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I: Some Modern Definitions of Constitutionalism - Charles Howard McIlwain, Constitutionalism: Ancient and Modern 
Constitutionalism: Ancient and Modern (Indianapolis: Liberty Fund, 2008).
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Some Modern Definitions of Constitutionalism
The time seems to be propitious for an examination of the general principle of constitutionalism—our own Anglo-Saxon brand of it in particular—and an examination which should include some consideration of the successive stages in its development. For perhaps never in its long history has the principle of constitutionalism been so questioned as it is questioned today, never has the attack upon it been so determined or so threatening as it is just now. The world is trembling in the balance between the orderly procedure of law and the processes of force which seem so much more quick and effective. We must make our choice between these two, and it must be made in the very near future. If we are to make that choice intelligently it would seem reasonable, whether in the end we decide for law or for force, that we should retrace the history of our constitutionalism—the history of force is plain enough—should try to estimate its past achievements, and should consider the nature and effects of the forces which have been arrayed against it. This I propose to try briefly to do and as dispassionately as I can, though it is only fair that I should frankly confess at the outset that my own personal convictions are overwhelmingly on the side of law and against force.
In 1792 Arthur Young mentions with contempt the French notion of a constitution, which, he says, “is a new term they have adopted; and which they use as if a constitution was a pudding to be made by a receipt.”1 To Thomas Paine, writing at the same time, the recent American written constitutions are “to liberty, what a grammar is to language.” In another place, speaking of constitutions in general, he says: “A constitution is not the act of a government, but of a people constituting a government, and a government without a constitution is power without right.” “A constitution is a thing antecedent to a government; and a government is only the creature of a constitution.” It seems probable that Paine means by “constitution” nothing less than the written constitutions of America or France. For, he says, “the continual use of the word ‘constitution’ in the English parliament shows there is none; and that the whole is merely a form of government without a constitution, and constituting itself with what power it pleases.” “The act by which the English parliament empowered itself to sit for seven years, shews there is no constitution in England. It might, by the same authority have sate any greater number of years, or for life.”2
For Arthur Young, a constitution in this sense of a “written” constitution is “a new term”; for Thomas Paine it seems to be the only kind of constitution worthy of the name. Such “puddings,” “made by a receipt,” were to Edmund Burke apparently as repulsive as to Arthur Young. He says little or nothing about the new American constitutions, but in his opinion nothing could be worse than the French one. “What in the result is likely to produce evil, is politically false,” he says; and “that which is productive of good, politically true.”3 Certainly, in his view, nothing but evil had come or could come from “that monstrous thing, which, by the courtesy of France, they call a constitution.”4
These statements express very clearly the contrast between the new conception of the conscious formulation by a people of its fundamental law, the new definition of “constitution”; and the older traditional view in which the word was applied only to the substantive principles to be deduced from a nation’s actual institutions and their development. The older view was probably never better indicated than by Bolingbroke, when he said in 1733:
By constitution we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed. . . . We call this a good government, when. . . the whole administration of public affairs is wisely pursued, and with a strict conformity to the principles and objects of the constitution.5
One noteworthy difference between Paine’s conception and Bolingbroke’s is that for the former a governmental act contrary to the constitution is an act of “power without right”; for the latter it only warrants us in saying that that government is not a good one.
Bolingbroke in fact is only restating views as old as the Politicus of Plato when he says that governments may be compared and estimated by their conformity to reason, and that a nation’s actual customs and laws are probably the safest actual criterion of what that reason is. If a government fails so to conform, it is a bad government, but he does not say it is without right. He does not imply, as Paine does, that it may be disobeyed, except by way of revolution. It is curious that Bolingbroke gives the same illustration as Paine of what we might call an “unconstitutional” enactment, the English Septennial Act of 1716. That statute Paine considered a conclusive proof that “there is no constitution in England.” Bolingbroke’s remarks about the same statute are interesting both for what he says and for what he does not say:
If it had been foretold to those patriots at the revolution, who remembered long parliaments, who still felt the smart of them, who struggled hard for annual, and obtained with much difficulty, at the end of five or six years, triennial parliaments, that a time would come when even the term of triennial parliaments would be deemed too short, and a parliament chosen for three years would choose itself for four more, and entail septennial parliaments on the nation; that this would happen, and the fruits of their honest labors be lost, in little more than twenty years; and that it would be brought about, whilst our government continued on the foundations they had then so newly laid: if all this had been foretold at the time I mention, it would have appeared improbable and monstrous to the friends of the revolution. Yet it hath happened; and in less than twenty years, it is grown, or is growing, familiar to us.6
