THE ORIGINS OF MODERN CONSTITUTIONALISM
By
Francis D. Wormuth
HARPER & BROTHERS, PUBLISHERS NEW YORK
THE ORIGINS OF MODERN CONSTITUTIONALISM
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
L-X
To Robert Pelton Sibley
and Cora Billard Sibley
Contents
Preface ix
CHAPTER
1. INTRODUCTION
I. The Tradition of Constitutionalism 3
II. The Greek Conception of Law 10
III. The Classification of Governments 18
IV. Some Roman Ideas of Law 26
V. Double Majesty 30
2. THE CROMWELLIAN CONSTITUTIONS
VI. The English Civil Wars 43
VII. Mixed Monarchy 50
VIII. The Separation of Powers 59
IX. The Agreement of the People 73
X. The House of Lords 86
XI. Republicanism 89
XII. The Instrument of Government 98
XIII. The Humble Petition and Advice 112
XIV. James Harrington 128
XV. The Constitutions of 1659 140
3. THE GOTHIC CONSTITUTION
XVI. Liberty and Authority 163
XVII. The Gothic Constitution 169
XVIII. Checks and Balances 174
XIX. The Alterability of the Constitution 184
XX. The Separation of Powers 191
XXI. Double Majesty and Judicial Review 207
XXII. The Rule of Law 211
Notes 216
Index 239
Preface
The french revolution has not received more attention than it deserves; but in comparison disproportionately little attention has been given to the English Civil Wars of the seventeenth century. In a more modest way, these too helped fix the shape of the modern world. Specifically, most of the devices and ideas which have found expression in subsequent constitutions date from the experiments and theories of that day.
The present study undertakes to describe the introduction into political science of these devices, the most familiar of which are the separation of powers, bicameralism, the written constitution, and judicial review. No attempt is made to carry on the story in eighteenth- and nineteenth-century America, but connective tissue is supplied to form a juncture with the work of Haines, Corwin, and Wright, who have already dealt with the American materials more competently than the present writer could hope to do. Nor has any effort been made to trace the undeniable connection between English constitutionalism of the seventeenth and eighteenth centuries and the constitutional documents of continental Europe in the late eighteenth, nineteenth, and twentieth centuries.
The author acknowledges with pleasure the assistance of numerous friends: among others, his colleague, Otto Brendel, who read and criticized the classical and medieval sections, and another colleague, the late William T. Morgan, who supplied valuable advice on eighteenth-century materials; Frederick G. Marcham and the late Carl L. Becker of Cornell University; Wallace Notestein and George L. Lam of Yale University. The John Simon Guggenheim Memorial Foundation made it possible to undertake the study.
F. D. W.
1
INTRODUCTION
CHAPTER I
The Tradition of Constitutionalism
A CONSTITUTION is often defined as the whole body of rules, written and unwritten, legal and extralegal, which describe a government and its operation. This is a permissible and indeed a highly convenient usage. But there is a more restricted idea equally deserving of a name — the idea of a constitution as a contrivance which not only describes but confines government, at least in its everyday activities. The argument for such confinement was stated by Alexander Hamilton in The Federalist: "In framing a government which is to be administered by men over men, the greatest difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on government; but experience has taught mankind the necessity of auxiliary precautions."
To these auxiliary precautions we give the name constitutionalism. The tradition of constitutionalism begins in ancient Athens and has had a long, interrupted, and irregular history to the present day. It has embraced devices of two kinds. Institutional arrangements of one sort or another have been advocated on the ground that they protected substantial interests from governmental encroachment. "Checks and balances" have been the machinery on which most of these contrivances relied; they have been nothing less than a fetish with constitution-makers. Furthermore, there has been a persistently recurring idea of the character of law. Two inferences have been drawn from the proposition that law is a rule of conduct — that it is general, and that it is prospective. To implement this conception, the doctrine of the separation of the legislative from the executive power was introduced, and it will be argued below that judicial review relies heavily on the same idea.
Among substantial interests property is prominent, and it is natural that the "auxiliary precautions" which take the form of institutional arrangements should aim at the protection of property. In the ancient world, with its republican institutions, the propertied class undertook to defend itself against the propertyless; in the Middle Ages, when kingship was the chief political institution, property opposed itself to the royal power. But constitutionalism has been used to protect other interests as well. In Athens in the fourth century before Christ there were institutional arrangements intended to prevent the democracy from being overthrown by a tyrant. From the beginning of modern constitution-making in seventeenth-century England, freedom of conscience has been an object of primary concern. The American constitutions of the eighteenth century gave great attention to the protection of persons accused of crime.
Conscious constitution-making appears to have entered the Mediterranean world when the clan organization weakened and the contest of rich and poor became a significant factor in politics. Solon was perhaps the first constitution-maker. Plutarch says of his legislation for Athens: "Wishing to leave all the magistracies in the hands of the well-to-do, as they were, but to give the common people a share in the rest of the government, of which they had hitherto been deprived, Solon made an appraisement of the property of the citizens."1 Property qualifications were established for office-holding, but not for the franchise, a device intended to protect the interests of both classes.
A sort of bicameralism was another classical device. The Athenian Areopagus and the Roman Senate, in the days of empire-building, directed foreign policy and shared domestic power with the popular assemblies. Cicero found in the Roman Senate itself a combination of aristocracy and democracy gratifying to both principles.2
But the constitutional arrangements of democratic Athens were the most elaborate. When the oligarchic Areopagus had been stripped of its power, the chief concern was the protection of the democracy. At the time of Demosthenes the jurymen of the great popular court, the Heliaea, swore: "I will give verdict in accordance with the statutes and decrees of the people of Athens and the Council of Five-hundred. I will not vote for tyranny or oligarchy. If any man try to subvert the Athenian democracy or make any speech or any proposal in contravention thereof, I will not comply. I will not allow private debts to be cancelled, nor lands nor houses belonging to Athenian citizens to be redistributed. I will not restore exiles or persons under sentence of death. I will not expel, nor suffer another to expel, persons here resident in contravention of the statutes and decrees of the Athenian People or the Council. ..."3
In addition, every Athenian citizen took this oath:
(1) All notes will be found on pp. 216 ff.
If it be in my power, I will slay by word and deed, by my vote and by my hand, whosoever shall suppress the democracy at Athens, whosoever shall hold any public office after its suppression, and whosoever shall attempt to become tyrant or shall help to install a tyrant. And if another slay such an one, I will deem him to be without sin in the eyes of the gods and powers above, as having slain a public enemy. And I will sell all the goods of the slain and will give over one half to the slayer, and will withhold nothing from him. And if anyone shall lose his life in slaying such an one or in attempting to slay him, I will show to him and to his children the kindness which was shown to Harmodius and Aristogeiton and to their children. And all oaths sworn at Athens or in the army or elsewhere for the overthrow of the Athenian democracy I annul and abolish.4
But the chief constitutional device was the indictment for proposing illegal measures, the graphe paranomôn. This turned largely on the distinction between laws 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 review.5
But what survived the ruin of the ancient world was none of these devices; it was Polybius' fanciful description of the Spartan and Roman constitutions as mixtures of monarchy, aristocracy, and democracy. In seventeenth-century England this conception was drawn into the active current of constitution-making, where it has remained to this day.
There appeared in the Middle Ages another point of view which was not entirely ousted by revived Greek ideas. What the ancient and modern world have understood by the state was unknown in the Middle Ages. Jellinek believed the medieval idea to be Germanic in origin: "While the ancient state appears at the beginning of its history as polis or civitas, as an undivided community of citizens, the monarchical Teutonic state is from the beginning dualistic in form — prince and people form no integral unity, but stand opposed to each other as independent factors."6 Whether we accept the Germanic attribution or explain this dualism in terms of the conditions of conquest and the subsequent development of feudal institutions, we must recognize the changes which it introduced. In the Middle Ages the state was hardly more than the person of the king.
In certain spheres he possessed over his subjects a personal authority unlimited and supreme; other areas, often opposed to him under the name of the kingdom, but consisting in substance of property and feudal institutions, were thought of as autonomous, self-organized, and withdrawn from political power. Gierke attributed the revival of the unitary conception of the state to Hobbes;7 he has fixed the time accurately enough, but the ascription of authorship is unduly narrow. In spite of the return of the state to politics, however, the medieval conception of a dualistic society — Gierke called it the idea of "double majesty" — lingered long in English law, and in this country it supplied the background of the characteristic American distrust of government.
It was also during the English Civil Wars that the second feature of constitutionalism mentioned above — the proposition that law should be prospective and general — reappeared. This idea was recognized in both Athenian and Roman jurisprudence, but its revival in the seventeenth century does not seem to have resulted from classical influences. It very soon became associated with the new doctrine of the separation of powers. If law is to be general and prospective in character, it is improper for the legislative power to deal with particular cases. The temptation to improvise a special rule may prove too strong. Likewise it is improper for the executive power, which applies rules to individuals, to possess legislative power, for once again persons may be deprived of the advantage of known and settled rules. Among arguments for separating the legislative and executive functions, these were perhaps the most cogent.
The doctrine of separation of powers was immediately assimilated to the mixed monarchy, with the king in the role of independent executive; a second balance, that of legislature against executive, was added to the conventional balance of king, lords, and commons. Here we have most of the elements of modern constitutional thought. The complication of the doctrine of balance by the recognition of a third power, the judicial, is usually attributed to Montesquieu, but this seems not to have been Montesquieu's intention. This misconception of Montesquieu may have helped make more plausible the American doctrine of judicial review, but the true ancestry of that doctrine seems to be the original distinction between legislative and executive power, which reinforced the idea that the legislative function was merely to formulate general rules for the future, and the medieval conception of a twofold society. The English common law became the inheritor of the tradition of an autonomous realm independent of governmental power, and in defense of the common law American judges resisted the actions of government.
Gierke has said that "the principle of popular sovereignty never played any serious part in the theory of constitutionalism."8 Rather, that theory seems to have consisted of two strands, the one institutional and the other jurisprudential, which were twined together during the Interregnum and at a somewhat later date came into association with "double majesty." Among these elements the jurisprudential idea seems central, and perhaps this alone possesses permanent value.
