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VI: Modern Constitutionalism and Its Problems - Charles Howard McIlwain, Constitutionalism: Ancient and Modern 
Constitutionalism: Ancient and Modern (Indianapolis: Liberty Fund, 2008).
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Modern Constitutionalism and Its Problems
If the historic evolution of modern constitutionalism is to be made explicable there remain, I take it, at least three major topics to be discussed: first, the views concerning it which seemed to prevail in Stuart England before the struggle for actual supremacy overshadowed all arguments based upon right or constitutional precedent; secondly, the growth of the conviction, toward the end of this period, that existing law was no sufficient guarantee of the liberty of the subject without the addition of sanctions which no constitutional precedents before 1603 adequately gave; and, lastly, the constitutional problems of the modern world which have resulted from the establishment of such sanctions by making the governor responsible to the law and, politically, to the governed.
Briefly stated, the constitutional views in the opening years of the Stuart regime do not seem essentially different from those of the Tudor period. What the Venetian ambassador reported of England in the year 1551 remained substantially true immediately after 1603: “The King of England exercises two powers; . . . the one royal and absolute, the other ordinary and legal.”1 This view was never put more clearly than by Baron Fleming when, in 1606, he gave judgment for the king in the great case of Bate, speaking as follows:
And first, for the person of the King, “omnis potestas a Deo, et non est potestas nisi pro bono.” To the King is committed the government of the realm and his people; and Bracton saith, that for his discharge of his office, God had given him power, the act of government, and the power to govern. The King’s power is double, ordinary and absolute, and they have several lawes and ends. That of the ordinary is for the profit of particular subjects, for the execution of civil justice, and the determining of meum; and this is exercised by equitie and justice in ordinary courts, and by the civilians is nominated jus privatum and with us, common law; and these laws cannot be changed, without parliament; and although that their form and course may be changed and interrupted, yet they can never be changed in substance. The absolute power of the King is not that which is converted or executed to private use, to the benefit of any particular person, but is only that which is applied to the general benefit of the people, and is salus populi; as the people is the body and the King the head; and this power is guided by the rules, which direct only at the common law, and is most properly named Pollicy and Government; and as the constitution of this body varieth with the same, so varieth this absolute law, according to the wisdome of the King, for the common good; and these being general rules and true as they are, all things done within these rules are lawful. The matter in question [levying an import duty on currants by mere royal proclamation without sanction of an Act of Parliament] is material matter of state, and ought to be ruled by the rules of pollicy; and if it be so, the King hath done well to execute his extraordinary power.2
Other instances of the same view might be given almost without number, and before 1627 we find it asserted at times even by the men who in later years were to be its most strenuous opponents. As late as 1621 Sir Edward Coke himself admitted that there was a prerogative “indisputable.”3 Sir Edward Crawley in the ship-money case contrasted this with the ordinary or “disputable” prerogative by calling it “regal” in distinction from “legal.”4 James I spoke of it as his “public prerogative,”or “mystery of state,” the arcanum imperii, “not fit for the tongue of any lawyer,” while he professed that in his “private prerogative” he was always willing to submit to the judgment of the courts.5 Hobbes had the same distinction in mind in his difference between “matter of polity” and matter of law.6
In the early seventeenth century it was usual to speak of this “public,” “extraordinary,” “regal,” “indisputable” prerogative as consisting of “reasons of state,” and several things seem evident in regard to it. First, it was nothing more nor less than the old familiar gubernaculum of Bracton; secondly, it seems to have been accepted almost as generally under James I as it had been in the Tudor period; thirdly, from the point of view of mere legal precedent, it was strictly constitutional; fourthly, men were becoming gradually but increasingly conscious of the deadly threat to their inherited liberties that it involved. Time will not serve to give more than a few of the many illustrations of these facts. For others I can only refer to almost any page of the state trials dealing with the great constitutional issues of the age—such as Bate’s Case in 1606,7 the Case of the Post-Nati in 1608,8 the Five Knights’ Case in 1627,9 and the Ship-Money Case in 163710 —or to their repercussions in parliament, as disclosed in the debates reported in the Parliamentary History. Thus Bacon said in 1606: “The King’s acts that grieve the subject are either against law, and so void; or according to strictness of law, and yet grievous.”11
In 1627 Sir Robert Heath, the attorney general, declared:
The King cannot command your lordship, or any other court of justice, to proceed otherwise than according to the laws of this Kingdom. . . . But, my lord, there is a great difference between those legal commands, and that absoluta potestas that a sovereign hath, by which a king commands.12
We are too wise, nay we are too foolish, in understanding to examine matters of state, to which we are not born. . . . Shall any say, The King cannot do this? No, we may only say, He will not do this.13
It is a dangerous thing for men in matters of weight to avouch precedents with confidence, when they make nothing for them.14
The truth is that legal precedents in matters of government were in the King’s favor and justified the attorney general’s interpretation of the constitution, “according to strictness of law; and yet grievous,” as Bacon had said. There was no remedy in existing law, but there were serious grievances crying to be remedied.
