making, where it has remained to this day.
There appeared in the Middle Ages another point of view which was not entirely ousted by revived Greek ideas. What the ancient and modern world have understood by the state was unknown in the Middle Ages. Jellinek believed the medieval idea to be Germanic in origin: "While the ancient state appears at the beginning of its history as polis or civitas, as an undivided community of citizens, the monarchical Teutonic state is from the beginning dualistic in form — prince and people form no integral unity, but stand opposed to each other as independent factors."6 Whether we accept the Germanic attribution or explain this dualism in terms of the conditions of conquest and the subsequent development of feudal institutions, we must recognize the changes which it introduced. In the Middle Ages the state was hardly more than the person of the king.
In certain spheres he possessed over his subjects a personal authority unlimited and supreme; other areas, often opposed to him under the name of the kingdom, but consisting in substance of property and feudal institutions, were thought of as autonomous, self-organized, and withdrawn from political power. Gierke attributed the revival of the unitary conception of the state to Hobbes;7 he has fixed the time accurately enough, but the ascription of authorship is unduly narrow. In spite of the return of the state to politics, however, the medieval conception of a dualistic society — Gierke called it the idea of "double majesty" — lingered long in English law, and in this country it supplied the background of the characteristic American distrust of government.
It was also during the English Civil Wars that the second feature of constitutionalism mentioned above — the proposition that law should be prospective and general — reappeared. This idea was recognized in both Athenian and Roman jurisprudence, but its revival in the seventeenth century does not seem to have resulted from classical influences. It very soon became associated with the new doctrine of the separation of powers. If law is to be general and prospective in character, it is improper for the legislative power to deal with particular cases. The temptation to improvise a special rule may prove too strong. Likewise it is improper for the executive power, which applies rules to individuals, to possess legislative power, for once again persons may be deprived of the advantage of known and settled rules. Among arguments for separating the legislative and executive functions, these were perhaps the most cogent.
The doctrine of separation of powers was immediately assimilated to the mixed monarchy, with the king in the role of independent executive; a second balance, that of legislature against executive, was added to the conventional balance of king, lords, and commons. Here we have most of the elements of modern constitutional thought. The complication of the doctrine of balance by the recognition of a third power, the judicial, is usually attributed to Montesquieu, but this seems not to have been Montesquieu's intention. This misconception of Montesquieu may have helped make more plausible the American doctrine of judicial review, but the true ancestry of that doctrine seems to be the original distinction between legislative and executive power, which reinforced the idea that the legislative function was merely to formulate general rules for the future, and the medieval conception of a twofold society. The English common law became the inheritor of the tradition of an autonomous realm independent of governmental power, and in defense of the common law American judges resisted the actions of government.
Gierke has said that "the principle of popular sovereignty never played any serious part in the theory of constitutionalism."8 Rather, that theory seems to have consisted of two strands, the one institutional and the other jurisprudential, which were twined together during the Interregnum and at a somewhat later date came into association with "double majesty." Among these elements the jurisprudential idea seems central, and perhaps this alone possesses permanent value.
CHAPTER II
The Greek Conception of Law
GREEK discussions of law in the fifth and fourth centuries before Christ turned chiefly on the contrast between government according to fixed laws and the discretionary rule of an unfettered king or statesman. The differences of opinion were less striking than the points of agreement. The generality of law was always considered to be its characteristic feature. The utility of law was a consequence of its generality; and generality also carried with it disadvantages. Disagreements turned on the question whether the virtues of generality outweighed its defects.
An Athenian nomos provided that no law or decree should be passed dealing with an individual, except the measures which required the concurrence of the extraordinary majority of six thousand, such as ostracism.1 Aristotle's chief reproach to democracy was directed toward its tendency to substitute for nomoi (by which he meant general rules) popular decrees or psephismata,2 which he defined — inaccurately,3 as it happens — as dealing only with particulars.
The idea of a rule of conduct implies not only generality but prospectivity. The evidence that the Greeks drew this inference is not abundant. But Plato defined law as a judgment for the future,4 and Aristotle spoke of it as "prospective and general."5 Demosthenes on one occasion uttered a violent denunciation of retroactive legislation, saying that it was appropriate to the lawless rule of oligarchs.6
What were the virtues of generality? It was common for democratic spokesmen to identify laws with democracy. Aeschines announced that: "Tyrannies and oligarchies are administered according to the temper of their lords, but democratic states according to their own established laws."7 Demosthenes, in attacking Philip of Macedon, urged that "every king, every despot is the sworn foe of freedom and law."8 The democratic element in law was the equality which results from generality. Euripides in his Suppliants makes Theseus reply to the Theban Herald:9
No worse foe than the despot hath a state,
Under whom, first can be no common laws,
But one rules, keeping in his private hands
The law: so is equality no more.
But where the laws are written, then the weak,
And wealthy have alike but equal right.
Yea, even the weaker may fling back the scoff
Against the prosperous, if he be reviled;
And, armed with right, the less o'ercomes the great.
Equality can be regarded as a special function of a more inclusive virtue, that of impartiality. Plato in his Statesman suggests that general rules are indifferent to particular persons and are therefore more just than the self-interested actions of uncontrolled rulers.10 Law, says Aristotle, is the "mean or neutral";11 its "general principle" is that it is "free from passion."12 Of arguments for decision by fixed rules rather than by discretion, "The weightiest reason of all is that the decision of the lawgiver is not particular but prospective and general, whereas members of the assembly and the jury find it their duty to decide on definite cases brought before them. They will often have allowed themselves to be so much influenced by feelings of friendship or hatred or self-interest that they lose any clear vision of the truth and have their judgment obscured by considerations of personal pleasure or pain."13 Aristotle has other arguments in favor of laws which are less fundamental: the lawgiver is likely to be a wiser man than the jurors or magistrates;14 law is an educational device useful in inculcating moral virtue through habit.15
In all this, however, it is assumed that the laws are good laws. Obviously it is quite possible for laws to be contrived so as to insure inequality and partiality rather than equality and impartiality. Plato in his Laws declares that such measures do not deserve the name of laws.16 It is to prevent corruption of the state by biased legislation that he introduces his polity or mixed state, which is intended to balance the two sources of distortion — property and numbers — against each other. Aristotle defines the good state not as a law-abiding state, but as one which serves the general good." Laws are relative to the constitution; consequently, true forms of government will have just laws, and perverted forms — which he reckons to be tyranny, oligarchy, and democracy — will have unjust laws.18 "Someone may say that it is bad in any case for a man, subject as he is to all the accidents of human passion, to have the supreme power, rather than the law. But what if the law itself be democratical or oligarchical, how will that help us out of our difficulties? Not at all; the same consequences will follow."19 So Aristotle says that a government constituted on oligarchical principles is no true state, even though the oligarchs obey the laws.20 Obedience to the laws is not enough for good government; the laws themselves must be good.21
But even good laws may be a source of error, because of their generality. This has an odd sound to later ears, for two developments in thought subsequent to Aristotle have associated the idea of generality with that of truth. The Stoic philosophy postulated universal laws of reason and morality which maintain order and harmony in the universe. In the eighteenth century there was joined to this conception the notion of invariable physical laws which describe, as Montesquieu put it, "the necessary relations arising from the nature of things." The supposed regularity of the universe enhanced the prestige of law enormously.
But the pre-Hellenistic Greeks did not believe in the cosmic jurisprudence of the Stoics. Attempts have been made to read this conception into the "unwritten and secure laws of the gods" and the "high heavenly laws" in Sophocles, but Miss Macurdy has shown that such expressions referred only to "old social customs which had become binding and religious, involving a curse if transgressed." These customs were limited to burial of the dead, retaliation for the murder of kindred, the prohibition of incest, and the duty of honoring gods and parents.22 It has sometimes been thought that Aristotle in Book III of the Politics makes law not a useful instrument, but a final object of value, as it later became with the Stoics; and indeed he does say that "he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the wild beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men."23 But here Aristotle is merely reporting the arguments against monarchy, as he has earlier reported the arguments in favor of monarchy. This sentence is nothing but an abridgment of Plato's renunciation of free intelligence in the Laws. That Aristotle did not indorse all that might be read into the sentence is made clear when he concludes the rehearsal of conflicting views: "These are the principal controversies relating to monarchy." For he goes on to say: "But may not all this be true in some cases and not in others?"
Nor could the Greeks make human laws appear at home in a Newtonian universe, as Montesquieu undertook to do, for their universe was a very different affair. Professor Cornford has said that "The word law is missing from the vocabulary of Greek science" because the Greeks did not think in terms of the necessary relations between things; "those relations of a substance which take the form of its action on other substances were considered under the aspect of powers or capacities of action residing in the substance."24 The Greeks had no notion of the universe as a machine operating according to cause and effect, and this analogy, which gives so much credit to regularity and thus increases respect for rules of law, was not available to them.
The operation of intelligence on the universe — the solution of problems — could not be reduced to rule. So we sometimes find law unfavorably contrasted with unfettered action. Isocrates, in writing to Philip of Macedon in 346 b.c. to solicit him to lead the Greeks against the Persian king, said that he had singled out Philip "because I saw that all the other men of high repute were living under the control of polities and laws, with no power to do anything save what was prescribed"; Philip, on the other hand, had "untrammeled freedom" to consider all Hellas his fatherland.25 The pseudo-Aristotelian letter to Alexander, prefixed to the De Rhetorica ad Alexandrum, seems to make the same point: "whereas among those whose political constitution is democracy the final appeal on all matters is to the law, among those who are under kingly rule the appeal is to reason."26
Plato carried this idea to the extreme in his Republic. All problems were unique; they could be solved only by free intelligence. A professional class of governors was therefore postulated to perform this task. In the Statesman he reluctantly modified his position. True, he still maintained that the one best rule, and the one true government, is rule by science, by one who makes his art a law and shows a "strength of art which is superior to the law."27 Law, indeed, because it attempts to force the "endless irregular movements of human things" into an inflexible rule, is "an obstinate and ignorant tyrant." Nevertheless the legislator must make some general rules, "for how can he sit at every man's side all through his life, prescribing for him the exact particulars of his duty?" And laws have at least the negative virtue of being more just than the selfish actions of uncontrolled rulers. Moreover, very few can attain to the royal science which governs by art and is the only true form of government. Lacking this, states must content themselves with the second-best form, which imitates the laws established to guide, but not to bind, the true state of royal art. The Laws goes even further than the Statesman: here the second-best state is the only possible form. This is not because Plato has a lower opinion of free intelligence, or a higher opinion of rule, but because he has lost confidence in men.
Mankind must have laws, and conform to them, or their life would be as bad as that of the most savage beast. And the reason of this is that no man's nature is able to know what is best for human society; or knowing, always able and willing to do what is best. ... Human nature will be always drawing him into avarice and selfishness. ... For if a man were born so divinely gifted that he could naturally apprehend the truth, he would have no need of laws to rule over him; for there is no law or order which is above knowledge, nor can mind, without impiety, be deemed the subject or slave of any man, but rather the lord of all. I speak of mind, true and free, and in harmony with nature. But then there is no such mind anywhere, or at least not much; and therefore we must choose law and order, which are second best.28
Aristotle never reaches this level of pessimism. It seems to him altogether practicable to remedy the shortcomings of law.
What creates the problem is that the equitable is the just, but not the legally just but a correction of legal justice. The reason is that all law is universal but about some things it is not possible to make a universal statement which shall be correct. ... When the law speaks universally, then, and a case arises on it which is not covered by the universal statement, then it is right, where the legislator fails us and has erred by over-simplicity, to correct the omission. ... Hence the equitable is the just, and better than one kind of justice — not better than absolute justice but better than the error that arises from the absoluteness of the statement. And this is the nature of the equitable, a correction of law where it is defective owing to its universality. In fact this is the reason why all things are not determined by law, viz. that about some things it is impossible to lay down a rule, so that a decree is needed.29
It appears, then, that Aristotle, in spite of his hostility to psephismara, thought that equity sometimes required enactment of a decree to correct the shortcomings of the nomoi. It was also necessary for the judge to resort to equity in cases where the law could not cover the infinite variety of nature.30 But equity appears chiefly in arbitration, which Aristotle recommends because "an arbitrator goes by the equity of a case, a judge by the strict law, and arbitration was invented with the express purpose of securing full power for equity."31
Such a pragmatic attitude toward law is very different from that introduced in succeeding centuries by the Stoics, who equated law to reason and both these to morality and the universe. "Law is ruler of all,"32 said Chrysippus; and this law was an immutable and invariable system discovered by human reason. It followed, as Cicero said, that statutes which went contrary to this divine code "no more deserve to be called laws than the rules a band of robbers might pass in their assembly."33This proposition would have appeared startling indeed to the pre-Hellenistic Greeks. Xenophon reports a dispute between Pericles and Alcibiades in which Pericles offered a merely formal definition of law: "Whatever the ruling power of the state after deliberation enacts as our duty to do, goes by the name of law."34 Alcibiades obliged Pericles to add another element: true laws make their way by persuasion, and the commands of a tyrant, imposed by force, are not law.35 Not the austere majesty of cosmic rule, but the Greek conception of politics as a friendly association of equals supplies the substantive content of law. Aristotle says that the bonds of association, in the state as elsewhere, are friendship and justice, and these are almost equivalent terms.36 Persuasion is the means of establishing laws among friends.
CHAPTER III
The Classification of Governments
GREEK political experience made the classification of states into government by one, by the few, and by the many familiar at an early date. Probably the arguments for and against each form reported by Herodotus, writing in the second half of the fifth century before Christ, were equally familiar. Monarchy, it was said, is the government of the very best man in the state; on the other hand, it was argued that power corrupts the king, leads him on to savage violence and violation of the laws. Oligarchy is the government of the worthiest and will produce good counsels, but it leads to faction and strife. Democracy practises equality and makes power accountable to the people, but a mob is ignorant and destructive.1 All these arguments have been repeated thousands of times since.
Socrates, if we can trust Xenophon,2 believed it possible to distinguish the virtuous condition of these forms from the vicious. When a single ruler governed over willing subjects according to law, he was a king; but when he ruled over unwilling subjects in violation of law, he was a tyrant. When the magistrates were chosen "from those who discharged the obligations prescribed by law," this was an aristocracy, the government of the best; when the title to office depended on property, the government was a plutocracy.
But Socrates recognized only one form of democracy, "where all the citizens without distinction held the reins of office."
We need not consider the classification of governments set up in Plato's Republic,3 for he himself abandoned it and it played no part in subsequent history. In the Statesman he established, in addition to the perfect government of royal art, a sixfold classification. There were three possible forms of the second-best state — monarchy, aristocracy, and democracy — all ruling according to law. Paralleling these were the three vicious forms — tyranny, oligarchy, and again democracy — all without the restraints of law.4 The same classification holds in the Laws,5 and the same principle of subordination to law: "For that state in which the law is subject and has no authority, I perceive to be on the highway to ruin; but I see that the state in which the law is above the rulers, and the rulers are the inferiors of the law, has salvation, and every blessing which the gods can confer."6 But laws which seek the interests of particular classes rather than the whole state are not just, and states following such laws are not true states at all; they belong among the corrupt forms.7 How is such corruption to be avoided? To solve this problem Plato proposes a seventh form, not the perfect state of the Republic and the Statesman, but a new form which he calls by the generic name of all valid governments, a polity. Believing, in his old age, in the weakness of human character, Plato thinks that "there ought to be no great and unmixed powers."8 Now there are "two mother forms of states," monarchy and democracy, and "if you are to have liberty and the combination of friendship with wisdom, you must have both these forms of government in a measure; the argument emphatically declares that no city can be well governed which is not made up of both." In fact, however, as Aristotle later pointed out, "The constitution proposed in the Laws has no element of monarchy at all; it is nothing but oligarchy and democracy, leaning rather to oligarchy."9 The institutions of the Laws were evidently adapted from the constitution of Solon, for the citizenry is divided into four classes on the basis of wealth, and an attempt is made to weight the system to the advantage of the wealthier classes.
Probably Solon should be called the father of the mixed constitution. He said of himself:10
I stood with a mighty shield in front of both classes, And suffered neither of them to prevail unjustly.
Thucydides ascribed the same purpose to the constitution of the Five Thousand established in Athens in 411 b.c. after the overthrow of the Four Hundred: "For the fusion of the high and the low was effected with judgment, and this was what first enabled the state to raise up her head after her manifold distractions."11 Plato in theLaws called Sparta and Cnosus polities,12 and in the time of Aristotle the idea of the mixed state seems to have been a commonplace. He tells us: "Some, indeed, say that the best constitution is a combination of all existing forms, and they praise the Lacedaemonian because it is made up of oligarchy, monarchy, and democracy, the king forming the monarchy, and the council of elders the oligarchy, while the democratic element is represented by the Ephors; for the Ephors are selected from the people."13 Aristotle himself opines that "they are nearer the truth who combine many forms; for the constitution is better which is made up of more numerous elements."14
In his Politics Aristotle offers a number of alternative classifications of government,15 but the basic one seems to be a sixfold classification adapted from Plato.16 The three legitimate forms are monarchy, aristocracy, and polity — the polity here is Plato's mixed state. The perverted forms are tyranny, oligarchy, and democracy. The true states are those which promote the public interest; the corrupt forms, which do not deserve the name of constitutional governments, seek private advantage. The test of legality is not decisive, for oligarchies and democracies, which are perverted states, may abide by their vicious laws.17
It will be observed that in Aristotle the polity displaces democracy as one of the legitimate forms. Aristotle thought the polity the best form for most states.18 Power rests with the middle class,19 and it is therefore the state of the heavy-armed soldiers.20 The polity is an attempt to reconcile the conflicting claims of rich and poor; it undertakes to mingle the elements of oligarchy and democracy. This is done by combining the institutions, the methods of public deliberation, and the ways of choosing magistrates and jurors employed in an oligarchy with those practised in a democracy.21
Apparently the mixed state enjoyed great popularity in the fourth and third centuries. Archytas the Pythagorean thought that the strong city "must have something of democracy, something of oligarchy, something of royalty and aristocracy."22 Diogenes Laertius tells us of the Stoics that: "The best form of government they hold to be a mixture of democracy, kingship, and aristocracy (or the rule of the best)."23 The treatise On Politics reported by Photius in his Bibliotheca24 may be a part of this Stoic literature. But there survives no substantial discussion of the mixed state for the period between Aristotle and Polybius. It is of course to Polybius that later ages owe the conception. In the second century before Christ this Greek historian felicitated the Romans on having achieved, by struggle and experience, the institutions contrived by Lycurgus for Sparta, "the best of all existing constitutions."
Polybius justifies his mixed state in terms of a theory of revolutions. Kingship, the earliest government, inevitably becomes corrupt and passes into tyranny. The best men in the community then unseat the tyrant and institute an aristocracy. But their descendants are corrupted by the opportunity to gratify their desires and so become oligarchs. Thereupon the community overthrows the oligarchy and institutes a democracy. Next the people are debauched by evil leaders, and the collapse of the society brings in a monarch once more. But it is possible to step outside this cycle by creating a government composed of a mixture of the three simple forms.
"Lycurgus, then, foreseeing this, did not make his constitution simple and uniform, but united in it all the good and distinctive features of the best governments, so that none of the principles should grow unduly and be perverted into its allied evil, but that, the force of each being neutralized by that of the others, neither of them should prevail and outbalance another, but that the constitution should remain for long in a condition of equilibrium like a well-trimmed boat... ,"25 The Romans had likewise incorporated all three forms in their state. "For if one fixed one's eyes on the power of the consuls, the constitution seemed completely monarchical and royal; if on that of the senate it seemed again to be aristocratic; and when one looked at the power of the masses, it seemed clearly a democracy."26
This version of the mixed state differs drastically from those of Plato and Aristotle. The idea of balance is not absent in the thought of the two earlier writers, but with them it was not to be achieved by pitting different organs of the government against each other. Rather, it was the result of infusing into every institution both the principle of property and the principle of numbers. With Polybius, however, distinct powers were vested in distinct organs and each was able either "to counteract or co-operate with the others." This is the form which the theory of the mixed state took thereafter.
Cicero in his Republic adopted the classification of governments of Polybius and offered a somewhat modified and muddied version of Polybius' theory of revolutions.27 He believed too that "none of the simple forms is best, but that a state properly compounded of all three types is better than any one by itself." Dionysius of Halicarnassus, writing in the Augustan period, gave explicit recognition only to the three simple forms of government,28 but he described Romulus as instituting a "division of authority" very like the constitution of Polybius.29 Thereafter the "composite form of state" was in disrepute with Roman writers. Seneca was a confirmed monarchist. Whereas Cicero had spoken of the state as united by a "bond of law," Seneca said that the emperor is "the bond by which the commonwealth is united."30 A state reaches its best condition under the rule of a just king;31 "Nature herself conceived the idea of king, as we may recognize from the case of bees and other creatures."32 Plutarch recognized only the three simple forms of government and thought monarchy the best.33 Tacitus, despite his nostalgia for the virtuous earlier days, remarked dryly: "For every country and city must be ruled either by the populace, or by the few, or by one man; a form of government selected and compounded out of these elements may be commended more easily than brought into being; nor could it endure were it set up."34
Roman political thought now underwent an evolution comparable to that which had produced a philosophy of kingship in Hellenistic Greece.35 Monarchy had been discussed in academic fashion before Alexander, and the Persian monarchy had had its admirers, but, as Aristotle said, only democracies could exist in fourth-century Greece.36 The conquests of Alexander, however, resulted in the revival of monarchy. Speaking of the state of affairs in the empires quarried out of the Alexandrian territories, Professor Goodenough has said, "the King is personally the constitution of his realm, ... all the laws of localities under him must be ultimately moulded by and express his will."37 To make this palatable his subjects attributed to him the character of divinity and also the Cynic or Socratic attributes of the wise man.
The philosophy of kingship which was used to justify the Roman Empire was more Stoic than Cynic. Dio Chrysostom, in four discourses delivered before Trajan, elaborated the doctrine. There are three forms of government based on law and justice, and three lawless forms. But aristocracy is neither practicable nor expedient, and a lawful democracy is highly improbable. The most practicable government is "where we have a city, or a number of peoples, or the whole world, well ordered by one man's judgment and virtue."38 The primacy of Zeus in heaven and that of the rulers of herds of cattle and swarms of bees "indicate clearly that it is natural for the stronger to govern and care for the weaker."39 The true king "orders and governs his people with justice and equity in accordance with the laws and ordinances of Zeus."40 These laws and ordinances are the familiar Stoic law of reason.
I might well speak next of the administration of the universe and tell how the world — the very embodiment of bliss and wisdom — ever sweeps along through infinite time in infinite cycles without cessation, guided by good fortune and a like power divine, and by foreknowledge and a governing purpose most righteous and perfect, and renders us like itself since, in consequence of the mutual kinship of ourselves and it, we are marshalled in order under one ordinance and law and partake of the same polity. He who honors and upholds this polity and does not oppose it in any way is law-abiding, devout and orderly; he, however, who disturbs it, as far as that is possible to him, and violates it or does not know it, is lawless and disorderly, whether he be called a private citizen or a ruler, although the offence on the part of the ruler is far greater and more evident to all.41
CHAPTER IV
Some Roman Ideas of Law
THE Romans were thoroughly familiar with the ideas about law which enter into the tradition of constitutionalism, even though these ideas played no important part in their public life. At least in the late formulations, the generality of law was taken for granted: Law (lex) is a general precept, said Papinian;1 and Ulpian wrote, "Laws (jura) are not established for individuals, but for general purposes."2 Prospectivity was likewise assumed, and occasionally this assumption was made explicit. An explosive passage in Cicero seems to argue that a retroactive measure is a physical impossibility.3 The Theodosian Code states that laws do not condemn past actions but fix a rule for the future,4 and the Code of Justinian preserves a command by Theodosius II and Valentinian III that laws are not to be applied to past transactions unless they are expressly made retroactive.5
But if jus and lex were general, special laws were familiar enough. The earliest name for these measures was privilegia. The privilegium was, as the name indicates, a private law, a piece of legislation dealing only with individuals or with particular groups. Ordinarily it conferred a benefit or immunity. In 450 b.c. the Twelve Tables forbade the passing of privilegia "in favor of private persons to the injury of others, contrary to the law common to all citizens, and which individuals, no matter of what rank, have a right to make use of."6 Cicero in 57 b.c. appealed to this provision of the Twelve Tables in order to secure the return of his home, which had been consecrated during his exile by Clodius.7 It is not clear that a special measure which conferred no privilege but merely operated to the disadvantage of a single person came within the prohibition of the Twelve Tables, but in the Laws also Cicero defined a privilegium as a law which penalized a particular individual.8
After Cicero there were no protests against privilegia. Aulus Gellius in the second century after Christ defined lex as a general command, a privilegium as one concerning individuals.9 Privilegia constituted a great part of the jus singulare; the remainder consisted of rules special in the sense that they deviated from the general tenor of the law. Opposed to jus singulare was jus commune, the general law.10 Paulus in the third century wrote a Liber singularis de jure singulari, of which nothing survives but the definition, "Special law is that which has been introduced by the authority of those establishing it against the tenor of a legal principle, on account of some particular advantage."11
Justinian's Code contains many examples of privilegia: those of the cities of Rome and Constantinople12 and of metropolitan cities;13 of the corporate bodies of Rome;14 of persons employed in the imperial palace,15 and those serving in favored divisions of the army;16 of the Fiscus;17 and of the lands of the emperor.18 The action for dowry is called privilegium dotis.19 Such privileges, since they did no immediate injury to anyone, did not appear inequitable. They were not given application beyond the particular cases for which they were intended.20
The position of the emperor raised a problem somewhat analogous to that of the privilegium. The emperor was, as Ulpian said, legibus solutus, exempt from the operation of the law, and he ordinarily conferred the same privilege upon the empress.21 But it was not considered proper for the emperor to avail himself of this immunity to the disadvantage of subjects; it was "dishonorable," said Paulus, and unworthy of his majesty not to submit to the laws.22 The authors of panegyrics to the emperors praised them for their obedience to law.23 This opinion culminated in the famous digna vox declaration of Theodosius II and Valentinian III in the year 429: "It is a statement worthy of the majesty of a reigning prince for him to profess to be subject to the laws; for our authority is dependent upon that of the law. And, indeed, it is the greatest attribute of imperial power for the sovereign to be subject to the laws, and we forbid to others what we do not suffer ourselves to do by the terms of the present edict."24
This constitutional morality, as it might be called, developed in connection with two problems in the law. The first arose in the law of wills. It was not uncommon for testators to make the emperor their heir in order to secure to their estates litigious claims or to make good some deficiency in the will. Pertinax refused to accept such inheritances, and Severus and Antoninus likewise declared: "Although we are above the laws, yet we live in obedience to them."25 Hadrian wrote, "It has frequently been decided that even the emperor cannot claim an estate under an imperfect will, for although the lex imperii has released the emperor from the formalities of law, nevertheless nothing is so fitting to sovereignty as to live according to the laws."26 Even more important in establishing the conception of the rule of law was the constitutional position of the Fiscus. This was the imperial treasury, which first overshadowed and then swallowed up the Aerarium, the popular treasury surviving from the republic. It was the creditor or debtor in all claims by or against the state. It could sue and also could be sued. It was in many cases subject to the rules of private law, in others to rules peculiar to the Fiscus, but in all cases to known and settled rules.27 So Roman law developed the doctrine of the suability of the sovereign which has been in modern times the envy of English and the boast of German jurisprudence.
In the sixteenth century Jean Bodin offered in his Six Books of the Republic what is usually called the first statement of the doctrine of sovereignty. Law is the will of the sovereign, and sovereignty is the capacity to make law by an act of will. But the sovereign is limited in four ways: he must observe the laws of God and nature; he cannot alter the "laws which concern the state of the realm, and the establishing thereof"; he must respect the property of his subjects; and he must honor his contracts. The first limitation came from medieval ideas rather than Roman law, for the Roman jurists were clear that any imperial command, however unreasonable, was law.28 The second referred to certain French laws, such as that governing succession to the throne, which the king could not alter. The third also had a medieval background, although Seneca had distinguished between imperium and dominium.29 The fourth was, perhaps, drawn from the Roman law.
CHAPTER V
Double Majesty
ALTHOUGH the mixed state of Polybius went into eclipse when the Roman republic collapsed, the doctrine did not disappear. In the second century Aelius Aristides praised the Roman Empire as being a mixed state and at the same time a complete monarchy.1 St. Isidore of Seville in the seventh century said that law was made by those superior in birth, together with the common people.2 St. Thomas Aquinas argued that God had provided a mixed government for Israel, and had done well. The Jewish state, he said, preserved the advantages of monarchy but escaped corruption into tyranny; it employed virtuous and wise men in the Sanhedrin, which was an aristocratic element, and these were chosen by the people, which was democratic. The scheme possessed the stability which results when all have some share in the government.3 John of Paris believed that monarchy should be mixed with aristocracy and democracy.4 During the Conciliar controversy, antipapal writers argued that the Church should employ a mixed government.5 In Renaissance literature the mixed state became commonplace. Machiavelli attributed the success of the Roman republic to the blending of the three elements.6 Giannotti and Guicciardini recommended mixed government as the best form.7 Erasmus thought that the absolute rule of a prince blessed with all the virtues was best, but a mediocre prince, such as one found currently, should be balanced by the aristocratic and democratic principles, "just as the elements in nature balance each other."8 However, this was a literary tradition which only occasionally, as during the Conciliar controversy and in the Italian republics, touched the political life of the time. The conception of monarchy in the classical mixed state was in fact entirely alien to the medieval idea of kingship. What was called the monarchic element in Sparta and in republican Rome was nothing but a magistracy. Aristotle called the Spartan kings mere generals for life and classified the Spartan state as a polity or constitutional government.9 Medieval kingship, on the other hand, was personal rather than official, and the political bond was a personal tie between king and subject. To describe this, the Middle Ages resorted to Aristotle's basic classification of forms of rule. Aristotle had distinguished three types: despotic rule, in which the ruler employs the subjects as instruments to serve his own purposes; royal rule, in which a natural superior governs his subjects for their benefit; and constitutional rule, in which the citizens rule and are ruled in turn.10 The mixed state fell in the third category. Forced to choose among the regimen despoticum, the regimen regale, and the regimen politicum, medieval writers fixed upon the regimen regale.
Medieval kingship did correspond, in a degree, to Aristotle's royal rule. The government was the king's government — originally, indeed, it was a part of his household. The status of the subject was not one of citizenship but one of allegiance — allegiance to the person of the king. But this was only one side of the shield. The principle of personal rule was military in origin. It had its raison d'être in the field and had little relevance in civil affairs. There were great areas of life which were organized without reference to the king, areas which might almost be said to lie outside the political sphere. This is seen more readily in England than on the Continent, where Roman survivals qualified the simple German institutions. In Anglo-Saxon England property hardly came within the range of political power. Land was owned outright by allodial tenure; there was no escheat to the king until feudalism altered the situation, nor was there a royal right of taxation until the levy of Danegeld in the tenth century. Justice, too, was in the main nonpolitical, and indeed mostly private, for the folk courts were hardly more than arbitral tribunals for the regularizing of self-help. The effect of feudalization was in part to politicize property, in part to depoliticize government. Military duty came to be charged on the land rather than on the man, and thus land was brought into relation to political power. But by a corresponding process the king was forced into the position of a feudal landlord, and attempts were made to translate the political relationship of king and subject into the settled and reciprocal duties expressed in divided land title. This meant that kingship would become a mere legal office, and it is interesting that this point of view was actually urged. In the bill for the banishment of the Despensers in 1321 they were charged with saying that, "Homage and oath of allegiance is more by reason of the crown than by reason of the king's person and is more bound to the crown than to the person ... wherefore if the king by chance be not guided by reason, in the right of the crown, his lieges are bound by oath made to the crown to guide the king and the estate of the crown back again by reason, and otherwise the oath would not be kept."11 In general it may be said that the attempt of the barons in the constitutional struggles of the thirteenth, fourteenth, and fifteenth centuries was to reduce government to the settled rules of property. The kings, on the other hand, attempted to impress the dynamic character of military kingship on the whole social order. The royal policy may be compared to that of the popes, who in the same period insisted that all laws were in scrinio pectoris.12 The outcome was a kind of compromise. Property retained its autonomy and taxation took the form of a voluntary grant by the kingdom, through the Parliament, to the king. Justice became royal, but under the rules and analogies of land law. Still, however, the king remained a personal ruler, entitled to personal allegiance and possessed of an indefinite residue of power.