When Burke appealed from the new to the old Whigs in 1791 it was the conservatism of 1689 to which he would have returned, in place of the more radical views of Fox. When Bolingbroke in 1733 says that the Septennial Act would have seemed “monstrous” to the Whigs of the Revolution, it is in reaction against the arbitrariness of the growing notion of the omnipotence of parliament. To the one the new Whigs had moved too far toward the left, as we should say; to the other they were already moving too far toward the very absolutism their predecessors had fought against. Bolingbroke’s statement is interesting in more ways than one. He offers no legal remedy for the abuse of which he complains, but he does see, as some modern historians have not seen, that between the Whig doctrine of 1689 and that of the reign of George III, or even of George I, a great gulf yawns. The opponents of James II had declared that the throne was vacant only by virtue of the fact that their voice was assumed to be the voice of the nation. In 1766 Lord Chancellor Northington said in course of the debate on the repeal of the Stamp Act: “Every government can arbitrarily impose laws on all its subjects; there must be a supreme dominion in every state; whether monarchical, aristocratical, democratical, or mixed. And all the subjects of each state are bound by the laws made by government.”7
In 1791 Burke, though opposing the extreme doctrines of the radicals, expressly reiterated his earlier belief that the Americans in their rebellion against England had stood “in the same relation to England, as England did to King James the second, in 1688.”8
Illustrations of the changing conceptions of sovereignty and of the constitution could be multiplied indefinitely from the materials of the seventeenth and eighteenth centuries. In contrasting the “monstrous” theory of the Septennial Act with that of the original Whig instigators of the Revolution, Bolingbroke implies that the latter, in the Convention Parliament, were acting not as a body with inherent, arbitrary, sovereign authority; but merely as the voice of the whole people. In the Whig pamphlets of the revolutionary period there is a good deal of evidence to confirm this view. The Lords in the Convention Parliament had called that assembly “a full and free Representative of this Nation”9 and there were some who recognized, on Locke’s principles, that it was a purely extralegal and revolutionary body whose acts were not legislative but constituent. In one of the ablest of the pamphlets of the time10 it is recognized that there is no adequate remedy in law for the abuses complained of, because many of James’s most oppressive acts had been strictly legal. “This I think may easily be granted,” the author says,
if it be consider’d, That the present Laws and Constitutions of England are such as do undoubtedly give the King a Power to make the Judg, and to the Judg a Power to pronounce the law. What he does judicially affirm, is Law, and becomes from thenceforth the strongest Precedent; the last Judgment being always esteem’d the surest and best Rule to go by. Now the King in both these Transactions, neither made or turn’d out any Judges, but in such Methods that former Judges had pronounc’d Lawful; nor did he do afterwards any thing either in the case of Magdalen College, or in the dispensing Power, but with the Opinion and Concurrence of his Judges, being the Method that our Establishment and Laws in such Cases do direct.
“No, no,” he exclaims,
Tho our King was misguided, and our Judges were corrupt, yet it is not at their doors we must lay our Misfortunes, but to the weakness of our Government, which gives a Loose to these Inconveniencies, and which pins the Justice of the Nation on the Frailties of a single Man in so arbitrary a manner.
“If,” he concludes,
the Departure of the King amounts to such a Desertion as dissolves the Government, then the Power must necessarily revert and vest in the People, who may erect a new one, either according to the old Model, if they like it so well, or any other that they like and approve of better.
The same idea was expressed by another writer11 when he said:
These Conventions then of the two Kingdoms are Representatives of the Body Politick of the respective Kingdoms, such as might have been before these Bodies Politick enter’d into a Rectoral Contract with the first of the Kings of the Race that now reigns; and they are no Judicial or Authoritative Judicatures, and I suppose will claim no Power to make Laws, to judg persons, or to impose Taxes.
In due course, like the Convention Parliament of 1660, this convention was declared to be a parliament in words copied from the similar act at the Restoration; but in thus choosing the “old Model” instead of a new, there is no indication that the representatives of the “Body Politick” ever actually conferred, or ever thought of conferring on themselves as the new parliament, any legal authority not enjoyed by prerevolutionary parliaments. It will be necessary later to show that the authority of these earlier parliaments had never been an arbitrary one.
If then Bolingbroke is right in what he says of the Septennial Act, if that statute would have seemed nothing less than “monstrous” to the revolutionists of 1688, it seems clear that to those revolutionists the dictum of Northington and Mansfield in 1766, so strenuously opposed by Camden and the Americans at the time, that “every government can arbitrarily impose laws on all its subjects,” would have been tenfold more monstrous. In fact, on the basis of this and other evidence, it seems no exaggeration to say that the Whig theory of the state after 1760 is hardly to be distinguished from the principles of James II which had brought on the Revolution of 1688. In one, as in the other, the government assumed authority to impose laws arbitrarily. The only difference lay in the fact that in the one case this arbitrary government was under control of an unreformed parliament and that in the other it was dominated by the will of a despotic king. Even the conservative Burke was candid enough as late as 1791 to admit that Englishmen of North America who in 1775 rebelled against such an arbitrary rule “stood in the same relation to England as England did to King James the second in 1688.” If the principles of 1688 had persisted unchanged, one might well doubt whether there would ever have been an American Revolution.
