                    Constitutionalism

                   ANCIENT AND MODERN

                 CHARLES HOWARD McILWAIN

Eaton Professor of the Science of Government, Emeritus, in Harvard 
University

                     REVISED EDITION

                                     
                    GREAT SEAL BOOKS

              A Division of Cornell University Press

                    ITHACA. NEW YORK

                Copyright 1947 Cornell University

         FIRST EDITION, 1940 REVISED EDITION, 1947

                CORNELL UNIVERSITY PRESS

             First printing for Great Seal Books, 1958

        PRINTED IN THE UNITED STATES OF AMERICA



To the members of the Telluride Association of Cornell University in
lasting remembrance of their friendliness and hospitality.

IN ITS ORIGINAL FORM this book consists of six lectures which the author 
delivered at Cornell University in the academic year 1938-39, namely, the 
MESSENGER LECTURES ON THE EVOLUTION OF CIVILIZATION. That series was founded 
and its title was prescribed by the late Hiram J. Messenger, B. Litt., 
Ph.D., of Hartford, Connecticut, who directed in his will that a portion of 
his estate be given to Cornell University and used to provide annually "a 
course or courses of lectures on the evolution of civilization, for the 
special purpose of raising the moral standard of our political, business, 
and social life." 



                         Preface

THIS VOLUME, it is hardly necessary to say, does not pretend to be a 
comprehensive account of the growth of constitutionalism. In the course of a 
few lectures nothing could be attempted beyond the tracing of a very limited 
number of salient principles, and even these could be dealt with only for 
those countries where their development is most obvious and most directly 
related to the political problems facing us here and now. The history of 
constitutionalism remains to be written.

To the committee in charge of the Messenger Lectures I wish to express my 
deep appreciation of the honor and the opportunity of presenting this 
subject in this distinguished series, and to the Cornell University Press 
and Mr. Wood-ford Patterson its Director my thanks for valued advice and 
assistance in the preparation of the manuscript of these lectures for the 
press.

C. H. McILVAIN

Belmont, Massachusetts 
March 2, 1940



In this revised edition many additions have been made in the notes and an
appendix has been added further to justify or to illustrate some of the
statements in the text.

C. H. M.

Princeton, New Jersey

May, 1947



                        Contents

CHAPTER I Some Modern Definitions of Constitutionalism PAGE 1 

CHAPTER II The Ancient Conception of a Constitution PAGE 23 

CHAPTER III The Constitutionalism of Rome and Its Influence PAGE 41

CHAPTER IV Constitutionalism in the Middle Ages PAGE 67 

CHAPTER V The Transition from Medieval to Modern PAGE 93 

CHAPTER VI Modern Constitutionalism and Its Problems PAGE 123

Notes PAGE 149

Appendix PAGE 170



                       CHAPTER I

        Some Modern Definitions of Constitutionalism

THE TIME seems to be propitious for an examination of the general principle 
of constitutionalism ?our own Anglo-Saxon brand of it in particular ?and 
an examination which should include some consideration of the successive 
stages in its development. For perhaps never in its long history has the 
principle of constitutionalism been so questioned as it is questioned today, 
never has the attack upon it been so determined or so threatening as it is 
just now. The world is trembling in the balance between the orderly 
procedure of law and the processes of force which seem so much more quick 
and effective. We must make our choice between these two, and it must be 
made in the very near future. If we are to make that choice intelligently it 
would seem reasonable, whether in the end we decide for law or for force, 
that we should retrace the history of our constitutionalism ?the history of 
force is plain enough ?should try to estimate its past achievements, and 
should consider the nature and effects of the forces which have been arrayed 
against it. This I propose to try briefly to do and as dispassionately as I 
can, though it is only fair that I should frankly confess at the outset that 
my own personal convictions are overwhelmingly on the side of law and 
against force.

In 1792 Arthur Young mentions with contempt the French notion of a 
constitution, which, he says, "is a new term they have adopted; and which 
they use as if a constitution was a pudding to be made by a receipt."1 To 
Thomas Paine, writing at the same time, the recent American written 
constitutions are "to liberty, what a grammar is to language." In another 
place, speaking of constitutions in general, he says: "A constitution is not 
the act of a government, but of a people constituting a government, and a 
government without a constitution is power without right." "A constitution 
is a thing antecedent to a government; and a government is only the creature 
of a constitution." It seems probable that Paine means by "constitution" 
nothing less than the written constitutions of America or France. For, he 
says, "the continual use of the word 'constitution' in the English 
parliament shows there is none; and that the whole is merely a form of 
government without a constitution, and constituting itself with what power 
it pleases." "The act by which the English parliament empowered itself to 
sit for seven years, shews there is no constitution in England. It might, by 
the same authority have sate any greater number of years, or for life."2 

For Arthur Young, a constitution in this sense of a "written" constitution 
is "a new term"; for Thomas Paine it seems to be the only kind of 
constitution worthy of the name. Such "puddings," "made by a receipt," were 
to Edmund Burke apparently as repulsive as to Arthur Young. He says little 
or nothing about the new American constitutions, but in his opinion nothing 
could be worse than the French one. "What in the result is likely to produce 
evil, is politically false," he says; and "that which is productive of good, 
politically true."3 Certainly, in his view, nothing but evil had come or 
could come from "that monstrous thing, which, by the courtesy of France, 
they call a constitution."4

These statements express very clearly the contrast between the new 
conception of the conscious formulation by a people of its fundamental law, 
the new definition of "constitution"; and the older traditional view in 
which the word was applied only to the substantive principles to be deduced 
from a nation's actual institutions and their development. The older view 
was probably never better indicated than by Bolingbroke, when he said in 
1733:

     By constitution we mean, whenever we speak with propriety and 
     exactness, that assemblage of laws, institutions and customs, derived 
     from certain fixed principles of reason, directed to certain fixed 
     objects of public good, that compose the general system, according to 
     which the community hath agreed to be governed. ... We call this a good 
     government, when ... the whole administration of public affairs is 
     wisely pursued, and with a strict conformity to the principles and 
     objects of the constitution.5 

One noteworthy difference between Paine's conception and Bolingbroke's is 
that for the former a governmental act contrary to the constitution is an 
act of "power without right"; for the latter it only warrants us in saying 
that that government is not a good one.

Bolingbroke in fact is only restating views as old as the Politicus of Plato 
when he says that governments may be compared and estimated by their 
conformity to reason, and that a nation's actual customs and laws are 
probably the safest actual criterion of what that reason is. If a government 
fails so to conform, it is a bad government, but he does not say it is 
without right. He does not imply, as Paine does, that it may be disobeyed, 
except by way of revolution. It is curious that Bolingbroke gives the same 
illustration as Paine of what we might call an "unconstitutional" enactment, 
the English Septennial Act of 1716. That statute Paine considered a 
conclusive proof that "there is no constitution in England." Bolingbroke's 
remarks about the same statute are interesting both for what he says and for 
what he does not say:

     If it had been foretold to those patriots at the revolution, who
     remembered long parliaments, who still felt the smart of them,
     who struggled hard for annual, and obtained with much difficulty,
     at the end of five or six years, triennial parliaments, that a time
     would come when even the term of triennial parliaments would
     be deemed too short, and a parliament chosen for three years
     would choose itself for four more, and entail septennial
     parliaments on the nation; that this would happen, and the fruits
     of their honest labors be lost, in little more than twenty years;
     and that it would be brought about, whilst our government
     continued on the foundations they had then so newly laid: if all
     this had been foretold at the time I mention, it would have
     appeared improbable and monstrous to the friends of the
     revolution. Yet it hath happened; and in less than twenty years, it
     is grown, or is growing, familiar to us.6

When Burke appealed from the new to the old Whigs in 1791 it was the 
conservatism of 1689 to which he would have returned, in place of the more 
radical views of Fox. When Bolingbroke in 1733 says that the Septennial Act 
would have seemed "monstrous" to the Whigs of the Revolution, it is in 
reaction against the arbitrariness of the growing notion of the omnipotence 
of parliament. To the one the new Whigs had moved too far toward the left, 
as we should say; to the other they were already moving too far toward the 
very absolutism their predecessors had fought against. Bolingbroke's 
statement is interesting in more ways than one. He offers no legal remedy 
for the abuse of which he complains, but he does see, as some modern 
historians have not seen, that between the Whig doctrine of 1689 and that of 
the reign of George III, or even of George I, a great gulf yawns. The 
opponents of James II had declared that the throne was vacant only by virtue 
of the fact that their voice was assumed to be the voice of the nation. In 
1766 Lord Chancellor Northington said in course of the debate on the repeal 
of the Stamp Act: "Every government can arbitrarily impose laws on all its 
subjects; there must be a supreme dominion in every state; whether 
monarchical, aristocratical, democratical, or mixed. And all the subjects of 
each state are bound by the laws made by government."7

In 1791 Burke, though opposing the extreme doctrines of the radicals, 
expressly reiterated his earlier belief that the Americans in their 
rebellion against England had stood "in the same relation to England, as 
England did to King James the second, in 1688."8

Illustrations of the changing conceptions of sovereignty and of the 
constitution could be multiplied indefinitely from the materials of the 
seventeenth and eighteenth centuries. In contrasting the "monstrous" theory 
of the Septennial Act with that of the original Whig instigators of the 
Revolution, Bolingbroke implies that the latter, in the Convention 
Parliament, were acting not as a body with inherent, arbitrary, sovereign 
authority; but merely as the voice of the whole people. In the Whig 
pamphlets of the revolutionary period there is a good deal of evidence to 
confirm this view. The Lords in the Convention Parliament had called that 
assembly "a full and free Representative of this Nation"9 and there were 
some who recognized, on Locke's principles, that it was a purely extra-legal 
and revolutionary body whose acts were not legislative but constituent. In 
one of the ablest of the pamphlets of the time10 it is recognized that there 
is no adequate remedy in law for the abuses complained of, because many of 
James's most oppressive acts had been strictly legal. "This I think may 
easily be granted," the author says,

     if it be consider'd, That the present Laws and Constitutions of
     England are such as do undoubtedly give the King a Power to
     make the Judg, and to the Judg a Power to pronounce the law.
     What he does judicially affirm, is Law, and becomes from
     thenceforth the strongest Precedent; the last Judgment being
     always esteem'd the surest and best Rule to go by. Now the
     King in both these Transactions, neither made or turn'd out any
     Judges, but in such Methods that former Judges had pronounc'd
     Lawful; nor did he do afterwards any thing either in the case of
     Magdalen College, or in the dispensing Power, but with the
     Opinion and Concurrence of his Judges, being the Method that
     our Establishment and Laws in such Cases do direct.

     "No, no," he exclaims,

     Tho our King was misguided, and our Judges were corrupt, yet
     it is not at their doors we must lay our Misfortunes, but to the
     weakness of our Government, which gives a Loose to these
     Inconveniencies, and which pins the Justice of the Nation on the
     Frailties of a single Man in so arbitrary a manner.

"If," he concludes,

     the Departure of the King amounts to such a Desertion as
     dissolves the Government, then the Power must necessarily
     revert and vest in the People, who may erect a new one, either
     according to the old Model, if they like it so well, or any other
     that they like and approve of better.

The same idea was expressed by another writer11 when he said:

     These Conventions then of the two Kingdoms are
     Representatives of the Body Politick of the respective
     Kingdoms, such as might have been before these Bodies
     Politick enter'd into a Rectoral Contract with the first of the
     Kings of the Race that now reigns; and they are no Judicial or
     Authoritative Judicatures, and I suppose will claim no Power to
     make Laws, to judg persons, or to impose Taxes.

In due course, like the Convention Parliament of 1660, this Convention was 
declared to be a parliament in words copied from the similar act at the 
Restoration; but in thus choosing the "old Model" instead of a new, there is 
no indication that the representatives of the "Body Politick" ever actually 
conferred, or ever thought of conferring on themselves as the new 
parliament, any legal authority not enjoyed by prerevolutionary parliaments. 
It will be necessary later to show that the authority of these earlier 
parliaments had never been an arbitrary one.

If then Bolingbroke is right in what he says of the Septennial Act, if that 
statute would have seemed nothing less than "monstrous" to the 
revolutionists of 1688, it seems clear that to those revolutionists the 
dictum of Northington and Mansfield in 1766, so strenuously opposed by 
Camden and the Americans at the time, that "every government can arbitrarily 
impose laws on all its subjects," would have been tenfold more monstrous. In 
fact, on the basis of this and other evidence, it seems no exaggeration to 
say that the Whig theory of the state after 1760 is hardly to be 
distinguished from the principles of James II which had brought on the 
Revolution of 1688. In one, as in the other, the government assumed 
authority to impose laws arbitrarily. The only difference lay in the fact 
that in the one case this arbitrary government was under control of an 
unreformed parliament and that in the other it was dominated by the will of 
a despotic king. Even the conservative Burke was candid enough as late as 
1791 to admit that Englishmen of North America who in 1775 rebelled against 
such an arbitrary rule "stood in the same relation to England as England did 
to King James the second in 1688." If the principles of 1688 had persisted 
unchanged, one might well doubt whether there would ever have been an 
American Revolution.

Against the principles of 1766 a revolt was as nearly inevitable in America 
as the Revolution of 1688 had been in England. Consideration of these 
changes brings up the nice question whether the Americans were legally or 
constitutionally warranted in resisting this "monstrous" doctrine just 
because it was grown or was growing "familiar" to Englishmen in England by 
1733 and afterward ?though not necessarily in America. It is a very nice 
question indeed, and most recent American historians of our Revolution have 
apparently refused to follow me in an inclination ?which, nevertheless, I 
still feel ?to prefer the contention of Camden and the Americans, even on 
its strictly legal side, to that of Northington and Mansfield. Viewed from 
the more general standpoint of politics rather than of law, this contention 
has been less questioned, and there is almost a consensus that it 
undoubtedly justified political revolution even if not legal resistance. It 
is with this political aspect of the question that we are immediately 
concerned here, for it was these political developments which lay behind and 
beneath the changing conception of what any constitution was or should be. 
Paine, in saying that a constitution must always be antecedent to any 
rightful government, was laying down a political maxim, not a rule of 
English law.

And whether we subscribe or not to the characterization of Thomas Paine by a 
former President of the United States as "a dirty little atheist," in which 
every single item seems to be inaccurate, we must, I think, at least agree 
that the analysis Paine made of the early American constitution was 
remarkably acute. The significant points in that analysis are these:

     That there is a fundamental difference between a people's
     government and that people's constitution, whether the
     government happens to be entrusted to a king or to a
     representative assembly.

     That this constitution is "antecedent" to the government.

     That it defines the authority which the people commits to its
     government, and in so doing thereby limits it.

     That any exercise of authority beyond these limits by any
     government is an exercise of "power without right."

     That in any state in which the distinction is not actually observed
     between the constitution and the government there is in reality no
     constitution, because the will of the government has no check
     upon it, and that state is in fact a despotism.

One thing alone Paine fails to make fully clear. If a government exercises 
some "power without right," it seems to be necessarily implied that the 
people have a corresponding right to resist. But is this a legal or is it 
only a political right? Is such resistance a legalized rebellion or merely 
an extralegal revolution? Or, further, is it possible to incorporate in the 
framework of the state itself some provision or institution by which a 
governmental act or command ultra vires may be declared to be such, and 
subjects therefore exempted from its operation and released from any legal 
obligation to observe or obey it? In short, can government be limited 
legally and effectively by any method short of force? To these questions 
Paine gives no clear answer. It might be assumed that forcible resistance to 
power without right must itself be legal and not revolutionary; but in every 
case there seems no recourse except to force of some kind.

The one conspicuous element lacking in Paine's construction therefore seems 
to be the element of judicial review. Writing when he did, and as he did, to 
justify an actual rebellion, it is perhaps not strange that he was thinking 
primarily of politics rather than of law, that the "rights" he had in mind 
were the rights of man rather than the rights of the citizen, or that the 
sanction for these rights should be extralegal action rather than any 
constitutional check. Paine, like many idealists in a hurry, was probably 
impatient of the slowness of legal remedies for existing abuses. But others, 
who were more constitutionally minded than he, had begun to feel that any 
such remedies, to be truly effective, must ultimately have the sanction of 
law. Years before, Lord Camden had insisted that the principles of the law 
of nature must be incorporated in the British Constitution if they were to 
be observed, and that they actually were so incorporated. The necessary 
inference from such a principle as his is that the interpreters of law 
should be the ones to define the rights of individuals and to trace the 
bounds of legitimate government over them. The protection of rights became 
for him, and for all who thought as he did, the enforcement of 
"constitutional limitations." In America this had been vaguely felt long 
before Paine wrote his Rights of Man or even his Common Sense. In 1764 James 
Otis, in his Rights of the British Colonies Asserted and Proved, had said: 
"If the supreme legislative errs, it is informed by the supreme executive in 
the King's courts of law. ... This is government! This is a constitution."12 
In 1771 a remarkable instance occurs in the first of the sermons preached in 
the Old South Church in Boston on the anniversary of the so-called Boston 
Massacre. In it the preacher, the Reverend James Lovell, speaking of the 
king of England, said:

     He is gracious, but not omniscient. He is ready to hear our
     appeals in their proper course: and knowing himself, though the
     most powerful prince on earth, yet, a subject under a divine
     constitution of Law; that law he will ask and receive from the
     twelve judges of England. These will prove that the claim of the
     British parliament over us is not only illegal in itself, but a
     downright usurpation of his prerogative as King of
     America.13

This notion of the necessity in a constitutional state for a judicial 
interpretation and limitation of the acts of government was at first 
naturally vague and instinctive; it became fully and consciously developed 
only at a later date.

There is, however, another important side of Paine's conception of a 
constitution in which it might seem to differ fundamentally from the views 
of other opponents of arbitrary government in his own time and before. One 
of Paine's most fundamental assertions is that a true constitution is always 
antecedent to the actual government in a state. If by the word "antecedent" 
he means prior in time, he seems to be asserting a principle which can be 
true only of constitutions "struck off" consciously by a people at a 
definite time, as they had lately been formulated in the thirteen colonies 
in America. On such an assumption the only true constitution would appear to 
be a "written constitution" of a type familiar enough to us since 1776, but 
scarcely thought of before, except perhaps for a dozen years in the middle 
of the seventeenth century in England. This narrow and novel definition of a 
constitution may have been the one Paine had in mind, and the prominence in 
his political thought of the notion of a definite historical compact between 
the government and the governed makes it the more probable.

Antecedent, however, might well have been used by other men with a far 
different meaning. The quotation from Bolingbroke given above makes it 
evident that for him the principles of the Constitution stand before all 
acts of any government, not because they are prior to them in time, but 
because they are superior in character and in binding authority; and the 
same was certainly true of Burke. In fact, the traditional notion of 
constitutionalism before the late eighteenth century was of a set of 
principles embodied in the institutions of a nation and neither external to 
these nor in existence prior to them. A constitutional state was one that 
had preserved an inheritance of free institutions. Precedent was the very 
life of these institutions as it was of all law. It was the retention of 
"ancient" liberties for which liberals thought they were fighting, not the 
creation of new ones a priori.

