University of California at Berkeley School of law The Mixed Constitution and the Common Law by david Lieberman UC Berkeley School of Law Working Paper NO. 9y2 Public Law and Legal The A revised version of this working paper is forthcoming in Mark Goldie and Robert Wokler(eds ) The Cambridge History of Eightee enth-Century Political Thought, Cambridge University Press) UC Berkeley public law and Legal Theory Working Paper Series UC Berkeley School of Law, Boalt Hall, Berkeley, CA 94720-7200 This paper can be downloaded without charge from the Social Science Research Network Paper Collection at http://papers.ssrn.com/paper.tafabstractid=184708
University of California at Berkeley School of Law The Mixed Constitution and the Common Law by David Lieberman UC Berkeley School of Law Public Law and Legal Theory Working Paper No. 99-4 September 1999 A revised version of this working paper is forthcoming in Mark Goldie and Robert Wokler (eds.), The Cambridge History of Eighteenth-Century Political Thought, (Cambridge University Press) UC Berkeley Public Law and Legal Theory Working Paper Series UC Berkeley School of Law, Boalt Hall, Berkeley, CA 94720-7200 This paper can be downloaded without charge from the Social Science Research Network Paper Collection at http://papers.ssrn.com/paper.taf?abstract_id=184708
The Mixed Constitution and the common law David Lieberman [forthcoming in The Cambridge History of Eighteenth-Century Political Though eds. Mark Goldie and Robert Wokler( Cambridge University Press) Accounts of Englands constitutional system, even in the more systematic treatments of the middle decades of the eighteenth century, followed the common early modern pattern in which political theory often comprised an uneven amalgam of classical axims of government, narrow partisan polemics, antiquarian learning, historical researche and technical legal doctrine. None the less, the constitution of England,, so constructed enjoyed an extensive influence on liberal political philosophy and western statecraft well beyond its place of origins and the particular circumstances of its first articulation.The eye of curiosity seems now to be universally turned to this ' model of perfection, explained Jean Louis Delolme in the 1770s (Delolme 1834, p 1). And what was to be discovered in this model were the general principles of political freedom. Tis the Britannic Constitution that gives this kingdom a lustre above other nations, extolled Roger Acherley a half-century earlier, as it secures to Britons, their private property, freedom and liberty, by such walls of defense as are not to be found in any other parts of the universe'( Acherley 1727, p vi) The organizing principle for much of the eighteenth-century celebration of the English constitution was the commonplace idea that structures of government could preserve political freedom only where they frustrated the abuse of political power. To the extent that the English enjoyed unique levels of political freedom, this was the result of a constitutional order which so effectively prevented arbitrary or tyrannical acts of power. The achievement of this kind of political system, in turn, depended on the existence and the co-ordination of several distinct kinds of institutions and governmental procedures. Theorists of the English
The Mixed Constitution and the Common Law David Lieberman [forthcoming in The Cambridge History of Eighteenth-Century Political Thought, eds. Mark Goldie and Robert Wokler (Cambridge University Press)] Accounts of England’s constitutional system1 , even in the more systematic treatments of the middle decades of the eighteenth century, followed the common earlymodern pattern in which political theory often comprised an uneven amalgam of classical maxims of government, narrow partisan polemics, antiquarian learning, historical researches and technical legal doctrine. None the less, ‘the constitution of England’, so constructed, enjoyed an extensive influence on liberal political philosophy and western statecraft well beyond its place of origins and the particular circumstances of its first articulation. ‘The eye of curiosity seems now to be universally turned’ to this ‘model of perfection’, explained Jean Louis Delolme in the 1770s (Delolme 1834, p.1). And what was to be discovered in this model were the general principles of political freedom. ‘‘Tis the Britannic Constitution that gives this kingdom a lustre above other nations’, extolled Roger Acherley a half-century earlier, ‘as it secures to Britons, their private property, freedom and liberty, by such walls of defense as are not to be found in any other parts of the universe’ (Acherley 1727, p.vi). The organizing principle for much of the eighteenth-century celebration of the English constitution was the commonplace idea that structures of government could preserve political freedom only where they frustrated the abuse of political power. To the extent that the English enjoyed unique levels of political freedom, this was the result of a constitutional order which so effectively prevented arbitrary or tyrannical acts of power. The achievement of this kind of political system, in turn, depended on the existence and the co-ordination of several distinct kinds of institutions and governmental procedures. Theorists of the English