As Sir Benjamin Rudyard later said in Parliament, “This by the way I will say of Reason of State, that, in the latitude by which it is used, it hath eaten out almost, not only the laws, but all the religion of Christendom.”15 “This is the crisis of parliaments; we shall know by this if parliaments live or die.”16 “King’s Prerogatives, are rather beside the law, than against it.”17 As another member put it, to admit reason of state in a particular case would “open a gap, through which Magna Charta, and the rest of the statutes, may issue out and vanish.”18 Or, as yet another declared, “By this we shall acknowledge a regal, as well as a legal power: Let us give that to the King, that the law gives him, and no more.”19 “I understand not matters of state,” Selden said.20 “Our laws are not acquainted with sovereign power,” said Sir Thomas Wentworth.21 And Sir Edward Coke said: “I know that prerogative is part of the law, but ‘sovereign power’ is no parliamentary word. . . . Magna Charta is such a fellow, that he will have no sovereign.”22 “If this be law, what do we talk of our Liberties?” asked Sir Robert Phillips. “Why do we trouble ourselves with the dispute of Law, Franchises, Propriety of Goods?”23
It was strictly true, as Wentworth said, that English law was “not acquainted with sovereign power”; yet it was also true that the English constitution included such a sovereign power. The arguments of the friends and those of the opponents of a potestas absoluta never met; they slid past each other. The opponents were certainly arguing against precedent when they denied the existence of such a power, but their instinct was not at fault when they felt that “at this little gap every man’s liberty may in time go out.”24 The very strictness of law was grievous, as Bacon had said. Here was a case that no legal judgment could remedy, for the law itself imposed no adequate check if the attorney general was right in his statement that none could say the King cannot do this; if he could only say the King will not do this.
The two conflicting points of view are well illustrated in two short statements: one by the chief justice in Darnell’s Case, the other by William Hakewill. Addressing counsel for one of the prisoners, the chief justice said, “The precedents are all against you every one of them, and what shall guide our judgments, since there is nothing alleged in this case but precedents?”25 But on the conclusions drawn from these precedents, as Hakewill said with equal truth, “I shall have an estate of inheritance for life, or for years in my land, or propriety in my goods, and I shall be a tenant at will for my liberty; I shall have propriety in my house, and not liberty in my person.”26 From such an impasse the only outcome and the only remedy was some measure of revolution.
It seems clear that the court could do nothing but decide on the specific precedents cited, and the later accusations of bias and corruption made indiscriminately against all the judges who held that view reflect more on the fairness of some modern historians than on the integrity of some of the justices of Charles I.27
On the other hand, no historian can deny the truth of Hakewill’s counterstatement. Whether right or wrong, the judgment of the courts had to be reversed by the nation, if not by the courts, or English liberty would have been lost entirely and possibly forever. In all these great constitutional cases the defenders of prerogative relied on good specific precedents, while their opponents were driven to argue from the true general principles of the ancient constitution; and both may well have acted in entire good faith. One side relied on the letter, the other on the spirit, of English monarchical institutions; and in the courts the letter naturally prevailed. But their arguments never met each other. There never was a genuine joinder of issue.
Half a century ago Mr. Hubert Hall declared that “for sixty years the gross errors and injustice of the accepted history of the Case of Impositions have passed without a single challenge.”28 It is true that the general condemnation of the judges, not only in Bate’s Case, but in every other great trial of the time involving the prerogative, has been undiscriminating, unfair, and pretty continuous. On the other hand, it seems an equal injustice to condemn men like Selden and Coke, who in the last analysis put liberty above law, even at the risk of seeming to be revolutionists.
The constitutional struggle of the seventeenth century was not as simple as the histories would sometimes make it. It was no clear-cut issue between despotism and freedom. Sir Robert Heath, because he upheld the King’s impositions, was no mere absolutist; nor were his opponents antimonarchists or enemies of settled and orderly government.29 The key to this difficulty remains the old distinction between jurisdictio and gubernaculum that we have met with before, and it is a key that has been too sparingly used. The fact is that England was almost ripe for revolution, but no one dared as yet to avow it. Men on the one side looked to the ancient legal rights endangered by a king who could invade them with impunity; men on the other resisted every tendency to impose on a king checks which had never been imposed before. The first were relying exclusively on the precedents of the ancient jurisdictio; the second with equal justice could cite innumerable instances of royal acts of government beyond or even against the common law.
The statement that I quoted earlier from Sir Walter Raleigh was more prophetic than he knew:
If the House press the King to grant unto them all that is theirs by the Law, they cannot, in Justice, refuse the King all that is his by the Law. And where will be the Issue of such a Contention? I dare not divine, but sure I am, that it will tend to a Prejudice both of the King and Subject.