For some of the earlier of these "liberal conservatives" the safeguarding of 
necessary liberties seems to have implied the preservation intact of the 
customary law of the nation in its entirety. Sir Edward Coke, for example, 
appears to have thought that nothing less than the whole body of the English 
common law must be kept inviolate if the liberty of the subject was to be 
protected against arbitrary rule. For him the whole of the common law was in 
a sense "fundamental." He was still thinking in medieval fashion of law as 
custom, and all customary law had for him a higher sanction than 
"legislation" of any kind. Liberty, in his mind, was far from the abstract 
notion of the period of the Enlightenment. It still consisted, as in earlier 
ages, of specific concrete rights and of the whole body of these specific 
rights. He thought in terms of rights, not of right; of liberties, not of 
liberty; and he identified these concrete liberties with franchises.14

In one of the speeches of James I there is an interesting illustration of this habit
of thought among English common lawyers, and also of the emergence of a
view that we might possibly call more modern, although its roots are very old.
In 1607, contrasting the Scots with the English, the king said:

     Their meaning in the word of Fundamentall Lawes, you shall
     perceive more fully hereafter, when I handle the obiection of the
     difference of Lawes: For they intend thereby onely those Lawes
     whereby confusion is avoyded, and their Kings descent
     mainteined, and the heritage of the succession and Monarchic,
     which hath bene a Kingdome, to which I am in descent, three
     hundreth yeeres before CHRIST: Not meaning it as you doe, of
     their Common Law, for they have none, but that which is called
     Ius REGIS.15

The king, in this passage, is making essentially the same distinction that 
we now make as a matter of course between "constitutional" and other law. In 
restricting this constitutional law as he did to the jus regis or jus 
coronae he reflects his own extreme view, or monarchy by divine right, and 
there were undoubtedly some precedents for so restricting it, not only in 
Scotland but in France and England as well. But the main point is that in 
this view all customary law is not equally "fundamental," that some parts of 
it are by their inherent character more so than others, and that these parts 
are the ones concerned with the supreme governmental organ of the state. 
While these fundamentals went no further for James than the guarantee of his 
own royal rights, by others they might be extended and were extended to 
include some limitations in the interest of subjects as well. S. R. Gardiner 
was of opinion that the phrase "fundamental law," as a guarantee of the 
rights of the subject, came into use only after the ship-money trial, but 
there are some rather striking even if somewhat vague instances of it that 
antedate this by a good many years; such, for example, as the assertion of 
Sir James Whitelocke in 1610 that taxation without sanction of parliament 
"is against the natural frame and constitution of the policy of this 
Kingdom, which is Jus publicum regni, and so subverteth the fundamental law 
of the realm, and induceth a new form of state and government," as well as 
"against the municipal law of the land, which is Jus privatum, the law of 
property and of private right." 16

From the evidence of recent times, of which I have had room for only this 
small number of scattered illustrative cases, one or two general principles, 
or tendencies rather, may, I think, be legitimately deduced; and I should 
like to state these in somewhat brief and summary form as the basis or 
starting point for the survey to follow of the long historical evolution 
which lies behind them.

Whatever we may think of it theoretically, Paine's notion that the only true 
constitution is one consciously constructed, and that a nation's government 
is only the creature of this constitution, conforms probably more closely 
than any other to the actual development in the world since the opening of 
the nineteenth century. Whether this construction was actually prompted in 
the first instance by doctrinaire political philosophers, as seems largely 
true in France, or by actual political experience, as the history of the 
time appears to indicate in the revolted North American colonies of Great 
Britain, it is certainly true that most subsequent constitutional 
developments have followed the same lines. Written constitutions creating, 
defining, and limiting governments since then have been the general rule in 
almost the whole of the constitutional world. The precedent for these, first 
developed in North America, was naturalized in France and from there 
transmitted to most of the continent of Europe, from which it has spread in 
our own day to much of the Orient. Even the British self-governing colonies 
have been deeply influenced by it.

One of the curious anomalies arising out of this development is the striking 
exception to it furnished by England herself, the one country above all 
others in which limitations on government have been in more or less 
effective operation since medieval times. But the exception of England seems 
more apparent than real. The essential principles to which Burke and Camden 
and Otis appealed were no less constitutional because they were "unwritten"; 
and the true reason why England, probably the most constitutional of modern 
European nations, has also remained the only one whose constitution has 
never been embodied in a formal document, is not that she has had no 
constitution, as the French sometimes say, but rather that limitations on 
arbitrary rule have become so firmly fixed in the national tradition that no 
threats against them have seemed serious enough to warrant the adoption of a 
formal code. Since written constitutions came into vogue in the late 
eighteenth century, England has never experienced any of the violent changes 
which gave France so many successive written constitutions in the 
nineteenth. Yet, it might be objected, the thirteen British colonies, whose 
traditions were those of the mother country, did without exception adopt 
such written constitutions, and our federal written constitution is merely 
the result of them.

The answer is twofold. First, our early American written constitutions might 
be said with little exaggeration to consist mainly of a codification of 
institutions and principles long in actual force. They are far less 
doctrinaire or a priori than those of France or the rest of continental 
Europe. And, second, our independence constituted a break in continuity here 
requiring a written code, such as England has never known, at least since 
1660. For even the Revolution of 1688, important as it was, made few 
structural changes that could be set forth in a formal document even if men 
had thought of it. The Bill of Rights of 1689, the Triennial Act of 1694, 
and the Act of Settlement of 1701, which embody nearly the whole of the 
revolution settlement which obtained the sanction of law, were enacted in 
the form of ordinary statutes. Nevertheless, there are indications that 
these enactments were at that time thought to be in some sense, or in some 
degree, fundamental. The language of the Triennial Act ?that writs shall 
issue for the assembling of a new parliament "within three years at the 
farthest, from and after the dissolution of this present Parliament, and so 
from time to time forever hereafter" ?certainly furnishes some ground for 
Bolingbroke's assertion that a revolutionary change took place between 1694 
and 1716 which even the men of 1688 might have considered "monstrous." If we 
confine our view to Anglo-Saxon institutions, there is less difference 
between a "written" and a so-called "unwritten" constitution than the terms 
"rigid" and "flexible," made current for them by Lord Bryce, would seem to 
imply. England has had no such occasion, or rather no such necessity, as we 
in America had about 1776, to codify her fundamental constitutional 
principles. But such principles did exist, and still do exist, and in times 
of stress we hear occasional demands even for a codification of them. From 
1911 to 1914 the so-called "die hards" or "last-ditchers" among the members 
of the House of Lords were calling for some protection for themselves 
stronger than their right of participation in all acts of parliament; and in 
1914 a small group of unionists even proposed the revival of the so-called 
royal veto on legislation in the case of the Irish Home-Rule Bill, a branch 
of the royal prerogative which had not been exercised for some two 
centuries.

In 1914 a short-lived review was founded to voice these points of view, The 
Candid Quarterly Review. Its first number contains some remarkable 
statements whose gist may probably be best gathered from an extract:

     But the modern doctrine is that they [the former attributes of the
     King] have been somehow transferred from the King to the
     Minister; that they exist now only in the Minister. The Minister
     has become the King with all the Kingly attributes; the King has
     become the Minister with only the Ministerial duties. The gilt
     coach which bears the King to Parliament contains, in fact,
     Nothing: the taxicab which bears the Minister to Downing
     Street, Everything.17

This, the writer insists, is a great usurpation. The salaried parliament, 
the sale of honors, the Parliament Act of 1911, and the Irish Home-Rule Bill 
are all parts of a corrupt conspiracy to deprive the king of his prerogative 
and the people of their liberty. Therefore the king should exercise his 
legal and fundamental right, disused for two hundred years, and veto the 
Home-Rule Bill. The writer implies also that the Parliament Act, in leaving 
to the Lords a mere power of suspension, is void for unconstitutionality.

The Great War, which ensued in a few months, drew attention away from these 
constitutional questions, but they might come to the top again, and are 
almost sure to do so when a similar issue arises. It would, in short, not be 
surprising if in the years to come there were further, more frequent, and 
more widespread demands in England for "somewhat Fundamental, somewhat like 
a Magna Charta, that should be standing and be unalterable" ?the words of 
Oliver Cromwell in 1654.18 The extension of the elective franchise has been 
completed in England only in our own day. Most of it has occurred within the 
lifetime of men still living. And the political results of it are not yet 
fully apparent. The membership of the House of Commons, notwithstanding the 
successive enlargements of the electorate, is still to a great degree 
aristocratic, and aristocratic traditions still control and limit 
parliament's actions to an extent surprising to anyone who has not made a 
study of it. These traditions, inherited from an earlier time, still operate 
as inhibitions on parliamentary action almost as effective as legal 
prohibitions. So long as they do, the need for legal restrictions on the 
lawmaking organ will not be pressing, and the legal doctrine of the 
omnipotence of parliament is likely to remain little questioned. That 
doctrine is left unchallenged only because it has not yet been found to be 
dangerous to any class numerous enough and powerful enough successfully to 
oppose it.19 On the other hand, it requires little prophetic insight to note 
that this situation cannot be permanent. The legal doctrine of parliament's 
omnipotence could never have persisted even to this day in England if its 
edge had not been blunted by conventions whose operation has been 
practically as invariable as that of the law itself.

When these conventions lose their effectiveness there will be a demand for 
law and the conventions will either be turned into laws or disregarded 
altogether. We have had an instance of this in recent times. Parliamentary 
omnipotence thus far has met its principal obstacle in imperial matters. The 
doctrine was challenged in North America in the eighteenth century and the 
American Revolution was the result. In our own time, in the recent Statute 
of Westminster, we have seen the breakdown of convention in Canada and the 
substitution of law in its place. It is natural that these striking 
instances of the growing inadequacy of convention should occur in the 
colonial sphere, where tradition is less firmly rooted than in the mother 
country. In England itself the equilibrium of law and convention has often 
been noted, especially since Walter Bagehot called attention to it in his 
classical analysis of the English constitution. Most persons are familiar 
with Bagehot's famous remarks on the prerogative, made in 1872 in the 
introduction to the second edition of his English Constitution. Without 
recourse to parliament, by an exercise of mere prerogative, the queen, he 
says,

     could disband the army. ... She could sell off all our ships of war
     and all our naval stores; she could make a peace by the sacrifice
     of Cornwall, and begin a war for the conquest of Brittany. She
     could make every citizen in the United Kingdom, male or
     female, a peer; she could make every parish in the United
     Kingdom a "university"; she could dismiss most of the civil
     servants: she could pardon all offenders.

What makes impossible the more serious of these prerogative rights Bagehot 
thought to be impeachment. But impeachment has long been obsolete, and was 
so in 1872 when Bagehot wrote. It seems very doubtful whether impeachment 
could be successfully revived for the conviction of a minister of state 
involved in such transactions. The possibility of revolution would seem to 
be the only real deterrent, just as it was in 1688 when James II made 
excessive use of a legitimate discretionary power. But in matters of this 
sort attention has in the past been directed mainly to the crown and the 
prerogative. The same threat of revolution effective against the crown, 
however, might be brought by the people against a parliament which outraged 
their feelings of what was just and right. This seems less likely to occur 
because parliament will in time come more and more to reflect the changing 
social and economic views of the new classes rising to political power. What 
we may expect for the near future, I think, is not a revolution against 
parliament but a transformation of it. Already, in the short period since 
the election of the first Labor representative, which some of us can 
remember, significant omens of change have appeared.

Anyone who frequented sessions of the House of Commons at the turn of the 
century and sees it now when some important and keenly contested social 
question is under discussion will be impressed by the difference. Outwardly 
there seems to be little change. The House of Commons looks just as it did 
and, when feelings are not aroused, it acts so too. But at times it is 
noticeable that language is less restrained than formerly in the House. 
Conventions inherited from the time when government and opposition were 
drawn from the same social class are broken more frequently. There is a 
subtle difference of atmosphere. When one considers the new elements that 
have entered parliament, it seems surprising that this change is no greater 
than it is, but a change has occurred nevertheless, and it is a symptom of 
possible changes to come much more fundamental in character. As the 
restraining influence of tradition grows weaker, the danger of a tyranny of 
the majority comes nearer, and the time may arrive when convention must give 
way to law if the rights of minorities are to be respected and safeguarded 
as they have been in the past. A popular despotism must result if the 
omnipotence of parliament ever becomes in practice what it now is in law. 
Because it is not yet so, England is today an exception more apparent than 
real to the principle laid down by Thomas Paine, that in any state in which 
the government constitutes itself "with what power it pleases" there is in 
reality "merely a form of government without a constitution."

As a general principle I think we must admit the truth of Paine's dictum 
that "a constitution is not the act of a government but of a people 
constituting a government." And, if this be true, the consequence is that 
the forms and limits followed in this "constituting" become the embodiment 
of a "constitution," superior in character to the acts of any "government" 
it creates. If, for example, this constituent act of the people entrusts 
certain definite powers to their government, "enumerated powers" as we term 
them, it is a necessary inference that this government cannot exercise any 
powers not so "enumerated." All constitutional government is by definition 
limited government. We may not agree that these limits are necessarily 
"antecedent" in the sense of that term that Paine had in mind, but for 
everyone they must be in some sense "fundamental," and fundamental not 
merely because they are basic, but because they are also unalterable by 
ordinary legal process.

The phase in the development of these political conceptions to which I have 
asked your attention thus far is the latest phase in that development, what 
might be called the "self-conscious" phase, in which the people are thought 
of as creating their constitution by direct and express constituent action. 
But I think enough has been shown to prove that this latest phase is only 
the outcome of an earlier and a much longer one, in which constitutions were 
thought of not as a creation but as a growth; not as a national code so much 
as a national inheritance. Our modern tendency to identify all law with 
legislation has modified the notions respecting constitutional as well as 
private law. We no longer think of either as the medieval man did, as 
custom, binding because it extends backward to a time "whereof the memory of 
man runneth not to the contrary."

It is the long development of this earlier and less conscious phase that I 
am to treat in more detail, but before doing so may I point out in advance 
what I hope will become obvious in the historical treatment, namely, that in 
all its successive phases, constitutionalism has one essential quality: it 
is a legal limitation on government; it is the antithesis of arbitrary rule; 
its opposite is despotic government, the government of will instead of law. 
In modern times the growth of political responsibility has been added to 
this through the winning of the initiative in the discretionary matters of 
national policy by the people's representatives, and of that more anon; but 
the most ancient, the most persistent, and the most lasting of the 
essentials of true constitutionalism still remains what it has been almost 
from the beginning, the limitation of government by law. "Constitutional 
limitations," if not the most important part of our constitutionalism, are 
beyond doubt the most ancient.



                       CHAPTER II

          The Ancient Conception of a Constitution

IN THE Oxford Dictionary, which I have long thought of as the best single 
textbook of the history of our peculiar institutions and ideas, several 
meanings of the word "constitution" are listed. It may mean the act of 
establishing or of ordaining, or the ordinance or regulation so established. 
It may mean the "make" or composition which determines the nature of 
anything, and may thus be applied to the body or the mind of man as well as 
to external objects. In the Roman Empire the word in its Latin form became 
the technical term for acts of legislation by the emperor, and from Roman 
law the Church borrowed it and applied it to ecclesiastical regulations for 
the whole Church or for some particular ecclesiastical province. From the 
Church, or possibly from the Roman lawbooks themselves, the term came back 
into use in the later middle ages as applicable to secular enactments of the 
time. In England the famous Constitutions of Clarendon of 1164 were referred 
to by Henry II and others as "constitutions," avitae constitutiones or 
leges, a recordatio vel recognitio of the relations purporting to have 
existed between church and state in the time of Henry's grandfather, Henry 
I. But in substance these were ecclesiastical provisions even though they 
were promulgated by secular authority, and this may account for the 
application to them of the word "constitutions." The word, however, is often 
found in a purely secular use at this time; though scarcely in any technical 
sense, for we find other words such as lex or edictum used interchangeably 
with constitutio for a secular administrative enactment.1 As just noted, the 
Constitutions of Clarendon are referred to in the document itself as a 
"record" (recordatio) or a "finding" (recognitio). The author of the Leges 
Henrici Primi, who wrote early in the twelfth century, soon after the 
appearance of Henry I's well-known writ for the holding of the hundred and 
county courts, also refers to that writ as a "record."2 Glanvill frequently 
uses the word "constitution" for a royal edict. He refers to Henry II's writ 
creating the remedy by grand assize as legalis ista constitutio,3 and calls 
the assize of novel disseisin both a recognitio and a constitutio.4 Bracton, 
writing a few years after the statute of Merton of 1236, calls one of its 
provisions a "new constitution,"5 and refers to a section of Magna Carta 
reissued in 1225 as constitutio libertatis.6 In France about the same time 
Beaumanoir speaks of the remedy in novel disseisin as une nouvele 
constitucion made by the kings.7 

At this time, and for centuries after, "constitution" always means a 
particular administrative enactment much as it had meant to the Roman 
lawyers. The word is used to distinguish such particular enactments from 
consuetudo or ancient custom. It is apparently never used in our modern 
sense, to denote the whole legal framework of the state. It would require a 
very detailed examination of the legal and political writings of several 
centuries to enable one to say with any confidence when this modern notion 
of a constitution first appears. I cannot claim to have made any such 
examination, but I cannot recall from my reading any clear instance of it 
before the opening of the seventeenth century. In 1578 Pierre Grgoire of 
Toulouse uses the word almost in our modern sense in his De Republica, but 
the context seems to me to indicate a somewhat wider and more general sense 
of constitutio than the strictly political meaning the word "constitution" 
now conveys, for which Grgoire seems to use the older phrase status 
reipublicae.8 The first instance given in the Oxford Dictionary of the use 
of the word "constitution" for the whole legal framework of a state is a 
phrase of Bishop Hall's in 1610, "The Constitution of the Common-wealth of 
Israel," and in my first lecture I quoted some words of Sir James 
Whitelocke's of the same year, possibly not quite so definite but even more 
striking: "the natural frame and constitution of the policy of this Kingdom, 
which is jus publicum regni."

This use of the term "constitution" may have been new in 1610, but the idea 
it conveys is in reality one of the oldest, if not the very oldest, in the 
whole history of constitutionalism. Whitelocke's phrase which I have just 
given ?"the natural frame and constitution of the policy [i.e., polity] of 
this Kingdom, which is jus publicum regni" ?in reality includes two 
conceptions of a constitution closely connected and at times combined, but 
nevertheless distinct in character. One appears in Whitelocke's first words, 
"the natural frame of the state," and this idea seems as old as the politeia 
of the Greeks, which we usually translate by our word "constitution." The 
other conception is expressed by Whitelocke's other phrase, "jus publicum 
regni," the public law of the realm. The latter conception may not be as 
ancient as the former, but it is very old. Cicero, for example, voices it in 
his De Re Publica in a passage which contains the first use that I know of 
the word "constitution" in its accepted modern sense. In commending a mixed 
form of government, Cicero says, "This constitution (haec constitutio) has a 
great measure of equability without which men can hardly remain free for any 
length of time."9 Further on he says,

     "Now that opinion of Cato becomes more certain, that the
     constitution of the republic (constitutionem rei publicae) is the
     work of no single time or of no single man."10

It is these two forms of early constitutionalism expressed by the Greek 
politeia and by the Latin constitutio, and their interrelations in history, 
that I propose to try to trace; and I shall begin with the more ancient, the 
politeia of the Greeks.

