Fortescue did not say that the government of England was a mere regimen politicum; he said it was regimen politicum et regale. It was at the same time both “political” and “regal,” limited and absolute; and these, for him, were not mutually exclusive terms as they are for us. One of these two interpretations looks forward to the cabinet government of the eighteenth century and afterward, making Fortescue hardly less than a modern; the other looks back to Bracton’s description of English institutions as they were about the middle of the thirteenth century, and implies that these institutions survived with little change in fundamentals to the end of the medieval period at least. This is not to overlook or to deny the great constitutional developments between Bracton’s day and Fortescue’s. When Bracton wrote his great treatise, representatives, so far as we know, had been chosen to attend an English parliament but once, and that for mere participation in a grant of supply; the Commons were as yet no essential part of the national assembly. The enactments which Fortescue has in mind, those which for him make England, unlike France, a true regimen politicum, are statutes enacted only by a parliament which, in the words of an English chief justice of the fourteenth century, “represents the body of all the realm.” 32 The difference is vast. Yet it remains true, I think, that Fortescue’s constitutionalism is medieval and not modern. It still incorporates the essentials of Bracton’s theory of the state.
If this interpretation of Fortescue’s constitutionalism is the correct one—and I think the subsequent more detailed examination of Mr. S. B. Chrimes 33 has confirmed it—then we must cease to expect to find, and we must give up the assumption that we actually have found, in Fortescue any trace of modern republican or democratic control of national administration. This means that there is nothing in Fortescue’s words, or in the political institutions or ideas of the age he describes, of our modern doctrine or practice of “checks and balances.” Government, so far as it was strictly government, was then a discretionary power concentrated in a single hand. In 1576 Bodin criticized Aristotle for classifying states on the basis of actual administration, instead of the ultimate source of authority. The hint might apply to medieval constitutionalism as well. No matter how many officials or councils might be employed by a medieval king, if their whole authority was in every case a mere delegation of a royal discretionary power, there is no warrant for our assumption of such anachronisms as mixed monarchy, or “republican” control, or “checks and balances.” In the Middle Ages, as always, there was, of course, the salutary threat of revolution against an oppressive government; but it is a contradiction in terms to call such a check a constitutional or legal one. Within the frame of what we might call the constitution, government proper, as distinguished from jurisdictio, was “limited” by no coercive control, but only by the existence beyond it of rights definable by law and not by will.
If such a system had had no great defects, it might have survived to our own day without any supplementary “control” of administration. It is easy enough now to see what the fundamental defect was: it lay in the lack of any effective sanction for these legal limits to arbitrary will. It was not until comparatively modern times that the developments of nationalism and the concentration of national authority convinced men that the principles of the Digna vox were not a sufficient protection of liberty and right against arbitrary will. As Professor Tawney says, “Skeptical as to the existence of unicorns and salamanders, the age of Machiavelli and Henry VIII found food for its credulity in the worship of that rare monster, the God-fearing prince.” 34
The addition of the modern political control of government to the medieval legal limitation of it required a revolution—a revolution that reached England only in the seventeenth century, France only at the end of the eighteenth, and cost both countries much blood.
This, however, was a later and a modern development which can be best treated by itself. Meantime, it might be added, the medieval constitutionalism disclosed by the English historical materials was no monopoly of England or of Englishmen, but a datum with which the historian must reckon no matter with what particular European constitutional system he is immediately concerned. “Racism” may be a convenient cloak for national aggression, but it is a very inadequate explanation of national constitutional development. A generation or two ago it was the fashion to account for England’s unique retention of her medieval constitutionalism by some mysterious quality of the English race or blood, and especially by the Englishman’s Germanic strain. Such arguments have now, happily, been left by historians to the propagandists, and they are refuted by the evidences, plentiful and widely scattered, of the existence in many lands of a medieval constitutionalism not essentially unlike England’s and, though much more rarely, of the persistence of this constitutionalism to modern times.
The great fourteenth-century jurist, Baldus, in his commentary on Justinian’s Code, repeats in general terms the maxim that the prince ought to observe the laws because all his authority comes from them. But the word “ought,” he says, must not be taken too literally, because the supreme and absolute power of the prince is not under the law; therefore that law has reference to the ordinary power, not to absolute power ( unde lex ista habet respectum ad potestatem ordinariam non ad potestatem absolutam ). 35 This is a reference to the familiar merum et mixtum imperium et jurisdictio with which all continental legal writers of the time are concerned, 36 but the clear distinction of Baldus between a potestas ordinaria and a potestas absoluta seems to be about the same as Bracton’s between jurisdictio and gubernaculum.
As we have seen, the fundamental weakness of all medieval constitutionalism lay in its failure to enforce any penalty, except the threat or the exercise of revolutionary force, against a prince who actually trampled under foot those rights of his subjects which undoubtedly lay beyond the scope of his legitimate authority. We must clearly recognize this defect of medieval constitutionalism without denying the existence of the constitutionalism. The importance of the period we are now to consider arises from the attempts then made, and the final success of the attempts, to secure a sanction short of force for these legal rights of the subject against the arbitrary will of the prince.
Looking backward at this struggle one is amazed by its desperate character, the slowness and the lateness of the victory of law over will, the tremendous cost in blood and treasure, and the constitutional revolution required to incorporate the final results in the fabric of modern constitutionalism. Wholly regardless of the respective claims, in the sixteenth century, of Protestantism and Catholic orthodoxy, or of those of Puritans and their opponents, I think it may be said that had there been no religious schism such as then occurred, a schism unexampled since Roman times in extent and permanence, medieval constitutionalism, with this fatal weakness of its sanctions, might well have been utterly swept away by the rising tide of national power concentrated under the new Renaissance monarchy in a prince who no longer had to defer to the rights and claims of a multitude of powerful feudal lords. The great issue in the sixteenth century was the conflict between the old gubernaculum and the old jurisdictio over the indefinite line which separated one from the other; and up to the appearance of the religious schism it seemed an unequal struggle in which one outpost of law after another fell before the new forces of despotic will. Throughout the whole range of political literature there is probably no period in which obedience to kings is so stressed as in the first half of the sixteenth century—not even during the reaction in England following the execution of Charles I. In that period, to all appearances, jurisdictio was destined to be swallowed up entirely by gubernaculum; and if the doctrines of almost unlimited obedience which then prevailed had persisted unchanged, I venture to believe that it would have disappeared.
Among the many surviving examples of these doctrines a single one must suffice here, but this one is the more striking because it comes from William Tyndale, who had suffered much and was to suffer yet more from royal oppression. In 1528 Tyndale wrote in his Obedience of a Christian Man:
For God hath made the kyng in every Realme iudge over all, and over him is there no iudge. He that iudgeth the kyng iudgeth God, and he that layeth handes on the king, layeth hand on God, and he that resisteth the kyng resisteth God, and damneth Gods law and ordinaunce. If the subiectes sinne they must be brought to y e kinges iudgement. If the kyng sinne he must be reserved unto y e iudgement wrath and vengeaunce of God. . . . Hereby seest thou that the knyg is in thys worlde without lawe, and may at his lust doe right or wrong, and shall geve acomptes, but to God onely. . . . Further more though he be the greatest tyraunt in the world, yet is he unto thee a great benefit of God and a thing wherefore thou oughtest to thanke God hyghly . . . when God gave the people of Israell a kyng, it thundred and rained that y e people feared so sore that they cryed to Samuell for to pray for them, that they should not dye. . . . As the law is a terrible thing: even so is the kyng. For he is ordeined to take vengeaunce and hath a sword in his hand and not pecockes feethers. Feare him therefore and looke on hym as thou wouldest looke on a sharpe sword that hangeth ouer thy head by an heare. 1
It would be difficult to express the theory of royal absolutism in more extreme or more sweeping terms—“the kyng is in thys worlde without lawe.” And Tyndale’s words did not stand alone.
In the face of this attack, jurisdictio was saved from extinction mainly by two things: the unexampled toughness of the ancient English common law and the ultimate emergence of new and radical religious differences among the subjects of the king. The first of these influences has been explained by Maitland in his brilliant Ford Lecture on English Law and the Renaissance. It was in this period that the German reception of Roman law was consummated and there was a serious threat of a similar reception in England. On the political or constitutional side, which mainly concerns us here, what commended the Roman system to its sixteenth-century advocates was not, as to Glanvill or Bracton, its popular origin, but rather its later despotic tendency embodied in the famous maxim: “What has pleased the prince has the force of a lex. ” In any event the Roman attack was a failure, and Maitland has shown how much the inherent strength of the old jurisdictio contributed to that result. But the ultimate outcome might well have been vastly different if the strength of the jurisdictio had been offset by a government backed by the unanimous support of subjects who continued to think of the king as Tyndale had thought. The fact that it was not so backed we must attribute chiefly to the religious differences which were becoming very grave by the middle of the sixteenth century.
In all the coronation oaths surviving from the Middle Ages the first and foremost obligation by which the prince is bound is his duty to maintain the Church. Neglect of this duty was considered a misfeasance as serious as injustice, and in the eyes of many religious zealots of the sixteenth century infinitely more serious: the former endangered the immortal souls while the latter endangered merely the bodies of all the king’s subjects. In the famous Vindiciae Contra Tyrannos, which comes nearest to being the official pronouncement of French Calvinists in the later sixteenth century, the first questions asked and answered are whether a prince’s subjects ought to obey if he commands something contrary to the law of God, and whether they may actively resist his attempts to abrogate this law or to “lay waste the Church.” Only in the second place is it asked whether a similar resistance is warranted where he is “oppressing the Republic.” And Calvin himself had said that “earthly princes when they rise up against God abdicate their authority, nay even become unworthy of being reckoned in the number of men.” 2 The effect of religious schism was to give new life and new content to the old theories concerning tyranny. It could scarcely be otherwise under the prevailing conditions, when the king was the vicar of God and defender of the faith, sworn to maintain and enforce religious uniformity throughout a realm in which there was no longer even a semblance of actual uniformity. In such a case it was inevitable that religious groups of every faith, if brought under the king’s penalty for nonconformity, should come to regard the ruler not as a true king but as a tyrant, who by fighting against God had abdicated his lawful authority. Boucher, the Catholic Ligueur, entitles his book against the king of France The Just Abdication of Henry III. 3 Old doctrines of tyranny thus got a new religious content which so weakened respect for all government that the very state was threatened, and eventually a new party was created willing even to tolerate error if such toleration were necessary to save the state from destruction.
In the struggle between jurisdictio and gubernaculum it was then not merely the toughness of English law that saved it from destruction; it was in part also the weakening of government. The alliance of lawyer and Puritan against encroachments of royal power in the later sixteenth and the early seventeenth century is one of the commonplaces of English history, and James I with his practical but shortsighted shrewdness always linked the two together. It is equally significant that he also coupled “Puritans and Papists.” 4 But here some might question—indeed some have questioned—the very fact of the survival of jurisdictio in the Tudor period. The trite and accepted phrase, “Tudor absolutism,” seems to imply the contrary, and if it is a wholly correct phrase my premise of the persistence of constitutional limitations must be abandoned. I shall therefore try to indicate a little of the evidence for the survival of jurisdictio, and for that of the distinction between it and government. Then I shall turn to the chief contribution of the sixteenth and seventeenth centuries to our modern constitutionalism—the development which culminated in a new political sanction for the old legal limitations on government inherited from the Middle Ages.
In the transmission to our times of these limitations England’s part far outweighs in importance that of any other European country, and this would remain largely true for us even if our peculiar political institutions and ideas were not English in origin. The instinct of Rudolph Gneist was sound when, three-quarters of a century ago, he turned to a study of the English constitution as the basis of his “efforts for reform in the German legal procedure.” The history of constitutionalism in the critical sixteenth and seventeenth centuries is therefore mainly a history of some aspects of the English constitution. On the other hand, it would be a serious mistake to assume that these principles of constitutionalism were confined to England alone. For example, the iconoclasm of the French Revolution tended and still tends somewhat to obscure the constitutional principles which were struggling for survival in France under the Old Regime. It may be worthwhile to look briefly at a few French illustrations of these principles before turning our attention to England.