Against the principles of 1766 a revolt was as nearly inevitable in America as the Revolution of 1688 had been in England. Consideration of these changes brings up the nice question whether the Americans were legally or constitutionally warranted in resisting this “monstrous” doctrine just because it was grown or was growing “familiar” to Englishmen in England by 1733 and afterward—though not necessarily in America. It is a very nice question indeed, and most recent American historians of our Revolution have apparently refused to follow me in an inclination—which, nevertheless, I still feel—to prefer the contention of Camden and the Americans, even on its strictly legal side, to that of Northington and Mansfield. Viewed from the more general standpoint of politics rather than of law, this contention has been less questioned, and there is almost a consensus that it undoubtedly justified political revolution even if not legal resistance. It is with this political aspect of the question that we are immediately concerned here, for it was these political developments which lay behind and beneath the changing conception of what any constitution was or should be. Paine, in saying that a constitution must always be antecedent to any rightful government, was laying down a political maxim, not a rule of English law.
And whether we subscribe or not to the characterization of Thomas Paine by a former president of the United States as “a dirty little atheist,” in which every single item seems to be inaccurate, we must, I think, at least agree that the analysis Paine made of the early American constitution was remarkably acute. The significant points in that analysis are these:
That there is a fundamental difference between a people’s government and that people’s constitution, whether the government happens to be entrusted to a king or to a representative assembly.
That this constitution is “antecedent” to the government.
That it defines the authority which the people commits to its government, and in so doing thereby limits it.
That any exercise of authority beyond these limits by any government is an exercise of “power without right.”
That in any state in which the distinction is not actually observed between the constitution and the government there is in reality no constitution, because the will of the government has no check upon it, and that state is in fact a despotism.
One thing alone Paine fails to make fully clear. If a government exercises some “power without right,” it seems to be necessarily implied that the people have a corresponding right to resist. But is this a legal or is it only a political right? Is such resistance a legalized rebellion or merely an extralegal revolution? Or, further, is it possible to incorporate in the framework of the state itself some provision or institution by which a governmental act or command ultra vires may be declared to be such, and subjects therefore exempted from its operation and released from any legal obligation to observe or obey it? In short, can government be limited legally and effectively by any method short of force? To these questions Paine gives no clear answer. It might be assumed that forcible resistance to power without right must itself be legal and not revolutionary; but in every case there seems no recourse except to force of some kind.
The one conspicuous element lacking in Paine’s construction therefore seems to be the element of judicial review. Writing when he did, and as he did, to justify an actual rebellion, it is perhaps not strange that he was thinking primarily of politics rather than of law, that the “rights” he had in mind were the rights of man rather than the rights of the citizen, or that the sanction for these rights should be extralegal action rather than any constitutional check. Paine, like many idealists in a hurry, was probably impatient of the slowness of legal remedies for existing abuses. But others, who were more constitutionally minded than he, had begun to feel that any such remedies, to be truly effective, must ultimately have the sanction of law. Years before, Lord Camden had insisted that the principles of the law of nature must be incorporated in the British Constitution if they were to be observed, and that they actually were so incorporated. The necessary inference from such a principle as his is that the interpreters of law should be the ones to define the rights of individuals and to trace the bounds of legitimate government over them. The protection of rights became for him, and for all who thought as he did, the enforcement of “constitutional limitations.” In America this had been vaguely felt long before Paine wrote his Rights of Man or even his Common Sense. In 1764 James Otis, in his Rights of the British Colonies Asserted and Proved, had said: “If the supreme legislative errs, it is informed by the supreme executive in the King’s courts of law. . . . This is government! This is a constitution.”12 In 1771 a remarkable instance occurs in the first of the sermons preached in the Old South Church in Boston on the anniversary of the so-called Boston Massacre. In it the preacher, the Reverend James Lovell, speaking of the king of England, said:
He is gracious, but not omniscient. He is ready to hear our appeals in their proper course: and knowing himself, though the most powerful prince on earth, yet, a subject under a divine constitution of Law; that law he will ask and receive from the twelve judges of England. These will prove that the claim of the British parliament over us is not only illegal in itself, but a downright usurpation of his prerogative as King of America.13
This notion of the necessity in a constitutional state for a judicial interpretation and limitation of the acts of government was at first naturally vague and instinctive; it became fully and consciously developed only at a later date.
There is, however, another important side of Paine’s conception of a constitution in which it might seem to differ fundamentally from the views of other opponents of arbitrary government in his own time and before. One of Paine’s most fundamental assertions is that a true constitution is always antecedent to the actual government in a state. If by the word “antecedent” he means prior in time, he seems to be asserting a principle which can be true only of constitutions “struck off” consciously by a people at a definite time, as they had lately been formulated in the thirteen colonies in America. On such an assumption the only true constitution would appear to be a “written constitution” of a type familiar enough to us since 1776, but scarcely thought of before, except perhaps for a dozen years in the middle of the seventeenth century in England. This narrow and novel definition of a constitution may have been the one Paine had in mind, and the prominence in his political thought of the notion of a definite historical compact between the government and the governed makes it the more probable.
