The Online Library of Liberty

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• Preface
• Constitutionalism: Ancient and Modern
• I: Some Modern Definitions of Constitutionalism
• II: The Ancient Conception of a Constitution
• III: The Constitutionalism of Rome and Its Influence
• IV: Constitutionalism In the Middle Ages
• V: The Transition From Medieval to Modern
• VI: Modern Constitutionalism and Its Problems
• Appendix

V

The Transition from Medieval to Modern

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:

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:

In another letter of the same year Gardiner said:

In Gardiner’s long letter written from the Fleet prison to the Protector Somerset in 154710 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

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:

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.

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:

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:

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,

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:

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

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,

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

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:

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:

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

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

“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

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,

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:

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,

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.

[1. ]The Whole Workes of W. Tyndall, John Frith, and Doct. Barnes (London, 1573), pp. 111–18, passim. On the general subject of the early Tudor monarchy and the contemporary theories concerning it, see The Early Tudor Theory of Kingship, by Franklin Le Van Baumer (New Haven, 1940); Early Tudor Government, Henry VII, by Kenneth Pickthorn (Cambridge, 1934).

[2. ] Commentary on the Book of Daniel, Works, V, p. 91.

[3. ]De Justa Henrici Tertii Abdicatione e Francorum Regno Libri Quatuor, Parisiis, 1589.

[4. ]“. . . Iesuits are nothing but Puritan-papists” (A Premonition, Political Works of James I, p. 126).

[5. ] Cited by A. Lemaire, Les lois fondamentales de la monarchie française, p. 58.

[6. ] “Et neantmoins demeure tousiours la dignité & auctorité royalle en son entier, non pas totalement absolue, ne aussy restraincte par trop, mais reglée & refrenée par bonnes loix, ordonnances & coustumes, lesquelles sont establies de telle sorte qu’a peine se peuuent rompre & adnichiler, iaçoit qu’en quelque temps & en quelque endroit, il y aduienne quelque infraction & violence. Et pour parler desdictz freins par lesquelz la puissance absoluë des Roys de France est reglée, i’eu treuue trois principaulx, Le premier est la religion, Le second la iustice, Et le tiers la police.” Chap. viii, folios 9–10. “Le second frein est la iustice, laquelle sans point de difficulté est plus auctorisée en France qu’en nul autre païs du monde que lon sçache, mesmement à cause des parlements qui ont esté instituez principalement pour ceste cause, & à ceste fin de refrener la puissance absoluë dont vouldroient vser les Roys” (Claude de Seyssell, La grand’ monarchie de France [Paris, 1558], chap. x, folio 11; first edition, 1519).

[7. ]De l’estat et succez des affaires de France (Paris, 1571), p. 82.

[8. ]The Letters of Stephen Gardiner, ed. James Arthur Muller (New York, 1933), p. 370.

[9. ] Ibid., p. 377.

[10. ] Ibid., p. 379ff.

[11. ] Quoted by Thomas McCrie, Life of John Knox, note BB.

[12. ]Eight Centuries of Reports, by Judge Jenkins (1734), Fourth Century, Case XCIII.

[13. ] Ibid., Sixth Century, Case XXXV, 23 Elizabeth.

[14. ] Ibid., Seventh Century, Case LXXXIII, 2 James I.

[15. ] Ibid., Fourth Century, Case XXXVI, 1 Henry VII.

[16. ] Ibid., Fifth Century, Case XXVII, 34 Henry VIII.

[17. ]Anderson’s Reports, I, p. 152, translated in Thayer’s Cases on Constitutional Law, I, pp. 12–15.

[18. ]A Compleat Journal of the Votes, Speeches and Debates, both of the House of Lords and House of Commons Throughout the Whole Reign of Queen Elizabeth, of Glorious Memory, collected by . . . Sir Simonds D’Ewes, Baronet (London, 1693), p. 633. For the unfavorable estimate of the character of Serjeant Heyl, Hele, or Heale, by Lord Ellesmere, himself no enemy of the royal prerogative, see Lord Campbell’s Lives of the Lord Chancellors and Keepers of the Great Seal of England (2d ed.; London, 1846), II, pp. 207–10. In a case before the Star Chamber in 1604, Lord Ellesmere voted to “find him [Hele] guilty in all of corruption and ambition, craft and covetous practices,” and apparently he was fined 1,000 pounds (Les Reportes del Cases in Camera Stellata, ed. W. P. Baildon [1894], pp. 171–76, 411). See also The Egerton Papers (Camden Society, 1840), pp. 315, 391, 399; Lives of Eminent Serjeants-at-Law, by Humphry William Woolrych (London, 1869), I, pp. 172–85.