Of all the varied meanings of which our word "constitution" is susceptible, 
the Greek politeia conforms to one of the most ancient. It means above all 
the state as it actually is. It is a term which comprises all the 
innumerable characteristics which determine that state's peculiar nature, 
and these include its whole economic and social texture as well as matters 
governmental in our narrower modern sense. It is a purely descriptive term, 
and as inclusive in its meaning as our own use of the word "constitution" 
when we speak generally of a man's constitution or of the constitution of 
matter. As Sir Paul Vinogradoff says:

     The Greeks recognized a close analogy between the
     organization of the State and the organism of the individual
     human being. They thought that the two elements of body and
     mind, the former guided and governed by the latter, had a
     parallel in two constitutive elements of the State, the rulers and
     the ruled.11

There is nothing in the Greek language "corresponding to the Latin jus."12 
It is

     characteristic of the development of Greek juridical ideas that
     the "law of nature," though appealed to as a philosophical
     explanation of existing facts, does not serve as a means for
     concrete juridical deductions. It was at a later stage ?with the
     advent of Stoicism, especially in its Roman form ?that the law
     of nature began to be considered as a source of law in the
     practical sense of the term.13 In Athens there was no
     consolidated constitution.14

The analogy between state organization and the human organism involved, as
Mr. W. L. Newman truly says,

     that which was to a Greek the central inquiry of Political
     Science. ... It was thus that in the view of the Greeks every
     constitution had an accompanying ethos, which made itself felt in
     all the relations of life. Each constitutional form exercised a
     moulding influence on virtue; the good citizen was a different
     being in an oligarchy, a democracy, and an aristocracy. Each
     constitution embodied a scheme of life, and tended, consciously
     or not, to bring the lives of those living under it into harmony
     with its particular scheme. If the law provides that the highest
     offices in the State shall be purchasable or confines them to
     wealthy men, it inspires ipso facto a respect for wealth in the
     citizens.15

From the Greek political classics instances almost without number might be 
given of this conception of a constitution as the ethos of a people, but I 
can mention only one or two. "Our whole state," Plato says in the Laws, "is 
an 'imitation' (mimesis) of the best and noblest life."16 In the 
Panathenaicus Isocrates says that the politeia is the "soul (psyche) of the 
polis" with power over it like that of the mind over the body;17 and 
Aristotle, in the Politics, calls it "in a sense the life of the city."18 
From this conception of the nature of the constitution, in which Greeks of 
every philosophical party seemed to share, there followed results of great 
importance both theoretical and practical.

As Sir Paul Vinogradoff says, there is nothing in the Greek language which 
quite corresponds to the Latin word jus; and there seems to be nothing in 
the Greek conception of the state or of its constitution to correspond to 
the jus regni of Sir James Whitelocke. The Greeks made no such clear 
distinction as the Roman one between jus publicum and jus privatum; their 
politics consisted of a philosophical explanation of actual facts rather 
than a basis for concrete juridical deductions. Natural law, if admitted at 
all, became the criterion merely of the comparative excellence of a state's 
form of government; it never became for the Greeks as for the Romans the 
test of a government's legitimacy. And by the Sophists of every kind natural 
law was not admitted at all. "The tribe of Sophists," as Plato says in his 
Sophista, "is not easily caught or defined"; but the subjectivism or 
relativity that marked the philosophy of them all precluded even a 
comparison of constitutions, because it denied the existence of any values, 
or norms, or objective standards, which alone could warrant anyone in saying 
that one state's constitution was better or worse than another's. And even 
the great opponents of the Sophists, such as Plato and Aristotle, in their 
assertion of objective reality and of the possibility of man's apprehending 
it, although they believed in a universal law of nature, never went so far 
as to say that this was a coercive law. They never could have said as Cicero 
did, that states have no power through senate or people to free themselves 
from it.19 Natural law meant to them, as to the modern scientist, no more 
than the fact of invariability. It carried with it no notion of sanction.

One of the clearest statements of this Greek attitude toward the fundamental 
relations of government to law is to be found in the Politicus or Statesman 
of Plato, a dialogue whose central theme is the problem of 
"constitutionalism" ?of all Plato's dialogues the one most directly 
concerned with the subject we have now in hand. I have long felt that this 
dialogue, though less fundamental, no doubt, than the Republic, has been too 
much neglected in our estimate of Plato's real political position and 
purpose; and not of his own position alone, but of the normal attitude 
toward constitutionalism in the Academy and the Lyceum at least, if not in 
Greece generally.

It was mainly with this work, rather than with the Republic, Professor 
Jaeger insists, that Aristotle's study of Plato's political doctrines was 
concerned,20 and he shows conclusively throughout his remarkable book how 
vitally important that study was in forming the political conception which 
Aristotle held to the very end. "He had accepted Plato's doctrines with his 
whole soul," Professor Jaeger says, "and the effort to discover his own 
relation to them occupied all his life, and is the clue to his 
development."21

The central question discussed in the Politicus is the perennial one of the 
proper relation of government to law. Plato has been claimed as a fellow by 
some of the modern proponents of the totalitarian state, but how anyone 
could honestly make such a claim after he had carefully pondered the 
Politicus is wholly beyond my comprehension. If one should disregard Plato's 
plain statements of his purpose in the Republic, it is perhaps conceivable 
that one might distort that dialogue into a defense of actual arbitrary 
governments; yet the whole discussion in the Politicus plainly shows that 
this is not Plato's true position but the very antithesis of it.

It is true that even in the Politicus the defects of constitutional 
governments are clearly recognized. In fact they are probably stated with 
greater distinctness in this dialogue than in any other of the Platonic 
writings. Constitutional government, Plato admits, is to be regarded only as 
a "second best" (os deuteron as compared with to proton). But the "first" or 
best type of political relations, a government unhampered by law, is, he 
declares unequivocally, only an ideal of which actual states can never be 
more than an approximation, and usually not a very close approximation. 
Limitations of law always do hamper government; and, provided the government 
is a good one, there may be good things that such a government can achieve, 
if unrestricted, which these limitations of law render impossible of 
accomplishment.

The problem that Plato faces here is a practical one that is likely to 
persist as long as government itself. A constitutional government will 
always be a weak government when compared with an arbitrary one. There will 
be many desirable things, as well as undesirable, which are easy for a 
despotism but impossible elsewhere. Constitutionalism suffers from the 
defects inherent in its own merits. Because it cannot do some evil it is 
precluded from doing some good. Shall we, then, forego the good to prevent 
the evil, or shall we submit to the evil to secure the good? This is the 
fundamental practical question of all constitutionalism. It is the foremost 
issue in the present political world; and it is amazing, and to many of us 
very alarming, to consider to what insufferable barbarities nation after 
nation today is showing a willingness to submit, for the recompense it 
thinks it is getting or hopes to get from an arbitrary government. This 
great problem is the central one in Plato's dialogue, and Plato's answer to 
it cannot but interest the present-day reformer as well as the historian of 
constitutional development.

That answer is based on the fundamental distinction, but at the same time 
the very close connection, sometimes overlooked or underestimated, between 
the ideal on the one hand and the actual or the attainable. Plato's Republic 
deals with an unattainable ideal; his Politicus treats of the attainable in 
its relation to this, same ideal. The attainable is less perfect than the 
ideal, and it is the presence of legal restriction that makes it so; for 
law, as Plato says, is

     like an obstinate and ignorant tyrant who will not allow anything
     to be done contrary to his appointment or any question to be
     asked ?not even in sudden changes of circumstances, when
     something happens to be better than what he commanded for
     some one.

     The law cannot comprehend exactly what is noblest or more
     just, or at once ordain what is best, for all. The differences of
     men and actions, and the endless irregular movements of human
     things, do not admit of any universal and simple rule. No art can
     lay down any rule which will last forever.

     A perfectly simple principle can never be applied to a state of
     things which is the reverse of simple.

How familiar these objections to constitutionalism sound! Their burden is 
always the present insufficiency of law inherited from some "horse and 
buggy" era in the past. And of course no one could deny the validity of such 
objections. There is a practical recognition of them in the history of our 
equitable remedies for the deficiencies of rigid legal rules, and the 
entrusting to governments of a discretionary power in exceptional cases to 
dispense with law or to pardon a breach of it necessarily implies the 
admission that this law, especially if it is an ancient law, can never 
secure adequate justice in every particular case. The principal defect of 
all law is at the same time its most essential and most valuable 
characteristic ?its generality.

It was considerations such as these that led Plato to hold that the best
government theoretically or ideally is one based upon the discretion of the
ruler and not upon law; and such a government conforms precisely to the
meaning of our word "despotism" ?in this case a perfectly benevolent
despotism, of course. So he asks:

     As the pilot watches over the interests of the ship, or of the
     crew, and preserves the lives of his fellow sailors, not by laying
     down rules, but by making his art a law ?even so, and in the
     self-same way, may there not be a true form of polity created by
     those who are able to govern in a similar spirit, and who show a
     strength of art which is superior to the law?22

From this sentence it is evident, as it is from the whole tenor of the 
dialogue, that the ideally best rule exists where the ruler is not limited 
by law but makes his art a law. But another thing is equally evident here 
and equally prominent throughout the Politicus, namely, that this "art" of 
the ruler shows "a strength of art which is superior to the law." This 
brings up the final and most crucial question of all. Is Plato in this 
dialogue insisting on the superiority of despotism over constitutionalism as 
a principle of practical politics, or is he trying to illustrate the very 
opposite? To put it more concretely, does Plato believe in the actual or 
possible existence of any ruler with such "strength of art" that his "art" 
should be the only law of the state? He evidently believes such a 
philosopher-king ought to rule as a despot if you could only find him. But 
does he believe that such an incomparable embodiment of omniscience, 
omnicompetence, and utter benevolence could possibly exist except in the 
imagination? It is interesting to note the historical tendency of peoples 
generally to deify their rulers once they have conceded despotic authority 
to them. A divine competence in a ruler is in fact the only real 
justification of a despotism; and where there is despotism the apotheosis of 
the ruler is likely sooner or later to appear in some form. It is 
interesting but not strange to find Cardinal Ballarmine in the sixteenth 
century arguing that the Church should have a despotic government because 
the Church is divine, while the state ought to have a limited government 
because the state is human. The answer to the question whether Plato was 
politically an absolutist or a constitutionalist depends then on the answer 
to another: Did Plato believe that his philosopher-king had appeared or 
could possibly appear in any actual state on earth? Through what seems to me 
a misinterpretation of the Republic, some have attributed the latter view to 
Plato, but the whole argument of the Politicus is against it; and I cannot 
agree with those who find in the Politicus inconsistency with the Republic 
or a contradiction of it. Like Cardinal Ballarmine, and on much the same 
general grounds, Plato regarded absolute government as the only celestial 
one and celestial government as the only one properly absolute.

A godlike ruler should rule like a god, and if a godlike man should appear 
among men, godlike rule would and should be gladly conceded to him. This was 
Aristotle's view, and he may well have got it from the teachings of Plato. 
But I know of nothing in all Plato's writings which indicates a belief in 
the actual, or even the possible, existence of a superman like this; and 
without such a demigod despotism becomes for Plato, not the best, but the 
worst of all possible governments. Between these two extremes lay his 
second-best state under constitutional rule. It is of little consequence 
that there should be one ruler, or a few or many rulers, in such a state, 
provided the government be limited by law; and, in the cases where it is so 
limited, Plato finds an approximation of the "art" of the perfect despot 
close enough to warrant him in speaking of monarchy, aristocracy, and a 
constitutional democracy as forms of government, sadly defective indeed, but 
true; in comparison with the three corresponding perverted forms, in all of 
which men totally devoid of any "strength of art" superior to the law ?the 
only justification of despotism ?have nevertheless made their own art the 
state's sole law.

It may seem a paradox, if not even worse, to say, as Plato does here, that 
actual despotisms are less closely akin to the ideal despotism than these 
constitutional governments which at first sight seem so much less like it. 
But to Plato it is not the external form of a state that differentiates it 
from another, but the guiding inner principle of its political life, above 
all the presence or absence of justice. In a constitutional government the 
laws under which the state is ruled are far inferior to the wisdom of the 
perfect ruler, chiefly on account of their rigidity; but these laws are none 
the less "imitations" (mimemata) of that perfect wisdom ?very faulty 
"copies" of the government of the ideal state. They are copies, and copies 
which to Plato embody a greater measure of true justice than the arbitrary 
will of vicious or ignorant men can ever do; and even the best of men are 
more or less vicious and ignorant. Law, as Aristotle says, is "intelligence 
without passion."23

For the subject with which we are immediately concerned ?constitutionality 
in its actual rather than its ideal form ?the Politicus seems to disclose 
Plato's real opinions more clearly than his description of omniscient 
despotism in the unattainable ideal of the Republic. If the Politicus gives 
us a true picture of its author's mind, he was certainly no advocate of 
arbitrary government in the actual political world. In this dialogue he does 
not explain at length just why he thinks national custom a safer guide than 
the fiat of government, but he gives unmistakable evidence that he does 
think so. His preference for the Rechtsstaat may have been mainly pragmatic. 
In the Laws he notes that all other states are "on the highway to ruin,"24 
and appeals to that right reason "which the law affirms, and which the 
experience of the best of our elders has agreed to be truly right."25 But 
whatever the grounds for it may have been, his belief in the superiority of 
law over will as a principle of actual government can hardly be doubted.

If then the Politicus gives a true indication of Plato's political beliefs, 
and if my hurried summary of it is not inaccurate, there is little comfort 
to be derived from him by believers in totalitarianism.

One further point alone I can stop to note about his constitutionalism. In 
common with Socrates and Aristotle and in opposition to the Sophists, he 
believed in a universal norm of political life to be apprehended through 
human reason or "nature," by which the various forms of polity may be judged 
and compared; and this norm might be roughly termed a "law of nature." But 
there is one striking difference between the conception of a "law of nature" 
as he held it ?and as did apparently all his Greek contemporaries of every 
party ?and the one later transmitted by the Stoics to Rome. The law of 
nature is to him no more than a basis of comparison. He thinks of this law, 
as he thinks of all law, merely as an intellectual standard. Law is nothing 
more than the uniformity of nature, and human law is likewise nothing but 
the common apprehension of a part of this uniformity by man. It is thus a 
common "yardstick" by which one form of polity may be compared on its merits 
with another, and even one enactment made within a state with another. The 
latter is the distinction between true law in the abstract (nomos) and 
particular laws (nomizomena), dealt with in the Platonic dialogue Minos ?
Platonic whether by Plato or not. Such particular laws are good when they 
embody the true law and not otherwise.

But with this comparison of polities or of laws Greek constitutionalism of 
the classical period seems to stop. It goes no further than mere 
intellectual assessment or comparison. It may pronounce that a given polity 
or particular law is bad; it does not go on to say it is not binding. It may 
even say that these bad enactments are not true law at all, but it does not 
say they can be disregarded. As Rehm observes, the customary definition of 
the state was not a legal definition at all, but a political one;26 the 
ancient theorists were concerned primarily with an "ethico-political 
appraisal of the relations between the state and other forms of human 
association," 27 not with the "sovereignty" which bulks so large in all 
modern discussions of political relations. Aristotle's word for the 
supremacy in a state corresponding to our "sovereignty," to kyrion, does not 
imply supreme constituted authority, as sovereignty does, but a supremacy in 
fact only.28 In short, the conception of constitutionalism based on the 
notion of law prevailing generally in this period is of a constitution in 
the primitive sense noted above, of the whole nature or "composure" of a 
thing. Such a conception of law may warrant one in saying that a particular 
enactment is bad, but never that it is not legitimate. There is no room 
under such a conception for any distinction such as we make between a 
provision that is binding because constitutional and one that is void for 
unconstitutionality. What this amounts to is that "the law of the 
constitution," if we might employ such a phrase, is not coercive but only 
normative; and that constitutions have no sanction in our modern sense. 
Whatever the phrase "an unconstitutional law" might have meant for Plato or 
for Aristotle, if he had ever used it, it would never have meant a law void 
on account of unconstitutionality; and, while a "constitutional law" might 
conceivably have meant one concerned with the framework of the state, it 
could never have been a "fundamental" law in our sense of that phrase.

The difference just noted between our notion of constitutionality and the 
antique one is only one aspect of the difference between the modern and the 
ancient view of the state in general. Before the Stoics, Greeks apparently 
drew no clear distinction between society and the state, between the social 
and the civil. But institutions that are thus identical must also be coeval. 
Potentially at least, the state must therefore be as old as human 
association, there is no science of society apart from politics, and there 
can be no natural law older than the laws of actual states. As a 
consequence, the Greeks thought of the law in a state only as one part or 
rather as one aspect of the whole polity itself, never as something outside 
or apart from the state to which that polity must conform, nor even as any 
special provision within the state to which other laws are subordinate. If 
the Greeks thought of a law of nature as applying to a particular state at 
all, they meant by this natural law no more than that portion of a state's 
actual laws which in fact happens to be identical in all other states ?what 
Aristotle in his Rhetoric called "common law" (koinos nomos);29 they had in 
mind no "fundamental" principles which must invalidate a municipal law 
inconsistent with them; in short, they thought of law in terms of the state, 
not of the state in terms of law, as the Roman and the medieval man 
invariably did. It was only after the appearance of a notion of a higher and 
an older law, out of which the laws of particular states are fashioned and 
to which they must conform in order to be valid, that the modern conception 
of constitutionalism could replace the ancient one. The change, however, has 
come when Cicero can define a state as a bond of law (vinculum juris); for 
here by law he means no law of the state itself, but an antecedent law, and 
one antecedent in time as well as sanction. He says expressly in his De Re 
Publica that this law is as old as the mind of God, existing long before 
there were any states in the world. But more important still, he adds that 
no state can ever enact any binding law in derogation of this law of nature, 
a statement that no Greek of the fifth or fourth century B.C. could have 
dreamt of making, even supposing that he could have understood it. There is 
probably no change in the whole history of political theory more 
revolutionary than this, and certainly none so momentous for the future of 
constitutionalism. From this great difference between the ancient and the 
modern conception of constitutionalism some very important practical results 
may be traced. Since, under the older conception, the politeia, or 
constitution as we may call it, included not merely a jus publicum regni but 
the whole life of the state, two or three great practical differences 
between ancient and modern states seem to be logically incident to it, 
differences that even a slight comparison of ancient and modern 
constitutional history clearly discloses. First, in the ancient regime there 
is no remedy for an unconstitutional act short of actual revolution. 
Secondly, such revolution, when it occurs, is usually no mere modification 
of the "public law," such as Whitelocke's jus publicum regni, but a complete 
overturn of the state's institutions, a change in its whole way of life. It 
is a social as well as a merely "political" revolution in our modern 
narrower sense of "political." Aristotle refers to such revolutions as a 
dissolution of the polities in which they occur; the "constitutions" and 
with them the states themselves are destroyed, or rather, actually 
"dissolved" (lyontai).30 Thirdly, it is this fundamental and far-reaching 
character of most actual revolutions in Greece, in so many cases touching 
everything in the state, social, economic, and intellectual, as well as 
governmental; changes usually carried out by violence, proscription, 
ostracism, and even death, in ways very similar to the proceedings so 
familiar to us in parts of Europe today and with much the same underlying 
causes ?it is this wholesale character of so many contemporary revolutions 
that accounts for the Greek fear of stasis and the nervous desire to risk 
almost anything that might prevent it. For stasis is a lack of equilibrium, 
a condition of disharmony in a state, which is almost sure to entail unrest 
and eventual revolution with all its usual horrors. Nothing less than such 
revolution and the constant dread of its results could have led Aristotle, 
for example, to advise tyrants how to prolong a type of government which he 
admits to be the most oppressive in the world as well as the shortest-lived; 
and Aristotle's attitude toward stasis indicated in the Politics is 
reflected in most of the political writings surviving from Aristotle's time 
in Greece. The Greek states were notoriously unstable, and this situation 
led to a desire to preserve the status quo which to us seems at times almost 
reactionary. The analysis that Aristotle gives of the causes of sedition is 
as keen as the remedies are often cynical. One has to pinch himself to 
realize that he is not reading from some resume of recent events in Europe 
when, for example, Aristotle says:

     It is as little possible to create a state in any arbitrary period of
     time as to create it of any arbitrary population. Accordingly the
     great majority of states to which a number of alien colonists have
     been admitted at the time of their foundation, or at a later date,
     have been the scenes of violent sedition.31

Or this:

     Polities generally are liable to dissolution not only from within but
     from without, when there is a state having an antagonistic polity
     near to them or distant but possessed of considerable power.32

Or take the following summary he gives of the measures usually adopted and
actually necessary to preserve a tyranny:

     The practice of cutting off prominent characters and putting out
     of the way the high spirits in the state; the prohibition of common
     meals, political clubs, high culture and everything else of the
     same kind; precautionary measures against all that tends to
     produce two results, viz., spirit and confidence; the opposition
     offered to literary reunions or any other meetings of a literary
     kind, and the endeavor by every possible means to produce the
     greatest mutual ignorance among all the citizens, as it is
     acquaintance that tends to produce mutual confidence.33

"Another expedient," he says,

     is the endeavor to prevent any word or action of any subject
     from escaping detection by a system of spies. ... For the citizens
     are then less free of speech for fear of the spies and, if they do
     speak freely, are more easily discovered.34

And, he adds,

     A tyrant is fond of making wars, as a means of keeping his
     subjects in employment and in continual need of a
     commander.35

The sum of all such measures, Aristotle concludes, is "to prevent mutual 
confidence among the citizens, to incapacitate them for action, and to 
degrade their spirit."36

From these notions of constitutionalism prevailing in ancient Greece which I 
have been trying to summarize, we must proceed next to the character of the 
changes which made such notions so radically different when we first meet 
them among the Romans some three centuries later; and this change in 
constitutionalism seems to be bound up with a change in the definition of 
natural law, which must be briefly indicated before the beginnings of Roman 
or medieval constitutionalism themselves can be made clear.