CHAPTER II
The Greek Conception of Law
GREEK discussions of law in the fifth and fourth centuries before Christ turned chiefly on the contrast between government according to fixed laws and the discretionary rule of an unfettered king or statesman. The differences of opinion were less striking than the points of agreement. The generality of law was always considered to be its characteristic feature. The utility of law was a consequence of its generality; and generality also carried with it disadvantages. Disagreements turned on the question whether the virtues of generality outweighed its defects.
An Athenian nomos provided that no law or decree should be passed dealing with an individual, except the measures which required the concurrence of the extraordinary majority of six thousand, such as ostracism.1 Aristotle's chief reproach to democracy was directed toward its tendency to substitute for nomoi (by which he meant general rules) popular decrees or psephismata,2 which he defined — inaccurately,3 as it happens — as dealing only with particulars.
The idea of a rule of conduct implies not only generality but prospectivity. The evidence that the Greeks drew this inference is not abundant. But Plato defined law as a judgment for the future,4 and Aristotle spoke of it as "prospective and general."5 Demosthenes on one occasion uttered a violent denunciation of retroactive legislation, saying that it was appropriate to the lawless rule of oligarchs.6
What were the virtues of generality? It was common for democratic spokesmen to identify laws with democracy. Aeschines announced that: "Tyrannies and oligarchies are administered according to the temper of their lords, but democratic states according to their own established laws."7 Demosthenes, in attacking Philip of Macedon, urged that "every king, every despot is the sworn foe of freedom and law."8 The democratic element in law was the equality which results from generality. Euripides in his Suppliants makes Theseus reply to the Theban Herald:9
No worse foe than the despot hath a state,
Under whom, first can be no common laws,
But one rules, keeping in his private hands
The law: so is equality no more.
But where the laws are written, then the weak,
And wealthy have alike but equal right.
Yea, even the weaker may fling back the scoff
Against the prosperous, if he be reviled;
And, armed with right, the less o'ercomes the great.
Equality can be regarded as a special function of a more inclusive virtue, that of impartiality. Plato in his Statesman suggests that general rules are indifferent to particular persons and are therefore more just than the self-interested actions of uncontrolled rulers.10 Law, says Aristotle, is the "mean or neutral";11 its "general principle" is that it is "free from passion."12 Of arguments for decision by fixed rules rather than by discretion, "The weightiest reason of all is that the decision of the lawgiver is not particular but prospective and general, whereas members of the assembly and the jury find it their duty to decide on definite cases brought before them. They will often have allowed themselves to be so much influenced by feelings of friendship or hatred or self-interest that they lose any clear vision of the truth and have their judgment obscured by considerations of personal pleasure or pain."13 Aristotle has other arguments in favor of laws which are less fundamental: the lawgiver is likely to be a wiser man than the jurors or magistrates;14 law is an educational device useful in inculcating moral virtue through habit.15
In all this, however, it is assumed that the laws are good laws. Obviously it is quite possible for laws to be contrived so as to insure inequality and partiality rather than equality and impartiality. Plato in his Laws declares that such measures do not deserve the name of laws.16 It is to prevent corruption of the state by biased legislation that he introduces his polity or mixed state, which is intended to balance the two sources of distortion — property and numbers — against each other. Aristotle defines the good state not as a law-abiding state, but as one which serves the general good." Laws are relative to the constitution; consequently, true forms of government will have just laws, and perverted forms — which he reckons to be tyranny, oligarchy, and democracy — will have unjust laws.18 "Someone may say that it is bad in any case for a man, subject as he is to all the accidents of human passion, to have the supreme power, rather than the law. But what if the law itself be democratical or oligarchical, how will that help us out of our difficulties? Not at all; the same consequences will follow."19 So Aristotle says that a government constituted on oligarchical principles is no true state, even though the oligarchs obey the laws.20 Obedience to the laws is not enough for good government; the laws themselves must be good.21
But even good laws may be a source of error, because of their generality. This has an odd sound to later ears, for two developments in thought subsequent to Aristotle have associated the idea of generality with that of truth. The Stoic philosophy postulated universal laws of reason and morality which maintain order and harmony in the universe. In the eighteenth century there was joined to this conception the notion of invariable physical laws which describe, as Montesquieu put it, "the necessary relations arising from the nature of things." The supposed regularity of the universe enhanced the prestige of law enormously.
But the pre-Hellenistic Greeks did not believe in the cosmic jurisprudence of the Stoics. Attempts have been made to read this conception into the "unwritten and secure laws of the gods" and the "high heavenly laws" in Sophocles, but Miss Macurdy has shown that such expressions referred only to "old social customs which had become binding and religious, involving a curse if transgressed." These customs were limited to burial of the dead, retaliation for the murder of kindred, the prohibition of incest, and the duty of honoring gods and parents.22 It has sometimes been thought that Aristotle in Book III of the Politics makes law not a useful instrument, but a final object of value, as it later became with the Stoics; and indeed he does say that "he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the wild beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men."23 But here Aristotle is merely reporting the arguments against monarchy, as he has earlier reported the arguments in favor of monarchy. This sentence is nothing but an abridgment of Plato's renunciation of free intelligence in the Laws. That Aristotle did not indorse all that might be read into the sentence is made clear when he concludes the rehearsal of conflicting views: "These are the principal controversies relating to monarchy." For he goes on to say: "But may not all this be true in some cases and not in others?"
Nor could the Greeks make human laws appear at home in a Newtonian universe, as Montesquieu undertook to do, for their universe was a very different affair. Professor Cornford has said that "The word law is missing from the vocabulary of Greek science" because the Greeks did not think in terms of the necessary relations between things; "those relations of a substance which take the form of its action on other substances were considered under the aspect of powers or capacities of action residing in the substance."24 The Greeks had no notion of the universe as a machine operating according to cause and effect, and this analogy, which gives so much credit to regularity and thus increases respect for rules of law, was not available to them.
The operation of intelligence on the universe — the solution of problems — could not be reduced to rule. So we sometimes find law unfavorably contrasted with unfettered action. Isocrates, in writing to Philip of Macedon in 346 b.c. to solicit him to lead the Greeks against the Persian king, said that he had singled out Philip "because I saw that all the other men of high repute were living under the control of polities and laws, with no power to do anything save what was prescribed"; Philip, on the other hand, had "untrammeled freedom" to consider all Hellas his fatherland.25 The pseudo-Aristotelian letter to Alexander, prefixed to the De Rhetorica ad Alexandrum, seems to make the same point: "whereas among those whose political constitution is democracy the final appeal on all matters is to the law, among those who are under kingly rule the appeal is to reason."26
Plato carried this idea to the extreme in his Republic. All problems were unique; they could be solved only by free intelligence. A professional class of governors was therefore postulated to perform this task. In the Statesman he reluctantly modified his position. True, he still maintained that the one best rule, and the one true government, is rule by science, by one who makes his art a law and shows a "strength of art which is superior to the law."27 Law, indeed, because it attempts to force the "endless irregular movements of human things" into an inflexible rule, is "an obstinate and ignorant tyrant." Nevertheless the legislator must make some general rules, "for how can he sit at every man's side all through his life, prescribing for him the exact particulars of his duty?" And laws have at least the negative virtue of being more just than the selfish actions of uncontrolled rulers. Moreover, very few can attain to the royal science which governs by art and is the only true form of government. Lacking this, states must content themselves with the second-best form, which imitates the laws established to guide, but not to bind, the true state of royal art. The Laws goes even further than the Statesman: here the second-best state is the only possible form. This is not because Plato has a lower opinion of free intelligence, or a higher opinion of rule, but because he has lost confidence in men.
Mankind must have laws, and conform to them, or their life would be as bad as that of the most savage beast. And the reason of this is that no man's nature is able to know what is best for human society; or knowing, always able and willing to do what is best. ... Human nature will be always drawing him into avarice and selfishness. ... For if a man were born so divinely gifted that he could naturally apprehend the truth, he would have no need of laws to rule over him; for there is no law or order which is above knowledge, nor can mind, without impiety, be deemed the subject or slave of any man, but rather the lord of all. I speak of mind, true and free, and in harmony with nature. But then there is no such mind anywhere, or at least not much; and therefore we must choose law and order, which are second best.28
Aristotle never reaches this level of pessimism. It seems to him altogether practicable to remedy the shortcomings of law.
What creates the problem is that the equitable is the just, but not the legally just but a correction of legal justice. The reason is that all law is universal but about some things it is not possible to make a universal statement which shall be correct. ... When the law speaks universally, then, and a case arises on it which is not covered by the universal statement, then it is right, where the legislator fails us and has erred by over-simplicity, to correct the omission. ... Hence the equitable is the just, and better than one kind of justice — not better than absolute justice but better than the error that arises from the absoluteness of the statement. And this is the nature of the equitable, a correction of law where it is defective owing to its universality. In fact this is the reason why all things are not determined by law, viz. that about some things it is impossible to lay down a rule, so that a decree is needed.29
It appears, then, that Aristotle, in spite of his hostility to psephismara, thought that equity sometimes required enactment of a decree to correct the shortcomings of the nomoi. It was also necessary for the judge to resort to equity in cases where the law could not cover the infinite variety of nature.30 But equity appears chiefly in arbitration, which Aristotle recommends because "an arbitrator goes by the equity of a case, a judge by the strict law, and arbitration was invented with the express purpose of securing full power for equity."31
Such a pragmatic attitude toward law is very different from that introduced in succeeding centuries by the Stoics, who equated law to reason and both these to morality and the universe. "Law is ruler of all,"32 said Chrysippus; and this law was an immutable and invariable system discovered by human reason. It followed, as Cicero said, that statutes which went contrary to this divine code "no more deserve to be called laws than the rules a band of robbers might pass in their assembly."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 among friends.
CHAPTER III
The Classification of Governments
GREEK political experience made the classification of states into government by one, by the few, and by the many familiar at an early date. Probably the arguments for and against each form reported by Herodotus, writing in the second half of the fifth century before Christ, were equally familiar. Monarchy, it was said, is the government of the very best man in the state; on the other hand, it was argued that power corrupts the king, leads him on to savage violence and violation of the laws. Oligarchy is the government of the worthiest and will produce good counsels, but it leads to faction and strife. Democracy practises equality and makes power accountable to the people, but a mob is ignorant and destructive.1 All these arguments have been repeated thousands of times since.