[19. ] Ibid., p. 640.

[20. ]England in the Reign of King Henry the Eighth (Early English Text Society), pp. 100–101.

[21. ] For a convenient though abridged text of the Statute of Proclamations, see Tudor Constitutional Documents, ed. J. R. Tanner, p. 532; for the circumstances of the passing of the act, Tanner’s introductory note (pp. 529–32), and the article by E. R. Adair, in English Historical Review, XXXII, pp. 34–46.

[22. ]A History of England from the Defeat of the Armada to the Death of Elizabeth, II, p. 275.

[23. ]Introduction to Political Science, p. 256.

[24. ] Ibid., pp. 253–54. While this is true for most of the time as a matter of form after the enactment of the Triennial Act in 1664, and a parliament was usually in being, parliament’s effectiveness was not secured till means were found to ensure a session as well as an election, and such means were not found till the Revolution. The unprecedented number of prorogations and dictated adjournments in the reigns of Charles II and James II were as effective as a dissolution in checking any parliamentary opposition to the Crown. In 1677 Buckingham and Shaftesbury argued that such prorogations if they lasted more than one year were equivalent to a dissolution under the provisions of two unrepealed statutes of Edward III. For this Shaftesbury was put in prison at the pleasure of the Lords and the King, where he remained for more than a year and was then released only on a full renunciation of his error. The Tudor monarchs had met the growing opposition of parliament by subjugating their parliaments, a method progressively less and less effective. The Stuart method came to be one by suppression rather than subjugation when subjugation failed, and Charles I succeeded in this policy till the Scottish war forced his hand. After the Restoration Charles II was not faced with the problem until the later sessions of the long Cavalier Parliament and its successors. He then followed his father’s method, but by prorogation instead of flat violation of the Triennial Act of 1664. Before his death, however, he was forced to violate his own statute. James II, in the single parliament called by him, returned to his brother’s earlier method of suppression through prorogation.

[25. ]Parliamentary History, I, p. 555.

[26. ] In the old English translation of the Latin original (Pierre Janelle, Obedience in Church and State [Cambridge, 1930], p. 93).

[27. ] D’Ewes, Journal, p. 12.

[28. ] Ibid., p. 151.

[29. ] Ibid., p. 141.

[30. ] Ibid., p. 168.

[31. ] Ibid., p. 175.

[32. ] Ibid., p. 185.

[33. ] Ibid., p. 244.

[34. ] Ibid., pp. 284–85.

[35. ] Ibid., p. 460. The italics are mine. These matters are referred to later in the same parliament as “matters of State, or Causes Ecclesiastical” (ibid., p. 479).

[36. ] Ibid., p. 470.

[37. ] The phrase of Sir Humphrey Gilbert on 1571 (ibid., p. 168).

[38. ]The Prerogative of Parliaments (1644), Harleian Miscellany (ed. of 1745), V, p. 208.

[39. ] 1 Jac. I, cap. 1; Statutes of the Realm, IV, p. 1017.

[40. ] The king’s speech in parliament in 1607 (The Political Works of James I [Cambridge, Mass., 1918], p. 300).

[41. ]De Republica Anglorum, ed. L. Alston (Cambridge, 1906), book II, chap. ii, p. 58.

[42. ]The Trew Law of Free Monarchies, in The Political Works of James I, p. 62.

[43. ] Speech of 1605 (ibid., p. 288).

[44. ]Parliamentary History, I, pp. 1326–27.

[45. ] Ibid., I, 1344.

[46. ] Ibid., I, 1351. For a penetrating analysis of the constitutional struggle in England between 1603 and 1649, see The Royal Prerogative, 1603–1649 by Francis D. Wormuth (Ithaca, N.Y., 1939).

[47. ]Commons Debates, 1621, ed. Notestein, Relf, and Simpson (New Haven, 1935), V, p. 239.

[48. ] Ibid., p. 240.

[49. ]Willion v. Berkley, Plowden’s Commentaries, pp. 236–37.

[50. ]Commons Debates, 1621, II, p. 490.

[51. ] Ante, p. 42 et seq.

[52. ] Ante, p. 63.