The word “constitution,” as we have seen, acquired its present meaning comparatively lately, but other words were used long before with the same general meaning. As early as 1418 or 1419 Jean de Terre Rouge is certainly thinking of nothing less than a French constitution, and in some sense a fundamental one, when he says: “It is not permissible for the King to change those things which have been ordained ad statum publicum regni. ” 5 Bodin in 1566 entitles the important sixth chapter of his Methodus, which deals with constitutional matters, De statu Rerumpublicarum. It is with French assertions of this principle in the sixteenth century that we are here concerned, and probably the most definite of them all is the one made by Claude de Seyssell early in the reign of Francis I. “There are, as it were,” he says, “three bridles by which the supreme power of the kings of France is restrained”: religion, jurisdiction, and la police. The third of these consists of the fundamental laws of the monarchy which Jean de Terre Rouge had included within the status publicus regni. The second is our ancient jurisdictio —the name and the thing, under which Seyssell mentions the parlements, constituted, as he says, in order that nothing should be permissible for kings more than has been conceded by law. 6 In 1571 the historian du Haillan repeats these maxims of Seyssell with approval, but confesses with regret that “we retain only the shadow of those good old institutions.” 7
Seyssell’s constitutionalism may have been an anachronism, as du Haillan hints, but he spoke as if his principles were still valid, and those principles seem to imply for him nothing less than the fundamentals of a constitution defined by law, unalterable by government, and interpreted by an independent judiciary. The great tradition of constitutionalism can be clearly traced through that unparalleled succession of eminent French jurists and historians from Charles du Moulin in the sixteenth century to Claude Joly in the seventeenth—constitutionalists all, including François Hotman, Bodin, Charondas le Caron, Bacquet, Choppin, du Tillet, du Haillan, Pasquier, De Thou, Coquille, Loyseau, Brisson, the Chancellor De L’Hôpital, La Roche Flavin, Loysel, Lebret, Talon, and many more. By the end of that period French constitutionalism had become even more a shadow than it had been in 1571, but it was the shadow of a substance that we still retain at least in part; and when the great history of constitutionalism comes to be written, it will not be complete without a significant chapter on France under the Old Regime. We must, however, give greater attention to our own earlier institutions, for it was mainly there that the fate of modern constitutionalism was settled. For reasons centering largely in the political institutions peculiar to medieval England, only a few of which can be dealt with in a rapid survey such as this, England was more fortunate than her neighbors in retaining limitations on arbitrary government; and even in England a desperate civil war and a constitutional revolution were finally necessary before adequate sanctions could be found for her medieval constitutionalism. It is on these matters that a survey of the history of constitutionalism must concentrate.
In England, as elsewhere, jurisdictio was faced by encroaching government in the sixteenth and seventeenth centuries; yet in England jurisdictio had not been overwhelmed by government, and the old line of separation between it and gubernaculum was weakened but not destroyed. Constitutional history in this period is chiefly the story of the English attack upon this line and its English defense. Let us look first at the evidence for the survival of jurisdictio. Most of it, naturally, is to be found in the law reports of the period, but some of the letters of Stephen Gardiner, chancellor of England in the reign of Queen Mary, seem almost as significant. In 1547 Gardiner wrote thus to the Privy Council:
And thus I have hard the lerned men of the Common Law say that if any, althogh he be deputed by the King, do, in execution of spirituall jurisdiction, extend the same contrary to any Common Law or act of Parliament, it is a premunire both to the judge and the parties, althogh it be done in the Kings Majesties name; bicause they say the Kinges Majesties supremacie in visiting and ordring of the Churche is reserved to spirituall jurisdiction. Which their saing cold not sinke into my understanding, that men executing the Kings commission, and having of hym jurisdiction, cold faull in danger of a premunire. But so the best lerned men of the realme have said, and I wold fayne have persuaded them to the contrary. 8
In another letter of the same year Gardiner said:
And of what strenkythe an acte of Parliament is, the realme was taught in the case of her that we called Quene Anne; where all suche as spake ageynst her in the Parliament House, all though they ded it by speciall commaundement of the Kynge, and spake that was truth, yet they were fayne to have a pardon, by cause that speakinge was ageynst an acte of Parliament. Ded ye never knowe or here tell of any man, that for doynge that the Kynge our late sovereigne lorde willed, devysed, and requyred to be done, he that tooke paynes and was commaunded to do it, was fayne to sue for his pardon, and suche other allso as were doers in it? And I coulde tell who it were. Sure there hathe bene suche a case; and I have bene present when it hathe bene reasoned that the doinge ageynst an acte of Parliament excuse the not a man even from the case of treason, all thoughe a man ded it by the Kynges commaundement. Ye can call this to your rememberance, when ye thinke furder of it; and when it comythe to your rememberaunce, ye will not be best content with your selfe, I beleve, to have advysed me to entre the breache of an acte of Parliament, withoute suertie of pardon, all thoughe the Kynge commaunded it. 9
In Gardiner’s long letter written from the Fleet prison to the Protector Somerset in 1547 10 several well-known but remarkable passages occur which I am loth to omit as illustrations, both of the strength of the old jurisdictio, and of Gardiner’s apparent dislike of it. It is a very human document. He refers to the authority of papal legate which Wolsey had obtained with Henry VIII’s full knowledge and at his express request. “Yet,” Gardiner says, “because it was agaynst the lawes of the realme, the judges concluded the offence of the premunire; which conclusyion I bare away, and take it for a law of the realme, because the lawyers so sayd, but my resone digested it not.” In support of this decision, Gardiner says that the lawyers
brought in examples of many judges that had fines set on their heads in like cases for doing against the lawes of the realme by the Kings commaundement. And then was brought in the judges oth, not to staye any process or judgement for any commaundement from the Kinges Majesty. And one article agaynst my Lord Cardinal was that he had graunted injunctions to stay the Common Lawes. And upon that occasion Magna Charta was spoken of, and it was made a great matter, the stay of the Common Lawe. And this I lerned in that case.
Gardiner then refers to his experience of enactments of the Council against exporters of grain, ineffective because “at such thime as the transgressors should be ponished, the judges whould answere, it might not be by the lawes”; and to the famous Act of Proclamations of 1539, “in the passing of which act many liberall wordes were spoken, and a playne promes that, by autority of the Act for Proclamationes, nothing should be made contrary to an act of Parliament or Common Law.” He recalls one case in which he argued with Audley, the chancellor, against inflicting the penalties of the Statute of Praemunire, and then quotes Audley’s answer as follows:
“Thou art a good felow, Bishop,” quod he (which was the maner of his familier speach), “looke the Act of Supremacy, and there the Kings doinges be restrayned to spiritual jurisdiction; and in a nother acte it is provided that no Spirituall Lawe shall have place contrary to a Common Lawe or Acte of Parliament. And this were not,” quod he, “you bishops would enter in with the Kinge and, by meanes of his supremacie, order the layty as ye listed. But we will provide,” quod he, “that the premunire shall ever hang over your heads, and so we lay men shal be sure to enjoye our inheritaunce by the Common Lawes and acts of Parliament.”
Finally Gardiner recounts an episode of Henry VIII’s reign which furnishes probably the clearest of the proofs of his own defensive thesis and of several of mine.
The Lord Cromwell had once put in the Kinges our late sovereigne lordes head to take upon him to have his will and pleasure regarded for a lawe; for that, he sayd, was to be a very kinge. And therupon I was called for at Hampton Court. And as the Lord Cromwell was very stout, “Come on my Lord of Winchester,” quod he (for that conceat he had, what so ever he talked with me, he knewe ever as much as I, Greke or Laten and all), “Aunswer the King here,” quod he, “but speake plainly and direccly, and shrink not, man! Is not that,” quod he, “that pleaseth the King, a lawe? Have ye not ther in the Civill Lawe,” quod he, “ quod principi placuit, and so fourth?” quod he, “I have somwhat forgotten it now.” I stode still and woundred in my mind to what conclusion this should tend. The King sawe me musing, and with ernest gentelnes sayd, “Aunswere him whether it be so or no.” I would not aunswere my Lord Cromewell, but delivered my speache to the King, and tolde him I had red in dede of kings that had there will alwayes receaved for a lawe, but, I told him, the forme of his reigne, to make the lawes his wil, was more sure and quiet. “And by thys forme of government ye be established,” quod I, “and it is agreable with the nature of your people. If ye begin a new maner of policye, how it will frame, no man can tell; and how this frameth ye can tell; and I would never advise your Grace to leave a certeine for an uncerteine.” The King turned his back and left the matter after.
A dozen years later than this, in the first year of Elizabeth, John Aylmer, later bishop of London, wrote his Harborough for All Faithfull and Trewe Subjects in answer to John Knox’s First Blast of the Trumpet Against the Monstruous Regiment of Women. It contains a statement of constitutionalism hardly less striking than Gardiner’s:
The regemente of Englande is not a mere monarchie, as some for lacke of consideracion thinke, nor a mere oligarchie nor democracie, but a rule mixed of all these, wherein ech one of these have or should have like authoritie. The image whereof, and not the image, but the thinge indede, is to be sene in the parliament hous, wherein you shall find these 3 estats; the king or quene which representeth the monarche, the noblemen which be the aristocratie, and the burgesses and knights the democratcie. . . . If the parliament use their privileges, the king can ordain nothing without them: If he do it, it is his fault in usurping it, and their fault in permitting it. Wherefore, in my judgment, those that in King Henry the VIII.’s daies would not grant him that his proclamations should have the force of a statute, were good fathers of the countrie, and worthy commendacion in defending their liberty. . . .
But to what purpose is all this? To declare that it is not in England so daungerous a matter to have a woman ruler, as men take it to be. . . . If, on thother part, the regement were such as all hanged upon the king’s or quene’s wil, and not upon the lawes written; if she might decre and make lawes alone, without her senate; if she judged offences according to her wisdom, and not by limitation of statutes and laws; if she might dispose alone of war and peace; if, to be short, she wer a mer monarch, and not a mixed ruler, you might peradventure make me fear the matter the more, and the less to defend the cause. 11
This statement is remarkable in more ways than one for a date so early as 1559; it includes not only an unequivocal statement of our ancient legal limitations on the prince’s authority, but an assertion—one of the earliest I have met with—of mixed monarchy as the true form of the English government. In addition, it places matters of peace and war within the powers of parliament instead of the king alone—a principle that, so far as I know, was never seriously urged in parliament till 1621, and was then repudiated by the king.