So in the later Middle Ages government represented simultaneously two different views of the organization of society. Dominium regale was not an adequate name for such a kingship. Only one author, however, contrived a better one. The English jurist Sir John Fortescue found in Ptolemy of Lucca's continuation of Aquinas' De Regimine Principum, and in the work of the same title by Egidius Colonna, the Aristotelian classification of dominions, regale and politicum. There is a third form, said Fortescue, which is well taught by St. Thomas and also by Egidius, the dominium regale et politicum. The king who rules regaliter tantum makes laws and sets impositions without the assent of his subjects; but he who rules regaliter et politice can make laws and set impositions only with their assent. The wretched condition of France in the fifteenth century shows the evils of royal rule, as the strength and prosperity of England show the virtues of jus politicum et regale. So the merely regal dominion is assimilated to the despotic, and the virtuous monarchy becomes so through being subjected to limitations not very well described as constitutional.13
The ambivalence of Fortescue is found in most medieval accounts of kingship. Gierke has called it the idea of "double majesty."14 There were two usual ways of expressing the nonregal element. Commonly it was said that human affairs were governed by natural law, to which the positive law of the prince must accommodate itself. Christianized Stoicism thus supplied the equal partner in government by which the Middle Ages limited the king. Some writers implemented this limitation by justifying resistance to an evil ruler, and even tyrannicide.15 A second idea, not so much an alternative as a supplement to the first, was the proposition that the king derived his power by grant from the people. From this proposition were inferred various legal limits on royal power and even, in some cases, a right to depose a tyrannical king.16
Aquinas did not originate these ideas, but the tradition flows through him and it is convenient to examine them in his writings. According to Aquinas monarchy is superior to constitutional rule. The king establishes the kingdom;17 he is above positive law, for he makes it and gives it its coercive power.18 Nevertheless he should voluntarily abide by human law, and he is of course subject to natural law.19 Moreover, among a free people (which appears to me to mean in a dominium regale as opposed to a dominium despoticum) the prince derives his power to frame laws from the people, and the people can therefore make a law by custom which will have more weight than the ordinances of the prince.20 Aquinas even argues that where a king has been thus instituted by a free people, he can be overthrown by "public authority" for tyranny, for a tyrant does not deserve that the "pact" be kept by his subjects.21 Here we have an idea that was developed at greater length by later writers. Ulpian had attributed the authority of the Roman emperor to the lex regia by which the people conferred upon him all their power. In the Middle Ages this text was commonly used to explain the origin of kingship: power was derived from the people.22 It was not an idea congenial to medieval institutions. If the king derived power from a Roman lex regia, he was absolute; if from a pactum, as with Aquinas, he should lose his regal character. Either alternative would destroy the dualism characteristic of medieval kingship. Some writers inclined in one direction, some in the other, but without completely abandoning double majesty.
Some of the statements of Aquinas are highly regal, some are antiregal; and they have been variously interpreted. It is the opinion of two eminent Thomists, Mortimer J. Adler and Walter Farrell, that Aquinas meant all these statements at the same time — he was describing neither a dominium regale nor a dominium politicum, but what they have aptly named an intermediate regime.23
In France this tradition endured, if it did not flourish, until the French Revolution. It is clearly marked in the literature of the sixteenth century. Even in Bodin's Six Books of the Republic, which comes close to a theory of sovereignty, the nonregal element survives. The king is the source of law, always excepting the laws of God and nature; all legal institutions are emanations of his will. Yet the Estates General, rather than the king, possess the taxing power; evidently they exist by some other warrant than the king's. The king is bound by his contracts and by the leges imperii, certain public laws of the realm which had been objectified by the writers of the late Middle Ages.
Better than Bodin, the contemporary Huguenot tract Vindiciae contra Tyrannos describes the intermediate regime. The king is instituted by the kingdom and derives his powers from it. The effect of this might be to destroy the independence of the regal power, but not so, for king and kingdom are two equal partners, bound by contract. There are officers of the king, deriving their authority from his commission; and there are officers of the kingdom, who are quite independent of the king. If the king violates the duty which king and kingdom owe to God, or governs tyrannically, the officers of the kingdom may resist him. These officers of the kingdom are the surviving fragments of medieval pluralism — the Estates General, the Parlements, the twelve peers of the realm, the other nobility, the officials of the communes, and sundry other officers. Leaving out of account the doctrine of resistance, this is not far from Montesquieu's definition of monarchy in the eighteenth century. Montesquieu recognizes three forms of government: republican, in which the whole people, or a part of it, has sovereign power — this is the dominium politicum; monarchical, in which a single man governs, but by fundamental laws — this is the intermediate regime; and despotic, in which a single person directs all by his will and caprice — this, of course, is the dominium despoticum of the Middle Ages.24 Like Bodin, Montesquieu concedes that in a monarchy all power comes from the prince, but he argues that the maintenance of the monarchy requires that power be channeled through "intermediate ranks" by the fundamental laws. These intermediate ranks are the lords, the clergy, and the cities; the judges also are needed as "depositary of the laws." If these were overthrown, the government would become a republic or a despotism." The views of Montesquieu are those advocated later in the century by the Parlements, the nobility, and the Estates General when they challenged the authority of the king. Only in the days of the Legislative Assembly does the pure dominium politicum come into French constitutional thought.
In England the issue came earlier, after a series of legal controversies which rent apart the composite medieval kingship. This composite character is expressed in legal terms in the treatise De Legibus et Consuetudinibus Angliae by the thirteenth-century jurist Bracton. Government and justice are the king's; no man can dispute concerning his acts, because he is subject to no man, but to God and the law. What is the law to which he is subject? The laws "approved by the consent of those using them and confirmed by the oath of kings"; "what has been rightly defined with the king's authorization on the advice of his magnates after deliberation and conference concerning it" — these are the limits of royal power. Professor McIlwain, to whom we owe the explanation of the significance of Fortescue's dominium regale et politicum, has found in these passages the same conception. Bracton uses the term gubernaculum to describe the respects in which the king's authority is regal and unlimited, and jurisdictio for the constitutional side, on which he is governed by law.26 The same opposition is neatly pointed up by two passages which Gneist found in the Year Books. On the regal side "tout fuit in luy et vient de lui al commencement"; but on the nonregal side "La ley est le plus haute inheritance, que le roy ad; car par la ley il même et toutes ses sujets sont rules, et si la ley ne fuit, nul roi, et nul inheritance sera."27 From the Middle Ages to the seventeenth century the tradition was persistent, if somewhat wavering. In the controversies of the seventeenth century, however, the stress between gubernaculum and jurisdictio became intolerable, and as a consequence the whole character of English monarchy was altered.
Not chronologically, but logically, the first stage in the dispute was Calvin's Case (1608).28 According to English law an alien could not own land, because under feudalism land owed political duties. Calvin, a Scot, nevertheless brought suit for English land, claiming to be eligible because he had been born under the allegiance of James VI of Scotland after that king's accession to the throne of England as James I. His counsel contended that allegiance was to the person of the king and that since Calvin had been born subject to the same allegiance as the English, he could maintain his suit. The argument of the defense was substantially that James VI and James I were two different kings, each enjoying a separate set of allegiances; it was of no significance that one man held the two offices. The court ruled, naturally enough, that allegiance was due to the person of the king rather than to any legal office. To attach allegiance to the office rather than the man was the "damnable and damned opinion" of the Despensers. Without ruling out the dominium politicum, the judges recognized dominium regale.
In Bate's Case (1606)29 the right of the king to levy import duties without Parliamentary consent was challenged. Chief Baron Fleming upheld the imposts, arguing that "The king's power is double, ordinary and absolute." The ordinary power was to execute civil justice according to established laws; this was in the tradition of Bracton's jurisdictio. The absolute power, "most properly named policy and government," was not restrained by laws. In all matters of state the king might act outside the law for the general good. Impositions on foreign goods, and all foreign relations, were matters of state and fell within the absolute power. Baron Clark in the same case phrased the distinction as one between the absolute prerogative and the ordinary. In foreign affairs the king governed by his absolute prerogative, which might not be disputed; the ordinary prerogative, on the other hand, was measured by the laws of the land and was subject to determination in the courts. A similar issue arose in two subsequent cases. In the Five Knights' Case (1627)30 the judges held that the king might by his absolute prerogative commit any man to prison without alleging a cause, and no bail could be granted. In the Case of Ship-Money (1638),31 seven of the twelve judges ruled that the king might for reason of state collect taxes by the exercise of his absolute prerogative, without the consent of Parliament. In none of these cases did the court deny the existence of jurisdictio as well as gubernaculum. But the effect of these decisions was to make the supremacy of gubernaculum over jurisdictio depend merely on the king's discretion, and that meant the virtual abandonment of double majesty. As early as 1621 the Parliamentary opponents of the Stuarts foresaw this consequence and rejected the conception of the absolute prerogative. This implied the repudiation of dominium regale et politicum in favor of dominium politicum. The Long Parliament accomplished this result by adopting in 1642 the doctrine of the Despensers, which attributed royal power exclusively to the office of the king and divorced the office from the person.
The High Court of Parliament is not only a court of judicature, enabled by the laws to adjudge and determine the rights and liberties of the kingdom, against such patents and grants of His Majesty as are prejudicial thereunto, although strengthened both by his personal command and by his proclamation under the Great Seal; but it is likewise a council, to provide for the necessities, prevent the imminent dangers, and preserve the public peace and safety, of the kingdom, and to declare the King's pleasure in those things as are requisite thereunto; and what they do herein hath the stamp of royal authority, although His Majesty, seduced by evil counsel, do, in his own person, oppose or interrupt the same; for the King's supreme and royal pleasure is exercised and declared, in this High Court of Law and Council, after a more eminent and obligatory manner than it can be by any personal act or resolution of his own. ... And the High Court of Parliament and all other His Majesty's officers and ministers ought to be subservient to that power and authority which law hath placed in His Majesty to that purpose, though he himself in his own person should neglect the same.32
This overthrow of the medieval constitution opened the door to twenty years of speculation and experiment, during which the main outlines of subsequent constitutional thought were fixed.
2
THE CROMWELLIAN CONSTITUTIONS
CHAPTER VI
The English Civil Wars
BETWEEN 1640 and 1660 England underwent civil war and the execution of the king, a series of experimental governments, and factional disputes which resulted in the restoration of monarchy and the Stuarts. This period produced a body of political speculation which in volume, scope, and audacity was exceeded only by the literature of the French Revolution. In the specific field of constitution-making, the years between 1647 and 1660 probably saw more activity than either of the two comparable periods, the American and French Revolutions. Moreover, the ideas which dominated later constitution-makers were launched into the current of political discussion during the Civil Wars and the Interregnum. Popular sovereignty, written constitutions, constitutional limitations, the separation of powers, checks and balances, bicameralism — these principles and devices were thoroughly explored in the Cromwellian period. Some of the writings in this period are comparable in sagacity to the Federalist. It was from James Harrington, author of Oceana and guiding spirit of the Rota Club, that John Adams and Abbé Sieyès learned their political wisdom.
Nor do the actors on the revolutionary stage suffer by comparison with the great men of other times. Oliver Cromwell, coarse yet subtle and cunning, a man of doubtful integrity but a sincere "Saint," maintained himself by shrewd manipulation of political forces. "I have often thought, my Lord, how you hang by geometry, arched with your own fame, and not fastened to any pin of true friendship or interest," wrote an unfriendly "Person of Quality" in 1657. Freeborn John Lilburne was the first democrat and the first demagogue of modern history and co-author, in its later stages, of the Agreement of the People, which was, if we except the laws of the Greek cities, the first written constitution ever contrived. Major-General Lambert, soldier, statesman, and dilettante, framed the Instrument of Government, which was the first written constitution to be put into effect. Bradshaw, who presided at the trial of Charles I, was "a stout man, and learned in his profession: no friend to monarchy." Major-General Harrison went with those who "acted upon higher principles than those of civil liberty." "The brave Sindercomb," wrote Edward Sexby,1"hath showed as great a mind as any old Rome could boast of; and had he lived there, his name had been registered with Brutus and Cato, and he had had his statues as well as they."
Great men have been among us; hands that penned And tongues that uttered wisdom — better none: The later Sidney, Marvel, Harrington, Young Vane, and others who called Milton friend.
It is easy to point to the immediate causes of the Civil Wars. The recourse of Charles I to extra-Parliamentary taxation caused many men to fear the danger of absolutism in England. Arbitrary arrests and the extraordinary procedures of the Star Chamber were regarded as threats to the legal rights of subjects. There was widespread dissatisfaction with both the theology and the administration of the Church of England under Archbishop Laud. These grievances had persuaded the members of the Long Parliament that Parliament must be given a regular and decisive voice in all public affairs. Charles, in desperate need of a grant of money to suppress rebellion in Scotland and Ireland, acceded to all requests until Parliament demanded that he surrender control of the militia. This he refused, and civil war was the consequence.
Harrington professed to find a deeper explanation of the events of his time. As a result of the policy of Henry VII in destroying the baronage and of Henry VIII in distributing monastic lands, most of the lands of England had fallen into the hands of the commonalty. Political power cannot long be withheld from the owners of the land, and revolution was the inevitable readjustment. Elizabeth, by. "converting her reign through the perpetual love-tricks that passed between her and her people into a kind of romance," had staved off the reckoning, but when Charles, "as stiff in disputes as the nerve of monarchy was grown slack, received that unhappy encouragement from his clergy, which became his utter ruin, while trusting more unto their logic, than the rough philosophy of his Parliament, it came unto an irreparable breach."2 Harrington, however, gave too little attention to the part played by the cities in the early stages of the struggle. If the merchants of London had supported Charles rather than the Long Parliament in 1641, the landed gentlemen of the House of Commons would have been helpless. Later, it is true, when the Presbyterian merchants turned against the Independent Army, the Army triumphed; but this was a victory of the sword rather than of landed property. Richard Baxter gave a more exact picture of the contending forces than Harrington:
A great part of the Lords forsook the Parliament, and so did many of the House of Commons, and came to the king; but that was, for the most of them, after Edgehill fight, when the king was at Oxford. A very great part of the knights and gentlemen of England in the several counties (who were not parliament-men) adhered to the king. ... And most of the tenants of these gentlemen, and also most of the poorest of the people, whom the others call the rabble, did follow the gentry and were for the king.
On the Parliament's side were (besides themselves) the smaller part (as some thought) of the gentry in most of the counties, and the greatest part of the tradesmen and freeholders and the middle sort of men, especially in those corporations and counties which depend on clothing and such manufactures.3
But this is not an adequate report of the part played by the lower classes in the struggle. With the exception of the tenants led by their landlords into one camp or the other, the rural poor were for the most part passive. Through much of the countryside their only ambition was to save their crops, and forming bands of "clubmen" they opposed with their primitive weapons the incursions of Royalists and Parliamentarians alike, and fell upon the luckless stragglers from the armies with the immemorial savagery of the peasant. But the yeomen of the eastern counties and the lower classes of the cities were a decisive factor in the war. They were the main strength of the Independent religious movement, and in this capacity they entered Cromwell's Ironsides and the New Model Army and constituted the force which defeated the Royalists and maintained in power the successive governments of the Interregnum. They produced as well their own political philosophies. The Leveller movement, which sought a democratic constitution, had almost its entire support from the radical sectarians of the Army and of London, and the Fifth Monarchy men who followed Harrison's leadership came from the same class.
In the early years of the war opposition to the king was a bond between elements which eventually proved to be irreconcilable. The majority of the members of the Long Parliament were men of substance who desired a national church, presbyterian in organization and Calvinist in theology. They wished to retain kingship, but to control the actions of the king. A minority of the members of the Parliament, but a majority of the officers of the New Model Army, were country gentlemen of the Independent belief. They favored Congregationalism in church organization and some degree of religious toleration. After the defeat and imprisonment of Charles, the Parliament and the Army sought some formula to settle their political and religious differences. Probably the problem was insoluble; at any rate, it was not solved. The Parliament was fearful of the Army but underestimated its power, for in 1648 the Independent leaders, apprehensive lest the Parliament should vote the restoration of Charles and make an alliance with the Royalists, purged the Presbyterians from the House of Commons. This was possible only at the price of a new alliance. The common soldiers had put their strength behind the Leveller movement and insisted that the Army indorse the democratic constitution known as the Agreement of the People. The officers of the Army could not act without the concurrence of the common soldiers, and accordingly they accepted the conditions of the Levellers. The Agreement was approved by the Council of Officers, which recommended it to the Rump House of Commons. But when the hurdle of the regicide had been safely crossed the officers lost interest in the Agreement. The Rump abolished the House of Lords and declared England a "commonwealth" with power in the hands of the Rump and a Council of State which included the chief Army officers. The attempts of the Levellers at insurrection were ruthlessly suppressed by Cromwell. In 1650 Cromwell became commander-in-chief of the Army. In that capacity he took the lead in dissolving the Rump three years later. It is not likely, however, that he was the chief contriver of this action. He was pressed on by Harrison and the Fifth Monarchy element in the Army, who desired the rule of Saints to prepare for the coming of King Jesus, and by Lambert at the head of what might best be called the professional soldiery, who were impatient with a government of politicians.
First came Harrison's turn. The Army summoned a "Little Parliament" of men nominated in the Council of Officers for their godliness. Among them, however, were many thoroughly worldly men who balked the reforms of the zealots and succeeded in dissolving the Parliament. Lambert provided the next expedient. He framed the "Instrument of Government" by which Cromwell became "Lord Protector." The Lord Protector was to rule with a unicameral legislature and a Council of State. The maintenance of the Army was guaranteed. In the course of a few years, however, Cromwell built up a "court party" consisting of favored Army officers and civil officeholders and began to look toward an alliance with the Presbyterians. The "Humble Petition and Advice," a constitution which was originally intended to declare Cromwell king, was the outcome of these maneuvers. The Army was disquieted and after Oliver's death gave its support to the opponents of Richard Cromwell. Richard was overthrown by an alliance of Rump republicans and Army officers. The Rump was restored and also the commonwealth, whereupon Sir George Booth attempted a Presbyterian-Royalist rising. Lambert, who was by now the actual though not the titular head of the Army, easily suppressed Booth, but doubts about Lambert's fidelity pervaded the Rump. The Rump turned upon the Army and was once more turned out. The leaders of the Rump secured the aid of General Monk, who headed the army of occupation in Scotland. But Monk, if he was not already pledged to the support of the Stuarts, was at any rate no republican, and when the forces opposed to him crumbled away he restored the Presbyterian Long Parliament. The outcome could not be in doubt: the Long Parliament summoned a new "Convention Parliament" which recognized Charles II without condition.
There were no explicit conditions, but the theory of English monarchy at the Restoration was not the theory of 1640. By 1660 the doctrine of "mixed monarchy" had almost completely supplanted earlier ideas on monarchy. Moreover, the ideas and proposals of the Interregnum remained alive and in the end determined the course of constitutional government not only in England but in America and to a large degree in France.
CHAPTER VII
Mixed Monarchy
AT THE close of the Middle Ages came a revival of trade and the integration of local economies into larger units. There resulted a quickening of political life in all fields, but particularly in the field of international affairs. Evidence of this new activity is found in the practice of maintaining ambassadors at foreign capitals; several Italian cities had adopted it by the close of the fifteenth century, and the northern nations took it up during the sixteenth. The wars of aggrandizement and religion, the intrigues and plots of assassination gave rise to a new branch of political science — "reason of state." Machiavelli was the expositor of this discipline, which had consequences in other fields besides morality. To deal with secret and urgent matters of state the king must act secretly and arbitrarily, in contravention not only of rules of morality but of rules of law. In England the claim of Queen Elizabeth to act irresponsibly in the field of foreign affairs was conceded by her Parliament; and in the reign of James I the judges of the courts of common law affirmed that the king possessed an "absolute prerogative" to act contrary to common law in all matters of state. His "ordinary prerogative" was to do justice according to law, but his absolute prerogative was a discretionary power to safeguard the nation by any means that seemed to him appropriate.
Another current of thought set in the same direction. The internal disorder following the wars of religion in France in the sixteenth century had led Jean Bodin to make his celebrated if imperfect statement of the doctrine of sovereignty. To Bodin, as to the whole school of politiques, it appeared that the very existence of society was possible only if there were some overriding power capable of exacting complete obedience from all subjects. James I, in the light of his unhappy experiences in turbulent Scotland, held the same view. Order was dependent upon the relationship of command and obedience. All organization derived from superiority and subordination: God in the celestial universe, the king among men, the shepherd among the sheep, Satan among the legions of hell, all averted chaos by the organizing power of command. Other writers argued to the same effect. Without a sovereign, said Edward Forsett, "no people can ever as subjects range themselves into the order, and community of human society, howsoever, as men, or rather as wild savages, they may perhaps breathe a while upon the earth." Roger Manwaring, chaplain of Charles I, rendered this point of view in terms of "divine right." The organization of a multitude into unity was the work of power, and all power was derived from God. Kings were the vicegerents of God and participated in His omnipotence.
There was, however, another and older way of looking at monarchy — in terms of double majesty. Before the Civil Wars the medieval notion of a kingship absolute in its sphere but limited to that sphere by an autonomous body of law was the dominant conception. The classical idea of the mixed state was sometimes employed, but before 1641 it appears to have been merely a thin literary tradition. Thomas Starkey in 1538 declared "a mixed state to be of all others the best and most convenient to conserve the whole out of tyranny."1 When Elizabeth succeeded to the throne John Aylmer reassured those troubled at the accession of a woman by pointing out that she was not an absolute but a "mixed ruler": "The regimen of England is not a mere monarchy, as some for lack of consideration think, nor a mere oligarchy nor democracy, but a rule mixed of all these, wherein each of them have or should have like authority."2 Sir Walter Raleigh spoke with approval of the "royal, mixed government of Sparta" in a passage which seems to liken the English polity to the Spartan.3 Sir Francis Biondi, in his History of the Civil Wars in England, published in Italian, 1637-1644, and in an English translation by the Earl of Monmouth in 1641, described England as "una ben constuita aristodemocratica monarchia." With the outbreak of the war the idea came into active controversial use and largely displaced the doctrine of double majesty. John Milton in 1641 asserted that neither Sparta nor Rome was "more divinely and harmoniously tuned, more equally balanced as it were by the hand and scale of justice, than is the commonwealth of England."4 What chiefly gave currency to the idea of the mixed state was the reply of Charles to the Nineteen Propositions of Parliament in 1642. The mixed state now represented the King's highest ambition; he wished only to be recognized as one of three equal estates, in order to prevent hostile action by the other two. The reply was written by Sir John Colepepper,5 who followed the arguments of Polybius.
There being three kinds of government amongst men, absolute monarchy, aristocracy, and democracy, and all these having their particular conveniences and inconveniences, the experience and wisdom of your ancestors hath so molded this out of a mixture of these, as to give to this kingdom (as far as human prudence can provide) the conveniences of all three, without the inconveniences of any one, as long as the balance hangs even between the three estates, and they run jointly on in their proper channel (begetting verdure and fertility in the meadows on both sides) and the overflowing of either on either side raise no deluge or inundation. The ill of absolute monarchy is tyranny, the ill of aristocracy is faction and division, the ills of democracy are tumults, violence, and licentiousness. The good of monarchy is the uniting of a nation under one head to resist invasion from abroad, and insurrection at home: the good of aristocracy is the conjunction of counsel in the ablest persons of a state for the public benefit: the good of democracy is liberty, and the courage and industry which liberty begets.6
The "mixture" lay in the joint possession of legislative power by all three elements and in the assignment of appropriate functions to each of the three singly. The king was charged with the conduct of foreign relations, the power of appointment, the pardoning power, and other functions; the Commons possessed the sole right to propose taxes and to impeach; the Lords possessed power of judicature.
This conception was immediately adopted by the pamphleteers of both parties. Royalist writers rested their case upon the king's right, never contested before the war, to participate equally with Lords and Commons in the government of the country. The Parliamentarians attempted to refute this claim. Philip Hunton, a serious and honest thinker, argued in his Treatise of Monarchy7 that the purpose of the balance between King, Lords, and Commons was "that one should counterpoise and keep even the other." Consequently, if the King should "run in any course tending to the dissolving of the constituted frame," the Lords and Commons were obliged to restrain him.
But some champions of the king denied the possibility of a mixed monarchy. Robert Sheringham, a Cambridge scholar, wrote a pamphlet called The King's Supremacy Asserted8 in which he insisted that monarchy is "the government of one alone." "His Majesty acknowledgeth monarchy to be so mixed with aristocracy and democracy in the exercise of some part of his power, that the conveniences of all those forms of government, without the inconveniences of any of them, are obtained by such a mixture; but he denieth the mixture to be in the power itself, for the convenience which he saith it hath from monarchy, is, that it is governed by one head."
Sheringham failed to state his case clearly, but Thomas Hobbes and Sir Robert Filmer drove straight to the central issue. The whole burden of the teaching of Hobbes was the necessity and the indivisibility of sovereign power. Sovereignty might reside in one man, or in a corporate group, but it could not be partitioned into several hands. "For although few perceive, that such government is not government, but division of the commonwealth into three factions, and call it mixed monarchy; yet the truth is, that it is not one independent commonwealth, but three independent factions; nor one representative person, but three."9
Such a state was diseased. Filmer vigorously attacked both the scholarship and the logic of Hunton's Treatise.10
There is scarce the meanest man of the multitude but can now in these days tell us that the government of the Kingdom of England is a limited and mixed monarchy: and it is no marvel since all the disputes and arguments of these distracted times both from the pulpit and the press do tend and end in this conclusion.
The author of the Treatise of Monarchy hath copiously handled the nature and manner of limited and mixed monarchy, and is the first and only man (that I know) hath undertaken the task of describing it; others only mention it as taking it for granted. ...
I have with some diligence looked over this Treatise, but cannot approve of these distinctions which he propounds; I submit the reasons of my dislike to others' judgments. I am somewhat confident that his doctrine of limited and mixed monarchy is an opinion but of yesterday, and of no antiquity, a mere innovation in policy, not so old as New England, though calculated well for that meridian. ...
Machiavell is the first in Christendom that I can find that writes of a mixed government, but not one syllable of a mixed monarchy: he in his discourses or disputations upon the Decades of Livy falls so enamoured with the Roman commonwealth, that he thought he could never sufficiently grace that popular government, unless he said, there was something of monarchy in it: yet he was never so impudent as to say, it was a mixed monarchy.
Hunton's monarch is in fact, Filmer argues, no monarch at all. He possesses only the executive power, and sovereignty resides in legislative power.
But whatever the theoretical soundness of the conception of mixed monarchy, it took an extraordinarily firm grip on the public mind. The anonymous author of a learned work published in 1648, Several Politic and Military Observations upon the Civil and Military Governments, declared:
The government of England is then one of the best in Christendom : and it is not by any defect of it, that civil contentions do reign among us this day, but from our sins and ingratitude, and the impenitency of the whole nation, who have justly provoked the Lord to send the spirit of division in the land, and to permit the prelates, and the court favorites, to bend the treble of the instrument of the commonweal higher than the base: for all composed monarchies are like unto a musical instrument, that can afford no melody (although the artist that plays upon it be never so skilful in his art) except the strings of it be tuned alike.
In 1649 a group of Presbyterian ministers in Lancashire, at a time when the regicide and the abolition of the House of Lords had apparently struck a fatal blow at mixed monarchy, passed a series of resolutions which included the wistful proposition that "The government we are under is good, wholesome, equitable for the constitution of it, balanced and proportioned, being reduced to the golden mean; lying between monarchical tyranny and popular anarchy, it hath had the general suffrage to be one of the moderatest and best tempered governments in Europe."11 And in 1650 Captain Edmund Hall, in his Digitus Testium, or a Dreadful Alarm to the Whole Kingdom, Especially the Lord Mayor, the Aldermen, and the Common Council of the City of London, declared that the mixture of the three estates was "the absolutest best government in the world, as is clear from God and Nature. God Himself who is the Almighty Monarch of all spirits, hath pleased to reveal Himself to man in a Trinity of persons, and governs the universe by Himself, angels, and men; celestial bodies, by sun, moon, and stars; the little world man by understanding, will, and affections; and the Kingdom of England, by King, Lords, and Commons."
The idea of balance which was expressed in the doctrine of mixed monarchy appears in the proposals of all constitution-makers of the period except the Levellers and the Rump republicans. The Humble Petition and Advice, which was adopted in 1657, created a Cromwellian House of Lords and was lauded as restoring the ancient trinity and balance of the constitution. In 1659 and 1660, when there seemed to be some possibility that the Stuarts might return, Royalist pamphlets praised the old constitution and urged the restoration of Charles II. The failure of all the experiments of the past decade made the advice more persuasive. Sir Roger L'Estrange addressed a pamphlet to General Monk in which he argued that England could enjoy stable government only under mixed monarchy.12
... our English nature is not like the French, supple to oppression, and apt to delight in that pomp and magnificence of their lords, which they know, is supported with their slavery and hunger; ... so doth it, as little or less, agree with the Dutch humor, addicted only to traffic, navigation, handicrafts, and sordid thrift, and (in defiance of heraldry) every man fancying his own scutcheon; doth not every one amongst us, that hath the name of a gentleman, aim his utmost to uphold it? Everyone that hath not, to raise one? To this end, do not our very yeomen commonly leave their lands to the eldest son, and to the others, nothing but a flail or a plow? Did not everyone, that had anything like an estate, pinch himself in his condition, to purchase a knighthood or small patent? What need further proof? Our late experience of that glimpse and shadow of monarchy (though in persons hated, and scorned, and upon a most scandalous account) yet (for mere resemblance) admitted as tolerable, and in respect of a commonwealth, courted, clearly evinces, how grateful the substance would be to Englishmen. ...
This was that triple cord, ... this was our gold, seven times refined, for every bill, being thrice read, debated and agreed, in either House, was, at last, brought to the King, for his royal assent, the mint of our laws: a trial so exact, that surely, no dross could escape it; since all interests must thereto concur (as truly, it was but fit they should, in the establishment of that, which must bind them all) ... as by sad events, we have since seen, that, power being engrossed by one of the three estates, purged and modeled to the interest of a faction, a consequence natural to such premises (as a balance consisting of but one scale), nothing hath been
weighed, our laws have been mandrakes of a night's growth, and our times as fickle as the weather or multitude.
It was with the relief of turning to old and tested things that the Convention Parliament in 1660 voted that government belonged to king, Lords, and Commons.
CHAPTER VIII
The Separation of Powers
THE discrimination and enumeration of governmental functions is nearly as old as government itself. The functions recognized will of course depend upon the character and activities of the government. Aristotle found three governmental functions in the Greek cities of his day: deliberation on public affairs, constitution of magistrates, and exercise of judicial power. According to Dionysius of Halicarnassus "the three most important and vital matters" were the election of magistrates, the making and repealing of laws, and the making of war and peace.1 In the sixteenth and seventeenth centuries some five or six elements of sovereignty were recognized. Sir Walter Raleigh's list is perhaps representative: it included legislative power, the appointment and removal of magistrates, the pardoning power, war and peace, and "highest or last appeals."2 The champions of sovereignty, however — Bodin and Hobbes and Filmer — insisted that legislative power was critical and that all other powers derived from and depended upon this single sovereign function.