Socrates, if we can trust Xenophon,2 believed it possible to distinguish the virtuous condition of these forms from the vicious. When a single ruler governed over willing subjects according to law, he was a king; but when he ruled over unwilling subjects in violation of law, he was a tyrant. When the magistrates were chosen "from those who discharged the obligations prescribed by law," this was an aristocracy, the government of the best; when the title to office depended on property, the government was a plutocracy.
But Socrates recognized only one form of democracy, "where all the citizens without distinction held the reins of office."
We need not consider the classification of governments set up in Plato's Republic,3 for he himself abandoned it and it played no part in subsequent history. In the Statesman he established, in addition to the perfect government of royal art, a sixfold classification. There were three possible forms of the second-best state — monarchy, aristocracy, and democracy — all ruling according to law. Paralleling these were the three vicious forms — tyranny, oligarchy, and again democracy — all without the restraints of law.4 The same classification holds in the Laws,5 and the same principle of subordination to law: "For that state in which the law is subject and has no authority, I perceive to be on the highway to ruin; but I see that the state in which the law is above the rulers, and the rulers are the inferiors of the law, has salvation, and every blessing which the gods can confer."6 But laws which seek the interests of particular classes rather than the whole state are not just, and states following such laws are not true states at all; they belong among the corrupt forms.7 How is such corruption to be avoided? To solve this problem Plato proposes a seventh form, not the perfect state of the Republic and the Statesman, but a new form which he calls by the generic name of all valid governments, a polity. Believing, in his old age, in the weakness of human character, Plato thinks that "there ought to be no great and unmixed powers."8 Now there are "two mother forms of states," monarchy and democracy, and "if you are to have liberty and the combination of friendship with wisdom, you must have both these forms of government in a measure; the argument emphatically declares that no city can be well governed which is not made up of both." In fact, however, as Aristotle later pointed out, "The constitution proposed in the Laws has no element of monarchy at all; it is nothing but oligarchy and democracy, leaning rather to oligarchy."9 The institutions of the Laws were evidently adapted from the constitution of Solon, for the citizenry is divided into four classes on the basis of wealth, and an attempt is made to weight the system to the advantage of the wealthier classes.
Probably Solon should be called the father of the mixed constitution. He said of himself:10
I stood with a mighty shield in front of both classes, And suffered neither of them to prevail unjustly.
Thucydides ascribed the same purpose to the constitution of the Five Thousand established in Athens in 411 b.c. after the overthrow of the Four Hundred: "For the fusion of the high and the low was effected with judgment, and this was what first enabled the state to raise up her head after her manifold distractions."11 Plato in 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 thereafter.
Cicero in his Republic adopted the classification of governments of Polybius and offered a somewhat modified and muddied version of Polybius' theory of revolutions.27 He believed too that "none of the simple forms is best, but that a state properly compounded of all three types is better than any one by itself." Dionysius of Halicarnassus, writing in the Augustan period, gave explicit recognition only to the three simple forms of government,28 but he described Romulus as instituting a "division of authority" very like the constitution of Polybius.29 Thereafter the "composite form of state" was in disrepute with Roman writers. Seneca was a confirmed monarchist. Whereas Cicero had spoken of the state as united by a "bond of law," Seneca said that the emperor is "the bond by which the commonwealth is united."30 A state reaches its best condition under the rule of a just king;31 "Nature herself conceived the idea of king, as we may recognize from the case of bees and other creatures."32 Plutarch recognized only the three simple forms of government and thought monarchy the best.33 Tacitus, despite his nostalgia for the virtuous earlier days, remarked dryly: "For every country and city must be ruled either by the populace, or by the few, or by one man; a form of government selected and compounded out of these elements may be commended more easily than brought into being; nor could it endure were it set up."34
Roman political thought now underwent an evolution comparable to that which had produced a philosophy of kingship in Hellenistic Greece.35 Monarchy had been discussed in academic fashion before Alexander, and the Persian monarchy had had its admirers, but, as Aristotle said, only democracies could exist in fourth-century Greece.36 The conquests of Alexander, however, resulted in the revival of monarchy. Speaking of the state of affairs in the empires quarried out of the Alexandrian territories, Professor Goodenough has said, "the King is personally the constitution of his realm, ... all the laws of localities under him must be ultimately moulded by and express his will."37 To make this palatable his subjects attributed to him the character of divinity and also the Cynic or Socratic attributes of the wise man.
The philosophy of kingship which was used to justify the Roman Empire was more Stoic than Cynic. Dio Chrysostom, in four discourses delivered before Trajan, elaborated the doctrine. There are three forms of government based on law and justice, and three lawless forms. But aristocracy is neither practicable nor expedient, and a lawful democracy is highly improbable. The most practicable government is "where we have a city, or a number of peoples, or the whole world, well ordered by one man's judgment and virtue."38 The primacy of Zeus in heaven and that of the rulers of herds of cattle and swarms of bees "indicate clearly that it is natural for the stronger to govern and care for the weaker."39 The true king "orders and governs his people with justice and equity in accordance with the laws and ordinances of Zeus."40 These laws and ordinances are the familiar Stoic law of reason.
I might well speak next of the administration of the universe and tell how the world — the very embodiment of bliss and wisdom — ever sweeps along through infinite time in infinite cycles without cessation, guided by good fortune and a like power divine, and by foreknowledge and a governing purpose most righteous and perfect, and renders us like itself since, in consequence of the mutual kinship of ourselves and it, we are marshalled in order under one ordinance and law and partake of the same polity. He who honors and upholds this polity and does not oppose it in any way is law-abiding, devout and orderly; he, however, who disturbs it, as far as that is possible to him, and violates it or does not know it, is lawless and disorderly, whether he be called a private citizen or a ruler, although the offence on the part of the ruler is far greater and more evident to all.41
CHAPTER IV
Some Roman Ideas of Law
THE Romans were thoroughly familiar with the ideas about law which enter into the tradition of constitutionalism, even though these ideas played no important part in their public life. At least in the late formulations, the generality of law was taken for granted: Law (lex) is a general precept, said Papinian;1 and Ulpian wrote, "Laws (jura) are not established for individuals, but for general purposes."2 Prospectivity was likewise assumed, and occasionally this assumption was made explicit. An explosive passage in Cicero seems to argue that a retroactive measure is a physical impossibility.3 The Theodosian Code states that laws do not condemn past actions but fix a rule for the future,4 and the Code of Justinian preserves a command by Theodosius II and Valentinian III that laws are not to be applied to past transactions unless they are expressly made retroactive.5
But if jus and lex were general, special laws were familiar enough. The earliest name for these measures was privilegia. The privilegium was, as the name indicates, a private law, a piece of legislation dealing only with individuals or with particular groups. Ordinarily it conferred a benefit or immunity. In 450 b.c. the Twelve Tables forbade the passing of privilegia "in favor of private persons to the injury of others, contrary to the law common to all citizens, and which individuals, no matter of what rank, have a right to make use of."6 Cicero in 57 b.c. appealed to this provision of the Twelve Tables in order to secure the return of his home, which had been consecrated during his exile by Clodius.7 It is not clear that a special measure which conferred no privilege but merely operated to the disadvantage of a single person came within the prohibition of the Twelve Tables, but in the Laws also Cicero defined a privilegium as a law which penalized a particular individual.8
After Cicero there were no protests against privilegia. Aulus Gellius in the second century after Christ defined lex as a general command, a privilegium as one concerning individuals.9 Privilegia constituted a great part of the jus singulare; the remainder consisted of rules special in the sense that they deviated from the general tenor of the law. Opposed to jus singulare was jus commune, the general law.10 Paulus in the third century wrote a Liber singularis de jure singulari, of which nothing survives but the definition, "Special law is that which has been introduced by the authority of those establishing it against the tenor of a legal principle, on account of some particular advantage."11
Justinian's Code contains many examples of privilegia: those of the cities of Rome and Constantinople12 and of metropolitan cities;13 of the corporate bodies of Rome;14 of persons employed in the imperial palace,15 and those serving in favored divisions of the army;16 of the Fiscus;17 and of the lands of the emperor.18 The action for dowry is called privilegium dotis.19 Such privileges, since they did no immediate injury to anyone, did not appear inequitable. They were not given application beyond the particular cases for which they were intended.20
The position of the emperor raised a problem somewhat analogous to that of the privilegium. The emperor was, as Ulpian said, legibus solutus, exempt from the operation of the law, and he ordinarily conferred the same privilege upon the empress.21 But it was not considered proper for the emperor to avail himself of this immunity to the disadvantage of subjects; it was "dishonorable," said Paulus, and unworthy of his majesty not to submit to the laws.22 The authors of panegyrics to the emperors praised them for their obedience to law.23 This opinion culminated in the famous digna vox declaration of Theodosius II and Valentinian III in the year 429: "It is a statement worthy of the majesty of a reigning prince for him to profess to be subject to the laws; for our authority is dependent upon that of the law. And, indeed, it is the greatest attribute of imperial power for the sovereign to be subject to the laws, and we forbid to others what we do not suffer ourselves to do by the terms of the present edict."24
This constitutional morality, as it might be called, developed in connection with two problems in the law. The first arose in the law of wills. It was not uncommon for testators to make the emperor their heir in order to secure to their estates litigious claims or to make good some deficiency in the will. Pertinax refused to accept such inheritances, and Severus and Antoninus likewise declared: "Although we are above the laws, yet we live in obedience to them."25 Hadrian wrote, "It has frequently been decided that even the emperor cannot claim an estate under an imperfect will, for although the lex imperii has released the emperor from the formalities of law, nevertheless nothing is so fitting to sovereignty as to live according to the laws."26 Even more important in establishing the conception of the rule of law was the constitutional position of the Fiscus. This was the imperial treasury, which first overshadowed and then swallowed up the Aerarium, the popular treasury surviving from the republic. It was the creditor or debtor in all claims by or against the state. It could sue and also could be sued. It was in many cases subject to the rules of private law, in others to rules peculiar to the Fiscus, but in all cases to known and settled rules.27 So Roman law developed the doctrine of the suability of the sovereign which has been in modern times the envy of English and the boast of German jurisprudence.
