THE ORIGINS OF MODERN
Francis D. Wormuth
HARPER & BROTHERS, PUBLISHERS NEW
THE ORIGINS OF MODERN
COPYRIGHT, 1949, BY HARPER & BROTHERS PRINTED IN
THE UNITED STATES OF AMERICA
All lights in this book are reserved. No part of the
book may be reproduced in any manner whatsoever without written permission
except in the case of brief quotations embodied in critical articles and
reviews. For information address Harper & Brothers
To Robert Pelton Sibley
and Cora Billard Sibley
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
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
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
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.
The Tradition of
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
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
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
But the chief constitutional device was the indictment for proposing
illegal measures, the graphe paranomôn. This turned largely on the
distinction between laws or nomoi 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
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.
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
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
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;
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
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
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
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."33 This 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
The Classification of
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
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
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 the Laws 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
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
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
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
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
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
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.9Privilegia
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
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
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
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.
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
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
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
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
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.
THE CROMWELLIAN CONSTITUTIONS
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
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
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
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.
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
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
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
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
... 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
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,
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
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
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
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
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
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
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
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
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
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
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
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."18 This 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
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
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
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
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
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
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
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 Freedom published 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
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
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
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.
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
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.
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
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.5 Monarchs 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
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
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.
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
Harrington grounded the law of the balance on historical evidence rather
than on theoretical considerations. The only reason offered for the law was
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
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.
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
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
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
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.
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
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
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
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
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
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
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
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.
THE GOTHIC CONSTITUTION
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
Some 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
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
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 Declaration6 of 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, between AUTHORITY 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
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.
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
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
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
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
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
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
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. The London 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."
The Alterability of the
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
During 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.
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)
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),"
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
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
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.
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 judges quamdiu 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
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
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
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
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
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
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
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
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
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
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
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
Double Majesty and Judicial
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
In 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.
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."3
The 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
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
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
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.
(1) Lives, Solon, 18 (B. Perrin, trans.:
Loeb Classical Library), i, 451.
(2) Laws, III, xii.
(3) Demosthenes, Against Timocrates, §§
149-151 (]. H. Vince, trans.: Loeb Classical Library), p. 469.
(4) Andocides, On the Mysteries, §§
97-98, in Minor Attic Orators (K. Maidment, trans.: Loeb Classical
Library), i, 415.
(5) William W. Goodwin, Demosthenes on the Crown
(Cambridge, 1901), pp. 318 ff.
(6) Declaration of the Rights of Man and of Citizens
(Farrand, trans.: New York, 1901), pp. 50-51.
(7) Natural Law and the Theory of Society
(Barker, trans.: Cambridge, 1934), i, 60.
(8) Ibid., p. 152.
(1) Andocides, On the Mysteries, § 87;
Demosthenes, Against Timocrates, § 59, and Against
Aristocrates, § 86.
(2) Politics, 1292*.
(3) See H. Bluehmner, ed., K. F. Hermann's Lehrbuch
der Griechischen Antiquitaeten (Tuebingen, 1913), I, 3, §
(4) Laws, 644.
(5) Rhetorica, 1354b.
(6) Against Timocrates, §§
(7) Against Ctesephon, § 6, in The
Speeches of Aeschines (Charles D. Adams, trans.: Loeb Classical Library),
(8) Second Philippic, $ 25 (J. H. Vince, trans.:
Loeb Classical Library), p. 137.
(9) 429-437, in Euripides (A. S. Way, trans.:
Loeb Classical Library), iii, 535. See also Pericles' Funeral Oration in
Thucydides, The Peloponnesian War, II, 37.
(10) Statesman, 300.
(11) Politics, 1287b (W. D. Ross,
(12) Ibid., 1286a,
(13) Rhetorica, 1354b, in The Works
of Aristotle Translated into English (W. D. Ross, ed.: Oxford, 1924),
(14) Loc. cit.; Politics,
(15) Nicomachean Ethics, 1103b,
1180a; Politics, 1269a.
(16) Laws, 715.
(17) Politics, 1279a.
(18) Ibid., 1282b; see also
(19) Ibid., 1281a.
(20) Ibid., 1279b,
(21) Ibid., 1294a.
(22) Grace H. Macurdy, The Quality of Mercy (New
Haven, 1940), p. 115.
(23) Politics, 1287a (W. D. Ross
(24) F. M. Cornford, The Laws of Motion in Ancient
Thought (Cambridge, 1931), pp. 21, 26. See also Edgar Zilsel, "The Genesis
of the Concept of Physical Law," Philosophical Review (1942), li,
(25) To Philip, §§ 14, 127, in
Isocrates (George Norlin, trans.: Loeb Classical Library), i, 255,
(26) 1420a, in The Works of Aristotle
Translated into English (W. D. Ross, ed.: Oxford, 1924), xi.
(27) Statesman, 297 (Jowett trans.).
(28) Laws, 874-875 (Jowett trans.).
(29) Ethica Nicomachea, 1137b. See
also Politics, 1286a, 1287', and Plato's Laws,
(30) Rhetorica, 1374a.
(31) Rhetorica, 1374b.
(32) Digest, I, 3, 2.
(33) Laws, II, 5, 13 (C. W. Keyes, trans.: Loeb
Classical Library), p. 385.
(34) Memorabilia, I, 2, 42, in H. G. Dakyns,
trans., The Works of Xenophon (London, 1897), III, Pt. I, p.
(35) Memorabilia, I, 2, 44-45.
(36) Nicomachean Ethics, VIII, 9-12.
(1) The History of Herodotus, III, 80-82 (George
Rawlinson, trans.: Everyman's Library), i, 250-252.
(2) Memorabilia, IV, 6, 12, in H. G. Dakyns,
trans., The Works of Xenophon (London, 1897), III, Pt. I, pp.
(3) Republic, 445, 544-569, 580.
(4) Statesman, 302-303.
(5) Laws (Jowett trans.), 712.
(6) Ibid., 715.
(7) Loc. cit.
(8) Ibid., 693.
(9) Politics (W. D. Ross, ed.), 1266'.
(10) Plutarch's Lives, Solon, 18, 4 (B.
Perrin, trans.: Loeb Classical Library), p. 453. See the Politics,
(11) The Peloponnesian War, VIII, 98 (R. Crawley,
trans.: Everyman's Library), p. 607.
(12) Laws, 693, 712.
(13) Politics, 1265b.
(14) Ibid., 1266a.
(15) For an attempt to reconcile Aristotle's statements,
see M. J. Adler and Walter Farrell, "The Theory of Democracy," in The
Thomist (1943), vi, 255, and passim.
(16) Ibid., 1279b; Nicomachean
Ethics, 1160a.b.; see Rhetoric,
(17) Politics, 1291b-1292a,
(19) Loc. cit.
