Dr. Carson, Professor of American History at Grove City College, Pennsylvania, will be remembered for his earlier FREEMAN series.
England’s rise to a greatness which flowered in the nineteenth century was preceded by an order of developments, an order which can be summarized in this way: constitutional — the laying of the political foundations for liberty; intellectual — the development of ideas and spread of beliefs which supported liberty; and moral — religious developments which provided the drive and discipline for constructive achievement. The royal navy, which was to be the power symbol of greatness, had begun to play a leading role on the high seas by the latter part of the sixteenth century, in the time of Elizabeth I. But England’s leadership in civilization was still a long way off. Tudor despotism degenerated into Stuart oppression, as we have seen, and oppression was followed by civil war, revolution, and reaction. On the ruins of monarchical absolutism, however, the English began to lay more nearly enduring political foundations of liberty. It is this work that is to be called up here.
There are two elements that enter into the establishment of liberty. One is the formal means for circumscribing and inhibiting the power of government. The other is the ideas and beliefs held by those who control the government regarding liberty. It is doubtful that extensive liberty can exist for very long without the presence of both of these elements. Belief in liberty alone may not be expected to restrain for long those who have been given the power of government, for the enticement to the use of power is probably greater for most men than any general love of liberty. On the other hand, any forms of government may be turned to despotic ends when the forms are not undergirded by a desire for liberty. At any rate, extensive liberty in England awaited the historical junction of formal restrictions and beliefs which supported liberty.
Englishmen have long called those forms by which they are governed and which, it may be, have restrained those who govern, The Constitution. They have spoken of the constitution as if it had an unquestionable concrete existence. Yet, to an American, it is quite often not clear what the Englishman can be referring to. In the United States when someone refers to the Constitution, he refers to an actual document — usually, anyway — which was drawn by men in convention in 1787 and has been added to from time to time. It has bodily existence, as it were. This is not the case, in the main, for the British constitution. True, there are some documents which are reckoned to be a part of the constitution, such as Magna Charta, or the Bill of Rights, or the Act of Supremacy. But they are only the concretizing of some aspect of the constitution at a given time. These concrete provisions may become irrelevant or fall into disuse, may be subtly altered by changes in institutions, may be revised by later parliamentary enactments, or may no longer be applicable; yet, the constitution remains. What, then, it is proper to ask, is the constitution?
A Shifting Balance of Power
The first thing to note about it is that it is not fixed. It changes without any specific action being taken as institutions and procedures change, and it may be changed by act of Parliament. No unusual procedure is required to change it. Succinctly stated, the constitution of England consists of all those rules, written and unwritten, which prescribe how things governmental are to be done. These prescriptions may have taken shape by customary usage or by royal recognition or by legislative enactment. Generally speaking, any practice of long standing having to do with the modes of governmental operation would most likely be reckoned a part of the constitution. In addition, long established rights and privileges of persons are thought to be constitutionally safeguarded. For example, freedom from arbitrary imprisonment (the right to a writ of habeas corpus) is a part of the constitution. Yet, no unusual procedures would have to be followed to abridge this right, or any others.
Liberty in England, then, has depended not so much upon substantive protections of it acknowledged in documents — though these have played some part — as upon the existence of effective counterweights to the powers of those who govern. The crucial conception for understanding how liberty has been protected in England is that of a Balance of Powers. More precisely, it has depended upon the counterweight of those who do not have the power to govern, at least, not at a given time. In the United States, there was a concerted effort to establish a balance of powers within the government. This has never been so to any extent in England, and it is a very important difference between the United States and the British constitution.
The Loyal Opposition
There is no balance of powers within The Government in England, nor has there ever been to my knowledge. The Government in England does not have the same denotation as "the government” in the United States does. Indeed, when Americans refer to "the government," they refer to the whole paraphernalia of government power, all the institutions connected with it, and all those who comprise its arms. To put it another way, Americans refer in this way to everything having to do with governance and to nothing in particular. When speaking formally, the British do not do this. They refer specifically to those who make governmental policy as The Government. In contemporary England, The Government is usually comprised of a Prime Minister and his cabinet chosen from the ranks of the majority party (though a coalition government may also exist). In earlier times, the monarch and his chief ministers would have comprised what is nowadays referred to as The Government.
The Government in England, then, is the result of a concentration of power, not a balance of powers. The checks upon this governmental power are not within it, strictly speaking (though they might be in a coalition cabinet), but outside of and in opposition to it. In short, The Government exercises all the powers of government, but there may be contests for control of The Government, and those who contest may serve to limit and restrain the use of that power. The Government, at any moment, has the exclusive use of governmental power, but any extension or change in this power may be contingent upon the consent of others. There may, then, be counterweights to the exercise of power; and when these have sufficient strength and independence, it can be said with sufficient accuracy that a balance of power exists which will inhibit an extension of power by The Government or even result in reducing the amount formerly available. It is this situation that has produced the formal protections and safeguards to liberty in English history.