                       CHAPTER III

       The Constitutionalism of Rome and Its Influence

THE OFTENER I survey the whole history of constitutionalism the more I am 
impressed with the significance and importance of the republican 
constitution of Rome in that development. A generation or two ago it was the 
fashion to trace all our constitutional liberties back to the institutions 
of the Germanic tribes as described by Tacitus. Rome had contributed little 
or nothing to medieval or modern institutions or ideas in this field beyond 
the absolutist maxim of the Empire that "what has pleased the prince has the 
force of an enactment of the people." Modern absolutism was a return to 
Roman autocracy; liberty was solely a retention in the face of it of the 
freedom of the primitive Germanic peoples. It was sometimes overlooked that 
Tacitus himself, when he contrasted the virtues of primitive Germany with 
the degeneracy of Rome, had written with Roman imperial institutions in 
mind, not those of the Republic. There was undoubted truth in this Germanic 
interpretation, but its exaggeration had been undermined by more careful 
historical research long before the recent deplorable exhibitions of 
tribalism in Germany. Even before these startling modern developments some 
of us had begun to question some of the conclusions of the German oracle, 
Otto von Gierke, in his Genossenschaftsrecht. The reaction of the Germanists 
against the more extreme defenders of Pandektenrecht such as Bernhard 
Windscheid, and the substitution of a more Germanic code of law in place of 
the original draft at the opening of this century are easy enough to 
understand and may have been both necessary and beneficial; but the recent 
appalling effects of tribal particularism have served to heighten the 
suspicion held by some of us a good while before, that after all the 
impressive apparatus of Gierke's Genossenschaftsrecht sometimes merely 
conceals the weakness of some of its principal historical conclusions 
instead of really strengthening them. The too ready acceptance of these 
conclusions by F. W. Maitland, the greatest of all our modern historians of 
English medieval institutions, unfortunately created a vogue in England and 
America for these views which a careful examination of them seems hardly to 
justify.

In returning to our subject proper, the institutions of Rome under the 
Republic, I shall try to avoid as far as possible the thorny question of 
origins. Cicero is the first expositor of these institutions whose works are 
known in any great detail, and Cicero was at once a practicing lawyer and a 
pupil and para-phraser of Panaetius. Is it the Roman lawyer then who is 
speaking, or the Hellenistic Stoic, when Cicero sets forth in his De Re 
Publica and his De Legibus the fundamental relations of the state to law? It 
is a question I am not competent to answer nor even to try to answer. I 
shall confine myself therefore to the general principles of the Roman 
constitution as it actually was in the last century or two of the Republic, 
or rather so far as we can safely reconstruct it from the surviving 
contemporary materials. Even in the realm of the actual, it may seem strange 
to some that I should pay such slight attention to those checks and balances 
so admired by Polybius and Machiavelli and so despised by Mommsen. My excuse 
is that these balances, while possibly the most original of Rome's permanent 
contributions to constitutionalism, are very far indeed from being the most 
important then, or the most significant now.

We cannot hope to bridge the gap between the constitutionalism of Aristotle
and that of Cicero, but even the most superficial comparison of the two will
show that a gap is there, and a very wide one. As Dr. Carlyle says:

     There is no change in political theory so startling in its
     completeness as the change from the theory of Aristotle to the
     later philosophical view represented by Cicero and Seneca. ...
     We have ventured to suggest that the dividing-line between the
     ancient and the modern political theory must be sought, if
     anywhere, in the period between Aristotle and Cicero.1

What is true of political is usually true also of constitutional theory; the 
two are often nearly indistinguishable, and never more nearly so than in 
Rome. We should in all probability have to look back as far as republican 
Rome for the beginnings of our "modern" theory, constitutional as well as 
political; and we could probably look back little if any further than 
republican Rome with any assurance.

For the distinctive general principles of Roman constitutionalism under the 
later Republic ?the general principles, the "spirit," rather than the 
minute details, the thing most important for us here ?I have never found 
any modern guide more suggestive or more penetrating than Rudolf von 
Ihering's monumental Geist des rmischen Rechts. The author's universalism ?
a universalism which implies an essential individualism ?is shown in his 
assertion that peoples formed by a mingling of races are usually 
distinguished by their persistent energy, a marked characteristic of the 
Romans and in modern times of the English, who most resemble them.

But the Roman characteristic of greatest significance for constitutional 
history is reflected in the fact that we have to wait so long to find in any 
legal writer the plain statement that a ruler's will actually is law. It is 
clear, say the authors of Justinian's Institutes, quoting Ulpian, that a 
command of the emperor in due form is a lex: "Quodcumque igitur imperator 
per epistulam constituit vel cognoscens decrevit, vel edicto praecepit, 
legem esse constat." All these expressions of the emperor's will actually 
are leges, and apparently no predecessor earlier than Ulpian had ever 
ventured to say so much. The most Gaius will say, even in the second century 
after Christ, is that it has never been doubted that the will of the Emperor 
duly expressed should receive the obedience owing to a lex. It is not itself 
a lex. Gaius does not even quite say, as the authors of Justinian's 
Institutes do, though I think he does mean to imply, that it has the full 
force of a lex (legis habet vigorem); his express words are that there is no 
doubt that any imperial constitution, like a senatus consultum, should have 
the place of a lex (legis vicem optineat). And for this he gives one reason 
and one alone ?"because the Emperor himself receives his imperium by virtue 
of a lex (per legem)."2

It is clear that the key to the source of all political authority at Rome is 
the definition of a lex. A lex, Gaius says in the second century, "is what 
the people orders and has established." Some four centuries later 
Justinian's Institutes define it as "what the Roman people was accustomed to 
establish when initiated by a senatorial magistrate such as a consul." In 
the exhaustive list of the various kinds of Roman legal enactment which 
Gaius gives ?he has nothing whatever to say concerning the authority of 
unwritten law or custom ?lex stands first, the enactment of the whole 
people; while the authority of every other form of Roman legislation 
invariably depends upon its relation to lex. Thus the patricians, we are 
told, had refused to be bound by enactments made by the plebs alone till 
these were "equated" with leges by a lex passed by the whole populus itself. 
Decrees of the Senate were never leges, but in time came to be accepted in 
place of lex (legis vicem optinet); though Gaius hints at existing doubts of 
their validity, which probably resulted from the non existence for decrees 
of the Senate of any particular lex similar to the Lex Hortensia by which 
plebiscites had been made equivalent to leges. Notwithstanding such doubts, 
as the Institutes of Justinian somewhat vaguely say, in the course of time 
"it seemed just (aequum) that the Senate should be consulted" in place of 
the populus, because the latter had become too great in number to meet for 
purposes of legislation. It might be said that observance of the Senate's 
decrees always depended on a "convention of the constitution" rather than a 
law. As Cicero put it in his De Legibus, "potestas in populo, auctoritas in 
senatu."3 It was the very necessity of the case, as Pomponius says in an 
extract preserved in Justinian's Digest, that imposed on the Senate the care 
of the Republic.4 The distinction implied by the letters SPQR, Senatus 
Populusque Romanus, on the Roman standards really meant something. The 
constitutional difference and the interrelation of senate and populus were 
roughly analogous to those existing between a modern English "government" 
and an English parliament.

Constitutions of the Emperor also, like decrees of the Senate, had for Gaius 
the effect of lex without themselves becoming leges; but, on the other hand, 
by the second century after Christ none could possibly doubt the full legal 
equivalence of an imperial constitution with a lex, as he might of a senatus 
consultum; for the Emperor by a definite lex had received his imperium ?
nothing less than the whole of (omne) the people's imperium and potestas, as 
Justinian's Institutes later phrase it ?and more than one of these regal 
laws were in existence.5

Whatever the fact, of the theory of the Roman constitution we can have no 
doubt: the people, and the people alone, are the source of all law. As Rehm 
says, "The assembly of the people is the state; not merely the organ of the 
populus, but the populus itself."6 SPQR means senate and populus, not senate 
and any assembly even roughly representing the people.

For an understanding of the essential spirit of Roman constitutionalism, 
above all other things, a consideration of the nature of lex is necessary.

"It may be said that the Romans have fixed for all time the categories of 
juristic thought," says one of the ablest modern historians of the Roman 
law;7 and undoubtedly one of their greatest permanent contributions to 
constitutionalism was the distinction they made, more clearly than it had 
been made before, or was to be made for long afterward, between the jus 
publicum and the jus privatum ?a distinction that lies to this day behind 
the whole history of our legal safeguards of the rights of the individual 
against encroachment of government. But the true nature of this important 
distinction is likely to be lost if we forget the close relation that also 
existed between the private law of Rome and the public. Both were jus, and 
the same spirit animated them. Public law, as the authors of Justinian's 
Institutes say, is only that part of jus "quod ad statum rei Romanae 
spectat"; private law is "that which pertains to the utility of 
individuals." Their essence is the same; their difference lies in their 
incidence rather than their nature. As Ihering says in a remarkable passage: 
8 The state, as a bearer of rights, is the whole of the citizens, the 
civitas; it is no abstraction apart from the people, and therefore these 
rights inhere in the people themselves, and what is more, in each of them 
individually. Public and private rights are not distinguishable in having 
what the Germans call "subjects" different from each other. The "subject" is 
always exactly the same for both, the natural person. The sole difference 
between them lies in the fact that private rights affect private individuals 
exclusively, while all the individual citizens alike participate in the 
public. A concrete proof of the correctness of this contention is to be 
found in the Roman actio popularis, which was open to any private citizen in 
case of an infringement of the common rights of all.

And what was thus true of rights was equally true of duties, as appears in 
the fact that a Roman citizen who violated a treaty with another nation was 
surrendered to the other nation "because he had broken an obligation which 
rested on him personally."9

It is then an inversion of the true historical order to infer, as some have done,
that the principles of Roman private law were merely those drawn from the
public. The general principles were the same in both, but their earliest
application is to be seen far more clearly in relations between individual
citizens than in the field of constitutional law proper. The primary notion in
each is the independence of the individual, and, as Ihering says again, it was
only after a long and bitter struggle that the dominance of the state over him
was finally established.

The most effective safeguard of the rights of individual against individual 
was ultimately found in the guarantee of the people to protect these rights. 
The observance of the terms of a will, for example, was secured by 
"registering" it, as we should say, in the comitia calata; and similar 
instances of private transactions thus publicly guaranteed are numerous in 
the early law, such as mancipatio, nexum, and the like. The whole people 
became "responsible" for the maintenance of the individual rights thus 
created by private act or agreement. These were very concrete rights in the 
beginning, and the later refined notion that the state is the protector of 
right in the abstract is the outcome of a long development. In legal 
history, not only in Rome but elsewhere, the truth of Sir Henry Maine's 
famous generalization is obvious. In the beginning the principles of the law 
are "gradually secreted in the interstices of procedure,"10 and the 
development of that procedure itself is tentative, from one particular 
remedy to another, as needs gradually require. The true historical order has 
been the converse of the logical: principles have developed slowly as a 
rationalization of existing and only partial remedies; remedies have not 
been means devised to enforce principles antecedent.

Early legal development is everywhere the gradual merging of damna absque 
injuria ?wrongs without a legal remedy ?in a growing list of actionable 
injuries; and in the beginning the damna were far more numerous than the 
injuriae. As Maitland puts it for England in his incomparable way, "writs, 
not rights," must be the subject of any study of the early history of law.

It is only from such a study that we can get a notion of the true content of 
the word lex in Roman constitutional development, and I should like to add 
to lex one other word of almost equal significance, not only for Roman 
constitutional ideas themselves, but for the later influence of these ideas 
as well ?the word sponsio.

Lex in its fully developed constitutional sense is a form of obligation 
applicable to the people as a whole, but if one were to look through the 
extracts preserved in the Digest for instances of the use of the word, he 
would be struck by the many cases in which it clearly refers merely to 
obligations subsisting between individual citizens. I can give but few of 
the many instances. Here is one extract from the Responses of Scaevola:

     A controversy has arisen between an heir at law and an heir
     under a will and has been terminated after an arrangement by a
     definite agreement (certa lege). I ask which one creditors can
     sue.11

Another, from the Quaestiones of Paulus, is as follows:

     It has been asked whether any action lies if a son has been given
     you by adoption with this proviso (hac lege), that after say three
     years you should give him to me by adoption. And Labeo
     thought there was no action.12

The last of these dry quotations ?and it must be the last ?is from 
Ulpian's commentary on the Edict:

     If in the course of an action of wardship it is agreed that interest
     shall be paid beyond the legal rate, this shall have no effect, for
     this would ground an action on the agreement; whereas those
     terms are essential which determine the conditions of the
     contract (quae legem contractui dant); namely, those entered
     into when it was made.13

Gaius uses lex in the same sense when he speaks of a lease of lands with this
stipulation (ea lege), that the heirs of the lessee shall remain in possession,14
and refers to the hiring of a band of gladiators with a condition (ea lege)
respecting those who shall be killed or injured.15 A lex was a contract
between private individuals. But, as we have seen, lex for Gaius is also "what
the people orders and has established."

These facts, it seems to me, fully warrant Ihering's generalization when, 
for example, he says that the effect of a law for the citizen is that of a 
contract to which he has agreed, and the violation of a law is the breach of 
an obligation which he has assumed. "The lex publica is a convention of all, 
and inversely a private convention is a law for the contracting parties." 
The law is a form of obligation binding the entire people; and, it might be 
added, binding each of them, because each is assumed to have assented to its 
enactment. Papinian, usually reckoned the greatest of Roman jurists, put 
this all in a single sentence: "Lex is a common engagement of the Republic 
(communis rei publicae sponsio)."16 Now this sponsio was the essence of the 
old verbal contract at Rome, and Gaius tells us that its formal question, 
Dari spondes? and its answer, Spondeo, could be used by none but Roman 
citizens; while other formulae, such as Dabis? Dabo, might be used by other 
persons. Corresponding to these private sponsiones were the rogationes in 
which the whole people were asked if they were willing to assent to proposed 
legislation and thus make it binding law. And it was this consent alone that 
gave legal force to the measure proposed. Thus laws were spoken of as leges 
rogatae. A phrase of the Lex Falcidia, which we should naturally translate 
"after the enactment of this law," actually reads "post hanc legem 
rogatam."17 Enactment is thus termed "rogation," because the rogation 
contains the exact provision which the people turn into law when they accept 
it by their vote. But rogatio, like sponsio, had its private-law meaning 
too. Rogo, Gaius tells us, was one of the formal words by which a trust 
could be created in a will,18 and other instances are numerous.

When Papinian speaks thus of a public law as a common engagement (sponsio) 
of the Republic, a common responsibility which the whole people have 
assumed, one cannot but believe that he must have been fully conscious of 
the political implications which the close parallel between the public and 
the private law inevitably brings to mind. Perhaps it should not be 
surprising that he met a violent death at the hands of the Emperor 
Caracalla.

But no account of Roman constitutionalism could be adequate which ignored 
the tendency toward autocracy in Roman institutions apparent even in the 
republican period. What impresses one here is the remarkable balancing of 
this tendency with the spirit of individual liberty which I have hitherto 
been trying to illustrate. Such a balancing is exemplified in the Roman 
distinction between the older jus strictum and the growing jus honorarium, 
and the remarkable fact that magisterial authority, the magistrates' 
imperium, becomes the chief medium of the liberalization of the law. Lawyers 
as a class are usually thought of as reactionary defenders of musty 
precedents, and sometimes they are. But I submit that there are few 
parallels in all intellectual history to the stupendous liberalization of 
Roman social institutions brought about by the generations of Roman jurists 
and magistrates, most of whom are unknown even by name; and this work was 
done largely by virtue of an authority, an imperium, which we must call in 
some sense arbitrary.

Thus a transfer of lands in strict law could be made only by a procedure so 
formal and intricate that the slightest slip would invalidate it, defeating 
the intentions of parties and what we should consider the ends of justice. 
No magistrate had authority to change this law, and till a comparatively 
late period it remained unchanged; but by authority of his imperium the 
magistrate could grant possession to the party "equitably" though not 
legally entitled to ownership, and could protect his possession until the 
law of prescription merged this possession in a full legal title. In this 
way the whole of property law was transformed and liberalized, and formality 
gave way to equitable considerations. It was nothing less than a gradual and 
silent social revolution, if we consider that a similar transformation was 
going on in every branch of law ?the law of marriage, of family relations, 
of testamentary succession, of contracts, and, in fact, of all human 
relations.

There is probably no other social revolution in recorded history so 
important, so complete, so continuous over so long a period, as this 
evolution traceable step by step in the sources of Roman private law. We 
find institutions of an age long bygone still preserved in a law that is 
binding, but alongside it an actual administration enforcing principles 
often in many ways more advanced than those embodied in our own modern 
codes. Strict law tends to become a fiction, equity has become the important 
fact. The modern sociological school of jurists might, if they cared to look 
for it, find the strongest support for their theories in this remarkable 
evolution of Roman law. It is an interesting fact that Ihering, the greatest 
of early modern sociological jurists, left his Geist des rmischen Rechts 
incomplete to pass on to the writing of his Zweck im Recht. The former 
naturally led him to the latter, and it is on the former rather than the 
latter that his reputation is likely to rest. It was the imperium no doubt 
that empowered the Roman magistrate to bring about such changes as these, 
but what we need to know is both how and why this imperium was used to 
strike off the shackles of the old formal law instead of strengthening them.