(20) Ibid., 1279b,
(21) Ibid., Book IV, chaps. 7-9,
(22) Quoted in Edwin L. Minar, Early Pythagorean
Politics (Baltimore, 1942), p. 113.
(23) Diogenes Laertius, Lives of Eminent
Philosophers, VII, 131 (R. D. Hicks, trans.: Loeb Classical Library), ii,
(24) Bibliotheca, fr. 37 (Bekker, ed., 1824), p.
(25) Histories, VI, 7-10 (W. R. Paton, trans.:
Loeb Classical Library), pp. 283-311.
(26) Ibid., VI, 11,12-13.
(27) G. H. Sabine and S. B. Smith, trans., Cicero's
On the Commonwealth (Columbus, Ohio, 1929), Introduction, pp.
(28) Roman Antiquities, II, 3, 7-8 (E. Gary,
trans.: Loeb Classical Library), i, 323.
(29) Ibid., II, 14; 1-4.
(30) On Mercy, I, 4, 1, in Moral Essays, I
(J. W. Basore, trans.: Loeb Classical Library), p. 369.
(31) On Benefits, II, 20, 2.
(32) On Mercy, I, 19, 2.
(33) "On Monarchy, Democracy, and Oligarchy," in
Moralia (H. N. Fowler, trans.: Loeb Classical Library), x, 305-311. Cf.
Lives, Solon, 18, 1.
(34) Annals, IV, 33 (G. G. Ramsay, trans.:
London, 1904), i, 291-292.
(35) William S. Ferguson, "Legalized Absolutism en Route
from Greece to Rome," in American Historical Review (1912), xviii,
(36) Politics, 1286b.
(37) Erwin R. Goodenough, "The Political Philosophy of
Hellenistic Kingship," in Yale Classical Studies, I (New Haven, 1928),
(38) Dio Chrysostom, The Third Discourse on
Kingship, 42-47 (J. W. Cohoon, trans.: Loeb Classical Library), i,
(39) Ibid., 50.
(40) The First Discourse on Kingship,
(41) Ibid., 42-43. See also The Thirty-sixth
Discourse, 19-20, 29-32, 38.
(1) Digest, I, 3, 1.
(2) Digest, I, 3, 8, in Samuel P. Scott, trans.,
The Civil Law (Cincinnati, 1932), ii, 223.
(3) De domo sua, XVIII.
(4) I, 1, 3.
(5) I, 14, 7.
(6) Table IX, Law I, in S. P. Scott, op. cit., i,
(7) Op. cit., XVII.
(8) Laws, III, 44.
(9) Attic Nights, X, 20.
(10) Carl Salkowski, Institutes and History of Roman
Private Law (E. E. Whitfield, trans.: London, 1886), pp. 14-15.
(11) Digest, I, 3, 16, in S. P. Scott, op.
cit., ii, 224. See also Modestinus, Digest, L, 17, 196.
(12) Code, XII, 21 (20).
(13) Ibid., XII, 22 (21).
(14) Ibid., XI, 15 (14).
(15) Ibid., XII, 28 (29).
(16) Ibid., XII, 29 (30).
(17) Ibid., VII, 73.
(18) Ibid., XI, 75 (74).
(19) Ibid., VII, 74.
(20) Institutes, I, 2, 6; Code, I, 6,
(21) Digest, I, 3, 31.
(22) Digest, XXXII, i, 23.
(23) Lester K. Born, "The Perfect Prince according to
the Latin Panegyrists," American Journal of Philology (1934), lv, 20;
Mason Hammond, "Pliny the Younger's Views on Government," Harvard Studies in
Classical Philology (1938), xlix, 115.
(24) Code, I, 14, 4, in S. P. Scott, op.
cit., xii, 86-87.
(25) Institutes, II, 17, 8 (Thomas C. Sanders,
trans.: Chicago, 1876), p. 283. See J. B. Moyle, Imperatoris lustiniani
Institutionum (Oxford, 1912), p. 2790.: "For acceptance under informal
wills by the Emperors cf. Suetonius, Calig. 38, Domit. 12, Pliny, Paneg.
(26) Code, VI, 23, 3. See Paulus, Digest,
XXXII, 1, 23.
(27) J. Walter Jones, "The Early History of the Fiscus,"
Law Quarterly Review (1927), clxxii, 499.
(28) Digest, I, 3, 14-15-
(29) On Benefits, VII, 4, 2; 6, 3.
(1) C. H. McIlwain, The Growth of Political Thought
in the West (New York, 1932), p. 138.
(2) Etymologiae, V, x.
(3) Summa Theologica, I-II, 105, 1. See also
I-II, 95, 4, c.
(4) Otto Gierke, Political Theories of the Middle Age
(Maitland trans.: Cambridge, 1900), p. 152, n. 165.
(5) Ibid., p. 53; A. J. Carlyle, Mediaeval
Political Theory in the West (London, 1936), vi, 162-164.
(6) Discourses on the First Decade of Titus
Livius, I, 2.
(7) H. A. L. Fisher, The Republican Tradition in
Europe (London, 1911), pp. 25, 27, 32.
(8) Lester K. Born, "Erasmus on Political Ethics,"
Political Science Quarterly (1928), xliii, 520, 528.
(9) Politics, 1285a, 1286a,
(10) Ibid., I, 5, 12.
(11) Statutes of the Realm, i, 82.
(12) Gierke, op. cit., pp. 77, 176 n.,
(13) The Governance of England, chaps. 1-3. On
Fortescue see C. H. McIlwain, op. cit., pp. 358-363, and S. B. Chrimes, "Sir
John Fortescue and His Theory of Dominion," Transactions of the Royal
Historical Society (London, 1934), 4th ser., v. xvii, 117.
(14) Otto Gierke, Natural Law and the Theory of
Society, 1500 to 1800 (Barker trans.: Cambridge, 1934), pp. 43-45,
(15) Gierke, Political Theories of the Middle
Age, pp. 35, 143-145, nn. 127-136.
(16) Ibid., pp. 39, 45.
(17) De Regimine Principum, I, 13.
(18) Summa Theologica, I-II, 96, 5, ad
(19) Ibid., I-II, 95, 2, c.
(20) Ibid., I-II, 97, 3, ad 3. See also I-II, 90,
(21) De Regimine Principum, I, 6.
(22) Gierke, Political Theories of the Middle
Age, p. 39.
(23) "The Theory of Democracy," The Thomist
(1942), iv, 724-743.
(24) The Spirit of the Laws, II, 1.
(25) Ibid., II, 4.
(26) Constitutionalism Ancient and Modern
(Ithaca, N. Y., 1940), chap. 4.
(27) Quoted by A. V. Dicey, Law of the
Constitution (7th ed.: London, 1908), pp. 179-180.
(28) Howell's State Trials, ii, 559.
(29) Ibid., ii, 371.
(30) Ibid., iii, i.
(31) Ibid., iii, 825.
(32) Lords Journal, v, 112.