In England a local enumeration arose. In the Middle Ages the scheme of writs by which royal justice was carried out included the original writs, or writs out of Chancery, by which actions were begun, and the judicial writs issued by
courts of law before and after judgment. A special group of judicial writs were the writs of execution, by which judgments were satisfied. This analysis of writs found its way into public law in the fourteenth century treatise Modus Tenendi Parliamentum.3 Second on the calendar in Parliament, said the Modus, should be legislation against defect of laws "original, judicial, and executive." In the seventeenth century there was a great deal of interest in Parliamentary procedure, and the old Modus was studied carefully. Either from this source or directly from the classification of writs, the threefold enumeration passed into ordinary speech. So we find Henry Parker, an able Parliamentary apologist, writing that "without some magistracy to provide new orders, and to judge of old, and to execute according to justice, no society could be upheld."4 John Sadler, "a general scholar and an accomplished gentleman, ... though it must be owned he was not always right in his head," was led by his regard for the sacred number three to formulate an analysis of government in terms of a threefold separation of powers.5
It may be considered, that many kingdoms, and commonwealths (that were not kingdoms) in all ages did consist of three estates (as of three principles in nature, or bodies natural); which might occasion the phrase of Tribe, in others besides the Romans, who in three estates, were not so ancient as the Grecians or Egyptians; that I speak not of the Gauls, Britons, or the eastern nations.
And if any would observe, it might be possible to find the prophets hinting a trinity in divers kingdoms or estates; and that not only for molding, but for overthrowing them: besides the three Captivities, or three overthrowings of the Jewish state; and the three blows of the goat on the ram in Daniel, as alluding to the three great battles which did break the Persian empire.
And why may not the sacred Trinity be shadowed out in bodies politic, as well as in natural? And if so, our three estates may be branched as our writs, into original, judicial, and executive; as shadows of the Being, Wisdom, and Activity Divine.
If I may not grant, yet I cannot deny original power to the Commons, judicial to the Lords, executive to the King; as the spirit to the body, or if you will, the head (or fountain of sense and motion) ; but he must see by two eyes, and hear by two ears [the two Houses], as I touched before, yet his very pardoning although it be by law much limited, doth seem to speak his power executive: and so his writs do speak aright: Because my Courts have so, and so judged: Therefore I do so, and so command the Judgment shall be executed. And if any will assert the militia, to this power executive, I shall also grant it to the King; so that it may always be under the power original and judicial.
This might belong to the Lords, and that to the Commons, and the plain truth is, I do not find more arguments to prove the judicial power to belong to the Lords, than I do for the legislative in the Commons: And (as it seemeth to be above, so below also) it may be much disputed, that the legislative, judicial, and executive power, should be in distinct subjects by the law of nature.
For if law-makers be judges of those that break their laws, they seem to judge in their own causes: which our law, and nature itself so much avoideth and abhorreth. So it seemeth also to forbid both the lawmaker and the judge to execute: and by express act of Parliament, it is provided, that sheriffs be not justices, where they be sheriffs. But if execution be always consonant to judgment, and this to law; there is still most sweet harmony, and as I may say, a sacred unity in trinity represented.
But this curious analysis is a political sport. The classification of powers which became established in the Civil War period and which endured until the middle eighteenth century was the twofold division, legislative and executive. When the term judicial power was used, it was as a synonym for executive power rather than as a third function of government.
I first find this analysis in a speech of Nathaniel Fiennes against the bishops in 1641.6 It soon gained general acceptance. Philip Hunton recognized power architectonical or legislative and gubernative or executive. "There are two parts of the supreme power, the legislative and the executive," wrote Sir Robert Filmer.7 Of course there was, as these authors asserted, an inherent difference between the formulation of policy and the administration of the policy formulated, but the analysis had other features besides accuracy to recommend it. It was a convenient weapon against the bishops, and so Lord Brooke in 1642 argued that they possessed only a "judicative, or declarative power, being entrusted with the explication, application, and execution of the laws: but not as the king and Parliament, who have a legislative power."8 The same argument could be turned against the king. William Ball justified the execution of Charles on the ground that power juridicent, or lawmaking power, belonged to the people, power juritenent, or law-administering, to the king. The king was therefore accountable to the people.9
Certain implications for political conduct resulted from this distinction. When the House of Commons abandoned its attempt to convict the Earl of Stafford, the king's minister, by judicial process and resorted to a bill of attainder, Lord Digby protested: "I know, Master Speaker, there is in Parliament a double power of life and death by bill, a judicial power, and a legislative: the measure of the one, is what's legally just, of the other, of what is prudentially and politically fit for the good and preservation of the whole. But those two, under favor, are not to be confounded in judgment. We must not piece up want of legality with matter of convenience, nor the defailance of prudential fitness, with a pretence of legal justice."10
From the notion that persons should be tried only by settled rules to the proposition that legislative power and executive or judicial power should be vested in separate hands was a brief step. In 1645 John Lilburne left the Army rather than take the oath of the Presbyterian Covenant which was exacted by the Scots as the price of their assistance to the Parliament. Immediately he resumed his career of controversy over private and public grievances and came into collision with the House of Commons. He was called before the Committee of Examinations, where he protested that he should not be subjected to arbitrary process but was entitled to the benefit of the settled rules of law.
"I should much desire to know what you conceive of the Committee of Examinations; for either it is a court of justice, or no court of justice, and either it is tied unto rules, or not tied; but if it be a court of justice, and tied unto rules, when it sits upon criminal causes betwixt man and man, concerning life, liberty, or estate, of all which three they there take cognizance, methinks, they should observe the method of other courts of justice."11 From his experience with the Commons Lilburne formulated the rule, first stated in 1645, that legislators should not be justices, for they would then execute the law as well as make it.12 Thereafter the separation of legislative and executive powers was a cardinal principle of Leveller doctrine. The argument is well stated by Isaac Penington, a radical who later became prominent in the Quaker movement.
Execution is the life of the law. ...
Now that which will make the execution most certain is a clear rule prescribed to them who are to execute, whereby they may be rightly guided in the administration, and left, as little as may be, to determine or order things according to their own present apprehensions and judgments, lest at that back door, arbitrary government (which is the foundation of tyranny) in a sudden creep in. ... And upon this ground it seemeth to me improper for Parliaments to intermeddle with matter of government, further than to settle it in fit hands and within just bounds: because they are entrusted with an arbitrary power, which is absolutely necessary to the work whereunto they are called : they are to redress things at present for which there is as yet no law: and to provide future remedies for things amiss which the law did not foresee. ... A Parliament may far more easily err in government than a King or ordinary Council, for they have, or should have their rule to act by, but a Parliament act by mere supremacy, by power paramount, and from their determinations, there is no orderly appeal.13
It seems, then, that the first purpose for which the separation of the legislative and executive powers was advocated was to insure that accused persons be tried by the known procedures of courts of justice and convicted by settled rules previously enacted, rather than according to the considerations of policy which moved legislative bodies. This was distinctly reminiscent of the arguments offered at an earlier date against the Stuart doctrine of reason of state. Now, however, the Parliamentary champions in their turn adopted the apology of reason of state. Henry Parker wrote against Lilburne, "if you were not so unskilled in the theory, as you are in the practice of the law, you would not upon all occasions so often insist upon inconveniences likely to ensue to yourself, and take no notice of public mischiefs. You would then be satisfied, that your judges ought rather to admit of a mischief to you, than of an inconvenience to the state: although you perpetually urge them to admit of mischief to the state, rather than inconveniences to you."14
There was a second argument in favor of the separation of powers. Parliament was thought of as an inquisitorial body for the supervision and correction of the administration. But if Parliament itself undertook to administer the law, this advantage was lost; a complaint could not be taken with any prospect of success from a decision of Parliament as an administrative body to Parliament as the legislative supervisor. In 1649 Lilburne was imprisoned and interrogated by the Council of State of the commonwealth government, and again he defied his captors in the torrential language for which he was famous. He told Bradshaw, President of the Council of State:15
But Sir, give me leave further to aver unto you, and unto this principle and averment I will venture my life and being, and all I have in the world: That if the House had by a proclaimed or declared law, vote, or order, made this Council (as you call yourselves) a court of justice, yet that proclaimed or declared law, vote, or order, had been unjust and null, and void in itself; and my reason is, because the House itself was never (neither now, nor in any age before) betrusted with a law-executing power, but only with a lawmaking power.
And truly, Sir, I should have looked upon the people of this nation as very fools, if ever they had betrusted the Parliament with a law-executing power, and my reason is, because, if they had so done, they had then chosen and empowered a Parliament to have destroyed them, but not to have preserved them (which is against the very nature and end of the very being of Parliaments, they being by your own declared doctrine, chosen to provide for the people's weal, but not for their woe). ... And Sir, the reason of that reason is, because it's possible, if a Parliament should execute the law, they might do palpable injustice, and mal-administer it, and so the people would be robbed of their intended and extraordinary benefit of appeals; for in such cases, they must appeal to Parliament either against itself, or part of itself; and can it be imagined they will ever condemn themselves, or punish themselves? Nay will they not rather judge themselves bound in honor and safety to themselves, to vote that man a traitor, and destroy him, who shall so much as question their actions, although formerly they have dealt never so unjustly with them? ...
But yet Sir, with your favor, for all this, I would not be mistaken, as though I maintained the Parliament had no power to make a court of justice; for I do grant they may erect a court of justice to administer the law, provided, that the judges consist of persons that are not members of their House; and provided, that the power they give them be universal; that is to say, to administer the law to all the people of England indefinitely, and not to two or three particular persons solely, the last of which for them to do is unjust, and altogether out of their power. And therefore Sir, to conclude this point, it not being in the power of the whole Parliament to execute the law, they can give no power to you their members to meddle with me in the case before you; for an ordinary court of justice (the proper administrator of the law) is the only and sole judge in this particular; and not you gentlemen, no nor your whole House itself.
Certain implications for jurisprudence follow from the separation of powers. If the legislature ought not to deal with particular cases, it should confine itself to the enactment of general rules; if the administration should apply only known and settled rules, retroactive legislation is improper. The notion that legislation should be general and prospective is, of course, Aristotle's conception of the impersonal "rule of law," and antedates the theory of the separation of powers. But never before had it been derived from or related to a functional analysis of institutions. So far as English law is concerned, it was a fairly novel doctrine in the seventeenth century. The practice of enacting special legislation was as old as Parliament itself. Bracton and Coke, following Justinian's Code, had opined that a measure should be applied to the future rather than the past, but this was no more than a rule of statutory construction. How could the Leveller doctrine be implemented? It was not possible to ask the administration to ignore acts of the legislature which it believed to be improper, for this would make the executive independent of the legislature. The Levellers agreed with conservative Independents like Ireton that the war had been fought for the precise purpose of making the executive subordinate to the legislature. Moreover, one of the two advantages of the separation of powers — legislative scrutiny of the administration — would be lost if the administration were made co-ordinate with the legislature. On the other hand, the first purpose of the separation of powers — the trial of persons by general rules of law — would be defeated if bills of attainder and discriminatory legislation were actually put into execution. Lilburne was confronted with the problem in 1653. In 1652 he had been banished by an act of Parliament which made it a capital offense for him to return. Eighteen months later he returned to England and was brought to trial for violation of the act. His defense became another principle of the Leveller creed. Lilburne appealed to the sovereign people, acting through the juries, to exercise that supervision over the legislature which his view of the legislative function made necessary. He contended that in sentencing him by statute the Parliament had exceeded its power, and he persuaded the jurors that they were the proper authority to determine the law in the case.16 The jury voted an acquittal. Lilburne's argument was astonishingly like the old Greek notion that the jury is a kind of surrogate for the sovereign people and should therefore determine the "constitutionality" of particular measures. It was, moreover, an anticipation of Thomas Jefferson's contention that constitutional interpretation belongs to the people.
Lilburne made another application of his general doctrines. If men were to be tried by known and settled rules, the monopoly enjoyed by the lawyers must be broken. The law must be brought out of obscurity, rendered into English, and reformed so that every man could understand it. This aspect of the Leveller program arose as a result of a suit for libel brought against Lilburne by Colonel King in 1646. "This suit," wrote Richard Overton, "occasions Mr. Lilburne to look into the proceedings of the law: finds it full of tricks and quillets, snares, forms, and punctilians, irrational and tending to the ruin of the people."17 Throughout the commonwealth period the more radical sectarians kept up an outcry for simplification of the laws. Cromwell himself was sympathetic to their demands and as Protector carried out some of the proposed changes.
There was agitation not only to make the law more accessible to the people but to reform the substance of it, stripping away the "intolerable marks" of Norman bondage. Overton wrote to the House of Commons in 1646, "Ye know that the laws of this nation are unworthy a free people, and deserve from first to last, to be considered, and seriously debated, and reduced to an agreement with common equity, and right reason, which ought to be the form and life of every government."18This proposal went beyond the implications of the merely mechanical doctrine of the separation of powers.
The principle of the separation of powers soon spread beyond the Leveller camp. John Milton in his Eikonoklastes observed that "In all wise nations the legislative power, and the judicial execution of that power, have been most commonly distinct, and in several hands." The author of Confusion Confounded (1654) attacked both the Rump and the Little Parliament: "Assemblies of this nature are only to make laws, and not to execute them, for being unlimited, they are not so fit to judge as inferior courts, nor is it reason to take away without evident necessity from any man, the benefit of the laws already established." A True State of the Case of the Commonwealth, a book published in 1654, apparently at the instance of the Cromwellian government, declared that the constitutional settlement proposed by the Rump was objectionable on two grounds: because it provided for a Parliament always in session, and because it placed legislative and executive power in the same hands.
... the supreme powers of making laws, and of putting them in execution, were by that bill to have been disposed in the same hands; which placing the legislative and executive powers in the same persons, is a marvelous inlet of corruption and tyranny: whereas in the keeping of these two apart, flowing in distinct channels, so that they may never meet in one (save upon some transitory extraordinary occasion) there lies a grand secret of liberty and true government. ... And therefore it was the wisdom and care of our ancestors, so to temper the government of our nation in time past, that they left the supreme law-making power among the people in Parliament, to sit at some times, and betrusted the execution of the law, with the mysteries of government, in the hands of a single person and his council.
Cromwell declared that a "perpetual legislative" like the Rump necessarily led to the assumption of executive power by the legislature, and consequently to arbitrary decisions in private cases.19 The Instrument of Government and, after it, the Humble Petition and Advice were praised by their sponsors as incorporating the wise principle of separation of powers. James Harrington said, "In a commonwealth neither is accumulation of magistracy just, nor the confounding of executive and legislative magistracy safe."20 Marchamont Nedham in 1656 published The Excellency of a Free State, in which he declared that:
A fifth error in policy has been this, viz. a permitting of the legislative and executive powers of a state, to rest in one and the same hands and persons. ... In the keeping of these two powers distinct, flowing in distinct channels, so that they may never meet in one, save upon some short extraordinary occasion, consists the safety of a state.
The reason is evident; because if the law-makers (who ever have the supreme authority) should also be the. constant administrators and dispensers of law and justice, then (by consequence) the people would be left without a remedy, in case of injustice, since no appeal can lie under heaven against such as have the supremacy, which, if once admitted, were inconsistent with the very intent and natural import of true policy: which ever supposeth, that men in power may be unrighteous; and therefore (presuming the worst) points always, in all determinations, at the enormities and remedies of government, on the behalf of the people.
For the clearing of this, it is worthy your observation, that in all kingdoms and estates whatsoever, where they have anything of freedom among them, the legislative and executive powers have been managed in distinct hands: that is to say, the law-makers have set down laws, as rules of government, and then put power in the hands of others (not their own) to govern by those rules; by which means the people were happy, having no governors, but such as were liable to give an account of government to the supreme council of law-makers. And on the other hand, it is no less worthy of a very serious observation, that kings and standing states never became absolute over the people, till they brought both the making and execution of laws into their own hands : and as this usurpation of theirs took place by degrees, so unlimited arbitrary power crept up into the throne, there to domineer o'er the world, and defy the liberties of the people.
Even the Rump learned the lesson at last. In January, 1660, at its last, brief restoration by Monk, it published a declaration of its purposes and policies which contained this striking passage:
There being nothing more essential to the freedom of a state, than that the people should be governed by the laws, and that justice be administered by such only as are accountable for mal-administration, it is hereby further declared, that all proceedings touching the lives, liberties and estates of all the free people of this commonwealth, shall be according to the laws of the land, and that the Parliament will not meddle with ordinary administration, or the executive part of the law: it being the principal care of this, as it hath been of all former Parliaments, to provide for the freedom of the people against arbitrariness in government.21
To this Sir Roger L'Estrange replied that the separation of powers was to be found in its most perfect form in what he conceived to be the traditional mixed monarchy.
I wish we now could, or could ever hope, under our commonwealth (whatever promises may be made to us) so perfectly to distinguish the legislative from the ministerial authority, as once we did; when the House of Commons had not the power of a court leet to give an oath, nor of a justice of the peace, to make a Mittimus: Which distinction, doubtless, is the most vital part of freedom, and far more considerable to poor subjects, than the pretended rotation; as on the contrary, the confusion of them is an accomplishment of servitude.22
The doctrine of the separation of powers was thereafter an accepted principle of constitutional law. As we shall see, it played a central part in the attack on the crown and the cabinet system in the eighteenth century. It found recognition in all American constitutions. But whereas Lilburne predicated its usefulness in part on the inferiority of executive to legislature, which made possible effective legislative scrutiny of executive action, the American constitutions, like the Instrument and the Petition and Advice, combined the separation of powers with the idea of balance expressed in the doctrine of mixed monarchy, and made the executive co-ordinate with the legislature.
CHAPTER IX
The Agreement of the People
THE Leveller movement was closely identified with the career of John Lilburne. Lilburne was the son of a gentleman of Durham, and in 1630 was apprenticed to a London merchant. In London he became involved in the Presbyterian attack upon episcopacy. Partly as a commercial venture, apparently, and partly from disinterested motives he imported an anti-episcopal book from the Netherlands for sale in England. For this he was examined by the Star Chamber and was fined, pilloried, and imprisoned. In this ordeal he showed the bellicose and litigious character, and the insistence upon the rights of "free-born" Englishmen, that marked his whole public career. Lilburne was liberated by the Long Parliament and entered the Parliamentary Army, where he rose to the rank of Lieutenant-Colonel. But his religious convictions were Independent and he refused to accept the Presbyterian Covenant imposed by Parliament in 1645. He quit the Army and immediately became a center of opposition to constituted government. He continued his subversive activities, in and out of prison, for most of the remainder of his life.
But Lilburne was by no means the only Leveller leader. Closely associated with him was Richard Overton, who in 1643 published a little book called Man's Mortality, which argued from a materialistic philosophy like that of Hobbes that the soul does not survive death. From Overton's teaching arose the sect of "soul-sleepers." John Wildman was active in the Leveller agitation in its period of greatest activity from 1647 to 1649, and thereafter had a chequered career as insurrectionist, Royalist agent, and Cromwellian spy. Edward Sexby was perhaps the ablest of the Agitators in the Leveller period; he later came to believe that the Stuarts might be used to advance the Leveller cause, and in 1657 he acted as intermediary in the Royalist plot against Cromwell for which Sindercomb was convicted. Sexby was author, or co-author with Titus, of the pamphlet Killing No Murder (1657), which advocated the assassination of Cromwell. William Walwyn was a retired merchant of London who appeared in all the radical intellectual movements. He taught rationalism and free inquiry and welcomed the religious experiments of the period. With Lilburne, Overton, and Thomas Prince, he was jailed by the Council of State in 1649.
Underlying the thinking of men as different as Lilburne, Overton, and Walwyn were two common assumptions, the basic assumptions of all the radical religious sects. First was the belief in the utility of free inquiry, which expressed itself in the demand for freedom of speech and freedom of conscience. In its extreme form this led to the Quaker doctrine of the inner light. Second was the expectation of a glorious outcome, of a new and brighter day about to dawn. This optimism took various forms. There was a belief in an impending revelation of new religious truths for which men should seek and hold themselves in readiness. Cromwell was forever talking of new dispensations. When this idea was translated to the political field, it meant the imminent achievement of liberty from "Norman bondage." Milton gave the most eloquent expression of the radical creed in his Areopagitica, which describes the vision of an England "purging and unsealing her undazzled eyes at the fountain itself of heavenly radiance," while those that love the twilight "flutter about, amazed at what she means, and in their envious gabble prognosticate a year of sects and schisms."
The political creed of the Levellers was the logical outcome of the argument adopted by Parliament at the opening of the wars. Political power derived from the people. The king therefore held his power in trust and was responsible to Parliament for its misuse. Thus far went Pym and his associates of the Long Parliament. But as early as 1646 the Levellers took a more radical step; they declared that kingship was incompatible with the liberty of the people. Moreover they interpreted the consent of the people to imply manhood suffrage. As Colonel Rainsborough, whose mysterious death was laid by the Levellers at the door of Cromwell and Ireton, told the Council of the Army, "The poorest he that is in England hath a life to live, as the greatest he." With the demand for political equality went the attack upon the privileges of the nobility and the power of the House of Lords. Finally Parliament itself, according to the Levellers, was a mere trustee for the people and might not deny to them the rights of freeborn Englishmen. We can trace the stages by which these propositions were formulated into the proposed constitution called the Agreement of the People.
The first significant document is A Remonstrance of Many Thousand Citizens, and other Free-born People of England, to their own House of Commons. This was written in 1646, apparently by Richard Overton.1 It reminds the Commons that they have been chosen only to exercise a power in trust, and rebukes them for ignoring that trust. The continual oppressors of the nation have been kings, yet the Parliament flatters Charles and begs him to return to his royal office. The people expect Parliament to denounce him as an enemy and to declare its resolution never to have any more kings. Likewise the Commons should affirm that the House of Lords has no voice in legislation and should relieve the commoners from the oppressions of the Lords. The Commons have opened the printing presses only to Presbyterians; this is an imposition on consciences. The laws of the land, the courts and lawyers are vexatious and abusive. Imprisonment for debts is un-Christian; and to press men for war is to enslave them.
And therefore our advice is, that ye order a meeting for the choosing of Parliament-men, to be expressly upon one certain day in November yearly throughout the land in the places accustomed, and to be by you expressed, there to make choice of whom they think good, according to law, and all men that have a right to be there, not to fail upon a great penalty, but no summons to be expected. ...
And that a Parliament, so chosen in November, succeeding year by year, may come instead of the preceding Parliament, and proceed with the affairs of the commonwealth; nor would we have it in the power of our Parliament, to remove any member from his place or service of the House, without the consent had of those counties, cities and boroughs respectively that chose him; great inconveniences depending thereon, whereof we have seen and felt too much.
Until 1647 the movement was largely a civilian affair. Its leaders were the authors of manifestoes and petitions — Lilburne, Overton, Walwyn, and others; the followers were the radical sectarians of London. But there was close contact between the gathered churches and the men in the ranks of the New Model Army, and Lilburne's doctrines won many adherents among the common soldiers. The selection of the Agitators gave expression to the opinions of the radical soldiers and led to the further extension of Lilburne's influence in the Army.
In the spring of 1647 relations between the Army and the Presbyterian House of Commons were strained. The officers were afraid the Parliament would make a settlement inconsistent with their interests and beliefs. The common soldiers were resentful because Parliament had failed to provide adequate indemnity for acts committed during the war and was attempting to disband the Army without paying the arrears of wages due. On April 27, 1647, eight regiments agreed each to choose two Agitators or agents to watch over their interests and to make representations to authority on their behalf. The practice spread; soon there was an entire organization of Agitators, a sort of soldiers' soviet, disseminating radical ideas and laying plans for collective action by the Army.
The officers were obliged to recognize the Agitators. On June 5 the entire Army accepted the Solemn Engagement. This was a declaration to the nation that the Army would permit itself to be disbanded as soon as Parliament offered the soldiers satisfaction of their grievances and security against oppression by their enemies in Parliament. More important, it provided that the proposals of Parliament should be approved or rejected by majority vote of a General Council of the Army, which was to consist of two Agitators and two commissioned officers from each regiment and those of the general officers who accepted the Engagement. This arrangement was probably more advantageous to the officers than to the Agitators, for the Council was to meet only when General Fairfax summoned it, and the Agitators, even though they had sympathizers among the officers, were in the minority.
Ireton framed the Engagement, probably with the assistance of Cromwell and Lambert. The same authors produced the Representation from Sir Thomas Fairfax and the Army nine days later. This was addressed to Parliament. The Army appealed to the law of nature to justify its insubordination. It demanded the ouster from Parliament of persons who for delinquency, corruption, abuse of the state, or undue election ought not to sit, and also of the eleven members guilty of misrepresenting the Army to the Parliament. Since the House of Commons possessed the legislative power, which was supreme and arbitrary, its members should sit only for a limited term. Parliament should be chosen and meet at a regular time, and be dissolved at its own rather than the king's pleasure. The representation of decayed towns in the House of Commons gave "men of power" the opportunity to frame parties to promote particular interests, to the detriment of the common interest; therefore the seats should be reapportioned among the communities according to the taxes paid, or by some such rule. When the king should agree to a bill establishing these and other reforms, his rights should be taken into consideration and settled in a way consistent with the freedom and security of the people. Finally, indulgence should be given to tender consciences. The subsequent negotiations between Army, Parliament, King, and Scots were too intricate to be recounted here. Fortunately, it is possible to trace the course of constitutional discussion in the Army without detailed reference to events. Ireton now busied himself with the Heads of the Proposals for the settlement of the kingdom. Parliament was to meet biennially, not to sit more than 240 days nor to be adjourned in less than 120. The representation of decayed towns in the Commons was to be apportioned among the counties in proportion to their share of the tax burden. Commoners were not to be tried or imprisoned by the Lords on their sole authority. For ten years the control of the militia was to be in the two Houses, and after that time in the King with the advice and consent of Parliament. The great officers for the kingdom should be chosen by Parliament for ten years, and thereafter when a vacancy occurred Parliament was to nominate three candidates from whom the King might choose one. For seven years the King's Privy Council was to consist of persons selected by the present Parliament.
The Heads of the Proposals was accepted by the General Council of the Army. However, many of the common soldiers were impatient at the temporizing and the conservatism of the Council. Five regiments, believing that their Agitators had been corrupted by the officers, elected new ones, and these in October published a manifesto called The Case of the Army Truly Stated. Ireton charged that Wildman was the author; however that may be, the document demonstrates the complete conjunction of Lilburne's faction with the Agitators. The demand was for a democratic government. Power was in the whole body of the people of the nation. Therefore Parliaments should be chosen by manhood suffrage, excluding delinquents. Neither King nor Lords were to have any share in government. The present Parliament must dissolve within nine or ten months and make way for a constant succession of biennial Parliaments.
The sponsors of the Case of the Army then proceeded to frame an Agreement of the People, which was to be offered to all the people of the nation for subscription. This first Agreement was a brief document. It called for reapportionment of seats in proportion to population. The present Parliament was to dissolve on September 30, 1648, and thereafter biennial Parliaments were to be chosen to sit for a fixed time. King and Lords were tacitly abolished. All power was declared to be in a popular Representative, except for the rights which the people expressly or impliedly reserved to themselves. There were five such reserved rights: there was to be no power over consciences; no man was to be impressed to serve in war; all were to have indemnity for actions in the wars save those under judgment of the present House of Commons; there was to be no privilege from equal operation of the law; and, "as the laws ought to be equal, so they must be good, and not evidently destructive to the safety and well-being of the people."
On October 28 the Agitators of the five regiments presented the Agreement to the General Council as a substitute for the Heads of the Proposals. Wildman and other civilian supporters of the Agreement were permitted to be present. The debate was hot. Ireton protested that the notion of natural rights would undermine all law and property. Government belonged to those that "do comprehend the local interest of this kingdom; that is, the persons in whom all land lies, and those in corporations in whom all trading lies."2 It was to settle power thus that the war had been fought. To this the Agitator Sexby replied that "it would have been good in you to have advertised us of it, and I believe you would have had fewer under your command to have commanded." On November 3, while the Council was still considering the Agreement, the five regiments published the text, announcing that it had received the concurrence of eleven other regiments and more would follow, and inviting the subscription of the general public. The Council debated the Agreement until November 9, when it adjourned to prepare for a general rendezvous of the Army announced for the fifteenth. In this debate the Agitators succeeded in carrying a vote for manhood suffrage but for no other part of the Agreement. The officers, fearing the temper of the soldiers, divided the Army and held three separate rendezvous. There were demonstrations for the Agreement of the People, but Cromwell faced the soldiers down and carried the day.
It was about this time that the term "Leveller" was first used to describe the party of the Lilburnites and the Agitators. Lilburne himself charged Cromwell and Ireton with fastening the name upon the faction in order to make it odious to the people. Lilburne preferred to call his party "the Agreers of the People." It was not until 1659 that the Levellers accepted the name by which they were commonly known.
The Levellers could exercise influence on Army policy only when the officers were at odds with Parliament. The Scotch invasion and the Royalist risings of 1648 caused the Army and the Parliament to draw together. But in the fall of 1648, when peace had been restored, the Presbyterian Parliament reopened negotiations with Charles. Ireton, Cromwell, and Harrison realized that an agreement between the King and the Parliament would make the position of the Army untenable. The dissolution of Parliament seemed to be the only course open, but before undertaking it they must secure the consent of the Levellers, who by virtue of their influence in the Army and in London held the balance of power between the officers and Parliament. Ireton undertook to win the Council of War to his view and at the same time opened negotiations with Lilburne. Lilburne and his friends agreed to countenance the action only if an Agreement of the People were framed and offered to the Army and the people. Ireton acceded to this demand and also permitted Lilburne to introduce modifications in the resolution he had drafted for the Council of War.
This resolution was entitled A Remonstrance of His Excellency, Thomas Lord Fairfax ... and of the General Council of Officers Held at St. Albans. On November 18 the Council adopted the Remonstrance and voted to send it to Parliament. The proposals of the Remonstrance were a curious medley of the ideas of Ireton and Lilburne. They called upon the Parliament to bring the king to trial for his crimes. There was to be no king in the future unless chosen by the Commons, nor should he possess a negative voice in legislation. There should be a certain succession of Parliaments, annual or biennial, with secure provision for the certainty of their meeting, sitting, and ending. There should be a reapportionment of seats "to render the House of Commons, as near as may be, an equal Representative of the whole people electing." This Representative was to possess supreme legislative power, and the ordinary government of the people was to be carried out by administrative officers following fixed rules. However, the Representative was not to be entrusted with power to question anyone for actions performed during the late wars and public differences except those already under censure for serving the king, nor might it "render up, or give or take away, any of the foundations of common right, liberty, or safety contained in this settlement and agreement." Specific reference was made to an Agreement embodying the settlement, subscription to which was to be the condition of holding office or claiming benefit under the Agreement.
As Ireton no doubt expected, the House of Commons refused to act on the Remonstrance. On November 30 the Army published a Declaration in which it announced that it was marching to London, "there to follow Providence as God shall clear our way." The Declaration invited those members of the House who had remained faithful to their trust to take refuge with the Army, which would acknowledge them as the lawful power until a more formal settlement could be made. The Independent members of the House, however, would consent to a purge but not a dissolution. Accordingly, on December 6 Colonel Pride arrested the Presbyterian members as they sought to enter the House.
The task of framing an Agreement of the People had been entrusted to a committee consisting of four Levellers, four officers, four civilian Independents, and four members of the House. The Levellers did the actual writing, but they were obliged to modify their proposals in order to win the approval of the committee. Eventually a compromise version was ratified by a majority of the members. Lilburne presented the text of the Agreement in a pamphlet entitled Foundations of Freedompublished on December 10. The Agreement stipulated that the Parliament should dissolve on or before April 30, 1649. In the future the Representative of the nation was to consist of 300 members, chosen from districts recited in the instrument. The electors were to be "natives or denizens of England, such as have subscribed this Agreement, not persons receiving alms, but such as are assessed ordinarily towards the relief of the poor; not servants to, or receiving wages from, any particular person." Executive power was to be in the hands of a Council of State chosen by the Representative. Eight limits were placed on the Representative: there was to be no compulsion in religion; men should not be impressed to serve in war; no one should be further questioned for actions performed during the wars; no privilege of exemption from the laws should be given in the future; all past exemptions were to be void; the Representative should not meddle with the execution of the laws, except to call public officers to account; no member of a future Representative might hold another post at the same time, saying that of member of the Council of State; no Representative should render up, or give, or take away the foundations of common right, liberty, or safety contained in the Agreement, or level men's estates, destroy property, or make all things common.