That Aylmer’s assertion above is true, that in England all did not hang upon the queen’s will, but “upon the lawes written,” we find ample proof in the law reports of the time. Thus we find in Judge Jenkins’ summaries of cases in the Exchequer Chamber: “The King by his grant cannot exclude himself from prosecuting any plea of the Crown; for it concerns the publick Government, and cannot be separated from his person.” 12 “Where the King has an Estate in fee or for life in any land, the king’s grant of it quamdiu in manibus nostris fore contigerit, is a void grant; for such a grant was never heard of.” 13 “The King cannot grant to any one a power to dispence with any penal statute.” 14 “The King cannot grant power to any to make justices of oyer and terminer.” 15 “Regularly the King is only subject to the law of nature, as to the rights of the Crown; as to the rights of the subject he is bounded by the laws of the land.” 16 But the clearest of all such cases is that of Cavendish in 1587, when the justices of the Court of Common Pleas flatly refused to obey express and repeated orders of the Queen, on the ground that “the orders were against the law of the land, in which case it was said, no one is bound to obey such an order.” 17
A half-dozen years later, when Serjeant Heyle ventured to say in the House of Commons that the queen “hath as much right to all our Lands and Goods as to any Revenue of her Crown,” D’Ewes says, “All the House hemm’d and laughed and talked.” 18 It may have been similar opinions expressed in the same parliament by an unnamed “old Doctor of the Civil Law,” on hearing of which D’Ewes says, “The House hawk’d and spat and kept a great coil to make him make an end.” 19
These were rights of the subject protected by due process of law; but over against them was the king’s government in which he was “subject only to the law of nature.” We might offset Aylmer’s constitutionalism by a statement attributed by Thomas Starkey to Cardinal Pole in the supposed dialogue between Pole and Lupset:
Hyt ys not unknown to you, Master Lupset, that our cuntrey hathe byn governyd and rulyd thes many yerys under the state of pryncys, wych by theyr regal powar and pryncely authoryte, have jugyd al thingys perteynyng to the state of our reame to hange only upon theyr wyl and fantasye; insomuch that, what so ever they ever have conceyvyd or purposyd in theyr myndys, they thought, by and by, to have hyt put in effecte, wythout resystens to be made by any private man and subyecte; or else, by and by, they have sayd that men schold mynysch theyr pryncely authoryte. For what ys a prynce (as hyt ys commynly sayd) but he may dow what he wyl? Hyt ys thought that al holly hangyth apon hys only arbytryment. Thys hath byn thought, ye, and thys yet ys thought, to perteyne to the maiesty of a prynce—to moderate and rule al thyng accordyng to hys wyl and plesure; wych ys, wythout dowte, and ever hath byn, the gretyst destructyon to thys reame, ye, and to al other, that ever hathe come therto. 20
If Gardiner does not misrepresent him, these were precisely the opinions of Thomas Cromwell: to be a “very king” the prince must make his will a law. It seems probable that the dialogue of Cromwell and Gardiner at Hampton Court, referred to in Gardiner’s letter to Somerset, was the prelude to Henry’s attempt to put in practice this conception of kingship of Cromwell’s by the Statute of Proclamations in 1539. It seems equally likely that Aylmer’s praise of “the good fathers of the country” had reference to the men in the House of Commons who forced the king to substitute for his original bill a new one which specifically excepted from the king’s proclamations the “inheritances, lawful possessions, offices, liberties, privileges, franchises, goods, or chattels” of subjects, and forbade the infringement of any “acts, common laws,. . . [or] lawful and laudable customs” of the realm. It may have been these things that Starkey also had in mind. 21
Clearly a struggle was going on in England between will and law about the year 1539, and it was to last for one hundred and fifty years. That it did not reach the phase of open warfare before the Stuarts is to be explained chiefly by the nature of parliament in the Tudor period. “It is of interest to note,” says Professor Cheyney,
that the queen [Elizabeth] used the expressions “this parliament” and “parliaments,” as indeed was practically universal contemporary usage. She hardly conceived of “parliament” as a permanent institution. There was not in her view a coördinate branch of government known as parliament; rather from time to time a special assembly known as a parliament was called. The permanent continuous government was the queen, her privy councillors, judges and other officials. 22
Sir Thomas Smith in his De Republica Anglorum, written in Elizabeth’s reign, devotes considerable space to parliament; and yet, I believe, the statement of Sir John Seeley was on the whole a true one when he said that “in Queen Elizabeth’s reign it would not have been natural . . . in describing the government of England to mention Parliament at all. Not exactly that Parliament was subservient, but, that, in general Parliament was not there.” 23
In the forty-five years of Elizabeth’s reign there were only eleven parliaments, whose duration was seldom longer than a few weeks; and I think one must agree with the further conclusion of Sir John Seeley, that the beginning of parliament as a normal and regular organ of English government are to be found only after the Restoration. That, he says, “is the epoch from which we may say that the permanence of Parliament dates.” 24 Even in the comparatively short periods when parliament was in session the influence of the king was predominant and the “absolute” character of his government was recognized by the parliament itself. The words of Henry VIII in Ferrer’s Case were indicative of the facts when he said: “We at no time stand so high in our estate royal as in the time of parliament; when we as head and you as members are conjoined and knit together into one body politic.” 25 It was never forgotten, by king or parliament, that the king was the real head; and in 1535 Stephen Gardiner held in his Oratio de Vera Obedientia that this was a headship in matters ecclesiastical as temporal:
seeinge the churche of Englande consisteth of the same sortes of people at this daye that are comprised in this worde realme of whom the kinge his called the headde: Shall he not beinge called the headde of the realme of Englande be also the headde of the same men whan they are named the churche of Englande? 26
In all these matters of government proper, and not of mere jurisdictio, the debates of Elizabeth’s parliaments collected by Sir Simonds D’Ewes furnish concrete and conclusive evidence that the paramount and unquestioned authority of the prince as head was fully recognized and accepted by parliament itself—evidence which is all the more significant when we contrast it with the strenuous and successful opposition offered by parliament when Henry VIII attempted to invade the sphere of jurisdiction in the Statute of Proclamations.
Interesting examples of the insistence by the queen, and at times of the clear acknowledgment by parliament, that government proper was not parliament’s province, but that of the prince alone, occur in almost every one of Elizabeth’s parliaments from 1566 on. I have time to note only a few. In 1559, in the very first parliament of the reign, Sir Nicholas Bacon, the lord keeper, warned the members that they should
clearly forbear, and, as a great enemy to good Council, fly from all manner of Contentions, Reasonings, Disputations, and all Sophistical Captious and frivolous Arguments and Quiddities, meeter for ostentation of Wit, than Consultation of weighty Matters, comelier for Scholars than Counsellors; more beseeming for Schools, than for Parliament Houses. 27
Not bad advice to any legislative body, but rather ominous coming from such a source. And at the end of the parliament of 1571 the lord keeper reproved certain of the members,
although not many in number, who in the proceeding of this Session, have shewed themselves audacious, arrogant, and presumptuous, calling her Majesties Grants and Prerogatives also in question, contrary to their duty and place that they be called unto; and contrary to the express Admonition given in her Majesties name, in the beginning of this Parliament.
These, he says, her Majesty condemns “for their audacious, arrogant and presumptuous folly, thus by superfluous speech spending much time in medling with matters neither pertaining to them nor within the capacity of their understanding.” 28 In the same session the speaker of the Commons himself admitted that in matters ecclesiastical “wholly her Majesties Power is absolute”; 29 and one member, for encroaching upon this power by proposing a bill for reforming the ceremonies of the Church, was called before the Privy Council and commanded meantime to remain away from the parliament. 30 Exhibiting such a bill, the treasurer declared, was “against the Prerogative of the Queen, which was not to be tolerated.” The prerogative in this respect was, as one member put it, “not disputable.” 31 And the queen herself sent word to the Commons that she “would not suffer these things to be Ordered by Parliament.” 32
The boldness of Strickland, who was thus sequestered by the council in 1571 was, however, exceeded in the speech of Peter Wentworth in the parliament of 1575, for which the Treasurer
moved for his punishment and Imprisonment in the Tower as the House should think good and consider of; whereupon after sundry Disputations and Speeches, it was ordered upon the Question, that the said Peter Wentworth should be committed close Prisoner to the Tower for his said offence, there to remain until such time as this House should have further Consideration of him. 33
When the Commons in the parliament of 1580 had ventured to pass Paul Wentworth’s resolution for a public fast day “without her Majesty’s Privity and Pleasure first known,” they were rebuked and compelled to make humble submission to the queen for thus daring to “intrude upon her Authority Ecclesiastical”; and when one member rose to protest, the speaker and the House, as D’Ewes says, “did stay him.” 34 At the opening of the session of 1593 the lord keeper, “having received new instructions from the Queen,” closed his address to the parliament with these notable words:
Wherefore, Mr. Speaker, her Majesties Pleasure is, that if you perceive any idle Heads which will not stick to hazard their own Estates, which will meddle with reforming the Church and transforming the Commonwealth, and do exhibite any Bills to such purpose, that you receive them not, until they be viewed and considered by those, who it is fitter should consider of such things, and can better judge of them. 35
Later, when a bill was drawn by Peter Wentworth and another “for entailing the Succession of the Crown,” the delinquents were called before the council, which commanded them “to forbear the Parliament, and not to go out from their several Lodgings.” 36
It seems reasonably certain that the line so clearly drawn by Bracton between jurisdictio and gubernaculum in the thirteenth century still remains at the end of the sixteenth the main clue to the riddle of the English constitution. At the close of Elizabeth’s reign, with only a few exceptions men seemed to accept, almost as fully as Bracton, the twofold theory that the king is under the law and yet under no man, that private right is determinable and enforceable by law, and is under the control of courts and parliaments; while “matters of state,” or the “transforming of the Commonwealth,” are things “neither pertaining to them nor within the capacity of their understanding.” The latter are a part of “the Prerogative Imperial,” 37 which is and ought to be “absolute” and “not disputable.” But this delicate balance between jurisdiction and government could only be kept if the head and the members of the commonwealth remained “conjoined and knit together into one body politic,” as Henry VIII said. The seams joining them were beginning to show signs of strain even in the reign of Elizabeth; and under her successor rents began to appear, which were soon to widen till the state was divided. A declaration of Sir Walter Raleigh’s is significant:
If the House press the King to grant unto them all that is theirs by the law, they cannot in justice refuse the King all that is his by the law. And where will be the issue of such a contention? I dare not divine; but sure I am that it will tend to the prejudice both of King and subject. 38
These were prophetic words.
In the contention between jurisdictio and gubernaculum which was becoming imminent in the later years of Elizabeth’s reign and developed into an open strife under her successor, each side emphasized the fact that its rights were an “inheritance.” The parliament itself unwittingly strengthened the position of James I in the first statute of his reign when they declared, in the face of a statute of Henry VIII still in force and flatly contrary, that
the Imperial Crown of the realm of England, and of all the kingdoms, dominions, and rights belonging to the same, did by inherent birthright and lawful and undoubted succession descend and come to your most excellent Majesty, as being lineally, justly, and lawfully next and sole heir of the blood royal of this realm. 39
James himself always insisted on his royal rights as an inheritance. To him the “fundamental” laws, if any were fundamental, gave protection, not to the subject, but to him alone; they were “onely those Lawes whereby confusion is avoyded, and their King’s descent mainteined, and the heritage of the succession and Monarchie.” 40 They were no part of the common law, and therefore “not fit for the tongue of any lawyer” even in the high court of parliament. That “highest and most authenticall court of Englande,” as Sir Thomas Smith had called it, 41 was itself for James merely a “subalterin iudiciall seate.” 42 Like the parliament of Scotland where the members “must not speake without the Chauncellors leave,” it was no place “for every rash and hare-brained fellow to propone new Lawes of his owne invention.” 43 As late as 1621 he ordered the speaker of the Commons “to acquaint that house with our pleasure, that none therein shall presume to meddle with anything concerning our government or mysteries of state,” and to warn them
that we think ourself very free and able to punish any man’s misdemeanours in parl. as well as during their sitting as after. . . . 44
We cannot allow of the stile, calling it [parliamentary privilege] your antient and undoubted right and inheritance, but could rather have wished that ye had said, that your privileges were derived from the grace and permission of our ancestors and us; (for most of them grow from precedents, which shews rather a toleration than inheritance). . . . So as your house shall only have need to beware to trench upon the prerogative of the crown; which would enforce us, or any just king, to retrench them of their privileges, that would pare his prerogative and flowers of the crown. 45
“The plain truth is,” as he said later, “that we cannot, with patience, endure our subjects to use such antimonarchical words to us, concerning their liberties, except they had subjoined that they were granted unto them by the grace and favour of our predecessors.” 46
The true nature and the gravity of this issue are indicated in the replies to these assertions of the king, made by such men as Sir Thomas Wentworth, later earl of Strafford and Sir Edward Coke. In one of the newly discovered diaries of this parliament of 1621 Wentworth is reported to have said, “The common Lawes are but custome, and wee claime our liberties by the same title as we doe our estates, by custome.” 47 The crisis of the constitution, and of constitutionalism, could hardly have been expressed in fewer or truer words, and Coke’s are equally significant: “When the kinge sayes he can not allowe our liberties of right, this strikes at the roote. Wee serve here for thousands and tenn thousands.” 48 This was a life-and-death struggle between liberties held “of right,” as the subject’s estates were, and James’s view that they were “derived from the grace and permission of our ancestors and us”; it was a dramatic collision of the old jurisdictio and gubernaculum.
The liberties of the people were to them as much an inheritance guaranteed by the common law as the hereditary right to his authority, independent of that law, was to James; and in a case of the third year of Elizabeth it had been asserted in the court of Common Pleas that, since a particular statute had been enacted
to save Men’s Inheritance, we ought to construe it according to the Consideration of the Common Law, and to admeasure the Prerogatives of the King upon this Act, which is made for the Safety of the Inheritances of others, in such Manner as the Common Law admeasures them in Cases that affect the Inheritances of others at Common Law. . . . The King’s Prerogative by the Common Law can not prevail against such a custom as stands with the Right of Inheritance of another.