(1) Killing No Murder (1657). Sir Charles Firth
believed this pamphlet to have been the joint work of Sexby and the Royalist
Captain Silius Titus. The Last Years of the Protectorate (London, 1909),
i, 224 n.
(2) The Commonwealth of Oceana (Liljegren ed.:
Heidelberg, 1924), pp. 49-50.
(3) Autobiography (Everyman ed.), p.
(1) England in the Reign of King Henry VIII, II,
(2) Quoted by C. H. McIlwain, Constitutionalism
Ancient and Modern (Ithaca, N. Y., 1940), p. 106.
(3) Cited by Zera S. Fink, The Classical Republicans
(Northwestern Univ. Studies in the Humanities, No. 9: Evanston, Ill.,
1945), p. 24.
(4) "Of Reformation in England," cited by Fink, op.
cit. supra, p. 108.
(5) Stanley Pargellis, "The Theory of Balanced
Government," in Conyers Read, ed., The Constitution Reconsidered (New
York, 1938), p. 40.
(6) An Exact Collection of all Remonstrances, etc.,
between the King's Most Excellent Majesty and His High Court of Parliament,
December 1641-March 21, 1643 (London, 1643), p.
(7) (London, 1643), Pt. I, chap. 4. The theoretical part
of the book was republished in 1689 and this latter edition was included in
Volume VI of the Harleian Miscellany.
(8) The quotation is from the third edition, London,
(9) Leviathan (Everyman's Library), p.
(10) The Anarchy of a Limited or Mixed Monarchy
(11) The Paper called the Agreement of the People
Taken into Consideration, and the Lawfulness of Subscription to It Examined,
and Resolved in the Negative, by the Ministers of Christ in the Province of
Lancaster (London, 1649).
(12) A Plea for a Limited Monarchy, As It Was
Established in this Nation, before the Late War (London, 1660). This is
reprinted in the Harleian Miscellany (London, 1810), i., 20. The
attribution to L'Estrange is in Samuel Halkett and John Laing, Dictionary of
Anonymous and Pseudonymous English Literature (ed. Kennedy, Smith, and
Johnson), iv, 361. An expanded version of this pamphlet is included in The
Interest of the Three Kingdoms with Respect to the Business of the Blade Box,
and All the Other Pretensions of His Grace the Duke of Monmouth (2nd
impression, London, 1680), which has been attributed to William Griffith but
appears to be by the same hand as A Plea for a Limited
( 1 ) Roman Antiquities, Book IV, 20.
(2) The Prince, or Maxims of State, in Somers Tracts
(London, 1811), iii, 283.
(3) Latin and English texts are given in M. V. Clarke's
study, Medieval Representation and Consent (London, 1936).
(4) Observations upon Some of His Majesty's Late
Answers and Expresses (1642), p. 13, reproduced in William Haller,
Tracts on Liberty in the Puritan Revolution, 1638-1647 (New York, 1938),
(5) Rights of the Kingdom: or, Customs of Our
Ancestors, Touching the Duty, Power, Election, or Succession of Our Kings and
Parliaments, Our True Liberty, Due Allegiance, Three Estates, Their Legislative
Power, Original, Judicial, and Executive, with the Militia (1649). The
quotation is from the edition of 1682.
(6) Speeches and Passages of This Great and Happy
Parliament (London, 1641), p. 33.
(7) Observations upon Forms of Government (ed. of
1684), p. 147.
(8) A Discourse Opening the Nature of That
Episcopacy, Which Is Exercised in England, in Haller, op. cit.,
(9) Power Juridicent, and Juritenent: Or, Power of
Lawmaking, and Law-Administering, Discussed, and humbly Presented to the
Parliament of England (1650).
(10) Speeches and Passages, p. 219.
(11) The Copy of a Letter, from Lieutenant-Colonel
John Lilburne, to a Friend (1645), p. 14.
(12) Theodore C. Pease, The Leveller Movement
(Washington, 1916), p. 110.
(13) Quoted in Margaret James and Maureen Weinstock,
England during the Interregnum (London, 1935), pp. 153-154.
(14) A Letter of Dire Censure and Redargution to
Lieut. Col. John Lilburne (London, 1650).
(15) Lilburne, The Picture of the Council of
State (2d ed., 1649).
(16) Pease, op. cit., p. 340 ff.
(17) An Alarm to the House of Lords (1646), p.
(18) A Remonstrance of Many Thousand
(19) Speech of April 21, 1657, in S. C. Lomas, ed.,
Carlyle's Cromwell (London, 1904), iii, 93-95.
(20) The Art of Lawgiving (1659), in Toland, ed.,
The Oceana and Other Works of James Harrington (3d ed., 1747), p.
(21) A Declaration of the Parliament Assembled at
Westminster, January 23, 1659 (1659-60).
(22) A Plea for a Limited Monarchy, as It Was
Established in this Nation, before the Late War (London, 1660). See chap.
7, n. 12, supra.
(1) The pamphlet is attributed to Overton by William
Haller, Tracts on Liberty in the Puritan Revolution (New York, 1938),
III, Pt. II, p. 349.
(2) A. S. P. Woodhouse, ed., Puritanism and Liberty,
Being the Army Debates (1647-1649) from the Clarke Manuscripts (London,
1938), p. 54.
(3) C. H. Firth, ed., The Memoirs of Edmund Ludlow
(Oxford, 1894), ii, 11.
(4) Reasons against Agreement with a Late Printed
Paper, Entitled Foundations of Freedom: Or, The Agreement of the People
(1) S. R. Gardiner, History of the Great Civil
War (London, 1894), ii, 24, cites Denzil Holies; see also A Second
Narrative of the Late Parliament (1658), p. 4; [John Spittlehouse] An
Answer to One Part of the Lord Protector's Speech (London, 1654), p. 2;
[John Harris] Peace and not War (London, 1659), p. 11.
(2) Some Observations on the Late Dangerous Petition
Presented to the House of Commons, September 11, 1648 (London, 1648), p.
(1) See the unauthorized pamphlet called A
Declaration of the Lords and Commons Assembled in Parliament, concerning the
Trial of the King; ... Also the Future and Final Resolution of the Army,
Touching the Person of the King, Their Resolution Touching the Government of
This Kingdom, Their Summons to the Prince of Wales, and the Duke of York; and a
Declaration concerning the Duke of Gloucester (London, 1649); and The
Representative of Divers Well-Affected Persons, etc. (London,
(2) Commons Journal, vi, 110-111.
(3) See John T. Rutt, ed., Burton's Parliamentary
Diary (London, 1828), iv, 342, for April 5, 1659; Bulstrode Whitelocke,
Memorials of the English Affairs (London, 1682), p. 678, for April 22,
1659. The New English Dictionary cites a usage of "republical party" in
1656; here the meaning is merely "anti-Stuart." A letter of November 5, 1658,
speaks of a "republican party," by which is meant the "godly party" and its
friends in the Army. Thurloe State Papers, vii, 495-496. See
ibid., iii, 115, for December 30, 1654.