The Agreement was referred to the Council of Officers and was debated extensively there. Modifications were introduced, the most important of which was a great narrowing of the provision for religious toleration. Lilburne disowned the Agreement as it left the officers' hands. Nevertheless it was presented to the House of Commons on January 20, 1649. There it was laid to sleep.
The officers were now able to dispense with the Levellers. An attempt was made in February to revive the Agitators and the Council of the Army, but the officers refused to permit it. Mutinies of the Leveller soldiers in April and May were suppressed. On May 1 Lilburne published another Agreement of the People in which manhood suffrage was restored and a considerable number of additional limitations were placed on the Representative. Throughout 1649 Leveller tracts continued to appear, but the circumstances which had made the party important no longer existed. Individual Levellers played prominent parts in the 1650's, and there was a kind of Leveller revival in 1659. One Leveller, Richard Rumbold, participated in the Rye House Plot in 1683; John Wildman actually attained a knighthood under William and Mary.
There were two great, and indeed fatal, flaws in the Leveller scheme. The first error was the assumption that the people of England would consent to a democratic government. Cromwell knew better. When Ludlow in 1656 told Cromwell his government was not legitimate because it was not based on consent, Cromwell replied, "I am as much for a government by consent as any man; but where shall we find that consent? Amongst the prelatical, Presbyterian, Independent, Anabaptist, or Levelling parties?"3 This was unanswerable.
The second weakness was the failure of the Agreement to provide any sanction for its enforcement. It did indeed authorize resistance to any Representative that should violate the Agreement, but as William Ashurst, a Presbyterian member of the House, pointed out, this left every man to judge whether the Agreement was broken: "Therefore every man that will but say they have broken this Agreement, and hath power to make it good, shall not offend, but justify his disobedience, opposing their laws and orders by force."4 The Levellers of 1659 undertook to remedy this by supplying regular machinery for supervision of the Representative.
CHAPTER X
The House of Lords
AT THE opening of hostilities a majority of the lords aligned themselves with Charles. In 1648 most of those who still adhered to the Commons deserted. The handful of peers left in the House of Lords in January, 1649, dared neither approve nor reject the Commons' bill for the trial of Charles, and therefore they adjourned themselves in order to evade the issue. The Commons proceeded with the trial and then abolished both the kingship and the House of Lords.
Nathaniel Bacon remarked after the Restoration that the events of the Civil Wars showed lordship to be "a mere jelly." He was right. The House of Lords fell without serious attack and without great regret. It was inconvenient and it was brushed aside.
It is reliably reported that Cromwell in 1644 said to the Earl of Manchester that "It would not be well, neither should we see good days, whilst there was one Lord left in England, nor until you my Lord of Manchester be called Mr. Montagu."1 These words, however, arose from a suspicion that the peers were lukewarm toward the war, rather than from any abstract political principle. It was the Levellers who first challenged the House of Lords on the ground of right. Lilburne's imprisonment by the Lords in 1646 prompted Richard Overton's Alarm to the House of Lords, a violent attack on the peers. They had denied Lilburne's right to the title of Lieutenant-Colonel, said Overton, but he deserved it as well or better than they did their titles: "for by what means some of you came by yours, is very uncertain, but this is certain, that most of you gained no part of it yourselves: and the common ways your ancestors gained it for you, was generally by adhering to kings, in subduing and oppressing the commons, or by pleasing their lusts, malice, revenge, or covetousness, for so histories manifest."
The Remonstrance of Many Thousand Citizens appeared three days after Overton's Alarm. The Remonstrance denied that the Lords had any judicial power over commoners, it argued against their being allowed a share in the legislative power, and it attacked the privileges of peers. Thereafter the Levellers recognized only the House of Commons as a lawful organ of government. It will be observed that Lilburne's collisions with established authority resulted in a progressive narrowing of permissible institutions; he and his followers rejected the king, the Lords, and the existing law, and thought not well of the Commons. But this reduction in the number of institutions implied a broadening of the base of government, and so the Levellers came to a doctrine of popular sovereignty.
The attacks of the Levellers drew forth a few defenses of the Lords. It was argued that the Lords were an essential element in the mixed monarchy. "The peers are the screen which stands between prerogative and liberty, and keeps each from scorching other; that commisura cervicis which marries head to body; the mean between the extremes, a gallery between royalty and property which makes them keep their due distance; they are lenitives, which allay monarchy, and of mercury sublimate make it a wholesome medicine: in sum by their means we are famed and envied, for our happy mixed monarchy."2 In 1648 William Prynne, a Presbyterian lawyer, published A Plea for the Lords. Prynne was a prolific and turbid writer who began his career by attacking lovelocks, play-acting, and episcopacy; he wrote for the Long Parliament in the early days of the Civil Wars, and against Independency and the Army in the latter days; he was a vigorous advocate of the return of the Stuarts in 1659. His argument usually did not rise above the citation of statutes and Scripture, but in the Plea for the Lords he strove to reach the level of policy. Peers were entitled to legislative and judicial powers, according to Prynne, because they were wiser and more experienced and more valiant than other men. Their generous heroic spirits, and their substantial estates, enabled them to resist the threats and influence of the king, whereas meaner men might be terrified or corrupted. Their greater estates gave them an interest distinct from the commons, and this entitled them to a separate voice in government.
The Humble Petition and Advice created an "other House" to be a balance to the Commons and to mediate between the Protector and the people. It was an attempt to approach the forms of the old constitution. The nostalgia for the old order could not be satisfied, however, by anything short of a return to the traditional system of king, Lords, and Commons.
CHAPTER XI
Republicanism
IT WAS force of circumstances rather than republicanism that led to the abolition of kingship in 1649. Pressure from their supporters, and a conviction that no lasting settlement could be made with Charles, impelled the "gentlemen Independents" among the Army officers and in Parliament to bring the king to trial. This was not a decision against the principle of kingship. As late as January, 1649, it was believed by some who advocated the trial of Charles that terms might be found upon which the young Duke of Gloucester could be brought in as king.1 He was only ten and was therefore considered too young to have been corrupted by his parents. But this expedient was no solution of the real problems; it would have pleased no faction in the kingdom, and if it were accompanied by a return to orthodox Parliamentarism it would have resulted in the victory of the Royalists and Presbyterians over the Independents, and no doubt in punishment for the Independent leaders.
So the Rump House of Commons made itself, of necessity rather than choice, the sovereign authority in England. When the Lords failed to concur in the bill for the trial of Charles, the Commons resolved: "That the people are, under God, the original of all just power: that the Commons of England, in Parliament assembled, being chosen by and representing the people, have the supreme power in this nation; that whatsoever is enacted or declared for law by the Commons in Parliament assembled, hath the force of law, and all the people of this nation are concluded thereby, although the consent and concurrence of King or House of Peers be not had thereunto."2
A few months later the kingship and the House of Lords were formally abolished, and England was declared a "commonwealth" or "free state." The terms commonwealth and republic had at that time both the general meaning we attach to "state" and the specialized meaning of non-monarchical government. The supporters of the Rump were called "commonwealth's-men"; the title "republicans" was first applied to them in 1659.3
On March 22, 1649, the Commons published a Declaration4 justifying their actions. The kingship had been created by the people for their own good. Charles by unparalleled offenses had forfeited his title and had deserved punishment. The children of Charles were at war with the Parliament and had thus disqualified themselves. It was therefore proper to alter the government. Encouraged by the prosperity of the Roman republic, of Venice, Switzerland, and the United Provinces, Parliament had resolved to establish a free state. Monarchy in the past had resulted in misery, oppression, slavery, and corrupt government. The Lords, to maintain their own privileges, had supported the tyranny of the king. Since they did not represent the people, they were not entitled to a "negative voice" in legislation. They had employed their exemption from arrest to defraud creditors. Under the new government all would be different.
The House stated its program thus:
To prevent a new war, ... and to establish a firm and safe peace, and an oblivion to all rancor, ... to provide for the due worship of God, according to his word, the advancement of the true Protestant religion, and the liberal maintenance of godly ministers; to procure a just liberty for the consciences, persons, and estates, of all men conformable to God's glory, and their own peace; to endeavor vigorously, the punishment of the cruel murderers in Ireland, ... to provide for the settling and just observing of treaties and alliances with foreign princes and states, for the encouragement of manufactures, for the increase and flourishing of trades at home, and the maintenance of the poor in all places of the land.
To take care for the due reformation and administration of the law and public justice, that the evil may be punished, and the good rewarded.
To order the revenue. ...
To remove all grievances and oppressions of the people, and to establish peace and righteousness in the land.
In some quarters there was uncontrolled enthusiasm for the commonwealth. "Fatal and bloody have crowns, and scepters been in general to all nations, in particular to this in England," wrote George Walker of Lincoln's Inn. Those who called themselves Saints approved. Sir Edward Peyton thought that "It is probable that the determination of God is to destroy all monarchy in Christendom." The Fifth Monarchy men were republicans out of principle. The prophecy in "Daniel" made the overthrow of earthly monarchy a necessary preliminary to the Kingdom of Christ. Kings, moreover, were the enemies of God and the oppressors of the Saints. Godliness, not inheritance, was the proper test of fitness to rule. Legalistic considerations were not important. The zealots had looked with favor on the Agreement of the People; they now approved of the Rump, and they applauded the Little Parliament. But when Cromwell returned to the rule of a "single person," the extreme sectarians considered that he had abandoned the cause.
The commonwealth was defended also on the mundane level of expediency. Men of considerable literary skill took up the task. John Milton wrote no important defense of republicanism, unless one considers his Ready and Easy Way to Establish a Free Commonwealth, published in 1660, such a work. But Francis Osborne abandoned the light and satiric vein to make a savage attack upon monarchy and a reasoned exposition of the advantages of representative government.5Monarchs had an interest distinct from that of their people and pursued it to the detriment of the public good and of true religion. A royal veto placed "the abstract of all the prudence, power, and probity of the nation in one individual, jewels of too high value to be packed up in so single and weak vessels, as our English monarchs appear to have been." Inheritance of the throne insured that fools would rule. Senates, on the other hand, had the same interest as the people and would not tyrannize. The number of members made for wisdom, and election of members permitted the choice of able men. Whatever advantages might be found in monarchy could be derived from non-royal officers like the Doge of Venice and the Prince of Orange.
Henry Parker supplied the Introduction to a historical work called The True Portraiture of the Kings of England.6 Parker had shown much logical acumen in defending the Parliament in the controversies of the past decade. He now proposed a new method of dealing with politics. "Experiment rather than logic," precedents, not precepts, should be the guide. Observation demonstrated that the people of Venice, the Hanse towns, Switzerland, and the United Provinces enjoyed more prosperity and more liberty than the subjects of monarchies. The public credit was more secure in republics than in monarchies, and consequently there trade flourished. Perhaps by this emphasis upon commercial advantages, a claim put forward also in the Declaration of the Rump, Parker hoped to reconcile the city of London to the commonwealth.
Marchamont Nedham published The Case of the Commonwealth Stated in 1650. The book represented the commonwealth as a middle ground between regal tyranny and the anarchy at which the Levellers aimed. The Levellers sought "not liberty, but licentiousness." Their plan would lead to incompetence, corruption, disorder, the community of property, and the return of regal tyranny. A free state was "the most commodious and profitable way of government, conducing to the enlargement of a nation every way in wealth and dominion."
Before 1654 republican authors directed their attacks chiefly at hereditary kingship. The Instrument of Government, however, established a Lord Protector holding office for life and independent of the legislative power. This raised a new problem. Three republican colonels, John Okey, Thomas Saunders, and Matthew Alured, all men of experience and reputation in the wars, signed a manifesto written by the Leveller Wildman and intended for circulation among the disaffected. It was in the form of a petition to Cromwell. The new establishment, they declared, violated the declarations of the Army, particularly the Remonstrance from St. Albans in 1648, which pledged the Army to Parliamentary supremacy. The Lord Protector, with a mercenary army at his disposal, would be able to overawe the Parliament. The suspensive veto of the Protector would amount to an absolute negative voice, for the Parliament would not dare defy his veto. Moreover, by alleging that a measure violated the Instrument the Protector could exercise an absolute veto. The outcome was that all the rights to freedom of conscience and security of estates recited in the Instrument were made dependent upon the ambition, covetousness, lust, pride, or desire of domination of a single person. The petition concluded with the request that a free Parliament be called in conformity with the provisions of the Agreement of the People proposed to Parliament by the Council of Officers in 1649. "And we are hereby inforced to make this humble address, and to pray your Highness' most serious thoughts of that high price of blood and treasure, which the Commonwealth hath paid for its right and freedom, which was naturally and morally due unto it before; and of the account that must be given to the dreadful God, for all the blood we have shed; and that we can be deemed no better than murderers, if the integrity of our hearts in the just prosecution of the war, do not render us justifiable therein."7 When Oliver learned of the existence of the petition he cashiered the three officers.
In 1656 Cromwell called for a general fast and prayer to the Lord to discover the Achan who had so long obstructed the settlement of the nation. The younger Sir Henry Vane took this occasion to publish A Healing Question Propounded and Resolved.8 The honest party, said Vane, had sought two things — the right of the nation to choose its officers and thus insure the public welfare, and the natural right to freedom in matters of religion. These objectives would be achieved if a representative body was chosen by those who possessed the sovereignty, that is to say "the whole body of adherents of the cause," for the enemies of the cause had forfeited their right. Foreign affairs might be placed in a council of state whose members would hold office for life, but this body should be under the inspection and oversight of the legislature. Executive power should be placed in a distinct office from the legislative; this might be one person, or more than one, but he should be subordinate to the legislature. The natural way to establish the government would be to summon "a free convention of faithful, honest, and discerning men, chosen for that purpose by the free consent of the whole body of adherents to this cause in the several parts of the nations."
Which convention is not properly to exercise the legislative power, but only to debate freely, and agree upon the particulars; that, by way of fundamental constitutions, shall be laid and inviolably observed as the conditions upon which the body so represented doth consent to cast itself into a civil and politic incorporation, and under the visible form and administration of government therein declared, and to be by each individual member of the body subscribed in testimony of his or their particular consent given thereunto. Which conditions so agreed (and amongst them an act of oblivion for one) will be without danger of being broken or departed from; considering of what it is they are conditions and the nature of the convention wherein they are made, which is of the people represented in their highest state of sovereignty, as they have the sword in their hands unsubjected unto the rules of civil government, but what themselves orderly assembled for that purpose do think to make.
Cromwell's reply to this ingenuous scheme was to imprison Vane for four months. In the same year appeared James Harrington's Commonwealth of Oceana. This work proceeds on assumptions so different from those of the other republican tracts, and exercised so enormous an influence, that it requires independent consideration.
In 1659 there was a great revival of republican writing. Before and after the restoration of the Rump there appeared numerous pamphlets setting forth the familiar arguments against kings and in favor of popular assemblies. In many cases these pamphlets adopted also the theory of historical necessity which Harrington had advanced and the institutional recommendations of the Oceana. To the orthodox republican and Harringtonian arguments were sometimes added Leveller conceptions, so that 1659, the Indian summer of radicalism, saw a conflation of all anti-monarchical thought.
Republicanism did not disappear with the Restoration. There were still men like Algernon Sidney and Slingsby Bethel in politics, and the Rye House Plot of 1683 appears to have been a republican conspiracy. But pure republicanism was no longer important; the part it had played in the Cromwellian period was now taken over by the Whig party, which aimed at Parliamentary control of the king rather than abolition of the kingship. It was possible to bring republicanism into line with Whig theory without much difficulty. Henry Neville, a disciple of Harrington, in 1681 proposed in his Plato Redivivus a scheme for controlling the King by associating with him in the exercise of his discretionary powers four councils chosen by the Parliament. This was all that was needed for "redressing and supporting one of the best monarchies in the world, which is that of England."
In the end the essential principle of republicanism triumphed. The form of monarchy remained, but the substance of power was transferred to Parliament. And from 1688 to 1832 control of Parliament lay with the class which Harrington had said must inevitably govern England, the landed gentlemen.
CHAPTER XII
The Instrument of Government
IN 1649 no one envisaged the Rump as a perpetual legislature, but four years later it was still in session and had made no progress in providing for its own dissolution. No doubt the business of maintaining order and settling a stable administration in the country and the problems of the Dutch war seemed more pressing to the members than the establishment of a new constitutional system. But outside the House dissatisfaction with the Rump increased. Not only the Levellers but less radical republicans believed that the nation was entitled to choose new representatives. The religious enthusiasts felt that the Rump had failed in the two great tasks of religious settlement and reform of the law. Furthermore, the Rump made a practice of entrusting business of all kinds to committees of its own members and this worked real hardships on the suitors for relief, who were obliged to attend all meetings of the committee, only to find that their business was adjourned from meeting to meeting or, if it should be considered, that the members who chanced to be familiar with it were absent on that day. It was notorious that individual members of the Rump had profited enormously from their position, not only by the open partition of crown and Church lands but by such covert means as the sale of personal influence.
Apparently Oliver Cromwell was dissatisfied not only with the Rump but with the commonwealth itself. When he returned in triumph from the battle of Worcester in 1651 he summoned a meeting of the chief officers of the Army and the leading lawyers in the House to consider and recommend to Parliament what was fit to be done toward a permanent settlement.1 The lawyers advocated a "mixed monarchical government" as most suitable to the laws and people of the nation. Sir Thomas Widdrington suggested that the young Duke of Gloucester would be the most plausible nominee for the throne. The officers, however, held out for an "absolute republic." Cromwell rejected the proposal to seat a Stuart heir, but expressed the opinion that "a settlement with somewhat of monarchical power in it would be very effectual." Probably, as Bulstrode Whitelocke thought, Cromwell was merely fishing for men's opinions, for he broke off the conference without pressing for a conclusion. A year later he opened his mind in private conversation with Whitelocke.2 He charged the members of the Parliament with pride, self-seeking, and scandalous living. Their proceedings were dilatory and factious and their meddling in private matters between party and party was improper. They intended to perpetuate themselves in power, "nor can they be kept within the bounds of justice and law or reason, they themselves being the supreme power of the nation, liable to no account to any, nor to be controlled or regulated by any other power; there being none superior or co-ordinate with them." He concluded that "some course must be thought of to curb and restrain them, or we shall be ruined by them." Whitelocke protested that it was not possible to restrain the supreme power, whereupon Cromwell made the famous reply, "What if a man should take upon him to be King?"
The forcible dissolution of the Rump was the outcome of a year of protest and agitation for a new Parliament. On June 29, 1652, a petition signed by "many thousands" was delivered to the House.3 It asked for legal reforms, annual elections of members of Parliament and of local officers, and a kind of Leveller Bill of Rights. In August most of the officers of the Army signed a petition to Parliament asking for various reforms and looking toward a general election.4 A series of conferences between the chief officers and leading members of the House resulted. The House was reluctant to act and at most was willing only to add to its present members by authorizing supplementary elections. The dissatisfaction of the Army and of the gathered churches increased. In order to forestall a coup d'état by the Army the House on April 20, 1653, attempted to rush through a bill for supplementary elections. This was to be followed by the dismissal of Cromwell from his position as commander-in-chief and the adjournment of the House until November. Cromwell, who had been assured by the Parliamentary leaders that no action would be taken without the approval of the Army, was absent, but Harrison was in attendance and he sent for Cromwell. Cromwell summoned a body of soldiers and hurried to the House. When the Speaker put the question on the bill Cromwell rose from his seat and denounced the members, collectively and individually, and concluded: "I will put an end to your prating. You are no Parliament. I say you are no Parliament. I will put an end to your sitting." Harrison called in the soldiers and the members were driven out.
Cromwell's action would have been impossible without the active support of Harrison and Lambert. A few months before the dissolution Cromwell had complained to Quartermaster-General Vernon that Harrison, in the impatience of his spirit, hurried him on "to that which he and all honest men will have cause to repent." Lambert also pressed for a dissolution, said Cromwell, because of a slight put upon him by the Rump.5 In 1656 Harrison told Edmund Ludlow that Cromwell had led him on by pretending "to own and favor a sort of men, who acted upon higher principles than those of civil liberty."6 Lambert apologized to the Rump politicians in 1659, saying that Cromwell had embittered him against the Parliament.7 Probably none of the three desired the dissolution in the manner in which it came. The tactics of the House forced the Army's hand. But it is certain that all three generals preferred a forcible dissolution to the disappointment of their several expectations.
Two days after the dissolution the Council of Officers published an account and justification of the action.8 This Declaration alleged that some time earlier the Army had reluctantly come to the conclusion that the Parliament "would never answer those ends which God, his people, and the whole nation expected from them." The officers after much debate had agreed that Parliament should entrust the supreme authority to "known persons, men fearing God, and of approved integrity," who would so order the country that the people would forget monarchy. This would make possible a return to elective Parliaments and the disbanding of the Army. Twenty members of the House had been summoned to conference on April 19; they had rejected the plan of the Army but agreed to postpone action until another conference had been held the following day. Nevertheless the Parliament had proceeded with the bill for recruiting new members and had thus made necessary the dissolution. The Declaration ended with the promise to call to the government persons of approved fidelity and honesty, who would carry out the reformation for which all good hearts had been panting.
The Council of Officers debated various plans for a nominated government. Harrison desired a House of seventy members patterned after the Jewish Sanhedrin. Lambert proposed a small council to which, Gardiner conjectures, he expected a co-ordinate Parliament to be joined in due time.9 Cromwell is said to have sought to have the lawyers St. John and Selden "draw up some instrument of government that might put the power out of his hands." The plan eventually adopted was a modification of Harrison's scheme. The Army requested the congregational churches in the various counties to nominate candidates for a Parliament. From these lists the Council of Officers chose whom they pleased; apparently they also added names which had not been suggested by any congregation. Harrison busied himself in securing the nomination of godly men, but in the final outcome there were only 61 Harrisonians against 81 men of more conservative and worldly views.10
The Little Parliament met on July 4. Some of the less zealous members dropped out and the two factions came to be almost equal in number. The Harrisonians attacked the courts and the legal system and without offering any other provision for the maintenance of a state church proposed the abolition of tithes. Eventually the moderate men saw no way of saving their cause but by a trick. They met early on the morning of December 12, while most of their opponents were at prayer, and expressed themselves in favor of a dissolution; without even putting the question to a vote they hurried to Cromwell and resigned the power of the Parliament to the Lord General. The extremists who remained behind were turned out of the chamber by two colonels, who Gardiner thinks were acting under the orders of Lambert rather than Cromwell.
Cromwell later said that the dissolution was undertaken without his knowledge. However that may be, the leaders in the action certainly had an understanding with Lambert. Lambert immediately produced a document called the Instrument of Government. Evidently this had already been under discussion among the officers. Further negotiations followed and a final agreement was reached. On December 16 Cromwell was installed as Lord Protector of the commonwealth at a ceremony in Westminster Hall.
Lambert was, as Whitelocke says, a man "of a subtle and working brain." He had assisted Ireton in framing the declarations of the Army in 1647. Dawson, the biographer of Lambert, believes that Lambert was the sole author of the Instrument.11 A pamphlet of 1659 speaks of "five or six persons who at first contrived and brought forth the Instrument and government by a single person" and names Lambert, Lawrence, St. John, Thurloe, and Goffe.12 Richard Baxter said that the Instrument was written by "a juncto of officers, and I know not who (nor ever could learn, but that Lambert and Berry were two chief men in it) ,"13 Cromwell in 1657 spoke of it as the work of seven officers,14 but it was notorious that Lambert was chiefly responsible for the Instrument. He betrayed an author's sensitiveness when in Parliament in 1659 he replied to slurs, "The Instrument is buried in its grave. I would not have it raked into. I wish such language to be spared hereafter."15
Certain provisions of the Instrument were derived from the Heads of the Proposals which Ireton had framed, probably with the assistance of Cromwell and Lambert, in 1647. There is an obvious debt to the Agreement of the People, but it was in substance a new organic creation. In its final form the Instrument consisted of forty-two numbered paragraphs. Three chief organs of government were created, a Lord Protector, his Council, and a unicameral Parliament. Oliver Cromwell was named Protector; upon his death his successor was to be chosen by the Council. The Council was to consist of from thirteen to twenty-one persons, and sixteen men were named to constitute the first Council. They were to hold office for life, or until removed for misconduct by a board consisting of seven members of Parliament, six of the Council, and the Keeper or Commissioners of the Great Seal. In case of vacancy in the Council, the Parliament should nominate six candidates; from these the Council would select two and the Protector was to name one. The Parliament was to consist of 400 members apportioned to the counties and boroughs of England, Wales, Scotland, and Ireland. The Parliament was to be elected and meet triennially, whether or not the Protector summoned it, and to sit for at least five months, unless it voluntarily adjourned sooner. Persons who had borne arms against the Parliament were disqualified from voting for or serving as members in the first four triennial Parliaments, and the members returned to the first three Parliaments were subjected to the scrutiny of the Council to determine whether they possessed the proper qualifications. Those who had taken part in the Irish rebellion and all Catholics were permanently disqualified. The suffrage was limited to those who possessed 200 pounds in real or personal property.
The legislative power was placed in the Parliament. Every bill passed by the Parliament must be submitted to the Protector, who was allowed twenty days in which to approve or to give the Parliament satisfactory reasons for rejecting the measure; but the Parliament might thereafter put the bill into effect by declaring that the Protector had neither consented nor given satisfaction. There was one exception: on all bills contrary to the provisions of the Instrument the Protector's veto was absolute. Power over the militia and military forces was in the Protector and the Parliament while Parliament was sitting, in the Protector and Council in the intermission of Parliaments. Foreign relations and domestic administration were in the Protector and Council.
Certain matters were placed beyond the power of Parliament. The Instrument granted to the Protector and Council the right to levy taxes to support 10,000 horse and 20,000 foot soldiers and a navy and to raise 200,000 pounds for civil administration without the consent of Parliament. All other taxes were to be voted by Parliament. The Instrument stipulated that none should be compelled to any public profession of religion and that all who professed faith in God by Jesus Christ should be protected in the exercise of their religion, "provided this liberty be not extended to popery or prelacy, nor to such as, under the profession of Christ, hold forth and practise licentiousness." All laws, statutes, and ordinances contrary to this liberty were to be void.
These were the chief features of the Instrument. It was an ingenious scheme, calculated to maintain the Army and the cause and yet return in some degree to representative institutions. The Protector was balanced against the Parliament in matters of legislation, and against the Council in matters of administration. A True State of the Case of the Commonwealth, a book published on February 8, 1654, praised the Instrument as the highest refinement of political science.
If war there be, here is the unitive virtue (but nothing else) of monarchy to encounter it; and here is the admirable counsel of aristocracy to manage it: if peace be, here is the industry and courage of democracy to improve it. And whereas in the present constitution, the legislative and executive powers are separated; the former being vested in a constant succession of Parliaments elective by the people, the latter in an elective Lord Protector and his successors assisted by a Council; we conceive the state of this commonwealth is thereby reduced to so just a temper, that the ills either of successive Parliaments, furnished with power both of executing and making laws, or of a perpetual Parliament (which are division, faction, and confusion) being avoided on the one side, and the inconveniences of absolute lordly power on the other; the frame of government appears so well bounded on both sides, against anarchy and tyranny, that we hope it may now (through the blessing of God) prove a seasonable mean (as for the better defending these dominions against enemies abroad, and promoting our interests in foreign parts, so also) of peace and settlement to this distracted nation; and be of a durable continuance to succeeding ages, for the glory of the most high God, the advancement of his Gospel, the protection of his people, and the benefit of posterity.
The anonymous author — Sir Charles Firth believed him to have been Marchamont Nedham16 — insisted that the new government recognized the principle that power derived from the people. Parliaments were at present elective and future Protectors and Councillors would be so. All significant powers rested in the Parliament, or in the Parliament with the Protector. It had been necessary to specify the members of the first Council in the Instrument: "we were in the beginning of a new government, necessitated to create a little world out of chaos, and bring form out of confusion; so that there was an absolute necessity, that some who are known to be persons of integrity, and firm for the present settlement, should at the same instant be taken in, to carry on the work, which can be no ground of just exception, especially seeing for the future, elections shall run in the appointed channel, where their streams are to flow from the people, as their original fountain."
A similar justification was offered for the Protector's absolute veto on bills altering the Instrument and for the twelfth paragraph, which provided that the returns certified to the Chancery by the officers of elections should stipulate that the persons elected had no power to alter the government as settled in a single person and Parliament.
.... though it be not of necessity, yet it were a thing to be wished, that popular consent might always, and at all times, have the sole influence in the institution of governments; but when an establishment is once procured, after the many shakings and rents of civil divisions, and contestings for liberty, as here now in England, doubtless we have the greater reason to value it, being purchased at the price of our blood, out of the claws of tyranny; and we conceive it highly concerns us, to put in some sure proviso, to prevent a razing of those foundations of freedom that have been but newly laid; especially in such an age as this, wherein men are very apt to be rooting and striking at fundamentals, and to be running out of one form into another; and when it is found also, what advantages the common enemy hath made by our being in the condition of a floating island, through neglect of any certain settlement: which being considered, it was high time, some power should pass a decree upon the wavering humors of the people, and say to the nation, as the Almighty Himself said once to the unruly sea; Here shall be thy bounds, hitherto shalt thou come, and no further.
The first Parliament to be summoned under the Instrument of Government met on September 3, 1654. There were present several republicans, headed by the regicides Scot and Bradshaw, and Sir Arthur Haslerig; opposed to these were a group of officers and civilian supporters of the Protectorate. The majority of the House was Presbyterian and was committed to neither faction. Cromwell addressed the House on September 4; he described the distracted condition of the country before the Protectorate was established, reviewed his achievements in that office, and enumerated the tasks which confronted the Parliament. He also invited the Parliament to consider the Instrument of Government. The House did little else through its entire session. The republicans immediately attacked the co-ordinate authority of the Protector. They argued that the supreme power was in the people, whom the Parliament represented. This supreme authority could not be alienated or limited, and "to join anything in co-ordination with it, would be to set up two suprêmes, that would always check on the other, and have several interests, and several affections, and ends, and, by consequence, would never be at peace." The Cromwellian party enlarged on the abuses practised by the Rump and insisted that a co-ordinate power in the Protector was needed, "that there might be a check, as they called it, upon the Parliament; as to the legislative power in some few things."
1. To avoid the perpetuity, or some other exorbitances in the supremacy of Parliaments. Therefore, a sole person might be conjoined with it to prevent these.
2. As to the militia, that the Parliament might not have the sole disposing power of that.
3. As to religion, that it might not impose what it pleased in that.
As to all other things, they were contented to leave the legislative power entire to the Parliament, so as the executive power might be wholly in the sole person; with such qualifications, restrictions, and instructions, as it should receive from the Parliament.
So Guibon Goddard reported the debate." The contestants disputed, he said, "as if they had been in schools, where each man had liberty to propose his own Utopia, and to frame commonwealths according to his own fancy, as if we had been in republica constituenda and not in republica constituta." The counsel which won most favor was that of Justice Hale, a confirmed Royalist whom Cromwell had nevertheless appointed to the Common Pleas. Hale proposed that the Parliament should determine for itself the extent to which the Protector was to have co-ordinate authority.
Cromwell evidently believed that the direction the debate was taking was dangerous to the Instrument and to the office of Protector. When the members sought to enter the House on September 12 they found soldiers at the door, who directed them to meet the Protector in the Painted Chamber. There Cromwell spoke at length. The Instrument, he said, had been acknowledged by the whole country, and the Parliament itself had no other warrant for sitting. Some features of the Instrument were "circumstantial" and open to debate. If persuaded by reason, he would agree to alter those provisions. "But some things are fundamentals; about which I shall deal plainly with you: they may not be parted with; but will, I trust, be delivered over to posterity, as the fruits of our blood and travail. The government by a single person and a Parliament is a fundamental. It is the esse, it is constitutive."
Another fundamental was that Parliaments should not make themselves perpetual, as the Rump had attempted to do. To prevent this a single person was necessary. "Of what assurance is a law to prevent so great an evil, if it lie in one or the same legislature to unlaw it again?" The third fundamental was liberty of conscience in religion. The fourth fundamental was that control of the militia should not rest either in the single person or in Parliament; each should check the other. If the Parliament had sole control of the militia, it might make itself absolute and perpetual. Therefore, Cromwell concluded, he required the members to sign an engagement acknowledging the stipulation placed by the election officers on their returns, that they would not "propose or consent to alter the government, as it is settled in a single person and a Parliament." The confirmed republicans refused to sign, but well over half the members signed and returned to their places in the House.
