Mixed Constitution and Common Law(10) constituents and dissolve themselves'(Price 1991, p.28; and see also Wilson 1967, Il, p 723 and Sheridan 177 iii. The Balanced Constitution The classification of English government as a mixed constitution and the debate over parliamentary sovereignty tended to focus on somewhat narrow, though fundamental questions concerning the structure and extent of public power. Analysis of the English constitution rarely confined itself to these questions alone, and a more expansive treatment of constitutional arrangements proved especially critical to the theory of English liberty Such explorations ranged widely and often repetitively over a varied stock of preoccupations but two broad themes enjoyed particular prominence and influence. One of these concerned the relationship between English law and English liberty (considered below in section v); the other scrutinized the conduct and co-ordination of the principal institutions of governance (to which I now turn in this and in the following section) The theory of mixed constitution itself supplied the framework for evaluating the conduct of government. The legislature not only mixed elements of each of the three simple forms of government, these elements combined in such a manner that all the parts form a mutual check upon each otherso as to frustrate the abuse of power. This, in turn, meant that the mixture demanded a sufficient equilibrium of power between one branch of the legislature and the rest in order to sustain this checking process(Blackstone 1979, I pp 150, 51). English liberty, in the more familiar contemporary formulation, depended upon the balance of the constitution Once the necessity of constitutional balance was affirmed(and the idea already figured in the account of Englands mixed government set out in the Answer to the Nineteen
Mixed Constitution and Common Law (10) constituents and dissolve themselves’ (Price 1991, p.28; and see also Wilson 1967, II, p.723, and Sheridan 1779). iii. The Balanced Constitution The classification of English government as a mixed constitution and the debate over parliamentary sovereignty tended to focus on somewhat narrow, though fundamental, questions concerning the structure and extent of public power. Analysis of the English constitution rarely confined itself to these questions alone, and a more expansive treatment of constitutional arrangements proved especially critical to the theory of English liberty. Such explorations ranged widely and often repetitively over a varied stock of preoccupations, but two broad themes enjoyed particular prominence and influence. One of these concerned the relationship between English law and English liberty (considered below in section v); the other scrutinized the conduct and co-ordination of the principal institutions of governance (to which I now turn in this and in the following section). The theory of mixed constitution itself supplied the framework for evaluating the conduct of government. The legislature not only mixed elements of each of the three simple forms of government, these elements combined in such a manner ‘that all the parts form a mutual check upon each other’ so as to frustrate the abuse of power. This, in turn, meant that the mixture demanded a sufficient ‘equilibrium of power between one branch of the legislature and the rest’ in order to sustain this checking process (Blackstone 1979, I, pp.150,51). English liberty, in the more familiar contemporary formulation, depended upon ‘the balance of the constitution’. Once the necessity of constitutional balance was affirmed (and the idea already figured in the account of England’s mixed government set out in the Answer to the Nineteen
(11) Propositions), it became possible to consider the particular powers and political functions of each branch of the legislature in terms of this requirement. William Mackworth, in a 1701 tract justifying the House of Common' s campaign to impeach several royal ministers over alleged illegalities in their conduct in foreign affairs, furnished a particularly lucid version of this kind of constitutional analysis. " The great Ruleof English government, he reported to the House of lords, wasto Preserve the Just Balance of the Constitution'(Mackworth 1701, To the Lords ). And the practice of ministerial impeachments supplied an exemplary instance of the manner in which the constitution fulfilled this maxim. The strength of the king was promoted by the crowns legal immunity, but his ministers and servants were held legally accountable in their public functions through the mechanism of parliamentary impeachment. The crown could not shield any favorite from impeachment, as the decision to prosecute fell entirely under the powers of the Commons. The actual trial and conviction of those accused, however, was the exclusive judicial right of the Lords, which again could not be obstructed by either crown or commons. Thus, the constitution equipped each part of the legislature with particular Powers' that served to assist each against the Encroachments of the other'and to prevent any one part from defeating the right or Power that is Lodged in any other(Mackworth 1701, pp. 2, 4, and see pp5-7, 18-21). The correct understanding of the practice was supplied by this general logic of distributed functions and cumulative balance: and the same logic disclosed the vital mechanism through which the absolute Supreme Power of the legislature came in its internal operations to be checked and regulated (Mackworth 1701, p. 3) The form of analysis adopted by Mackworth became a staple of eighteenth-century political debate and speculation. The particular privileges of each legislative branch-the crowns powers of appointment; the House of Common's control of fiscal legislation; the judicial authority of the Lords- were routinely assessed and defended in terms of how such authority equipped that institution with sufficient power to resist encroachments from the other branches. Similarly, projects of reform and parliamentary machinations would