(4) A Declaration of the Parliament of England,
Expressing the Grounds of their Late Proceedings, and of Settling the Present
Government in the Way of a Free State. This is reprinted in William
Cobbett, Parliamentary History, iii, 1292.
(5) A Persuasive to a Mutual Compliance under the
Present Government, together with a Plea for a Free State Compared with
Monarchy (Oxford, 1652), in Somers Tracts (London, 1811), vi,
(6) Somers Tracts, vi, 77.
(7) The text of the petition is given in The Case of
Colonel Matthew Alured (London, 1659).
(8) Somers Tracts, vi, 303.
(1) For this meeting, see Bulstrode Whitelocke,
Memorials of the English Affairs (London, 1682), pp. 491-492.
(2) Ibid., pp. 523-526.
(3) Ibid., p. 512, reciting the text of the
(4) Ibid., p. 516, reciting the text of the
(5) C. H. Firth, ed., The Memoirs of Edmund Ludlow
(Oxford, 1894), i, 346. To Colonel Hutchinson in 1657 Cromwell "with tears
complained how Lambert had put him upon all those violent actions, for which he
now accused him and sought his ruin." Lucy Hutchinson, Memoirs of the Life
of Colonel Hutchinson (2d ed., London, 1808), p. 344.
(6) Ibid., ii, 6-7. In 1660 in Newgate, before
his execution, Harrison denied any knowledge of or part in the plan, although
"afterwards I was glad the thing was done." The Speeches and Prayers of ...
Harrison, ... Carew, ... Cook, ... Peters, ... Scot, ... Clement, ... Scroop,
Jones, ... Axtell, and ... Hacker (1660), pp. 2-3.
(7) C. H. Firth, ed., The Memoirs of Edmund
Ludlow, i, 346 n.
(8) A Declaration of the Lord General and his Council
of Officers; Showing the Grounds and Reasons for the Dissolution of the Late
Parliament (London, 1653).
(9) S. R. Gardiner, History of the Commonwealth and
Protectorate (London, 1897), ii, 220. See also C. H. Firth, "Cromwell and
the Expulsion of the Long Parliament in 1653," English Historical Review
(1893), viii, 526.
(10) Henry A. Glass, The Barebone Parliament
(London, 1899), p. 64 n.
(11) W. H. Dawson, Cromwell's Understudy: The Life
and Times of General John Lambert (London, 1938), p. 175.
(12) A True Catalogue, Or, An Account of the Several
Places, etc. This pamphlet is the work of a Fifth Monarchy man. Against the
Instrument it was said in Parliament in 1657: "Government is not to be made by
six men." John T. Rutt, ed., Burton's Parliamentary Diary (London,
1828), i, 363.
(13) Autobiography (Everyman ed.), p.
(14) See C. H. Firth, "Cromwell and the Crown, II,"
English Historical Review (1903), xviii, 60.
(15) Burton's Parliamentary Diary, iv,
(16) The Last Years of the Protectorate (London,
1909), i, 156. The title is a variant of Nedham's Case of the Commonwealth
Stated, and there are verbal parallels between it and Nedham's
Excellency of a Free State (1656); I know of nothing else which suggests
Nedham's authorship. The style and the ideas seem not to be
(17) Burton's Parliamentary Diary, i,
(18) Gardiner in his Constitutional Documents of the
Puritan Revolution (Oxford, 1889), p. 353, prints the text of Instrument as
modified by the votes of the House. His manuscript source agrees closely but
not perfectly with the votes reported in the Commons Journal.
Unfortunately it is not possible to build up a text from this latter
(1) The chief source for these dealings is John T. Rutt,
ed., Burton's Parliamentary Diary (London, 1828).
(2) Speech of January 22, 1655. S. C. Lomas, ed.,
Carlyle's Cromwell (London, 1904), ii, 422-423.
(3) Firth, Last Years of the Protectorate
(London, 1909), i, 128.
(4) Commons Journal, vii, 582.
(1) The Grounds and Reasons of Monarchy Considered
(1651), prefixed to Toland's edition of The Oceana and Other Works of
James Harrington (3d ed., 1747), p. 7.
(2) The Art of Lawgiving (1659), in Toland, p.
431 n. The pamphlet referred to is XXV Queries, modestly and humbly, and yet
sadly and seriously Propounded (London, 1659). Perhaps the author of this
pamphlet was William King: see John T. Rutt, ed., Burton's Parliamentary
Diary (London, i828),iii, 77-82.
(3) The Art of Lawgiving, loc. cit.
(4) William T. Whitley, A Baptist Bibliography (London,
1916), 86-654, says: "R. G. may be Richard Goodgroom. The letter was expressly
assigned at Dublin to [Edmund] Ludlow." Whitley, 26-656, attributes the second
edition to Goodgroom without question. Internal evidence indicates that the
author was indeed an officer of the Army in Ireland in 1654. Ludlow meets this
test; but it seems unlikely that he would have failed to mention the pamphlet
in his Memoirs if he had written it. Moreover, he was one of the few
republicans who never subscribed to the law of the balance on which the tract
rests. Richard Goodgroom is a plausible nominee, since Digger doctrine could
easily be converted into the law of the balance. But although Goodgroom was an
officer of the Army, he was a chaplain of Monk in Scotland rather than an
officer in Ireland. Calendar of State Papers Domestic, 1671, p.
(5) Andrew Clark, ed., Aubrey's Brief Lives
(Oxford, 1898), i, 289.
(6) The Prerogative of Popular Government (1658),
in Toland, p. 249.
(7) Ibid., p. 244.
(8) Ibid., p. 260.
(9) S. B. Liljegren, ed., James Harrington's Oceana
(Heidelberg, 1924), p. 22 ff.
(10) The Prerogative of Popular Government, in
Toland, p. 241. This is directed in part against Wren's Considerations on
Mr. Harrington's ... Oceana (1657).
(11) Ibid., pp. 253-254.
(12) Liljegren, op. cit., p. 29.
(13) Ibid., p. 128.
(14) The Grand Concernments of England Ensured
(London, 1659), pp. 44-45.
(1) John Aubrey, in Andrew Clark, ed., Aubrey's Brief
Lives (Oxford, 1898), i, 291.
(2) The Humble Petition of Many Thousand Citizens and
Inhabitants in and about the City of London. To the Parliament of the
Commonwealth of England. Together with the Parliament's Answer
(3) See Lilburne, Legal Fundamental Liberties
(1649), m A. S. P. Woodhouse, Puritanism and Liberty (London, 1938),
(4) The Humble Petition of Many Inhabitants in and
about the City of London. Presented to the Parliament by Mr. Sam Moyer and
(5) Calendar of State Papers Domestic, 1659-1660,
(6) Zera S. Fink, The Classical Republicans
(Northwestern Univ. Studies in Humanities, No. 9: Evanston, Ill., 1945), p. 86,
where the name of Henry Marten is offered for H. M. According to the common
story, Marten was in debtor's prison until the restoration of the Rump; in any
case he was living in obscurity, and is not likely to have been consulted by
the republican leaders.