The House soon resumed its work.18 It resolved that the engagement bound the members only to leave the office of Protector in existence; the House might determine his powers. The method of choosing Councillors was changed; they were to be appointed by the Protector, with the approval of Parliament, for a three-year term. Numerous other alterations, major and minor, were made; at last the House fell upon the question of the armed forces. It left to the Protector his voice in the disposal of the Army and Navy, but made appropriation for the support of the forces for only a five-year period. The last action of the House was to vote that the control of the militia should be settled as Parliament and Protector should later agree. Cromwell was not willing to face the prospect that military power might pass out of the control of the Protector. The Instrument provided that the Parliament should sit for five months, but it did not specify lunar months or calendar months, and he dissolved the House at the earliest possible day. This he did in a speech of remonstrance and rebuke. The House, at a time when revolution threatened, had devoted itself to promoting discord. It had set to unraveling the Instrument, which established a true and equal balance in government. If the military power were to pass to the Parliament, there would be nothing to prevent its perpetuating itself or imposing on men's consciences or thrusting whatever government it pleased upon the nation.
This marked the failure of the Instrument of Government. It was an inevitable failure. The checks and balances upon which it relied might have been tolerated for a time if they had been in fact, as the Instrument represented them, mere institutional balances. But the true opposition was not between agencies of government; it was an opposition of military interests to civilian interests, and these two were flatly incompatible.
CHAPTER XIII
The Humble Petition and Advice
THE second triennial Parliament was to meet in 1657, but Cromwell convoked an extraordinary session which met on September 17, 1656. He later charged the Army officers with insisting upon the summoning of the Parliament, but indeed there was good reason, for the country was at war with Spain and additional revenue was needed. In his address to the Parliament Cromwell invited the assistance of the House in conducting the war.This was the most tractable of all Cromwell's Parliaments. The Council of State, to which the returns were sent, refused to seat almost a hundred members, republicans and others whose loyalty to the Protectorate was considered doubtful. Some of the members who gained admission protested against this exclusion as an infringement of the privileges of the House, but Parliament acquiesced in the Council's action.
Supplies were voted for the Spanish war, but this proved to be less important than certain other matters which came before the Parliament. The case of James Naylor, the debate about the Major-Generals, and the adoption of the Humble Petition and Advice were the chief business of the House. These formed a connected chain of events.1
James Naylor was a Quaker and had a very great following among the members of that sect. He was arrested in Bristol for blasphemy — it was alleged that he represented himself to be Christ — and was sent to London for trial. The more rigid Puritans in Parliament seized upon the case and insisted that the House punish Naylor. Many were eager for the death penalty, but in the end he was sentenced to be whipped, pilloried, and branded, and to have his tongue bored through with a hot iron. Then he was to be sent in ignominy through the streets of Bristol and afterwards imprisoned. This barbarous sentence was executed and Naylor remained in prison until September 8, 1659, when he was released by the Rump.
It is noteworthy that those who interceded for Naylor were for the most part officers of the Army who chanced to have seats in the House. The debates before and after sentence occupied almost a month. At the beginning of the controversy the question was raised as to whether the House intended to proceed by the legislative or the judicial power. There was a strong sentiment for conviction ex post facto by bill of attainder. Some of the supporters of this proposal argued that a legislative course must be adopted because Naylor had not violated any existing law and therefore could not be convicted by judicial process. Those who took Naylor's part denounced legislative conviction and ex post facto laws eloquently but without result. Likewise the suggestion that the Protector might feel obliged to veto the bill as an infringement of the religious liberty guaranteed by the Instrument carried no weight. On the other hand, some of those eager for conviction insisted that the House possessed not only the judicial power of the Commons but that which had formerly belonged to the Lords, and that Naylor had violated the laws of God, if not the law of the land — a judicial sentence was therefore proper. The House voted sentence without deciding whether the proceeding was legislative or judicial. However, the Chief Justice raised a question: if the sentence was not judicial, he said, the imprisonment could not endure beyond the session of Parliament; the courts must discharge the prisoner by writ of habeas corpus as soon as Parliament was dissolved. It was therefore voted that the conviction was by judicial process.
A group of sectarians petitioned Cromwell to intervene in defense of the religious liberty guaranteed by the Instrument. On December 26 he sent a letter to the Speaker to be communicated to the Parliament. He had no wish to give countenance to the opinions and practices imputed to Naylor, "yet We, being entrusted in the present government, on behalf of the people of these nations; and not knowing how far such proceedings (wholly without Us) may extend in the consequence of it, do desire that the House will let Us know the grounds and reasons whereupon they have proceeded." This letter disquieted the House. Several members expressed doubt that even with the Lords' judicial power added to its own the House could justify the sentence. No reply was made to the Protector's letter. The outcome of the case was to cause dissatisfaction with the existing system among both the friends and the enemies of religious freedom. The former saw the guarantee of the Instrument set at naught; the latter concluded that the law did not give enough latitude in the punishment of blasphemers.
The second great controversy arose over the Militia Bill. In 1655, to meet the threat of Royalist risings, England had been divided into several districts, over each of which was placed a major-general. Provision was made for calling out the loyal militia of a district to meet any emergency. The cost of the scheme was met by the "decimation tax," a levy of ten per cent of the income from the estates of all who had opposed the Parliament in the Civil Wars. This illegal tax was justified on the ground that the disloyalty of the Royalists caused the expense which it was designed to meet. The expedient proved successful and on December 25, 1656, Cromwell's brother-in-law, Major-General Desborough, introduced a bill in Parliament to regularize it. The debate on first reading occurred on January 7, 1657. To the surprise of the military faction, the measure was opposed by one of Cromwell's sons-in-law, John Claypole, and by the Irish Lord Broghil, who was known to be very close to Cromwell. At once an anti-military party took form. It was composed of most of the civilian officeholders of the Cromwellian government, who took their cue from Claypole and Broghil; of the lawyers, who had always resented military rule; and of those unattached civilian members who were not deeply implicated in the past actions of the Army. The purpose of this party was to combine with the Protector and by this means to destroy the influence of the Army. Cromwell must have intimated his willingness to accept a civilian alliance as a substitute for the military support on which he had hitherto relied. Thus was consummated that confederation between Cromwell and the "corrupt interests" at which, according to the republican Ludlow, Cromwell had aimed as early as the dissolution of the Rump Parliament. The major-generals, headed by Lambert and Desborough, raged at this unexpected check, but they were decisively defeated. On January 29 the Militia Bill was rejected.
A new fruit of the alliance appeared on February 23, when Alderman Packe of London, whom Cromwell had knighted in 1655, introduced the "Humble Address and Remonstrance" which became the Humble Petition and Advice. By this Remonstrance Cromwell was to be declared king and a second legislative chamber, a sort of House of Lords, was to be instituted. It was hoped that a return to the old constitution would put an end to the uncertainties and disorders from which England suffered and put an end also to the military rule which those disorders made unavoidable.
Monarchy had always had its champions. Apparently the first draft of the Instrument of Government carried the title King rather than Protector. In the Parliament of 1654, when the Instrument was under debate, a motion to change the title of Protector to King received a little support. It is not clear that these proposals carried with them the principle of hereditary succession. In the Parliament of 1654 Lambert had been one of those who urged that the Protectorship be made hereditary; it has been thought, however, that Lambert, who was expected to succeed Cromwell, supported the proposal with the secure foreknowledge that it would be defeated. In 1654 James Howell in his Admonition to My Lord Protector and his Council commended hereditary monarchy. Election, he said, produced contests between rivals and inevitable turmoil. Moreover, each elective prince felt obliged to enrich his family out of the public treasury in his turn; inheritance of the throne prevented this plunder. Oddly enough, the pamphlet concluded with a recommendation, not that the Protectorate be made hereditary in the house of Cromwell, but that Cromwell make a treaty with Charles Stuart providing that the latter should succeed him. A tract of 1656, A Copy of a Letter Written to an Officer of the Army by a True Commonwealth's-man, and No Courtier, urged that Cromwell be made king and that the crown be hereditary. Those who risked more, deserved more; the Protector should be rewarded with the crown. Election produced faction and civil war; the wicked kings usually were the elective ones; elective governments were more short-lived than hereditary monarchies.
Despite his bias toward monarchy, Cromwell had felt constrained to refuse the title of king when it was first offered to him in the Instrument. He praised the Instrument of Government because it made the chief magistracy elective. "This hath been my principle; and I liked it, when this Government came first to be proposed to me, that it puts us off this hereditary way. ... I am speaking as to my judgment against making it hereditary: to have men chosen, for their love to God and to Truth and Justice; and not to have it hereditary. For as it is in Ecclesiastes: 'Who knoweth whether he may beget a fool or wise?' Honest or not, whatever they be, they must come in, upon that account; because the government is made a patrimony."2 These were the principles of the Army, and they may have been Cromwell's principles as well.
In the fall of 1656 the question of the succession was widely discussed. Major-General Jephson proposed in the House that the office of Protector be made hereditary instead of elective. Most of the officers were opposed to this plan, but apparently they were less hostile to the proposal that the Protector be given authority to nominate his successor. It was thought that this device would avoid the inconveniences of both inheritance and election. Sindercomb's attempt to assassinate Cromwell on January 8, 1657, gave new stimulus to the discussion. Some supporters of the Protectorate argued that dangers of this sort could be eliminated by restoring the monarchy. On January 19 the elder Ashe moved that the House request "that his Highness would be pleased to take upon him the government according to the ancient constitution; so that the hopes of our enemies' plots would be at an end. Both our liberties and peace, and the preservation and privilege of his Highness, would be founded upon an old and sure foundation." This provoked hot rejoinders and the matter was dropped. The diarist Burton noted: "The debate fell asleep, I know not how, but I believe it was by consent (as I heard Mr. Nathaniel Bacon and others say as they came out) and only started by way of probation. I have not seen so hot a debate vanish so strangely, like an ignis fatuus." At about this time the Remonstrance which Packe introduced in February was being framed.
The proposal to restore kingship grew in part, no doubt, out of desire to settle the succession, but it had a larger object as well. The party which had opposed the Militia Bill supported the Remonstrance, and some of the civilians who had voted for the Bill joined them. The officers almost solidly opposed the Remonstrance. It is clear that the Remonstrance was intended to place a firm civilian support under Cromwell and thus make him independent of the Army.
Sir Charles Firth has fixed the authorship of the Remonstrance on Lord Broghil and Sir John Glynne, who was Chief Justice of the Upper Bench; with them were probably associated men like Lenthall, Whitelocke, Lisle, and Fiennes.8 The Remonstrance contemplated the Restoration of the old constitution of King, Lords, and Commons with some necessary alterations. The Kingship was not to be hereditary, but the king was authorized to nominate his successor. The "other House" — the term Lords was not used — was, of course, not to consist of the old peers but of new nominees.
On February 27 one hundred officers of the Army called on Cromwell, complained of the Remonstrance, and asked him to refuse to be made King. Cromwell's language must have been a shock to them. He complained bitterly of the Army, saying it had made him its drudge and had forced upon him all the mistaken policies of the past. At last the Parliament was on the point of making a settlement and he meant to stand by it. He proceeded to justify the Remonstrance. The Commons needed a check or balancing power, "for the case of James Naylor might happen to be your own case. By their judicial power, they fall upon life and member, and doth the Instrument in being enable me to control it?"
The reference to the Naylor case was a telling one and the suggestion that the other House might check the Commons was probably persuasive to the officers. If the Army became entrenched in the upper House, it would have achieved that security at which it had aimed throughout its career. How deeply the idea took root is shown by the fact that in 1659 the Army insisted that any acceptable constitution must include a "select Senate" empowered to veto measures passed by the popular chamber. In the course of a few days most of the officers came to acquiesce in the main outlines of the scheme. The House spent the month of March in debating the Remonstrance. The question of the title was deferred to the last. Over the opposition of the Army party the Protector was authorized to name his successor. The proposal of a second House was adopted unanimously. This House was to consist of from forty to seventy members nominated by the Protector and approved by the Commons. These persons were to hold office for life or until "legally removed"; no method of removal, however, was provided. The judicial power of the "other House" was limited to cases of privilege and impeachment and appeals from the courts of common law and Chancery. Neither the apportionment of seats in the House of Commons nor the property qualifications of electors were mentioned, but since the Parliament was to represent the three kingdoms it must have been intended that the provisions of the Instrument obtain rather than earlier practice. An intricate set of qualifications limited the franchise and the right to sit in the Commons to supporters of the Long Parliament and the Protectorate. It was assumed but not stated that the two Houses and the chief magistrate would share the legislative power. The Council of State was transformed into a Privy Council, the members of which were to be appointed by the Protector with the consent of the Council and of both Houses of Parliament and to be removed by the Protector with the approval of Parliament. The Protector was to govern with the advice of the Council. He might dispose of the armed forces with the consent of Parliament, or with the consent of the Council if Parliament were not in session. Appointments to judicial, military, and administrative positions were to be approved by Parliament. A fixed revenue of 1,300,000 pounds a year was conferred upon the Protector.
The character of the party which sponsored the Remonstrance was shown by the articles on religion. There was to be a national church teaching a uniform Confession of Faith, the terms of which were to be agreed upon by the Protector and the Parliament. Religious toleration was to extend to all who believed in the Trinity except papists and prelatists and those who published horrid blasphemies or held forth licentiousness or profaneness under the profession of Christ. Laws were to be passed against the Quakers. This was considerably less generous than the corresponding provisions of the Instrument of Government, nor was there a clause like that in the Instrument rendering void any act abridging religious freedom. Perhaps, however, the friends of liberty of conscience felt that the vetoes of the other House and the Protector would provide a better defense than a paper guarantee.
On March 24 and 25 the question of the title was debated. The chief officers of the Army — Lambert, Fleetwood, and Desborough — argued violently against kingship, but the civilian party easily carried the day. On March 31 the Humble Petition and Advice, as the Remonstrance was now called, was offered to Cromwell with the stipulation that he accept or reject it as a unit. He asked for time in which to seek divine guidance. There was widespread opposition among the officers and the soldiers of the Army to a restoration of kingship. Aside from all other considerations they must have felt that it would be an act of self-stultification to set up that which they had recently overthrown. The gathered churches petitioned Cromwell not to accept the title. On April 3 he answered to the Parliament, "I have not been able to find it my duty to God and you to undertake this charge under that title."
The House resolved not to accept this refusal and on April 8 a committee went to Cromwell to repeat the offer. Cromwell asked that the House explain the reasons why he should acquiesce. A committee was appointed for this purpose and several conferences were held with the Protector through the month of April. The members of the committee argued that "this nation hath ever been a lover of monarchy" and was entitled to a king. The laws of the land were inextricably interwoven with the title, and any other title introduced uncertainty and insecurity. A king was limited by the law, whereas there were no settled bounds to the power of a Protector. Cromwell replied that these reasons were forceful but not conclusive. He was reluctant to wound the godly people who disapproved of kingship and he himself felt awe at God's blasting of monarchy. He concluded the conferences by detailing points of the Petition and Advice which he believed in need of amendment.
The House busied itself with the proposed changes and on May 6 received word that the Protector would meet it on the following day. Cromwell had made up his mind to accept the crown and told Desborough as much. Desborbugh replied that he would then quit the Army. Lambert and Fleetwood had made the same resolution. These resignations would cause a cleavage which would extend down through all the ranks of the Army, and therefore Cromwell hesitated. In the meantime Colonel Pride, he of Pride's Purge, learned of Cromwell's decision from Desborough. He busied himself securing the signatures of officers to a petition asking Parliament not to press the Protector further. Cromwell deferred his meeting with Parliament for a day and on May 8 definitely declined the title of king.
Now the officers took the initiative in pushing forward the Petition and Advice. Many of the advocates of kingship opposed the adoption of the constitution without that feature. Nevertheless the Army party carried the day; the title of Protector was adopted, and on May 25 Cromwell accepted the Petition and Advice. On June 26 a "Humble Additional and Explanatory Petition and Advice" was accepted by the Protector. This measure clarified some of the points about which Cromwell had raised questions during the conferences and conferred upon him the important power of choosing the original members of the other House without the approval of the Commons. On the same day the House adjourned itself until the twentieth of January following.
At the end of 1657 Cromwell selected his other House and summoned the members to meet as a House of Parliament on January 20, 1658. He addressed the two Houses on that day, and was followed by Nathaniel Fiennes, one of the commissioners of the Great Seal. Fiennes praised the new constitution in the language ordinarily used of mixed monarchy.4
This constitution of a chief magistrate, and two Houses of Parliament, is not a pageantry, but a real and well-measured advantage to itself and to the commonwealth, and so consonant to reason, that it is the very emblem and idea of reason itself, which reasoneth and discourseth by a medium between two extremes. If there be two extremes, and the one vary from the other; how shall they be reconciled, if there be no medium to bring them together? ... If some hazard must be run in popular elections, to preserve the people's freedoms; may there not be some help therein, by the election of a chief magistrate, that it turn not at any time to its own prejudice? If anything inconvenient should chance to slip out at one door, must it not pass two more, before it come abroad, to the detriment of the people? How exact, and of how great respect and authority will be all your acts, laws, and resolutions, whenas after they have passed the examination of that great body, which sees with the eyes of the three nations, and is acquainted with the condition, and sensible of the necessities of every individual part thereof, they shall then pass a second scrutiny, and be published and refined by such as, during life, shall make it their business either to fit themselves for, or to be exercised in, things of that nature; ... and whenas, after all this, they must pass also the judgment and assent of the chief magistrate, who is placed on high, as upon a watchtower, from whence he may behold at one view and discover the state of the whole body politic, and every part thereof; and see not only near at hand, but also afar off, how it standeth in relation to foreign states, as well as to its own parts within itself.
This happy rhetoric was not justified by the event. Cromwell had made a grave mistake. The Petition and Advice had originally provided for a commission of forty-one members of the Commons to determine the qualifications of members elected to the House. At Cromwell's request this provision was repealed by the Additional and Explanatory Petition. Instead, elected members were to take their seats but were to suffer a fine of 1000 pounds if they were found to have done so without being duly qualified. There was now no machinery for excluding the republicans to whom the Council of State had refused seats when the Parliament first met; accordingly, they entered the House of Commons. The consequences of this were aggravated by the fact that Cromwell had called some of his ablest and most loyal supporters from the Commons to the other House. The republican leaders, through years of experience in the Long Parliament, had become masters of debate and dilatory tactics, and almost at once they began to obstruct the course of government. When it became necessary to reply to a communication from the other House, the question whether they should be called Lords, as the Protector had termed them in his speech, was raised. To concede that title was to grant the other House a voice in legislation, which of course was intended in the Petition and Advice but was not expressed. Scot and Haslerig spoke long and often against the term Lords. Scot showed that he had read Harrington's Oceana. There had once been a justification for the Lords, he argued, because they possessed estates and interest.
Anciently, the bishops, abbots, and lords, their tenants, and relations, could engage half England. The Providence of God hath so ordered it, that England is turned a commonwealth, and do what you can, you cannot make it otherwise; and if you join any with you in the legislature, it will not do your work.
The administrations of God's dealings are against you. Is not God staining the pride and glory of the world? Is there anything but a commonwealth that flourishes; Venice against the pride of the Ottoman family. All their mountains are pulled down. God governs the world, as he governs his Church, by plain and low things. It was this that led your Long Parliament; the providence of God, that virtue and honesty should govern the world; not that I am for Fifth Monarchy.
He concluded that if power were not exclusively in the people, "You must put on the King's head again, which was surely taken without his consent and the Lords' too."
This venture into political science puzzled the military men. Major-General Boteler replied to "the little worthy gentleman," "These are the qualifications, religion, piety, and faithfulness to this commonwealth. They are the best balance. Those persons have it. It is not estates will be the balance." And Major Beake contributed a realistic comment: "The sword is there. Is not that also a good balance?
He that has a regiment of foot to command in the Army, he is as good a balance as any I know, and can do more than
The civilian supporters of the Petition echoed Fiennes' arguments. Sergeant Maynard said, "I profess to you, I am not ambitious. I would be lower. I would give my negative, if it were put, that we should have a free legislature within these walls. You know what hath been done here in a morning. This Parliament did pass more in one month than the best student in England can read in a year, and well if he can understand it then. There is nothing can be well done by man. I should suspect myself. A check is necessary upon us."
The Commons never sent its reply to the other House. On January 25 the Protector had addressed the Parliament, urging it to deal with the pressing foreign and domestic problems, but the Commons disputed the title of the Lords from January 25 to February 4. On the latter day Cromwell appeared unexpectedly at Westminster and addressed the two Houses. He reproached the Commons for calling into question the settlement they had sworn to uphold. He had been promised a second House, in the conferences on the Petition and Advice, to interpose between him and the Commons and prevent "tumultuary and popular spirits." But some members were intriguing with the Army to institute a republic and others were acting on behalf of Charles Stuart. Since this was the outcome of their sitting, he dissolved the Parliament.
Bulstrode Whitelocke had endeavored to dissuade the Protector from this action: "A little time would cool these heats, and bring the Parliament into a better temper." And indeed Cromwell appears always to have been impatient and peremptory with his Parliaments. But the situation was serious. A republican conspiracy which revolved about the House of Commons was on foot. A petition, the same that was presented to Richard's Parliament by Samuel Moyer a year later, was being circulated among the radical sectarians of London. It was addressed to "the Parliament of the commonwealth of England" and asked for a succession of free Parliaments which would exercise supreme power in government and control the militia. Another and inconsistent request was intended to win over the Army, that "the officers and soldiers who have hazarded their lives for the nation's liberty, may not be turned out of their respective employments without a legal trial at a court-martial, that so the military power may be preserved in the hands of such, who are not merely mercenary, neuters, or disaffected." There was a plea also "that no tender conscience may be oppressed." The petition as a whole was a demand for the overthrow of the Protectorate. Cromwell in his speech of dissolution bracketed this petition with the tampering with the Army; both were the work of republicans within the House. Perhaps the dissolution averted the fate which befell Richard in 1659.
CHAPTER XIV
James Harrington
THE most important and most influential of the political theorists of the Cromwellian period was James Harrington. Thomas Hobbes was a great man and could, as Harrington said, "make you a king by geometry," but the deductive method of argument was better adapted to display the author's acumen than to persuade the reader. Harrington resorted to history and by empirical methods quarried out what seemed to him to be general principles of political science. The approach was not new. A number of writers of the period — Marchamont Nedham, for one — turned to the authors of antiquity and to modern historians for data from which to form political judgments. John Hall of Gray's Inn wrote, "And truly I conceive reading of history to be the most rational course to set any judgment right, because it instructs by experience and effects, and grounds the judgment upon material observations, and not blindly gropes after notions and causes, which to him are tantum non inscrutabile."1 Harrington differs from these authors not in his method but in his results. The generalizations which he made appeared to many of his contemporaries and to most students of politics in the eighteenth century the fundamentals of a science of politics. His first and largest book was The Commonwealth of Oceana, which appeared in 1656. This was a description of the institutions of the island of Oceana, a thinly disguised recommendation for England. During the next three years he published a number of smaller tracts defending and elaborating the argument of Oceana; the most important of these are The Prerogative of Popular Government, written in 1658, and The Art of Lawgiving, which appeared in 1659.All of Harrington's writings rest on a central idea, the law of the balance or, more properly, the over-balance. This is the proposition which John Adams, an admirer of Harrington, summed up in the aphorism "Power follows property." In general, Harrington argued, power follows landed property, but in a commercial state like Venice or the Netherlands money may play the leading part. Power may for a time remain outside the hands of the possessors of land, but this condition is unnatural and precarious and cannot endure. In the long run those who have the over-balance of land will secure control of the government. From this proposition Harrington derives his classification of governments. Absolute monarchy exists where the king owns all the land, as with the Turks. Mixed monarchy is the feudal society set up at the time of the collapse of Rome — Harrington calls it also "the Gothic balance"; here the land is in the hands of a few great lords who overshadow both king and commons. A commonwealth exists when most of the land is held by the commons; such a state must be popular. The proportion of land necessary to support government by a single person or class is two-thirds or three-fourths of the whole. If the governmental form of absolute or mixed monarchy or commonwealth exists without the appropriate economic base, the state is in a condition of "privation of government," which may be tyranny, oligarchy, or anarchy. Where the spurious government is able to maintain an army, this is civil war; if there is no army, the state "must fall away of itself through the want of a foundation, or be blown up by some tumult: and in this kind of privation the matter or foundation of a good orderly government is ready and in being, and there wants nothing to the perfection of the same, but proper superstructures or forms."
This theory supplied Harrington with an explanation of the Civil Wars. When Henry VII had broken up the baronial estates and Henry VIII had distributed the lands of the monasteries among the commons, a commonwealth was inevitable. Oceana was a plea to Cromwell to recognize this fact and establish the institutions appropriate to a commonwealth.
Harrington prided himself on being the discoverer of the law of the balance. He thought it "very foul" when an anonymous writer in 1659 attributed the idea to Sir Thomas Smith's De Republica Anglorum rather than to Oceana,2 and he resented bitterly a Leveller pamphlet which alleged that the notion had been stated in the debates in the Army Council before the execution of the King.3 Certainly Sir Thomas Smith did not formulate the law, and the Clarke Papers record no statement of it in the debates. Yet there are several rather direct anticipations of Harrington. Sir Walter Raleigh in his Discourse of War said, "It has been observed also, that since these troubles from the barons, the kings of England, to lessen the power of the nobility, and balance them, have yielded to the growing greatness and privileges of the commons; and what effect that will have, time alone will show." A book of 1648, Several Politic and Military Observations, which also argued for two of Harrington's favorite devices — a Senate to propose laws and rotation in office — supplied a reading of history much like Harrington's. Henry VII, distrusting the nobility, "began in his days to give the swing of the balance unto the English yeomanry, for he brought his nobility low, and raised the yeomanry; so that the English monarchy inclines rather at this present to fall into a democracy, than to an absolute monarchy, or to an aristocracy; because the greatest power of the kingdom, is at this instant in the hands of the yeomanry." There was no mention of land as the basis of power, but this want was made good by a tract published in 1654 and reissued in 1656. The first edition was entitled A Copy of a Letter from an Officer of the Army in Ireland to the Lord Protector, concerning his Change of the Government, and was signed by R. G. from Waterford, June 24, 1654. This has been attributed to Edmund Ludlow and also to the Digger Richard Goodgroom, but appears not to have been the work of either.4
The Copy of a Letter was an attack on the Instrument of Government; it argued that the shift in land ownership made it impossible for Cromwell to restore monarchical forms in England.
... it is against the interest of a monarchy, to let his subjects grow rich; from this contest of the Lords, with succeeding kings, began the Barons' Wars, and in the close of them our government, by Kings, Lords, and Commons, wherein, although the Commons were named, it will be found, if we look into records, that they had little share, except to help bear up the Lords, whose blue coats they wore against the king, and it will likewise appear, that they were never discontented at their very small proportion, and the reason is the same with the former, viz. that either they possessed no lands at all, or else they held them as servants to their loving Lords and clergy, so that this state was founded with great wisdom, upon the very condition of the people, which had it continued the same it then was, could never have been shaken, but by a foreign war. ...
Henry VII, however, had levelled the peers, and by that means "laid the foundation of destroying his posterity, never considering at all that the Lords could not be diminished, but by advancing and enriching the Commons, whose desire of power must advance accordingly, which if they would obtain, it was then obvious that they must strike not at this or that prince, but at the very root of monarchy itself, as being a thing useless wholly to them, and indeed inconsistent with their government and interest." Henry VIII had continued the same policy, and other factors such as the breaking of entails and the rise of trade had contributed to that enrichment of the commons which made monarchy impossible. Cromwell could restore royal government only by taking the estates from the people and conferring them upon old or new lords, which it would hardly be safe to attempt. Thus the Copy of a Letter anticipated the most characteristic feature of Oceana.
It is, moreover, at least possible that Harrington was assisted to the law of the balance by his friend Henry Neville. Aubrey tells us that "Mr. T. Hobbes was wont to say that Henry Neville had a finger in that pie; and 'tis like enough."5 In the foreword of his Plato Redivivus, published in 1681, Neville took pains to deny that the law of the balance first appeared in Oceana and instanced the Copy of a Letter as one of many earlier statements. What this shows, however, is not that Harrington was dishonest in his claim of originality but that the course of events and the current of discussion had brought others as well as Harrington to the same conclusion.
Harrington grounded the law of the balance on historical evidence rather than on theoretical considerations. The only reason offered for the law was this:
The strength whereby this effect [empire] can be expected, consists not in a pair of fists, but in an army; and an army is a beast with a great belly, which subsists not without very large pastures: so if a man has sufficient pasture, he may feed such a beast; if a few have the pasture, they must feed the beast, and the beast is theirs that feed it. But if the people be the sheep of their own pastures, they are not only a flock of sheep, but an army of lions, though by some accidents, as I confessed before, they be for a season confinable to their dens.6
This was not completely persuasive. Matthew Wren in his Monarchy Asserted, a reply to Harrington published in 1659, reversed the relation between politics and economics. Dominion in land was a mere effect of empire, not the cause. Moreover, money was important as well as land, but the power of money was dependent upon the support of the sovereign, for without such support riches were defenseless, a mere attractive booty. Harrington was mistaken in thinking that an army necessarily belonged to the owner of the pasture, for "this beast is none of those tame ones that are kept within fences, or imprisoned in a several: when an army is once on foot, the enclosure of the law is too weak to hold it in, and property is no better than a hedge of rotten sticks." This was something less than fair to Harrington's position, but as an analysis of the relation of politics to economics it came as close to the truth as Harrington.
The fact is that neither property nor government is primary and the source of the other; they mutually interpenetrate and sustain each other. But Harrington was not so much concerned to explain this relationship as to describe the conditions under which it could exist. Empire must be brought to property, or property to empire; the divorce of the two was "privation of government" and civil war.
Such a divorce between government and property could occur in either of two ways, by a natural or a violent revolution. "Natural revolution happens from within, or by commerce, as when a government erected upon one balance, that for example of a nobility or a clergy, through the decay of their estates comes to alter to another balance; which alteration in the root of property, leaves all to confusion, or produces a new branch or government, according to the kind or nature of the root. Violent revolution happens from without, or by arms, as when upon conquest there follows confiscation."7 The task of statesmanship, therefore, was to prevent the state from leaving the balance upon which it was settled. A commonwealth had need of an agrarian law to maintain a wide distribution of property. Harrington complained that the law of primogeniture led to the concentration of land ownership, and proposed that if an estate exceeded 2000 pounds in yearly rent the younger sons should be admitted to a share. The acquisition of land by purchase and marriage was likewise to be limited. Such an agrarian law, Harrington estimated, would keep the land in the hands of not fewer than five thousand owners, a number large enough to insure the stability of the commonwealth.
There was no suggestion in Harrington's writings that he thought an absolute or mixed monarchy morally reprehensible. He must have shared the view which Henry Neville later expressed in his Plato Redivivus. Turkey was not a tyranny, said Neville, "unless you will call it oppression for the grand signior to feed all his people out of the product of his own lands: and though they serve him for it, yet that does not alter the case; for if you set poor men to work and pay them for it, are you a tyrant?" Nevertheless, Harrington believed that a commonwealth possessed two advantages over other forms. One was stability. The causes of sedition were the desire for liberty, for power, and for riches; but in a commonwealth these were already in the hands of the people.8 The second virtue of a commonwealth was that it alone among governmental forms insured "the empire of laws and not of men."9
Harrington rejected as superficial Matthew Wren's definition of law as will; he himself equated law to interest, from which will proceeded.10 In an absolute or mixed monarchy, law would express the interests of one or the few. A commonwealth aimed at a national interest. But there were two parts of legislation: wisdom to propose measures, and interest to test their utility.11 Accordingly a commonwealth needed three orders: a Senate, to propose; the people, acting through representatives, to consent; and a magistracy, to execute the laws. The Senate was allowed to debate but not to conclude a measure; the popular assembly might approve or disapprove the measures proposed by the Senate, but might not debate or initiate. So essential was bicameralism to a commonwealth, said Harrington, that none ever endured long without it.