In the sixteenth century Jean Bodin offered in his Six Books of the Republic what is usually called the first statement of the doctrine of sovereignty. Law is the will of the sovereign, and sovereignty is the capacity to make law by an act of will. But the sovereign is limited in four ways: he must observe the laws of God and nature; he cannot alter the "laws which concern the state of the realm, and the establishing thereof"; he must respect the property of his subjects; and he must honor his contracts. The first limitation came from medieval ideas rather than Roman law, for the Roman jurists were clear that any imperial command, however unreasonable, was law.28 The second referred to certain French laws, such as that governing succession to the throne, which the king could not alter. The third also had a medieval background, although Seneca had distinguished between imperium and dominium.29 The fourth was, perhaps, drawn from the Roman law.
CHAPTER V
Double Majesty
ALTHOUGH the mixed state of Polybius went into eclipse when the Roman republic collapsed, the doctrine did not disappear. In the second century Aelius Aristides praised the Roman Empire as being a mixed state and at the same time a complete monarchy.1 St. Isidore of Seville in the seventh century said that law was made by those superior in birth, together with the common people.2 St. Thomas Aquinas argued that God had provided a mixed government for Israel, and had done well. The Jewish state, he said, preserved the advantages of monarchy but escaped corruption into tyranny; it employed virtuous and wise men in the Sanhedrin, which was an aristocratic element, and these were chosen by the people, which was democratic. The scheme possessed the stability which results when all have some share in the government.3 John of Paris believed that monarchy should be mixed with aristocracy and democracy.4 During the Conciliar controversy, antipapal writers argued that the Church should employ a mixed government.5 In Renaissance literature the mixed state became commonplace. Machiavelli attributed the success of the Roman republic to the blending of the three elements.6 Giannotti and Guicciardini recommended mixed government as the best form.7 Erasmus thought that the absolute rule of a prince blessed with all the virtues was best, but a mediocre prince, such as one found currently, should be balanced by the aristocratic and democratic principles, "just as the elements in nature balance each other."8 However, this was a literary tradition which only occasionally, as during the Conciliar controversy and in the Italian republics, touched the political life of the time. The conception of monarchy in the classical mixed state was in fact entirely alien to the medieval idea of kingship. What was called the monarchic element in Sparta and in republican Rome was nothing but a magistracy. Aristotle called the Spartan kings mere generals for life and classified the Spartan state as a polity or constitutional government.9 Medieval kingship, on the other hand, was personal rather than official, and the political bond was a personal tie between king and subject. To describe this, the Middle Ages resorted to Aristotle's basic classification of forms of rule. Aristotle had distinguished three types: despotic rule, in which the ruler employs the subjects as instruments to serve his own purposes; royal rule, in which a natural superior governs his subjects for their benefit; and constitutional rule, in which the citizens rule and are ruled in turn.10 The mixed state fell in the third category. Forced to choose among the regimen despoticum, the regimen regale, and the regimen politicum, medieval writers fixed upon the regimen regale.
Medieval kingship did correspond, in a degree, to Aristotle's royal rule. The government was the king's government — originally, indeed, it was a part of his household. The status of the subject was not one of citizenship but one of allegiance — allegiance to the person of the king. But this was only one side of the shield. The principle of personal rule was military in origin. It had its raison d'être in the field and had little relevance in civil affairs. There were great areas of life which were organized without reference to the king, areas which might almost be said to lie outside the political sphere. This is seen more readily in England than on the Continent, where Roman survivals qualified the simple German institutions. In Anglo-Saxon England property hardly came within the range of political power. Land was owned outright by allodial tenure; there was no escheat to the king until feudalism altered the situation, nor was there a royal right of taxation until the levy of Danegeld in the tenth century. Justice, too, was in the main nonpolitical, and indeed mostly private, for the folk courts were hardly more than arbitral tribunals for the regularizing of self-help. The effect of feudalization was in part to politicize property, in part to depoliticize government. Military duty came to be charged on the land rather than on the man, and thus land was brought into relation to political power. But by a corresponding process the king was forced into the position of a feudal landlord, and attempts were made to translate the political relationship of king and subject into the settled and reciprocal duties expressed in divided land title. This meant that kingship would become a mere legal office, and it is interesting that this point of view was actually urged. In the bill for the banishment of the Despensers in 1321 they were charged with saying that, "Homage and oath of allegiance is more by reason of the crown than by reason of the king's person and is more bound to the crown than to the person ... wherefore if the king by chance be not guided by reason, in the right of the crown, his lieges are bound by oath made to the crown to guide the king and the estate of the crown back again by reason, and otherwise the oath would not be kept."11 In general it may be said that the attempt of the barons in the constitutional struggles of the thirteenth, fourteenth, and fifteenth centuries was to reduce government to the settled rules of property. The kings, on the other hand, attempted to impress the dynamic character of military kingship on the whole social order. The royal policy may be compared to that of the popes, who in the same period insisted that all laws were in scrinio pectoris.12 The outcome was a kind of compromise. Property retained its autonomy and taxation took the form of a voluntary grant by the kingdom, through the Parliament, to the king. Justice became royal, but under the rules and analogies of land law. Still, however, the king remained a personal ruler, entitled to personal allegiance and possessed of an indefinite residue of power.
So in the later Middle Ages government represented simultaneously two different views of the organization of society. Dominium regale was not an adequate name for such a kingship. Only one author, however, contrived a better one. The English jurist Sir John Fortescue found in Ptolemy of Lucca's continuation of Aquinas' De Regimine Principum, and in the work of the same title by Egidius Colonna, the Aristotelian classification of dominions, regale and politicum. There is a third form, said Fortescue, which is well taught by St. Thomas and also by Egidius, the dominium regale et politicum. The king who rules regaliter tantum makes laws and sets impositions without the assent of his subjects; but he who rules regaliter et politice can make laws and set impositions only with their assent. The wretched condition of France in the fifteenth century shows the evils of royal rule, as the strength and prosperity of England show the virtues of jus politicum et regale. So the merely regal dominion is assimilated to the despotic, and the virtuous monarchy becomes so through being subjected to limitations not very well described as constitutional.13
The ambivalence of Fortescue is found in most medieval accounts of kingship. Gierke has called it the idea of "double majesty."14 There were two usual ways of expressing the nonregal element. Commonly it was said that human affairs were governed by natural law, to which the positive law of the prince must accommodate itself. Christianized Stoicism thus supplied the equal partner in government by which the Middle Ages limited the king. Some writers implemented this limitation by justifying resistance to an evil ruler, and even tyrannicide.15 A second idea, not so much an alternative as a supplement to the first, was the proposition that the king derived his power by grant from the people. From this proposition were inferred various legal limits on royal power and even, in some cases, a right to depose a tyrannical king.16
Aquinas did not originate these ideas, but the tradition flows through him and it is convenient to examine them in his writings. According to Aquinas monarchy is superior to constitutional rule. The king establishes the kingdom;17 he is above positive law, for he makes it and gives it its coercive power.18 Nevertheless he should voluntarily abide by human law, and he is of course subject to natural law.19 Moreover, among a free people (which appears to me to mean in a dominium regale as opposed to a dominium despoticum) the prince derives his power to frame laws from the people, and the people can therefore make a law by custom which will have more weight than the ordinances of the prince.20 Aquinas even argues that where a king has been thus instituted by a free people, he can be overthrown by "public authority" for tyranny, for a tyrant does not deserve that the "pact" be kept by his subjects.21 Here we have an idea that was developed at greater length by later writers. Ulpian had attributed the authority of the Roman emperor to the lex regia by which the people conferred upon him all their power. In the Middle Ages this text was commonly used to explain the origin of kingship: power was derived from the people.22 It was not an idea congenial to medieval institutions. If the king derived power from a Roman lex regia, he was absolute; if from a pactum, as with Aquinas, he should lose his regal character. Either alternative would destroy the dualism characteristic of medieval kingship. Some writers inclined in one direction, some in the other, but without completely abandoning double majesty.
Some of the statements of Aquinas are highly regal, some are antiregal; and they have been variously interpreted. It is the opinion of two eminent Thomists, Mortimer J. Adler and Walter Farrell, that Aquinas meant all these statements at the same time — he was describing neither a dominium regale nor a dominium politicum, but what they have aptly named an intermediate regime.23
In France this tradition endured, if it did not flourish, until the French Revolution. It is clearly marked in the literature of the sixteenth century. Even in Bodin's Six Books of the Republic, which comes close to a theory of sovereignty, the nonregal element survives. The king is the source of law, always excepting the laws of God and nature; all legal institutions are emanations of his will. Yet the Estates General, rather than the king, possess the taxing power; evidently they exist by some other warrant than the king's. The king is bound by his contracts and by the leges imperii, certain public laws of the realm which had been objectified by the writers of the late Middle Ages.
Better than Bodin, the contemporary Huguenot tract Vindiciae contra Tyrannos describes the intermediate regime. The king is instituted by the kingdom and derives his powers from it. The effect of this might be to destroy the independence of the regal power, but not so, for king and kingdom are two equal partners, bound by contract. There are officers of the king, deriving their authority from his commission; and there are officers of the kingdom, who are quite independent of the king. If the king violates the duty which king and kingdom owe to God, or governs tyrannically, the officers of the kingdom may resist him. These officers of the kingdom are the surviving fragments of medieval pluralism — the Estates General, the Parlements, the twelve peers of the realm, the other nobility, the officials of the communes, and sundry other officers. Leaving out of account the doctrine of resistance, this is not far from Montesquieu's definition of monarchy in the eighteenth century. Montesquieu recognizes three forms of government: republican, in which the whole people, or a part of it, has sovereign power — this is the dominium politicum; monarchical, in which a single man governs, but by fundamental laws — this is the intermediate regime; and despotic, in which a single person directs all by his will and caprice — this, of course, is the dominium despoticum of the Middle Ages.24 Like Bodin, Montesquieu concedes that in a monarchy all power comes from the prince, but he argues that the maintenance of the monarchy requires that power be channeled through "intermediate ranks" by the fundamental laws. These intermediate ranks are the lords, the clergy, and the cities; the judges also are needed as "depositary of the laws." If these were overthrown, the government would become a republic or a despotism." The views of Montesquieu are those advocated later in the century by the Parlements, the nobility, and the Estates General when they challenged the authority of the king. Only in the days of the Legislative Assembly does the pure dominium politicum come into French constitutional thought.