Antecedent, however, might well have been used by other men with a far different meaning. The quotation from Bolingbroke given above makes it evident that for him the principles of the Constitution stand before all acts of any government, not because they are prior to them in time, but because they are superior in character and in binding authority; and the same was certainly true of Burke. In fact, the traditional notion of constitutionalism before the late eighteenth century was of a set of principles embodied in the institutions of a nation and neither external to these nor in existence prior to them. A constitutional state was one that had preserved an inheritance of free institutions. Precedent was the very life of these institutions as it was of all law. It was the retention of “ancient” liberties for which liberals thought they were fighting, not the creation of new ones a priori.
For some of the earlier of these “liberal conservatives” the safeguarding of necessary liberties seems to have implied the preservation intact of the customary law of the nation in its entirety. Sir Edward Coke, for example, appears to have thought that nothing less than the whole body of the English common law must be kept inviolate if the liberty of the subject was to be protected against arbitrary rule. For him the whole of the common law was in a sense “fundamental.” He was still thinking in medieval fashion of law as custom, and all customary law had for him a higher sanction than “legislation” of any kind. Liberty, in his mind, was far from the abstract notion of the period of the Enlightenment. It still consisted, as in earlier ages, of specific concrete rights and of the whole body of these specific rights. He thought in terms of rights, not of right; of liberties, not of liberty; and he identified these concrete liberties with franchises.14
In one of the speeches of James I there is an interesting illustration of this habit of thought among English common lawyers, and also of the emergence of a view that we might possibly call more modern, although its roots are very old. In 1607, contrasting the Scots with the English, the king said:
Their meaning in the word of Fundamental Lawes, you shall perceive more fully hereafter, when I handle the obiection of the difference of Lawes: For they intend thereby onely those Lawes whereby confusion is avoyded, and their Kings descent mainteined, and the heritage of the succession and Monarchie, which hath bene a Kingdome, to which I am in descent, three hundreth yeeres before Christ: Not meaning it as you doe, of their Common Law, for they have none, but that which is called Ius Regis.15
The king, in this passage, is making essentially the same distinction that we now make as a matter of course between “constitutional” and other law. In restricting this constitutional law as he did to the jus regis or jus coronae he reflects his own extreme view, or monarchy by divine right, and there were undoubtedly some precedents for so restricting it, not only in Scotland but in France and England as well. But the main point is that in this view all customary law is not equally “fundamental,” that some parts of it are by their inherent character more so than others, and that these parts are the ones concerned with the supreme governmental organ of the state. While these fundamentals went no further for James than the guarantee of his own royal rights, by others they might be extended and were extended to include some limitations in the interest of subjects as well. S. R. Gardiner was of opinion that the phrase “fundamental law,” as a guarantee of the rights of the subject, came into use only after the ship-money trial, but there are some rather striking even if somewhat vague instances of it that antedate this by a good many years; such, for example, as the assertion of Sir James Whitelocke in 1610 that taxation without sanction of parliament “is against the natural frame and constitution of the policy of this Kingdom, which is Jus publicum regni, and so subverteth the fundamental law of the realm, and induceth a new form of state and government,” as well as “against the municipal law of the land, which is Jus privatum, the law of property and of private right.”16
From the evidence of recent times, of which I have had room for only this small number of scattered illustrative cases, one or two general principles, or tendencies rather, may, I think, be legitimately deduced; and I should like to state these in somewhat brief and summary form as the basis or starting point for the survey to follow of the long historical evolution which lies behind them.
Whatever we may think of it theoretically, Paine’s notion that the only true constitution is one consciously constructed, and that a nation’s government is only the creature of this constitution, conforms probably more closely than any other to the actual development in the world since the opening of the nineteenth century. Whether this construction was actually prompted in the first instance by doctrinaire political philosophers, as seems largely true in France, or by actual political experience, as the history of the time appears to indicate in the revolted North American colonies of Great Britain, it is certainly true that most subsequent constitutional developments have followed the same lines. Written constitutions creating, defining, and limiting governments since then have been the general rule in almost the whole of the constitutional world. The precedent for these, first developed in North America, was naturalized in France and from there transmitted to most of the continent of Europe, from which it has spread in our own day to much of the Orient. Even the British self-governing colonies have been deeply influenced by it.
One of the curious anomalies arising out of this development is the striking exception to it furnished by England herself, the one country above all others in which limitations on government have been in more or less effective operation since medieval times. But the exception of England seems more apparent than real. The essential principles to which Burke and Camden and Otis appealed were no less constitutional because they were “unwritten”; and the true reason why England, probably the most constitutional of modern European nations, has also remained the only one whose constitution has never been embodied in a formal document, is not that she has had no constitution, as the French sometimes say, but rather that limitations on arbitrary rule have become so firmly fixed in the national tradition that no threats against them have seemed serious enough to warrant the adoption of a formal code. Since written constitutions came into vogue in the late eighteenth century, England has never experienced any of the violent changes which gave France so many successive written constitutions in the nineteenth. Yet, it might be objected, the thirteen British colonies, whose traditions were those of the mother country, did without exception adopt such written constitutions, and our federal written constitution is merely the result of them.