Thus Harrington justified bicameralism as an institutional expression of the distinction between wisdom and interest. There was a natural aristocracy fitted to debate and consider reasons; this in the Senate constituted the wisdom of the commonwealth, which proposed measures. But the Senate could not advance its own selfish interests, for it could not enact any law. The popular assembly represented the interest of the commonwealth and applied the test of national interest to the measures it enacted. The popular assembly in turn could not enact factious or partisan legislation, for it lacked the power to initiate. The upshot, said Harrington, was the impartiality Aristotle had advocated — "the empire of laws and not of men."
Implicit in the scheme was the idea of balance, but it was not the balance of social classes. The Oceana allowed every man not a servant to vote for the deputies who choose the members of both houses. It was true that all the Senators and three-sevenths of the members of the popular chamber, the Prerogative Tribe, were to be chosen from those having annual incomes of at least 100 pounds, but this was intended to secure to the commonwealth the services of gentlemen rather than to confer any advantage on that class. What was to be balanced was interest against wisdom. But the only proof Harrington offered to show that bicameralism would result in impartiality and promotion of the general interest was the story of the two girls dividing a cake.
Divide, says one unto the other, and I will choose; or let me divide, and you shall choose: if this be but once agreed upon, it is enough: for the divident, dividing unequally loses, in regard that the other takes the better half; wherefore she divides equally, and so both have right. O the depth of the wisdom of God! And yet by the mouths of babes and sucklings hath He set forth His strength; that which great philosophers are disputing upon in vain, is brought unto light by two silly girls, even the whole mystery of a commonwealth: which lies only in dividing and choosing: nor hath God (if his works in nature be understood) left so much to mankind to dispute upon, as who shall divide, and who choose, but distributed them forever into two orders, whereof the one hath the natural right of dividing, and the other of choosing. For example:
A commonwealth is but a civil society of men : let us take any number of men (as twenty) and forthwith make a commonwealth: twenty men (if they be not all idiots, perhaps if they be) can never come together, but there will be such difference in them, that about a third will be wiser, or at least less foolish than the rest; these upon acquaintance though it be but small, will be discovered, and (as stags that have the largest heads) lead the herd. ...
Bicameralism itself and the procedures involved in legislation were suggested to Harrington by the institutions of the city-states of the ancient world.
Athens consisted of the Senate of the bean proposing, of the Church or Assembly of the people resolving and too often debating, which was the ruin of it, as also of the Senate of the Areopagites, the nine Archons, with divers other magistrates executing.
Lacedaemon consisted of the Senate proposing, of the Church or Congregation of the people resolving only, and never debating; which was the long life of it; and of the two kings, the Court of the Ephors, with divers other magistrates executing.
Carthage consisted of the Senate proposing and sometimes resolving, too, of the people resolving and sometimes debating too, for which fault she was reprehended by Aristotle, and she had her Suffetes, and her hundred men with other magistrates executing.
Rome consisted of the Senate proposing, the Concio or people resolving and too often debating, which caused her storms; as also of the Consuls, Censors, Aediles, Tribunes, Praetors, Quaestors, and other magistrates executing.12
To these examples Harrington added Venice, Switzerland, the Netherlands, and Israel. His chief indebtedness, however, was to "the experience of Lacedaemon and Venice," which taught that debate "is not to be committed to the people in a well-ordered government."13
Harrington's Senate was intended to perform a necessary function. A large body could not successfully exercise initiative; it must rely on outside leadership or on committees drawn from its own membership. In the case of Athens, where the popular Ecclesia could debate and amend the proposals of the Boulé and even instruct the Boulé to prepare specified measures for its consideration, bicameralism was a successful solution of the problem of legislative leadership. The Boulé was little more than an initiating committee of the Ecclesia, and no conflict arose between the two bodies. But Harrington counted on bicameralism to do more than solve the problem of legislative leadership. It was to prevent partiality in legislation, to insure the empire of laws and not of men; and for this purpose the prohibition on debate and amendment in the popular chamber was essential. But this feature gave Harrington's Senate a power over legislation which might easily be used for interested purposes. An anonymous critic made this point in 1659. Speaking of the cake of the two silly girls, he said: "It is frivolous to think that the fourteen in England, like little babies, would be pleased with this rattle, of choosing; when it is evident that it must be Hobson's choice, this or none; and as I have been cheated myself as a boy, and thought it privilege enough to choose, the wags have cut the greatest piece of an apple, and offered me the remainder, and bid me take that or choose. ..."14
The other two institutions upon which Harrington insisted were the ballot and rotation in office. The ballot, of course, was intended to prevent improper influence in voting. Rotation made the legislature like a rolling stone, "which never did, nor, while it continues upon that rotation, ever shall gather the moss of a divided or ambitious interest." The legislators were to be elected for three-year terms, and one-third were to leave office every year. A legislator was to be ineligible for re-election for three years after his term had expired.
The core of Harrington's teaching, however, was the law of the balance and the necessity of that peculiar institution, the Senate. The idea of the balance very soon passed into practical politics. It was used as a basis for criticism of the Cromwellian Lords in 1658 and 1659. Harrington himself, in February of 1659, published an attack on the other House, A Word concerning a House of Peers. Peers who had the over-balance of property must have a king to unite them and to administer their government; peers who lacked the over-balance must fall with the king, as the old Lords had done. The new Lords could stand only with the help of the Army. Harrington took no other part in the political disputes of the time. In November of 1659 he founded his Rota Club and there his ideas and proposals were debated in academic fashion. In the face of the Royalist revival of early 1660 the Club disbanded. Harrington was arrested in 1661 on the charge of complicity in a plot against Charles II and was held without trial for some years until imprisonment and illness had shattered his mind. He died in 1677.
CHAPTER XV
The Constitutions of 1659
ON SEPTEMBER 3, 1658 Oliver Cromwell died. In accordance with the provisions of the Humble Petition and Advice he had nominated his successor; this was his elder son, Richard. In December Richard decided to call a Parliament. The need for money was pressing and apparently the ill fortune his father had experienced with Parliaments was not taken so seriously by Richard and his Council as it should have been. Carrying on the plan of returning to the Stuart constitution which Oliver and his Council had pursued for the past two years, Richard caused the writs for election of members to the Commons to be sent to the old constituencies which had been superseded by the apportionment of the Instrument of Government. This legally required the exclusion of the Scotch and Irish representatives brought in by the Instrument, but these sixty members were virtually chosen by the administration and the Protector needed their votes. The republican faction in the House challenged their right to sit, but the Protectoral party won the day.The Parliament met on January 27, 1659 and was addressed by the Protector and by Fiennes. Once more Fiennes praised the Humble Petition and Advice. It was so well contrived, he said, that "there will be no need of any new hammering." Nevertheless, a large part of the House was determined to destroy it. On a direct challenge to the existing constitution, the republicans and those acting with them were able to muster one-third of the votes; when the issue was less clearly drawn, the opposition party numbered nearly half.
In December a group of republicans — Thomas Scot, John Weaver, Edmund Ludlow, Henry Neville, and others — met at the house of Sir Henry Vane and agreed to stand for election to the coming Parliament, thinking, says Ludlow, that it was the duty of a good man to serve the public and, whenever possible, to be useful to his country. These men were for the most part members of the Rump and had opposed Cromwell throughout his rule. Apparently some of them had come to accept the whole Harringtonian gospel and desired a new constitution of Senate, popular chamber, and executive magistracy. "But the greatest part of the Parliament-men perfectly hated this design of rotation by balloting; for they were cursed tyrants, and in love with their power, and 'twas death to them, except eight or ten, to admit of this way, for H. Neville proposed it in the House, and made it out to them, that except they embraced that model of government they would be ruined — sed quos perdere vult Jupiter, etc., hos, etc."1
The republican opposition in Richard's Parliament was supported by other factions. Those who sympathized with the Stuarts voted with the republicans against the house of Cromwell. John Lambert also joined forces with the republicans. He had opposed the Petition and Advice vigorously in 1657, for it meant the defeat of his well-grounded expectation to succeed Cromwell as Protector, and he had refused to take the oath prescribed by that instrument. In consequence Cromwell had withdrawn all his commissions, civil and military. For almost two years Lambert had lived in retirement at Wimbledon; now, with the death of Oliver, he returned to politics. It is not clear that he had absolute command of any votes in the House except his own and that of Captain Adam Baynes, but he had close ties with many officers in the Army, and he had greater influence with the common soldiers than any other man. The common soldiers remembered him for his gallantry and his success and for the many occasions on which he had interceded in their behalf in matters of pay and grievances.
There was also a dissatisfied faction in the city of London. In dissolving Parliament in 1658 Oliver had charged the republicans with promoting a seditious petition which called for Parliamentary supremacy and the right of court-martial for all soldiers. On February 15, 1659, this petition was presented to Richard's House of Commons by Samuel Moyer in the name of "many thousand citizens and inhabitants in and about the city of London."2 Samuel Moyer may well be the Mr. Moyer "of the Independent party" who acted with Lilburne in 1648.3 He had been a member for London in the Little Parliament and seems to have been a chief political leader among the extreme sectarians of the city. On May 12, 1659, he presented a petition to the Rump asking for successive Parliaments, rotation in office, and the immediate creation of a typically Harringtonian device, a committee "to receive propositions from any such person or persons as may be able to give light and direction in such things, as may conduce unto the frame or constitution of a good and equal commonwealth, or free estate."4 He received a pardon from Charles II in 1660.5
If we can trust the evidence offered by a pamphlet published in the last week of April, 1659, there was an explicit alliance among these opposition forces before the Parliament assembled. The pamphlet was entitled The Army's Duty: Or, Faithful Advice to Soldiers and purported to print two letters to Lieutenant-General Fleetwood, the first written after Oliver's death and the second written after the Army had made to Richard an address of loyalty, which the pamphlet called "gross hypocrisy, and palpable flattery." The pamphlet exhorted Fleetwood to return to the principles from which he had fallen, and claimed a right on the part of the authors to give such advice. "We are such as engaged with you in the war against the late King, and do believe that you and we must render an account to the dreadful God of the justice and sincerity of our intentions therein." So far as the authorship goes there is no likelihood that it was a forgery, for it was an academic Harringtonian production which it would advance no one's interests to counterfeit. It is, of course, possible that it was cast in the form of letters to Fleetwood merely as a literary device and was thus antedated by the authors.
The pamphlet is signed with the initials H. M., H. N., I. L., I. W., I. I., S. M. H. N. was certainly Henry Neville, who must have written the Harringtonian part of the pamphlet. I. L. was, of course, John Lambert. I. W. was probably John Weaver, a member of the Rump and a leader of the republican faction; the name of John Wildman, the Leveller, has, however, been suggested.6 I. I. must have been John Jones — Colonel John Jones, the regicide, rather than the Captain John Jones who sat for London in Richard's Parliament. The most plausible conjecture for H. M. was Herbert Morley, a republican colonel. S. M. was likely to be Samuel Moyer. Whatever the date of composition of the letters or pamphlet, these signatures suggested a combination of Harringtonians and republicans with Lambert and Moyer as representative of the radical sectarians of London.7 The purpose of the combination was, of course, to overthrow the Protectorate. The existence of any magistrate independent of the people, the pamphlet argued, led to tyranny. Moreover, since the land was in the hands of the commons, "England is now become an unnatural soil for a monarch." The only solution was a free state, a Senate debating and proposing, a popular assembly deciding, and a magistracy to execute, with triennial terms and yearly changes in the legislative chambers.
This confederation was in a minority in Richard's House of Commons. The first important piece of business was the passage of a bill recognizing Richard as Lord Protector. The republicans exhausted all the tricks of sophistry and delay, and the bill was passed on second reading, after eight days of debate, on February 8. But then John Trevor, one of the strongest supporters of Richard, in an imprudent attempt at conciliation moved that the bill not be committed until other clauses limiting the power of the Protector and securing the rights of Parliament and the privileges of the people had been added. This resolution, for want of proper Parliamentary management on the part of the court party, was carried, and the revision of the Petition and Advice thus became the business of the House.
After protracted debate it was resolved to postpone decision on the question of the Protector's negative voice. The House then turned to the problem of the other House. The case for the second House was simply stated: "This House is a fluid body. God knows who you shall see here next Parliament; and unless the other House be faithful and fixed to your interest, I doubt the consequence." The Cromwellian party was satisfied with the existing House, but the Presbyterians, though they favored a second chamber, disliked the military character of Oliver's nominees. They wished to add to the other House such of the old Lords as had adhered to the Commons during the Civil Wars. The republicans were hostile to Lords of any sort. They argued that power belonged only to the representatives of the people. Furthermore, there was no economic basis for a second house; the barons had once possessed power by virtue of their estates, but now the commons held the over-balance and it was futile to set another house against them. This Harringtonian argument was employed by virtually all the republican speakers. Only Neville and Baynes, however, advocated the creation of Harrington's bicameral legislature. The issue was debated for weeks and at last, on March 28, the House resolved to transact with the persons sitting in the other House as a House of Parliament during the present session, with the proviso that this was not intended to deprive those of the old peers who had been faithful of their right to sit in that House. The majority made bad use of its victory. The first "transaction" offered to the other House was a proposal for a day of fasting and public humiliation. The Declaration proposed included a rebuke to the magistrates, who were said to have permitted the growth of "abominations" by failing to maintain purity of doctrine and indulging corrupt principles and practices under the pretext of liberty of conscience. This, naturally enough, caused a rift in the other House, where the Cromwellians and Presbyterians combined against the Independent Army officers.
The soldiers had already shown themselves restive. When the Commons went behind the Petition and Advice and looked instead to the Stuart constitution as a guide, they impliedly disowned all that had been done since 1648. This was an affront to the principles and a threat to the security of the Army. Moreover, the House had proved itself indifferent to the grievances of the Army and eager to subject it to civil authority. As early as March 7 one member of the Commons complained of the soldiery, "They begin to look with an ill face upon us." Richard Cromwell was helpless. His position was the inevitable outcome of his father's decision to seek civilian support through a return to the old constitution. In precise measure as the Protector received that support, he drew away from the Army, and this the Army could not tolerate. Before Oliver was in the ground the Army had asked Richard to resign the post of commander-in-chief and appoint one of its number to that position. The demand that no officer or soldier be discharged except by court-martial was another claim to autonomy. It now became imperative that the Army assert itself.
On April 6 the officers presented to Richard an address asking for the payment of soldiers' wages, which were, as always, in arrears, and calling for a more vigorous prosecution of the "good old cause."8 This retrospective phrase appears to have been used for the first time in 1656;9 it implied that Cromwell had abandoned the cause. It was taken up by both commonwealth's-men and Fifth Monarchy men — to the one group it meant the Rump Parliament; to the other, such an institution as the Little Parliament. Outside these circles it connoted a vague republicanism and embraced also such ideas as reform of the law, the abolition of tithes, and religious freedom. The petition of the officers was printed and it called forth a commendatory address to the officers by the common soldiers of Pride's regiment.
The House became alarmed and on April 18 voted that there should be no Councils of the Army held during the session of Parliament. Richard attempted to enforce this order, and the Army mutinied. The officers then forced Richard to agree to dissolve the Parliament. To avert this the House of Commons adjourned itself for three days, but Richard dissolved it by proclamation on April 22.
The Council of Officers then displaced those officers who had adhered to Richard and gave their regiments to Lambert and others who had been cashiered at an earlier date. The next business was to establish a government. At least one petition was delivered to Lieutenant-General Fleetwood by the Fifth Monarchy men; this called for a new nominated Parliament like the Little Parliament.10 Others demanded the restoration of the Rump, and this was the only feasible solution. The Army needed money, and needed a Parliament with some show of legality to vote it. The officers had been in close relation with the republicans in the House for some weeks. On April 29 a conference took place between Lambert and other officers representing the Army, and Vane, Ludlow, Haslerig, and Salway on behalf of the Rump.11 The officers stated their conditions: an act of indemnity for the Army, suitable provision for Richard Cromwell, reformation of the law and the clergy, and a "select Senate" — undoubtedly to be composed largely of officers — co-ordinate with the elective house of the legislature. The republicans allowed the officers to believe that these terms would be met. On May 6, therefore, the Council of Officers summoned the Long Parliament as of April 20, 1653, to meet in the name of the good old cause.12 On May 13 Lambert presented to the House a Humble Petition and Address on behalf of the Army. This set forth fifteen requests to the House which were alleged to be the purposes of the restoration. The Army asked that the legislative power be placed in "a Representative of the people, consisting of a House successively chosen by the people, in such way and manner as this Parliament may judge meet; and of a select Senate, co-ordinate in power, of able and faithful persons, eminent for godliness, and such as continue adhering to this cause." The executive power was to be in a Council of State, which should also consist of godly and faithful persons. The Petition contained a stipulation for religious freedom slightly broader than that in the Petition and Advice but less generous than that of the Instrument of Government. The inevitable plea for a due and just regulation of the law and the courts of law and equity was included.
Richard Cromwell acquiesced in his deposition. The Army in Scotland sent a congratulatory address to the Rump, and pledges of adherence came in from various civilian groups. Nevertheless many of those who welcomed the restoration regarded it as a mere temporary expedient. A number of pamphlets and petitions to the Rump urged the revival of the Agreement of the People or the adoption of a Harringtonian constitution. England's Safety in the Law's Supremacy advocated the creation of a unicameral Parliament chosen yearly and the election of executive officers by the Parliament; eleven topics were put beyond the reach of Parliament.The Humble Petition of Divers Well-Affected Persons,13 delivered to Parliament on July 6, combined Leveller ideas with the recommendations of Harrington and proposed an additional institution to safeguard the settlement. It declared for a Parliament elected by all free men, one third of the members to be chosen each year for a three-year term; a Senate to propose and a popular assembly to resolve; the separation of legislative and executive power; and religious freedom for all Christians. In addition it was to be declared treason to propose, in either chamber of the Parliament, the restoration of kingship or the establishment of any single person as chief magistrate, or the abridgment of the freedom of conscience guaranteed by the "fundamental order." A body of about twelve men of the most undoubted fidelity and integrity was to be authorized to arrest and bring to trial any person making such a treasonable proposal, "but for no other matter or cause whatsoever." The petition concluded with the suggestion that the people be permitted to subscribe to the "fundamental orders of the government" if this seemed convenient.
A pamphlet entitled The Leveller14 departed far from the original Leveller principles. It indorsed the recommendations of Oceana and extolled the principle of checks and balances. "And 'tis the Levellers' doctrine, that the government ought to be settled upon such equal foundations of common right and freedom, that no man, or number of men, in the nation, should have the power to invade or disturb the common freedom, or the common course of impartial justice; and therefore that every authority ought to be of small continuance, and the several authorities, to be so balanced each by other, that without such agreement of men, against their own interest, as human prudence cannot think possible, the people cannot suffer any common injury. ..."
The fullest statement of pure Leveller doctrine was in PANARMONIA: Or, The Agreement of the People Revived, published in September. The pamphlet consisted of a document entitled "The Humble Address and Petition of Several of the Justices of the Peace, Gentlemen, and Others, of the County of Gloucester, Well-Affected to the Peace and Settlement of this Commonwealth" and a commentary on the petition by the person who caused it to be published. The introduction stated that the petition had been laid aside for another, and in the end neither was delivered, but the commentator could not in conscience suffer it to lie dormant. The petition was obviously the work of Independents or sectarians. It attributed the disorder of past years to the want of a firm basis to the commonwealth; this had permitted the Cavaliers and the rigid Presbyterians to attempt to promote their particular interests, which were inconsistent with common freedom. No such basis could be established by act of Parliament, for any statute could be repealed or altered by any succeeding Parliament. It was therefore necessary "that some expedient be found out, and seasonably concluded on, which may be a boundary, in reason and common judgment, to all future representatives of the people: which expedient may contain a basis for government stated and made unalterable." The petition proposed, therefore, that an Agreement of the People like that offered to Parliament in 1649 be subscribed by the people, or by the well-affected among them, and thereafter be unalterable. To prevent the infringement of the Agreement by any future Parliament, a special electorate was to be created, consisting only of men "who are expressly against the old monarchy, and against all exercise of force, or of the civil sword in those things which are more especially of God, or over the consciences of men." This electorate was to choose men who would sit, during the session of Parliament, "to observe whether anything be promoted or intended by the Parliament or any particular member thereof, contrary to such an Agreement; and to signify it to the Commonwealth; and to take such other courses as the exigency of such a thing shall require." The petition ended with a request for freedom of conscience, reform of the courts, revival of trade, the encouragement of godliness and virtue, and the settlement of the militia in the hands of trustworthy persons.
The commentator argued that it was altogether reasonable that Parliaments should be restrained from injuring the people. Even if the major part of the people would not subscribe to the Agreement, the well-affected should not permit this to keep them from securing their own rights and liberties. But if the conquered Royalists were left out of the reckoning, the great majority of the people could surely be brought in by threatening to disqualify non-subscribers from voting and holding office and by a campaign of education in all the counties. The stability of the new constitution could be insured by exacting an oath of loyalty, which surely none would violate, and by creating a body of men, one from each county, to see that nothing was done in Parliament contrary to the fundamental law. For good measure, let the Army be kept up. No commonwealth's-man should object to the creation of an assembly to protect the people's liberties from Parliament, there being nothing more probable than that the friends of religious freedom would be outvoted. "Let not then the formalities and punctilios of a commonwealth, become the subject of contention, to the loss of the substance and life of the whole interest."
These pamphlets showed that many of the Independents had come to believe that the power of Parliaments must be limited and that some regular institutional check must be contrived for that purpose. Whereas the Leveller Agreement had provided no sanction but rebellion, and the Instrument and the Petition and Advice none but a legislative veto, the proposals of 1659 looked to the creation of a special organ charged with the defense of the constitution. This was highly distasteful to most of the members of the Rump. In 1649 the House had protested against the Agreement that it would set up a "super-Parliamentary law."15 Men like Haslerig believed that nothing could limit the power which Parliament received from the people. The Rump could safely defy the opinion of ordinary petitioners on this point, but not the opinion of the Army. Fleetwood had written to Secretary of State Thurloe in 1655 declaring that freedom for tender consciences and limitation of the powers and duration of Parliament were the two essentials of any settlement. The select Senate recommended in the Petition and Address of May 13 was intended to achieve these objectives in part. The House passed resolutions adopting several of the proposals in the Army's Petition and Address but took no action with regard to the select Senate. Moreover, it menaced the Army's security as well as its principles. On June 6 it voted that all commissions must be signed by the Speaker, a very imprudent action toward an Army which had recently overthrown a government to preserve its autonomy. The Act of Indemnity passed by the House was not completely satisfactory to the Army, and it gave rise to a dispute between Haslerig and Lambert which threatened the good relations between Parliament and Army.
The rebellion of Sir George Booth was the indirect cause of the final rupture. Booth was a leader of the Presbyterian faction and had sat in Richard's Parliament; apparently he was even then intriguing with Charles Stuart. Like all Royalist plots, Booth's rebellion was badly managed. Lambert easily defeated him and brought him prisoner to London. The officers of Lambert's brigade, exhilarated by this success, framed a document called The Humble Petitions and Proposals of the Officers under the Command of the Right Honorable the Lord Lambert, in the Late Northern Expedition.16 This was signed by fifty officers at Derby on September 16. According to one of the authors, Colonel Mitchell, Lambert was not aware of this action.17 The officers sent the petition to London, Scotland, and Ireland in order to gain the adherence of the whole Army. The petition requested that new life be given to the Humble Petition and Address, that the malignants be ousted from positions of trust, and that those involved in the late rebellions be punished. The controversial request was that Fleetwood, whose commission was but temporary, be appointed permanent commander-in-chief; that Colonel Lambert be raised to Major-General, and made second in command to Fleetwood; and that Colonels Desborough and Monk be made Major-Generals of horse and foot respectively. Probably the purpose of this request was not merely to reward and entrench the leaders of the Army, but to demote Ludlow, whom the House had made a Lieutenant-General, and to protect the Army against intrusions of that sort in the future.
Haslerig learned of the existence of this petition and procured a vote to have it brought to the House. The House resolved that to create new general officers would be "needless, chargeable, and dangerous," and instructed Fleetwood to put a stop to the circulation of the petition. One member proposed that Lambert be sent to the Tower. The officers resented the action of the House and on September 27 held a Council of Officers to frame an address to Parliament. The outcome was the Humble Representation and Petition,18 signed by 230 officers, which Desborough presented to the House on October 5. This petition reaffirmed the loyalty of the Army and asked that those persons who aspersed the Army to the Parliament be punished. It vindicated the right of soldiers as freemen to petition the Parliament. Then came the revolutionary proposal: that no officer be dismissed except by court-martial, and that no officers be appointed by Parliament unless they were first nominated by the Army. The request of Lambert's officers that Fleetwood's commission be made permanent was repeated.
The House so clearly resented this petition that the officers in London, to secure themselves, sought additional signatures. Letters were sent to Monk in Scotland, to the Army in Ireland, and to forces elsewhere asking for concurrence. Monk refused to permit the Humble Representation and Petition to reach his subordinate officers. One of the letters fell into the hands of Colonel Okey and he turned it over to Sir Arthur Haslerig, who of course communicated it to the House. The House voted to cashier the officers who had signed the letter and to put the position of commander-in-chief in a commission consisting of Fleetwood and six adherents of the Rump. This was on October 12. On the following morning Lambert, who was one of the signers of the letter in question, led out troops and turned back the members seeking to enter the House. The Parliament was once more interrupted.
The Council of Officers created a Committee of Safety to administer the country and to contrive a form of government without single person, kingship, or house of peers. In the meantime Monk had declared for the Parliament, and Lambert was sent to York to intercept him in case he marched on England. Negotiations between the English and Scotch armies were then undertaken, and on November 15 a treaty was signed by Fleetwood and by the commissioners for Monk. Both parties agreed to oppose Charles Stuart and to endeavor to settle the government without a chief magistrate or a House of Lords. A general council of the officers of the Army and Navy, consisting of two officers from each regiment, the governors of garrisons, and a delegation chosen by the officers of the fleet, was to be summoned. This council would convoke a Parliament, the qualifications of whose members were to be determined by a commission created for that purpose. But Monk's commissioners had exceeded their instructions. Monk had no wish to settle the dispute and insisted on continuing negotiations. Lambert knew this to be a ruse but he dared not march on Monk, for a war within the Army would be fatal. In the end Monk's strategy was successful.
On November 1 the Committee of Safety at London created a committee of its members to frame a commonwealth government. The committee made little progress, for Sir Henry Vane, who was a member, "was hard to be satisfied, but did much stick to his own apprehensions." Vane had come to a private understanding with Lambert before the rupture between Army and Parliament, and was now acting with the Army. On December 6 the General Council of Officers provided for by the treaty between Fleetwood and Monk convened and superseded the Committee of Safety as a constituent assembly. On December 10 the Council resolved that a Parliament should be summoned to meet on or before February next. The Parliament was to be limited in such manner as should later be provided. Edmund Lud-
low, who like Vane was acting with the Army, protested that this meant merely a continuation of the old order, under which Parliaments must conform to the arbitrary will of the Army or be dissolved, and made a counter-proposal which he described thus:19
... for the prevention of these mischiefs I proposed to the Council of Officers that the essentials of our cause might be clearly stated, and declared inviolable by any authority whatsoever; and that in case any difference should hereafter arise between the Parliament and the Army touching those particulars or any of them, a certain number of persons of known integrity might be appointed by this Council finally to determine the matter.
Ludlow proposed that these guardians of the cause be twenty-one in number, and be known as the Conservators of Liberty. The Council adopted this plan and on December 13 voted "seven principles and unalterable fundamentals."20
I. That no kingship shall be exercised in these nations.
II. That they will not have any single person to exercise the office of chief magistrate in these nations.
III. That an army may be continued and maintained, and be conducted, so as it may secure the peace of these nations, and may not be disbanded nor altered but by the consent of the said Conservators appointed.
IV. That no imposition may be upon the consciences of those that fear God.
V. That there be no house of peers.
VI. That the legislative and executive powers be distinct, and not in the same hands.
VII. That both the assemblies of the Parliament shall be elected by the people of this commonwealth duly qualified.
Ludlow's purpose in joining with the Army was to prevent an irreconcilable breach between the Parliament and the Army. Accordingly, he offered a slate of nominees to be chosen Conservators of Liberty on which the Army and the Parliament were both well represented. But the Council departed from Ludlow's list, replacing Haslerig, Neville, and the other Parliamentarians with persons well disposed toward the Army. On December 14 a proclamation summoning a Parliament to meet on January 24 was issued.
But the support on which the officers relied was by this time disintegrating. One of the last actions of the Rump before its interruption had been the passage of a resolution declaring it high treason to levy taxes without the authority of Parliament. The officers dared not violate this act, and by December the soldiers were grumbling about their pay and beginning to look to Monk for leadership rather than to their own officers. The garrison of Portsmouth went over to the Parliament in early December. On December 13 the fleet declared for the Parliament. By the twenty-second the disaffection among the forces at London had become so great that Whitelocke advised Fleetwood to make terms with Charles Stuart. But Fleetwood had promised Lambert to take no action without him, and Lambert was far away in the north.
On December 24 Fleetwood sent the keys of the House to the Speaker and informed him that the Parliament might sit without hindrance from the Army. The House resumed its session two days later. It put command of the Army in commission and cashiered fifteen hundred officers. Monk now marched to London. To all those persons who solicited him to alter the government he replied that he was the humble servant of the Parliament. But on February 21, 1660, having consolidated his position, he restored to the House the "secluded members" who had been ousted by the Army in 1648. These did the work he expected from them, summoned a new Parliament which restored the King, Monk became the Duke of Albemarle, and others who had played a part in the Restoration were rewarded. Some of the regicides who escaped to Switzerland were given a dinner by the senators of Bern in 1663. Ludlow recounts that one of the hosts, Colonel Weiss, inquired "how it came to pass that we, who for many years had the whole power of the three nations in our hands, were removed from the government without shedding one drop of blood." Ludlow replied that the treachery of Cromwell and Monk was responsible. But of course the failure of all the governments of the Interregnum cannot be explained in terms of personalities. The schisms which divided the country were the true cause. The original cleavage was between the Royalists and the Parliamentarians; then came the division of the Parliamentarians into Presbyterians and Independents; eventually the Independents of Parliament found themselves at odds with the Independents of the Army. Even the Army experienced some disintegration, but military discipline kept this at a minimum. After 1648 no government could stand without the indorsement of the Army, and this meant that every government must be a minority government. The checks and balances employed in the constitutional experiments of Cromwell were attempts to safeguard the position and the principles of the Army and at the same time draw into the government some substantial civilian group. But no civilian party was willing to concede this privileged position to the Army. Consequently, when Oliver and Richard Cromwell came to terms with the Presbyterians the Army was obliged to overthrow the Protectorate. But the relations of the Army with the restored Rump were no more comfortable. The schemes for an accommodation, like Ludlow's Conservators of Liberty, were in substance mere repetitions of the Cromwellian formula and could have been no more successful than the Instrument of Government. As long as the Army stood there could be only military government in England; and the only power that could overthrow the Army was the Army itself. This Monk contrived. The only government that could stand without an army was Stuart kingship, which was made feasible by the conjunction of the Presbyterians with the Royalists. Perhaps the moral to be drawn is that checks and balances are no substitute for unity in the state.