(7) The conjunction of Lambert with the republicans was
well known at the time. The participation of Moyer can perhaps be inferred from
the fact that when Moyer's petition of February 15, 1659 — the same that
Cromwell had denounced as a republican plot in 1658 — was first offered to
the house on February 9, Neville, Weaver, and Lambert, among others, urged its
reception, and from the positions of trust given to Moyer after the restoration
of the Rump.
(8) "The Humble Representation and Petition of the
General Council of the Officers of the Armies of England, Scotland, and
Ireland." This and later documents are reprinted in Some Farther
Intelligence of the Affairs of England (London, 1659).
(9) A Copy of a Letter from an Officer of the Army in
Ireland, to His Highness the Lord Protector, concerning His Changing of the
Government (1656), p. 22. For "the good old interest of Jesus Christ and
his saints," see Thurloe State Papers, iii, 55, for December 30,
(10) A True Copy of a Paper Delivered to the Lt. G.
Fleetwood ... the 26 day of the Second Month, Called April, 1659 (London,
1659). This was delivered to Fleetwood by a group of officers; see A
Faithful Searching Home Word (1659).
(11) C. H. Firth, ed., The Memoirs of Edmund Ludlow
(Oxford, 1894), ii, 74-75.
(12) A Declaration of the Officers of the Army,
in Somers Tracts (London, 1811), vi, 504, and also in William Cobbett,
Parliamentary History, iii, 1546.
(13) This is printed in Toland, ed., The Oceana of
James Harrington (3d ed., 1747), pp. 541-546.
(14) This pamphlet is reprinted in William H. Dunham and
Stanley Pargellis, Complaint and Reform in England (New York, 1938), p.
679, and in the Harleian Miscellany (London, 1810), vii, 36.
(15) A Declaration of the Parliament of England in
Vindication of their Proceedings and Discovering the Dangerous Practices of
Several Interests, against the Present Government, and Peace of the
Commonwealth (London, 1649).
(16) This was published under the title, The Army's
Proposals to the Parliament of the Commonwealth of England, Scotland, and
Ireland (London, 1659). A substantially identical text is printed from
manuscript in E. Phillips' continuation of Sir Richard Baker's Chronicle of
the Kings of England (London, 1674), p. 673.
(17) W. H. Dawson, Cromwell's Understudy: The Life
and Times of General John Lambert (London, 1938), p. 350.
(18) The text will be found in A True Narrative of
the Proceedings in Parliament, Council of State, General Council of the Army,
and Committee of Safety (London, 1659), which prints all the public
documents from September 22 to November 16 except the Humble Petition and
Proposals, and also in Phillips' continuation of Baker's Chronicle,
(19) C. H. Firth, ed., The Memoirs of Edmund
Ludlow, ii, 172.
(20) Ibid., ii, 173 n.
(1) History of England (Boston, 1850), iv,
(2) Sir Simonds D'Ewes, Journals of all the
Parliaments during the Reign of Queen Elizabeth (London, 1682), p.
(3) John Milton (New York, 1880), p.
(4) Second Part of the Institutes of the Laws of
(5) John Warr or Ware, The Privileges of the People,
or, Principles of Common Right and Freedom, Briefly Laid Open and Asserted in
Two Chapters (London, 1649).
(6) A Declaration of the Parliament of England in
Vindication and Discovering the Dangerous Practices of Several Interests,
against the Present Government, and Peace of the Commonwealth (London,
(7) [Henry Robinson,] A Short Discourse between
Monarchical and Aristocratical Government (London, 1649).
(8) A Discourse of the Excellency of a Free State,
above a Kingly Government, appended to The Case of the Commonwealth of England,
Stated (London, 1650).
(9) Op. cit. supra, n. 5.
(10) More Hearts and Hands Appearing for the Work
(11) "An Essay on Government," in The Works of the
Right Honourable Henry, Late L. Delamer, and Earl of Warrington (London,
1694), p. 37.
(12) This appears to have been introduced by Sir Winston
Churchill's Divi Britannia (1675): "Here the two great principles,
Imperium et libertas, empire and liberty, two things long incompatible,
began to encounter each other."
(13) A Dissertation upon Parties, in Works
(London, 1809), iii, 216. But cf. the Remarks upon the History of
England, in Works, ii, 118, 120, 121.
(14) Essays Moral, Political, and Literary
(London, 1889), i, 116.
(15) History of England, ii, 514.
(16) Essays, i, 125.
(17) Essays, i, 95.
(18) Discourses concerning Government, in
Works (London, 1772), p. 3.
(19) The Excellency of a Free State (London,
1656), p. 4.
(20) Gabriel Bonno, La constitution britannique
devant l'opinion française de Montesquieu à Bonaparte (Paris,
(21) Second Treatise of Government, chap.
(22) The Beauties of the British Senate (London,
1786), pp. 261-292.
(23) Murtagh McDermot, A Trip to the Moon
(1) The Third Part of the Institutes,
(2) S. B. Liljegren, ed., James Harrington's
Oceana (Heidelberg, 1924), p. 12.
(3) Ibid., p. 39.
(4) Ibid., p. 124.
(5) The Works of Algernon Sidney (London, 1772),
(6) Ibid., p. 138.
(7) The Free-Holder, No. 53, June 22,
(8) Essays Moral, Political, and Literary
(London, 1889), i, 109-117.
(9) Remarks on the History of England, in Works
(London, 1809), ii, 242; A Dissertation on Parties, in Works,
(1) The New Association, Part II (London, 1705),
(2) A Discourse of the Contests and Dissensions
between the Nobles and the Commons in Athens and Rome, etc. (London,
(3) I, pp. 154-155.
(4) Four numbers appeared. Steele in 1713 had published
a pamphlet advocating a bill to disable a peer to vote in the Lords for three
years after the date of his patent: A Letter to Sir M. W. Concerning
Occasional Peers, in Rae Blanchard, ed., Tracts and Pamphlets of Sir
Richard Steele (Baltimore, 1944), p. 72.
(5) Lords Journal, xxiv, 459, 465, 466, 470, 472,
(6) The Continuation of the Life of Edward Earl of
Clarendon ... Written by Himself (Oxford, 1759), ii, 85-91.
(7) These acts are collected in Mark A. Thomson, A
Constitutional History of England, 1642 to 1801 (London, 1938), pp.
117-118, 187, 238-240, 326, 378-379.