Mixed Constituti constitution differed over which of these institutions contributed most critically to the maintenance of political freedom, and disagreed sharply over which political forces and developments posed the most toxic threats to libertys well-being. But there was a commor supposition, challenged by only a minority of theorists, that public liberty was served by nstitutional complexity. Like the other large, centralized states of eighteenth-century Europe, the English political system contained a dense patchwork of new and older legal and corporate structures, whose contemporary functions often differed significantly from those the institution first performed. The first task for eighteenth-century constitutional analysis was the correct identification of the nature of this complex political order The mixed constitution No characterization of Englands constitution was more pervasive than the claim that the kingdom comprised a mixed form of government, combining elements of rule by one, rule by the few, and rule by the many. The formula recalled the traditional meaning of constitution to refer to the basic composition or ordering of both political and natural bodies and, no less conventionally, it centered the states identity on the organization of its sovereign legislature. The 'British constitution,, William Blackstone explained in his renowned Commentaries on the Laws of England(1765-9), entrusted the ' legislature of the kingdom.. to three distinct powers: the king (a single person), the lords('an aristocratical assembly), and the commons (a kind of democracy), which by operating jointly escaped the inconveniences of either absolute monarchy, aristocracy, or democracy', while uniting so well and so happily'the benefits of each pure form(Blackstone 1979, 1, pp50-2). Most important, and thetrue excellence of this constitutional form, each component part
Mixed Constitution and Common Law (2) constitution differed over which of these institutions contributed most critically to the maintenance of political freedom, and disagreed sharply over which political forces and developments posed the most toxic threats to liberty’s well-being. But there was a common supposition, challenged by only a minority of theorists, that public liberty was served by institutional complexity. Like the other large, centralized states of eighteenth-century Europe, the English political system contained a dense patchwork of new and older legal and corporate structures, whose contemporary functions often differed significantly from those the institution first performed. The first task for eighteenth-century constitutional analysis was the correct identification of the nature of this complex political order. i. The Mixed Constitution No characterization of England’s constitution was more pervasive than the claim that the kingdom comprised a mixed form of government, combining elements of rule by one, rule by the few, and rule by the many. The formula recalled the traditional meaning of constitution to refer to the basic composition or ordering of both political and natural bodies; and, no less conventionally, it centered the state’s identity on the organization of its sovereign legislature. The ‘British constitution’, William Blackstone explained in his renowned Commentaries on the Laws of England (1765-9), entrusted the ‘legislature of the kingdom ... to three distinct powers’: the king (‘a single person’), the lords (‘an aristocratical assembly’), and the commons (‘a kind of democracy’); which by operating jointly escaped ‘the inconveniences of either absolute monarchy, aristocracy, or democracy’, while uniting ‘so well and so happily’ the benefits of each pure form (Blackstone 1979, I, pp.50-2). Most important, and the ‘true excellence’ of this constitutional form, each component part
Mixed Constitution and Common Law (3) provided a potential 'check to the abuse of power committed by any other component part, which in turn secured a political order best equipped to sustain public liberty Like three distinct powers in mechanics [king, lords and commons], jointly impel the machine of government in a direction different from what either acting by themselves, would have done, but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community. (Blackstone 1979, 1, p151) The theory of England's mixed government, centered on the tripartite legislature of King-in-Parliament, first attained prominence in the form of the 1642 statement published by Charles I as His Majesties Answer to the Nineteen Propositions(see Weston 1965, and Weston and Greenberg 1981). Eighteenth-century commentators continued to invoke this source, particularly in their efforts to clarify the limited or regulated character of monarchy in this constitutional system(Mackworth 1701, pp. 2, 9). And, as in the case of the Answer the Nineteen PropositionS, their favored presentation clearly echoed classical and renaissance motifs concerning the superiority and durability of the ' mixed political form. But in one crucial respect, they distinguished their accounts from earlier formulations. Formerly the appeal to England's mixed government competed with other, more absolutist accounts of English kingship, now it enjoyed constitutional orthodoxy. The constitution of England had been seen in two very different lights for almost a century before the revolution Bolingbroke observed in 1733, but now our constitution is no longer a mystery. ' 'It is by this mixture of monarchical, aristocratical and democratical power, blended together in one system, he explained, ' that our free constitution of government hath been preserved ( Bolingbroke 1844, Il, pp. 80, 119) The Glorious Revolution of 1688 was routinely credited, as by bolingbroke, with this definitive clarification and vindication of the political order. To invoke 1688 and the mixed constitution was thus to make plain the very different character of kingship in Britain from