This was a deadlock of two constitutional views that had at length become irreconcilable. Economic, social, and intellectual developments had made inevitable a struggle between these two elements of the traditional constitution. The Stuart kings did not bring it about; but, to the discredit of those kings without a single exception, it must be said that the struggle was hastened and its bloody accompaniment augmented by a royal stupidity, arrogance, shiftiness, and stubbornness that have few parallels in history. Hallam’s judgment, however, though in some ways warranted, seems less than fair, when he says generally that “The courts of justice. . . did not consist of men conscientiously impartial between the king and the subject; some corrupt with hope of promotion, many more fearful of removal, or awe-struck by the frowns of power.”30 And it seems less than discriminating when he says in particular that Heath’s argument in Bate’s Case trampled upon “all statute and precedent.”31 It is unfortunately this kind of one-sided interpretation, both parliamentary and royalist, that has marked much of the treatment of this fascinating and critical phase in the development of our constitutional ideas and institutions. In it all there is no period more important than that of the early Stuart kings of England, and none more in need of a discriminating reconstruction—and a reconstruction, I may add, which will take proper account of earlier precedent as well as contemporary conditions. In that precedent I believe the persistence of our old familiar jurisdictio and gubernaculum will be found to be of paramount importance.
In what has just been said the subject logically next in order of treatment has already been roughly indicated—the reversal, by the representatives of the people of England in parliament, of the constitutional doctrines contained in the judgments of the English courts, the reinforcement of the subject’s rights by the addition for the first time of a legal and a political control over government sufficient to protect these rights from royal encroachment. If, as I have maintained, the previous judgments of the courts were sound, the imposition of this new and unprecedented control over the ancient potestas absoluta involved nothing less than a revolution in English political institutions and ideas.
When Sir Edward Coke in the parliament of 1621 said, “We are here for thousands and ten thousands,” he was unwittingly uttering a threat to the existing English constitution. It is unnecessary here to recount the dramatic events between 1621 and 1689 by which the threat became an actuality; they are in every English history. It is perhaps more important to consider the exact nature of the constitutional changes that these events brought about. The chief of these changes was the ultimate making of the king responsible in government as well as in jurisdiction, and responsible not merely to God, as had been held before, but to the law and to the people. The king remained legibus solutus as before, but this was now narrowly construed to mean merely that the royal person was outside the coercive force of law. It no longer meant, as it had meant in the Tudor period, that his official acts were beyond the legal scrutiny of the courts or removed from the political control of the people’s representatives in parliament. On its strictly legal side this great change is probably best to be seen in the new meaning of the old maxim, “The King can do no wrong.”
Let us recall how Stephen Gardiner had justified his official conduct to the Protector Somerset in 1547. He said then that a royal order to a minister enjoining an act of government in violation of a statute was but a doubtful protection for that minister in case of a later prosecution, and he cited the case of his old master, Cardinal Wolsey. What he said was true enough, but it was never true in the Tudor period unless the king withdrew his protection from his minister. The king could and did prevent actions brought against his ministers whenever he pleased, and Henry VIII’s desertion of Wolsey when that minister was accused of a breach of the Statute of Praemunire committed at the king’s own command is one of the most despicable of the many despicable acts of that tyrant.
By 1689 this was all changed, or was rapidly changing. The reaction after the execution of Charles I had proved the necessity of exempting the king personally from criminal responsibility. In that sense the king could still “do no wrong,” he was legibus solutus. But the old maxim had gradually acquired an additional meaning: not so much that the king could not break the law as that no breach of the law could be considered an act of the king. A particular royal wrong was not legal, because no wrong could be regal; the absolute “perfection” of the king must be assumed. Or, as Andrew Amos puts it, “No mismanagement in government is imputable personally to the Sovereign, whilst, nevertheless, no wrong can be done to the people without a remedy. Whence it follows, as a corollary, that all acts of State must be performed by responsible Ministers.”32 As Amos shows, the reign of Charles II was an important period in this new development, though the later principle was not as yet firmly and finally fixed.
This fact makes all the more interesting some constitutional statements of Sir Matthew Hale, remarkable for the time, which have received less attention than their importance deserves. In two essays, Reflections on Mr. Hobbs His Dialogue of the Lawe33 and De Prerogativa Regis,34 the author makes a classification of authority which, so far as my knowledge goes, is original with him. Since the Middle Ages the power of government had been distinguished as a potestas coerciva and a potestas directiva. Hale adopts these two, but adds a third, which, so far as I know, was entirely new—a potestas irritans actus contrarios, a power of rendering null and void acts contrary to law. “And therefore,” he says,
though the King, in case of such acts done contrary to the directive power of the law, is not subject to the coercive power of the law in respect of the sacredness and sublimity of his person, the instruments and ministers that are the immediate actors of such unlawful things are subject to the coercive power of the law, for the Kings act in such cases being void doth not justify or defend the instruments. This is one of the principal reasons of the maxim in law, that the King can do no wrong, for if it be wrong and contrary to the law, it is not the act of the King but of the minister or instrument that puts it in execution and consequently such minister is liable to the coercion of the law and to make satisfaction.35
If my reading of the Tudor constitution is accurate, no such statement as this would have been true to fact in 1603 or before, and possibly not even as late as 1643. This is a new responsibility of the king for government, and not for mere jurisdictio. It really extends the old jurisdictio over the whole field of the gubernaculum. This marks a true revolution. But it was not enough. The new responsibility is only a responsibility to the law, enforceable legally by the courts against the ministers of the crown. The effectiveness of this as a practical sanction for individual right was therefore doubtful until the tenure of judges was made independent of the king by the Act of Settlement in 1701. And even this was ultimately not enough. The process of reinforcement and guarantee of individual right against governmental will was not complete until to this negative legal potestas irritans there was added a positive political control of government exercisable by the representatives of the people in parliament; until legal responsibility was supplemented by political responsibility; until the people could dismiss a minister merely because they disapproved of his policies, without waiting for an actual breach of law or inventing one, as they did in Strafford’s case. To recount in detail the growth of the last of these new political principles, the model for almost all modern European constitutional developments before 1914, would be to retell practically the whole constitutional history of England since the Revolution of 1689. In the space allotted to this subject, I can do no more than give a few instances to illustrate some early stages in the emergence of this modern popular political control of government out of the powers formerly conceded to the king alone.
