Mixed Constitution and Common Law Where, however, the legacy of 1688 seemed most emphatic was in its repudiation o the pretensions of Stuart absolutism, and the supporting doctrines of non-resistance and divine right kingship. The principal duty of the king, Blackstone explained,is to govern his people according to law(Blackstone 1979, 1, p 226). Accordingly, the revolution parliament had moved to regulate and restrain by statute just those practices of royal prerogative(such as the suspendinganddispensing'power)through which James Il violated the laws and liberties' of the kingdom, threatened the protestant religion, and undermined the constitutional order by governing without consent of parliament'(see Williams 1970, pp 26-7, and Blackstone 1979, IV,433-4). Whereas James II had sworn a coronation oath to keep"the ancient customs of the realm,, William and Mary swore more precisely to govern according to the statutes in parliament agreed on, and the laws and customs of the same(Williams 1970, P. 37). The continual struggle' of the first four Stuart reigns between the crown and the people' and between privilege and prerogative, Hume explained in the final chapter of his History, had been settled in favour of liberty. 'The powers of the royal prerogative were more narrowly circumscribed and more exactly defined, and the great precedent of deposing one king and establishing a new family . put the nature of the English constitution beyond all controversy'(Hume 1983, VI, pp 530-1) l1. Parliamentary sovereignty If the theory of the mixed constitution thus clarified the limited nature of monarchic power in England, it proved less decisive in settling the extent of parliaments own nstitutional capacity. Eighteenth-century statements of parliamentary authority often retained the traditional formulation of parliaments powers in terms of its historical responsibilities as legislature; High Court(Magna curia ); and place of counsel(Commune
Mixed Constitution and Common Law (5) Where, however, the legacy of 1688 seemed most emphatic was in its repudiation of the pretensions of Stuart absolutism, and the supporting doctrines of non-resistance and divine right kingship. ‘The principal duty of the king,’ Blackstone explained, ‘is to govern his people according to law’ (Blackstone 1979, I, p.226). Accordingly, the Revolution parliament had moved to regulate and restrain by statute just those practices of royal prerogative (such as the ‘suspending’ and ‘dispensing’ power) through which James II violated ‘the laws and liberties’ of the kingdom, threatened ‘the protestant religion’, and undermined the constitutional order by governing ‘without consent of parliament’ (see Williams 1970, pp.26-7, and Blackstone 1979, IV, 433-4). Whereas James II had sworn a coronation oath to keep ‘the ancient customs of the realm’, William and Mary swore more precisely to govern ‘according to the statutes in parliament agreed on, and the laws and customs of the same’ (Williams 1970, p.37). The ‘continual struggle’ of the first four Stuart reigns between ‘the crown and the people’ and between ‘privilege and prerogative,’ Hume explained in the final chapter of his History, had been settled ‘in favour of liberty.’ ‘The powers of the royal prerogative were more narrowly circumscribed and more exactly defined,’ and the ‘great precedent of deposing one king and establishing a new family … put the nature of the English constitution beyond all controversy’ (Hume 1983, VI, pp.530-1). ii. Parliamentary Sovereignty If the theory of the mixed constitution thus clarified the limited nature of monarchic power in England, it proved less decisive in settling the extent of parliament’s own institutional capacity. Eighteenth-century statements of parliamentary authority often retained the traditional formulation of parliament’s powers in terms of its historical responsibilities as legislature; High Court (Magna curia); and place of counsel (Commune
Mixed Constitution and Common Law (6) Cocilium Regni)(Atkyns 1734, pp 69-70). But in the routinization of parliamentary government in the decades following the Glorious Revolution, parliaments specific legislative function, including its annual enactments governing taxation and finance, came to dwarf its other roles(see Thomas 1971, pp. 45-88, and Langford 1991, pp. 139-206). And by this time it had become commonplace to analyze parliamentary power more abstractly in terms of a general theory of sovereignty(see Dickinson 1977, pp 121-42, and Lieberman 1989,pp.3l-4049-55) Blackstone, whose treatment in the Commentaries supplied the battle-ground for several important subsequent discussions, approached the topic through a brief summary of the nature of civil society and political obligation, drawn from the standard materials of natural jurisprudence. Political authority was created through a voluntary transfer of natural right; the aims of such political association were better to secure individual liberty and the collective good; and to achieve such purposes, every political society required a supreme irresistible, absolute, uncontrolled authority in which .. the rights of sovereignty reside (Blackstone 1979, 1, p. 49). The distinguishing mark of sovereign power'was'the making f laws'(I, p. 49), which power, in Britain, was exercised by the King-in-Parliament It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal civil,military,maritime,or criminal, this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. (I, p 156) This, moreover, was a not a claim of pure conceptual abstraction. Parliament had confirmed its sovereign power by regulating the succession to the throne'(as was done in the reign of Henry VIl and William I); by altering the established religion of the land'(as was done.. in the reigns of Henry VIll and his three children; and by changing even the constitution of the kingdom and of parliaments themselves'(as was done by the act of union