That subject is far too vast to be treated in a single lecture, but it 
suggests some parallels which may throw a little light on the general nature 
of Roman constitutional development. The parallel between Rome, on the one 
hand, and England and the British Empire on the other, has often been 
referred to; Ihering has noticed it, and Lord Bryce has developed it at some 
length in papers included in his two volumes of Studies in History and 
Jurisprudence. The parallel is very striking between the development of Rome 
under the Empire and that of Britain; particularly in the contrast 
noticeable in both between law and convention, and the resulting growth of 
what might be called "political fictions." But these parallels are usually 
drawn between two constitutional developments which appear very late in the 
national history both of Rome and of England. What we need in both cases is 
a study and a comparison of the earlier national characteristics which lie 
behind and may serve to explain their later striking similarities. That is a 
subject of much greater difficulty, and it has never yet been examined with 
the care it deserves and ought to receive. For I am convinced that the most 
fundamental likeness of Roman and British constitutionalism is a likeness 
resulting from a similarity of conditions which made English law a "common 
law," and made Roman law the law of the Italian peninsula. Before we compare 
Rome of the third or fourth century of the Christian era with Britain of the 
nineteenth, we ought to look for the similarities between republican Rome, 
and England in the period of corresponding growth during the three centuries 
following the Norman Conquest. It was the constitutional character of those 
relatively early periods of development in the two rival systems of common 
law which still dominates the western world; for in them were shaped those 
fundamental principles of both private and public law which constitute the 
true spirit of Roman and of English constitutionalism. The expansion of 
English law in southern Britain was a gradual process of incorporation of 
varied local customs in a system which in time thus became general and 
"common." The common law of England is an English jus gentium compounded of 
many pieces of local custom. In like fashion the jus gentium of Rome 
consisted of the legal principles "common" to the Italian states which 
Rome's expansion merged in the Roman judicial system. Among the unsung 
heroes of English constitutionalism are the great justiciars of Henry II, 
such as Richard de Lucy and Ranulf Glanvill, who were doing for English law 
what, centuries before, the long line of obscure but important praetores 
peregrini had done for the Roman.

The expansion of both the Roman and the English legal system called for 
great and fundamental changes at a time in the history of each when the law 
was still plastic but the process of law making was yet undeveloped. Thus 
the legal changes in twelfth- and thirteenth-century England and in the 
later centuries of the Roman Republic, far-reaching as both were, came to be 
the work of jurists rather than of legislators, and the mode of their 
expansion of the law came to be extension by way of juristic interpretation 
rather than addition through legislative action.

To a degree that seems unexampled for the time when it occurred, both Roman 
and English law thus became what we should term "judge-made" law, and to the 
end both systems exhibited the familiar characteristics of such law. One of 
the most marked of these characteristics was the great abundance of legal 
fictions which we find in both systems. Magistrates could not change the 
law, but they could stretch it to cover new circumstances by an untrue 
assumption of fact which no one was permitted to disprove. Such expedients 
tend to disappear, because less needed, when legal change becomes 
consciously legislative, as it finally did become in both Rome and England; 
and these archaic fictions have been the scorn of most modern legal 
reformers, notably Jeremy Bentham. But Bentham, like many of his fellows 
since his day, was much more noteworthy for his practical service in law 
reform than for his historical sense. When an English court, in order to 
extend its jurisdiction beyond the limits of the ancient law, took notice of 
a bond executed "at Bordeaux in Islington in the County of Middlesex," or of 
the seizure of a vessel "on the high seas, to wit in Eastcheap in the City 
of London," this was a sign, not of the blindness of the courts, but of the 
backwardness of the legislature.

In still earlier periods, when legislative action was infrequent or even 
unthought of, these judicial fictions were the usual means by which judges 
tried to keep the law abreast of the times. The early history of law, both 
Roman and English, is full of them. Instances, though numerous in private 
law, are by no means confined to it. Where but in Rome during ancient times 
do we find a political fiction comparable to the Principate, "an absolute 
monarchy disguised by the forms of a commonwealth," as Gibbon calls it? 
Where but in England during modern times can we find an indigenous 
constitutional development in which the titular ruler is a king, the legal 
sovereign an assembly, and the ultimate political power a people? The 
Principate and the modern "limited monarchy" are alike fictions, and are the 
result of an age-long habit of thinking in fictions. The other great 
political fiction of the same class that comes to mind is the Holy Roman 
Empire; which, as Voltaire said, was not holy, not Roman, and not an empire. 
It was, however, much more Roman than holy, and its truly fictional 
character was purely Roman. And who but the Romans among the ancients would 
have "consulted the Senate" when the whole sovereignty lay in the Comitia 
Centuriata? Who but the English today would go on calling their court of 
final appeal the "House of Lords"? Or where except in England, or in a 
country with an English tradition, could one call the act of a king 
"unconstitutional" if he chose to exercise his undoubted legal discretion in 
withholding assent to a bill passed by both houses of parliament?

The constitutional or political habit at Rome which made possible the 
Principate seems to have been well-nigh unique in its time. There is much in 
the earlier history of Rome, institutional and intellectual, to prepare the 
way for it, but outside Rome apparently little or nothing. One cannot help 
wondering what Aristotle would have thought of the Roman Principate and 
under what form of government he would have classified it. Even in the most 
empirical and most practical parts of Aristotle's Politics there is nothing 
like the permanent antithesis of law and fact characteristic of the Roman 
Principate, or of the modern "limited" monarchy in which the king "reigns 
but does not rule." In Rome as in Greece there were revolutions, but in Rome 
a formal continuity was preserved, notwithstanding fundamental changes, that 
tended to disguise under older forms innovations which in Greece would have 
been open and avowed. It is interesting to see how much more frankly the new 
fact of the monarchy of the Caesars was recognized in the Greek provinces of 
Rome than in the West, and Ihering notes for an earlier period how often 
Greek writers on Roman history ?such as Polybius, Dionysius of 
Halicarnassus, or Plutarch ?consider as violations of law acts which to the 
Roman annalists are blamable but entirely within the law. The mos majorum 
forbade many things to a Roman for which there was no legal penalty. 
Convention, like fiction, played a large part in the development of Roman 
constitutionalism.

It is this general principle of continuity which helps to make clear the 
apparent paradox of the later Roman Empire, the retention by a despot like 
Justinian of writings alive with the spirit of constitutionalism. Few 
writings in the world's history have had the decisive influence of these 
lawbooks of Justinian. So much would probably be admitted on all hands, but 
with regard to the question whether on the whole this influence has been 
good or bad there is not the same unanimity, and to that question we must 
now turn.

From what has gone before it is evident that the first of my conclusions 
must be that the true essence of Roman constitutionalism does not lie in 
those late statements of absolutism to which so much currency has since been 
given, such as the maxim, Quod principi placuit legis vigorem habet, or 
Ulpian's assertion, Princeps legibus solutus est.19 It lies in the older, 
deeper principle that the populus, and none but the whole populus, can be 
the ultimate source of legal authority. The fundamental doctrine underlying 
the Roman state, its true guiding spirit, is constitutionalism, not 
absolutism ?a constitutionalism that Justinian's commissioners, even in the 
sixth century, could not delete from the legal sources, notwithstanding the 
Emperor's order to bring these sources up to date by addition, elimination, 
or change.

A second proposition may or may not prove to be more acceptable than this 
first: Before the Italian Renaissance, at least, the influence of Roman 
political institutions and ideas upon those of the developing states of 
western Europe was exercised through the legal compilations of Justinian 
more than through any other medium, even such a one as the history or 
general literature of Rome.

A third thesis will be recognized at once as more debatable, but I think it 
is defensible: The really decisive influence of Rome on later European 
politics came, not after the Italian Renaissance in the tendency toward 
absolutism, but during the middle ages in the reinforcement of 
constitutionalism.

If we confine ourselves strictly to matters legal and political, or at least 
to matters legal, the so-called Renaissance of the Twelfth Century appears 
more decisive in its ultimate influence than that later development to which 
we usually attach the word "Renaissance" par excellence.

In a brilliant lecture,20 F. W. Maitland once pointed out the extent of the 
attack made upon the indigenous common law of England by the revived Roman 
law of the sixteenth century, and he might well have continued his study 
into the next century; but he recognized clearly that for England this Roman 
attack was an utter failure. English law was too "tough"; unlike the native 
law of Germany, it was already immune to foreign influence; it had been 
"inoculated" in the medieval period, and it was defended in the crisis by 
such staunch medievalists as Sir Edward Coke. Maitland attributes the 
persistence of the English common law very largely to the influence of the 
inns of court, and in this no doubt he is right; but the inns themselves 
were the result of an earlier development, and to me the really critical and 
decisive period in the competition of the native and the Roman law in 
England seems to come earlier, long before these societies of lawyers were 
founded, in the development of a common legal administrative system such as 
always results quickly in some kind of "common law." The common law that 
survived this belated attack of Romanism in the sixteenth century was of 
course a native English law, but it survived not because it was English but 
because it was "common"; or rather, because it had become "common," and that 
at a date relatively very early.

There was no mysterious quality in English custom, out of which our common 
law was made, to distinguish it from similar custom elsewhere; it had no 
"manifest destiny" to become as it did the unique rival of Rome in the legal 
systems of the later western world. Its ultimate victory over Romanism was 
not the result of any inherent superiority, Wycliffe and Sir John Fortescue 
to the contrary notwithstanding. That victory was won by the end of the 
thirteenth century, and the issue was really determined in the twelfth. If 
Irnerius had taught, or Azo had written, a century before he did, or if a 
Henry III instead of a Henry II had followed Stephen on the throne of 
England, we might well be using the Digest of Justinian as a text today in 
our American law schools. It was not the merits of English custom, but the 
uniform writs and the itinerant justices of Henry II, that made this custom 
the "law of the land." And if those English justices of the twelfth century 
had been as fully versed in the law of Rome as the German judges were in the 
fifteenth, an English "reception" of Roman law in the thirteenth century 
seems no more startling or unlikely as a consequence than the later German 
one.

Law, however, is one thing, jurisprudence quite another. Law is the material 
of jurisprudence, jurisprudence the rationalization of law. The law may come 
from one source, the jurisprudence from another. In the early sixteenth 
century the English jurist Christopher Saint-German divided the law of 
England, or more properly her jurisprudence, into "the law of reason primary 
and the law of reason secondary."21

In this division he was no doubt influenced by St. Thomas' distinction 
between the ultimate principles of the universal and unchangeable law of 
nature, on the one hand, and, on the other, the specific deductions that men 
may make from these general principles. Such secondary deductions concerning 
the law of property ?and the law of property then included probably four-
fifths of all law ?when actually found among all nations, Saint-German 
calls "the law of reason secondary general, for the law of property is 
generally kept in all countries"; whereas

     The law of reason secondary particular is the law that is derived
     of divers customs general and particular, and of divers maxims
     and statutes ordained in this realm. And it is called the law of
     reason secondary particular, because the reason in that case is
     derived of such a law that is only holden for law in this realm,
     and in none other realm.

This is little more than an extension of the statement of Gaius: "All 
peoples who are ruled by laws and customs employ a law partly peculiar to 
themselves, partly common to all mankind."22 Saint-German's "law of reason 
secondary general" is in fact the jus gentium of Gaius.

In the earlier formative period of the English common law we do undoubtedly 
find not only pure English custom but a rationalization of it, a 
jurisprudence which might be called native, an English "law of reason 
secondary particular." But as Saint-German clearly implies, these 
"particular" deductions are and must be only a limited application of the 
universally accepted principles of the "law of reason secondary general." To 
put it in more familiar language, a given country may have its own 
particular laws and even its particular jurisprudence, but this 
jurisprudence cannot but be consonant with a jurisprudence that is general 
and universal.

Yet whatever a nation's peculiar laws may be, few, I think, could doubt the 
truth of the statement of douard Cuq, quoted above, that "the Romans have 
fixed for all tune the categories of juristic thought." The "law of reason 
secondary general" of England, as of every other western European country, 
was a law, or rather a rationalization of law, permeated by the juridical 
conceptions of Rome.

In the formation of our common law these Roman conceptions have therefore, 
as it seems to me, a place no less significant than the English custom they 
served to rationalize. They came to England too late, no doubt, to replace 
the English customary law itself, but they did come in time to have a large 
part in the orderly arrangement and development of that law and in the "law 
of reason secondary particular" derived from it.

The failure always to distinguish thus between matter and form may be the 
explanation of the wide difference in the estimates modern legal historians 
give of the extent of the Roman element in English law. Sir Henry Maine 
asserted that Bracton had palmed off as English a law of which a full third 
was Roman; but according to Maitland "a thirtieth" would have been nearer 
the mark.23 Any attempt to give a quantitative ratio of two things as 
different as the matter and the form of law is likely to be inconclusive.

In this long discussion of law it might seem that we had lost sight of the 
constitution. But in the middle ages the connection between private and 
public law was far closer than it is now; and in early English, as in early 
Roman institutions, we must look for much of the spirit of the constitution 
in the developing principles of what we now think of as only a single branch 
of private law, the law of property. For the medieval law of property was 
also the law of franchises or "liberties," of personal status, of public 
office, and of much more besides. For example, even so constitutional a 
thing as the king's prerogative, when it became the subject of judicial 
discussion, was treated in the courts under the same general rules as the 
proprietary right of any subject, and this almost to the very eve of what we 
call the modern period. In France of the thirteenth century, according to 
Beaumanoir, the king has the sovereignty over his kingdom, but so, he says, 
has every individual baron over his barony.24

In conclusion therefore I shall add two more heretical generalizations to 
the ones I have hitherto been trying to defend and illustrate. The first is 
that, to reach a true conception of the spirit of our constitutional 
antecedents in the middle ages, the jurisprudence is at least equal in 
importance to the mere subject matter of the law. I do not question here the 
English character or the early origin of the bulk of our common law; above 
all, I would not minimize the decisive influence of the ancient English 
County Court; I only say that the constitutional implications may come as 
much ?if not indeed even more ?from the law's later rationalization as 
from its original character. The second proposition is that this 
jurisprudence, as distinct from that law, is pretty largely Roman in its 
derivation, though considered in the middle ages probably not so much 
specifically Roman as "common to all mankind." The third and last is that 
the central political principle of this Roman jurisprudence is not, as has 
so often been assumed, the absolutism of a prince, but the doctrine that the 
people is the ultimate source of all legitimate political authority in a 
state. The last of these propositions perhaps requires the most proof, for 
it has been most frequently disputed. "Few texts," says the late Professor 
Esmein, "have exercised an influence more profound upon the development of 
the public law in certain countries of Europe, and above all in France," 
than the Roman maxim, princeps legibus solutus est;25 but he admits that 
England "has had the good fortune to escape that influence."26 This unusual 
good fortune, when admitted, is usually attributed to the free institutions 
of Anglo-Saxon England, to an unexplained development of the representative 
parliament in the later middle ages, or to some mysterious quality in the 
English blood or character that makes for liberty. The threat of absolutism, 
when it came ?as of course it did ?came from the despotic doctrines of the 
Roman law, which was "reborn" with everything else at the close of the 
middle ages. This is the theory that is generally current.

For the period immediately after the Conquest in England the evidence on 
which one must rest the conclusions just slated, or the different 
conclusions which I prefer, is slight, scattered, and rather inconclusive ?
a few stray sentences occurring incidentally here and there in the legal 
writings of the period, of which the so-called Leges Henrici Primi is easily 
the most important. Just at the end of the Norman period, in the only book 
of pure Roman law written in medieval England, in the Prologue of the Liber 
Pauperum of Vacarius, we find a repetition of some of the statements of the 
first title of Justinian's Digest concerning the source of law, including 
the one that the emperor is its only establisher and interpreter. But the 
book of Vacarius was written entirely in the spirit of the early glossators; 
it is purely antiquarian and Roman and makes practically no reference to 
English law or its relation to the law of Rome.27 

For concrete evidence of much value we have to wait till the reign of Henry 
II in the De Legibus et Consuetudinibus Angliae attributed to Ranulf 
Glanvill, Henry's chief justiciar during his later years, and written after 
the enactment of the king's great administrative reforms. Glanvill's 
prologue contains certain statements of the greatest interest. It is evident 
that the author considers this book as a kind of English equivalent of 
Justinian's Institutes, and his prologue is clearly modeled on that of 
Justinian though the book itself is not. A comparison of the two prologues 
is instructive both for their similarities and their differences. After a 
mention of the need for laws as well as for arms, each has a paragraph 
recounting the military achievements of the ruler, and then proceeds to a 
summary statement concerning the laws. The last of these alone is important 
here. Justinian's summary refers only to the written law and the 
compilations of it made at his order. The one in Glanvill must in part be 
given in its own words. In the king's court each decision, it says, is 
governed by the laws of the realm (legibus regni)28 and by customs 
(consuetudinibus) drawn from reason and long observed; and in these 
decisions the king does not disdain to consult those of his subjects whom he 
knows to stand out by their virtue, "by their skill in the law, and by the 
customs of the realm" (morum gravitate, in peritia juris et regni 
consuetudinibus). On this follows the sentence most significant of all: 

     For it should not be thought absurd to call the English laws leges
     although not written ?why, quod principi placet legis habet
     vigorem, even that is a lex! ?those, I mean, which have
     manifestly been promulgated concerning doubtful points
     determinable in the council, with the advice at least of the
     magnates and under authority of the prince.29

The reasoning of the author is here so closely parallel to that of a 
remarkable sentence or two in the Digest that I think he must have read 
them. They occur in an extract from the great Roman jurist of the second 
century, Salvius Julianus, compiler of the famous Edictum Perpetuum, and in 
the following words:

     Immemorial custom is observed as lex, and not without reason;
     and this is the law which is said to be established by usage. For
     since leges themselves are binding on us for no other reason
     than that they have been received by the judgment of the people,
     it is proper that those things of which the people have approved
     without any writing shall also be binding on everyone. After all,
     what is the difference whether the people makes known its will
     by a vote, or by the things themselves and by acts?30

One other interesting bit of evidence of Glanvill's attitude toward 
absolutism may be worth citing. The chronicler of the abbey of Abingdon 
tells us that in 1185, on the death of the abbot, Henry II entrusted the 
abbey to one Thomas of Esseburn, who thereupon proposed to hand over to the 
king the whole of the possessions of the abbey, including those of the prior 
and convent. The prior and brothers appealed to Glanvill, the chief 
justiciar, insisting that the possessions of the prior and convent should be 
excepted; and, says the chronicler,

     The grace of God finally prevailed to this extent, that Rannulphus
     de Glanvilla, the chief of the justices, turning to the other justices,
     said that our customary rights had been established reasonably
     and wisely, that nothing excessive could be found in them, and
     that the lord king neither wishes NOR DARES to go against
     customs in some measure so ancient and so just or to change
     anything respecting them.

All the justices "who were seated around" agreed after a conference, and the
curia decided unanimously in favor of the prior and brothers. The king
"neither wishes nor dares!" And all the justices concurred!31

Whether Glanvill wrote the treatise attributed to him will perhaps never be 
known, but his own constitutional views were probably representative, and 
they were certainly not despotic. Nevertheless, the reference in Glanvill's 
prologue to the maxim quod principi placuit legis habet vigorem, as quoted 
above, has been cited as proof of the absolutist doctrines both of Glanvill 
and of England in his time. To infer from that incidental and left-handed 
reference to the Roman maxim the author's out-and-out endorsement of it 
seems to me only another striking proof of the fertility of the human 
imagination. Yet that inference has been made. I might almost say it has 
prevailed. It seems to me obvious, on the other hand, for reasons 
particularly set forth above, that this twelfth-century English jurist has 
seen more clearly than some modern historians the true central principle of 
the Roman constitution ?which was not absolutism, but the doctrine that the 
populus is the sole source of law; that he believes this principle to apply 
no less to English institutions than to Roman; and, finally, that these 
constitutional doctrines of his are fairly representative of the ones held 
and enforced in medieval England.