[53. ] Ante, p. 64.

[54. ] Palgrave, Parliamentary Writs I (Anno XXIII Regis Edwardi, p. 30).

[55. ]Rot. Parl., II, p. 290 A. Que le dit Roi Johan ne nul autre purra mettre lui ne son Roialme ne son Poeple en tiele subjection, saunz Assent & accorde de eux.

[56. ]Rex v. the Bishop of Chichester, Year Book Pasch. 39 Edward III, p. 7.

[57. ] Year Book Pasch. 19 Henry VI, no. 1; Plucknett, The Lancastrian Constitution, Tudor Studies, ed. R. W. Seton-Watson, p. 163.

[58. ]Wimbish v. Tailbois, 4 Edward VI, Plowden’s Reports, p. 59. For reference to this interesting case I am indebted to the unpublished thesis of Edward T. Lampson, The Royal Prerogative, 1485–1603, in the Harvard University Library. Lampson has now published an interesting analysis and discussion of this important case: “Some New Light on the Growth of Parliamentary Sovereignty: Wimbish versus Taillebois,” American Political Science Review, XXXV (October, 1941), pp. 952–60. For some discussion of the earlier English cases dealing with this matter, see Brinton Coxe, An Essay on Judicial Power and Unconstitutional Legislation (Philadelphia, 1893), pp. 147–64; A Discourse upon the Exposicion and Understandinge of Statutes, by Samuel E. Thorne (San Marino, California, 1942). On the general subject of the expropriation of private property, see also my Growth of Political Thought in the West, p. 181, note 2, and p. 190, note 1, with the references there cited, especially the valuable paper by E. Meynial, “Notes sur la formation de la théorie du domaine divisé,” in Mélanges Fitting (Montpellier, 1908), II, pp. 409–61. The political principles vaguely touched on in Wimbish v. Taillebois became the basis of the long struggle between ruler sovereignty and popular sovereignty and of the antithesis between the constitutional limits possible under the former and the illimitable power of the people. The persistence of this fundamental conflict is well illustrated by the antagonistic views of Thomas Jefferson on the one side and those of Chief Justice Marshall and Mr. Justice Story on the other. See “The Story-Marshall Correspondence (1819–1831)” by Charles Warren, William and Mary College Quarterly, 2d ser., XXI, no. 1 (January, 1941). Thus Jefferson wrote in 1820: “When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.” In a letter from Story to Marshall of June 27,1821, the former writes: “Mr. Jefferson . . . in the most direct terms denies the right of the Judges to decide constitutional questions. . . and endeavours to establish that the people are the only proper Judges of violations of constitutional authority and by changes in the course of election are alone competent to apply the proper remedy. If, he says, it is objected they are not sufficiently enlightened to exercise this duty with discretion, the remedy is to enlighten them the more. . . . There never was a period of my life when these opinions would not have shocked me, but at his age, and in these critical times, they fill me alternately with indignation and melancholy. Can he wish yet to have influence enough to destroy the government of his Country?”

[59. ] See Appendix, post, p. 137ff.

[60. ]De Republica Anglorum, ed. Alston, p. 105.

[61. ] Ibid., p. 106.

[62. ] Ibid., p. 104.

[63. ]The Third Part of the Institutes of the Laws of England (1644), p. 35.

[64. ] The evidence is collected in David Jardine’s valuable Reading on the Use of Torture in the Criminal Law of England Previously to the Commonwealth (1837), and many instances are given in A History of Crime in England, by Luke Owen Pike, 2 vols., London, 1873, 1876. See also Sir William Holdsworth, A History of English Law, Vol. V (1924), pp. 184–88. The most recent work on this subject is The History of Torture in England by L. A. Parry, but it adds little to our knowledge of the subject and nothing to our understanding of its constitutional implications.

[65. ] Jardine, A Reading on the Use of Torture, p. 16.

[66. ] Howell’s State Trials, II, 871.

[67. ] Jardine, p. 24.

[68. ] Ibid., Appendix 15.

[69. ] Holdsworth, History of English Law, V, p. 185.

[70. ] II State Trials, 774, note.

[71. ] Jardine, p. 59.

[72. ]History of England, Vol. VI, p. 359, n. 2. See also Holdsworth, History of English Law, V, p. 186.

[73. ] John Selden, Table Talk., s. v. Tryalls.