The answer is twofold. First, our early American written constitutions might be said with little exaggeration to consist mainly of a codification of institutions and principles long in actual force. They are far less doctrinaire or a priori than those of France or the rest of continental Europe. And, second, our independence constituted a break in continuity here requiring a written code, such as England has never known, at least since 1660. For even the Revolution of 1688, important as it was, made few structural changes that could be set forth in a formal document even if men had thought of it. The Bill of Rights of 1689, the Triennial Act of 1694, and the Act of Settlement of 1701, which embody nearly the whole of the revolution settlement which obtained the sanction of law, were enacted in the form of ordinary statutes. Nevertheless, there are indications that these enactments were at that time thought to be in some sense, or in some degree, fundamental. The language of the Triennial Act—that writs shall issue for the assembling of a new parliament “within three years at the farthest, from and after the dissolution of this present Parliament, and so from time to time forever hereafter”—certainly furnishes some ground for Bolingbroke’s assertion that a revolutionary change took place between 1694 and 1716 which even the men of 1688 might have considered “monstrous.” If we confine our view to Anglo-Saxon institutions, there is less difference between a “written” and a so-called “unwritten” constitution than the terms “rigid” and “flexible,” made current for them by Lord Bryce, would seem to imply. England has had no such occasion, or rather no such necessity, as we in America had about 1776, to codify her fundamental constitutional principles. But such principles did exist, and still do exist, and in times of stress we hear occasional demands even for a codification of them. From 1911 to 1914 the so-called “die hards” or “last-ditchers” among the members of the House of Lords were calling for some protection for themselves stronger than their right of participation in all acts of parliament; and in 1914 a small group of unionists even proposed the revival of the so-called royal veto on legislation in the case of the Irish Home-Rule Bill, a branch of the royal prerogative which had not been exercised for some two centuries.
In 1914 a short-lived review was founded to voice these points of view, The Candid Quarterly Review. Its first number contains some remarkable statements whose gist may probably be best gathered from an extract:
But the modern doctrine is that they [the former attributes of the King] have been somehow transferred from the King to the Minister; that they exist now only in the Minister. The Minister has become the King with all the Kingly attributes; the King has become the Minister with only the Ministerial duties. The gilt coach which bears the King to Parliament contains, in fact, Nothing: the taxicab which bears the Minister to Downing Street, Everything.17
This, the writer insists, is a great usurpation. The salaried parliament, the sale of honors, the Parliament Act of 1911, and the Irish Home-Rule Bill are all parts of a corrupt conspiracy to deprive the king of his prerogative and the people of their liberty. Therefore the king should exercise his legal and fundamental right, disused for two hundred years, and veto the Home-Rule Bill. The writer implies also that the Parliament Act, in leaving to the Lords a mere power of suspension, is void for unconstitutionality.
The Great War, which ensued in a few months, drew attention away from these constitutional questions, but they might come to the top again, and are almost sure to do so when a similar issue arises. It would, in short, not be surprising if in the years to come there were further, more frequent, and more widespread demands in England for “somewhat Fundamental, somewhat like a Magna Charta, that should be standing and be unalterable”—the words of Oliver Cromwell in 1654.18 The extension of the elective franchise has been completed in England only in our own day. Most of it has occurred within the lifetime of men still living. And the political results of it are not yet fully apparent. The membership of the House of Commons, notwithstanding the successive enlargements of the electorate, is still to a great degree aristocratic, and aristocratic traditions still control and limit parliament’s actions to an extent surprising to anyone who has not made a study of it. These traditions, inherited from an earlier time, still operate as inhibitions on parliamentary action almost as effective as legal prohibitions. So long as they do, the need for legal restrictions on the lawmaking organ will not be pressing, and the legal doctrine of the omnipotence of parliament is likely to remain little questioned. That doctrine is left unchallenged only because it has not yet been found to be dangerous to any class numerous enough and powerful enough successfully to oppose it.19 On the other hand, it requires little prophetic insight to note that this situation cannot be permanent. The legal doctrine of parliament’s omnipotence could never have persisted even to this day in England if its edge had not been blunted by conventions whose operation has been practically as invariable as that of the law itself.
When these conventions lose their effectiveness there will be a demand for law and the conventions will either be turned into laws or disregarded altogether. We have had an instance of this in recent times. Parliamentary omnipotence thus far has met its principal obstacle in imperial matters. The doctrine was challenged in North America in the eighteenth century and the American Revolution was the result. In our own time, in the recent Statute of Westminster, we have seen the breakdown of convention in Canada and the substitution of law in its place. It is natural that these striking instances of the growing inadequacy of convention should occur in the colonial sphere, where tradition is less firmly rooted than in the mother country. In England itself the equilibrium of law and convention has often been noted, especially since Walter Bagehot called attention to it in his classical analysis of the English constitution. Most persons are familiar with Bagehot’s famous remarks on the prerogative, made in 1872 in the introduction to the second edition of his English Constitution. Without recourse to parliament, by an exercise of mere prerogative, the queen, he says,
could disband the army. . . . She could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She could make every citizen in the United Kingdom, male or female, a peer; she could make every parish in the United Kingdom a “university”; she could dismiss most of the civil servants: she could pardon all offenders.