In case of a procedure where “the Party might be disinherited thereby . . . the Common Law will not suffer the King to have such a Prerogative.” Therefore it was said that the king was bound by the statute in question,
for of a Law which belongs to a common Person, be it the Common Law or a special Law, every Man shall take advantage, which the King of common Right cannot defeat, for every Man is an Inheritor to this Common Law of Addition as well as to any other Common Law, which the King cannot defeat without Parliament, for of this Law every Man shall take advantage. . . . Every Subject may claim from him Justice and the King is forced by Justice to do that which he ought.” 49
The wily king had hinted that the privileges of parliament depended solely on precedents. He might have taken warning from Coke’s reply, that the Commons “served for thousands and tens of thousands,” or from Wentworth’s earlier statement: “We are they that represent the great bulk of the commonwealth.” 50 For in these replies we find the first vague promise of the future constitutional principle of the responsibility of government to the people, as a matter not merely of law but of policy. The crisis of 1621 is one of the turning points in the history of constitutionalism. It marks the coming of the new principle of political responsibility to reinforce the old guarantee of law, for the protection of the rights of the subject when threatened by arbitrary will. Parliament was not merely “the most authenticall court” for the determination of private right; it was that, but it was more. It represented “the great bulk of the Commonwealth,” and was now beginning to act in their name and in their interest against a “head” whose hereditary rights could no longer be reconciled with the traditional liberties of the members of the commonwealth.
This principle of the people’s consent and of parliament as the channel of this consent, reasserted by Wentworth and Coke in 1621, is a very ancient one. As we have seen, it was the original foundation of the binding force of leges in republican Rome; 51 and it was asserted by Bracton in his repetition of Papinian’s dictum that lex is the “common engagement” of the republic, 52 and in his Introductio when he said that laws could “neither be changed nor destroyed without the common consent of all those with whose counsel and consent they have been promulgated.” 53 This is the principle to which Edward I referred in his summonses to the parliament of 1295— quod omnes tangit ab omnibus approbetur. 54 It is also implied in the repudiation by parliament in 1366 of the papal overlordship of England and Ireland because neither King John who had conceded it, nor any other, could place his realm or his people under such subjection “without their assent and agreement.” 55
The general principle is ancient and is clear; but it was long before the corollary became equally clear—that the voice of parliament is the voice of the people. As late as 1365 counsel was arguing in an English court that one accused of breach of a statute could not be guilty if the statute had not been proclaimed locally in his county; 56 as late as 1441 it was seriously debated in the courts whether a churchman’s subsequent vote in Convocation should estop him from claiming an immunity granted by royal charter, thus implying that an act of Convocation is merely the act of its members individually; 57 and as late as 1550 the following words were used by the chief justice of the court of Common Pleas to explain the effect of the recent Statute of Uses:
And when the Statute 27 H 8 was made, it gave the land to them that had the use. It is to be seen then, who shall be adjudged in Law the Donor after the Execution of the Possession to the Use. And, Sir, the Parliament (which is nothing but a Court) may not be adjudged the Donor. For what the Parliament did was only a Conveyance. . . from one to another, and a Conveyance by Parliament does not make the Parliament Donor; but it seems to me that Feoffees to Use shall be the Donors, for when a Gift is made by Parliament, every Person in the Realm is privy to it, and assents to it, but yet the Thing shall pass from him that has the most Right and Authority to give it. . . . So here it shall be said the Gift of the Feoffees by Parliament, and the Assent and Confirmation of all others. For if it should be adjudged the Gift of any other, then the Parliament would do a Wrong to the Feoffees in taking a thing from them, and making another the Donor of it. 58
By some such fiction as this the Roman lex had been transformed, and it now furnished a basis for the beginnings of a new theory of parliamentary sovereignty; for its underlying assumption of consent and representation concealed the extent of parliament’s potential control over individual right. 59 Wentworth was speaking the language of the future when he said, “We are they that represent the great bulk of the commonwealth”; of the past, when he appealed to custom as the subjects’ title to liberty and property. But in 1621 both right and representation were threatened by the rapid extension of royal power.
The old dichotomy of jurisdiction and government was now strikingly displaying its one essential weakness—the lack of sanction for the protection of the sphere of law from invasion by the power of government. To a careful reader of the great constitutional law cases of the Stuart period nothing is more obvious than the embarrassment and hesitancy of the great defenders of individual liberty, such as Selden and Hakewill. If they were not to proclaim themselves revolutionists, which no man dreamt of doing or dared to do before the Long Parliament, these men had no recourse but to rely on earlier precedents; and these precedents afforded very inadequate protection for the rights they recognized. What was needed was a penalty for breaches of right, and there was none. Nothing less than a revolution could add the sanction necessary to make the peoples’ legal liberties secure, but men were not yet ready openly to preach revolution. James had shown his accustomed shrewdness by relying on precedent in his argument against parliamentary privilege; for precedent clearly recognized the power of the king as absolute in government, and it provided no adequate check for an abuse or undue extension of the king’s discretionary power beyond its legitimate sphere.
Discretionary powers are by their very definition not controllable by any law. It is as true now as in 1621. Under the pardoning power a governor of one of our states can make jail delivery of all the dangerous criminals in its prisons, and it is not so long since something like that was actually done. Jurisdictio marked the limits of the king’s authority but provided no means of enforcing their observance. One practical difficulty lay in the very indistinctness of the line dividing the spheres of royal government and private right and the ease with which that line might be ignored by the king on the pretext of “reasons of state” or the familiar and ever-present excuse of “national emergency.” An interesting instance of this dangerous indefiniteness, and one concerned with the personal rather than the proprietary rights of the subject, is afforded by the history of judicial torture in England. Torture, Sir Thomas Smith piously declared, “is not used in England, it is taken for servile.” 60 “The nature of our nation is free, stout, haulte, prodigall of life and bloud: but contumelie, beatings, servitude and servile torment and punishment it will not abide.” 61 “Heading, tormenting, dismembring, either arme or legge, breaking upon the wheele, empailing, and suche cruell torments as be used in other nations by the order of their law, we have not.” 62 “There is no one opinion in our Books, or judiciall Record (that we have seen and remember) for the maintenance of tortures or torments, c.,” says Sir Edward Coke in his Third Institute. 63
And yet the actual occurrence of such “cruell torments” in England in the reigns of Elizabeth and James I is attested by evidence that is unquestionable. 64 “Torture was constantly used as an instrument of evidence in the investigation of offences, whether municipal or political, without scruple, and without question as to its legality.” 65 In the case of Peacham in 1615 Secretary Winwood reported, “Upon these interrogatories Peacham this day was examined before torture, in torture, between torture and after torture.” 66 In 1571, only a few years after writing the statement above that torture was “not used in England,” Sir Thomas Smith wrote to Burleigh concerning prisoners implicated in the treason of the duke of Norfolk, “Tomorrow do we intend to bring a couple of them to the rack.” 67 The queen had commanded that they should “find the tast thereof,” 68 and they probably did. Coke himself, when attorney general, seems to have authorized the use of torture on at least one occasion. 69
This anomaly has often been attributed to the mere weakness or cowardice of the officials involved—an explanation no more satisfactory than the usual indiscriminate condemnation of all the king’s judges of the time; while Francis Hargrave thought that the instances of torture proved nothing more than “an irregularity of practice.” 70 The true and, to me, the only adequate explanation of these many instances is given by Jardine, to whom they “show, not the casual, capricious, or unjust acts of particular kings or councillors, but a practice handed down and justified by a constant course of precedents as an unquestionable prerogative of the Crown, though directly opposed to the fundamental principles of reason and law.” “No doubt,” he says,
the assertion of the illegality of torture is in one sense strictly true. It was not lawful by the common law; . . . it was contrary to Magna Charta and many statutes; and therefore the Judges could not inflict it as a punishment in the ordinary course of administering justice. But it was lawful as an act of prerogative,—as an act of that power to which, according to the doctrines of those days, the laws belonged as a kind of property,—a power, which was superior to the laws, and was able to suspend the laws,—and which was the only and uncontrolled tribunal to judge of the necessity of such suspension. 71
As Gardiner briefly puts it, “Torture had been allowed by custom as inflicted by prerogative, but not by law.” 72 “Here in England, they take a man rack him I doe not know why, nor when, not in time of Judicature, but when some body bidds,” says the caustic Selden. 73 The rack is thus only another case, and one very dangerous to liberty, of the old parallelism of jurisdictio and government. The king’s prerogative in this matter was not merely “out of the course of the common law,” as Blackstone said in the next century; it was still in danger of being “above” it, as Dr. Cowell, in his Interpreter, said it was in 1607.
What was thus true of secular cases before the council was equally true of ecclesiastical cases coming under the High Commission. The oath Ex Officio, which required one accused of nonconformity to incriminate himself under oath, was a procedure flatly contrary to common law and never employed in a common-law court, but its use was common in the prerogative court of the High Commission for Ecclesiastical Causes. 74
Other illustrations of the relations of government to law in the critical period of constitutionalism about the opening of the seventeenth century might easily be added, 75 but of them all royal monopolies are in some ways the most striking. For such a monopoly was by definition a branch of the prerogative in the hands of a subject. It originated in a grant made by virtue of the king’s “absolute” authority as “supreme governor,” and in the eye of the monarch was therefore not controllable by any law nor debatable by subjects even in the high court of parliament. It was, as Elizabeth said in 1597, if Egerton reported her correctly, “the chiefest Flower in her Garden, and the principal and head Pearl in her Crown and Diadem.” 76 On the other hand, these monopolies were often clearly against both statute and common law as well as oppressive in their actual effects. Did they therefore come within the “absolute” powers of the prince as mere “matter of polity,” or were they subject to the rules of the law, enforceable by the courts? This was the constitutional question, and it was a question of first importance both practical and theoretical.
Up to a year or two before her death Elizabeth had no doubt about the answer. Monopolies were her concern alone. She certainly thought them not “fit for the tongue of any lawyer.” As late as October 7, 1601, when a plaintiff tried to bring in question the legality of Darcy’s monopoly of the manufacture of playing cards by an action in the Common Pleas, the council at the queen’s instance issued an order to the justices of that court commanding them to stay all proceedings till the queen’s pleasure was made known to them. “Her Prerogative Royall may not be called in question for the valliditie of the letters patentes.” 77 In 1603 this very patent was declared to be against law in the case of Darcy v. Allen. 78 But in the meantime, some six weeks after the council’s order just mentioned, the House of Commons took up the question of monopolies in a five days’ debate which is without parallel in the surviving records of earlier parliamentary history. A list was read of the new patents granted since the last parliament. “Is not Bread there?” asked William Hakewill. “If order be not taken for these, Bread will be there, before the next Parliament.” 79 Despite the strenuous efforts of the ministers, who urged a procedure by humble petition to the queen, it was evident that the house was resolved on the bold step of proceeding by bill to restrict the royal prerogative—a method without precedent. In the accusations against Richard II parliament had charged the king with saying that the laws were “in his mouth.” Here was a proceeding on the part of parliament which, when Elizabeth first came to the throne, would have seemed hardly less revolutionary than the assertions of Richard II. The speaker was summoned to the queen in haste on November 24, 1601, while the debate was at its height, and the next day announced to the house a message from Elizabeth promising full redress of all their grievances not in futuro but at once. “What patent soever is granted,” Secretary Cecil added, “there shall be left to the overthrow of that Patent, a Liberty agreeable to the Law.” 80 Three days later the Queen was as good as her word and issued a proclamation “by her regal power and authority” and of “her mere grace and favor,” in which some monopolies were abolished and most of the others “left to law,” adding, however, “that if any of her subjects shall seditiously or contemptuously presume to call in question the power or validity of her prerogative royal, annexed to her imperial crown, in such cases all such persons so offending shall receive severe punishment, according to their demerits.” 81 It was a virtual surrender that these last words hardly served to conceal.
The threat against law and jurisdiction and against all legal rights, inherent in a prerogative with boundaries as vague and ill-defined as Elizabeth’s, was made evident to Englishmen probably far more by the greed of the holders of royal patents than by any oppressive acts of direct government on the part of the queen herself. What uncertainty was left in 1603, however, the first two Stuarts proceeded without much delay to remove.
If the historic evolution of modern constitutionalism is to be made explicable there remain, I take it, at least three major topics to be discussed: first, the views concerning it which seemed to prevail in Stuart England before the struggle for actual supremacy overshadowed all arguments based upon right or constitutional precedent; secondly, the growth of the conviction, toward the end of this period, that existing law was no sufficient guarantee of the liberty of the subject without the addition of sanctions which no constitutional precedents before 1603 adequately gave; and, lastly, the constitutional problems of the modern world which have resulted from the establishment of such sanctions by making the governor responsible to the law and, politically, to the governed.