In England the issue came earlier, after a series of legal controversies which rent apart the composite medieval kingship. This composite character is expressed in legal terms in the treatise De Legibus et Consuetudinibus Angliae by the thirteenth-century jurist Bracton. Government and justice are the king's; no man can dispute concerning his acts, because he is subject to no man, but to God and the law. What is the law to which he is subject? The laws "approved by the consent of those using them and confirmed by the oath of kings"; "what has been rightly defined with the king's authorization on the advice of his magnates after deliberation and conference concerning it" — these are the limits of royal power. Professor McIlwain, to whom we owe the explanation of the significance of Fortescue's dominium regale et politicum, has found in these passages the same conception. Bracton uses the term gubernaculum to describe the respects in which the king's authority is regal and unlimited, and jurisdictio for the constitutional side, on which he is governed by law.26 The same opposition is neatly pointed up by two passages which Gneist found in the Year Books. On the regal side "tout fuit in luy et vient de lui al commencement"; but on the nonregal side "La ley est le plus haute inheritance, que le roy ad; car par la ley il même et toutes ses sujets sont rules, et si la ley ne fuit, nul roi, et nul inheritance sera."27 From the Middle Ages to the seventeenth century the tradition was persistent, if somewhat wavering. In the controversies of the seventeenth century, however, the stress between gubernaculum and jurisdictio became intolerable, and as a consequence the whole character of English monarchy was altered.
Not chronologically, but logically, the first stage in the dispute was Calvin's Case (1608).28 According to English law an alien could not own land, because under feudalism land owed political duties. Calvin, a Scot, nevertheless brought suit for English land, claiming to be eligible because he had been born under the allegiance of James VI of Scotland after that king's accession to the throne of England as James I. His counsel contended that allegiance was to the person of the king and that since Calvin had been born subject to the same allegiance as the English, he could maintain his suit. The argument of the defense was substantially that James VI and James I were two different kings, each enjoying a separate set of allegiances; it was of no significance that one man held the two offices. The court ruled, naturally enough, that allegiance was due to the person of the king rather than to any legal office. To attach allegiance to the office rather than the man was the "damnable and damned opinion" of the Despensers. Without ruling out the dominium politicum, the judges recognized dominium regale.
In Bate's Case (1606)29 the right of the king to levy import duties without Parliamentary consent was challenged. Chief Baron Fleming upheld the imposts, arguing that "The king's power is double, ordinary and absolute." The ordinary power was to execute civil justice according to established laws; this was in the tradition of Bracton's jurisdictio. The absolute power, "most properly named policy and government," was not restrained by laws. In all matters of state the king might act outside the law for the general good. Impositions on foreign goods, and all foreign relations, were matters of state and fell within the absolute power. Baron Clark in the same case phrased the distinction as one between the absolute prerogative and the ordinary. In foreign affairs the king governed by his absolute prerogative, which might not be disputed; the ordinary prerogative, on the other hand, was measured by the laws of the land and was subject to determination in the courts. A similar issue arose in two subsequent cases. In the Five Knights' Case (1627)30 the judges held that the king might by his absolute prerogative commit any man to prison without alleging a cause, and no bail could be granted. In the Case of Ship-Money (1638),31 seven of the twelve judges ruled that the king might for reason of state collect taxes by the exercise of his absolute prerogative, without the consent of Parliament. In none of these cases did the court deny the existence of jurisdictio as well as gubernaculum. But the effect of these decisions was to make the supremacy of gubernaculum over jurisdictio depend merely on the king's discretion, and that meant the virtual abandonment of double majesty. As early as 1621 the Parliamentary opponents of the Stuarts foresaw this consequence and rejected the conception of the absolute prerogative. This implied the repudiation of dominium regale et politicum in favor of dominium politicum. The Long Parliament accomplished this result by adopting in 1642 the doctrine of the Despensers, which attributed royal power exclusively to the office of the king and divorced the office from the person.
The High Court of Parliament is not only a court of judicature, enabled by the laws to adjudge and determine the rights and liberties of the kingdom, against such patents and grants of His Majesty as are prejudicial thereunto, although strengthened both by his personal command and by his proclamation under the Great Seal; but it is likewise a council, to provide for the necessities, prevent the imminent dangers, and preserve the public peace and safety, of the kingdom, and to declare the King's pleasure in those things as are requisite thereunto; and what they do herein hath the stamp of royal authority, although His Majesty, seduced by evil counsel, do, in his own person, oppose or interrupt the same; for the King's supreme and royal pleasure is exercised and declared, in this High Court of Law and Council, after a more eminent and obligatory manner than it can be by any personal act or resolution of his own. ... And the High Court of Parliament and all other His Majesty's officers and ministers ought to be subservient to that power and authority which law hath placed in His Majesty to that purpose, though he himself in his own person should neglect the same.32
This overthrow of the medieval constitution opened the door to twenty years of speculation and experiment, during which the main outlines of subsequent constitutional thought were fixed.
2
THE CROMWELLIAN CONSTITUTIONS
CHAPTER VI
The English Civil Wars
BETWEEN 1640 and 1660 England underwent civil war and the execution of the king, a series of experimental governments, and factional disputes which resulted in the restoration of monarchy and the Stuarts. This period produced a body of political speculation which in volume, scope, and audacity was exceeded only by the literature of the French Revolution. In the specific field of constitution-making, the years between 1647 and 1660 probably saw more activity than either of the two comparable periods, the American and French Revolutions. Moreover, the ideas which dominated later constitution-makers were launched into the current of political discussion during the Civil Wars and the Interregnum. Popular sovereignty, written constitutions, constitutional limitations, the separation of powers, checks and balances, bicameralism — these principles and devices were thoroughly explored in the Cromwellian period. Some of the writings in this period are comparable in sagacity to the Federalist. It was from James Harrington, author of Oceana and guiding spirit of the Rota Club, that John Adams and Abbé Sieyès learned their political wisdom.
Nor do the actors on the revolutionary stage suffer by comparison with the great men of other times. Oliver Cromwell, coarse yet subtle and cunning, a man of doubtful integrity but a sincere "Saint," maintained himself by shrewd manipulation of political forces. "I have often thought, my Lord, how you hang by geometry, arched with your own fame, and not fastened to any pin of true friendship or interest," wrote an unfriendly "Person of Quality" in 1657. Freeborn John Lilburne was the first democrat and the first demagogue of modern history and co-author, in its later stages, of the Agreement of the People, which was, if we except the laws of the Greek cities, the first written constitution ever contrived. Major-General Lambert, soldier, statesman, and dilettante, framed the Instrument of Government, which was the first written constitution to be put into effect. Bradshaw, who presided at the trial of Charles I, was "a stout man, and learned in his profession: no friend to monarchy." Major-General Harrison went with those who "acted upon higher principles than those of civil liberty." "The brave Sindercomb," wrote Edward Sexby,1 "hath showed as great a mind as any old Rome could boast of; and had he lived there, his name had been registered with Brutus and Cato, and he had had his statues as well as they."
Great men have been among us; hands that penned And tongues that uttered wisdom — better none: The later Sidney, Marvel, Harrington, Young Vane, and others who called Milton friend.
It is easy to point to the immediate causes of the Civil Wars. The recourse of Charles I to extra-Parliamentary taxation caused many men to fear the danger of absolutism in England. Arbitrary arrests and the extraordinary procedures of the Star Chamber were regarded as threats to the legal rights of subjects. There was widespread dissatisfaction with both the theology and the administration of the Church of England under Archbishop Laud. These grievances had persuaded the members of the Long Parliament that Parliament must be given a regular and decisive voice in all public affairs. Charles, in desperate need of a grant of money to suppress rebellion in Scotland and Ireland, acceded to all requests until Parliament demanded that he surrender control of the militia. This he refused, and civil war was the consequence.
Harrington professed to find a deeper explanation of the events of his time. As a result of the policy of Henry VII in destroying the baronage and of Henry VIII in distributing monastic lands, most of the lands of England had fallen into the hands of the commonalty. Political power cannot long be withheld from the owners of the land, and revolution was the inevitable readjustment. Elizabeth, by. "converting her reign through the perpetual love-tricks that passed between her and her people into a kind of romance," had staved off the reckoning, but when Charles, "as stiff in disputes as the nerve of monarchy was grown slack, received that unhappy encouragement from his clergy, which became his utter ruin, while trusting more unto their logic, than the rough philosophy of his Parliament, it came unto an irreparable breach."2 Harrington, however, gave too little attention to the part played by the cities in the early stages of the struggle. If the merchants of London had supported Charles rather than the Long Parliament in 1641, the landed gentlemen of the House of Commons would have been helpless. Later, it is true, when the Presbyterian merchants turned against the Independent Army, the Army triumphed; but this was a victory of the sword rather than of landed property. Richard Baxter gave a more exact picture of the contending forces than Harrington:
A great part of the Lords forsook the Parliament, and so did many of the House of Commons, and came to the king; but that was, for the most of them, after Edgehill fight, when the king was at Oxford. A very great part of the knights and gentlemen of England in the several counties (who were not parliament-men) adhered to the king. ... And most of the tenants of these gentlemen, and also most of the poorest of the people, whom the others call the rabble, did follow the gentry and were for the king.
On the Parliament's side were (besides themselves) the smaller part (as some thought) of the gentry in most of the counties, and the greatest part of the tradesmen and freeholders and the middle sort of men, especially in those corporations and counties which depend on clothing and such manufactures.3
But this is not an adequate report of the part played by the lower classes in the struggle. With the exception of the tenants led by their landlords into one camp or the other, the rural poor were for the most part passive. Through much of the countryside their only ambition was to save their crops, and forming bands of "clubmen" they opposed with their primitive weapons the incursions of Royalists and Parliamentarians alike, and fell upon the luckless stragglers from the armies with the immemorial savagery of the peasant. But the yeomen of the eastern counties and the lower classes of the cities were a decisive factor in the war. They were the main strength of the Independent religious movement, and in this capacity they entered Cromwell's Ironsides and the New Model Army and constituted the force which defeated the Royalists and maintained in power the successive governments of the Interregnum. They produced as well their own political philosophies. The Leveller movement, which sought a democratic constitution, had almost its entire support from the radical sectarians of the Army and of London, and the Fifth Monarchy men who followed Harrison's leadership came from the same class.