As we have seen, the English king was in fact the “supreme governor” long before he obtained the official title, and this involved unchecked exercise of a power always claimed by English sovereigns before 1640 and rarely denied even by English subjects before 1603—a power “innate in the person of an absolute King, and in the persons of the Kings of England,” as Sir John Banks said in the Case of Ship Money,36 “the majestical right, and power of a free monarch.”37 The concrete powers of the king included under this “majestical right” were thus enumerated by Justice Crawley in 1637: “to give laws to his subjects,” to make peace and war, to create supreme magistrates, “that the last appeal be to the King,” to pardon offences, to coin money, “to have allegiance, fealty, and homage,” and “to impose taxes without common consent in parliament.”38 The list given after the Restoration by Sir Matthew Hale is substantially the same with the very significant omission of the right to impose taxes without consent of parliament, and the addition of “the power of the Militia of this Kingdome,” which had been the immediate issue in the first civil war.39 Before the judgment in the case of Darcy v. Allen in 160340 concerning patents of monopoly, these also, along with all other kinds of royal patent, would no doubt have been comprised in any enumeration of the specific powers of the “absolute king.”
Some of these powers were conceded to the king even by the most extreme of his opponents. The power to tax they never admitted, of course, and rightly; the power over the militia they never questioned until 1642; patents of monopoly they had resisted since Elizabeth’s reign, but the first statutory action against such patents was in 1624. No limitations of royal control over judicature were imposed by law till after the Revolution. Political control of foreign relations might be said to have begun at the parliament of 1621, which was the first parliament to venture even to discuss this subject; but legal limitation was never attempted. In the Ship-Money Case Sir George Vernon, one of the justices, declared that “a statute derogatory from the prerogative doth not bind the King.”41 Yet, more than a dozen years before, the Statute of Monopolies had certainly derogated from the prerogative, and in a startling way, not only by declaring actual or future monopolies with some exceptions to be void, but by expressly including proclamations or inhibitions connected with them, and by providing that all disputed matters concerning monopolies must be examined “according to the common laws of this realm, and not otherwise.”42 This, so far as I know, is the first statutory invasion of the royal prerogative. Not many others followed it, because with the Revolution of 1689 the king himself came to owe his title to parliament, and parliament’s complete political control of administration made further legal limitation of it unnecessary.
From this long and necessarily hurried survey I do not feel qualified to deduce any strict definition of constitutionalism, but perhaps I may be warranted in making a few general observations of a more modest character. The opening words of Bodin’s book On the Republic have always seemed to me in many ways the most significant thing in that great work. He defines a republic as “a government”—a very different thing from what Aristotle meant when he used practically the same words. Some will differ from my opinion as to what he means when he says this must be “un droit gouvernement,” and as to whether the limitations contained in that word droit can be considered permissible in any logical theory of sovereignty. But I think everyone must be impressed by any definition made in 1576 which completely identifies the state with the government. That identification is a formulation, in terms of a general theory, of the political conditions which had actually come to prevail in almost every unitary state of Europe. Everywhere the emphasis was placed on the need of strong and efficient national rule. The memory of the recent power and excesses of a multitude of “overgrown lords,” and the threat of disintegration occasioned by radical differences in religion, led both to an acquiescence in such a concentration of political power in the government as the Middle Ages had never known and to an emphasis upon that government’s rights, rather than its duties, which would, I think, have been considered excessive a century or two earlier.
Constitutional history is usually the record of a series of oscillations. At one time private right is the chief concern of the citizens; at another the prevention of disorder that threatens to become anarchy. In general, the sixteenth century is marked by the latter of these two characteristics. In England, at least, the seventeenth marks a swing toward the opposite extreme, and the eighteenth, apparently, a swing backward toward a potestas absoluta, but now, as never before, a power vested in the national assembly instead of the king. These changes may be marked in the mutual relations of jurisdictio and gubernaculum. When the rights of government are unduly stressed, the rights of individuals are often threatened; when the latter are overemphasized, government becomes too weak to keep order. A citizen has been defined as “a bearer of rights and duties”; a government might well be described in much the same terms. In the Middle Ages, when that government was always in the hands of a monarch, the duties were probably best indicated by the terms of the old coronation oath. The secular part of that oath enjoined upon the king the two duties of maintaining justice and keeping order, and a later provision added the upholding of “the laws which the mass of the people have chosen.” I think, therefore, that I was justified in saying earlier that men like Selden and Hakewill, and their fellows of the parliamentary party, by opposing the pretensions of the Stuarts, were appealing to the true spirit of the constitution even though the letter was against them.