Briefly stated, the constitutional views in the opening years of the Stuart regime do not seem essentially different from those of the Tudor period. What the Venetian ambassador reported of England in the year 1551 remained substantially true immediately after 1603: “The King of England exercises two powers; . . . the one royal and absolute, the other ordinary and legal.” 1 This view was never put more clearly than by Baron Fleming when, in 1606, he gave judgment for the king in the great case of Bate, speaking as follows:
And first, for the person of the King, “omnis potestas a Deo, et non est potestas nisi pro bono.” To the King is committed the government of the realm and his people; and Bracton saith, that for his discharge of his office, God had given him power, the act of government, and the power to govern. The King’s power is double, ordinary and absolute, and they have several lawes and ends. That of the ordinary is for the profit of particular subjects, for the execution of civil justice, and the determining of meum; and this is exercised by equitie and justice in ordinary courts, and by the civilians is nominated jus privatum and with us, common law; and these laws cannot be changed, without parliament; and although that their form and course may be changed and interrupted, yet they can never be changed in substance. The absolute power of the King is not that which is converted or executed to private use, to the benefit of any particular person, but is only that which is applied to the general benefit of the people, and is salus populi; as the people is the body and the King the head; and this power is guided by the rules, which direct only at the common law, and is most properly named Pollicy and Government; and as the constitution of this body varieth with the same, so varieth this absolute law, according to the wisdome of the King, for the common good; and these being general rules and true as they are, all things done within these rules are lawful. The matter in question [levying an import duty on currants by mere royal proclamation without sanction of an Act of Parliament] is material matter of state, and ought to be ruled by the rules of pollicy; and if it be so, the King hath done well to execute his extraordinary power. 2
Other instances of the same view might be given almost without number, and before 1627 we find it asserted at times even by the men who in later years were to be its most strenuous opponents. As late as 1621 Sir Edward Coke himself admitted that there was a prerogative “indisputable.” 3 Sir Edward Crawley in the ship-money case contrasted this with the ordinary or “disputable” prerogative by calling it “regal” in distinction from “legal.” 4 James I spoke of it as his “public prerogative,”or “mystery of state,” the arcanum imperii, “not fit for the tongue of any lawyer,” while he professed that in his “private prerogative” he was always willing to submit to the judgment of the courts. 5 Hobbes had the same distinction in mind in his difference between “matter of polity” and matter of law. 6
In the early seventeenth century it was usual to speak of this “public,” “extraordinary,” “regal,” “indisputable” prerogative as consisting of “reasons of state,” and several things seem evident in regard to it. First, it was nothing more nor less than the old familiar gubernaculum of Bracton; secondly, it seems to have been accepted almost as generally under James I as it had been in the Tudor period; thirdly, from the point of view of mere legal precedent, it was strictly constitutional; fourthly, men were becoming gradually but increasingly conscious of the deadly threat to their inherited liberties that it involved. Time will not serve to give more than a few of the many illustrations of these facts. For others I can only refer to almost any page of the state trials dealing with the great constitutional issues of the age—such as Bate’s Case in 1606, 7 the Case of the Post-Nati in 1608, 8 the Five Knights’ Case in 1627, 9 and the Ship-Money Case in 1637 10 —or to their repercussions in parliament, as disclosed in the debates reported in the Parliamentary History. Thus Bacon said in 1606: “The King’s acts that grieve the subject are either against law, and so void; or according to strictness of law, and yet grievous.” 11
In 1627 Sir Robert Heath, the attorney general, declared:
The King cannot command your lordship, or any other court of justice, to proceed otherwise than according to the laws of this Kingdom. . . . But, my lord, there is a great difference between those legal commands, and that absoluta potestas that a sovereign hath, by which a king commands. 12
We are too wise, nay we are too foolish, in understanding to examine matters of state, to which we are not born. . . . Shall any say, The King cannot do this? No, we may only say, He will not do this. 13
It is a dangerous thing for men in matters of weight to avouch precedents with confidence, when they make nothing for them. 14
The truth is that legal precedents in matters of government were in the King’s favor and justified the attorney general’s interpretation of the constitution, “according to strictness of law; and yet grievous,” as Bacon had said. There was no remedy in existing law, but there were serious grievances crying to be remedied.
As Sir Benjamin Rudyard later said in Parliament, “This by the way I will say of Reason of State, that, in the latitude by which it is used, it hath eaten out almost, not only the laws, but all the religion of Christendom.” 15 “This is the crisis of parliaments; we shall know by this if parliaments live or die.” 16 “King’s Prerogatives, are rather beside the law, than against it.” 17 As another member put it, to admit reason of state in a particular case would “open a gap, through which Magna Charta, and the rest of the statutes, may issue out and vanish.” 18 Or, as yet another declared, “By this we shall acknowledge a regal, as well as a legal power: Let us give that to the King, that the law gives him, and no more.” 19 “I understand not matters of state,” Selden said. 20 “Our laws are not acquainted with sovereign power,” said Sir Thomas Wentworth. 21 And Sir Edward Coke said: “I know that prerogative is part of the law, but ‘sovereign power’ is no parliamentary word. . . . Magna Charta is such a fellow, that he will have no sovereign.” 22 “If this be law, what do we talk of our Liberties?” asked Sir Robert Phillips. “Why do we trouble ourselves with the dispute of Law, Franchises, Propriety of Goods?” 23
It was strictly true, as Wentworth said, that English law was “not acquainted with sovereign power”; yet it was also true that the English constitution included such a sovereign power. The arguments of the friends and those of the opponents of a potestas absoluta never met; they slid past each other. The opponents were certainly arguing against precedent when they denied the existence of such a power, but their instinct was not at fault when they felt that “at this little gap every man’s liberty may in time go out.” 24 The very strictness of law was grievous, as Bacon had said. Here was a case that no legal judgment could remedy, for the law itself imposed no adequate check if the attorney general was right in his statement that none could say the King cannot do this; if he could only say the King will not do this.
The two conflicting points of view are well illustrated in two short statements: one by the chief justice in Darnell’s Case, the other by William Hakewill. Addressing counsel for one of the prisoners, the chief justice said, “The precedents are all against you every one of them, and what shall guide our judgments, since there is nothing alleged in this case but precedents?” 25 But on the conclusions drawn from these precedents, as Hakewill said with equal truth, “I shall have an estate of inheritance for life, or for years in my land, or propriety in my goods, and I shall be a tenant at will for my liberty; I shall have propriety in my house, and not liberty in my person.” 26 From such an impasse the only outcome and the only remedy was some measure of revolution.
It seems clear that the court could do nothing but decide on the specific precedents cited, and the later accusations of bias and corruption made indiscriminately against all the judges who held that view reflect more on the fairness of some modern historians than on the integrity of some of the justices of Charles I. 27
On the other hand, no historian can deny the truth of Hakewill’s counterstatement. Whether right or wrong, the judgment of the courts had to be reversed by the nation, if not by the courts, or English liberty would have been lost entirely and possibly forever. In all these great constitutional cases the defenders of prerogative relied on good specific precedents, while their opponents were driven to argue from the true general principles of the ancient constitution; and both may well have acted in entire good faith. One side relied on the letter, the other on the spirit, of English monarchical institutions; and in the courts the letter naturally prevailed. But their arguments never met each other. There never was a genuine joinder of issue.
Half a century ago Mr. Hubert Hall declared that “for sixty years the gross errors and injustice of the accepted history of the Case of Impositions have passed without a single challenge.” 28 It is true that the general condemnation of the judges, not only in Bate’s Case, but in every other great trial of the time involving the prerogative, has been undiscriminating, unfair, and pretty continuous. On the other hand, it seems an equal injustice to condemn men like Selden and Coke, who in the last analysis put liberty above law, even at the risk of seeming to be revolutionists.
The constitutional struggle of the seventeenth century was not as simple as the histories would sometimes make it. It was no clear-cut issue between despotism and freedom. Sir Robert Heath, because he upheld the King’s impositions, was no mere absolutist; nor were his opponents antimonarchists or enemies of settled and orderly government. 29 The key to this difficulty remains the old distinction between jurisdictio and gubernaculum that we have met with before, and it is a key that has been too sparingly used. The fact is that England was almost ripe for revolution, but no one dared as yet to avow it. Men on the one side looked to the ancient legal rights endangered by a king who could invade them with impunity; men on the other resisted every tendency to impose on a king checks which had never been imposed before. The first were relying exclusively on the precedents of the ancient jurisdictio; the second with equal justice could cite innumerable instances of royal acts of government beyond or even against the common law.
The statement that I quoted earlier from Sir Walter Raleigh was more prophetic than he knew:
If the House press the King to grant unto them all that is theirs by the Law, they cannot, in Justice, refuse the King all that is his by the Law. And where will be the Issue of such a Contention? I dare not divine, but sure I am, that it will tend to a Prejudice both of the King and Subject.
This was a deadlock of two constitutional views that had at length become irreconcilable. Economic, social, and intellectual developments had made inevitable a struggle between these two elements of the traditional constitution. The Stuart kings did not bring it about; but, to the discredit of those kings without a single exception, it must be said that the struggle was hastened and its bloody accompaniment augmented by a royal stupidity, arrogance, shiftiness, and stubbornness that have few parallels in history. Hallam’s judgment, however, though in some ways warranted, seems less than fair, when he says generally that “The courts of justice. . . did not consist of men conscientiously impartial between the king and the subject; some corrupt with hope of promotion, many more fearful of removal, or awe-struck by the frowns of power.” 30 And it seems less than discriminating when he says in particular that Heath’s argument in Bate’s Case trampled upon “all statute and precedent.” 31 It is unfortunately this kind of one-sided interpretation, both parliamentary and royalist, that has marked much of the treatment of this fascinating and critical phase in the development of our constitutional ideas and institutions. In it all there is no period more important than that of the early Stuart kings of England, and none more in need of a discriminating reconstruction—and a reconstruction, I may add, which will take proper account of earlier precedent as well as contemporary conditions. In that precedent I believe the persistence of our old familiar jurisdictio and gubernaculum will be found to be of paramount importance.
In what has just been said the subject logically next in order of treatment has already been roughly indicated—the reversal, by the representatives of the people of England in parliament, of the constitutional doctrines contained in the judgments of the English courts, the reinforcement of the subject’s rights by the addition for the first time of a legal and a political control over government sufficient to protect these rights from royal encroachment. If, as I have maintained, the previous judgments of the courts were sound, the imposition of this new and unprecedented control over the ancient potestas absoluta involved nothing less than a revolution in English political institutions and ideas.
When Sir Edward Coke in the parliament of 1621 said, “We are here for thousands and ten thousands,” he was unwittingly uttering a threat to the existing English constitution. It is unnecessary here to recount the dramatic events between 1621 and 1689 by which the threat became an actuality; they are in every English history. It is perhaps more important to consider the exact nature of the constitutional changes that these events brought about. The chief of these changes was the ultimate making of the king responsible in government as well as in jurisdiction, and responsible not merely to God, as had been held before, but to the law and to the people. The king remained legibus solutus as before, but this was now narrowly construed to mean merely that the royal person was outside the coercive force of law. It no longer meant, as it had meant in the Tudor period, that his official acts were beyond the legal scrutiny of the courts or removed from the political control of the people’s representatives in parliament. On its strictly legal side this great change is probably best to be seen in the new meaning of the old maxim, “The King can do no wrong.”
Let us recall how Stephen Gardiner had justified his official conduct to the Protector Somerset in 1547. He said then that a royal order to a minister enjoining an act of government in violation of a statute was but a doubtful protection for that minister in case of a later prosecution, and he cited the case of his old master, Cardinal Wolsey. What he said was true enough, but it was never true in the Tudor period unless the king withdrew his protection from his minister. The king could and did prevent actions brought against his ministers whenever he pleased, and Henry VIII’s desertion of Wolsey when that minister was accused of a breach of the Statute of Praemunire committed at the king’s own command is one of the most despicable of the many despicable acts of that tyrant.
By 1689 this was all changed, or was rapidly changing. The reaction after the execution of Charles I had proved the necessity of exempting the king personally from criminal responsibility. In that sense the king could still “do no wrong,” he was legibus solutus. But the old maxim had gradually acquired an additional meaning: not so much that the king could not break the law as that no breach of the law could be considered an act of the king. A particular royal wrong was not legal, because no wrong could be regal; the absolute “perfection” of the king must be assumed. Or, as Andrew Amos puts it, “No mismanagement in government is imputable personally to the Sovereign, whilst, nevertheless, no wrong can be done to the people without a remedy. Whence it follows, as a corollary, that all acts of State must be performed by responsible Ministers.” 32 As Amos shows, the reign of Charles II was an important period in this new development, though the later principle was not as yet firmly and finally fixed.