Mixed Constitution and Common Law (11) Propositions), it became possible to consider the particular powers and political functions of each branch of the legislature in terms of this requirement. William Mackworth, in a 1701 tract justifying the House of Common’s campaign to impeach several royal ministers over alleged illegalities in their conduct in foreign affairs, furnished a particularly lucid version of this kind of constitutional analysis.3 ‘The Great Rule’ of English government, he reported to the House of Lords, was ‘to Preserve the Just Balance of the Constitution’ (Mackworth 1701, ‘To the Lords’). And the practice of ministerial impeachments supplied an exemplary instance of the manner in which the constitution fulfilled this maxim. The strength of the king was promoted by the crown’s legal immunity, but his ministers and servants were held legally accountable in their public functions through the mechanism of parliamentary impeachment. The crown could not shield any favorite from impeachment, as the decision to prosecute fell entirely under the powers of the Commons. The actual trial and conviction of those accused, however, was the exclusive judicial right of the Lords, which again could not be obstructed by either crown or commons. Thus, the constitution equipped each part of the legislature with ‘particular Powers’ that served to ‘assist each against the Encroachments of the other’ and to prevent ‘any one’ part from defeating ‘the Right or Power that is Lodged in any other’ (Mackworth 1701, pp.2,4, and see pp.5-7, 18-21). The correct understanding of the practice was supplied by this general logic of distributed functions and cumulative balance; and the same logic disclosed the vital mechanism through which the ‘absolute, Supreme Power’ of the legislature came in its internal operations to be checked and regulated (Mackworth 1701, p.3). The form of analysis adopted by Mackworth became a staple of eighteenth-century political debate and speculation. The particular privileges of each legislative branch - the crown’s powers of appointment; the House of Common’s control of fiscal legislation; the judicial authority of the Lords - were routinely assessed and defended in terms of how such authority equipped that institution with sufficient power to resist encroachments from the other branches. Similarly, projects of reform and parliamentary machinations would
Mixed Constitution and Common Law (12) predictably be defended and denounced in terms of their likely impact on constitutional balance. Nonetheless, throughout the century up until the era of wars against revolutionary France. one formidable issue dominated the debate over the health of the mixed and balanced constitution: the relationship between the executive power of the crown and the independence of parliament, especially the House of Commons Executive power, according to the conventional juridical categories, denoted to the task of enforcing'(as opposed to 'creating )the laws(Blackstone 1979, 1, p 142; and see Rutherforth 1822, pp. 283-5). In more common usage, the executive referred to the potent list of 'discretionary powers . vested in the monarch,, as Burke described it, for the execution of the laws, or for the nomination to magistracy and office, or for conducting the affairs of peace and war, or for ordering the revenue(Burke 1884, I, pp. 469-70). Among the more delicate of the kingdom's constitutional arrangements was the placement of legislative power jointly in the hands of kings, lords and commons,, and the granting of executive power to the king alone'(Blackstone 1979, 1, p. 143) The expansive eighteenth-century discussion of the relationship between executive and legislative authority engaged directly the major changes in governance that emerged in the decades following the Glorious Revolution. These included, first, the dramatic expansion of the size, costs and revenues of statecraft: the large military establishment supporting a bellicose foreign policy; the new apparatus of public finance and national debt; the reliance on custom and excise; and the drove of crown appointees required to staff these structures Second was the system of parliamentary management utilized to secure the annual legislative renewal of this statecraft: the techniques of ministerial direction of the crowns interests arliament; and the extensive utilization of government offices, patronage and electoral nfluence to garner support in the House of Commons Students of eighteenth-century political thought are now well familiar with these developments, and the terms in which they were evaluated, defended and especially condemned. The case against received classic exposition in the journalist denunciations of