3
THE GOTHIC CONSTITUTION
CHAPTER XVI
Liberty and Authority
DAVID HUME pointed out, at least by implication, that liberty was not regarded as one of the political values in England before the Civil Wars.1 It is true that Peter Wentworth had read in a "little volume," "Sweet is the name of liberty, but the thing itself a value beyond all inestimable treasure."2 It may also be true, as Mark Pattison says,3 that John Selden inscribed in all his books, "Liberty before everything." Nevertheless there was no cult of liberty and no attempt to praise English institutions as affording liberty. Sir Edward Coke, who not infrequently spoke of the liberties of subjects, had in mind the word libertates in Magna Carta, which to him signified three things: the laws of the land; the right of subjects to follow an occupation or practice lawful at common law, without restriction from royal patent or charter; and the franchises or privileges which subjects enjoyed by gift of the king.4Some such restricted meaning was probably in the minds of the Parliamentarians in the earlier years of the Civil War. They represented themselves as the champions of established law, not as innovators seeking a new political good. It was the Levellers who first made liberty the objective of the war. To the Levellers liberty had at least three meanings. They believed that no man was free if he were governed without his own consent, and therefore they demanded manhood suffrage and the abolition of monarchy and the House of Lords. Advocates of the enfranchisement of women were not unknown. Further, they believed that free men must enjoy immunity from government in certain matters, chief of them religious belief; and these matters were put beyond the reach of the national Representative in the successive Agreements of the People. Finally, liberty was a moral quality with religious and mystical implications, closely related to the long-disputed theological doctrine of Christian liberty.
There are some sparks of Freedom in the minds of most, which ordinarily lie deep, and are covered in the dark, as a spark in the ashes. This spark is the image of God in the mind, which is indeed the man (for the divine Image makes the man). ...
'Tis not possible for a people to be too free. True Liberty hath a clear and light principle or rule, and a large compass, a spacious walk, 'tis not limited or circumscribed, but by the bounds of righteousness. Liberty is the daughter of Truth and Righteousness, and hath light within it, as the sun, other lights are borrowed from it. Tyranny is a clog, or an eclipse, to Freedom. God sees good that Liberty should recover but by degrees, that so the world may be balanced with light and knowledge, according to the advance thereof, and be more considerate in her actings. The deeper the foundation, the surer the work. Liberty in its full appearance would darken the eye newly recovered from blindness, the principles thereof are infused to us by degrees, that our heads may be strengthened (not overturned) by its influence.5
With the regicide and the declaration of a commonwealth it became necessary for the Rump Parliament to adopt liberty as a test of political actions. In a Declaration6of September 27, 1649, directed chiefly against the Levellers, the Parliament asserted that greater liberty had been achieved than anyone hoped for by the abolition of kingship and tyranny, the deepest root and foundation of all the people's sufferings, "and à sure foundation laid, for Time to erect upon it the most happy structure of a just liberty, and settled prosperity that may be expected in this world, under the direction and government of successive and equal representatives in Parliament." The literary champions of the Rump adopted as their point of departure the argument that "Royalty and Liberty have never heartily embraced each other, or have shined together in the same splendor or beauty, but one hath either quite extinguished, or eclipsed the other's glory."7 Marchamont Nedham wrote that "there is no difference between king and tyrant"; it is only in a free state that "this invaluable jewel of liberty" can exist.8 These authors, however, were careful to distinguish between an aristocracy, as Henry Robinson called the Rump, or a free state, as Nedham called it, and a "popular anarchy" such as the Levellers desired.
The sectarians who opposed the Rump did so in the name of liberty. John Ware warned that Parliament had the interest of privilege, which was inconsistent with the people's freedom; "and it is possible for a society to exercise tyranny as well as a single person."9 When the Rump was finally expelled, Colonel Robert Overton sent to Cromwell a letter of congratulation: "I doubt not but religion and liberty shall again flourish, whilst tyranny and oppression, like a desolate woman, shall die childless."10 When Cromwell frustrated their expectations, men like Overton — Levellers, Baptists, Fifth Monarchy men — became a permanent opposition to the new settlement.
The justification of the Cromwellian regime was the traditional apology for mixed monarchy; it took a middle course between regal tyranny and popular anarchy. The supporters of the Stuarts employed the same argument to justify the old monarchy. A pamphlet of 1659, A Mirror; Wherein the Rumpers and Fanatics ... May See Their Deformity, complained that "they have destroyed the most glorious and excellent commonwealth, which the world could boast of; a commonwealth which was best balanced, and most equally tempered between royal prerogative, and popular liberty, each supporting and maintaining the other: nor is it possible, for any form of government upon earth, more really to secure the people's rights, than that. ..."
Leaving aside the high Tory and clerical literature of absolutism in the closing years of the reign of Charles II, there was unanimity for two centuries on the proposition that the genius of the English constitution lay in the reconciliation of authority and liberty. Henry Booth, the first Earl of Warrington, wrote that "this government has as it were extracted the good of all other constitutions, having avoided the two extremes of tyranny and an unbounded liberty, no government under the sun being so exact a piece of symmetry, having so equally poised the prerogative and property that they are mutually assistant to each other. ..."11 Viscount Halifax in his eloquent Character of a Trimmer argued that monarchy afforded no liberty, and a commonwealth, no quiet. "We think that a wise mean, between these two barbarous extremes, is that which self-preservation ought to dictate to our wishes; and we may say that we have attained this mean in a greater measure than any nation now in being, or perhaps any we have read of, though never so much celebrated for the wisdom and plenty of their constitutions. We take from one the too great power of doing hurt, and yet leave enough to govern and protect us; we take from the other, the confusion, the parity, the animosities, and the license, and yet reserve a due care of such a liberty, as may consist with men's allegiance." Some such passage came to be a commonplace in any discussion of the English constitution. Frequently Tacitus' comment on Nerva and Trajan, that "res olim dissociables ... principatum ac libertatem," were by them reconciled, was applied to mixed monarchy.12
Sometimes the panegyrist omitted any reference to authority and eulogized England simply as the home of liberty. Addison wrote:
"'Tis Liberty that crowns Britannia's isle, And makes her barren rocks, and her bleak mountains smile."
Here the assumption is that the liberty afforded by mixed monarchy was the utmost compatible with orderly political life. Bolingbroke said that simple democracy produced not liberty but anarchy and tyranny.13 David Hume thought that "In all governments, there is a perpetual intestine struggle, open or secret, betweenAUTHORITY and LIBERTY; and neither of them can ever absolutely prevail in the contest."14 As the result of a series of happy accidents the English had established "the most perfect and most accurate system of liberty that ever was found compatible with government."15 There was some danger of gravitation into monarchical absolutism,16 but a mixture of monarchy was necessary to the existence of liberty.17
Algernon Sidney's definition of liberty was simply an exemption from laws to which one had not consented.18 Additional elements were likely to be added by other writers — Marchamont Nedham had a list of five.19 In the eighteenth century it became customary to instance as proofs of English liberty the right to the writ of habeas corpus and the right to trial by jury. Sometimes indictment by grand jury and freedom of the press were added. French admirers of the British constitution praised also the beauties of the criminal law, a strange opinion indeed.20 In addition to all this there was a tradition which assimilated property to liberty. John Locke considered the property produced by a man's labor to belong to him by the same title as that by which he owned himself.21 Charles James Fox expressed this point of view in the House of Commons in 1783: "Freedom, according to my conception of it, consists in the safe and sacred possession of a man's property, governed by laws defined and certain; with many personal privileges, natural, civil, and religious, which he cannot surrender without ruin to himself; and of which to be deprived by any other power, is despotism."22
An irreverent Irish author could say of one of his characters, "He was of opinion, that the humors of the body insist as much upon liberty and property, and are as sensible of affront as an Englishman"23; nevertheless, these values commanded the general respect of the world. Englishmen who sought to reform Parliamentary representation or to abolish the impressing of seamen did so in order to bring English liberty to full realization. The French authors who criticized the British constitution adversely usually complained not that it was too free, but that it fell short of this goal. In the course of the eighteenth century liberty came to be quite generally regarded as a prime political value, and very commonly it was identified with the mechanism of the mixed monarchy.
CHAPTER XVII
The Gothic Constitution
BEFORE the Civil Wars most Englishmen believed English institutions to be indigenous to England. A few scholars held a contrary view — Bacon, for example, and Spelman and Selden. But the opinion of Sir Edward Coke was more representative: "And here it is worthy of consideration, how the laws of England are not derived from any foreign law, either canon, civil, or other, but a special law appropriated to this kingdom, and most accommodate and apt for the good government thereof, under which it hath wonderfully flourished, when this law hath been put in execution, and therefore as by situation, so by law it is truly said,"Et penitus toto divises orbe Britannos."1
During the Civil Wars the Levellers argued that the liberty which they demanded was their birthright as Britons, wrongfully curtailed by the conquering Normans. But others looked for continental origins. Captain Edmund Hall, whose Digitus Testium, published in 1650, indorsed mixed monarchy as the best government in the world, declared that "The original of the subject's liberty came first out of Germany, where saith Tacitus, nec regibus libera aut infinita potestas erat." This seems to be the beginning of the myth which traces English liberty and English institutions to the German forests. Without intending to do so, however, James Harrington played a much more important part in launching the myth. Harrington took from Donato Giannotti, a sixteenth-century Florentine author, the latter's twofold periodization of political history.
Giannotti, the most excellent describer of the commonwealth of Venice, divideth the whole series of government into two times or periods. The one ending with the liberty of Rome, which was the course or empire, as I may call it, of ancient prudence, first discovered unto mankind by God himself, in the fabric of the commonwealth of Israel, and afterwards picked out of his footsteps in nature, and unanimously followed by the Greeks and Romans. The other beginning with the arms of Caesar; which extinguishing liberty were the transition of ancient into modern prudence, introduced by those inundations of Huns, Goths, Vandals, Lombards, Saxons, which breaking the Roman empire, deformed the whole face of the world, with those ill features of government, which at this time are become far worse in these western parts, except Venice, (which escaping the hands of the barbarians, by virtue of its impregnable situation, hath had her eye fixed upon ancient prudence: and is attained to a perfection even beyond her copy) .2
Ancient prudence was bicameral republicanism, which afforded an "empire of laws and not of men." Modern prudence took the form of the "Gothic balance" instituted by the invading tribes from the north.3 Harrington appears to have fixed upon the Goths as the originators of modern prudence because of their prominence in the overthrow of Rome. He may have been influenced by the Italian use of "Goth" as a term of contempt or by Tacitus' statement that the Gothic monarchy was the most severe in Germany, although not entirely incompatible with liberty. The Gothic balance was a monarchy and a powerful landed aristocracy, with the commons negligible because they had small share in the land. Harrington had no respect for this form4; "... the former government was not only a ship, but a gust too; could never open her sails, but in danger to overset herself: neither make any voyage, nor lie safe in her own harbor. ... Your Gothic politicians seem unto me rather to have invented some new ammunition, or gunpowder, in their King and Parliament (duo fulmina belli) than government." For over all of Europe the Gothic balance had blown up. Harrington urged Englishmen to return to the rules of ancient prudence, a course which was now possible since the commons held most of the land.
It appears that Harrington's borrowed periodization and the Gothic attribution became current very soon. Algernon Sidney, in his Discourses concerning Government, written for the most part in 1680, said, "All the northern nations, which, upon the dissolution of the Roman empire, possessed the best provinces that had composed it, were under that form which is usually called the Gothic polity."5 This was mixed monarchy, which was the best form of government.6
Harrington's friend and disciple, Henry Neville, in his Plato Redivivus of 1681 attempted to reconcile the republican ideal of liberty with Stuart monarchy. Limited monarchy had been established by the Goths when they overran Europe, though whether they brought it with them or instituted it after the conquest could not be known. King and Lords, or King, Lords, and Commons composed the government. The Lords owned a great part of the land and by means of feudal tenures controlled the rest; the government was therefore nearer an aristocracy than anything else. But now in England the peers had lost almost all their lands to the commons. Power was founded in property, but the English government ignored this rule; consequently, having been decaying for nearly two hundred years, it "is in our age brought so near to expiration, that it lies agonizing." Nevertheless there was an easy cure without sacrificing the monarchy. Let four executive councils be chosen by Parliament for the control of foreign relations, the command of the military and naval forces, the appointment of officers, and the administration of the revenues. The King would retain his present powers in all other fields, save that he was to lose his voice in legislation. The House of Lords was needed as the senate which proposed measures to the popular chamber, the House of Commons; but new Lords should be created only by act of Parliament.
Thereafter the mixed constitution of King, Lords, and Commons was commonly called Gothic. Addison wrote, "I have often heard of a senior alderman in Buckinghamshire, who, at all public meetings, grows drunk in praise of aristocracy, and is as often encountered by an old justice of the peace who lives in the neighborhood, and will talk you from morning till night on the Gothic balance."7 A large number of wearisome speeches were made in Parliament in the course of the eighteenth century in praise of the Gothic constitution, the mixed monarchy which assured liberty and all the virtues of monarchy, aristocracy, and democracy. Montesquieu, referring to Tacitus, said, "This beautiful system was invented first in the woods." The only considerable writer to deny the Gothic attribution was Dean Swift, who in his anonymous Discourse of the Contests and Dissensions between the Nobles and the Commons in Athens and Rome argued that mixed government was founded in
nature and reason, and pointed to the states of the ancient world, as well as Gaul and Germany, in proof.
Harrington's reading of English history and his law of the balance became nearly as popular as his theory of Gothic origins. Sir William Petty, Gilbert Burnet, John Trenchard, John Toland, Dean Swift, Joseph Addison, Bolingbroke, and other well-known writers accepted Harrington's thesis. In the eighteenth century the law of the balance became a commonplace of political discussion and often served as the basis for formal treatises. David Hume alone made a forthright rejection of the proposition that power follows property.8 It is a little perplexing that the very writers who called the contemporary mixed monarchy a mere continuation of Gothic institutions also accepted Harrington's assertion that the shift in the ownership of land had caused the earlier political system to disappear. Bolingbroke undertook to solve this difficulty by asserting that the present mixed constitution was a reversion to the true Germanic form; the feudal monarchy which Harrington had called Gothic was an illegitimate interlude.9
Despite occasional references to Polybius and the classical cult of liberty, eighteenth-century England looked to the Germany of Tacitus for its antecedents. The term Gothic, which Harrington had used in derision, became in politics honorific, and this in spite of a general acceptance of Harrington's ideas.
CHAPTER XVIII
Checks and Balances
AFTER 1660, and especially after 1688, the idea that the English constitution was in a state of salutary equilibrium was commonplace. King, Lords, and Commons were so poised that no estate could transgress the rights of any other or threaten the liberty which was supposed to result from this partition of power. Some writers, to be sure, denied the possibility of balance. The republicans of the Interregnum had argued against mixed monarchy, asserting that there must be somewhere a single supreme authority; and Hobbes and Filmer agreed. The non-juror Charles Leslie, defending Stuart monarchy in the reigns of William and Mary, William, and Anne, derided the idea of divided authority. In attacking Swift's Discourse of the Contests and Dissensions he insisted that "all power is one, and indivisible, whether in the hands of one or many. And several independent powers, in the same government, is anarchy and confusion."1 But of course the official position was not that the three partners in legislative power were independent. There was a single sovereign authority, the exercise of which required the co-operation of the three powers.The arguments for balance were for the most part those advanced during the Interregnum for mixed monarchy. In addition, however, some writers indorsed the principle of balance as a good thing in itself, quite apart from the advantages derived from the specific balance of monarchy, aristocracy, and democracy. The idea of balance of power in international affairs was sufficiently familiar to offer a persuasive analogy. Swift insisted that balance abroad and at home was necessary for stability.2 Occasionally the partition of power was justified as a general principle of politics — this idea appeared as early as 1644, when Goodwin and Nye in their introduction to John Cotton's Keys of the Kingdom commended "a suitable and due-proportioned distribution and dispersion .... a dispersion of several portions of power and rights into several hands, jointly to concur and agree in acts and processes of weight and moment. ..." Not uncommon, but less frequent than one might expect, was the analogy to mechanics. John Trenchard in his A Short History of Standing Armies in England (1698) made the fullest use of this argument.
A government is a mere piece of clockwork; and having such springs and wheels, must act after such a manner: and therefore the art is to constitute it so that it must move to the public advantage. It is certain that every man will act for his own interest; and all wise governments are founded upon that principle: so that this whole mystery is only to make the interest of the governors and governed the same. In an absolute monarchy, where the whole power is in one man, his interest will be only regarded; in an aristocracy the interest of a few; and in a free government the interest of everyone. This would be the case of England if some abuses that have lately crept into our constitution were removed. The freedom of this kingdom depends upon the people's choosing the House of Commons, who are a part of the legislature, and have the sole power of giving money. Were this a true representative, and free from external force or private bribery, nothing could pass there but what they thought was for the public advantage. For their own interest is so interwoven with the people's, that if they act for themselves (which every one of them will do as near as he can) they must act for the common interest of England. And if a few among them should find it their interest to abuse their power, it will be the interest of all the rest to punish them for it: and then our government would act mechanically, and a rogue will be as naturally hanged as a clock strike twelve when the hour is come.
Blackstone echoed this idea in his Commentaries.3
And herein indeed consists the true excellence of the English government, that all parts of it form a mutual check upon each other. In the legislature, the people are a check upon the nobility, and the nobility a check upon the people, by the mutual privilege of rejecting what the other has resolved: while the king is a check upon both, which preserves the executive power from encroachments. And this very executive power is again checked and kept within bounds by the two houses, through the privilege they have of inquiring into, impeaching, and punishing the conduct (not indeed of the king, which would destroy his constitutional independence; but, which is more beneficial to the public) of his evil and pernicious counsellors. ... Like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either, acting by itself, would have done; but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community.
Two great constitutional disputes turned on the principle of balance. The first was the question of the independence of the Lords. Queen Anne in 1712, at the advice of her Tory ministry, created twelve peers, and this was denounced by the Whigs as an attempt to bring the Lords under the influence of the crown. In 1719 the Whigs introduced the Peerage Bill, which proposed to restrict the king's power of creating peers. Sir Richard Steele at once attacked the bill in a serial publication called The Plebeian.4 The Commons, he argued, had nothing now to fear from the crown, but much to fear from the Lords. The bill, by putting them beyond the influence of the crown, would create an aristocracy, a government which was "one of the worst sorts of knavery." Addison undertook to answer Steele in a pamphlet called The Old Whig. Addison argued that the balance of the constitution required three separate powers. If the Lords were under the influence of the crown, the Commons might next be overcome. The bill would take from the crown the power of bribing members of the Commons with peerages and would thus promote the independence of the Commons. Moreover, it would actually increase the power of the Commons at the expense of the Lords, for "of all maxims, none is more uncontested than that power follows property," and the bill would prevent the drawing off of wealthy commoners to the Lords. Other controversialists presented the same arguments as Steele and Addison. Fortunately for Great Britain, the bill was defeated.
A similar issue arose in connection with the Scottish peers who under the Act of Union were elected to sit in the House of Lords. Six Scottish lords in 1735 presented a petition to the House, alleging that at the last election a "King's list" of peers had been chosen by corruption and intimidation.5 On this petition James Erskine, Lord Grange, founded his The Fatal Consequences of Ministerial Influence (1736). Erskine was a bitter enemy of Walpole and quite probably was an advisor in the framing of the petition. The pamphlet deplored ministerial influence as a threat to the independence of the Lords, and argued that "the true life and spirit of our constitution consists in keeping the three political powers, of which it is composed, always in an equilibrium. ..."
The second great controversy turned on the independence of the House of Commons. Here were at issue the developing cabinet system, which bridged the gap between legislature and executive, and also the administration of royal patronage by the prime minister, a device very important in control of the House of Commons. The objects of the attack were Sir Robert Walpole, who was actually prime minister from 1721 to 1742, and later George III, when he attempted to control the Commons in the years 1762-1783.
The English had always associated the idea of a chief minister with Turkish despotism: such a grand vizier was a danger both to subjects and to his royal master. Clarendon had vigorously rejected the suggestion that he become "first minister" of Charles II.6 According to orthodox theory the king should exercise the executive power, subject to the laws, and should participate as an independent member of the legislature, eschewing of course the advice of evil counsellors. The Lords and Commons should likewise act each in complete independence of the other partners. This curious scheme was unworkable. Charles II and James II succeeded in bridging the gap between legislature and executive, first by bribery and then, after the stormy interlude of the Oates plot, by reliance on the partisan loyalty of the Tories. In the reigns of William and, later, of Anne it became even clearer that there must be some sort of mutual dependence between the legislature and the executive. A useful device for achieving this was the introduction into the House of Commons of "placemen" whose interests identified them with the ministers. Walpole regularized this practice and by pensions and places retained command of the House of Commons for twenty-one years. This was, of course, contrary to accepted constitutional morality. Acts forbidding certain placemen and pensioners to sit in the House were passed in the reigns of William and Mary, William, Anne, and George I, but these did not end the evil.7 The new system of premiership was likewise attacked, and it was repeatedly asserted that the name and idea of prime minister were inconsistent with the constitution. Walpole never admitted that he held such an office, although he did speak of "ministers," "government," and "the administration."
Anthony Hammond in 1698 protested against a House of Commons "abounding with officers" because this would obstruct the House in its important duty of "calling ill ministers to account."8 Later writers made the same point, that the separation of legislature and executive was necessary in order that the first might censure the second. Furthermore, it was argued that the wholesome balance within the legislature was destroyed by ministerial influence, which allowed the crown to corrupt the Commons. Bolingbroke and The Craftsman were among the most vigorous critics of Walpole's system of corruption, which, they alleged, jeopardized English liberty. The Craftsman went further and urged that the chief minister was a threat to the king as well; by engrossing the power of the king, he could make the latter his slave.9 John Douglas, who later became Bishop of Salisbury, repeated this warning in his Seasonable Hints from an Honest Man in 1761: "It used to be looked upon as the perfection of the English government, that the supreme
power is divided between the three estates of the kingdom, but according to the doctrine of the above-mentioned monopolizers of places, the present distribution of power is a faulty one; and, in order to correct this fault, a cabal of ministers must be allowed to erect themselves into a fourth estate, to check, to control, to influence, nay, to enslave the other three. If the advocates for governing by such a system would speak out, they must admit this to be the principle on which all their politics proceed. ..."
Walpole denied that the crown or the administration influenced members of the Commons. "I do not believe, that ever any minister or placeman opposed, or supported a question in this House, contrary to his private sentiments, and only because he was a minister or placeman."10 Others, however, were more candid. TheLondon Journal, an administration organ, declared the rigid separation of legislature from executive to be Utopian,11 and asserted that if the king were not permitted to influence the Commons by patronage he would be overborne by the Commons.12 David Hume argued in all seriousness that corruption was necessary to maintain the balance of the constitution. The House of Commons, he said, had the power to command the whole government. The King's legislative power had become little better than a form. His executive power was, of course, subject to the legislative; in addition, it depended upon grants of money, which were at the will of the Commons. As for the Lords, they could stand only with the assistance of the crown and were inconsiderable in themselves. Hence it was fortunate that "The crown has so many offices at its disposal, that, when assisted by the honest and disinterested part of the House, it will always command the resolutions of the whole so far, at least, as to preserve the ancient constitution from danger. We may, therefore, give to this influence what name we please; we may call it by the invidious appellations of corruption and dependence; but some degree and some kind of it are inseparable from the very nature of the constitution, and necessary to the preservation of our mixed government."13
The attack upon George III did not involve a criticism of the ministerial system, for his chief offense was in acting as his own prime minister. But it was argued that the crown, through patronage, was upsetting the balance of the constitution. So Edmund Burke wrote: "The power of the crown, almost dead and rotten as Prerogative, has grown up anew, with much more strength, and far less odium, under the name of Influence."14 Burke's Economy Bill was intended to weaken the crown by reducing patronage. The prospect that the East India Act might increase the number of places at the disposal of the crown alarmed some; Wilkes spoke against it for that reason,15 and Beaufoy warned that the Act made imperative Parliamentary reform to safeguard the liberties of the people.16
But by now all factions had accepted the ministerial system and ministerial responsibility to the Commons. This meant, in substance, that the old balance was gone. An anonymous pamphlet of 1783, A Dialogue on the Actual State of Parliament, repeated the arguments of David Hume. Against the proposal of Parliamentary reform it contended that a free House of Commons would overthrow the constitution. In form the king possessed certain prerogatives, but he could not exercise them in defiance of the Parliament, "and a right, which in prudence can never be exerted, amounts in fact to no right at all." But the Lords were under the influence of the crown, which meant that ultimately power rested with the Commons. This was the necessary outcome of the "alteration in the balance" introduced by Henry VII, who by allowing the peers to alienate their land and by encouraging commerce caused the enrichment of the Commons. But the House of Commons was influenced by the crown and the Lords as well as by the people; the present mixture lay within the single House, which possessed decisive power. A reform which ousted the influence of king and peers would destroy the happy mixed monarchy of Great Britain.
This was not an unapt description of the situation. The balance of three powers had retired to the House of Commons. Nevertheless formal apologetics continued in the old vein. In 1784 Fox invited the Commons to defy the King17: "Let us preserve the beauty of our constitution; of that happy practical equilibrium which has all the efficiency of monarchy, and all the liberty of republicanism; moderating the despotism of the one, and the licentiousness of the other; that which was in theory proved to be so fallacious, but which has been, since the Revolution, so pure and so effectual." On this his editor, Lord John Russell, commented18: "But the practice, as well as the theory, of our mixed government shows, that when two of the powers of the state cannot agree, and the business of the state is stopped, the only appeal is to the people at large. ... Any other doctrine would invest the House of Commons, elected for the ordinary business of the state, with a supreme power over every branch of it. This supreme power must vest somewhere; according to our constitution, it vests in the common assent of the realm, signified by the persons duly qualified to elect the members of the House of Commons."
Russell learned this from the passage of the Reform Bill of 1832. That event demonstrated that nothing could stand against a determined public. When it became clear that the king would create enough peers to carry the Bill through the Lords, the Duke of Wellington protested, "there is no doubt that the constitution of this House and of this country is at an end."19 This speech of Wellington was what Disraeli mockingly named it, "the funeral oration of the Venetian constitution."
CHAPTER XIX
The Alterability of the Constitution
IN THE early Stuart period English government was thought to be grounded on various "fundamental laws." Sir Edward Coke and some others appear to have believed that these fundamental laws were inviolable and could not be changed even by king and Parliament. Francis Bacon as a lawyer agreed with this view, but as a political theorist he held a contrary opinion: Parliament was supreme and the source of law, and therefore was uncontrollable. It would even be possible for Parliament to transfer its power to the king or to change the government from a monarchy to an aristocracy or democracy.1During the Civil Wars it became usual to define the English government as a mixed monarchy; this implied that none of the three partners had a right superior to the others. The question then arose, Who should determine disputes between the partners? Philip Hunton in his Treatise of Monarchy (1643) confessed that in the nature of things there could be no arbiter and every man must follow his own conscience. But the more radical parties rejected the theory of mixed monarchy. The Levellers insisted that power derived from the people, who could therefore reshape the government at will. The Rump politicians argued for the sovereignty of the House of Commons. John Cook, in the address which he prepared for the trial of King Charles, asked: "How is it possible to imagine two supreme powers in one nation, no more than two suns in one firmament? If the king be supreme, the parliament must be subordinate; if they supreme, then he subordinate. But then it is alleged that the king challenged a power only co-ordinate, that the parliament could do nothing without him, nor he without them. Under favor, two powers co-ordinate is as absurd as the other; for though in quiet times the commons have waited upon the king, and allowed him a negative voice in matters of less concernment, where delay could not prove dangerous to the people; yet when the commons shall vote that the kingdom is in danger, unless the militia be so and so settled, now, if he will not agree to it, they are bound in duty to do it themselves. ..."2
The Stuart Restoration meant a revival of the ideas of Coke. So it is natural to find the judges declaring in Godden v. Hales in 1686,3 as Coke had done earlier, that no act of Parliament could abridge the King's dispensing power. But if this was Stuart doctrine, it was not the opinion of the Whigs. In the debates over the bill to exclude the Duke of York from the succession to the throne in 1680 it was said in the Commons that "such a bill would be against law and conscience"; this argument drew the rejoinder, "Sir, I admire to hear that honorable member make a doubt as to the legality of this bill; certainly, Sir, our legislative power is unbounded, and we may offer to the Lords, and so to his Majesty, what bills we think good. And it can as little be doubted, that the legislative power of the nation, King, Lords, and Commons, should want a law to make laws; or that any laws should be against what laws they make."4
The Exclusion Bill failed, but the action of the Convention Parliament in installing William and Mary in 1689 once more raised the question of sovereignty. The Parliament itself evaded the issue, but Orangeist pamphleteers boldly claimed a supreme power for Parliament or people. An Answer to a Paper, Entitled, Reflections on the Prince of Orange's Declaration (1688) declared,
I allow that a lawful authority, by exceeding their just bounds, may act unlawfully; but the legislative power cannot, since all over the world the supreme power ever was absolute, be it in one or more.
The Earl of Danby, in The Thoughts of a Private Person (1689)," observed:
If the King without the Parliament could determine the difference, he would be arbitrary, and if the people or the Parliament could determine it without him, they would be supreme, and then it could be no monarchy; and if the judges had the determining power, they would get the supremacy of both .... seeing this cause transcends the executive part of the government, it cannot be decided by legal process, but by lawmakers, and if they cannot agree, men are at liberty to join with that side they judge in the right: reason and conscience must be their guide, the law cannot. ...
Dr. Matthew Tindal's Essay concerning Obedience (1694) posed the question of a difference between King and Parliament:
But it may be asked, Who shall judge between them, if either should usurp the right that belongs to the other?
I answer, None can judge as a superior in whose sentence both sides must acquiesce, because that would suppose someone superior to the supreme legislative power: or if the judges of the land should have an absolute power to determine in these matters, and people should be obliged to submit to whatever they decree, they could make either party the supreme legislative power, or themselves, by declaring themselves to be so. ...
Where people have not parted with their rights, it must be presumed they have retained a power to judge whether those rights are invaded, or else the design of preserving those rights would be to no purpose.
When it was proposed in 1716 that Parliament extend the tenure of the current House of Commons from three years to seven, the issue arose once more. Against the Septennial Act it was contended that the members of the Commons held a mandate for only three years, and could not extend their own authority. Archibald Hutcheson argued in the House:
But I have a much stronger objection against this part of the bill, and cannot help being yet of opinion, that if it should go through all the forms of an act of Parliament, pass both Houses, and have the royal assent, that it will still remain a dead letter, and not obtain the force of a law; for I am warranted by one of our greatest lawyers, to affirm, "That an act of Parliament may be void in itself," and if there are any cases out of the reach of the legislature, this now before us must be admitted to be one; for what can be more against common sense and reason, than to be a felo de se, to destroy that constitution, or any essential part thereof, upon which our existence in our political capacity depends?6
To this the reply was made that Parliament possessed supreme power.
Viscount Bolingbroke believed that "There must be an absolute, unlimited, and uncontrollable power lodged somewhere in every government"7 but he followed Locke in denying that this absolute power was arbitrary. Consequently he repudiated Bacon's opinion, and argued that a cession of power by the Parliament to the crown would be unlawful.8
An attempt of this kind would break the bargain between the king and the nation, between the representative and collective body of the people, and would dissolve the constitution. ... From hence it follows, that if the constitution was actually dissolved, as it would be by such an attempt of the three estates, the people would return to their original, their natural right, the right of restoring the same constitution, or of making a new one.
Obviously this argument derived from the scheme by which Locke undertook to identify moral with legal rights for the paradoxical purpose of establishing a legal right of rebellion, and was subject to all the criticisms to which the social contract theory was exposed.
A lawyer could hardly afford to legalize rebellion. Blackstone firmly upheld the sovereignty of Parliament.
For, as to such public oppressions as tend to dissolve the constitution and subvert the fundamentals of government, they are cases which the laws will not, out of decency, suppose; being incapable of distrusting those whom it has invested with any part of the supreme power; since such distrust would render the exercise of that power precarious and impracticable. For, wherever the law expresses its distrust of abuse of power, it always vests a superior coercive authority in some other hand to correct it; the very notion of which destroys the idea of sovereignty.9
Samuel Johnson expressed orthodox doctrine in his Taxation No Tyranny (1775) :
In sovereignty there are no gradations. There may be limited royalty, there may be limited consulship; but there can be no limited government. There must in every society be some power or other from which there is no appeal, which admits no restrictions, which pervades the whole mass of the community, regulates and adjusts all subordination, enacts laws or repeals them, erects or annuls judicatures, extends or contracts privileges, exempt itself from question or control, and bounded only by physical necessity.