For most of the history of England, the monarch has been, in effect, The Government, though the terminology would not have been used in this way. In consequence, most of the attempts to limit, restrain, regularize, or inhibit governmental action have been efforts of various forces in opposition to the exercise of power by the king. The great and revered documents of the British constitution — Magna Charta, Petition of Rights, Bill of Rights — are concessions and acknowledgments wrested from or imposed upon monarchs. Though the political foundations of liberty which concern us here were laid in the seventeenth and eighteenth centuries, they were built of materials which have a much greater antiquity. Therefore, it is appropriate to review briefly the history of some of the early constitutional struggles and the forces involved.
The Norman Conquest-1066
A convenient and useful place to begin is with the Norman Conquest of England in 1066 and the ensuing years. William the Conqueror was hardly the first king of England, but he was probably the first to rule a unified England with so much power concentrated in his hands. After William’s conquest he attempted to set up a situation in which all force in the land was ultimately under his control.
No power, independent of his will, could, in theory, be exercised in the land. The great tenants-in-chief, or barons, had their fiefs directly from him. All vassals, of whatever rank, owed their final allegiance to him. No castle could be built in the land unless he licensed it. The Roman Catholic church, while it might technically be independent of him, was dependent upon his will in many respects for its operations. William was potentially as absolute as any medieval monarch, though he is not remembered for being an arbitrary king. Later kings, particularly Henry II (twelfth century), increased their sway by the establishment of king’s courts which began to make rulings on the basis of a common law.
Even so, counter forces to that of the king continued to exist or shortly came into being. One that every wise king would recognize in the Middle Ages was custom and customary law. People were profoundly conservative, as they usually are, and whatever had been done in the past must continue to be observed or there would most likely be trouble. Local customs were early given the effect of law. Even the common law which began to be shaped in the twelfth century was mainly a law for all England abstracted from common features found in local customs and laws. The courts which dispensed such law might be the king’s, but the law was that of England and served potentially to restrain monarchs.
Moreover, the tendency was for all holdings and privileges to become hereditary. The nobility might owe their fiefs originally to the monarch; but over the years these holdings were passed on from father to eldest son, and the new holder held his fief as if by right. Hence, the nobility began to think of themselves as having rights not dependent on the will of the king. Similarly, charters to towns and universities tended to become perpetual, and the rights and privileges derived from them to pass in perpetuity to professors, students, and burgers. The Church was based at Rome, and it had weapons — excommunication and interdict—with which to check and restrain monarchs. The clergy also enjoyed certain privileges which were not conceived of as depending upon any arbitrary grant or rescission by the monarch. In short, the classes and orders of medieval England emerged as counterweights to the powers of the king.
The Magna Charta-1215
How this balance of powers or forces could be brought into play was dramatically demonstrated in the early years of the thirteenth century during the reign of King John. The first of these forces to meet John head-on was Pope Innocent III, the most forceful and powerful of medieval popes. Their troubles arose over the appointment of an archbishop to the See of Canterbury. When the Pope caused Stephen Langton to be named Archbishop, King John refused to accept him, and these two became locked in a seven-year struggle for dominance. Innocent III excommunicated John and laid the realm of England under interdict. "This interdict meant that all the churches were closed: no masses sung, no marriages or funerals conducted. Only baptism and confession for the dying were permitted."’ Before the threat of being deposed by the Pope and having the sentence carried out by King Philip of France, John finally capitulated. Indeed, he went so far as to declare that he was a vassal of the Pope, and that he had received England as a fief from the pontiff. In general, it should be pointed out that papal powers gave the clergy some independence of royal authority.
King John was hardly out of difficulty with Innocent III before he was in deep trouble with other forces in the land. There was widespread dissatisfaction with the arbitrariness of John’s rule. The barons took up the cause against the king, and they defeated John at Runnymede in 1215. They required of him that he make written acknowledgment of important rights and privileges possessed by his subjects and of restraints upon his use of power. This was done in the Magna Charta. Magna Charta not only affirmed the rights and privileges of the barons but also of the clergy, of merchants and tradesmen, of the towns, and of free men in general. One clause read, "No free-man shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land."’ Magna Charta was so revered because it was the most thorough of the early documents affirming the rights and privileges of the classes in England against the king. The major point here, however, is to show how other forces limited the power of the king.