What makes impossible the more serious of these prerogative rights Bagehot thought to be impeachment. But impeachment has long been obsolete, and was so in 1872 when Bagehot wrote. It seems very doubtful whether impeachment could be successfully revived for the conviction of a minister of state involved in such transactions. The possibility of revolution would seem to be the only real deterrent, just as it was in 1688 when James II made excessive use of a legitimate discretionary power. But in matters of this sort attention has in the past been directed mainly to the crown and the prerogative. The same threat of revolution effective against the crown, however, might be brought by the people against a parliament which outraged their feelings of what was just and right. This seems less likely to occur because parliament will in time come more and more to reflect the changing social and economic views of the new classes rising to political power. What we may expect for the near future, I think, is not a revolution against parliament but a transformation of it. Already, in the short period since the election of the first Labor representative, which some of us can remember, significant omens of change have appeared.
Anyone who frequented sessions of the House of Commons at the turn of the century and sees it now when some important and keenly contested social question is under discussion will be impressed by the difference. Outwardly there seems to be little change. The House of Commons looks just as it did and, when feelings are not aroused, it acts so too. But at times it is noticeable that language is less restrained than formerly in the House. Conventions inherited from the time when government and opposition were drawn from the same social class are broken more frequently. There is a subtle difference of atmosphere. When one considers the new elements that have entered parliament, it seems surprising that this change is no greater than it is, but a change has occurred nevertheless, and it is a symptom of possible changes to come much more fundamental in character. As the restraining influence of tradition grows weaker, the danger of a tyranny of the majority comes nearer, and the time may arrive when convention must give way to law if the rights of minorities are to be respected and safeguarded as they have been in the past. A popular despotism must result if the omnipotence of parliament ever becomes in practice what it now is in law. Because it is not yet so, England is today an exception more apparent than real to the principle laid down by Thomas Paine, that in any state in which the government constitutes itself “with what power it pleases” there is in reality “merely a form of government without a constitution.”
As a general principle I think we must admit the truth of Paine’s dictum that “a constitution is not the act of a government but of a people constituting a government.” And, if this be true, the consequence is that the forms and limits followed in this “constituting” become the embodiment of a “constitution,” superior in character to the acts of any “government” it creates. If, for example, this constituent act of the people entrusts certain definite powers to their government, “enumerated powers” as we term them, it is a necessary inference that this government cannot exercise any powers not so “enumerated.” All constitutional government is by definition limited government. We may not agree that these limits are necessarily “antecedent” in the sense of that term that Paine had in mind, but for everyone they must be in some sense “fundamental,” and fundamental not merely because they are basic, but because they are also unalterable by ordinary legal process.
The phase in the development of these political conceptions to which I have asked your attention thus far is the latest phase in that development, what might be called the “self-conscious” phase, in which the people are thought of as creating their constitution by direct and express constituent action. But I think enough has been shown to prove that this latest phase is only the outcome of an earlier and a much longer one, in which constitutions were thought of not as a creation but as a growth; not as a national code so much as a national inheritance. Our modern tendency to identify all law with legislation has modified the notions respecting constitutional as well as private law. We no longer think of either as the medieval man did, as custom, binding because it extends backward to a time “whereof the memory of man runneth not to the contrary.”
It is the long development of this earlier and less conscious phase that I am to treat in more detail, but before doing so may I point out in advance what I hope will become obvious in the historical treatment, namely, that in all its successive phases, constitutionalism has one essential quality: it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law. In modern times the growth of political responsibility has been added to this through the winning of the initiative in the discretionary matters of national policy by the people’s representatives, and of that more anon; but the most ancient, the most persistent, and the most lasting of the essentials of true constitutionalism still remains what it has been almost from the beginning, the limitation of government by law. “Constitutional limitations,” if not the most important part of our constitutionalism, are beyond doubt the most ancient.
[1. ] Quoted in the Oxford Dictionary s.v. “constitution.”
[2. ]Rights of Man, in The Complete Works of Thomas Paine (London), pp. 302–3, 370.
[3. ]An Appeal from the New to the Old Whigs (1791), in The Works of the Right Honourable Edmund Burke (1855), III, p. 81.
[4. ] Ibid., p. 13.
[5. ]A Dissertation upon Parties (1733–34), in The Works of Lord Bolingbroke (1841), II, p. 88.