This fact makes all the more interesting some constitutional statements of Sir Matthew Hale, remarkable for the time, which have received less attention than their importance deserves. In two essays, Reflections on Mr. Hobbs His Dialogue of the Lawe 33 and De Prerogativa Regis, 34 the author makes a classification of authority which, so far as my knowledge goes, is original with him. Since the Middle Ages the power of government had been distinguished as a potestas coerciva and a potestas directiva. Hale adopts these two, but adds a third, which, so far as I know, was entirely new—a potestas irritans actus contrarios, a power of rendering null and void acts contrary to law. “And therefore,” he says,
though the King, in case of such acts done contrary to the directive power of the law, is not subject to the coercive power of the law in respect of the sacredness and sublimity of his person, the instruments and ministers that are the immediate actors of such unlawful things are subject to the coercive power of the law, for the Kings act in such cases being void doth not justify or defend the instruments. This is one of the principal reasons of the maxim in law, that the King can do no wrong, for if it be wrong and contrary to the law, it is not the act of the King but of the minister or instrument that puts it in execution and consequently such minister is liable to the coercion of the law and to make satisfaction. 35
If my reading of the Tudor constitution is accurate, no such statement as this would have been true to fact in 1603 or before, and possibly not even as late as 1643. This is a new responsibility of the king for government, and not for mere jurisdictio. It really extends the old jurisdictio over the whole field of the gubernaculum. This marks a true revolution. But it was not enough. The new responsibility is only a responsibility to the law, enforceable legally by the courts against the ministers of the crown. The effectiveness of this as a practical sanction for individual right was therefore doubtful until the tenure of judges was made independent of the king by the Act of Settlement in 1701. And even this was ultimately not enough. The process of reinforcement and guarantee of individual right against governmental will was not complete until to this negative legal potestas irritans there was added a positive political control of government exercisable by the representatives of the people in parliament; until legal responsibility was supplemented by political responsibility; until the people could dismiss a minister merely because they disapproved of his policies, without waiting for an actual breach of law or inventing one, as they did in Strafford’s case. To recount in detail the growth of the last of these new political principles, the model for almost all modern European constitutional developments before 1914, would be to retell practically the whole constitutional history of England since the Revolution of 1689. In the space allotted to this subject, I can do no more than give a few instances to illustrate some early stages in the emergence of this modern popular political control of government out of the powers formerly conceded to the king alone.
As we have seen, the English king was in fact the “supreme governor” long before he obtained the official title, and this involved unchecked exercise of a power always claimed by English sovereigns before 1640 and rarely denied even by English subjects before 1603—a power “innate in the person of an absolute King, and in the persons of the Kings of England,” as Sir John Banks said in the Case of Ship Money, 36 “the majestical right, and power of a free monarch.” 37 The concrete powers of the king included under this “majestical right” were thus enumerated by Justice Crawley in 1637: “to give laws to his subjects,” to make peace and war, to create supreme magistrates, “that the last appeal be to the King,” to pardon offences, to coin money, “to have allegiance, fealty, and homage,” and “to impose taxes without common consent in parliament.” 38 The list given after the Restoration by Sir Matthew Hale is substantially the same with the very significant omission of the right to impose taxes without consent of parliament, and the addition of “the power of the Militia of this Kingdome,” which had been the immediate issue in the first civil war. 39 Before the judgment in the case of Darcy v. Allen in 1603 40 concerning patents of monopoly, these also, along with all other kinds of royal patent, would no doubt have been comprised in any enumeration of the specific powers of the “absolute king.”
Some of these powers were conceded to the king even by the most extreme of his opponents. The power to tax they never admitted, of course, and rightly; the power over the militia they never questioned until 1642; patents of monopoly they had resisted since Elizabeth’s reign, but the first statutory action against such patents was in 1624. No limitations of royal control over judicature were imposed by law till after the Revolution. Political control of foreign relations might be said to have begun at the parliament of 1621, which was the first parliament to venture even to discuss this subject; but legal limitation was never attempted. In the Ship-Money Case Sir George Vernon, one of the justices, declared that “a statute derogatory from the prerogative doth not bind the King.” 41 Yet, more than a dozen years before, the Statute of Monopolies had certainly derogated from the prerogative, and in a startling way, not only by declaring actual or future monopolies with some exceptions to be void, but by expressly including proclamations or inhibitions connected with them, and by providing that all disputed matters concerning monopolies must be examined “according to the common laws of this realm, and not otherwise.” 42 This, so far as I know, is the first statutory invasion of the royal prerogative. Not many others followed it, because with the Revolution of 1689 the king himself came to owe his title to parliament, and parliament’s complete political control of administration made further legal limitation of it unnecessary.
From this long and necessarily hurried survey I do not feel qualified to deduce any strict definition of constitutionalism, but perhaps I may be warranted in making a few general observations of a more modest character. The opening words of Bodin’s book On the Republic have always seemed to me in many ways the most significant thing in that great work. He defines a republic as “a government”—a very different thing from what Aristotle meant when he used practically the same words. Some will differ from my opinion as to what he means when he says this must be “un droit gouvernement,” and as to whether the limitations contained in that word droit can be considered permissible in any logical theory of sovereignty. But I think everyone must be impressed by any definition made in 1576 which completely identifies the state with the government. That identification is a formulation, in terms of a general theory, of the political conditions which had actually come to prevail in almost every unitary state of Europe. Everywhere the emphasis was placed on the need of strong and efficient national rule. The memory of the recent power and excesses of a multitude of “overgrown lords,” and the threat of disintegration occasioned by radical differences in religion, led both to an acquiescence in such a concentration of political power in the government as the Middle Ages had never known and to an emphasis upon that government’s rights, rather than its duties, which would, I think, have been considered excessive a century or two earlier.
Constitutional history is usually the record of a series of oscillations. At one time private right is the chief concern of the citizens; at another the prevention of disorder that threatens to become anarchy. In general, the sixteenth century is marked by the latter of these two characteristics. In England, at least, the seventeenth marks a swing toward the opposite extreme, and the eighteenth, apparently, a swing backward toward a potestas absoluta, but now, as never before, a power vested in the national assembly instead of the king. These changes may be marked in the mutual relations of jurisdictio and gubernaculum. When the rights of government are unduly stressed, the rights of individuals are often threatened; when the latter are overemphasized, government becomes too weak to keep order. A citizen has been defined as “a bearer of rights and duties”; a government might well be described in much the same terms. In the Middle Ages, when that government was always in the hands of a monarch, the duties were probably best indicated by the terms of the old coronation oath. The secular part of that oath enjoined upon the king the two duties of maintaining justice and keeping order, and a later provision added the upholding of “the laws which the mass of the people have chosen.” I think, therefore, that I was justified in saying earlier that men like Selden and Hakewill, and their fellows of the parliamentary party, by opposing the pretensions of the Stuarts, were appealing to the true spirit of the constitution even though the letter was against them.
The constitution was held to be a thing of balanced power and right, and the modern theory of sovereignty is the result of a belated recognition of the truth that in fact the perfect balance can never be long maintained. Wentworth in 1628 spoke of the “sweet harmony” of the constitution which he then thought the king was imperiling. In 1641 as earl of Strafford he reasserted on his trial his fear of any threat to this balance, but he now believed that the great enemy was not the king but the parliament. The power that now seemed to him to threaten the ancient balanced constitution was the menace of the illegal pretensions of the two houses against the crown. Though he had changed sides, he had not given up his belief in the “sweet harmony” of the ancient English frame of government. Hobbes, on the contrary, already saw that these men who dreamt of a balance of power in the state were pursuing an ideal, possible perhaps as a doctrine of abstract law, but never practicable for long as a matter of actual politics; and it was always with actual politics, and not with law, that Hobbes was concerned. The English struggle, as he was one of the first clearly to see, could never be ended except by the complete supremacy of one or the other of the contending parties. All this he later put in striking form, in his Behemoth, or history of the civil wars.
As a result of the English Revolution and the Revolution settlement, the representative parliament finally assumed, and for the first time, both the duties and many of the rights of the English king, and there remained as before the question of the proper relation of these to each other. It is true that no practical limits can ever be put to the political power of the people, not even those that in the end had proved insufficient to curb the king. As Sir Roger Twysden said in the seventeenth century, “The world, now above 5,500 years old, hath found means to limit kings, but never yet any republique.” 43 And yet the people may restrain themselves. In their case, no less than in that of the monarch, it is “a worthy voice of reigning majesty to profess to rule according to law.” Sometimes they have restrained themselves, sometimes not; and in their rule we may observe somewhat the same oscillations as marked that of the kings in an earlier period. During much of the nineteenth century there was a tendency to narrow the sphere of government and overemphasize the rights of the citizen. The duties of the ruling organ were forgotten in the desire to protect the individual in some at least of his rights. This often led to a callous disregard of those who had few inherited rights to be protected. The policy of laissez faire became little more than a maintenance of the status quo, and that meant the retention of traditional abuses as well as traditional rights. In fact, many of those individual rights had become nothing less than crying abuses.
Then the pendulum swung in the opposite direction. Professor Dicey, in his brilliant lectures on Law and Opinion in England, has traced the development toward collectivism which resulted. The state veered toward regimentation instead of the policy of hands-off. Huxley has described the process in a remarkable paper. The utilitarian individualists receded into the background; Herbert Spencer and his Man Versus the State were discarded. Here in the United States we have passed through all these phases, which, under modern conditions, change sometimes with great rapidity; and there are some indications that at this moment we may be passing out of a phase of regimentation into a returning period of laissez faire, and that the reaction may be extreme.
This is bringing up and will in future bring up fundamental political questions that we shall all have to meet. The earlier history of the growth of our constitutionalism can, of course, furnish no definite or conclusive answer to many of these questions, because the conditions under which they exist now are in so many ways different from those which surrounded their growth in past ages. Nevertheless, I do believe that careful unbiased study of this past growth is not without its practical value in helping us to analyze our own pressing problems, if not to answer them.
I may seem to strain a point if I say that in my opinion our ancient distinction between jurisdictio and gubernaculum may still be a valuable help in making this analysis of our present-day problems. I venture to say, however, that we have with us still the jurisdictio and the “government,” and that the reconciliation of the two remains probably our most serious practical problem, just as it was in seventeenth-century England. I would go further, and add that there is the same necessity now, as in past ages, to preserve these two sides of political institutions intact, to maintain every institution instrumental in strengthening them both, and to guard against the overwhelming of one of them by the other.
There is a constant threat to all the rights of personality we hold dearest—such rights as freedom of thought and expression and immunity for accused persons, from arbitrary detention and from cruel and abusive treatment. These have always been endangered when “reasons of state” have been thought to require it. At times it seems to me that just now we are in special danger of forgetting these rights and these dangers. In some parts of the world apparently all such safeguards of individual right and personality have been thrown down entirely and no one is safe from prosecution ex officio mero, secret, arbitrary, and irresponsible. “Reasons of state” have been urged in the past for just such enormities, but probably never on such a scale as at this moment. Never in recorded history, I believe, has the individual been in greater danger from government than now, never has jurisdictio been in greater jeopardy from gubernaculum, and never has there been such need that we should clearly see this danger and guard against it. The beneficial results of the revolution which I have been trying to trace in the history of our own constitutionalism are as yet more apparent here than in some less fortunate parts of the world, but they cannot be maintained and preserved even here if we are not constantly on our guard. And surely an appreciation of what these things have meant in the past ought to give us a clearer apprehension of what they should mean now, and a knowledge of the kinds of danger that have threatened these rights in former times should be of some use in showing us where to look for present enemies of our welfare and how to oppose them when found.
If jurisdictio is essential to liberty, and jurisdictio is a thing of the law, it is the law that must be maintained against arbitrary will. And the one institution above all others essential to the preservation of the law has always been and still is an honest, able, learned, independent judiciary. The sad history of the Stuart attempts to corrupt and to intimidate their courts of law ought to be a lesson to all professed lovers of liberty who think we can get our needed social reforms and keep them safe without the assistance of courts free from governmental control. In this I hope I shall not be misunderstood. I am not defending indefensible decisions of our courts; I would not shield them from the severest criticism. Nor am I denying the need for much reform in the judicial process; it is far too slow and cumbersome. But the past history of these institutions does seem to show that, whether through ignorance or intention, some of the recent proposals and measures for the professed purpose of remedying these ills seem better designed to weaken these safeguards to liberty than to improve them. If it is through ignorance, then the history of the earlier relations between jurisdictio and government may be of some practical value.