Mixed Constitution and Common Law (6) Cocilium Regni) (Atkyns 1734, pp.69-70). But in the routinization of parliamentary government in the decades following the Glorious Revolution, parliament’s specific legislative function, including its annual enactments governing taxation and finance, came to dwarf its other roles (see Thomas 1971, pp.45-88, and Langford 1991, pp.139-206). And by this time it had become commonplace to analyze parliamentary power more abstractly in terms of a general theory of sovereignty (see Dickinson 1977, pp.121-42, and Lieberman 1989, pp.31-40,49-55). Blackstone, whose treatment in the Commentaries supplied the battle-ground for several important subsequent discussions, approached the topic through a brief summary of the nature of civil society and political obligation, drawn from the standard materials of natural jurisprudence. Political authority was created through a voluntary transfer of natural right; the aims of such political association were better to secure individual liberty and the collective good; and to achieve such purposes, every political society required ‘a supreme, irresistible, absolute, uncontrolled authority in which … the rights of sovereignty reside’ (Blackstone 1979, I, p.49). The distinguishing mark of ‘sovereign power’ was ‘the making of laws’ (I, p.49), which power, in Britain, was exercised by the King-in-Parliament: It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal; this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. (I, p.156) This, moreover, was a not a claim of pure conceptual abstraction. Parliament had confirmed its sovereign power by regulating ‘the succession to the throne’ (‘as was done in the reign of Henry VII and William III’); by altering ‘the established religion of the land’ (‘as was done … in the reigns of Henry VIII and his three children’; and by changing ‘even the constitution of the kingdom and of parliaments themselves’ (‘as was done by the act of union
Mixed Constitution and Common Law and the several statutes for triennial and septennial elections). 'Some have not scrupled to call its power. the omnipotence of parliament, Blackstone reported(though he himself found thefigure rather too bold)(I, p 156) As the critics of this type of formulation argued at length, such legislative omnipotence seemed to threaten for very fabric of liberty the English constitution was celebrated to protect. The kingdom had simply defeated royal tyranny by enshrining parliamentary absolutism(see Gunn 1983, pp 7-42, and Hamburger 1994). In its most extreme articulations-as in the case mounted by Paine in the Rights of Man -the criticism led to the dramatic conclusion that England, in fact, had no constitution: ' merely a form of government without a constitution'(Paine 1974, p.331). A parliamentary supremacy which included the authority to revise the constitution itself entailed a reversal of a true system of constitutional government in which the constitution controlled the government, and the community itself controlled the constitution(pp. 278-80) Paines, no doubt, was a self-consciously iconoclastic assault of English political orthodoxies. But he navigated a much-traversed of eighteenth-century issue, which recalled and rehearsed the themes of earlier disputes concerning the nature and limits of political obligation. Notwithstanding the Commentaries's imposing itemization of past parliamentary enactments that altered the basic structures of church and state, there were many who felt that the bald claim of parliaments uncontrollable authority seriously distorted the nature of legislative power. One important line of speculation, dominated by jurists and university moralists, sought a more careful and discriminating treatment of the nature of sovereignty than that afforded by the blackstonean language of absolute despotic power. There was the need to distinguish sovereign power'and 'supreme power,, and to differentiate the domestic and external (or international) faces of sovereignty(Rutherforth 1822, pp. 282-5). Likewise was the injunction always carefully to ' distinguish juridical from moral power' in the understanding of parliament's supreme jurisdiction'( Chambers 1986, I, p 140). And again was the insistence that the frequently indefinite extent of sovereign authority in many