[6. ] Ibid., p. 105. The Septennial Act was defended by its supporters as the exercise of an extraordinary rather than an ordinary power of parliament. The Jacobite rising in 1715, it was held, had created a national emergency in which the very safety of the state depended upon the postponement of a parliamentary election. As the judges of Charles I had justified the royal prerogative in the levy of ship money, so the Whigs now justified an extension of parliament’s power by misquotation of Cicero’s Salus populi suprema lex esto, turning his esto into an est, and perverting the mere exhortation addressed to the commander of an army in the field into a general maxim of arbitrary government. The argument for emergency powers is not an unsound one—far from it; but it becomes a grave menace to individual liberty when “the sole judge, both of the danger, and when and how the same is to be prevented, and avoided,” is a king; and may be such even when the sole judge is a representative assembly; the more so if only a partisan, a corrupt, or an “unreformed” one. John Selden noticed this substitution of est for the esto of Cicero’s maxim and deplored its misuse in his day to justify absolutism under pretext of national emergency. He mistook it, however, for an extract from the XII Tables. “There is not any thing in the World more abus’d then this Sentence Salus populi suprema lex esto, for wee apply it, as if wee ought to forsake the knowne law when it may bee most for the advantage of the people, when it meanes no such thing: for first, tis not salus populi lex est, but esto. . .” (Table Talk, s.v. “People,” folio 56b). Selden’s strictures would probably have been even more severe if he had known that the maxim was applied originally by Cicero to a military commander alone, and then only when he was actually in the field: militiae, but never domi (Cicero, De Legibus, lib. III, cap. 3, sec.8).
Others besides Selden in his time made the same mistake of attributing this important maxim to the XII Tables instead of to Cicero. See, for example, Richard Zouche’s Elementa Jurisprudentiae (Oxford, 1636), part IV, p. 55; William Fulbecke, A Direction or Preparative to the Study of the Laws (London, 1620), folio 2; Bacon, Essays, Of Judicature. Bacon, as many others, omits the verb altogether, but evidently implies an est, not an esto. Serjeant Maynard, a century after Bacon, has esto instead of est, but still thinks it comes from the XII Tables (Parliamentary History, vol. V, col. 125).
Arbitrary government, possible under the Tudors as an ordinary power, became impossible under the Stuarts except as an extraordinary power warranted only by the doctrine of emergencies. This was one of the most momentous of the results of “the winning of the initiative” by the House of Commons, but in the later use of the phrase it was in process of becoming a justification of arbitrary government by a parliament as it had formerly justified royal absolutism.
The Septennial Act of 1716 is no doubt the first important application of the theory of parliamentary omnipotence after the Revolution, but within a dozen years of that event there are indications that the House of Commons is already beginning to think of itself not merely as the “full and free Representative of this nation,” which the Declaration of Rights in 1689 had declared it to be, but as a body with an inherent authority independent of the people who had chosen it. This appears as early as 1701 in the imprisonment by the House of the Kentish petitioners. That such a view was not shared by all, however, is indicated in many contemporary tracts, especially the remarkable “Legion’s Memorial,” so-called, probably written by Defoe (Parliamentary History, V, 1252; Later Stuart Tracts, ed. George A. Aitken, pp. 179–86), which closes with the significant warning, “Englishmen are no more to be Slaves to Parliaments, than to Kings.” As the rhyming pamphleteer of the same year said,
The fundamental cleavage between such views as these and the new temper of the House of Commons appears clearly in the answer to these “Legion” pamphlets made by Sir Humphrey Mackworth (Somers Tracts, XI, p. 176ff.) in which he declared “that the King, lords, and commons, united together, have an absolute supreme power to do whatever they shall think necessary or convenient for the public good of which they are the only judges, there being no legal power on earth to controul them. . . . The king, lords, and commons, therefore, as supreme, have superior powers, and the liberty of exercising them (according to the nature and constitution thereof) as they in their respective wisdoms and discretion shall think most conducing to the public good, without rendering any account for the same” (pp. 282–83). To this Defoe replied: “The people of England have delegated all the executive power in the King, the legislative in the King, Lords, and Commons, the sovereign judicative in the Lords, the remainder is reserved in themselves, and not committed, no not to their representatives: all powers delegated are to one great end and purpose, and no other, and that is the public good. If either or all the branches to whom this power is delegated invert the design, the end of their power, the right they have to that power ceases, and they become tyrants and usurpers of a power they have no right to” (The Original Power of the Collective Body of the People of England Examined and Asserted [London, 1701], in The Works of Daniel DeFoe, by William Hazlitt [London, 1843], III, p. 9). It is the English form of the old controversy of the early glossators, whether the populus had conferred on the Emperor all its imperium and potestas unconditionally and irrevocably or not. For references to some further contemporary statements, see “The Theory of Balanced Government,” by Stanley Pargellis, The Constitution Reconsidered (New York, 1938), pp. 37–49.
The same conflicting views are brought out again in 1704–5 in the great case of Ashby v. White (Howell’s State Trials, XIV, col. 697ff.) in which the Lords declared, “It could not then [in 1628, when the Petition of Right was framed by the Commons] have been imagined, that the successors of those men would ever have pretended to an arbitrary and unlimited power of depriving their fellow subjects of their liberties” (col. 869). And they add, “This is the first time a House of Commons have made use of their having given the People’s money, as an argument why the prince should deny Writs of Right to the subject, obstruct the course of justice, and deprive them of their birth-rights” (col. 871).