Mixed Constitution and Common Law (3) provided a potential ‘check’ to the abuse of power committed by any other component part, which in turn secured a political order best equipped to sustain public liberty: Like three distinct powers in mechanics [king, lords and commons], jointly impel the machine of government in a direction different from what either, acting by themselves, would have done; but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community. (Blackstone 1979, I, p.151) The theory of England’s mixed government, centered on the tripartite legislature of King-in-Parliament, first attained prominence in the form of the 1642 statement published by Charles I as His Majesties Answer to the Nineteen Propositions (see Weston 1965, and Weston and Greenberg 1981). Eighteenth-century commentators continued to invoke this source, particularly in their efforts to clarify the ‘limited or regulated’ character of monarchy in this constitutional system (Mackworth 1701, pp.2,9). And, as in the case of the Answer to the Nineteen Propositions, their favored presentation clearly echoed classical and renaissance motifs concerning the superiority and durability of the ‘mixed’ political form. But in one crucial respect, they distinguished their accounts from earlier formulations. Formerly the appeal to England’s mixed government competed with other, more absolutist accounts of English kingship, now it enjoyed constitutional orthodoxy. ‘The constitution of England had been seen in two very different lights for almost a century before the revolution,’ Bolingbroke observed in 1733; but now ‘our constitution is no longer a mystery.’ ‘It is by this mixture of monarchical, aristocratical and democratical power, blended together in one system,’ he explained, ‘that our free constitution of government hath been preserved.’ (Bolingbroke 1844, II, pp.80,119). The Glorious Revolution of 1688 was routinely credited, as by Bolingbroke, with this definitive clarification and vindication of the political order. To invoke 1688 and the mixed constitution was thus to make plain the very different character of kingship in Britain from
Mixed Constitution and Common Law (4) the absolutist governments which oppressed the continental monarchies and, in earlier eras, threatened England's liberties. One measure of the security furnished by the Glorious Revolution was the near complacency mid- century commentators displayed in treating once fiercely-contested issues concerning the nature and authority of England's monarch and parliament(see Pocock 1987, and Weston 1991). Hume in the History of England acknowledged that it was once disputed. with great acrimony' whether the House Commons formed a constituent part of the original Parliament, but that the question by general consent had been settled against the claims of the Commons(Hume 1983, I, p. 467 Blackstone in the Commentaries noted the same controversy among our learned antiquarians, but dismissed its relevance to current political arrangements( Blackstone 1979 I, p 145). Soon after, he reassured that whatever doubts might be formerly raised by weak and scrupulous minds concerning the existence of an original contract between subjects and sovereign, such qualms ' must now entirely cease; especially with regard to every prince who has reigned since 1688(1, p. 226) Such appeals to the consensus and stability which followed in the wake of the glorious Revolution were, of course. a matter of tendentious exaggeration. Indeed the most robust claims for constitutional certainty appeared in precisely those settings- such as Bolingbroke's writing- where the legacy of 1688 underwent partisan dispute. The major enactments of the Revolution era- the 1689 Bill of rights and Act of Toleration the 1694 Triennial Act; the 1701 Act of Settlement-were all documents of political compromise and even purposeful ambiguity, which readily allowed for rival understandings of their constitutional meaning, novelty or conservatism. As a recent generation of historians has shown whatever the successes of the revolution settlement and the hanoverian succession this political achievement did not lead to the silencing or eradication of the antagonistic doctrines of non-resistance and hereditary kingship, Jacobite loyalism, royal supremacy or High Anglican ecclesiology(see Kenyon 1977, Gunn 1983, pp. 120-93, and Clark 1985)
Mixed Constitution and Common Law (4) the absolutist governments which oppressed the continental monarchies and, in earlier eras, threatened England’s liberties. One measure of the security furnished by the Glorious Revolution was the near complacency mid-century commentators displayed in treating once fiercely-contested issues concerning the nature and authority of England’s monarch and parliament (see Pocock 1987, and Weston 1991). Hume in the History of England acknowledged that it ‘was once disputed ... with great acrimony’ whether the House Commons formed a constituent part of the original Parliament, but that the question ‘by general consent’ had been settled against the claims of the Commons (Hume 1983, I, p.467). Blackstone in the Commentaries noted the same controversy ‘among our learned antiquarians,’ but dismissed its relevance to current political arrangements (Blackstone 1979, I, p.145). Soon after, he reassured that ‘whatever doubts might be formerly raised by weak and scrupulous minds’ concerning ‘the existence’ of an ‘original contract’ between subjects and sovereign, such qualms ‘must now entirely cease; especially with regard to every prince who has reigned since 1688’ (I, p.226). Such appeals to the consensus and stability which followed in the wake of the Glorious Revolution were, of course, a matter of tendentious exaggeration. Indeed, the most robust claims for constitutional certainty appeared in precisely those settings - such as Bolingbroke’s writing - where the legacy of 1688 underwent partisan dispute. The major enactments of the Revolution era - the 1689 Bill of Rights and Act of Toleration; the 1694 Triennial Act; the 1701 Act of Settlement - were all documents of political compromise and even purposeful ambiguity, which readily allowed for rival understandings of their constitutional meaning, novelty or conservatism. As a recent generation of historians has shown, whatever the successes of the Revolution settlement and the Hanoverian succession, this political achievement did not lead to the silencing or eradication of the antagonistic doctrines of non-resistance and hereditary kingship, Jacobite loyalism, royal supremacy or High Anglican ecclesiology (see Kenyon 1977, Gunn 1983, pp.120-93, and Clark 1985)