Mixed Constitution and Common Law (7) and the several statutes for triennial and septennial elections’). ‘Some have not scrupled to call its power … the omnipotence of parliament,’ Blackstone reported (though he himself found the ‘figure rather too bold’) (I, p.156). As the critics of this type of formulation argued at length, such legislative ‘omnipotence’ seemed to threaten for very fabric of liberty the English constitution was celebrated to protect. The kingdom had simply defeated royal tyranny by enshrining parliamentary absolutism (see Gunn 1983, pp.7-42, and Hamburger 1994). In its most extreme articulations - as in the case mounted by Paine in the Rights of Man - the criticism led to the dramatic conclusion that England, in fact, had no constitution: ‘merely a form of government without a constitution’ (Paine 1974, p.331). A parliamentary supremacy which included the authority to revise the constitution itself entailed a reversal of a true system of constitutional government in which the constitution controlled the government, and the community itself controlled the constitution (pp.278-80).2 Paine’s, no doubt, was a self-consciously iconoclastic assault of English political orthodoxies. But he navigated a much-traversed of eighteenth-century issue, which recalled and rehearsed the themes of earlier disputes concerning the nature and limits of political obligation. Notwithstanding the Commentaries’s imposing itemization of past parliamentary enactments that altered the basic structures of church and state, there were many who felt that the bald claim of parliament’s ‘uncontrollable’ authority seriously distorted the nature of legislative power. One important line of speculation, dominated by jurists and university moralists, sought a more careful and discriminating treatment of the nature of sovereignty than that afforded by the Blackstonean language of ‘absolute despotic power’. There was the need to distinguish ‘sovereign power’ and ‘supreme power’, and to differentiate the domestic and external (or international) faces of sovereignty (Rutherforth 1822, pp.282-5). Likewise was the injunction ‘always carefully’ to ‘distinguish juridical from moral power’ in the understanding of parliament’s ‘supreme jurisdiction’ (Chambers 1986, I, p.140). And again was the insistence that the frequently ‘indefinite’ extent of sovereign authority in many
Mixed Constituti states should not be confused, as by blackstone, with the idea that sovereignty was therefore infinite'(Bentham 1977, p 484; and see Sedgwick 1800, p 126) In addition to the attempted clarification of the concept of sovereignty was a corresponding effort better to elucidate the term"constitution'. Blackstone, as was conventional, identified the constitution with the organization of the legislature. As william Paley later put it, ' A government receives its denomination from the form of the legislature which form is likewise what we commonly mean by the constitution of a country. '(Paley 1838, Ill, p. 253). And on this understanding, the constitution existed so long as the tripartite structure of king-in-parliament survived as sovereign; and any enactment issued by this legislative sovereign enjoyed legal validity(Blackstone 1979, pp 51-2). But while the gislature furnished the core element of the English constitution, few commentators Blackstone included -treated this structural form as exhausting the kingdom s system of constitutional norms and practices. In this manner, bolingbroke maintained that by constitution we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions, and customs .. that compose the general system according to which the community hath agreed to be governed'(Bolingbroke 1844, Il, p.88). On the basis of this more dense definition of the constitution, it was easy to identify situation in which parliaments legislative product violated constitutional principles( Bolingbroke 1844, Il pp 150-1; and see Burns 1962). And Paley more cautiously and hesitantly conceded that although a parliamentary enactment in the strict and proper acceptation of the term'could not be unconstitutional,,"in a lower sense it may, viz. when it militates with the spirit contradicts the analogy, or defeats the provision of other laws, made to regulate the form of government(Paley 1838, Ill, p. 261) Most weighty and controversial, however, was the characterization of the constitutional resources available for dealing with an abuse or violation of the constitutional order. Blackstone, in setting out the case for parliaments sovereign and uncontrollable authority,, acknowledged the arguments of Mr. Locke and other theoretical writers' that
Mixed Constitution and Common Law (8) states should not be confused, as by Blackstone, with the idea that sovereignty was therefore ‘infinite’ (Bentham 1977, p.484; and see Sedgwick 1800, p.126). In addition to the attempted clarification of the concept of sovereignty was a corresponding effort better to elucidate the term ‘constitution’. Blackstone, as was conventional, identified the constitution with the organization of the legislature. As William Paley later put it, ‘A government receives its denomination from the form of the legislature; which form is likewise what we commonly mean by the constitution of a country.’ (Paley 1838, III, p.253). And on this understanding, the constitution existed so long as the tripartite structure of king-in-parliament survived as sovereign; and any enactment issued by this legislative sovereign enjoyed legal validity (Blackstone 1979, pp.51-2). But while the legislature furnished the core element of the English constitution, few commentators - Blackstone included - treated this structural form as exhausting the kingdom’s system of constitutional norms and practices. In this manner, Bolingbroke maintained that ‘by constitution we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions, and customs ... that compose the general system according to which the community hath agreed to be governed’ (Bolingbroke 1844, II, p.88). On the basis of this more dense definition of the constitution, it was easy to identify situation in which parliament’s legislative product violated constitutional principles (Bolingbroke 1844, II, pp.150-1; and see Burns 1962). And Paley more cautiously and hesitantly conceded that although a parliamentary enactment ‘in the strict and proper acceptation of the term’ could not be ‘unconstitutional’, ‘in a lower sense it may, viz. when it militates with the spirit, contradicts the analogy, or defeats the provision of other laws, made to regulate the form of government’ (Paley 1838, III, p.261). Most weighty and controversial, however, was the characterization of the constitutional resources available for dealing with an abuse or violation of the constitutional order. Blackstone, in setting out the case for parliament’s ‘sovereign and uncontrollable authority’, acknowledged the arguments of ‘Mr. Locke and other theoretical writers’ that
Mixed Constitution and Common Law (9) there remains still inherent in the people a supreme power to remove or alter the legislative when it violated'the trust reposed in them'(Blackstone 1979, I, p 157). And later,in treating the likely response of the community to severe"unconstitutional oppressions, he noted that whenever necessity and the safety of the whole shall require it,, future generations would mobilize'those inherent( though latent) powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish(I, p. 238). But throughout the commentaries, blackstone endeavored to blunt any radical implications of his own appeal to natural rights and natural equality(see Lieberman 1989, pp52-5).In the hypothetical case of morally-legitimate political resistance, he insisted that this must involve an extra-legal exercise of individual moral capacity 'necessarily.. out of the reach of any stated rule or express legal provision No human laws will... suppose a case, which at once must destroy all law nor will they make provision for so desperate an event, as must render all legal provisions ineffectual. So long therefore as the English constitution lasts.. the power of parliament is absolute and without control. (I, pp 156- It was this Blackstonean insistence that the constitution did and could not specify in law the rights of popular sovereignty upon which it ultimately was based which more radical theorists of political liberty challenged most vehemently. Judge Blackstone, James Burgh charged in his Political Disquisitions, seems to forget that the safety of the people limits all free governments. '"The truth is, he had placed the sovereignty wrong, viz. in the government; whereas it should have been in the people . .'(Burgh 1774-5, I, p 226 and Im p 278). The following year, Richard Price, in his avowedly Lockean defense of civil liberty dismissed as absurd' the doctrine which some have taught concerning the omnipotence of parliaments. All government was in the very nature of it, a trust; and legislators exercised a'subordinate and limited authority according to the specific fiduciary powers of the community had delegated to them. 'If they contradict this trust, they betray their
Mixed Constitution and Common Law (9) ‘there remains still inherent in the people a supreme power to remove or alter the legislative’ when it violated ‘the trust reposed in them’ (Blackstone 1979, I, p.157). And later, in treating the likely response of the community to severe ‘unconstitutional oppressions’, he noted that ‘whenever necessity and the safety of the whole shall require it’, future generations would mobilize ‘those inherent (though latent) powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish’ (I, p.238). But, throughout the Commentaries, Blackstone endeavored to blunt any radical implications of his own appeal to natural rights and natural equality (see Lieberman 1989, pp.52-5). In the hypothetical case of morally-legitimate political resistance, he insisted that this must involve an extra-legal exercise of individual moral capacity ‘necessarily … out of the reach of any stated rule or express legal provision’: No human laws will … suppose a case, which at once must destroy all law … nor will they make provision for so desperate an event, as must render all legal provisions ineffectual. So long therefore as the English constitution lasts … the power of parliament is absolute and without control. (I, pp.156- 7). It was this Blackstonean insistence that the constitution did and could not specify in law the rights of popular sovereignty upon which it ultimately was based which more radical theorists of political liberty challenged most vehemently. ‘Judge Blackstone’, James Burgh charged in his Political Disquisitions, ‘seems to forget that the safety of the people limits all free governments.’ ‘The truth is,’ he had ‘placed the sovereignty wrong, viz. in the government; whereas it should have been in the people …’ (Burgh 1774-5, I, p.226 and III, p.278). The following year, Richard Price, in his avowedly Lockean defense of civil liberty, dismissed as ‘absurd’ the doctrine ‘which some have taught’ concerning ‘the omnipotence of parliaments’. All government was ‘in the very nature of it, a trust’; and legislators exercised a ‘subordinate and limited’ authority according to the specific fiduciary powers of the community had delegated to them. ‘If they contradict this trust, they betray their