Thus, as Bolingbroke said in 1733, the new conception of parliament’s power, “in less than twenty years,” “is grown or is growing familiar to us.” From this it was but a step to the denial, in the reign of George III, of the right of the electors of Middlesex to choose their own representatives; to that statement of the Lord Chancellor in 1766 that “every government can arbitrarily impose laws on all its subjects”; and to the assertion made about the same time in the Commons that that body alone in the enacting of law “constitutes the only people of England which the law acknowledges.” In these things Burke had ample warrant for his declaration in 1770, in his Thoughts on the Cause of the Present Discontents, that “the Distempers of monarchy were the great subjects of apprehension and redress, in the last century; in this, the distempers of parliament.” “This change from an immediate state of procuration and delegation to a course of acting as from original power, is the way in which all the popular magistracies in the world have been perverted from their purposes.” “To be a Whig on the business of an hundred years ago, is very consistent with every advantage of present servility.” For all the rest of the people of England, outside the Commons, there seemed no remedy left for such “distempers” and their deprivation of these ancient “birth-rights” except the resort to force; for from the fact that there was no appeal from their jurisdiction in controverted elections, the Commons were implying, as Burke says, that they were bound by no rule but their own discretion. That ultimate remedy of force the authors of the “Legion’s Memorial” had threatened to use as early as 1701; its actual use came first in 1775 by Englishmen in the colonies of North America; Englishmen were “no more to be slaves to Parliaments, than to Kings.” In England itself the threat of such slavery finally became a thing of the past through the reforms of the nineteenth century, the gradual growth of truly “responsible” government, and the adoption in law and practice of the principle of Sir John Holt’s dissenting opinion in the case of Ashby v. White.
[7. ]Parliamentary History, XVI, p. 170. The italics are mine.
[8. ]An Appeal from the New to the Old Whigs, Works, III, p. 30.
[9. ]A Collection of State Tracts (London, 1705), I, p. 106.
[10. ]Some Remarks upon Government (written in 1689), in State Tracts, I, pp. 159, 160, 162.
[11. ]A Discourse Concerning the Nature, Power, and Proper Effects of the Present Conventions in Both Kingdoms (1689), in State Tracts, I, p. 220.
[12. ]Some Political Writings of James Otis, ed. Charles F. Mullett, The University of Missouri Studies, p. 79.
[13. ] Hezekiah Niles, The Principles and Acts of the Revolution in America, p. 19.
[14. ] “What a word is that franchise? The lord may tax his villain high or low, but it is against the franchises of the land, for freemen to be taxed, but by their consent in parliament. Franchise is a French word, and in Latin it is Libertas” (1627; in Parliamentary History, II, p.237).
[15. ]The Political Works of James I (Cambridge, Mass., 1918), p. 300.
[16. ] Howell’s State Trials, II, 481, in which this speech is given as the speech of Yelverton. The notes of the debates in this parliament published by S. R. Gardiner show that the speech was made by Sir James Whitelocke (Parliamentary Debates in 1610 [Camden Society, 1862], p. 103).
[17. ]Candid Quarterly Review, no. 1 (February, 1914), p. 31.
[18. ]The Letters and Speeches of Oliver Cromwell, ed. S. C. Lomas, II, p. 382.
[19. ] In such cases in the past it has been challenged occasionally though without success. For example, just after the Restoration, when the abolition of feudal tenures was agitated, one opponent of the measure declared: “And if an Act of the Commons alone, or of the Lords alone, or of both together, cannot amount to an Act of Parliament, the King himself cannot grant away his Regality, or Power, or means of governing by his Charter, or any Act which he can singly doe, his concurrence with both the Lords and Commons can no more make an Act to confirme that which should not be done or granted, than his own grant or Charter could have done, or than if he and the House of Commons only had made an Act.” He then goes on to cite authorities for the principle “that the Superlative power of Parliaments above all but the King, is in some things so restrained, as it cannot enact things against Right Reason, or common Right, or against the Lawes of God or Nature” (Fabian Philipps, Esq., Tenenda non Tollenda [London, 1660], pp. 254–55). On the various interpretations of Coke’s statement of this principle in Bonham’s Case, see C. H. McIlwain, The High Court of Parliament (1910), p. 286ff.; W. S. Holdsworth, “Courts of Law and Representative Assemblies in the Sixteenth Century,” Columbia Law Review, XII (January, 1912), pp. 1–31; T. F. T. Plucknett, “Bonham’s Case and Judicial Review,” Harvard Law Review, XL (1926), pp. 30–70, S. E. Thorne, “Dr. Bonham’s Case,” Law Quarterly Review, October, 1938, pp. 543–52; S. E. Thorne, A Discourse upon the Exposicion & Understandinge of Statutes (San Marino, Calif., 1942), Introduction.