(8) Considerations upon the Choice of a Speaker of
the House of Commons in the Approaching Session (1698). The quotation is
from The Honest Elector (London, c. 1748), one of the many reprints of
(9) No. 498, January 17, 1735-6.
(10) The Beauties of the British Senate (London,
1786), i, 188.
(11) Bolingbroke, Remarks on the History of
England, in Works (London, 1809), ii, 187.
(12) Mary S. Kuypers, Studies in the Eighteenth
Century Background of Hume's Empiricism (Minneapolis, 1930), p. 112
(13) Essays Moral, Political, and Literary
(London, 1889), i, 120.
(14) Thoughts on the Causes of the Present
Discontents (1770), in Works (World's Classics ed.), ii,
(15) The Beauties of the British Senate, ii,
(16) Ibid., ii, 238.
(17) Lord John Russell, ed., Memorials and
Correspondence of Charles James Fox (Philadelphia, 1853), ii,
(18) Ibid., p. 193-
(19) Hansard's Parliamentary Debates, 3d Series,
vol. xii, 995 (May 17, 1832).
(1) On this subject, see the present writer's The
Royal Prerogative, 1603-1649 (Ithaca, N. Y., 1939), pp. 57-60.
(2) King Charles's Case: Or, An Appeal to All
Rational Men, etc., in Somers Tracts (London, 1811), v, 224.
(3) Comberbach, 21.
(4) The Faithful Register: Or, The Debates of the
House of Commons in Three Several Parliaments (London, n.d.), p.
(5) The attribution to Danby is in Samuel Halkett and
John Laing, Dictionary of Anonymous and Pseudonymous English Literature
(ed. Kennedy, Smith, and Johnson), vi, 35.
(6) A Speech Made in the House of Commons April the
24th 1716; Against the Bill for the Repeal of the Triennial Act, etc.
(London, 1722). The reference to "one of our greatest lawyers" seems to be to
Sir Robert Raymond, whose speech against the Triennial Bill is quoted on the
title-page from the Historical Register, i, 396: "With great submission
I speak it, in my poor opinion, King, Lords, and Commons can no more continue a
Parliament beyond its natural duration, than they can make a
(7) The Idea of a Patriot King, in Works
(London, 1809), iv, 244.
(8) A Dissertation upon Parties, in Works,
(9) Commentaries on the Laws of England, i,
(10) George T. Kenyon, The Life of Lloyd, First Lord
Kenyon (London, 1873), p. 316.
(11) Graham Wallas, Our Social Heritage (London,
1921 ), pp. 227-228; C. H. McIlwain, Constitutionalism Ancient and
Modern (Ithaca, N. Y., 1940), p. 19.
(1) History of England (Everyman's Library), iii,
(2) Second Treatise, § 142. See also §
(3) Commentaries on the Laws of England, i,
(4) The Principles of Moral and Political Philosophy
(Boston, 1825), p. 361.
(5) Op. cit., i, 268.
(6) Ibid., p. 269.
(7) The Beauties of the British Senate (London,
1786), ii, 309.
(8) Second Treatise, chap. 12.
(9) National Spirit, Considered; As a Natural Source
of Political Liberty (2d ed., London, 1758).
(10) Book V, chap. I, Part II.
(11) Quoted in Charles M. Wiltse, The Jeffersonian
Tradition in American Democracy (Chapel Hill, 1935), p. 119.
(12) Quincy's Massachusetts Reports, p.
(13) Ogden v. Saunders, 12 Wheat. 213, 344
(14) 1 Cranch 137, 165-166 (1803).
(15) The Revival of Natural Law Concepts
(Cambridge, Mass., 1930), pp. 81-82.
(16) 6 Cranch 87, 136, 139 (1810).
(17) 4 Wheat. 519, 579-582 (1819).
(18) 9 Cranch 43.
(19) Charles River Bridge v. Warren Bridge, 11
Pet. 420, 525, 528-529 (1837); West River Bridge Co. v. Dix, 6 How. 507,
517, 520 (1848).
(20) Charles Grove Haines, op. cit. supra, chap.
4; Edward S. Corwin, "A Basic Doctrine of American Constitutional Law,"
Michigan Law Review, xii, 247 (1914).
(21) Fletcher v. Peck, supra; New Jersey
v. Wilson, 7 Cranch 164 (1812); Sturges v. Crowninshield, 4
Wheat. 122 (1819); Dartmouth College v. Woodward, supra; all on
the contract clause. See also Terrett v. Taylor, supra, and
Taney's opinion in Scott v. Sanford, 19 How. 393, 450 (1857).
(22) Kuhn v. Fairmount Coal Co., 215 U. S. 349,
(23) The Thoughts of a Private Person ( 1689
(1) 12 Coke's Reports 64 (1607).
(2) 12 Coke's Reports 74 (1610).
(3) 8 Coke's Reports 107, 118 (1610).
(4) "Bonham's Case and Judicial Review," Harvard Law
Review, xl, 30.
(5) Hobart, 85, 87. Bonham's Case was cited with
approval in the House of Commons in the same year. Commons Journal, i,
(6) 12 Modern Reports 668, 687.
(7) See for example, David Jenkins' Lex Terrae
(1647), in Somers Tracts (London, 1811), v, 98, and in Judge Jenkins
(ed. W. H. Terry, 1929), p. 66; the same author's Discourse Touching the
Inconveniencies of a Long Continued Parliament, in Somers Tracts, v,
124; and [William Ball,] The Power of Kings, in Judge Jenkins, p.
(8) Chalmers, Opinions on English Jurisprudence
(1814), ii, 27.
(9) Ibid., p. 39.
(10) A Letter to a Friend in Suffolk, Occasioned by a
Report of Repealing the Triennial Act (London, 1716), p. 7; Ministerial
Usurpation Displayed, and the Prerogative of the Crown, with the Rights of
Parliament and of the Privy Council, Considered (London, 1760), p. 45;
"Gray's Parliamentary Notebook" for March 3, 1766, Historical Manuscripts
Commission, Fourteenth Report, Appendix IX (1895), p. 315.
(11) (2d ed.: London, 1793), xix, 513.
(12) Commentaries, i, 91.
(13) Ives v. South Buffalo Ry. Co., 201 N. Y. 276
(1911), overruled by New York Central Ry. Co. v. White, 243 U. S. 188
(14) State v. Strasburg, 60 Wash. 106, 110 P.
1020, 32 L. R. A. (N.S.) 1216, Ann. Cas. 1912B, 917 (1910); Sinclair v.
State, 161 Miss. 142, 132 S. 581, 74 A. L. R. 241 (1931).
(15) Ex parte Smith, 135 Mo. 223, 36 S. W. 628, 33 L. R.
A. 606, 58 A. S. R. 576 (1896); Proctor v. State, 15 Okl. Cr. 338, 176
P. 771 (1918); and see Lanzetta v. New Jersey, 306 U. S. 451
(16) Terrett v. Taylor, 9 Cranch 43, 50
(1) The Six Books of a Commonweal (Richard
Knolles trans.: London, 1606), pp. 184-5, 194.