In the early years of the war opposition to the king was a bond between elements which eventually proved to be irreconcilable. The majority of the members of the Long Parliament were men of substance who desired a national church, presbyterian in organization and Calvinist in theology. They wished to retain kingship, but to control the actions of the king. A minority of the members of the Parliament, but a majority of the officers of the New Model Army, were country gentlemen of the Independent belief. They favored Congregationalism in church organization and some degree of religious toleration. After the defeat and imprisonment of Charles, the Parliament and the Army sought some formula to settle their political and religious differences. Probably the problem was insoluble; at any rate, it was not solved. The Parliament was fearful of the Army but underestimated its power, for in 1648 the Independent leaders, apprehensive lest the Parliament should vote the restoration of Charles and make an alliance with the Royalists, purged the Presbyterians from the House of Commons. This was possible only at the price of a new alliance. The common soldiers had put their strength behind the Leveller movement and insisted that the Army indorse the democratic constitution known as the Agreement of the People. The officers of the Army could not act without the concurrence of the common soldiers, and accordingly they accepted the conditions of the Levellers. The Agreement was approved by the Council of Officers, which recommended it to the Rump House of Commons. But when the hurdle of the regicide had been safely crossed the officers lost interest in the Agreement. The Rump abolished the House of Lords and declared England a "commonwealth" with power in the hands of the Rump and a Council of State which included the chief Army officers. The attempts of the Levellers at insurrection were ruthlessly suppressed by Cromwell. In 1650 Cromwell became commander-in-chief of the Army. In that capacity he took the lead in dissolving the Rump three years later. It is not likely, however, that he was the chief contriver of this action. He was pressed on by Harrison and the Fifth Monarchy element in the Army, who desired the rule of Saints to prepare for the coming of King Jesus, and by Lambert at the head of what might best be called the professional soldiery, who were impatient with a government of politicians.
First came Harrison's turn. The Army summoned a "Little Parliament" of men nominated in the Council of Officers for their godliness. Among them, however, were many thoroughly worldly men who balked the reforms of the zealots and succeeded in dissolving the Parliament. Lambert provided the next expedient. He framed the "Instrument of Government" by which Cromwell became "Lord Protector." The Lord Protector was to rule with a unicameral legislature and a Council of State. The maintenance of the Army was guaranteed. In the course of a few years, however, Cromwell built up a "court party" consisting of favored Army officers and civil officeholders and began to look toward an alliance with the Presbyterians. The "Humble Petition and Advice," a constitution which was originally intended to declare Cromwell king, was the outcome of these maneuvers. The Army was disquieted and after Oliver's death gave its support to the opponents of Richard Cromwell. Richard was overthrown by an alliance of Rump republicans and Army officers. The Rump was restored and also the commonwealth, whereupon Sir George Booth attempted a Presbyterian-Royalist rising. Lambert, who was by now the actual though not the titular head of the Army, easily suppressed Booth, but doubts about Lambert's fidelity pervaded the Rump. The Rump turned upon the Army and was once more turned out. The leaders of the Rump secured the aid of General Monk, who headed the army of occupation in Scotland. But Monk, if he was not already pledged to the support of the Stuarts, was at any rate no republican, and when the forces opposed to him crumbled away he restored the Presbyterian Long Parliament. The outcome could not be in doubt: the Long Parliament summoned a new "Convention Parliament" which recognized Charles II without condition.
There were no explicit conditions, but the theory of English monarchy at the Restoration was not the theory of 1640. By 1660 the doctrine of "mixed monarchy" had almost completely supplanted earlier ideas on monarchy. Moreover, the ideas and proposals of the Interregnum remained alive and in the end determined the course of constitutional government not only in England but in America and to a large degree in France.
CHAPTER VII
Mixed Monarchy
AT THE close of the Middle Ages came a revival of trade and the integration of local economies into larger units. There resulted a quickening of political life in all fields, but particularly in the field of international affairs. Evidence of this new activity is found in the practice of maintaining ambassadors at foreign capitals; several Italian cities had adopted it by the close of the fifteenth century, and the northern nations took it up during the sixteenth. The wars of aggrandizement and religion, the intrigues and plots of assassination gave rise to a new branch of political science — "reason of state." Machiavelli was the expositor of this discipline, which had consequences in other fields besides morality. To deal with secret and urgent matters of state the king must act secretly and arbitrarily, in contravention not only of rules of morality but of rules of law. In England the claim of Queen Elizabeth to act irresponsibly in the field of foreign affairs was conceded by her Parliament; and in the reign of James I the judges of the courts of common law affirmed that the king possessed an "absolute prerogative" to act contrary to common law in all matters of state. His "ordinary prerogative" was to do justice according to law, but his absolute prerogative was a discretionary power to safeguard the nation by any means that seemed to him appropriate.
Another current of thought set in the same direction. The internal disorder following the wars of religion in France in the sixteenth century had led Jean Bodin to make his celebrated if imperfect statement of the doctrine of sovereignty. To Bodin, as to the whole school of politiques, it appeared that the very existence of society was possible only if there were some overriding power capable of exacting complete obedience from all subjects. James I, in the light of his unhappy experiences in turbulent Scotland, held the same view. Order was dependent upon the relationship of command and obedience. All organization derived from superiority and subordination: God in the celestial universe, the king among men, the shepherd among the sheep, Satan among the legions of hell, all averted chaos by the organizing power of command. Other writers argued to the same effect. Without a sovereign, said Edward Forsett, "no people can ever as subjects range themselves into the order, and community of human society, howsoever, as men, or rather as wild savages, they may perhaps breathe a while upon the earth." Roger Manwaring, chaplain of Charles I, rendered this point of view in terms of "divine right." The organization of a multitude into unity was the work of power, and all power was derived from God. Kings were the vicegerents of God and participated in His omnipotence.
There was, however, another and older way of looking at monarchy — in terms of double majesty. Before the Civil Wars the medieval notion of a kingship absolute in its sphere but limited to that sphere by an autonomous body of law was the dominant conception. The classical idea of the mixed state was sometimes employed, but before 1641 it appears to have been merely a thin literary tradition. Thomas Starkey in 1538 declared "a mixed state to be of all others the best and most convenient to conserve the whole out of tyranny."1 When Elizabeth succeeded to the throne John Aylmer reassured those troubled at the accession of a woman by pointing out that she was not an absolute but a "mixed ruler": "The regimen of England is not a mere monarchy, as some for lack of consideration think, nor a mere oligarchy nor democracy, but a rule mixed of all these, wherein each of them have or should have like authority."2 Sir Walter Raleigh spoke with approval of the "royal, mixed government of Sparta" in a passage which seems to liken the English polity to the Spartan.3 Sir Francis Biondi, in his History of the Civil Wars in England, published in Italian, 1637-1644, and in an English translation by the Earl of Monmouth in 1641, described England as "una ben constuita aristodemocratica monarchia." With the outbreak of the war the idea came into active controversial use and largely displaced the doctrine of double majesty. John Milton in 1641 asserted that neither Sparta nor Rome was "more divinely and harmoniously tuned, more equally balanced as it were by the hand and scale of justice, than is the commonwealth of England."4 What chiefly gave currency to the idea of the mixed state was the reply of Charles to the Nineteen Propositions of Parliament in 1642. The mixed state now represented the King's highest ambition; he wished only to be recognized as one of three equal estates, in order to prevent hostile action by the other two. The reply was written by Sir John Colepepper,5 who followed the arguments of Polybius.
There being three kinds of government amongst men, absolute monarchy, aristocracy, and democracy, and all these having their particular conveniences and inconveniences, the experience and wisdom of your ancestors hath so molded this out of a mixture of these, as to give to this kingdom (as far as human prudence can provide) the conveniences of all three, without the inconveniences of any one, as long as the balance hangs even between the three estates, and they run jointly on in their proper channel (begetting verdure and fertility in the meadows on both sides) and the overflowing of either on either side raise no deluge or inundation. The ill of absolute monarchy is tyranny, the ill of aristocracy is faction and division, the ills of democracy are tumults, violence, and licentiousness. The good of monarchy is the uniting of a nation under one head to resist invasion from abroad, and insurrection at home: the good of aristocracy is the conjunction of counsel in the ablest persons of a state for the public benefit: the good of democracy is liberty, and the courage and industry which liberty begets.6
The "mixture" lay in the joint possession of legislative power by all three elements and in the assignment of appropriate functions to each of the three singly. The king was charged with the conduct of foreign relations, the power of appointment, the pardoning power, and other functions; the Commons possessed the sole right to propose taxes and to impeach; the Lords possessed power of judicature.
This conception was immediately adopted by the pamphleteers of both parties. Royalist writers rested their case upon the king's right, never contested before the war, to participate equally with Lords and Commons in the government of the country. The Parliamentarians attempted to refute this claim. Philip Hunton, a serious and honest thinker, argued in his Treatise of Monarchy7 that the purpose of the balance between King, Lords, and Commons was "that one should counterpoise and keep even the other." Consequently, if the King should "run in any course tending to the dissolving of the constituted frame," the Lords and Commons were obliged to restrain him.
But some champions of the king denied the possibility of a mixed monarchy. Robert Sheringham, a Cambridge scholar, wrote a pamphlet called The King's Supremacy Asserted8 in which he insisted that monarchy is "the government of one alone." "His Majesty acknowledgeth monarchy to be so mixed with aristocracy and democracy in the exercise of some part of his power, that the conveniences of all those forms of government, without the inconveniences of any of them, are obtained by such a mixture; but he denieth the mixture to be in the power itself, for the convenience which he saith it hath from monarchy, is, that it is governed by one head."