Further reasons for the conclusions above are to be found in the explicit 
statements of Bracton some sixty years after Glanvill; but with Bracton the 
immediate subject of the present lecture becomes merged in the wider topic 
of English constitutionalism generally, and may be treated more clearly 
later as a part of that topic.



                       CHAPTER IV

            Constitutionalism in the Middle Ages

BETWEEN Glanvill at the end of the twelfth century and Bracton in the middle 
of the next the development of English governmental institutions goes on 
apace, and some incidental light on their spirit could no doubt be got from 
a careful study of the contemporary records of the law cases which now 
become available. But of the true character of the general principles 
underlying the medieval English constitution there is no indication so clear 
as the book on the laws and customs of England by Henry of Bratton, or 
Bracton ?the greatest of medieval books on English law and 
constitutionalism, if not on the law of any European nation.

Bracton's book is a book of case law; it is probably, as has been said, the 
unique medieval book of case law, and without doubt that case law is almost 
entirely an English law. But no attentive reader of the book can miss in it 
the great influence of a jurisprudence that is far older and far wider than 
any mere "law of reason secondary," and "particular" to England. All this 
has been so admirably stated by the greatest master of our medieval legal 
history that I take the liberty of quoting a brilliant passage in place of a 
bad summary: 

     "If for one moment we set his [Bracton's] book beside the
     Customs of Beauvais and the Saxon Mirror," says Maitland, one
     fact worthy of note stares us in the face. The Englishman's work
     both in its general structure and in many details has been
     influenced by Roman jurisprudence. Really if we place ourselves
     in the thirteenth century and look only at the surface of things, it
     must seem very likely that England will soon adopt Roman law
     as a whole, while into Northern France and Germany it will
     make its way but slowly or never. After the event we can see
     why such a prediction would be foolish. The development in
     England of a centralized royal justice was rapid, precocious.
     Before the end of the thirteenth century the system with its
     stubborn writs and formulas had become too osseous to be
     much modified by new outlandish learning. And looking closer
     we see that Bracton had no intention of supplanting English by
     Roman law. It is Rationalism rather than Romanism that he learnt
     from Azo's book, and this fact that at an early date English law
     was rationalized by an able man, is not the least among the
     causes which protected us against Romanism in the following
     centuries.

     Trying to state in general terms ... what was Bracton's debt to
     the civilians we may put it thus: ?First he had learned certain
     wide principles of jurisprudence, had found some of the highest
     premisses of all civilized law expressed in neat and accurate
     phrases. For these, at least for some of these, the England of his
     time was ripe. They are not, he might argue, specifically Roman;
     the Romans themselves regarded them as common to all
     mankind; they are dictates of reason implicit in all law. ... Then
     there are instances in which rules that are less general and more
     specifically Roman are adopted, or rather proposed, as
     solutions for concrete cases. ... But the main debt is less
     palpable, for what he has converted to his use is spirit rather
     than substance, not these or those rules, but a method of
     reasoning about law, of perceiving the interdependence of rules,
     of making them take their places as members of a body.1

The "spirit" that animated Bracton's book includes the public as well as the 
private law, and I find it hard to distinguish this spirit from the Geist 
des rmischen Rechts.

Among the extracts from Bracton's book that most directly concern our 
present subject, we may dismiss the famous statement, so often repeated in 
the English constitutional struggle of the seventeenth century, that the 
king has a superior, not only in God and in the law which makes him king, 
but in his curia as well ?in the earls and barons who are his associates 
there ?"and one who has an associate has a master; and therefore if the 
King is without a bridle, that is without law, they ought to put a bridle on 
him." Modern research in the manuscripts of Bracton has shown that this 
rather startling doctrine is no statement of Bracton's, but an addition by 
another hand, made probably by some adherent of the baronial party opposed 
to Henry III.2

There are, however, enough genuine statements of Bracton from which his 
essential constitutional views may be perceived. From what has been said 
earlier of Roman constitutionalism it will be evident that one of the most 
significant of these statements is Bracton's quotation, word for word, of 
the dictum of Papinian, "Lex is a common engagement of the republic 
(communis rei publicae sponsio),"3 and his application of it to English law. 
About the same tune a jurist of Orleans was quoting the same passage in a 
French form.4 Another example occurs in Bracton's Introductio, which is in 
part a paraphrase of Glanvill's Prologue: 

     Moreover, while in almost all regions they use leges and a
     written law, England alone employs within her boundaries an
     unwritten law and custom. In this at least without a writing what
     usage has approved becomes law. But it will not be absurd to
     call the English laws leges even when unwritten, since whatever
     is justly defined and approved with the counsel and consent of
     the magnates and the common engagement (sponsio) of the
     republic, the authority of the King or prince preceding, should
     have the force of a lex. ... The English leges and customs, by
     the authority of kings, sometimes command, sometimes forbid,
     sometimes take vengeance and inflict a penalty upon
     transgressors. These laws, since they have been approved by
     the consent of those using them and confirmed by the oath of
     kings, can neither be changed nor destroyed without the
     common consent of all those with whose counsel and consent
     they have been promulgated.5

In dealing with the Roman constitution we have already noticed the maxim of 
Ulpian, "What has pleased the prince has the force of a lex." 6 It has the 
force of law because the populus confers on the prince its whole imperium 
and potestas (cum lege regia ... populus ei et in eum omne suum imperium et 
potestatem conferat). Bracton's treatment of this important passage is so 
remarkable that we must examine it in some detail. This is his statement:

     For the king has no other power in his lands, since he is the
     minister and vicar of God, save that alone which he has of right
     (de jure). Nor is that to the contrary where it is said quod
     principi placet legis habet vigorem, for there follows at the
     end of the law cum lege regia quae de imperio eius lata est
     (together with the lex regia which has been laid down
     concerning his authority). Therefore it is not anything rashly
     presumed by will of the king, but what has been rightly defined
     with the king's authorization on the advice of his magnates after
     deliberation and conference concerning it.7

It is worth comparing Justinian's statement of the principle with this later 
gloss of Bracton. Where the former says the prince's will has the force of a 
lex "because" (cum) the people by a lex regia have conceded to him the whole 
of their authority, Bracton says it has the force of a law "in accordance 
with a lex regia (cum lege regia) which had been made." In the Institutes 
the cum is a particle introducing a clause which gives merely an historical 
reason for a complete and arbitrary authority actually in the emperor; 
whereas in our Bractonian text the cum is a preposition governing a noun in 
the ablative. Justinian says the prince's will is law, because (cum) the 
people have conceded all their power to him; the existing text of Bracton 
says the prince's will is law together with, or if in accordance with the 
lex regia (cum lege regia); and this lex regia admits of nothing beyond a 
true definition of what the law already is, promulgated by the king's 
authority only after discussion with the magnates and on their advice. 
Justinian's is a doctrine of practical absolutism; Bracton's seems to be a 
clear assertion of constitutionalism. In the one the prince's will actually 
is law, in the other it is only an authoritative promulgation by the king of 
what the magnates declare to be the ancient custom. No doubt Bracton was 
acquainted with the true wording of the original text, and his own book is 
conclusive proof of his skill in the Latin tongue; and yet our text of 
Bracton, in quoting this plain statement of absolutism, turns it into an 
assertion of constitutionalism by such heroic means as changing a causal 
conjunctive into a preposition and omitting entirely the reference in the 
original to the concession of the people's whole power to the prince.

So far as I recall, attention has never been drawn to the significant fact 
that this passage in Bracton follows immediately upon a quotation of the 
English coronation oath and serves as a commentary on it. The inference 
seems obvious that Bracton considered the oath taken by the kings of England 
at their coronation in some ways analogous to the lex regia by which the 
Roman emperors at their accession had received the imperium and potestas of 
the people; the king's coronation oath is in fact Bracton's English lex 
regia. But it is no lex regia which, like that of the Institutes, confers on 
the prince the people's entire authority. On the contrary, it limits any 
authority the prince may have to acts in conformity with its solemn 
promises, and within little more than half a century after the appearance of 
Bracton's book, if not earlier, these promises included an engagement to 
govern according to the laws which the people have chosen (quas vulgus 
elegerit).8 Thus, says our text of Bracton, it is only when an expression of 
the prince's will is in conformity with this lex regia that his will becomes 
a binding law; and this the oath restricts to the official judgments or 
decrees of the kings' curia. Later, French liberal jurists were to employ 
somewhat the same argument when they interpreted the royal words, car tel 
est ntre plaisir, to mean merely placitum est.9

It seems clear from this evidence that for Bracton the English monarchy was 
far from a despotism such as Justinian's. There are, however, other words of 
his which have been thought to point to a very different conclusion. In the 
same passage from which I have just been quoting Bracton says that the king 
"ought not to have a peer, much less a superior," and then goes on to quote 
from Justinian's Code the famous Digna vox of the Emperors Theodosius and 
Valentinian: "It is a worthy voice of reigning majesty to profess that the 
prince is bound by the laws" ?which seems properly to indicate nothing more 
than a check upon the prince's actions imposed by himself alone and of his 
own free will. In another passage, which seems undoubtedly genuine, Bracton 
says that "neither justices nor private persons ought or can dispute 
concerning royal charters and royal acts." "No one can pass judgment on a 
charter or an act of the king, so as to make void the king's act." 10 The 
king is under no man (non sub homine), even if he is under God and the 
law.11

The apparent contradiction disclosed here between these different statements 
of Bracton led in later centuries to a twofold tradition, one 
constitutional, the other absolutist. In the great state trials under the 
Stuarts involving alleged infringement by the king of the subjects' rights 
or liberties, Bracton is almost invariably quoted by both opponents and 
defenders of the royal prerogative, and all these quotations seem plausible. 
In 1627, for instance, in Darnel's Case, which resulted in the Petition of 
Right, on the question of release on bail of a subject imprisoned on an 
order of the king showing no cause of arrest, Calthrop, counsel for one of 
the prisoners, quoted Bracton's statement that the king can do nothing save 
what is done according to law; while Heath, Attorney General, ended a long 
speech for the king by saying:

     I shall conclude what I shall say on this case ... with the words
     of Bracton, who spake not to flatter the present age, ... Si
     judicium a rege testatur (cum breve non currat contra
     ipsum) locus erat supplicationi quod factum suam corrigat
     et emendet . ... My lord, I English it not, for I apply it not; any
     man may make use of it as he pleaseth.

Possibly I had better "English it." "If a judgment is attested by the king 
[i.e., a decision infringing the legal right of a subject] (since no writ 
runs against the king) there was opportunity of supplication that he might 
correct and amend his act."12

It is somewhat surprising that historians have been content to leave such an 
apparent discrepancy as this so largely unexplained. Was Bracton, then, an 
absolutist or a constitutionalist, or was he just a blockhead? This is our 
question. If we were to frame that question in terms of the institutions and 
ideas of the twentieth century, or possibly even of the seventeenth, 
"blockhead" might seem the only reasonable answer. It seems impossible that 
the same man, if a sane man, could declare that the king has no peer on 
earth, much less a superior, and that no subject, not even a judge, can 
question or ought to question the legality of any of his acts; and could 
then go on to add that the king's will is not law except in the form of a 
definition to which the assent of the magnates is absolutely essential. For 
if the latter were true, must it not follow, as the annotator of one of 
Bracton's manuscripts said, that a prince who must act in concert with such 
companions in reality has a master who may "put a bridle on him"? Is not the 
medieval English monarchy then a mixed and not a pure monarchy? This is the 
principal riddle, not of Bracton alone, but of medieval constitutionalism 
generally, and a solution of it is the first essential for an understanding 
of this important stage in our constitutional history, and, I think I may 
add without exaggeration, of almost every stage subsequent to this.

The riddle of Bracton is in reality the riddle of our medieval 
constitutionalism. If I can offer any solution at all, it will be more 
concrete and more convincing, I think, if I first try it on the text of 
Bracton and then if possible give illustrations of its wider aspects. Now 
there is one great passage in Bracton which, to my mind, gives the key to 
his own reconciliation of the two apparently contradictory views we have 
been noticing, and I cannot find that historians have given all parts of it 
the attention they deserve, although they have often discussed some parts 
and other passages at great length. For, as it seems to me, this passage 
contains nothing less than the solution of the great problem of our medieval 
constitutionalism, and it will be necessary to read it. I would spare you 
these dry details if I could, but I know of no safe road by which we may 
arrive at true generalizations in history except the narrow and sometimes 
devious path through the concrete details, and by the most minute and 
careful examination of them. Generalizations without such a basis ?and we 
have too many of them ?are not merely worthless; they are often in their 
practical results very dangerous.

The passage to which I have referred occurs in a book dealing with the 
acquisition of dominion over external goods, and Bracton first treats of 
corporeal goods and then turns to incorporeal, such as "rights" and 
"liberties." In his treatment of the latter, in the twenty-fourth chapter of 
his second book,13 the author considers the question as to who may grant 
liberties and which ones belong to the king. "Now," he says,

     in the matter of liberties, we must consider who is able to grant
     them, to whom and in what manner they are transferred, in what
     way they are in possession or quasi possession, and how they
     are retained by user. Who, then? And you must know that it is
     the lord king himself, who has the ordinary jurisdiction and
     dignity and power over all who are in his realm. For he has in his
     hand all rights touching the crown, and the secular power, and
     the material sword which pertains to the governance of the realm
     (qui pertinet ad regni gubernaculum). Moreover he has the
     justice and the judgment belonging to his jurisdiction, so that by
     virtue of his jurisdiction as minister and vicar of God he
     attributes (tribuat) to each one what is his own. He has also
     those things which concern the peace, in order that the people
     entrusted to him may live in quiet and repose, that none should
     beat or wound or maltreat another, that none should take or
     carry away another's goods, that no one should maim or kill a
     man. For he has coercive power to punish and compel
     wrongdoers. Likewise he has it in his power in his own person
     to observe and to make his subjects observe the enactments and
     decrees and assizes provided, approved, and sworn to in his
     realm (leges et constitutiones et assisas in regno suo
     provisos et approbatas et iuratas).

Note particularly that last phrase indicating the kinds of enactment which 
the king is free to observe or ignore at his pleasure ?and note not merely 
what Bracton includes but also what he omits. It is not by accident, I 
think, that an enactment defining consuetudo or custom does not accompany 
constitutio in this list. "For," as the author continues, 

     it is useless to establish rights if there is no one to maintain rights.
     Therefore the king has the rights of this kind, or jurisdictions, in
     his hand. In addition he has in preference to all others in his
     realm privileges of his own under the jus gentium which are
     owing by the law of nature, such as treasure trove, etc.

Then, after enumerating such privileges, he goes on:

     Those things which belong to jurisdiction and the peace, and
     those which are incidental to justice or the peace, pertain to no
     one except to the crown alone and to the royal dignity; nor can
     they be separated from the crown, since they constitute the
     crown itself. For the esse of the crown is to exercise justice and
     judgment and to maintain the peace; and without these the
     crown could neither subsist nor endure. Moreover the rights of
     this kind, or jurisdictions, cannot be transferred to persons or to
     fiefs; they cannot be in the possession of a private person,
     neither the enjoyment nor the exercise of the right, except where
     this has been granted to him from above as a delegated
     jurisdiction, and it cannot be delegated in such a way as to
     prevent the ordinary jurisdiction's remaining in the king himself.
     On the other hand those things known as privileges (privilegia),
     though they pertain to the crown, may be separated from it and
     transferred to private persons, but only by special grace of the
     king himself. If his grace and special concession should not
     appear, lapse of time does not exclude the king from such a
     claim. For time does not run against him in this case where there
     is no need of proof. For it ought to be clear to all that things of
     this kind pertain to the crown unless there is someone who can
     prove the contrary by producing a special grant. In other
     matters, where proof is necessary, time runs against the king just
     as it would against any others.

I think it is fair to say that in these few remarkable sentences we find the 
whole sum of the English polity, and of even more than the merely English 
polity, in the middle of the thirteenth century. But if these statements are 
now combined with the others already quoted, the following propositions 
among others may, I think, be legitimately deduced as a solution of the 
Bractonian dilemma, and even as a tentative outline of our medieval 
constitutionalism.

In Bracton's discussion of these questions the order may not be logically 
the best, but it seems advisable generally to follow it. First, he says, the 
king has in his hand the government (gubernaculum) of the realm. The 
significant fact is that acts of government strictly defined are in the 
hands of the king alone. There he "has no peer, much less a superior." No 
one, not even a judge, can question a specifically royal act so as to bring 
its legitimacy into doubt. There is here a separation far sharper than we 
make in our modern times between government and law, between gubernaculum 
and jurisdictio. And in government thus more narrowly defined the king not 
only is the sole administrator, but he has of right and must have all powers 
needed for an effective administration; he has "in his hand" all things 
incidental or "annexed" to government. I am reminded of a striking statement 
of Bracton's great Italian contemporary Egidio Colonna, who says that the 
king should have "a fullness of civil power (abundare in civili potentia) in 
order to be able to control those who would rise in revolt and disturb the 
peace of the realm."14 Bracton's English constitutional principle is in fact 
nothing but a commonplace of late thirteenth-century European political 
theory. And of all Bracton's constitutional statements this is probably the 
most fundamental. Government does not include jurisdiction in our narrower 
definition of the latter word. In this government and the things annexed 
thereto the king is properly an autocrat; he is "absolute"; he has no peer; 
his strictly governmental acts are beyond question. Within that sphere no 
act of his can be illegal, because within it his discretionary power is 
legitimate, complete, and shared by none. All government is the king's 
government and there is no other.

Possibly one reason for Bracton's reiteration of this fundamental doctrine 
was the fact that it was questioned at the very time when he was finishing 
the writing of his book, about 1259. The Provisions of Oxford of 1258 were a 
striking practical application of the contrary theory, that the earls and 
barons, fellow members with the king in his curia, were his equals and 
collectively even his superiors ?not in jurisdiction alone, which was 
admitted, but in government as well ?and that if necessary they might "put 
a bridle on him," as the later "addition" to Bracton's text puts it. Such 
was certainly not the view of Bracton, and apparently it was not the view 
generally accepted throughout England or Europe in the thirteenth century. 
Though it was repeated in the English lawbook known as Fleta in the reign of 
Edward I, Edward's adherents had repudiated it in the Dictum de Kenilworth 
before his father's death, and his own later policy as king shows no traces 
of it. The decision of St. Louis in 1264 against the Provisions of Oxford 
was dictated by a political doctrine which is in all important respects the 
same as Bracton's.

One of the essential features of Bracton's constitutionalism undoubtedly is 
the clear-cut separation he thus makes between gubernaculum and jurisdictio, 
allowing the king an autocratic and irresponsible authority within the 
former, but never beyond it. It is also the one important feature of our 
medieval constitution which above all others modern political developments 
have tended most to obscure. The debates in parliament and in Westminster 
Hall even in the early seventeenth century show plainly that the men of the 
time, whether unconsciously or intentionally, frequently blur this 
distinction which so colors the whole of Bracton's constitutional views. 
They cite without discrimination his statements as conclusive proof, either 
of an almost complete royal absolutism, or of a direct parliamentary control 
in Bracton's age; to neither of which Bracton himself could possibly have 
subscribed, even if he had understood it.