The constitution was held to be a thing of balanced power and right, and the modern theory of sovereignty is the result of a belated recognition of the truth that in fact the perfect balance can never be long maintained. Wentworth in 1628 spoke of the “sweet harmony” of the constitution which he then thought the king was imperiling. In 1641 as earl of Strafford he reasserted on his trial his fear of any threat to this balance, but he now believed that the great enemy was not the king but the parliament. The power that now seemed to him to threaten the ancient balanced constitution was the menace of the illegal pretensions of the two houses against the crown. Though he had changed sides, he had not given up his belief in the “sweet harmony” of the ancient English frame of government. Hobbes, on the contrary, already saw that these men who dreamt of a balance of power in the state were pursuing an ideal, possible perhaps as a doctrine of abstract law, but never practicable for long as a matter of actual politics; and it was always with actual politics, and not with law, that Hobbes was concerned. The English struggle, as he was one of the first clearly to see, could never be ended except by the complete supremacy of one or the other of the contending parties. All this he later put in striking form, in his Behemoth, or history of the civil wars.
As a result of the English Revolution and the Revolution settlement, the representative parliament finally assumed, and for the first time, both the duties and many of the rights of the English king, and there remained as before the question of the proper relation of these to each other. It is true that no practical limits can ever be put to the political power of the people, not even those that in the end had proved insufficient to curb the king. As Sir Roger Twysden said in the seventeenth century, “The world, now above 5,500 years old, hath found means to limit kings, but never yet any republique.”43 And yet the people may restrain themselves. In their case, no less than in that of the monarch, it is “a worthy voice of reigning majesty to profess to rule according to law.” Sometimes they have restrained themselves, sometimes not; and in their rule we may observe somewhat the same oscillations as marked that of the kings in an earlier period. During much of the nineteenth century there was a tendency to narrow the sphere of government and overemphasize the rights of the citizen. The duties of the ruling organ were forgotten in the desire to protect the individual in some at least of his rights. This often led to a callous disregard of those who had few inherited rights to be protected. The policy of laissez faire became little more than a maintenance of the status quo, and that meant the retention of traditional abuses as well as traditional rights. In fact, many of those individual rights had become nothing less than crying abuses.
Then the pendulum swung in the opposite direction. Professor Dicey, in his brilliant lectures on Law and Opinion in England, has traced the development toward collectivism which resulted. The state veered toward regimentation instead of the policy of hands-off. Huxley has described the process in a remarkable paper. The utilitarian individualists receded into the background; Herbert Spencer and his Man Versus the State were discarded. Here in the United States we have passed through all these phases, which, under modern conditions, change sometimes with great rapidity; and there are some indications that at this moment we may be passing out of a phase of regimentation into a returning period of laissez faire, and that the reaction may be extreme.
This is bringing up and will in future bring up fundamental political questions that we shall all have to meet. The earlier history of the growth of our constitutionalism can, of course, furnish no definite or conclusive answer to many of these questions, because the conditions under which they exist now are in so many ways different from those which surrounded their growth in past ages. Nevertheless, I do believe that careful unbiased study of this past growth is not without its practical value in helping us to analyze our own pressing problems, if not to answer them.
I may seem to strain a point if I say that in my opinion our ancient distinction between jurisdictio and gubernaculum may still be a valuable help in making this analysis of our present-day problems. I venture to say, however, that we have with us still the jurisdictio and the “government,” and that the reconciliation of the two remains probably our most serious practical problem, just as it was in seventeenth-century England. I would go further, and add that there is the same necessity now, as in past ages, to preserve these two sides of political institutions intact, to maintain every institution instrumental in strengthening them both, and to guard against the overwhelming of one of them by the other.
There is a constant threat to all the rights of personality we hold dearest—such rights as freedom of thought and expression and immunity for accused persons, from arbitrary detention and from cruel and abusive treatment. These have always been endangered when “reasons of state” have been thought to require it. At times it seems to me that just now we are in special danger of forgetting these rights and these dangers. In some parts of the world apparently all such safeguards of individual right and personality have been thrown down entirely and no one is safe from prosecution ex officio mero, secret, arbitrary, and irresponsible. “Reasons of state” have been urged in the past for just such enormities, but probably never on such a scale as at this moment. Never in recorded history, I believe, has the individual been in greater danger from government than now, never has jurisdictio been in greater jeopardy from gubernaculum, and never has there been such need that we should clearly see this danger and guard against it. The beneficial results of the revolution which I have been trying to trace in the history of our own constitutionalism are as yet more apparent here than in some less fortunate parts of the world, but they cannot be maintained and preserved even here if we are not constantly on our guard. And surely an appreciation of what these things have meant in the past ought to give us a clearer apprehension of what they should mean now, and a knowledge of the kinds of danger that have threatened these rights in former times should be of some use in showing us where to look for present enemies of our welfare and how to oppose them when found.