Sheringham failed to state his case clearly, but Thomas Hobbes and Sir Robert Filmer drove straight to the central issue. The whole burden of the teaching of Hobbes was the necessity and the indivisibility of sovereign power. Sovereignty might reside in one man, or in a corporate group, but it could not be partitioned into several hands. "For although few perceive, that such government is not government, but division of the commonwealth into three factions, and call it mixed monarchy; yet the truth is, that it is not one independent commonwealth, but three independent factions; nor one representative person, but three."9
Such a state was diseased. Filmer vigorously attacked both the scholarship and the logic of Hunton's Treatise.10
There is scarce the meanest man of the multitude but can now in these days tell us that the government of the Kingdom of England is a limited and mixed monarchy: and it is no marvel since all the disputes and arguments of these distracted times both from the pulpit and the press do tend and end in this conclusion.
The author of the Treatise of Monarchy hath copiously handled the nature and manner of limited and mixed monarchy, and is the first and only man (that I know) hath undertaken the task of describing it; others only mention it as taking it for granted. ...
I have with some diligence looked over this Treatise, but cannot approve of these distinctions which he propounds; I submit the reasons of my dislike to others' judgments. I am somewhat confident that his doctrine of limited and mixed monarchy is an opinion but of yesterday, and of no antiquity, a mere innovation in policy, not so old as New England, though calculated well for that meridian. ...
Machiavell is the first in Christendom that I can find that writes of a mixed government, but not one syllable of a mixed monarchy: he in his discourses or disputations upon the Decades of Livy falls so enamoured with the Roman commonwealth, that he thought he could never sufficiently grace that popular government, unless he said, there was something of monarchy in it: yet he was never so impudent as to say, it was a mixed monarchy.
Hunton's monarch is in fact, Filmer argues, no monarch at all. He possesses only the executive power, and sovereignty resides in legislative power.
But whatever the theoretical soundness of the conception of mixed monarchy, it took an extraordinarily firm grip on the public mind. The anonymous author of a learned work published in 1648, Several Politic and Military Observations upon the Civil and Military Governments, declared:
The government of England is then one of the best in Christendom : and it is not by any defect of it, that civil contentions do reign among us this day, but from our sins and ingratitude, and the impenitency of the whole nation, who have justly provoked the Lord to send the spirit of division in the land, and to permit the prelates, and the court favorites, to bend the treble of the instrument of the commonweal higher than the base: for all composed monarchies are like unto a musical instrument, that can afford no melody (although the artist that plays upon it be never so skilful in his art) except the strings of it be tuned alike.
In 1649 a group of Presbyterian ministers in Lancashire, at a time when the regicide and the abolition of the House of Lords had apparently struck a fatal blow at mixed monarchy, passed a series of resolutions which included the wistful proposition that "The government we are under is good, wholesome, equitable for the constitution of it, balanced and proportioned, being reduced to the golden mean; lying between monarchical tyranny and popular anarchy, it hath had the general suffrage to be one of the moderatest and best tempered governments in Europe."11 And in 1650 Captain Edmund Hall, in his Digitus Testium, or a Dreadful Alarm to the Whole Kingdom, Especially the Lord Mayor, the Aldermen, and the Common Council of the City of London, declared that the mixture of the three estates was "the absolutest best government in the world, as is clear from God and Nature. God Himself who is the Almighty Monarch of all spirits, hath pleased to reveal Himself to man in a Trinity of persons, and governs the universe by Himself, angels, and men; celestial bodies, by sun, moon, and stars; the little world man by understanding, will, and affections; and the Kingdom of England, by King, Lords, and Commons."
The idea of balance which was expressed in the doctrine of mixed monarchy appears in the proposals of all constitution-makers of the period except the Levellers and the Rump republicans. The Humble Petition and Advice, which was adopted in 1657, created a Cromwellian House of Lords and was lauded as restoring the ancient trinity and balance of the constitution. In 1659 and 1660, when there seemed to be some possibility that the Stuarts might return, Royalist pamphlets praised the old constitution and urged the restoration of Charles II. The failure of all the experiments of the past decade made the advice more persuasive. Sir Roger L'Estrange addressed a pamphlet to General Monk in which he argued that England could enjoy stable government only under mixed monarchy.12
... our English nature is not like the French, supple to oppression, and apt to delight in that pomp and magnificence of their lords, which they know, is supported with their slavery and hunger; ... so doth it, as little or less, agree with the Dutch humor, addicted only to traffic, navigation, handicrafts, and sordid thrift, and (in defiance of heraldry) every man fancying his own scutcheon; doth not every one amongst us, that hath the name of a gentleman, aim his utmost to uphold it? Everyone that hath not, to raise one? To this end, do not our very yeomen commonly leave their lands to the eldest son, and to the others, nothing but a flail or a plow? Did not everyone, that had anything like an estate, pinch himself in his condition, to purchase a knighthood or small patent? What need further proof? Our late experience of that glimpse and shadow of monarchy (though in persons hated, and scorned, and upon a most scandalous account) yet (for mere resemblance) admitted as tolerable, and in respect of a commonwealth, courted, clearly evinces, how grateful the substance would be to Englishmen. ...
This was that triple cord, ... this was our gold, seven times refined, for every bill, being thrice read, debated and agreed, in either House, was, at last, brought to the King, for his royal assent, the mint of our laws: a trial so exact, that surely, no dross could escape it; since all interests must thereto concur (as truly, it was but fit they should, in the establishment of that, which must bind them all) ... as by sad events, we have since seen, that, power being engrossed by one of the three estates, purged and modeled to the interest of a faction, a consequence natural to such premises (as a balance consisting of but one scale), nothing hath been
weighed, our laws have been mandrakes of a night's growth, and our times as fickle as the weather or multitude.
It was with the relief of turning to old and tested things that the Convention Parliament in 1660 voted that government belonged to king, Lords, and Commons.
CHAPTER VIII
The Separation of Powers
THE discrimination and enumeration of governmental functions is nearly as old as government itself. The functions recognized will of course depend upon the character and activities of the government. Aristotle found three governmental functions in the Greek cities of his day: deliberation on public affairs, constitution of magistrates, and exercise of judicial power. According to Dionysius of Halicarnassus "the three most important and vital matters" were the election of magistrates, the making and repealing of laws, and the making of war and peace.1 In the sixteenth and seventeenth centuries some five or six elements of sovereignty were recognized. Sir Walter Raleigh's list is perhaps representative: it included legislative power, the appointment and removal of magistrates, the pardoning power, war and peace, and "highest or last appeals."2 The champions of sovereignty, however — Bodin and Hobbes and Filmer — insisted that legislative power was critical and that all other powers derived from and depended upon this single sovereign function.
In England a local enumeration arose. In the Middle Ages the scheme of writs by which royal justice was carried out included the original writs, or writs out of Chancery, by which actions were begun, and the judicial writs issued by
courts of law before and after judgment. A special group of judicial writs were the writs of execution, by which judgments were satisfied. This analysis of writs found its way into public law in the fourteenth century treatise Modus Tenendi Parliamentum.3 Second on the calendar in Parliament, said the Modus, should be legislation against defect of laws "original, judicial, and executive." In the seventeenth century there was a great deal of interest in Parliamentary procedure, and the old Modus was studied carefully. Either from this source or directly from the classification of writs, the threefold enumeration passed into ordinary speech. So we find Henry Parker, an able Parliamentary apologist, writing that "without some magistracy to provide new orders, and to judge of old, and to execute according to justice, no society could be upheld."4 John Sadler, "a general scholar and an accomplished gentleman, ... though it must be owned he was not always right in his head," was led by his regard for the sacred number three to formulate an analysis of government in terms of a threefold separation of powers.5
It may be considered, that many kingdoms, and commonwealths (that were not kingdoms) in all ages did consist of three estates (as of three principles in nature, or bodies natural); which might occasion the phrase of Tribe, in others besides the Romans, who in three estates, were not so ancient as the Grecians or Egyptians; that I speak not of the Gauls, Britons, or the eastern nations.
And if any would observe, it might be possible to find the prophets hinting a trinity in divers kingdoms or estates; and that not only for molding, but for overthrowing them: besides the three Captivities, or three overthrowings of the Jewish state; and the three blows of the goat on the ram in Daniel, as alluding to the three great battles which did break the Persian empire.
And why may not the sacred Trinity be shadowed out in bodies politic, as well as in natural? And if so, our three estates may be branched as our writs, into original, judicial, and executive; as shadows of the Being, Wisdom, and Activity Divine.
If I may not grant, yet I cannot deny original power to the Commons, judicial to the Lords, executive to the King; as the spirit to the body, or if you will, the head (or fountain of sense and motion) ; but he must see by two eyes, and hear by two ears [the two Houses], as I touched before, yet his very pardoning although it be by law much limited, doth seem to speak his power executive: and so his writs do speak aright: Because my Courts have so, and so judged: Therefore I do so, and so command the Judgment shall be executed. And if any will assert the militia, to this power executive, I shall also grant it to the King; so that it may always be under the power original and judicial.
This might belong to the Lords, and that to the Commons, and the plain truth is, I do not find more arguments to prove the judicial power to belong to the Lords, than I do for the legislative in the Commons: And (as it seemeth to be above, so below also) it may be much disputed, that the legislative, judicial, and executive power, should be in distinct subjects by the law of nature.
For if law-makers be judges of those that break their laws, they seem to judge in their own causes: which our law, and nature itself so much avoideth and abhorreth. So it seemeth also to forbid both the lawmaker and the judge to execute: and by express act of Parliament, it is provided, that sheriffs be not justices, where they be sheriffs. But if execution be always consonant to judgment, and this to law; there is still most sweet harmony, and as I may say, a sacred unity in trinity represented.
But this curious analysis is a political sport. The classification of powers which became established in the Civil War period and which endured until the middle eighteenth century was the twofold division, legislative and executive. When the term judicial power was used, it was as a synonym for executive power rather than as a third function of government.