Apparently the issue was seriously raised for the last time, though in a somewhat oblique way, by George III. In 1795 he asked Chief Justice Kenyon's opinion of a proposal for Catholic emancipation. Such an act, said George, would violate the Bill of Rights, the Act of Settlement, and the Act of Union with Scotland, all of which were intended to be permanent, as well as other statutes binding upon the King and the members of Parliament.10
Is it not advisable, therefore, to put an end at once to a claim that is inconsistent and incompatible with the terms of the original contract between the King and the people, and subversive of that part of the Constitution formed for the preservation of the Protestant Religion established by law? The same great fundamental statutes, which secure the rights and liberties of the people, secure also the Protestant Reformed Religion as by law established, and if that part of them which secures our religion is to be repealed now, what security remains for the preservation of our civil rights and liberties? Is it not therefore necessary to extinguish such vain expectations by an explicit declaration that they cannot be complied with?
Kenyon replied that:
It is a general maxim that the supreme power of a State cannot limit itself.
Either of the Houses of Parliament may, if they think proper, pass a Bill up to the extent of the most unreasonable requisition that can be made; and, provided sound policy, and a sense of the duty they owe to the established religion, do not operate on their minds so as to prevent their doing what is improper, there is no statute law to prevent their entertaining and passing such Bill, to abolish the supremacy, and the whole of the government and discipline of the Church of England, as now by law established.
Kenyon concluded with the cautious suggestion that the King, "being constitutionally advised," must decide for himself whether approving a bill would violate his coronation oath.
The suggestion that the king's veto might be used to protect the constitution was repeated in the debates on Irish emancipation in 1913.11 But even this preposterous proposal did not amount to the proposition that a Parliament of King, Lords, and Commons could not alter the constitution in any manner it chose. The omnipotence of Parliament was now a settled dogma of the British constitution.
CHAPTER XX
The Separation of Powers
FROM 1660 to 1688 the Cromwellian analysis of powers into legislative and executive was somewhat eclipsed by the legal theory of the restored Stuart monarchy, which found law and prerogative more congenial categories of thought. Nevertheless the Cromwellian ideas were still employed and with the Glorious Revolution were restored to full authority. A large number of Whig pamphlets argued that supreme authority lay with the legislative power; the executive power of the king was inferior to the legislative and might be forfeited for abuse. It was necessary, of course, to deal with the embarrassing fact that the king had a share in the legislative power. This difficulty was usually surmounted by an argument like that of Locke, who contended that the executive had no native right but was created merely for convenience in order that there "should be a power always in being which should see to the execution of the laws that are made"; consequently the executive held his power in trust and it reverted, upon misfeasance, to the associated people, who might then choose another executive officer. Locke's Second Treatise was a fair example of the literature of the time.As we have seen, the twofold analysis had been used for the same purpose against Charles I. But this political use was a consequence of the separation of the two functions rather than an argument in favor of such a separation. The separation of legislative from executive powers had been advocated by the Levellers primarily for the advantage of the individual, and only secondarily to implement popular government. The arguments of the Levellers had become a part of the permanent heritage of English constitutional thought. The question was extensively debated when the bill for the attainder of Sir John Fenwick was introduced in Parliament in 1696. Macaulay thus summarized the arguments against the bill:1
It was much less easy to answer the chiefs of the opposition when they set forth the danger of breaking down the partition which separates the functions of the legislator from those of the judge. "This man," it was said, "may be a bad Englishman; yet his cause may be the cause of all good Englishmen. Only last year we passed an Act to regulate the procedure of the ordinary courts in cases of treason. We passed that Act because we thought that, in those courts, the life of a subject obnoxious to the government was not then sufficiently secured. Yet the life of a subject obnoxious to the government was then far more secure than it will be if this House takes on itself to be the supreme criminal judicature in political cases." Warm eulogies were pronounced on the ancient national mode of trial by twelve good men and true; and indeed the advantages of that mode of trial in political cases are obvious. ... Every one of them must hear every word of the evidence and every argument used on either side. The case is then summed up by a judge who knows that, if he is guilty of partiality, he may be called to account by the great inquest of the nation. In the trial of Fenwick at the bar of the House of Commons all these securities were wanting.
The bill passed, but this was the last attainder in English history.
The separation of powers was a corollary of the proposition that law is necessarily general and prospective. This too was a well-settled tradition. John Locke recognized four "bounds which the trust that is put in them by the society and the law of God and Nature have set to the legislative power of every commonwealth, in all forms of government." The first of these was, "They are to govern by promulgated established rules, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at Court, and the countryman at plough."2 Blackstone said that law "is a rule; not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal."3 William Paley said of the separation of powers, "This fundamental rule of civil jurisprudence is violated in the case of acts of attainder or confiscation, in bills of pains and penalties, and in all ex post facto laws whatever, in which parliament exercises the double office of legislature and judge."4
Another well-settled opinion was the desirability of the independence of the judiciary from the crown. This did not imply that the judicial function was qualitatively different from the executive; rather, it was a subdivision of the executive power in which special considerations with regard to personnel obtained. Blackstone believed the judicial power to be part of the executive,5 but he favored the independence of judges.
In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure, by the crown, consists one main preservative of the public liberty, which cannot subsist long in any state unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would then be regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overbalance for the legislative.6
This opinion was the consequence of the contests with the crown in the seventeenth century. The conduct of the judges in the reign of Charles I had persuaded many people that the judges should hold office on good behavior rather than at the will of the king. The House of Lords in 1641 petitioned the king to appoint the judgesquamdiu se bene gesserint, rather than durante beneplacito, and Charles agreed. But Charles II and his successors reverted to the earlier practice, and it was not until the Act of Settlement of 1701 that judges became independent of the crown. That act provided that judges should be removed only upon address to the king by the two Houses.
What was desired was the independence of the judiciary from the crown. Since the crown possessed the executive power, the rule was sometimes formulated as independence from the executive. This, however, was misleading. Were it not that the executive chanced to possess also a share in the legislative power, the judges would not have occupied the strategic position they did. In controversies between the king and Parliament, the king could by his veto power prevent any legislative resolution of the dispute. If he controlled the judges also, he could secure the decision of the dispute in his own favor. This is what actually happened in Stuart days. Properly stated, then, the argument for the independence of the judiciary resulted from the fact that the executive possessed a share in the legislative power. It was a dismemberment of executive power in order to compensate for the intrusion of the executive into the legislature.
The twofold enumeration of legislative and executive did not absolutely exclude other powers. It is interesting that the elder Pitt, in arguing for repeal of the Stamp Act, distinguished between the legislative and the taxing powers: Parliament had the right to legislate for the colonies, but not to tax them.7 There was a tendency, however, to assimilate such secondary powers to the legislature or the executive as peculiarly appropriate to one or the other.
John Locke gave particular attention to one of these secondary powers, In addition to the legislative and the executive he recognized the "federative" power.8 This was the conduct of foreign relations, which he vested in the executive officer as a distinct function. A few later English writers adopted Locke's threefold enumeration. Montesquieu took Locke as his point of departure, but then wandered away in a manner that requires particular description.
The famous sixth chapter of Book XI of the Spirit of the Laws, "Of the Constitution of England," recognizes three powers: the legislative, the executive power in foreign relations (Locke's federative power), and the executive power in internal matters. The third category is then subdivided. "By the third, he [the magistrate] punishes crimes or adjudicates disputes between individuals. The latter we will call the power of judging; the former, simply the executive power of the state." At this point Montesquieu either drops the federative power or assimilates it to the executive power proper, and immediately he confronts us with a new triumvirate — legislative power, executive power, and the power of judging. If the legislative power is joined to the executive, "there is no liberty, for one may fear that the same monarch or senate will enact tyrannical laws, to execute them in a tyrannical manner." If the power of judging should be joined to the legislative power, "the power over the life and liberty of citizens would be arbitrary; for the judge would be legislator. If it were joined to the executive power, the judge could have the strength of an oppressor." The discussion continues: "Of the three powers of which we have spoken, that of judging is in a sense nothing (en quelque façon nulle). There remain but two. ..."
Montesquieu next offers the familiar description of the wholesome balance of British institutions. A hereditary monarch possesses independently the executive power, and a share in the legislative; a house of peers moderates the commonalty; the House of Commons guarantees liberty.
Here then is the fundamental constitution of the government which we are discussing. The legislative body being composed of two parts, the one will limit the other by their mutual power of rejecting. Both will be checked by the executive power, which will itself be part of the legislative.
These three powers will produce a state of repose or inaction. But, since in the nature of things they must move, they will be forced to move in concert.
It will be noted that the puissance de juger was in the beginning a part of the executive power, and in the end was "in a sense nothing." This seems actually not to depart from the established English view that the judicial function was a part of the executive. The reason for separating the judicial from the executive (that if they were joined this union would afford "the strength of an oppressor") is very vague. But if we remember that Montesquieu believed that "The executive power ought to be in the hands of a monarch" who should have a legislative veto, it is possible to put a content in the passage. A king who could arrest action by the legislative power, and through a control of the judiciary could resolve disputes with the Lords and Commons in his own favor, would indeed have the strength of an oppressor. This is precisely what Blackstone said, and Montesquieu, like Blackstone, drew upon traditional English opinion. As we have seen, Englishmen had believed for a hundred years that in a mixed monarchy the judges must enjoy secure tenure.
This reasoning has no applicability to a republic. Nevertheless, in Chapter 6 Montesquieu says that "In the republics of Italy, where the three powers are united, there is less liberty than in our monarchies." But in this connection no reason is given for separating the judicial from the executive power; the only argument is for distinguishing the legislative from the other two. "The same body of magistrates has, as executive, all the power which it has given itself as legislature. It can ravage the state by its general decrees; and, as it has also the power of judging, it can destroy every citizen by its particular decrees." Chapter 6 contains nothing more of importance on the judicial function in a republic except the recommendation that it not be placed in a standing body but in juries like the Athenian, so that people will fear the office rather than the magistrate.
In Chapter 18, however, there is a discussion of the judicial power in the Roman republic. Here it is not the separation but the conjunction of powers that Montesquieu advocates. In order to counterbalance the people, the Senate needed a share not merely in the legislative and executive powers but in the power of judging. "When the Gracchi deprived the Senators of the power of judging, the Senate could no longer resist the people. In order to favor the liberty of the citizen, they [the Gracchi] struck at the liberty of the constitution; but the former perished with the latter."
Although Montesquieu is firm on the separation of legislative from other power, the only point at which he offers an argument for discriminating the judicial from the executive power is in the discussion of the British constitution. In a monarchy he desires security of tenure for judges; in a republic he desires a jury system and the right of the citizen to participate in choosing his jurors or judges. These proposals do not make the judicial function a third co-ordinate power; indeed, it is "in a sense nothing." Nor does Montesquieu recommend that government be a balance of three abstract powers. On the contrary, the balance Montesquieu lauds is the familiar balance of the king, representing the unitary principle and possessing a share in the legislative power as well as the executive power, against two social classes which are themselves pitted against each other in legislation as well as against the king.
Nevertheless Montesquieu's executive power was soon abstracted from its monarchical setting, which alone gave meaning to the independence of the judiciary, and the idea of the balance of legislative, executive, and judicial powers was substituted for the internal balance of the legislature. An anonymous English pamphlet of 1758, praising Montesquieu and the British constitution, said, "A system of government happily poised has resulted ... , where the fundamental powers of legislation, of judicature, and that of executing the laws, are wisely disjoined from each other. ..."9 A number of the early American constitutions adopted the idea — those of Virginia, Maryland, and North Carolina in 1776, that of Georgia in 1777, that of Massachusetts in 1780, and the second New Hampshire constitution in 1784.
Montesquieu and Blackstone, in recommending a divorce of the judiciary from the executive, were concerned with political considerations arising from the structure of the British monarchy. It seems odd that a device intended to cure the defects of monarchy should be thought necessary for the American republics. But there was another reason for separating the judiciary from the executive, unnoticed by Montesquieu and Blackstone, which applied in a republic as well as in a monarchy. Adam Smith in The Wealth of Nations wrote, "When justice is united to the executive power, it is scarcely possible that justice should not frequently be sacrificed to, what is vulgarly called, politics."10 The same reasoning seems to underlie Thomas Jefferson's fullest statement on the problem, that in a letter to George Wythe in 1776.11 The motive here was that which originally prompted the Levellers to advocate the separation of the executive from the legislative, to secure the administration of law according to general and pre-established rules.
Responsibility for the doctrine of judicial review is often assigned to the tripartite analysis of power. But James Otis in his famous argument in the Case of Writs of Assistance in 1761 spoke of the "executive courts": "As to acts of Parliament, an act against the constitution is void. ... The executive courts must pass such acts into disuse."12 This idea he developed in his The Rights of the British Colonies Asserted and Proved (1764), in which he said that "the supreme executive" was "a perpetual check and balance" to "the supreme legislative," and would declare void an act of Parliament which violated God's natural laws. This Blackstonian association of the judiciary with the executive continued to be common. The New Hampshire constitution of 1776 refers to the executive courts, and John Marshall, who introduced judicial review into the federal jurisprudence, spoke of the "judicial power as part of the executive."13
Marshall appears to have rested judicial review on the distinction between the legislature and the executive. It is the task of the executive to apply general rules to particular cases. Among those general rules are constitutional rules, which necessarily take priority over inconsistent acts of Congress. When "the judicial power as part of the executive" is called upon to decide a particular case, it will apply the appropriate rules. What is the boundary between the province of the judiciary and that of the President? In Marbury v. Madison Marshall conceded that the President might also be called upon to apply the constitution. "By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. ... The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive."14
Professor Haines has asked, "if the Constitution is a law of superior obligation, on what ground does the court insist that its judgment on the meaning of the Constitution is superior to that of the legislature which has enacted the law?"15 Marshall's statement on the problem is this: "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." Marshall is not claiming a monopoly of constitutional interpretation for the courts. He is claiming a monopoly over the decision of cases involving "individual rights." He argues that to accept, in a particular case, a legislative interpretation of the constitution would be to permit a legislative intrusion into this judicial monopoly. At bottom, then, he rests on the proposition that the legislature is restricted to the enactment of general rules and that all that pertains to the decision of particular cases is judicial in character. Judicial review is made possible by identifying constitutional interpretation with the decision of particular cases. Professor Haines is right in thinking the logic dubious, but this is Marshall's position.
At this stage in the argument it appears that if there had been no written constitution establishing paramount rules, there would have been no judicial review of legislation. Marshall certainly said as much in Marbury v. Madison. But the proposition that the legislative function is merely to prescribe general prospective rules, and that the legislature is therefore incompetent to deal with particular cases, is not in fact dependent on the existence of a written constitution. And Marshall did base decisions on this proposition, with only the scantiest reference to constitutional provisions. In Fletcher v. Peck18 he held a state law invalid, not chiefly because it violated the constitution, although the contract clause was mentioned in the opinion, but in substance because the legislature had undertaken to deal with a particular case. The Georgia legislature had repealed an earlier grant of state lands. The grant had been obtained by corruption, but the tract in question had come into the
hands of that favorite character of the law, the bona fide purchaser without notice. Marshall wrote:
To the legislature all legislative power is granted; but the question, whether the act of transferring the property of an individual to the public, be in the nature of the legislative power, is well worthy of serious reflection.
It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments. How far the power of giving the law may involve every other power, in cases where the constitution is silent, never has been, and perhaps never can be, definitely stated.
The validity of this rescinding act, then, might well be doubted, were Georgia a single sovereign power. But Georgia cannot be viewed as a single, unconnected, sovereign power, on whose legislature no other restrictions are imposed than may be found in its own constitution. ... The constitution of the United States declares that no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. ...
It is, then, the unanimous opinion of the court, that ... the state of Georgia was restrained, either by general principles which are common to our free institutions, or by the particular provisions of the constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void.
Another of the founders of our jurisprudence, Daniel Webster, taught the same doctrine. In his celebrated argument in the Dartmouth College Case," Webster assailed as ultra vires the action of the New Hampshire legislature in altering the charter of the College.
By these acts, the legislature assumes to exercise a judicial power. It declares a forfeiture, and resumes franchises, once granted, without trial or hearing. If the constitution be not altogether waste paper, it has restrained the power of the legislature in these particulars. If it has any meaning, it is, that the legislature shall pass no act directly and manifestly impairing private property, and private privileges. It shall not judge, by act. It shall not decide, by act. It shall not deprive, by act. But it shall leave all these things to be tried and adjudged by the law of the land. ... Are then these acts of the legislature, which affect only particular persons and their particular privileges, laws of the land? Let this question be answered by the text of Blackstone: "And first, it (i.e. law) is a rule: not a transient sudden order from a superior, to, or concerning, a particular person; but something permanent, uniform, and universal. ..." On the contrary are not these acts "particular acts of the legislature, which have no relation to the community in general, and which are rather sentences than laws"? By the law of the land is most clearly intended the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. ... Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bill of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees, and forfeitures, in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general permanent law for courts to administer, or for men to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legislative judgments and decrees; not to declare the law, or to administer the justice of the country.
Marshall in deciding the case did not purport to rely on Webster's argument. Webster was contending that the act violated the distribution of powers under the New Hampshire constitution. But Marshall could not afford to rest the case on these grounds. It was not that he was reluctant to invalidate a state law without reference to the national constitution, for the Court had done substantially that when it declared void an act of the Virginia legislature altering a corporation charter in Terrett v. Taylor, in 1815.18 But in Terrett v. Taylor there was no question of jurisdiction, for the case arose in the District of Columbia and was from the first in federal jurisdiction. Marshall could not take a case from the highest court of New Hampshire, which, incidentally, had already given a conclusive judgment that the act in question did not violate the state constitution, without grounding the jurisdiction of the Supreme Court on some federal question. Therefore he held that the act violated the obligation of contract clause of the national constitution. But so far as contract law goes he was on sufficiently weak ground, for the decision meant that a donee beneficiary could invoke the terms of a contract to which it was not a party, a principle which was not law then and has never become law since. It seems beyond doubt that Marshall really decided the case on Webster's principles and invoked the contract clause only in order to secure jurisdiction over the case.
Webster was the chief advocate before the Supreme Court of another doctrine, that laws must be prospective in operation. He repeatedly invited the Court to declare invalid, as violations of the contract clause, state laws which infringed "vested rights."19 This doctrine had had considerable currency in the state courts, which had invalidated legislative acts unsettling established interests without making any reference to the state constitutions, on the ground that retrospective measures violated "natural justice" and "free institutions."20 The Supreme Court gave some recognition to the doctrine of vested rights in decisions on the contract clause and hinted at it in other cases.21
It appears, then, that Marshall's jurisprudence was in large part founded on the proposition that the function of the legislature is solely to make general and prospective rules and that the decision of particular cases belongs to the executive, of which the judiciary is a part. He was fortunate in being able to appeal to a written constitution in his contest with the legislatures; probably he would not have succeeded in establishing judicial review without this support. But he did invalidate state laws without significant recourse to the written constitution.
The great weakness in Marshall's position lies in the entirely erroneous assumption that legislation and execution can be divorced. Justice Holmes made no bones of admitting that judges legislate, and retroactively at that: "Judicial decisions have had retrospective operation for near a thousand years."22 We have, then, a breakdown of the separation of powers. We have judges contriving rules for particular cases before them, after the events upon which they pass judgment have occurred. They are likely, as Aristotle said, to be swayed by the circumstances of the case, for "passion perverts the minds of rulers, even when they are the best of men." How extensive is judicial legislation is a matter of dispute. The distinguished jurist John Chipman Gray, in his The Nature and Sources of the Law, said that all judicial decisions were retroactive legislation. No one would be so bold as to say that judges never legislate.
What raises difficulty is the independence of the judiciary. The Levellers had advocated the separation of legislature and executive, but also the dependence of the executive on the legislature, which was to make possible that legislative scrutiny of the executive which was one of the arguments for the separation of powers. On the other hand the subordination of the executive to the legislature, by enabling the legislature to secure the execution of special and retroactive laws, would frustrate the other purpose of the separation of powers. John Lilburne's proposal to entrust the review of legislation to the jury was unrealistic; in any case, it merely shifted the power of arbitrary decision to a third organ. The truth is that there is no solution to the problem of constitutionalism. Wherever the power of final decision is lodged, there also is the power of abuse.
With us, the final power is in the courts. The only restraint placed on them is the self-restraint of the judges themselves. This has in the past been an inadequate safeguard. Justices Holmes and Stone, before 1937, more than once charged the majority of the Court with distorting the constitution to fit their prejudices; Justices McReynolds and Sutherland, after they fell into the minority, retaliated with a similar accusation against the new majority. One side or the other must be right. The Earl of Danby said, in 1689, "if the judges had the determining power, they would get the supremacy."23 American constitutional history is an elaborate documentation of this prediction.
But the controversial actions of the Court have not centered chiefly on problems raised by the separation of powers. The proposition that laws should be general and prospective gave rise only to censorship of legislation in terms of form. There was a second source of judicial review, the doctrine of the moral superiority of the common law, and this gave rise to censorship in terms of substance.
CHAPTER XXI
Double Majesty and Judicial Review
AS WE have seen, the doctrine of double majesty entered English law as early as the thirteenth century in Bracton's formulation, "The king should be under no man, but under God and the law, for the law makes him king." Bracton, like Glanvill before him, identified English law with custom. In the fifteenth century it became usual to speak of English law as bearing some relation to the law of nature and reason, a characterization borrowed from Roman law. By such means common law was given an objective validity, so that it was able to stand its ground as a rival and limit to the power of the king. Sir Edward Coke in the early seventeenth century boldly declared the independence of the common law in his famous opinions in the Case of Prohibitions1 and that of Proclamations.2In an age when government was very largely identified with the person of the king, it was easy to translate this opposition into one between all governmental power on the one hand and common law on the other. Coke made this extension in the much discussed dictum in Bonham's Case that "when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void."3 He cited four precedents, of which Professor Plucknett has found one to be valid.4
This idea of the superiority of common law found frequent expression in the next hundred and fifty years. Chief Justice Hobart approved Coke's dictum in Day v. Savadge5 in 1614, as did Chief Justice Holt in City of London v. Wood in 1701.6 A few Civil War pamphleteers denied the omnipotence of sovereign power.7 John Fortescue-Aland published an edition of his distinguished ancestor's Absolute and Limited Monarchy in 1714. In the preface he felt obliged to warn, "where my Lord Coke says that an act of Parliament made against Magna Carta is void, he is not to be understood of every part of it, but it is meant only of the moral part of it, which is as immutable as Nature itself; for no act of Parliament can alter the nature of things, and make virtue vice, or vice virtue." William Rawlin, the Attorney-General of Barbados, in 1715 delivered an opinion on an act passed by the local legislature; citing Coke, he declared that the act was "contrary to common right and reason," and therefore void.8 It is worth noting, however, that Sir Edward Northey, Attorney-General of Great Britain, had "no objection, in point of law, against the said additional act."9 Occasional pamphlets and speeches through the eighteenth century approved the principle of Coke's dictum.10 Viner's Abridgment, the first edition of which appeared 1742-1753, quoted Bonham's Case,11 and it was from this source that James Otis derived his famous argument against the writs of assistance.
But the only serious attempt by an English author to apply the doctrine to a concrete case appears to be Granville Sharp's Address to the People of England, a very curious pamphlet of 76 pages published in 1778 against the proposal to suspend the writ of habeas corpus. "Such a suspension, I say, of common justice and common right is so fundamentally subversive of the British constitution of state, that no authority of parliament can make it legal; because it is high treason against the king and people!" The bill violates the law of God, nature, and reason, and English law as well. The judges are bound by their oaths; "they must not obey even an act of parliament which sets aside this matter of 'common right,' I mean the common right of personal liberty to all ranks of men that are innocent for crimes and free from debt." The pamphlet concludes with an argument that the impressing of seamen is likewise unlawful, as contrary to "the laws of British freemen" and Magna Carta; even an act of Parliament cannot validate the practice.
Unlike other arguments for the superiority of common law, this is not a casual dictum but a plea to the judges to supervise Parliament in a concrete case. Blackstone had already rejected this proposal as not feasible.
Lastly, acts of parliament that are impossible to be performed are of no validity: and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void. I lay down the rule with these restrictions; though I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution that is vested with authority to control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that, where the main object of a statute is unreasonable, the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government.12
In his Address, as on many other occasions, Granville Sharp was arguing for an unpopular cause. It would be tedious and unnecessary to offer quotations to show that Englishmen in the eighteenth century trusted to the admirable device of the Gothic constitution to protect their liberties, without a thought for judicial review. But what Sharp demanded has occurred in the United States, where the courts have repeatedly invalidated statutes which altered the rules of common law. For the most part this has been done through the due process clauses of national or state constitutions. So it has been held that the legislature cannot alter the common law rule of liability of employers for injuries suffered by employees,13 or abolish the common law defense of insanity,14 or dispense with the need of an overt act to constitute a crime.15 The very strong bias of common law judges for rules of common law is evident in a thousand cases. The common law has set a boundary to political power. In 1815 Justice Story, in annulling an act of the Virginia legislature for the reason, substantially, that it departed from the common law, said: "The state itself succeeded only to the rights of the crown; and, we may add, with many a flower of prerogative struck from its hands."16 Here is the medieval doctrine of double majesty.
The courts have not confined themselves to the protection of formal rules of common law. In the late nineteenth and early twentieth centuries, institutions which had grown up in the shelter of the common law acquired the same sanctity. The courts stubbornly insisted upon the nineteenth century practices of the market and on certain kinds of freedom of contract. This was a sort of modern extension of double majesty. Since 1937, however, the opposition of the courts to social legislation and to control of economic activities by the state seems to have ended. With it the controversy over judicial review has probably also come to an end.
CHAPTER XXII
The Rule of Law
EVEN as early as the sixteenth century Bodin protested that a mixed government was an impossibility, that sovereignty was indivisible.1 Pufendorf in the seventeenth century agreed that sovereign power could not be divided, but he suggested that if the members of a mixed government be considered to constitute a single corporate body, with division on the level of administration rather than of sovereignty, there was still a state, though "one very ill-adapted to transact business."2 The cautionary remark was warranted. If power is dismembered to such a point that the state exhibits the deadlock of which Polybius and Montesquieu spoke, it may well lack the capacity for action which sovereignty demands. And lacking sovereignty, it may cease to be a state; it may become, instead, as Rome became, a civil war. Political change is not prevented by making it legally impossible. The idea that security lies in inaction reflects a confidence in a permanent sustaining natural law which history does not justify. Professor McIlwain has said of the doctrine of checks and balances that it "has worked disaster ever since it was adopted."3The notion that law must be general and prospective cannot achieve even a verbal reconciliation with the doctrine of sovereignty. Sovereignty implies a definition of law solely in terms of source. Law is a mere act of will on the part of the sovereign; special and retroactive acts of will are as genuinely law as any others. This being so, it is odd to find that the champions of sovereignty and the imperative theory of law adopt the more restricted definition. Thomas Hobbes said that an act was not law, nor valid, if it were retroactive or discriminatory as to persons.4 John Austin felt obliged to distinguish between "laws or rules" on the one hand and "occasional or particular commands" on the other.5
These concessions pay tribute to the moral values underlying the tradition of constitutionalism. The requirement of generality in legislation implies equality. The requirement of prospectivity makes deliberate choice the touchstone of judgment, and equates judgment to justice. These elements do not occur in all definitions of justice. Modern penology is therapeutic rather than retributive. It denies that men should all be treated alike, and that they should be judged on their actions; it argues that potentialities for the future, rather than atonement for the past, should be the guiding considerations. This is not impossibly far removed from Plato's identification of justice with intelligent management. Plato thought general rules inadequate, and he ruled out retribution as well, for to Plato faulty choices were mere involuntary irrelevancies. But Rhadamanthine justice, which only records and censures, attributes a dignity to the criminal which is lacking in Plato's scheme. From this point of view the criminal has a right to be punished, for punishment is a vindication of his status as a moral being. There is something to be said for this. Probably the Greeks were right in identifying equality and law with democracy. It is doubtful that democracy could survive in a society organized on the principle of therapy rather than judgment, error rather than sin. If men are free and equal, they must be judged rather than hospitalized.
Matthew Arnold called the Rhadamanthine conception of justice Hebraic, and it has also been called Christian. The fact is that this view has found expression among many peoples and has never exclusively dominated the thinking of any one. It has conflicted with the arguments for mercy, for equity, and for the Platonic idea of intelligent management of affairs. On the other hand, it has never entirely yielded to any of these.
But those who have accepted the proposition that law is general and prospective have had little success in reducing the definition to precise terms. It is possible to frame laws which meet any formal tests of generality that can be contrived and yet effectively discriminate between individuals. Nor is prospectivity an easy guide to follow. The American courts, in the late eighteenth and early nineteenth centuries, adopted the doctrine of "vested rights" and declared invalid, as retroactive, any law which touched interests acquired in the past; but it is hardly possible to frame a law which does not so operate on the past. We are not dealing here with a subject fit for the dissecting table of the analytical jurisprudence; we are dealing with a sentiment.
This sentiment by no means supplies a full philosophy of justice. It deals with the form rather than the content of legislation. A. V. Dicey, in describing the virtues of the English "rule of law" in his Law of the Constitution, spoke of the enthusiasm which greeted the fall of the Bastille. "When the fortress was taken, there were not ten prisoners within its walls; at that very moment hundreds of debtors languished in English gaols. Yet all England hailed the triumph of the French populace with a fervour which to Englishmen of the twentieth century is at first sight hardly comprehensible. ... Its fate was felt, and felt truly, to herald in for the rest of Europe that rule of law which already existed in England."6 Yet the debtors can hardly have felt this generous glow. It surely makes a difference what the laws are which rule. Men have always thought so. Various substantive theories of justice have existed from time to time, but these have complemented rather than supplied the constitutionalist tradition. To the Greeks, the proper legal rules for religion prescribed piety toward the local gods. To Aquinas, they prescribed Catholic orthodoxy. Since the seventeenth century, freedom of worship has progressively gained ground. No one of these attitudes is inextricably associated with constitutionalism. It is true that modern liberalism and revived constitutionalism came into the world together, and have in some degree been associated with each other, but they can by no means be identified.
Nevertheless attempts have been made, since Dicey popularized the expression "rule of law" in 1885, to put the authority of Aristotle and the long tradition of constitutionalism behind one or another local opinion. Dicey himself equated the rule of law to the decision of cases by common law courts, in particular opposition to the administrative justice of the continent, blandly ignoring the fact that the Rechtstaat, with its Roman law doctrine of the suability of the sovereign, might more properly than Great Britain represent itself as practicing the rule of law. The Supreme Court of the United States has read Dicey's opinion into the two due process clauses of the constitution, thus converting an amendment which was adopted to validate the Freedmen's Bureau into a device to limit administrative authorities.7 In 1937, during the controversy over the proposed enlargement of the Supreme Court, it was widely proclaimed that the rule of law prescribed not only judicial control of the executive but also the number of judges on the bench. Miscellaneous publicists have gone even further, arguing that the rule of law involves a censorship of the substance as well as the method of governmental action. This appears to be the thesis of Walter Lippmann's The Good Society, which makes constitutionalism "the gradual encroachment of true law upon willfulness and caprice." Friedrich von Hayek, in his The Road to Serfdom, identifies the rule of law with the economic ideas of Adam Smith.
These points of view, in that they mark out areas removed from the scope of governmental action, have a certain external resemblance to the medieval doctrine of double majesty. Their content, however, is altogether modern. They are not a part of the tradition of constitutionalism. What that tradition has stood for, for twenty-five hundred years, is the mechanics of the mixed state and the proposition that law should be general and prospective, this latter having been implemented in the seventeenth century by the doctrine of the separation of legislative and executive power. The mixed state is incoherent in theory and inadequate in practice. The constitutionalist view of law, on the other hand, represents a conception of justice so long and so widely held that it is probably safe to say that no state can afford to ignore it. It teaches the method rather than the substance of governmental action, but it is a method to which men have often demonstrated their attachment.
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