(2) De Jure Naturae et Gentium, VII, v, 13. ( 3 )
Constitutionalism Ancient and Modern (Ithaca, N. Y., 1940), p.
(4) Behemoth, in English Works (ed.
Molesworth), vi, 227, and Dialogue of the Common Laws, in English
Works, vi, 62.
(5) Lectures on Jurisprudence (5th ed.: London,
1911), i, 92.
(6) (7th ed.: London, 1908), p. 188.
(7) Crowell v. Benson, 285 U. S. 22 (1932); St.
Joseph Stockyards Co. v. U. S., 298 U. S. 38 (1936).
Adams, John, 43, 129
Addison, Joseph, 167, 173, 177
Adler, M. J., 35, 218
Agitators, 77 ff.
Agrarian law, 134
Agreement of the People, 44,47, 73 ff., 94, 104, 150
Answer to a Paper, 186
Aristides, Aelius, 30
Aristocracy, 18 ff., 30, 135, 165, 177
Aristotle, 10 ff., 20 ff., 31, 59, 66, 205
Army's Duty, 143
Arnold, Matthew, 213
Ashurst, William, 85
Attainder, 67, 192
Austin, John, 212
Authority, 163 ff.
Aylmer, John, 52
Bacon, Francis, 184, 187
Bacon, Nathaniel, 86, 118
Balance, law of the, 96, 124, 129 ff., 171 f., 177, 182
See also Checks and balances
Ball, William, 62
Bate's Case, 38
Baxter, Richard, 46, 103
Bicameralism, 5, 116, 119, 131, 135 ff., 145, 148, 170
Biondi, Sir Francis, 52
Blackstone, Sir William, 175 f., 188, 193, 197, 209
Bodin, Jean, 29, 35 f., 51, 59
Bolingbroke, 167, 173, 179, 187
Bonham's Case, 207 f.
Booth, Sir George, 49, 152 f.
Booth, Henry, 166
Boulé, 6, 138
Bracton, 37, 67, 207
Bradshaw, John, 44, 106
Burke, Edmund, 181
Cabinet system, 178, 181
Calvin's Case, 38
Case of the Army, 79 f.
Checks and balances, 4, 22 f., 56, 72, 88, 106, 108,
111, 119, 125 f., 149, 159, 174 ff., 185, 1968., 211
Chrysostom, Dio, 24
Cicero, 17, 23, 26 f.
Civil Wars, 8, 43 ff., 130, 184
Claypole, John, 115
Coke, Sir Edward, 67, 163, 169, 184 f., 207 f.
Colepepper, Sir John, 52
Commonwealth, 48, 90, 129, 134 f.
Confusion Confounded, 69
Conservators of Liberty, 156 f., 159
Constitutionalism, 3 ff., 212 ff.
Constitutions, American, 72, 198 f.
Contact clause, 203 f.
Cook, John, 184
Copy of a Letter from an Officer, 131
Copy of a Letter ... to an Officer, 117
Cornford, F. M., 14
Cromwell, Oliver, 43, 48, 68, 69, 81, 85, 86, 94,
Cromwell, Richard, 49, 78, 127, 140-148, 158
Danby, 186, 206, 234
Dartmouth College Case, 202 ff.
Day v. Savadge, 208
De Rhetorica ad Alexandrum, 15
Democracy, 9, 11, 18 ff., 30, 75 ff.
Deposition, 34 f.
Desborough, John, 115, 121 ff., 153
Despensers, 32, 38
Dialogue on ... Parliament, 181
Dicey, A. V., 213 f.
Digitus Testium, 56, 169
Digna vox, 28
Dionysius of Halicarnassus, 23, 59
Double majesty, 8 f., 30 ff., 51, 207 ff.
Douglas, John, 179
Due process, 214
Ecclesia, 6, 138
Egidius Romanus, 33
Elizabeth, 50, 52
England's Safety, 148
Equality, 11, 212
Equity, 16 f.
Erskine, James, 177
Exclusion Bill, 185
Farrell, Walter, 35, 218
Federative power, 195
Fenwick, Sir John, 192
Fiennes, Nathaniel, 62, 118, 123,
126, 140 Fifth Monarchy, 47, 48, 91,
146 f. Filmer, Sir Robert, 54, 59, 62,
174 Firth, Sir Charles, 106, 118, 222
Fiscus, 27, 29
Five Knights' Case, 39
Fleetwood, Charles, 121 ff., 143, 147, 152
Fletcher v. Peck, 201 f.
Forsett, Edward, 51
Fortescue, Sir John, 33 f., 37, 208
Fortescue-Aland, John, 208
Foundations of Freedom, 83
Fox, Charles James, 168, 182
Freedom of conscience, see Religious liberty
Fundamental laws, 184
Gardiner, S. R., 103
Gellius, Aulus, 27
George III, 181, 189
Giannotti, Donato, 30, 170
Gierke, Otto, 8, 9, 34
Glynne, Sir John, 114, 118
Gneist, R. von, 37
Goddard, Guibon, 109
Godden v. Hales, 185
Good old cause, 146
Goodenough, E. R., 24
Goodgroom, Richard, 131, 228
Gothic balance, 129 f., 170 f.
Gothic constitution, 169 ff.
Graphe paranomôn, 6 f.
Gray, J. C., 205
Guicciardini, Francesco, 30
Haines, G. G., 201 f.
Hale, Matthew, 109
Hall, Edmund, 56, 169
Hall, John, 128
Hammond, Anthony, 179
Harrington, James, 43, 45, 70, 95 f., 97, 124, 128 ff.,
142, 144, 148, 170-73
Harrison, Thomas, 44, 48, 81, 100 ff.
Haslerig, Sir Arthur, 108, 125, 147, 152 ff.
Hayek, F. von, 215
Heads of the Proposals, 78 f., 104
Hereditary kingship, 92, 116 ff.
Hobart, Sir Henry, 208
Hobbes, Thomas, 8, 54, 59, 128, 132, 174, 212
Holmes, O. W., Jr., 205 f.
Howell, James, 116
Humble Address and Remonstrance, 116
Humble Petition and Address, 147 f.,
Humble Petition and Advice, 48, 56, 70, 72, 88,
112 ff., 140, 146, 152
Humble Petition of ... Well-Affected, 148
Humble Petitions, 153
Humble Representation, 154
Hume, David, 163, 167, 173, 180 f.
Hunton, Philip, 53, 62, 184
Hutcheson, Archibald, 187
Impartiality, 11 f.
Independents, 47, 74, 83, 89, 158
Instrument, 48, 70, 72, 93, 98 ff., 131, 140, 152
Intelligence, free, 14 ff.
Ireton, John, 78 ff., 104
James I, 50 f.