But to insist thus on the indispensability of legal limits to governmental power and the safeguarding of these limits by an independent court is not to advocate the enfeebling of that government itself. Among all the modern fallacies that have obscured the true teachings of constitutional history, few are worse than the extreme doctrine of the separation of powers and the indiscriminate use of the phrase “checks and balances.” The doctrine of the separation of powers has no true application to judicial matters. Consideration of this important question should not be clouded and confused by including the independence of the judges, with which it has nothing to do. But the present confusion does not end with that. There is an equal lack of discrimination between the legal checks for which our history gives such strong support, and the political balances for which, so far as I can see, there is little historical background whatever, except the fancies of eighteenth-century doctrinaires and their followers. Political balances have no institutional background whatever except in the imaginations of closet philosophers like Montesquieu. When in modern times representative assemblies took over the rights and duties of earlier kings, they assumed a power and a responsibility that had always been concentrated and undivided. There is no medieval doctrine of the separation of powers, though there is a very definite doctrine of limitation of powers.
Some modern conservatives can see no practical difference between limitation and separation today, and I must confess that many historians have not seen any difference between them in earlier times. The gist of nearly all that has been said here thus far is to show that such difference has existed from the Middle Ages to the present. I am now concerned with showing that it ought still to be maintained. The limiting of government is not the weakening of it. The maxim that the king can do no wrong is a legal, not a political, maxim. The true safeguards of liberty against arbitrary government are the ancient legal limitation and the modern political responsibility. But this responsibility, which in modern times has become fully as important for our welfare as the ancient legal limits, is, I think, utterly incompatible with any extended system of checks and balances.
In Rome, where checks and balances might be said to have had their origin, they marked the antagonism of class against class. The plebeian tribune could block any action of the patrician consul. The expedient itself is just about as healthful a procedure in a modern state as the class division out of which it originally arose and through which it persists. What we need, in addition to the negative legal limitation of the sphere of government already mentioned, is the full political responsibility to the people and to the whole people for all positive acts of government within its proper sphere. But without adequate power there can be no such responsibility, and if the power is not concentrated and obvious to all, there can be neither the fixing nor the enforcement of this responsibility. The one thing in our political machinery which, more than any other, has fostered the growth of “pressure groups,” with all their attendant corruption, is the inability to fix responsibility. This has led to “log-rolling” and every other form of crooked politics; for under any system of balances run wild the result is sure to be government for private interests or groups instead of government for the whole people. Our government has become to an alarming extent a mere process of “passing the buck,” and that means shifting the responsibility for acts which could not be defended for one moment if responsibility for them could ever be fixed.
For this dissipation of governmental power with its consequent irresponsibility I can find no good precedents in the constitutional history of the past. The system has worked disaster ever since it was adopted, and it is not the outcome of earlier political experience. Unlike the legal limitations in our bills of rights, it is not the matured result of centuries of trial and error. It is a figment of the imagination of eighteenth-century doctrinaires who found it in our earlier history only because they were ignorant of the true nature of that history. These political balances were unknown before the eighteenth century, were almost untried before the nineteenth, and have been disastrous wherever they have been tried since. Unlike our legal safeguards, they formed no part of our constitutional inheritance from the past, and my fear is that, if they develop much further, a reaction will surely set in as it has in Europe; and this, once started, may sweep before it every protection of any sort, legal as well as political, to leave the individual naked and unprotected against the ever-present danger of arbitrary government.
In parts of Europe, it will be noted, the incompetence of constitutional governments led to their replacement by despotisms. In Italy, if the weakness and corruption of parliamentary institutions had not first made them contemptible, Fascism would hardly have taken their place. Feebleness is no guarantee of constitutionalism; it has usually been the chief cause of its overthrow. Reactionaries have always proved to be the deadliest of all the enemies of a true conservatism. The proper remedy for the abuse of “reasons of state” has never consisted and does not now consist in making the government incompetent. Our past constitutional history seems to show that it consists of a jurisdictio under the protection of an independent court, coupled with a gubernaculum strong enough to perform all its essential duties and obvious enough to ensure full responsibility to all the people for the faithfulness of that performance.
The practical inferences I have ventured to draw from our constitutional history may to many seem too conservative, but I hope they will not seem reactionary. If reaction is really to be avoided, we must preserve our legal guarantees. We must keep them intact, but we dare not stop there. There is corruption which feebleness in government makes possible, and this can only be ended by making government, within its legal limits, actually stronger than it is. This strength, however, is itself a danger if it is not completely responsible to the people, and to all the people, and at all times.
If the history of our constitutional past teaches anything, it seems to indicate that the mutual suspicions of reformers and constitutionalists, of which I see dangerous symptoms in the United States today, must be ended if we are to keep and enlarge the liberties for which our ancestors fought. Liberals must become more constitutional than some of them are, constitutionalists must become more liberal than most of them have been. We cannot get the needed redress of injustices and abuses without reform, and we can never make these reforms lasting and effective unless we reduce them to the orderly processes of law. Let us not confuse jurisdictio and gubernaculum, and let us not allow either to swallow up the other.
I am not so rash as to try to apply the general principles guiding our past constitutional history to the details of our present constitutional arrangements in the United States; for that I am not competent. But I do believe that these general principles, if they are properly deducible thus from the past experience of our race, ought to have their due weight in determining our attitude toward our present specific problems. We live under a written constitution which classifies some things under jurisdictio, as legal fundamentals, and thus puts them under the protection of the courts, while it leaves other matters to the free discretion of the organs of positive government it has created. The distribution of these matters between jurisdictio and gubernaculum, made so many years ago, is of course in constant need of revision by interpretation or by amendment; and it may also be that the mode of that amendment is somewhat too slow and cumbersome for the best interests of all. But the surest safeguard of a proper balance between the jurisdictio and the gubernaculum —and that even in a government of the people as well as for them—would seem to consist in some such constitution containing some such distribution. There is the problem of restriction and the problem of responsibility, and practical politics involves their interrelation. One of them is legal, and it is far the older; the other is political and in its present form it is much more recent. The people have now replaced the king in these political matters of government; but even in a popular state, such as we trust ours is, the problem of law versus will remains the most important of all practical problems. We must leave open the possibility of an appeal from the people drunk to the people sober, if individual and minority rights are to be protected in the periods of excitement and hysteria from which we unfortunately are not immune. The long and fascinating story of the balancing of jurisdictio and gubernaculum, of which I could give only the barest outline here, should be, if we could study it with an open mind, of some help in adjusting and maintaining today the delicate balance of will and law, the central practical problem of politics now as it has been in all past ages. The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of government to the governed.
In the last session of the Reformation Parliament in 1536 two remarkable statutes were enacted truly revolutionary in character, the Statute of Uses with which the above case of Wimbish v. Tailbois is concerned, and the act transferring to the Crown the property of the lesser monasteries. Both these acts involve an invasion of private right by parliament almost, if not entirely, without precedent before 1536 and far more revolutionary than the Statute of Proclamations enacted by a subsequent parliament three years later, which has been called “the English Lex Regia ” and termed even by Maitland “the most extraordinary act in the Statute Book” ( The Constitutional History of England, p. 253). These two statutes of 1536 therefore mark an important early stage in the developments which led in the course of time to the constitutional doctrine of parliament’s omnipotence and the modern theory of legislative sovereignty.
In the reign of Edward II parliament had, it is true, transferred from the reversioners to the Hospitallers lands formerly belonging to the Templars; but this was only some years after Pope Clement V had totally suppressed the Order of the Templars in his bull Vox in excelso, and the transfer was expressly said by the Judges and Council to be “for the Health of their Souls and Discharge of their Consciences,” because these lands had originally been granted for pious uses only, and “insomuch as the foresaid Order of the Templars is ceased and dissolved, and the foresaid Order of the Hospital is provided, instituted, and canonized for the defence of Christians” (17 Edward II, stat. II, 1323–4, Statutes of the Realm, I, 194ff.). This was in essence a judicial decision based on a principle closely analogous to the Cyprès doctrine of the later courts of Equity. Doubts of the statute’s validity seem to have persisted however, for in 1330 there was a petition in parliament praying for its annulment on the ground that it had been obtained by the Despencers by force, and was “ contre Ley et contre reson ” ( Rot. Parl. II, 41–42). In the king’s responsio to this petition the matter was reserved for action in a later parliament, but no record of any such action is known. During the Hundred Years’ War parliament had also dealt in a somewhat similar way with the lands of the alien priories.
As encroachments upon private right and departures from common law by mere authority of parliament, these and all such earlier cases, however, fall considerably short of the act of 1536, in which the Lords and Commons “humbly desire the King’s Highness that it may be enacted by authority of this present Parliament, that his Majesty shall have and enjoy to him and his heirs forever” all the lands and goods of monastic houses not having revenues above two hundred pounds a year (27 Henry VIII, C.28, Statutes of the Realm, III, p. 575 ff.); an act directed not against “alien” houses, and not in time of war. For the bad eminence as “the most extraordinary act in the Statute Book,” I should therefore be inclined to nominate this revolutionary act of 1536, expropriating the lands of the lesser monasteries, in place of the usual greatly limited and short-lived Statute of Proclamations, enacted by a later and apparently somewhat less subservient parliament; at least if contemporary rather than modern standards are to be taken into account. The story told by Sir Henry Spelman of the pressure required to secure the passage of this statute seems not improbable. The bill had originated with the King himself, and not with the Commons (F. C. Dietz, English Government Finance 1485–1558, University of Illinois Studies in the Social Sciences, vol. IX, no. 3, 1920, p. 120); and, as Spelman reports the tradition, “It is true the Parliament did give them [the lesser monasteries] to him, but so unwillingly (as I have heard), that when the Bill had stuck long in the lower house, and could get no passage, he [the King] commanded the Commons to attend him in the forenoon in his gallery, where he let them wait till late in the afternoon, and then coming out of his chamber, walking a turn or two amongst them, and looking angrily on them, first on the one side, then on the other, at last, I hear (saith he) that my Bill will not pass; but I will have it pass, or I will have some of your heads: and without other rhetoric or persuasion returned to his chamber. Enough was said, the Bill passed, and all was given him as he desired” ( The History and Fate of Sacrilege, ed. of 1895, p. 99).
In an earlier session of the Reformation parliament an ominous prelude to the Act of Dissolution appears in the preamble to the statute of 1534 (25 Henry VIII, chap. 21, Statutes of the Realm, III, 464), concerning Peter’s Pence and papal dispensations, in which it is declared, that
It standeth therefore with natural Equity and good Reason, that in all and every such laws human made within this Realm, or induced into this Realm by the said Sufferance, Consents and Custom, your Royal Majesty, and your Lords Spiritual and Temporal, and Commons, representing the whole State of your Realm, in this your most high Court of Parliament, have full Power and Authority, not only to dispense, but also to authorize some elect Person or Persons to dispense with those, and all other human Laws of this your Realm, and with every one of them, as the Quality of the Persons and Matter shall require; and also the said Laws, and every of them, to abrogate, annul, amplify or diminish, as it shall be seen unto your Majesty, and the Nobles and Commons of your Realm present in your Parliament, meet and convenient for the Wealth of your Realm.
This, however, is only a preamble; and “the object of Tudor preambles,” as Dr. Tanner says, “is not to tell the truth but to make out a case.” The enacting clauses themselves “abrogate” no provisions which their makers professed to regard as true law, but only such as were termed usurpations or involved an “unlawful paiment.” Notwithstanding this sweeping inclusion in the preamble of all human laws, this statute, therefore, constitutes no revolutionary break with the past comparable with the act of dissolution two years later, but its remarkable language is a no less interesting indication of men’s changing notions concerning the relation of government to law. It is noteworthy that the legislative power here claimed for parliament is a power not directly to make new law, but to annul, enlarge, or restrict the old. Such preambles as these were not alone apologies for the specific enactment immediately following: they were part of the royal propaganda to ensure the passage of more drastic legislation in the future. The startling character of that propaganda proves alike the newness of the proposals made and to be made and the opposition to them to be expected.