The Model Parliament-1295
Developments for the remainder of the thirteenth century, under Henry III and Edward I, continued generally along the lines of limiting monarchy. Magna Charta was reaffirmed on a number of occasions. A major problem arose over how to keep a monarch to his word. Committees and commissions, made up of barons, were tried, but with indifferent success. These committees to hold the king in check were the immediate forerunners of Parliament. Parliament took its classic shape with the meeting of the Model Parliament under Edward I in 1295. It is called the "Model" because the classes which were so long to comprise it were there: the nobles, the clergy, the knights, the townsmen, and so on. In the next century England became even more definitely a limited monarchy. In addition to being limited by the classes who were represented or sat in Parliament, the notion spread that the king was under the law. Henry Bracton, the great jurist of the thirteenth century, said: "The king should be under God and the law."3
The traditional elements for restraining and counterbalancing the power of The Government — the king — were the classes, Parliament, and the common law. It must be kept in mind that in the Middle Ages these did not so much establish liberty for Englishmen in general as protect the chartered privileges and prerogatives of the various classes, themselves devoted to maintaining status and stability. Realistically, too, the classes could only provide counterweights to the power of the king so long as they were independent of him to considerable extent.
By, or in, the sixteenth century the classes largely lost or were losing their independence. This set the stage for Tudor absolutism and for the Stuart despotism which has been earlier examined. In the late Middle Ages, kings became less and less dependent upon the nobility as warriors. Feudalism disintegrated; the nobility were decimated by the Wars of the Roses (latter part of the fifteenth century); and Henry VII, the first of the Tudors, subdued the remainder of the nobility, mainly with the instrument of his Court of the Star Chamber. The clergy lost such independence as they had enjoyed with the break from the Roman church, effected in 1534. The guilds had long been declining in vitality, and manorial serfdom had been replaced by tenant farming.
The Petition of Right—1628
Parliament — consisting of the Lords temporal and spiritual, and the Commons — continued to be called into session and to take action. But, for the Tudor monarchs it was largely an auxiliary to their absolute and, frequently, arbitrary rule. The early Stuarts (James I and Charles I) enjoyed no such pleasant relationship with Parliament in the first half of the seventeenth century. Parliament (and some judges, notably Sir Edward Coke) balked at simply being aids to the despotism of monarchs. The kings dropped the pretense that Parliament had any independence and tried, so far as possible, to rule without them.
But Parliament was still a potentially organized center of resistance: and when Charles I demonstrated his determination to rule without that body as far as possible, the potentiality became an actuality. The House of Commons became the center of a resistance which turned into a civil war in 1642. Failing in their efforts to restrain the king, they overthrew him. In 1649, Charles I was beheaded, and there followed 11 years of rule without a king. Civil war turned into revolution. But, as so often happens, revolution resulted not in the establishment of constitutionally protected liberty and balanced government but in military rule. The English experience without a king was not a happy one. The rule of Oliver Cromwell with the support of the army was hardly more palatable than that of the Stuarts. Shortly after Cromwell’s death, monarchy was restored in 1660. The struggle to restrain and limit the monarch continued.
Indeed, the seventeenth century was the scene of a prolonged effort to limit the monarch and to establish other sources of power to counterbalance his. One line of the effort was to get the monarch to concede limits to his power. The major constitutional documents of the century are of this character, in the main. The first of these of major importance was the Petition of Right, assented to by Charles I in 1628. By its terms, there was to be no taxation without the consent of Parliament, no detaining or imprisonment simply because the king commanded it, nor arbitrary use of martial law.4
Another landmark on the way to preventing arbitrary action by the monarch was the Habeas Corpus Act of 1679. It had been long established that a man being held prisoner should be shown cause —be charged with violating some law — why he was held. On the other hand, individuals were sometimes held in prison arbitrarily by the monarch. The Habeas Corpus Act required judges to issue the appropriate writs upon request, and it provided stiff penalties should they refuse. In like manner, those who held them in prison could be penalized for refusing to release prisoners when presented with such a writ. In short, the right to a writ of habeas corpus was firmly established.
The Bill of Rights-1689
The most famous document of the seventeenth century is, of course, the Bill of Rights. It was propounded by a convention in 1689, after James II had fled from England and before William and Mary came to the throne. In view of the circumstances, it is understood that the acceptance of its terms was a condition of their coming to power. By its terms, there was an attempt to prevent all those abuses with which they were so familiar from the recent past. A few of its provisions will indicate the general tenor of them:
That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal….
That levying money for or to the use of the crown by pretense of prerogative without grant of Parliament, for longer time or in other manner than the same is or shall be granted, is illegal….
That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law.
That the subjects which are Protestants may have arms for their defense, suitable to their conditions and as allowed by law.