Jefferson, Thomas, 68, 199
Jellinek, Georg, 7
John of Paris, 30
Johnson, Samuel, 188
Judicial review, 199 ff., 207 ff.
Judiciary, independence of, 193 ff., 205 f.
Justinian, Code of, 26 f., 67
Kenyon, Lloyd, 189
Kingship, see Hereditary kingship; Monarchy
Laertius, Diogenes, 21
Lambert, John, 44, 48 f., 78, 101 ff., 115, 121 ff., 141
ff., 147 ff., 230
Law, generality and prospectivity in, 4, 8, 10 ff., 26
ff., 62 ff., 193 ff., 201 ff.; Greek idea of, 10 ff.; Roman ideas of, 26 ff.;
rule of, 11 ff., 135 f., 211 ff.
Leges imperii, 29, 35
Leslie, Charles, 174
L'Estrange, Sir Roger, 57, 71, 223
Leveller, The, 149
Levellers, 47, 56, 63 ff., 73 ff., 86 ff., 93, 98, 100,
130, 163 ff., 168, 184, 192, 205
Lex imperii, 28
Lex regia, 35
Liberty, 163 ff.
Lilburne, John, 44, 63 ff., 73 ff., 86, 206
Lippmann, Walter, 215
Little Parliament, 48, 92, 102 f., 146
Locke, John, 168, 187 f., 191, 193, 195
London Journal, 180
London v. Wood, 208
Long Parliament, 39, 47, 75, 158
Lords, 76, 86 ff., 90, 119, 124 ff., 144 f., 176 f.
Ludlow, Edmund, 85, 101, 115, 131, 141, 147, 153, 155
Macaulay, T. B., 192
Machiavelli, N., 30, 50
McIlwain, C. H., 37, 211
Macurdy, Grace, 13
Major-Generals, 112 ff.
Manwaring, Roger, 51
Marbury v. Madison, 200 ff.
Marshall, John, 200 ff.
Maynard, Sir John, 126
Militia Bill, 114 f.
Milton, John, 52, 69, 75, 92
Mirror, A, 166
Mixed state, 7 ff., 19 ff., 30 f., 49, 51 ff., 87 f.,
99, 106, 123 f., 129, 165 f., 168, 172, 174 ff., 180 ff., 184, 211, 215 See
Monarchy, 4, 18 ff., 24, 30, 90 f., 129; medieval, 7 f.,
31 ff., see also Double majesty; mixed, see Mixed state
Monk, George, 49, 71, 1538.
Montesquieu, 9, 13 f., 36 f., 172, 195 ff.,
Morley, Herbert, 143
Moyer, Samuel, 127, 142 f., 230
Naylor, James, 112 ff., 119
Nedham, Marchamont, 70, 93, 106, 128, 165, 167, 227
Neville, Henry, 96, 132, 135, 141, 143, 145, 157, 171
Nineteen Propositions, 52
Nomos, 6 f., 10, 16 f.
Oligarchy, 18 ff.
Osborne, Francis, 92
Otis, James, 199, 208
Overton, Richard, 68, 73, 75, 86, 22; Overton, Robert,
Paley, William, 193
Panharmonia, 149 ff.
Parker, Henry, 60, 64, 92
Patronage, 178 ff.
Paulus, 27 f.
Peerage Bill, 177
Penington, Isaac, 63
Pitt, William, 195
Plato, 10 ff., 19 ff., 212 f.
Plucknett, T. F. T., 207
Polity, 12, 13, 19 ff., 31
Polybius, 7, 22 ff., 30, 52, 173, 211
Prerogative, 50 Presbyterians, 47, 48, 56, 81, 108, 145,
150, 152, 158
Pride, Thomas, 122, 146
Prime minister, 178 ff.
Prince, Thomas, 74
Privilegium, 26 ff.
Proclamations, Case of, 207
Prohibitions, Case of, 207
Property, 4, 168
Prynne, William, 88
Psephisma, 6, 10, 16
Ptolemy of Lucca, 33
Pufendorf, Samuel, 211
Pym, John, 74
Quakers, 74, 112
Rainsborough, Thomas, 75
Raleigh, Sir Walter, 52, 59, 130
Reason of state, 50
Regimen despoticum, 31, 34, 36
Regimen politicum, 31, 35, 36 f., 39
Regimen regale, 31, 34, 35
Religious liberty, 4, 74, 112 ff., 119, 127, 148
Remonstrance of Many Thousand, 75, 87
Remonstrance ... at St. Albans, 82,93
Representation from ... Fairfax, 78
Republic, see Commonwealth; separation of powers in, 197
Republicans, 89 ff., 98, 108 ff., 124, 141, 146, 174,
Robinson, Henry, 165
Rotation, 131, 139
Rump, 48, 56, 71, 89 ff., 98, 100, 108, 146 ff., 164,
Russell, Lord John, 182
Sadler, John, 60
St. Isidore, 30
St. Thomas, 30, 33 ff., 214
Scot, Thomas, 108, 125, 141
Selden, John, 163, 169
Seneca, 23, 29
Separation of powers, 4, 8 f, 59 ff., 106, 149, 156, 179
f., 191 ff.
Several Politic ... Observations, 55, 130
Sexby, Edward, 44, 74, 80
Sharp, Granville, 208 f.
Sheringham, Roger, 54
Ship-Money, Case of, 39
Sidney, Algernon, 96, 167, 171
Sindercomb, Miles, 44, 117
Smith, Adam, 199
Smith, Sir Thomas, 130
Socrates, 18 f.
Solemn Engagement, 77
Solon, 4 f., 20
Sovereignty, 9, 29, 35, 51, 182, 184 ff., 211 f.
Sparta, 20, 22, 31, 52
Starkey, Thomas, 51
Steele, Sir Richard, 177
Stoicism, 13, 17, 21, 24 f., 34
Swift, Jonathan, 172 f., 174 f.
Tacitus, 23, 167, 169 ff.
Terrett v. Taylor, 204, 210
Theodosian Code, 26
Tindal, Matthew, 186
Trenchard, John, 173, 175 f.
True Portraiture, 92
True State of the Case, 69, 106
Twelve Tables, 26
Ulpian, 26, 28, 35
Vane, Sir Henry, 94, 141, 147, 155
Vested rights, 204 f.
Veto, 90, 94, 105, 107, 152, 190, 194
Vindiciae contra Tyrannos, 36
Walpole, Sir Robert, 177 ff.
Walwyn, William, 74
Ware, John, 164, 165
Weaver, John, 141, 143, 230
Webster, Daniel, 202 ff.
Wentworth, Peter, 163
Whitelocke, Bulstrode, 99, 103, 118, 126, 157
Wildman, John, 74, 80, 85, 93, 143
Wilkes, John, 181
Wren, Matthew, 133, 135
Writs of Assistance, Case of, 199, 208
Xenophon, 17, 18