Mixed Constitution and Common Law (12) predictably be defended and denounced in terms of their likely impact on constitutional balance. Nonetheless, throughout the century up until the era of wars against revolutionary France, one formidable issue dominated the debate over the health of the mixed and balanced constitution: the relationship between the executive power of the crown and the independence of parliament, especially the House of Commons. ‘Executive power’, according to the conventional juridical categories, denoted to the task ‘of enforcing’ (as opposed to ‘creating’) the laws (Blackstone 1979, I, p.142; and see Rutherforth 1822, pp.283-5). In more common usage, the ‘executive’ referred to the potent list of ‘discretionary powers … vested in the monarch’, as Burke described it, ‘for the execution of the laws, or for the nomination to magistracy and office, or for conducting the affairs of peace and war, or for ordering the revenue’ (Burke 1884, I, pp.469-70). Among the more delicate of the kingdom’s constitutional arrangements was the placement of legislative power jointly in the hands of ‘kings, lords and commons’, and the granting of executive power to ‘the king alone’ (Blackstone 1979, I, p.143). The expansive eighteenth-century discussion of the relationship between executive and legislative authority engaged directly the major changes in governance that emerged in the decades following the Glorious Revolution. These included, first, the dramatic expansion of the size, costs and revenues of statecraft: the large military establishment supporting a bellicose foreign policy; the new apparatus of public finance and national debt; the reliance on custom and excise; and the drove of crown appointees required to staff these structures. Second was the system of parliamentary management utilized to secure the annual legislative renewal of this statecraft: the techniques of ministerial direction of the crown’s interests in parliament; and the extensive utilization of government offices, patronage and electoral influence to garner support in the House of Commons. Students of eighteenth-century political thought are now well familiar with these developments, and the terms in which they were evaluated, defended and especially condemned.4 The case against received classic exposition in the journalist denunciations of
(13 Walpoles administration in the 1720s and 1730s through such widely-disseminated vehicles as Trenchard and Gordons Cato's Letters and Bolingbroke's Craftsman. Bolingbroke, as we have seen, fully embraced the standard formulation of England's mixed constitution'; and further celebrated this constitution as the tree which produced that delicious and wholesome fruitof "liberty'(Bolingbroke 1844, Il, p 112). Within this mixture, the essentials of British liberty' were sustained through parliamentary freedom'; and throughout English history, attacks on liberty invariably took the form of campaigns to subdue parliament (Il, pp96-7). What, in turn, ultimately sustained this vital parliamentary freedom was the mechanism of parliamentary elections which enabled the community to ensure 'the integrity of their trustees' in the Commons. 'As a bad king must stand in awe of an honest parliament, a corrupt house of commons must stand in awe of an honest people (I1,p.118) In past ages, parliamentary freedom was challenged royal prerogative; currently, it was undermined by the more subtle, but no less malignant, forces of executive corruption The unprecedented size of the civil and military establishments, along with the inflated revenues of the crown(which, no less menacingly, existed in virtue of equally unprecedented levels of public debt), supplied government with a vast network of patronage through which to transform, through 'place' and,, the trustees of English liberty into the pawns of executive power. At the same time, the deployment of electoral patronage and the statutory extension of the parliamentary term to seven years disabled the mechanisms of electoral accountability. Superficially, the outward form of a constitution of king, lords and commons was maintained. In practice what prevailed was an anti-constitutional regime of government by corruption that placed parliament under the absolute influence of a king or his minister (I1,p.93) The understanding of the constitution offered by bolingbroke and like-minded opponents of the Hanoverian regime thus placed the fate of English liberty squarely upon the virtue of the community(it is capacity to hold parliament to its trust)and the independence
Mixed Constitution and Common Law (13) Walpole’s administration in the 1720s and 1730s through such widely-disseminated vehicles as Trenchard and Gordon’s Cato’s Letters and Bolingbroke’s Craftsman. Bolingbroke, as we have seen, fully embraced the standard formulation of England’s ‘mixed constitution’; and further celebrated this constitution as the ‘tree’ which produced ‘that delicious and wholesome fruit’ of ‘liberty’ (Bolingbroke 1844, II, p.112). Within this mixture, the ‘essentials of British liberty’ were sustained through ‘parliamentary freedom’; and throughout English history, attacks on liberty invariably took the form of campaigns to subdue parliament (II, pp.96-7). What, in turn, ultimately sustained this vital parliamentary freedom was the mechanism of parliamentary elections which enabled the community to ensure ‘the integrity of their trustees’ in the Commons. ‘As a bad king must stand in awe of an honest parliament, a corrupt house of commons must stand in awe of an honest people’ (II, p.118). In past ages, parliamentary freedom was challenged royal prerogative; currently, it was undermined by the more subtle, but no less malignant, forces of executive corruption. The unprecedented size of the civil and military establishments, along with the inflated revenues of the crown (which, no less menacingly, existed in virtue of equally unprecedented levels of public debt), supplied government with a vast network of patronage through which to transform, through ‘place’ and ‘office’, the trustees of English liberty into the pawns of executive power. At the same time, the deployment of electoral patronage and the statutory extension of the parliamentary term to seven years disabled the mechanisms of electoral accountability. Superficially, the outward form of a constitution of king, lords and commons was maintained. In practice what prevailed was an anti-constitutional regime of government ‘by corruption’ that placed parliament under the ‘absolute influence of a king or his minister’ (II, p.93). The understanding of the constitution offered by Bolingbroke and like-minded opponents of the Hanoverian regime thus placed the fate of English liberty squarely upon the virtue of the community (it is capacity to hold parliament to its trust) and the independence