If jurisdictio is essential to liberty, and jurisdictio is a thing of the law, it is the law that must be maintained against arbitrary will. And the one institution above all others essential to the preservation of the law has always been and still is an honest, able, learned, independent judiciary. The sad history of the Stuart attempts to corrupt and to intimidate their courts of law ought to be a lesson to all professed lovers of liberty who think we can get our needed social reforms and keep them safe without the assistance of courts free from governmental control. In this I hope I shall not be misunderstood. I am not defending indefensible decisions of our courts; I would not shield them from the severest criticism. Nor am I denying the need for much reform in the judicial process; it is far too slow and cumbersome. But the past history of these institutions does seem to show that, whether through ignorance or intention, some of the recent proposals and measures for the professed purpose of remedying these ills seem better designed to weaken these safeguards to liberty than to improve them. If it is through ignorance, then the history of the earlier relations between jurisdictio and government may be of some practical value.
But to insist thus on the indispensability of legal limits to governmental power and the safeguarding of these limits by an independent court is not to advocate the enfeebling of that government itself. Among all the modern fallacies that have obscured the true teachings of constitutional history, few are worse than the extreme doctrine of the separation of powers and the indiscriminate use of the phrase “checks and balances.” The doctrine of the separation of powers has no true application to judicial matters. Consideration of this important question should not be clouded and confused by including the independence of the judges, with which it has nothing to do. But the present confusion does not end with that. There is an equal lack of discrimination between the legal checks for which our history gives such strong support, and the political balances for which, so far as I can see, there is little historical background whatever, except the fancies of eighteenth-century doctrinaires and their followers. Political balances have no institutional background whatever except in the imaginations of closet philosophers like Montesquieu. When in modern times representative assemblies took over the rights and duties of earlier kings, they assumed a power and a responsibility that had always been concentrated and undivided. There is no medieval doctrine of the separation of powers, though there is a very definite doctrine of limitation of powers.
Some modern conservatives can see no practical difference between limitation and separation today, and I must confess that many historians have not seen any difference between them in earlier times. The gist of nearly all that has been said here thus far is to show that such difference has existed from the Middle Ages to the present. I am now concerned with showing that it ought still to be maintained. The limiting of government is not the weakening of it. The maxim that the king can do no wrong is a legal, not a political, maxim. The true safeguards of liberty against arbitrary government are the ancient legal limitation and the modern political responsibility. But this responsibility, which in modern times has become fully as important for our welfare as the ancient legal limits, is, I think, utterly incompatible with any extended system of checks and balances.
In Rome, where checks and balances might be said to have had their origin, they marked the antagonism of class against class. The plebeian tribune could block any action of the patrician consul. The expedient itself is just about as healthful a procedure in a modern state as the class division out of which it originally arose and through which it persists. What we need, in addition to the negative legal limitation of the sphere of government already mentioned, is the full political responsibility to the people and to the whole people for all positive acts of government within its proper sphere. But without adequate power there can be no such responsibility, and if the power is not concentrated and obvious to all, there can be neither the fixing nor the enforcement of this responsibility. The one thing in our political machinery which, more than any other, has fostered the growth of “pressure groups,” with all their attendant corruption, is the inability to fix responsibility. This has led to “log-rolling” and every other form of crooked politics; for under any system of balances run wild the result is sure to be government for private interests or groups instead of government for the whole people. Our government has become to an alarming extent a mere process of “passing the buck,” and that means shifting the responsibility for acts which could not be defended for one moment if responsibility for them could ever be fixed.
For this dissipation of governmental power with its consequent irresponsibility I can find no good precedents in the constitutional history of the past. The system has worked disaster ever since it was adopted, and it is not the outcome of earlier political experience. Unlike the legal limitations in our bills of rights, it is not the matured result of centuries of trial and error. It is a figment of the imagination of eighteenth-century doctrinaires who found it in our earlier history only because they were ignorant of the true nature of that history. These political balances were unknown before the eighteenth century, were almost untried before the nineteenth, and have been disastrous wherever they have been tried since. Unlike our legal safeguards, they formed no part of our constitutional inheritance from the past, and my fear is that, if they develop much further, a reaction will surely set in as it has in Europe; and this, once started, may sweep before it every protection of any sort, legal as well as political, to leave the individual naked and unprotected against the ever-present danger of arbitrary government.
In parts of Europe, it will be noted, the incompetence of constitutional governments led to their replacement by despotisms. In Italy, if the weakness and corruption of parliamentary institutions had not first made them contemptible, Fascism would hardly have taken their place. Feebleness is no guarantee of constitutionalism; it has usually been the chief cause of its overthrow. Reactionaries have always proved to be the deadliest of all the enemies of a true conservatism. The proper remedy for the abuse of “reasons of state” has never consisted and does not now consist in making the government incompetent. Our past constitutional history seems to show that it consists of a jurisdictio under the protection of an independent court, coupled with a gubernaculum strong enough to perform all its essential duties and obvious enough to ensure full responsibility to all the people for the faithfulness of that performance.
The practical inferences I have ventured to draw from our constitutional history may to many seem too conservative, but I hope they will not seem reactionary. If reaction is really to be avoided, we must preserve our legal guarantees. We must keep them intact, but we dare not stop there. There is corruption which feebleness in government makes possible, and this can only be ended by making government, within its legal limits, actually stronger than it is. This strength, however, is itself a danger if it is not completely responsible to the people, and to all the people, and at all times.