No doubt partisanship accounts in part for these one-sided interpretations, 
but it by no means accounts for all; and it accounts still less for the fact 
that subsequent historians, even some recent ones, have taken almost as 
little account of this prime principle of medieval constitutionalism as the 
heated controversialists of the time of the Stuarts. The changing world 
always makes earlier times incomprehensible. In the apt words of Sir Henry 
Spelman,

     When states are departed from their original Constitution, and
     that original by tract of time worn out of Memory; the
     succeeding Ages viewing what is past by the present, conceive
     the former to have been like to that they live in; and framing
     thereupon erroneous Propositions, do likewise make thereon
     erroneous Inferences and Conclusions.15

In this particular case some of Bracton's own illustrations of 
"governmental" action may have contributed to the later misunderstanding, 
especially his apparent inclusion of royal charters among those things 
annexed to "government" and therefore "not fit for the tongue of any 
lawyer"; or his assertion above, which seems to imply that it lies within 
the king's discretion (habet in potestate sua) whether to obey or to enforce 
obedience to such important forms of legal enactment as leges, 
constitutiones, and assisae. It must be confessed that medieval English 
history as a whole does seem to show that a royal charter promising reform 
in "government" was seldom better than a "scrap of paper"; nor is there 
anything in Bracton's theory itself to make it legally enforceable.

A striking proof of the accuracy of Bracton's statements concerning these 
charters of "government" occurred in 1223. In a colloquium or parliament of 
that year, Archbishop Langton urges young Henry III to observe the promises 
of reform in government made in the earlier reissue of Magna Carta; but even 
he does not say the king is legally bound to do so. He only says that the 
king, and all the nobility with him, have taken a solemn oath to observe 
"omnes libertates praescriptas."16 At most, in matters of public 
administration rather than private right, if the two could be distinguished 
in a feudal period, he seems to imply no more than a moral obligation on the 
king's part to observe a promise under oath. This is no legal restriction on 
the king's power. If he issues a charter promising reforms in the royal 
government, he is bound only by the moral obligation of the Digna vox to 
stand by his oath. That view was stated in its baldest form by William 
Brewer, one of the oldest and most experienced of the members of the curia, 
who answered Langton on behalf of the young king thus: "The liberties which 
you have demanded ought not to be observed as a matter of right (de jure), 
because they have been extorted by violence." In his reply to this Langton 
does not assert any obligation de jure. He only upbraids Brewer for 
endangering the peace of the realm. In conclusion the king gave way to

Langton, but he conceded nothing whatever as a matter of right: "All those 
liberties we have sworn to and for all we are bound, so that we will observe 
what we have taken oath to." It is noteworthy that in the reissue of the 
Charter which Henry finally made in 1225 in response to these repeated 
complaints, he says explicitly that he is conceding the liberties demanded 
only of his own free will (spontanea et bona voluntate nostra).11 He 
concedes absolutely nothing as a matter of right. Whether justifiable or 
not, this interpretation of the "constitution" is the one held by St. 
Louis,18 and by the framers of the Dictum de Kenilworth 19 containing the 
terms of pacification after the fall of Simon de Montfort.

Bracton's assertion concerning royal charters seems on the whole to have had 
the support of precedent. But in a feudal period, such as this was, 
"private" rights and public law are so interwoven that the line is hard to 
draw between such libertates praescriptae as belong to the king alone as a 
part of the "government" over which he has plenam potestatem et liberum 
regimen ?in the phrase of St. Louis20 ?and, on the other hand, those 
prescriptive rights of tenants or subjects which are wholly outside and 
beyond the legitimate bounds of royal administration and fall properly under 
jurisdictio, not under gubernaculum. As to the latter rights, those which we 
in modern times should be tempted to call "private" or "individual," the 
principles of the law are perfectly clear; and charters concerning these 
alone are vastly different from those, such as some parts of Magna Carta, 
which had been wrung from an unwilling king by force and involved a real 
diminution of royal or strictly "governmental" authority. True, as Bracton 
says, interpretation of even a "private" charter, when ambiguous or 
uncertain, is forbidden to the judges; that right belongs only to the king 
who made it, if he is alive. But the legal aspect of such a charter is 
clearly within the sphere of jurisdictio, not of gubernaculum, and Bracton 
says plainly that the judges will quash the charter if it infringes rights 
contained in an earlier grant, whether made by the same king or by a 
predecessor, provided there has been no loss of the earlier right by 
nonuser. So much seems clear in principle. Nor is the principle without 
practical consequences. Although no writ runs against the king himself, 
title to a hereditament, corporeal or incorporeal, if derived from an 
extralegal grant of the king, is bad, and in many cases the king's justices 
so decided. Obviously, the king can do wrong, even if the penalty can, in 
Bracton's phrase, be exacted by none but God the avenger.

A greater suspicion of Bracton's constitutionalism might, however, naturally 
arise from his statement above about the decrees and assizes which he also 
appears to annex to "government." If, as Bracton seems to imply, it is 
within the king's legitimate discretion to disregard these important 
enactments of law, "approved and sworn to" in his realm, how possibly can 
the English king be other than a prince solutus legibus?

Again, like St. Thomas Aquinas, I would solve the problem by making a 
distinction ?and this is another of those medieval constitutional 
distinctions almost as important as that between government and 
jurisdiction, and unfortunately almost as often overlooked in modern times ?
namely, the distinction between an enactment of administrative procedure, on 
the one hand, and, on the other, a definition of legal right. This 
distinction is fundamental with Bracton, but has been forgotten by us. To 
him leges (in the narrow sense of the word), constitutiones, and assisae are 
nothing more than administrative orders and therefore a part of "government" 
?something which "pertains to the administration of the realm (pertinet ad 
regni gubernaculum)"21 ?and as such are properly within the king's 
exclusive control. Definitions of "right," on the other hand, share the 
character of the immemorial custom they define, and these, Bracton says, 
"since they have been approved by the consent of those using them and 
confirmed by the oath of kings, can neither be changed nor destroyed without 
the common consent of all those with whose counsel and consent they have 
been promulgated."22 This is another apparent contradiction in Bracton, but 
like the former one we noticed, I hope to be able to show that it is a 
contradiction of our own making.

Proofs of the accuracy of this distinction made by Bracton, and of its great 
importance in medieval England and elsewhere, are scattered all through the 
historical sources of the period, official and nonofficial. The earliest 
clear case I recall is one in the Curia Regis during Stephen's reign, in 
which the justices quashed a royal order of Henry I which infringed certain 
rights of Battle Abbey granted by the Conqueror.23 A king might be strong 
enough to enforce such an illegal provision during his own life, as the 
Dialogue of the Exchequer suggests,24 but it is none the less illegal. The 
closing words of Henry II's great assize of Clarendon of 1166, "and the lord 
King wills that this assize shall be binding in his realm as long as pleases 
him,"25 show that this was one of those enactments which the king, as 
Bracton says, has in his own discretion (habet in potestate sua).26 But its 
content is administrative only, and from a very early time it was clearly 
recognized that a right, or a custom defining such a right, or an official 
promulgation of what such a custom truly means, was a far different thing 
from these mere administrative orders. Such a custom, Glanvill said, the 
king does not will and does not dare to change.27 When all courts of law had 
been finally absorbed in the royal jurisdiction as they had been by 
Bracton's time, no writ ran against the king; and a right, if against the 
king, could be made good only by petition. Nevertheless, an infringement by 
the king was a wrong and the law clearly recognized it as such.28 When 
recorded cases become available, they furnish innumerable instances of the 
principle from the opening of the thirteenth century to the end of the 
middle ages and afterward.

Of all the discretionary powers of the crown, the maintenance of the peace 
was practically the most important on account of the general disorder of the 
time. To maintain peace was one of the three things to which the king was 
bound in the coronation oath. Peace and justice are the two things that make 
the crown what it is, says Bracton; they above everything else constitute 
the raison d'tre of kingship. Peace and those powers necessary to its 
maintenance are, therefore, wholly within the king's control. Many other 
aspects of "government" prominent in modern times, such as foreign 
relations, do not come within Bracton's purview, but the general principles 
of his politics may be gathered from his treatment of the few which were 
most important in his day.

From these things which the king has within his discretion, his 
gubernaculum, we must now turn to the ones that fall under Bracton's 
correlative term, jurisdictio. The word jurisdictio, like lex, is used by 
Bracton sometimes with a wide, sometimes with a narrower meaning. In its 
widest sense it embraces no less than the whole of the king's authority, but 
in many places it is clearly used in distinction to gubernatio or 
gubernaculum, the two together constituting the whole of the powers of the 
crown. Like government proper, jurisdiction is in constitutional theory a 
monopoly of the crown and inseparable from it. All jurisdiction is a 
delegation from the king. It may be said that by Bracton's time the king is 
"the fountain of justice," and in no respect was the institution of kingship 
more fully warranted than in the administration of justice. There were, of 
course, many courts which were not the king's courts, but the rights of 
subjects were ultimately protected by royal writs, through which cases might 
be transferred to the royal courts on the ground of a failure or a defect of 
justice. And in view of the effectiveness of these royal remedies, Bracton's 
assertion that all jurisdiction was the king's jurisdiction, exercised 
directly or through delegation ?fiction though it was ?came nearer to 
being an actual fact in England at that time than it did in some other parts 
of Western Europe for centuries. The aspect of jurisdictio which is most 
important for our thesis, however, is the negative one ?the fact that in 
jurisdictio, unlike gubernaculum, the law is something more than a mere 
directive force. It is not merely the vis directiva of St. Thomas, or the 
moral inhibition implied in the Digna vox. Those ought to guide the will of 
a king and, if he is a good king, they will. But the king may legitimately 
disregard them, for they are only self-imposed; and, if he refuses to be so 
guided, he is within his undoubted legal rights in so doing. This is true, 
however, only within the sphere of government (gubernaculum). It is never 
true in the sphere of jurisdiction, although the king is the sole fountain 
of justice. For in jurisdictio, as contrasted with gubernaculum, there are 
bounds to the king's discretion established by a law that is positive and 
coercive, and a royal act beyond these bounds is ultra vires. It is in 
jurisdictio, therefore, and not in "government" that we find the most 
striking proof that in medieval England the Roman maxim of absolutism was 
never in force theoretically or actually. For in jurisdiction the king was 
bound by his oath to proceed by law and not otherwise. Although the judges 
were his, appointed by him and acting in his name alone, they were 
nevertheless bound by their own oaths to determine the rights of the subject 
not according to the king's will but according to the law; and any careful 
study of the masses of plea rolls which survive from this period must 
convince one that this was no mere pious theory, but on the whole the actual 
and the general practice. When King John substituted his will for this law, 
in proceeding by force against vassals whose wrong had not been judicially 
proved, civil war and the Great Charter were the result. The famous thirty-
ninth chapter of Magna Carta contains merely the classical statement of a 
principle that was always insisted upon and usually enforced as a rule of 
positive coercive law, and not, as the Austinians would say, as a mere maxim 
of positive morality ?the fundamental principle that the king must not take 
the definition of rights into his own hands, but must proceed against none 
by force for any alleged violation of them until a case has been made out 
against such a one by "due process of law."

The two outstanding features that distinguish the medieval constitution from 
the modern are, then, the separation of government and jurisdiction, and the 
difference in legal effect between an administrative order and a definition 
of right. In the seventeenth century, the royalists, citing the undoubted 
precedents for absolutism in government alone, extended these without 
warrant into the sphere of mere jurisdiction; while the parliamentarians, 
seeing the limits of the medieval jurisdictio, with equal lack of 
justification, applied these to acts of government as well as to definitions 
of right. The mistake was natural, but in a historian it is not therefore 
the more excusable. In the same way, and for the same reasons, partisans of 
James I and his son tried to stretch the royal right to issue decrees 
"annexed" to government, or merely ancillary to jurisdiction, far enough to 
cover and, in some cases, to trench upon the rights of the subject which a 
medieval king could not even define without the counsel and consent of his 
curia. The answer to these pretensions made by Sir Edward Coke, 
constitutionally a medievalist rather than a modern, is an admirable 
restatement of the ancient doctrine: "The King by his proclamation, or other 
ways, cannot change any part of the common law, or statute law, or the 
customs of the realm."29

The Roman jurists had distinguished imperium and jurisdictio, but by the 
time of Justinian the imperial will completely dominated both, as is proved 
by Justinian's command to the compilers of the ancient law to make by his 
sole authority such changes in it as seemed necessary. In medieval England, 
similar changes might be made lawfully by the king alone in those enactments 
which he "has within his power" (habet in potestate sua), but in none 
besides. In the field of government proper the absolutist maxim of the 
Institutes truly applied; in jurisdictio it had no application whatever. It 
is on the basis of this distinction between government and law, between 
Bracton's gubernaculum and his jurisdictio, that I would venture to try to 
reconstruct our conception of the medieval constitution, and even of some 
parts of the modern, for I think they need some reconstructing.

The distinction in question has been illustrated from Bracton, and it is 
necessary now to show that it persisted after Bracton's age, if it merits 
the importance I have attributed to it. The most convincing witness I can 
call to prove this for the end of the middle ages is Sir John Fortescue, 
Chief Justice of the Court of King's Bench under King Henry VI, whose 
Governance of England has been called the first book to be written in 
English on the English constitution. The formula for English government 
which Fortescue offers in almost all his works is contained in his phrase 
regimen politicum et regale; and here his adjective politicum applies to 
Bracton's jurisdictio, his regale to Bracton's gubernaculum. There has been 
much discussion of this famous phrase, but, so far as I know, the 
interpretation of it just given was never proposed until I suggested it in 
1932. Before then it was customary to identify regale with Bracton's 
gubernaculum, but under politicum to introduce into both government and 
jurisdiction the peers who for Bracton have no part in government but only 
in jurisdiction. Such an interpretation makes of England not a pure 
monarchy, but a mixed one, if not even somewhat more, a "mixture" of 
monarchy and republican government, as one eminent authority has put it,30 
rather than the monarchy absolute within certain definite limits established 
by law, which Bracton certainly implies and, as I believe, Fortescue 
retains.

The difference between these two conflicting interpretations really lies in 
the different connotations given to Fortescue's word politicum. To the 
Reverend Charles Plummer that word means "republican"; to me, if I had to 
choose a single word, it would not mean "republican," but "constitutional." 
Fortescue's politicum does not imply an organ of government responsible to 
the people and independent of the king, with authority to control his acts 
of administration ?in reality, a mixed and not a pure monarchy ?the only 
possible meaning of the word "republican." Instead, "politicum," in its 
fifteenth-century use, seems not inconsistent with Bracton's earlier 
assertion that in government proper the king has no peer, much less a 
superior. To Fortescue, as to Bracton, it means no more than a negative, 
legal limit to the king's government, formed by the rights of his subjects 
which the king has sworn to maintain, and which he cannot lawfully change or 
blemish or arbitrarily transfer from one to another.

"Republicanism" in the sphere of administration ultimately became a 
principle of the English constitution, but it was not for a century and a 
half after Fortescue's time, and then only as a result of a great civil war. 
For Sir John Fortescue, as for Bracton, there was and there could be no 
legitimate government in England except the king's government. What 
Professor Tout has told us as true of the fourteenth century still remained 
true in the fifteenth: "The great fact, never to be forgotten, is that the 
king governed the country and, whatever advice he took, was ultimately 
responsible for all executive acts."31

Fortescue did not say that the government of England was a mere regimen 
politicum; he said it was regimen politicum et regale. It was at the same 
time both "political" and "regal," limited and absolute; and these, for him, 
were not mutually exclusive terms as they are for us. One of these two 
interpretations looks forward to the cabinet government of the eighteenth 
century and afterward, making Fortescue hardly less than a modern; the other 
looks back to Bracton's description of English institutions as they were 
about the middle of the thirteenth century, and implies that these 
institutions survived with little change in fundamentals to the end of the 
medieval period at least. This is not to overlook or to deny the great 
constitutional developments between Bracton's day and Fortescue's. When 
Bracton wrote his great treatise, representatives, so far as we know, had 
been chosen to attend an English parliament but once, and that for mere 
participation in a grant of supply; the Commons were as yet no essential 
part of the national assembly. The enactments which Fortescue has in mind, 
those which for him make England, unlike France, a true regimen politicum, 
are statutes enacted only by a parliament which, in the words of an English 
chief justice of the fourteenth century, "represents the body of all the 
realm."32 The difference is vast. Yet it remains true, I think, that 
Fortescue's constitutionalism is medieval and not modern. It still 
incorporates the essentials of Bracton's theory of the state.

If this interpretation of Fortescue's constitutionalism is the correct one ?
and I think the subsequent more detailed examination of Mr. S. B. Chrimes33 
has confirmed it ?then we must cease to expect to find, and we must give up 
the assumption that we actually have found, in Fortescue any trace of modern 
republican or democratic control of national administration. This means that 
there is nothing in Fortescue's words, or in the political institutions or 
ideas of the age he describes, of our modern doctrine or practice of "checks 
and balances." Government, so far as it was strictly government, was then a 
discretionary power concentrated in a single hand. In 1576 Bodin criticized 
Aristotle for classifying states on the basis of actual administration, 
instead of the ultimate source of authority. The hint might apply to 
medieval constitutionalism as well. No matter how many officials or councils 
might be employed by a medieval king, if their whole authority was in every 
case a mere delegation of a royal discretionary power, there is no warrant 
for our assumption of such anachronisms as mixed monarchy, or "republican" 
control, or "checks and balances." In the middle ages, as always, there was, 
of course, the salutary threat of revolution against an oppressive 
government; but it is a contradiction in terms to call such a check a 
constitutional or legal one. Within the frame of what we might call the 
constitution, government proper, as distinguished from jurisdictio, was 
"limited" by no coercive control, but only by the existence beyond it of 
rights definable by law and not by will.

If such a system had had no great defects, it might have survived to our own 
day without any supplementary "control" of administration. It is easy enough 
now to see what the fundamental defect was: it lay in the lack of any 
effective sanction for these legal limits to arbitrary will. It was not 
until comparatively modern times that the developments of nationalism and 
the concentration of national authority convinced men that the principles of 
the Digna vox were not a sufficient protection of liberty and right against 
arbitrary will. As Professor Tawney says, "Skeptical as to the existence of 
unicorns and salamanders, the age of Machiavelli and Henry VIII found food 
for its credulity in the worship of that rare monster, the God-fearing 
prince." 34

The addition of the modern political control of government to the medieval 
legal limitation of it required a revolution ?a revolution that reached 
England only in the seventeenth century, France only at the end of the 
eighteenth, and cost both countries much blood.

This, however, was a later and a modern development which can be best 
treated by itself. Meantime, it might be added, the medieval 
constitutionalism disclosed by the English historical materials was no 
monopoly of England or of Englishmen, but a datum with which the historian 
must reckon no matter with what particular European constitutional system he 
is immediately concerned. "Racism" may be a convenient cloak for national 
aggression, but it is a very inadequate explanation of national 
constitutional development. A generation or two ago it was the fashion to 
account for England's unique retention of her medieval constitutionalism by 
some mysterious quality of the English race or blood, and especially by the 
Englishman's Germanic strain. Such arguments have now, happily, been left by 
historians to the propagandists, and they are refuted by the evidences, 
plentiful and widely scattered, of the existence in many lands of a medieval 
constitutionalism not essentially unlike England's and, though much more 
rarely, of the persistence of this constitutionalism to modern times.

The great fourteenth-century jurist, Baldus, in his commentary on 
Justinian's Code, repeats in general terms the maxim that the prince ought 
to observe the laws because all his authority comes from them. But the word 
"ought," he says, must not be taken too literally, because the supreme and 
absolute power of the prince is not under the law; therefore that law has 
reference to the ordinary power, not to absolute power (unde lex ista habet 
respectum ad potestatem ordinariam non ad potestatem absolutam).35 This is a 
reference to the familiar merum et mixtum imperium et jurisdictio with which 
all continental legal writers of the time are concerned,36 but the clear 
distinction of Baldus between a potestas ordinaria and a potestas absoluta 
seems to be about the same as Bracton's between jurisdictio and 
gubernaculum.