[74. ] For discussions of the oath Ex Officio and its constitutional importance, see R. G. Usher, The Reconstruction of the English Church (1910); The Rise and Fall of the High Commission (1913); Mary Hume Maguire, Attack of the Common Lawyers on the Oath Ex Officio as Administered in the Ecclesiastical Courts in England, in Essays in History and Political Theory in Honor of Charles Howard McIlwain (1936), pp. 199–229; [Richard Cosin], An Apologie for Sundrie Proceedings by Iurisdiction Ecclesiasticall (1593); [James Morice], A briefe treatise of Oathes exacted by Ordinaries and Ecclesiasticall Iudges, to answere generallie to all such Articles or Interrogatories, as pleaseth them to propound. And of their forced and constrained Oathes ex officio, wherein is proved that the same is unlawful; The Argument of Master Nicholas Fuller, in the case of Thomas Lad, and Richard Maunsell, his Clients, Wherein it is plainely proved, that the Ecclesiasticall Commissioners have no power, by vertue of their Commission to Imprison, to put to the Oath Ex Officio, or to fine any of his Maiesties Subjects, Imprinted 1607. The book of Cosin is an elaborate defense of the procedure of the Commissioners, approximately one-third of which is devoted to the Ex Officio oath and to the attack on it in Morice’s book and in one other anonymous writing of the time. Mrs. Maguire refers also to A Collection shewinge what iurisdiction the Clergie hath heretofore lawfully used and may lawfully use in ye Realme of England (Calthorpe MSS., Vol. 44, folios 99–202), another attack on the methods of the commissioners, by Robert Beale, which I have not seen.

[75. ] For the illustration of the dispensing power, see Paul Birdsall, “Non Obstante”—A Study of the Dispensing Power of English Kings, in Essays in History and Political Theory in Honor of Charles Howard McIlwain, pp. 37–76.

[76. ] D’Ewes, Journal, p. 547.

[77. ]Acts of the Privy Council, New Series, Vol. 32, p. 237; State Papers Domestic, Elizabeth, Vol. 82, no. 8.

[78. ]The Case of Monopolies, XI Coke’s Reports, 84. The case is reported also in the Reports of Noy and Moore. See Cheyney, History of England, II, pp. 306–8; W. H. Price, The English Patents of Monopoly (Harvard Economic Studies), pp. 22–24; Select Charters of Trading Companies (Selden Society), ed. Cecil T. Carr, Introduction, p. lxvi; J. W. Gordon, Monopolies by Patents (1897), especially app. II (pp. 193–232); Sir William Holdsworth, A History of English Law, IV (1924), pp. 343–54; D. Seaborne Davies, “Further Light on the Case of Monopolies,” Law Quarterly Review, no. 48 (July, 1932), pp. 394–414.

[79. ] Townshend’s Historical Collections (1680), p. 239.

[80. ] Ibid., p. 249.

[81. ] Proclamation of November 28, 1601. Price, The English Patents of Monopoly, app. J (pp. 156–59). The historians of the constitution have dwelt upon Elizabeth’s suppression of actual monopolies, which she did by her mere prerogative. It is far more significant that subjects injured by the monopolies allowed to remain were here declared to have “their liberty to take their ordinary remedy by her Highness’s laws of this realm.” Similar provisions occur in the subsequent proclamations of James I and in the Statute of 1624. But Charles I characteristically preferred to act in such matters “of his mere grace and favor” and “by his regal power” wherever he was able to do so. It may be said without exaggeration that this fundamental power claimed as of right by the king, to stay any action involving the royal prerogative in the lower courts of common law or any debate touching it in “The High Court of Parliament,” is in practice the real crux of the whole constitutional struggle of the sixteenth century in England. The “Prerogative Royall may not be called in question”; yet, since the time of Henry VIII, by the common lawyers, it had been “made a great matter, the stay of the Common Lawe,” as Stephen Gardiner wrote to the Protector Somerset in 1547. See also Original Letters Illustrative of English History, ed. Henry Ellis, 3d ser., IV, pp. 87–90 (London, 1846), a letter to the Lord Chancellor and Lord Treasurer written apparently in 1591 and signed by eleven judges of the common-law courts, the whole of the three benches except Baron Sotherton, complaining, among other things, that “divers have been imprisoned for sueinge ordinarie accōns and sutes att the common lawe untill they will leave the same, or againste theire matter to order, althoughe sometime yt be after judgmente and execucōn.”