If the history of our constitutional past teaches anything, it seems to indicate that the mutual suspicions of reformers and constitutionalists, of which I see dangerous symptoms in the United States today, must be ended if we are to keep and enlarge the liberties for which our ancestors fought. Liberals must become more constitutional than some of them are, constitutionalists must become more liberal than most of them have been. We cannot get the needed redress of injustices and abuses without reform, and we can never make these reforms lasting and effective unless we reduce them to the orderly processes of law. Let us not confuse jurisdictio and gubernaculum, and let us not allow either to swallow up the other.
I am not so rash as to try to apply the general principles guiding our past constitutional history to the details of our present constitutional arrangements in the United States; for that I am not competent. But I do believe that these general principles, if they are properly deducible thus from the past experience of our race, ought to have their due weight in determining our attitude toward our present specific problems. We live under a written constitution which classifies some things under jurisdictio, as legal fundamentals, and thus puts them under the protection of the courts, while it leaves other matters to the free discretion of the organs of positive government it has created. The distribution of these matters between jurisdictio and gubernaculum, made so many years ago, is of course in constant need of revision by interpretation or by amendment; and it may also be that the mode of that amendment is somewhat too slow and cumbersome for the best interests of all. But the surest safeguard of a proper balance between the jurisdictio and the gubernaculum—and that even in a government of the people as well as for them—would seem to consist in some such constitution containing some such distribution. There is the problem of restriction and the problem of responsibility, and practical politics involves their interrelation. One of them is legal, and it is far the older; the other is political and in its present form it is much more recent. The people have now replaced the king in these political matters of government; but even in a popular state, such as we trust ours is, the problem of law versus will remains the most important of all practical problems. We must leave open the possibility of an appeal from the people drunk to the people sober, if individual and minority rights are to be protected in the periods of excitement and hysteria from which we unfortunately are not immune. The long and fascinating story of the balancing of jurisdictio and gubernaculum, of which I could give only the barest outline here, should be, if we could study it with an open mind, of some help in adjusting and maintaining today the delicate balance of will and law, the central practical problem of politics now as it has been in all past ages. The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of government to the governed.
[1. ] Report of Barbaro in Calendar of State Papers Venetian, V, p. 341.
[2. ] Howell’s State Trials, II, 389. This distinction between the two kinds of power exercised by the king was indicated clearly by Alberico Gentile: “Atque absoluta potestas est plenitudo potestatis. Est arbitrio plenitudo, nulli vel necessitati, vel iuris publici regulis subiecta, quod ex Baldo acceptum dicunt alii. est potestas extraordinaria, et libera. est illa, quam in Anglia significamus nomine regiae Praerogativae. Atque sic interpretes iuris communiter scribunt, esse in principe potestatem duplicem, ordinariam adstrictam legibus, et absolutam definiunt, secundum quam potest ille tollere ius alienum, etiam magnum, etiam sine caussa” (Alberici Gentilis J. C. Professoris Regii, Regales Disputationes Tres: id est, De potestate Regis absoluta, Londini, 1605, pp. 10–11). The late Sir William Holdsworth considered such a characterization of the English king as “an absolute ruler” a proof of Bodin’s inaccuracy (A History of English Law, vol. IV, p. 194). If this is an inaccuracy, however, it is one that Bodin shared with most of the jurists and practically all of the statesmen in England in his time. Thus, for example, Richard Bancroft speaks of “the freest and most absolute monarchies” (Daungerous Positions and Proceedings, 1593, book I, chap. 6); Sir Walter Raleigh, in the preface to his History of the World, says that Philip II “attempted to make himself not only an absolute monarch, like unto the Kings of England and France, but Turk like, to tread under his feet all their natural and fundamental laws, privileges, and ancient rights”; and even Sir Edward Coke proved to his own entire satisfaction “that the Kingdom of England is an absolute monarchy, and that the King is the only supreme governor as well over ecclesiastical persons, and in ecclesiastical causes, as temporal within this realm” (5th Reports, xii). Likewise, in his instructions to the grand jury for the trial of the regicides in 1660, Sir Orlando Bridgeman, Chief Baron of the Exchequer, asserted that “this is an absolute monarchy.” But, he added, “It is one thing to have an absolute monarchy, another thing to have that government absolutely without laws” (State Trials, V, 991–92). Other instances are not infrequent in the interval. As Locke said, “Even absolute power, when it is necessary, is not arbitrary by being absolute” (Two Treatises of Government, book II, chap. xi). Bodin’s use of the word “absolute” in referring to the English monarchy seems to be fully warranted by contemporary usage in England itself, but his interpretation of this, derived as he says from the Civilian, Dr. Valentine Dale, then English ambassador to France, is, I admit, rather extreme for that time on the side of the prerogative (Les six livres de la République, Paris, 1577, p. 102). For Bodin, however, “absolute” does not imply the entire absence of legal limitations, and his theory, though exceptional, is not unique; for Dale was not the only English Civilian who held the same. In fact, a few English royalists of the time—and not all of them Civilians—went considerably beyond Bodin, in holding that the king had authority to take subsidies without consent. After 1642 there were more of these in England, after 1649 probably many more.