Hardly less revolutionary than the Act of Dissolution was the contemporary proposal which failed of enactment, for setting up a new court of “Conservators” with jurisdiction in cases where “anye persone or persones shall chaunce at any tyme hereaftir within any Counties or liberties of this Realme or within any other place of any of the King our soueraine lordis dominions as well in and vpon lande as in or vpon any watirs freshe or Salte to doo or tattempte any devise practice or experience whiche hathe bene is or in tyme to come shal be thought vnto the said Conservatours to bee hurtefull or preiudiciall to the Comon Weale of this Realme, and none Acte, statute prouysion or ordynaunce made for Refourmacion of the same” ( Transactions of the Royal Historical Society, 4th ser. XIX [1936], 143–144). This provision, if it had become law, would have rivaled in arbitrariness the German Penal Code Amendment Law of 1935 authorizing the Courts to punish as offenses acts which no law had ever forbidden. See, on the general principles involved in this proposed legislation, the admirable article of Professor Jerome Hall, “Nulla Poena sine Lege,” Yale Law Journal, XLVII, no. 2 (December, 1937).
The legality of the Act of Dissolution and of similar “legislation” was unquestionably a matter of some doubt in the minds of the lawyers of the time. In 1532 Christopher Saint German declared in his Treatise concernynge the division betwene the spiritualtie and temporaltie: “It is holden by them that be lerned in the lawe of this royalme, that the parlyamente hath an absolute power as to the possession of all temporall thynges within this realme, in whose handes so ever they be, spiritualle or temporalle, to take them froo one manne, and gyve theym to an nother withoute anye cause or consideration. For if they doo it, it byndeth in the lawe” ( The Apologye of Syr Thomas More Knyght, ed. Arthur Irving Taft, Early English Text Society, London, 1930, app., p. 228).
To this assertion of the absolute power of parliament, Sir Thomas More gave the following answer:
But by what right men maye take awaye from any man spyrytuall or temporall agaynste hys wyll, the lande that is al redy hys owne that thynge thys pacyfyer [Saint German] telleth vs not yet. . . . But I have herde some good and wyse and well lerned men saye, that all the worlde can neuer brynge the reason that euer can preuve it ryghte. . . . For all be it that onys in the tyme of the famouse prynce kyng Henry the fourth, aboute the tyme of a greate rumble that the heretykes made, whan they wolde have destroyed not the clergye onely but the kynge also and hys nobylbte to there was a folysshe byll and a false put into a parleament or twayn, and spedde as they were wurthy: yet had I neuer founden in all my tyme whyle I was conuersaunt in the courte, of all the nobylytie of thys land aboue the nomber of seuen (of whyche seuyn there are now thre dede) that euer I perceyued to be of the mynde, that it were eyther ryght or reasonable, or could be to the realme profytable without lawful cause, to take any possesyons awaye from the clergy, whyche good and holy prynces and other deuoute vertuouse people, of whome there be now many blessed sayntes in heuen, have of deuocyon towards god geuyn to the clergy to serve god and praye for all Chrysten soulys. ( Op. cit., pp. 86–94)
Further evidence of the doubts existing in the reign of Henry VIII concerning the authority of parliament thus to “legislate” appears in the elaborate preparations for the act of dissolution, in the visitations, the reports of the visitors, and the long apologetic preamble to the statute itself, reciting the monastic abuses found and piously attributing the statute to the King’s reforming zeal in “daily finding and devizing the increase, advancement, and exaltation of true doctrine and virtue in the said Church, to the only glory and honour of God and the total extirping and destruction of vice and sin.” For hypocrisy and studied mendacity this preamble has but one rival, the preamble which the government felt it necessary to prefix to the statute of 1539 ratifying the dissolution of the larger monasteries. The act of 1536 had contemplated sending inmates of the dissolved smaller houses to live in the larger, “considering also that divers and great solemn monasteries of this realm wherein, thanks be to God, religion is right well kept and observed, be destitute of such full numbers of religious persons as they ought and may keep.” After that admission it was difficult even for Henry VIII to attempt a direct dissolution of the larger houses, on the former pretext of “manifest sin, vicious, carnal, and abominable living,” and therefore it is asserted in the preamble of the act of 1539, flatly contrary to fact, that these larger houses had surrendered all their lands and goods to “our said Sovereign Lord, his heirs and successors for ever,” “of their own free and voluntary minds, good wills, and assents, without constraint, coaction, or compulsion of any manner of person or persons . . . by due order and course of the common laws of this his realm of England, and by their sufficient writings of record under their convent and common seals” (31 Henry VIII, c. 13, Statutes of the Realm, III, p. 733). The truth is, as Dugdale says, that the monks of these larger monasteries were induced to surrender their houses to the King “partly through corrupting the chief in each of them, with large pensions, during their lives: and partly by terror, to such as were not plyant” ( The Baronage of England [London, 1675], I, The Preface ).
The uncertainty as to parliament’s inherent authority to violate rights guaranteed by earlier law thus indicated is also reflected in the comments of Sir Edward Coke upon the procedure by bill of attainder in the case of Thomas Cromwell in 1540. In the section on the High Court of Parliament in his Fourth Institute, he says,
And albeit I finde an attainder by Parliament of a subject of High Treason being committed to the Tower, and forth-comming to be heard, and yet never called to answer in any of the Houses of Parliament, although I question not the power of the Parliament, for without question the attainder standeth of force in law; yet this I say of the manner of the proceeding, Auferat oblivio, si potest; si non, utcumque silentium tegat: for the more high and absolute the jurisdiction of the court is, the more just and honourable it ought to be in the proceeding, and to give example of justice to inferiour Courts. But it is demanded, since he [Cromwell] was attainted by Parliament, what should be the reason that our Historians do all agree in this, that he suffered death by a law which he himselfe had made. For answer hereof, I had it of Sir Thomas Gawdye Knight, a grave and reverend Judge of the King’s Bench who lived at that time, that King Henry VIII commanded him to atend the chiefe Justices, and to know whether a man that was forth-comming might be attainted of High Treason by Parliament and never called to his answer. The Judges answered, that it was a dangerous question, and that the High Court of Parliament ought to give examples to inferiour Courts for proceeding according to justice, and no inferiour Court could do the like; and they thought that the High Court of Parliament would never do it. But being by expresse commandement of the King and pressed by the said Earle [Cromwell] to give a direct answer: they said that if he be attainted by Parliament, it could not come in question afterwards, whether he were called or not called to answer. And albeit their opinion was according to law, yet might they have made a better answer, for by the Statutes of Mag. Cart. ca. 29, 5E. 3, cap. 9 et 28E. 3, cap. 5. No man ought to be condemned without answer. . . which they might have certified, but facta tenent multa quae fieri prohibentur; the act of Attainder being passed by Parliament, did bind, as they resolved. The party against whom this was intended was never called in question, but the first man after the said resolution that was so attainted, and never called to answer, was the said Earl of Essex. . . . The rehearsall of the said Attainder can work no prejudice for that I am confidently perswaded that such honourable and worthy members shall be from time to time of both Houses of Parliament, as never any such Attainder where the party is forth comming, shall be had hereafter without hearing of him. ( The Fourth Part of the Institutes of the Laws of England, pp. 37–38)
Facta tenent multa, quae fieri prohibentur, says Coke, quoting a current maxim which apparently paraphrases a dictum of Innocent III from the Decretals of Gregory IX, III, 31, 16: “quia multa fieri prohibentur, quae si facta fuerint, obtinent firmitatem.” But if so, in all probability another maxim of the law was no less prominent in his mind: non firmatur tractu temporis, quod de jure ab initio non subsistit: Liber Sextus Decretalium de Bonifacii Papae VIII, V, 12, De Regulis Juris, Regula xviii; or the words of Paulus from which it was derived: Quod initio vitiosum est, non potest tractu temporis convalescere ( Dig., 50, 17 [ De Diversis Regulis Juris Antiqui ] 29). “Many things which have been done are binding although they are forbidden to be done!” Coke as well as the judges to whom he refers, seems, on the whole, to be thinking here of parliament in its judicial rather than its legislative capacity; as the dernier resort, the body from whose decision there is no appeal, even though wrong. Except for his too modern characterization of parliamentary attainder as an act of “legislative power,” the interpretation of this statement of Coke’s by Sir John Hawles, Solicitor General, author of the celebrated Englishman’s Right, in the great case of Sir John Fenwick in 1696, the last English attainder in a capital case, seems to be entirely sound:
The truth is, it hath been the irregular Proceedings in obtaining those Acts have been blamed, and not the making use of the Legislative Power for that purpose; and therefore consider the Acts of Attainder mentioned by the Council, which have been blamed, and first, that of my Lord Cromwel which my Lord Coke blames: One of the Council at the Bar pretended to repeat my Lord Coke’s Words of that Matter at large; but he did not deal so candidly with you in that matter as he ought to have done; for he should have repeated all my Lord Coke says on that Subject, which was, That Cromwel was never brought to answer, never permitted to say any thing for himself, either in Parliament or elsewhere, and for that Reason alone my Lord Coke blames that Precedent. ( The Proceedings Against Sir John Fenwick, Bar. upon a Bill of Attainder for High Treason, printed in the year, 1702, p. 207; Howell’s State Trials, XIII, 666, where the statementis somewhat abridged)
From Coke’s own emphasis in his comments it is apparent that he considered a parliamentary attainder as a judgment of the highest of all courts, a judicial procedure warranted by the famous clause of Edward III’s Statute of Treasons, which, after the definition of certain specific acts as treason actionable in the courts below, goes on to provide “That if any other Case supposed Treason, which is not above specified, doth happen before any Justices, the Justices shall tarry without any going to Judgement of the Treason till the Cause be shewed and declared before the King and his Parliament whether it ought to be judged Treason or other Felony” (25 Edw. III, Stat. 5, c. 2, I Statutes of the Realm, p. 320).
Two or three years after the enactment of the statute the parliamentary attainder of Roger Mortimer was annulled en plein Parlement as erroignes defectives en touz pointz, solely on the ground that le dit Counte estoit mys a la mort desherite sanz nul Accusement sanz estre mesne en Juggement ou en Respons ( Rot. Parl. 28 Edw. III, no. 11 [vol. II, p. 256]).
In view of such precedents Sir Edward Coke evidently regarded a parliamentary attainder as a procedure at the common law, and for this reason condemned Cromwell’s attainder for lack of “due process,” because the accused was “forthcomming to be heard, and yet never called to answer.” “For that reason alone my Lord Coke blames that precedent.” The validity of a “legislative” act would not be affected whether the accused were “forthcoming” or not, nor by any other defect of “due process.” It was probably for the same general reason that Coke, unlike Wentworth, insisted on going by petition instead of by bill in the Petition of Right in 1628. (See The Petition of Right, by Frances Helen Relf, Minneapolis, 1917, pp. 27–43).
This passage from the Fourth Institute may also serve to make somewhat clearer the meaning of Coke’s well-known and much debated assertion in Dr. Bonham’s case that “in many cases the common law will controul acts of Parliament, and sometimes adjudge them to be utterly void” (8 Reports, 118). It may be worth noting that the Earl of Shaftesbury, a former Lord Chancelor, made a similar statement in 1677: “This Court [The King’s Bench] will, and ought to judge an Act of Parliament null and void if it be against Magna Charta” (W. D. Christie, A Life of Anthony Ashley Cooper, First Earl of Shaftesbury [London, 1871], vol. II, app. VI, p. XCV). Bonham’s case is not an assertion of the supremacy of natural law or of judicial discretion: it is the common law, and it alone, that “will controul acts of parliament.” On the general question whether the above clause of Edward III’s statute was regarded by later English jurists as referring to judicial or to legislative action, see my High Court of Parliament (New Haven, 1910), chap. III, note A (pp. 247–48).
Such a collision of royal will, embodied in Cromwell’s case in an act of parliament, with the prohibitions of the law, in the sixteenth century is reminiscent of similar occurrences in England in the Middle Ages referred to above on pages 75–76, and somewhat analogous to the French lit de justice. The Tudor monarchs were strong enough to prevail in such a contest, and it is not strange that Henry VIII could say, some two years after Cromwell’s attainder, that “we at no time stand so high in our estate royal as in the time of parliament”; but it was not to remain so in the future, and the ultimate outcome of the long struggle was to be a supremacy in parliament of a kind which few or none of the earlier combatants had ever envisaged. Yet it was the Reformation Parliament, impelled by pressure from the King, that brought about the greatest break with medieval ideas of law and government and initiated the intellectual movement which culminated later in the constitutional doctrine of the omnipotence of parliament and the modern theory of legislative sovereignty.