Mixed c (14) of parliament(in its capacity to combat the ever-present tendency of political power towards corruption, abuse and aggrandizement). As such, the account-standardly adorned with the appropriate classical maxims and examples from Roman history -constituted a distinctly republicanand'commonwealth'reading of the British constitution; or, in the more common contemporary usage, it furnished a country'critique of Hanoverian court' politics (see Pocock 1975, pp. 467-90). The positive 'commonwealth'or'country' strategy for restoring constitutional balance followed directly from its diagnosis of the current threats to British liberty. The fiscal resources and scale of government were to be reduced through the elimination of public debt. The manipulation of parliamentary deliberations by the executive was to be destroyed by barring those with government offices(placemen)or contracts from the House of Commons. And the independence of Parliament was to be restored through a strengthening of the electoral process: freedom of elections'(the elimination of electoral patronage and expenditures in the borough constituencies)and"frequent elections'(the repeal of the Septennial Act). With the adoption of these measures, the constitution would be restored, and the community rescued from the party divisions and ministerial rivalries that had infested politics since the Glorious Revolution The response of the court Whigs' to this indictment of British political practice was joined immediately by ministerial apologists and journalists in the 1720s and 1730s(see Pocock 1975, pp. 446-61; Browning 1982; Burtt 1992). But what was to prove the most elegant and suggestive of the responses to the republican interpretation of the constitution did not appear until 1741-2, when David Hume presented the first of the several editions of his"Essays, Moral and Political published in his lifetime. In these essays, as in the later History of England, Hume tendentiously adoptedthe temper . of a philosopher, who properly recognized to the infinitely complicated' texture of all political questions, and taught a lesson of moderation' to replace the violent animosities of the party-zealots (Hume 1994, pp 216, 12-3). He concurred in the commonplace judgment that Englands mixed system of government produced unequaled levels of public liberty. The whole history
Mixed Constitution and Common Law (14) of parliament (in its capacity to combat the ever-present tendency of political power towards corruption, abuse and aggrandizement). As such, the account - standardly adorned with the appropriate classical maxims and examples from Roman history - constituted a distinctly ‘republican’ and ‘commonwealth’ reading of the British constitution; or, in the more common contemporary usage, it furnished a ‘country’ critique of Hanoverian ‘court’ politics (see Pocock 1975, pp.467-90). The positive ‘commonwealth’ or ‘country’ strategy for restoring constitutional balance followed directly from its diagnosis of the current threats to British liberty. The fiscal resources and scale of government were to be reduced through the elimination of public debt. The manipulation of parliamentary deliberations by the executive was to be destroyed by barring those with government offices (‘placemen’) or contracts from the House of Commons. And the independence of Parliament was to be restored through a strengthening of the electoral process: ‘freedom of elections’ (the elimination of electoral patronage and expenditures in the borough constituencies) and ‘frequent elections’ (the repeal of the Septennial Act). With the adoption of these measures, the constitution would be restored, and the community rescued from the party divisions and ministerial rivalries that had infested politics since the Glorious Revolution. The response of the ‘court Whigs’ to this indictment of British political practice was joined immediately by ministerial apologists and journalists in the 1720s and 1730s (see Pocock 1975, pp.446-61; Browning 1982; Burtt 1992). But what was to prove the most elegant and suggestive of the responses to the ‘republican’ interpretation of the constitution did not appear until 1741-2, when David Hume presented the first of the several editions of his ‘Essays, Moral and Political’ published in his lifetime.5 In these essays, as in the later History of England, Hume tendentiously adopted ‘the temper … of a philosopher’, who properly recognized to the ‘infinitely complicated’ texture of ‘all political questions’, and taught ‘a lesson of moderation’ to replace the ‘violent animosities’ of the ‘party-zealots’ (Hume 1994, pp.216,12-3). He concurred in the commonplace judgment that England’s mixed system of government produced unequaled levels of public liberty. ‘The whole history