I first find this analysis in a speech of Nathaniel Fiennes against the bishops in 1641.6 It soon gained general acceptance. Philip Hunton recognized power architectonical or legislative and gubernative or executive. "There are two parts of the supreme power, the legislative and the executive," wrote Sir Robert Filmer.7 Of course there was, as these authors asserted, an inherent difference between the formulation of policy and the administration of the policy formulated, but the analysis had other features besides accuracy to recommend it. It was a convenient weapon against the bishops, and so Lord Brooke in 1642 argued that they possessed only a "judicative, or declarative power, being entrusted with the explication, application, and execution of the laws: but not as the king and Parliament, who have a legislative power."8 The same argument could be turned against the king. William Ball justified the execution of Charles on the ground that power juridicent, or lawmaking power, belonged to the people, power juritenent, or law-administering, to the king. The king was therefore accountable to the people.9
Certain implications for political conduct resulted from this distinction. When the House of Commons abandoned its attempt to convict the Earl of Stafford, the king's minister, by judicial process and resorted to a bill of attainder, Lord Digby protested: "I know, Master Speaker, there is in Parliament a double power of life and death by bill, a judicial power, and a legislative: the measure of the one, is what's legally just, of the other, of what is prudentially and politically fit for the good and preservation of the whole. But those two, under favor, are not to be confounded in judgment. We must not piece up want of legality with matter of convenience, nor the defailance of prudential fitness, with a pretence of legal justice."10
From the notion that persons should be tried only by settled rules to the proposition that legislative power and executive or judicial power should be vested in separate hands was a brief step. In 1645 John Lilburne left the Army rather than take the oath of the Presbyterian Covenant which was exacted by the Scots as the price of their assistance to the Parliament. Immediately he resumed his career of controversy over private and public grievances and came into collision with the House of Commons. He was called before the Committee of Examinations, where he protested that he should not be subjected to arbitrary process but was entitled to the benefit of the settled rules of law.
"I should much desire to know what you conceive of the Committee of Examinations; for either it is a court of justice, or no court of justice, and either it is tied unto rules, or not tied; but if it be a court of justice, and tied unto rules, when it sits upon criminal causes betwixt man and man, concerning life, liberty, or estate, of all which three they there take cognizance, methinks, they should observe the method of other courts of justice."11 From his experience with the Commons Lilburne formulated the rule, first stated in 1645, that legislators should not be justices, for they would then execute the law as well as make it.12 Thereafter the separation of legislative and executive powers was a cardinal principle of Leveller doctrine. The argument is well stated by Isaac Penington, a radical who later became prominent in the Quaker movement.
Execution is the life of the law. ...
Now that which will make the execution most certain is a clear rule prescribed to them who are to execute, whereby they may be rightly guided in the administration, and left, as little as may be, to determine or order things according to their own present apprehensions and judgments, lest at that back door, arbitrary government (which is the foundation of tyranny) in a sudden creep in. ... And upon this ground it seemeth to me improper for Parliaments to intermeddle with matter of government, further than to settle it in fit hands and within just bounds: because they are entrusted with an arbitrary power, which is absolutely necessary to the work whereunto they are called : they are to redress things at present for which there is as yet no law: and to provide future remedies for things amiss which the law did not foresee. ... A Parliament may far more easily err in government than a King or ordinary Council, for they have, or should have their rule to act by, but a Parliament act by mere supremacy, by power paramount, and from their determinations, there is no orderly appeal.13
It seems, then, that the first purpose for which the separation of the legislative and executive powers was advocated was to insure that accused persons be tried by the known procedures of courts of justice and convicted by settled rules previously enacted, rather than according to the considerations of policy which moved legislative bodies. This was distinctly reminiscent of the arguments offered at an earlier date against the Stuart doctrine of reason of state. Now, however, the Parliamentary champions in their turn adopted the apology of reason of state. Henry Parker wrote against Lilburne, "if you were not so unskilled in the theory, as you are in the practice of the law, you would not upon all occasions so often insist upon inconveniences likely to ensue to yourself, and take no notice of public mischiefs. You would then be satisfied, that your judges ought rather to admit of a mischief to you, than of an inconvenience to the state: although you perpetually urge them to admit of mischief to the state, rather than inconveniences to you."14
There was a second argument in favor of the separation of powers. Parliament was thought of as an inquisitorial body for the supervision and correction of the administration. But if Parliament itself undertook to administer the law, this advantage was lost; a complaint could not be taken with any prospect of success from a decision of Parliament as an administrative body to Parliament as the legislative supervisor. In 1649 Lilburne was imprisoned and interrogated by the Council of State of the commonwealth government, and again he defied his captors in the torrential language for which he was famous. He told Bradshaw, President of the Council of State:15
But Sir, give me leave further to aver unto you, and unto this principle and averment I will venture my life and being, and all I have in the world: That if the House had by a proclaimed or declared law, vote, or order, made this Council (as you call yourselves) a court of justice, yet that proclaimed or declared law, vote, or order, had been unjust and null, and void in itself; and my reason is, because the House itself was never (neither now, nor in any age before) betrusted with a law-executing power, but only with a lawmaking power.
And truly, Sir, I should have looked upon the people of this nation as very fools, if ever they had betrusted the Parliament with a law-executing power, and my reason is, because, if they had so done, they had then chosen and empowered a Parliament to have destroyed them, but not to have preserved them (which is against the very nature and end of the very being of Parliaments, they being by your own declared doctrine, chosen to provide for the people's weal, but not for their woe). ... And Sir, the reason of that reason is, because it's possible, if a Parliament should execute the law, they might do palpable injustice, and mal-administer it, and so the people would be robbed of their intended and extraordinary benefit of appeals; for in such cases, they must appeal to Parliament either against itself, or part of itself; and can it be imagined they will ever condemn themselves, or punish themselves? Nay will they not rather judge themselves bound in honor and safety to themselves, to vote that man a traitor, and destroy him, who shall so much as question their actions, although formerly they have dealt never so unjustly with them? ...
But yet Sir, with your favor, for all this, I would not be mistaken, as though I maintained the Parliament had no power to make a court of justice; for I do grant they may erect a court of justice to administer the law, provided, that the judges consist of persons that are not members of their House; and provided, that the power they give them be universal; that is to say, to administer the law to all the people of England indefinitely, and not to two or three particular persons solely, the last of which for them to do is unjust, and altogether out of their power. And therefore Sir, to conclude this point, it not being in the power of the whole Parliament to execute the law, they can give no power to you their members to meddle with me in the case before you; for an ordinary court of justice (the proper administrator of the law) is the only and sole judge in this particular; and not you gentlemen, no nor your whole House itself.
Certain implications for jurisprudence follow from the separation of powers. If the legislature ought not to deal with particular cases, it should confine itself to the enactment of general rules; if the administration should apply only known and settled rules, retroactive legislation is improper. The notion that legislation should be general and prospective is, of course, Aristotle's conception of the impersonal "rule of law," and antedates the theory of the separation of powers. But never before had it been derived from or related to a functional analysis of institutions. So far as English law is concerned, it was a fairly novel doctrine in the seventeenth century. The practice of enacting special legislation was as old as Parliament itself. Bracton and Coke, following Justinian's Code, had opined that a measure should be applied to the future rather than the past, but this was no more than a rule of statutory construction. How could the Leveller doctrine be implemented? It was not possible to ask the administration to ignore acts of the legislature which it believed to be improper, for this would make the executive independent of the legislature. The Levellers agreed with conservative Independents like Ireton that the war had been fought for the precise purpose of making the executive subordinate to the legislature. Moreover, one of the two advantages of the separation of powers — legislative scrutiny of the administration — would be lost if the administration were made co-ordinate with the legislature. On the other hand, the first purpose of the separation of powers — the trial of persons by general rules of law — would be defeated if bills of attainder and discriminatory legislation were actually put into execution. Lilburne was confronted with the problem in 1653. In 1652 he had been banished by an act of Parliament which made it a capital offense for him to return. Eighteen months later he returned to England and was brought to trial for violation of the act. His defense became another principle of the Leveller creed. Lilburne appealed to the sovereign people, acting through the juries, to exercise that supervision over the legislature which his view of the legislative function made necessary. He contended that in sentencing him by statute the Parliament had exceeded its power, and he persuaded the jurors that they were the proper authority to determine the law in the case.16 The jury voted an acquittal. Lilburne's argument was astonishingly like the old Greek notion that the jury is a kind of surrogate for the sovereign people and should therefore determine the "constitutionality" of particular measures. It was, moreover, an anticipation of Thomas Jefferson's contention that constitutional interpretation belongs to the people.
Lilburne made another application of his general doctrines. If men were to be tried by known and settled rules, the monopoly enjoyed by the lawyers must be broken. The law must be brought out of obscurity, rendered into English, and reformed so that every man could understand it. This aspect of the Leveller program arose as a result of a suit for libel brought against Lilburne by Colonel King in 1646. "This suit," wrote Richard Overton, "occasions Mr. Lilburne to look into the proceedings of the law: finds it full of tricks and quillets, snares, forms, and punctilians, irrational and tending to the ruin of the people."17 Throughout the commonwealth period the more radical sectarians kept up an outcry for simplification of the laws. Cromwell himself was sympathetic to their demands and as Protector carried out some of the proposed changes.
There was agitation not only to make the law more accessible to the people but to reform the substance of it, stripping away the "intolerable marks" of Norman bondage. Overton wrote to the House of Commons in 1646, "Ye know that the laws of this nation are unworthy a free people, and deserve from first to last, to be considered, and seriously debated, and reduced to an agreement with common equity, and right reason, which ought to be the form and life of every government."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 mixed monarchy.
I wish we now could, or could ever hope, under our commonwealth (whatever promises may be made to us) so perfectly to distinguish the legislative from the ministerial authority, as once we did; when the House of Commons had not the power of a court leet to give an oath, nor of a justice of the peace, to make a Mittimus: Which distinction, doubtless, is the most vital part of freedom, and far more considerable to poor subjects, than the pretended rotation; as on the contrary, the confusion of them is an accomplishment of servitude.22
The doctrine of the separation of powers was thereafter an accepted principle of constitutional law. As we shall see, it played a central part in the attack on the crown and the cabinet system in the eighteenth century. It found recognition in all American constitutions. But whereas Lilburne predicated its usefulness in part on the inferiority of executive to legislature, which made possible effective legislative scrutiny of executive action, the American constitutions, like the Instrument and the Petition and Advice, combined the separation of powers with the idea of balance expressed in the doctrine of mixed monarchy, and made the executive co-ordinate with the legislature.
CHAPTER IX