That election of members of Parliament ought to be free.5
A Time of Testing
One thing seems certain: once again, constitutional monarchy had been established in England. It is commonly said, also, that Parliament had triumphed, that henceforth it was the dominant branch within government. Such a position certainly overstates the case so far as the actual business of governance is concerned. The king was still, in effect, The Government. As one writer says, "He still had his prerogative of making war and peace, choosing his own ministers, pardoning criminals, creating peers, summoning, proroguing and dissolving Parliament, and minting coin."6 Indeed, there was strong sentiment in the last years of the seventeenth century against members of the House of Commons participating in The Government. Jarrett describes the situation in this way:
The House of Commons viewed the Executive in very much the same way that the heroes of the traditional school story view their masters. They saw a great gulf fixed between the authorities and themselves and despised as a careerist and a toady anybody who sought to bridge it. Like the schoolboy heroes, they considered that they were there to hamper the establishment, not to help it…. [The] Act of Settlement of 1701… forced upon the King a clause providing that anyone holding an office of profit under the Crown should be ineligible for membership of the House of Commons.7
This last provision was short-lived, but it does indicate that the House of Commons distinctly did not consider itself a part of The Government at the beginning of the eighteenth century.
Limiting the Monarch
The reality that took shape, however, did not fit neatly into the theory of government as it has commonly been held. In fact, a kind of balance of powers existed in the eighteenth and well into the nineteenth century. The king still governed, or ruled, in theory and, largely, in practice, though the first two of the Hanoverian monarchs (George I, 1714-1727, and George II, 1727-1760) did allow much of their power to slip away. The king still chose his chief ministers, still made major decisions of state, could effect elections to the House by various devices, could influence members of Parliament by perquisites at his disposal, and could increase the membership in the House of Lords by new appointments.
On the other hand, he could not rule for long without Parliament. He was dependent upon that body for appropriations, for the passage of laws, and for the meeting of obligations. A recalcitrant Parliament could bring the monarch to his knees, and that rather quickly. Moreover, the House of Commons was well on the way to establishing itself as independent in its source of power from the Crown. Its members were elected, and they owed their place to the electorate, not to the king. The point of insisting upon freedom of elections was that the monarch might not interfere in, determine, or manipulate elections. Freedom of speech in Parliament and freedom from arrest were also important adjuncts to their independence. Also, judicial independence was fully established in the eighteenth century. "For the judges, though appointed by the Crown, were no longer subject to its influence in their decisions, since they could not be removed except on an address from both houses of parliament." There was a rule that their tenure ceased when a new monarch came to the throne unless he reappointed them, but "George III himself, at the beginning of his reign, promoted the Act abolishing this rule."8
A Limited Government
England had not only limited monarchy but, much more important, limited government. The king was limited by Parliament and by an independent judiciary, as well as by documentary constitutional provisions. The House of Lords was limited by the House of Commons, for the latter body alone could initiate appropriations.
The House of Commons was limited by the electorate, by an hereditary House of Lords, and by the monarch. Each of these had somewhat different sources of power: the House of Commons was elected; the House of Lords inherited or attained position by royal appointment, the judiciary by royal appointment, and the monarch by heredity.
More checks upon power were developed in the eighteenth century. The Cabinet began to take shape. It was, in theory, the king’s instrument for government, but, in practice, the king found it necessary to appoint members of Parliament to places on it. Moreover, as Parliament gained in power, this was accompanied by an interior division into political parties which checked its exercise. Political parties emerged in the latter part of the seventeenth century, but they came into their own in the eighteenth. Close divisions in parties inhibited the exercise of power by the majority party. Moreover, it enabled an astute monarch to cling to power by being a balance wheel between them.
One of the major foundations for liberty had been laid, then, by the eighteenth century: structurally limited government. The other one is belief in and commitment to liberty. We must now turn to the development and spread of ideas which extended religious liberty, freed enterprise, spurred inventiveness, and loosed the energies of the English people.
The next article in this series will discuss the "Intellectual Thrust to Liberty." Why Liberty?
—FOOTNOTES—
1 Christopher Brooke, From Alfred to Henry III (New York: W. W. Norton, 1966), p. 218.
2 Eugen Weber, ed., The Western Tradition (Boston: D. C. Heath, 1959), p. 196.
3 Brooke, op. cit., p. 221.
4 See William L. Sachse, ed., English History in the Making (Waltham, Mass.; Blaisdell, 1967), pp. 249-50.
5 Ibid., p. 318.
6 Derek Jarrett, Britain: 1688-1815 (New York: St. Martin’s Press, 1965), pp. 11-12.
7 Ibid., p. 17.
8 Basil Williams, The Whig Supremacy (London: Oxford University Press, 1939), p. 56.
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What has made so many men, since untold ages, stake their all on liberty is its intrinsic glamour, a fascination it has in itself, apart from all "practical" considerations. For only in countries where it reigns can a man speak, live, and breathe freely, owing obedience to no authority save God and the laws of the land. The man who asks of freedom anything other than itself is born to be a slave.
ALEXIS DE TOCQUEVILLE, The Old Regime and the French Revolution