[3. ] “There is a Prerogative disputable and a Prerogative indisputable, as to make warre and Peace; the other concerns meum et tuum and are bounded by Lawe” (Pym’s Diary, Commons Debates, 1621, ed. Notestein, Relf, and Simpson, IV, p. 79).
[4. ] Howell’s State Trials, III, 1083.
[5. ] Speech in the Star Chamber, 1616, The Political Works of James I, p. 333.
[6. ]A Dialogue of the Common Law, The English Works of Thomas Hobbes, ed. Molesworth, VI, p. 12.
[7. ]State Trials, II, 371.
[8. ] Ibid., p. 559.
[9. ] Ibid., III, 1. The speeches of Digges, Littleton, Selden, and Coke concerning this case, delivered before a committee of the Lords and Commons in 1628, were published in London in 1642.
[10. ]State Trials, III, 825.
[11. ] Ibid., II, 396.
[12. ] Ibid., III, 36–37.
[13. ] Ibid., p. 45.
[14. ] Ibid., p. 46.
[15. ]State Trials, III, 174.
[16. ] Ibid., p. 62.
[17. ] Ibid., p. 173.
[18. ] Ibid., p. 185.
[19. ] Ibid., p. 193.
[20. ] Ibid., p. 79.
[21. ] Ibid., p. 194.
[22. ] Ibid., pp. 193–94.
[23. ] Ibid., p. 66.
[24. ] As put by Selden (State Trials, III, 170).
[25. ] Ibid., p. 57.
[26. ] Ibid., p. 78.
[27. ] For the violent language of Edward Hyde, afterwards earl of Clarendon, against these judges, used in the first session of the Long Parliament in 1640, see ibid., p. 1282.
[28. ]A History of the Custom-Revenue in England (1892), I, p. 17.
[29. ] Even so late and so extreme an upholder of royal authority, divine right, and passive obedience as Sir George MacKenzie acknowledged that private property was ordinarily outside the scope of the king’s lawful authority: “For it is fit to know, that Government is the Kings, and Property is the Subjects Birth-right. Monarchy is a Government, and so can include no more than what is necessary for Government. And though the Turk or Mogol, arrogate to themselves, the total property of their Subjects, in this they are Tyrants, and not Kings. And when our Statute above-mentioned, says, That our Kings have as much power as they, this is only to be understood of what Right they have by the Nature of Monarchy, Rex nomen est jurisdictionis non dominii, say the Lawyers” (Jus Regium [London, 1684], pp. 50–51). He holds that “our Parliaments are not co-ordinate with our Kings, in the Legislative Power; but that the Legislative and Architectonick Power of making Laws (as lawyers term it) does solely reside in the King, the Estates of Parliament only consenting” (p. 67). And yet he has to admit that “what is once ours, cannot be taken away without consent” (p. 51). This is in practice almost precisely the position of Bodin and of other great French jurists of his time. By the seventeenth century, however, most of them had come to agree with the more absolutistic view of Le Bret when he recognized a right in the French Kings, undeniable even if only prescriptive, “d’user absolument de leur authorité, et de leuer sur leurs peuples des Tailles et des subsides; mesmes sans leur consentment” (De la souveraineté du Roy, par messire Car. Le Bret, Conseiller ordinaire de sa majesté en ses Conseils d’Estat & Prive [Paris, 1632], p. 396). Nothing could better illustrate the growing fundamental difference between the modern development of constitutional principles in France and in England; the great practical importance of “the power of the purse” in accounting for that difference; or the significance of the persistence in England of the definition of the rights to private property in a Common law determinable by judges or the High Court of Parliament only, and not by the King apart from the estates, which made “the power of the purse” ultimately an effective means of securing and maintaining constitutional limitations upon the exercise of arbitrary government in any fields whatsoever. The power to tax involves the power to destroy, and often to destroy—or to control—much more than the thing directly taxed.
[30. ]The Constitutional History of England (New York, 1897), I, p. 314.
[31. ] Ibid., I, p. 378.
[32. ] Andrew Amos, The English Constitution in the Reign of King Charles the Second (1857), p. 11.
[33. ] Printed for the first time in 1924. See Holdsworth, History of English Law, V, app. III.
[34. ] Hargrave MSS, no. 94, f. 14 (British Museum).
[35. ]Op. cit. In his Reflections on Hobbes’s Dialogue, Hale deals with the potestas irritans more briefly but to the same effect: “3 Potestas Irritans, and thus the Laws also in many cases bindes ye Kinges Acts, and make them void if they are agt Lawe” (Holdsworth, History of English Law, V, III, p. 508).
[36. ]State Trials, III, 1017.
[37. ] Sir Robert Berkley in the Ship-Money Case (ibid., III, 1099).
[38. ]State Trials, III, 1083.
[39. ] Holdsworth, A History of English Law, V, p. 508.
[40. ] Coke’s Reports, XI, p. 84.
[41. ]State Trials, III, 1125.
[42. ] 21 & 22 Jac. I, cap. 3.
[43. ]Certayne Considerations upon the Government of England (Camden Society), p. 10.