                       CHAPTER V

           The Transition from Medieval to Modern

AS WE have seen, the fundamental weakness of all medieval constitutionalism 
lay in its failure to enforce any penalty, except the threat or the exercise 
of revolutionary force, against a prince who actually trampled under foot 
those rights of his subjects which undoubtedly lay beyond the scope of his 
legitimate authority. We must clearly recognize this defect of medieval 
constitutionalism without denying the existence of the constitutionalism. 
The importance of the period we are now to consider arises from the attempts 
then made, and the final success of the attempts, to secure a sanction short 
of force for these legal rights of the subject against the arbitrary will of 
the prince.

Looking backward at this struggle one is amazed by its desperate character, 
the slowness and the lateness of the victory of law over will, the 
tremendous cost in blood and treasure, and the constitutional revolution 
required to incorporate the final results in the fabric of modern 
constitutionalism. Wholly regardless of the respective claims, in the 
sixteenth century, of protestantism and Catholic orthodoxy, or of those of 
puritans and their opponents, I think it may be said that had there been no 
religious schism such as then occurred, a schism unexampled since Roman 
times in extent and permanence, medieval constitutionalism, with this fatal 
weakness of its sanctions, might well have been utterly swept away by the 
rising tide of national power concentrated under the new Renaissance 
monarchy in a prince who no longer had to defer to the rights and claims of 
a multitude of powerful feudal lords. The great issue in the sixteenth 
century was the conflict between the old gubernaculum and the old 
jurisdictio over the indefinite line which separated one from the other; and 
up to the appearance of the religious schism it seemed an unequal struggle 
in which one outpost of law after another fell before the new forces of 
despotic will. Throughout the whole range of political literature there is 
probably no period in which obedience to kings is so stressed as in the 
first half of the sixteenth century ?not even during the reaction in 
England following the execution of Charles I. In that period, to all 
appearances, jurisdictio was destined to be swallowed up entirely by 
gubernaculum; and if the doctrines of almost unlimited obedience which then 
prevailed had persisted unchanged, I venture to believe that it would have 
disappeared.

Among the many surviving examples of these doctrines a single one must 
suffice here, but this one is the more striking because it comes from 
William Tyndale, who had suffered much and was to suffer yet more from royal 
oppression. In 1528 Tyndale wrote in his Obedience of a Christian Man:

     For God hath made the kyng in every Realme iudge over all,
     and over him is there no iudge. He that iudgeth the kyng iudgeth
     God, and he that layeth handes on the king, layeth hand on God,
     and he that resisteth the kyng resisteth God, and damneth Gods
     law and ordinaunce. If the subiectes sinne they must be brought
     to ye kinges Judgement. If the kyng sinne he must be reserved
     unto ye iudgement wrath and vengeaunce of God. ... Hereby
     seest thou that the kyng is in thys worlde without lawe, and may
     at his lust doe right or wrong, and shall geve acomptes, but to
     God onely. ... Furthermore though he be the greatest tyraunt in
     the world, yet is he unto thee a great benefit of God and a thing
     wherefore thou oughtest to thanke God hyghly ... when God
     gave the people of Israeli a kyng, it thundred and rained that ye
     people feared so sore that they cryed to Samuell for to pray for
     them, that they should not dye. ... As the law is a terrible thing:
     even so is the kyng. For he is ordeined to take vengeaunce and
     hath a sword in his hand and not pecockes feethers. Feare him
     therfore and looke on hym as thou wouldest looke on a sharpe
     sword that hangeth ouer thy head by an heare.1

It would be difficult to express the theory of royal absolutism in more 
extreme or more sweeping terms ?"the kyng is in thys worlde without lawe." 
And Tyndale's words did not stand alone.

In the face of this attack, jurisdictio was saved from extinction mainly by two
things: the unexampled toughness of the ancient English common law and the
ultimate emergence of new and radical religious differences among the
subjects of the king. The first of these influences has been explained by
Maitland in his brilliant Ford Lecture on English Law and the Renaissance. It
was in this period that the German reception of Roman law was
consummated and there was a serious threat of a similar reception in England.
On the political or constitutional side, which mainly concerns us here, what
commended the Roman system to its sixteenth-century advocates was not, as
to Glanvill or Bracton, its popular origin, but rather its later despotic tendency
embodied in the famous maxim: "What has pleased the prince has the force of
a lex." In any event the Roman attack was a failure, and Maitland has shown
how much the inherent strength of the old jurisdictio contributed to that
result. But the ultimate outcome might well have been vastly different if the
strength of the jurisdictio had been offset by a government backed by the
unanimous support of subjects who continued to think of the king as Tyndale
had thought. The fact that it was not so backed we must attribute chiefly to
the religious differences which were becoming very grave by the middle of the
sixteenth century.

In all the coronation oaths surviving from the middle ages the first and 
foremost obligation by which the prince is bound is his duty to maintain the 
Church. Neglect of this duty was considered a misfeasance as serious as 
injustice, and in the eyes of many religious zealots of the sixteenth 
century infinitely more serious: the former endangered the immortal souls 
while the latter endangered merely the bodies of all the king's subjects. In 
the famous Vindiciae Contra Tyrannos, which comes nearest to being the 
official pronouncement of French Calvinists in the later sixteenth century, 
the first questions asked and answered are whether a prince's subjects ought 
to obey if he commands something contrary to the law of God, and whether 
they may actively resist his attempts to abrogate this law or to "lay waste 
the Church." Only in the second place is it asked whether a similar 
resistance is warranted where he is "oppressing the Republic." And Calvin 
himself had said that "earthly princes when they rise up against God 
abdicate their authority, nay even become unworthy of being reckoned in the 
number of men."2 The effect of religious schism was to give new life and new 
content to the old theories concerning tyranny. It could scarcely be 
otherwise under the prevailing conditions, when the king was the vicar of 
God and defender of the faith, sworn to maintain and enforce religious 
uniformity throughout a realm in which there was no longer even a semblance 
of actual uniformity. In such a case it was inevitable that religious groups 
of every faith, if brought under the king's penalty for nonconformity, 
should come to regard the ruler not as a true king but as a tyrant, who by 
fighting against God had abdicated his lawful authority. Boucher, the 
Catholic Ligueur, entitles his book against the king of France The Just 
Abdication of Henry III.3 Old doctrines of tyranny thus got a new religious 
content which so weakened respect for all government that the very state was 
threatened, and eventually a new party was created willing even to tolerate 
error if such toleration were necessary to save the state from destruction. 

In the struggle between jurisdictio and gubernaculum it was then not merely 
the toughness of English law that saved it from destruction; it was in part 
also the weakening of government. The alliance of lawyer and puritan against 
encroachments of royal power in the later sixteenth and the early 
seventeenth century is one of the commonplaces of English history, and James 
I with his practical but shortsighted shrewdness always linked the two 
together. It is equally significant that he also coupled "puritans and 
Papists."4 But here some might question ?indeed some have questioned ?the 
very fact of the survival of jurisdictio in the Tudor period. The trite and 
accepted phrase, "Tudor absolutism," seems to imply the contrary, and if it 
is a wholly correct phrase my premise of the persistence of constitutional 
limitations must be abandoned. I shall therefore try to indicate a little of 
the evidence for the survival of jurisdictio, and for that of the 
distinction between it and government. Then I shall turn to the chief 
contribution of the sixteenth and seventeenth centuries to our modern 
constitutionalism ?the development which culminated in a new political 
sanction for the old legal limitations on government inherited from the 
middle ages.

In the transmission to our times of these limitations England's part far 
outweighs in importance that of any other European country, and this would 
remain largely true for us even if our peculiar political institutions and 
ideas were not English in origin. The instinct of Rudolph Gneist was sound 
when, three-quarters of a century ago, he turned to a study of the English 
constitution as the basis of his "efforts for reform in the German legal 
procedure." The history of constitutionalism in the critical sixteenth and 
seventeenth centuries is therefore mainly a history of some aspects of the 
English constitution. On the other hand, it would be a serious mistake to 
assume that these principles of constitutionalism were confined to England 
alone. For example, the iconoclasm of the French Revolution tended and still 
tends somewhat to obscure the constitutional principles which were 
struggling for survival in France under the Old Regime. It may be worth 
while to look briefly at a few French illustrations of these principles 
before turning our attention to England.

The word "constitution," as we have seen, acquired its present meaning 
comparatively lately, but other words were used long before with the same 
general meaning. As early as 1418 or 1419 Jean de Terre Rouge is certainly 
thinking of nothing less than a French constitution, and in some sense a 
fundamental one, when he says: "It is not permissible for the King to change 
those things which have been ordained ad statum publicum regni." 5 Bodin in 
1566 entitles the important sixth chapter of his Methodus, which deals with 
constitutional matters, De statu Rerumpublicarum. It is with French 
assertions of this principle in the sixteenth century that we are here 
concerned, and probably the most definite of them all is the one made by 
Claude de Seyssell early in the reign of Francis I. "There are, as it were," 
he says, "three bridles by which the supreme power of the kings of France is 
restrained": religion, jurisdiction, and la police. The third of these 
consists of the fundamental laws of the monarchy which Jean de Terre Rouge 
had included within the status publicus regni. The second is our ancient 
jurisdictio ?the name and the thing, under which Seyssell mentions the 
parlements, constituted, as he says, in order that nothing should be 
permissible for kings more than has been conceded by law.6 In 1571 the 
historian du Haillan repeats these maxims of Seyssell with approval, but 
confesses with regret that "we retain only the shadow of those good old 
institutions."7

Seyssell's constitutionalism may have been an anachronism, as du Haillan 
hints, but he spoke as if his principles were still valid, and those 
principles seem to imply for him nothing less than the fundamentals of a 
constitution defined by law, unalterable by government, and interpreted by 
an independent judiciary. The great tradition of constitutionalism can be 
clearly traced through that unparalleled succession of eminent French 
jurists and historians from Charles du Moulin in the I sixteenth century to 
Claude Joly in the seventeenth ?constitutionalists all, including Frangois 
Hotman, Bodin, Charondas le Caron, Bacquet, Choppin, du Tillet, du Haillan, 
Pasquier, De Thou, Coquille, Loyseau, Brisson, the Chancellor De L'Hpital, 
La Roche Flavin, Loysel, Lebret, Talon, and many more. By the end of that 
period French constitutionalism had become even more a shadow than it had 
been in 1571, but it was the shadow of a substance that we still retain at 
least in part; and when the great history of constitutionalism comes to be 
written, it will not be complete without a significant chapter on France 
under the Old Regime. We must, however, give greater attention to our own 
earlier institutions, for it was mainly there that the fate of modern 
constitutionalism was settled. For reasons centering largely in the 
political institutions peculiar to medieval England, only a few of which can 
be dealt with in a rapid survey such as this, England was more fortunate 
than her neighbors in retaining limitations on arbitrary government; and 
even in England a desperate civil war and a constitutional revolution were 
finally necessary before adequate sanctions could be found for her medieval 
constitutionalism. It is on these matters that a survey of the history of 
constitutionalism must concentrate.

In England, as elsewhere, jurisdictio was faced by encroaching government in 
the sixteenth and seventeenth centuries; yet in England jurisdictio had not 
been overwhelmed by government, and the old line of separation between it 
and gubernaculum was weakened but not destroyed. Constitutional history in 
this period is chiefly the story of the English attack upon this line and 
its English defense. Let us look first at the evidence for the survival of 
jurisdictio. Most of it, naturally, is to be found in the law reports of the 
period, but some of the letters of Stephen Gardiner, chancellor of England 
in the reign of Queen Mary, seem almost as significant. In 1547 Gardiner 
wrote thus to the Privy Council:

     And thus I have hard the lerned men of the Common Law say
     that if any, althogh he be deputed by the King, do, in execution
     of spirituall jurisdiction, extend the same contrary to any
     Common Law or act of Parliament, it is a premunire both to the
     judge and the parties, althogh it be done in the Kings Majesties
     name; bicause they say the Kinges Majesties supremacie in
     visiting and ordring of the Churche is reserved to spirituall
     jurisdiction. Which their saing cold not sinke into my
     understanding, that men executing the Kings commission, and
     having of hym jurisdiction, cold faull in danger of a premunire.
     But so the best lerned men of the realme have said, and I wold
     fayne have persuaded them to the contrary.8

In another letter of the same year Gardiner said:

     And of what strenkythe an acte of Parliament is, the realme was
     taught in the case of her that we called Quene Anne; where all
     suche as spake ageynst her in the Parliament House, all though
     they ded it by speciall commaundement of the Kynge, and
     spake that was truth, yet they were fayne to have a pardon, by
     cause that speakinge was ageynst an acte of Parliament. Ded ye
     never knowe or here tell of any man, that for doynge that the
     Kynge our late sovereigne lorde willed, devysed, and requyred
     to be done, he that tooke paynes and was commaunded to do
     it, was fayne to sue for his pardon, and suche other allso as
     were doers in it? And I coulde tell who it were. Sure there hathe
     bene suche a case; and I have bene present when it hathe bene
     reasoned that the doinge ageynst an acte of Parliament excuse
     the not a man even from the case of treason, all thoughe a man
     ded it by the Kynges commaundement. Ye can call this to your
     rememberance, when ye thinke furder of it; and when it comythe
     to your rememberaunce, ye will not be best content with your
     selfe, I beleve, to have advysed me to entre the breache of an
     acte of Parliament, withoute suertie of pardon, all thoughe the
     Kynge commaunded it.9

In Gardiner's long letter written from the Fleet prison to the Protector 
Somerset in 154710 several well-known but remarkable passages occur which I 
am loth to omit as illustrations, both of the strength of the old 
jurisdictio, and of Gardiner's apparent dislike of it. It is a very human 
document. He refers to the authority of papal legate which Wolsey had 
obtained with Henry VIII's full knowledge and at his express request. "Yet," 
Gardiner says, "because it was agaynst the lawes of the realme, the judges 
concluded the offence of the premunire; which conclusyion I bare away, and 
take it for a law of the realme, because the lawyers so sayd, but my resone 
digested it not." In support of this decision, Gardiner says that the 
lawyers 

     brought in examples of many judges that had fines set on their
     heads in like cases for doing against the lawes of the realme by
     the Kings commaundement. And then was brought in the judges
     oth, not to staye any process or judgement for any
     commaundement from the Kinges Majesty. And one article
     agaynst my Lord Cardinal was that he had graunted injunctions
     to stay the Common Lawes. And upon that occasion Magna
     Charta was spoken of, and it was made a great matter, the stay
     of the Common Lawe. And this I lerned in that case.

Gardiner then refers to his experience of enactments of the Council against 
exporters of grain, ineffective because "at such thime as the transgressors 
should be ponished, the judges whould answere, it might not be by the 
lawes"; and to the famous Act of Proclamations of 1539, "in the passing of 
which act many liberall wordes were spoken, and a playne promes that, by 
autority of the Act for Proclamationes, nothing should be made contrary to 
an act of Parliament or Common Law." He recalls one case in which he argued 
with Audley, the chancellor, against inflicting the penalties of the Statute 
of Praemunire, and then quotes Audley's answer as follows:

     "Thou art a good felow, Bishop," quod he (which was the maner
     of his familier speach), "looke the Act of Supremacy, and there
     the Kings doinges be restrayned to spiritual jurisdiction; and in a
     nother acte it is provided that no Spirituall Lawe shall have place
     contrary to a Common Lawe or Acte of Parliament. And this
     were not," quod he, "you bishops would enter in with the Kinge
     and, by meanes of his supremacie, order the layty as ye listed.
     But we will provide," quod he, "that the premunire shall ever
     hang over your heads, and so we lay men shal be sure to enjoye
     our inheritaunce by the Common Lawes and acts of Parliament."

Finally Gardiner recounts an episode of Henry VIII's reign which furnishes 
probably the clearest of the proofs of his own defensive thesis and of 
several of mine.

     The Lord Cromwell had once put in the Kinges our late
     sovereigne lordes head to take upon him to have his will and
     pleasure regarded for a lawe; for that, he sayd, was to be a very
     kinge. And therupon I was called for at Hampton Court. And as
     the Lord Cromwell was very stout, "Come on my Lord of
     Winchester," quod he (for that conceat he had, what so ever he
     talked with me, he knewe ever as much as I, Greke or Laten
     and all), "Aunswer the King here," quod he, "but speake plainly
     and direccly, and shrink not, man! Is not that," quod he, "that
     pleaseth the King, a lawe? Have ye not ther in the Civill Lawe,"
     quod he, "quod principi placuit, and so fourth?" quod he, "I
     have somwhat forgotten it now." I stode still and woundred in
     my mind to what conclusion this should tend. The King sawe me
     musing, and with ernest gentelnes sayd, "Aunswere him whether
     it be so or no." I would not aunswere my Lord Cromewell, but
     delivered my speache to the King, and tolde him I had red in
     dede of kings that had there will alwayes receaved for a lawe,
     but, I told him, the forme of his reigne, to make the lawes his wil,
     was more sure and quiet. "And by thys forme of goverment ye
     be established," quod I, "and it is agreable with the nature of
     your people. If ye begin a new maner of policye, how it will
     frame, no man can tell; and how this frameth ye can tell; and I
     would never advise your Grace to leave a certeine for an
     uncerteine." The King turned his back and left the matter after.

A dozen years later than this, in the first year of Elizabeth, John Aylmer, 
later bishop of London, wrote his Harborough for All Faithfull and Trewe 
Subjects in answer to John Knox's First Blast of the Trumpet Against the 
Monstruous Regiment of Women. It contains a statement of constitutionalism 
hardly less striking than Gardiner's:

     The regemente of Englande is not a mere monarchie, as some
     for lacke of consideration thinke, nor a mere oligarchie nor
     democratie, but a rule mixed of all these, wherein ech one of
     these have or should have like authoritie. The image whereof,
     and not the image, but the thinge indede, is to be sene in the
     parliament hous, wherein you shall find these 3 estats; the king
     or quene which representeth the monarche, the noblemen which
     be the aristocratie, and the burgesses and knights the
     democratcie. ... If the parliament use their privileges, the king
     can ordain nothing without them: If he do it, it is his fault in
     usurping it, and their fault in permitting it. Wherefore, in my
     judgment, those that in King Henry the VIII.'s daies would not
     grant him that his proclamations should have the force of a
     statute, were good fathers of the countrie, and worthy
     commendation in defending their liberty. ...

     But to what purpose is all this? To declare that it is not in
     England so daungerous a matter to have a woman ruler, as men
     take it to be. ... If, on thother part, the regement were such as all
     hanged upon the Icing's or quene's wil, and not upon the lawes
     written; if she might decre and make lawes alone, without her
     senate; if she judged offences according to her wisdom, and not
     by limitation of statutes and laws; if she might dispose alone of
     war and peace; if, to be short, she wer a mer monarch, and not
     a mixed ruler, you might peradventure make me fear the matter
     the more, and the less to defend the cause.11

This statement is remarkable in more ways than one for a date so early as 
1559; it includes not only an unequivocal statement of our ancient legal 
limitations on the prince's authority, but an assertion ?one of the 
earliest I have met with ?of mixed monarchy as the true form of the English 
government. In addition, it places matters of peace and war within the 
powers of parliament instead of the king alone ?a principle that, so far as 
I know, was never seriously urged in parliament till 1621, and was then 
repudiated by the king.

That Aylmer's assertion above is true, that in England all did not hang upon 
the queen's will, but "upon the lawes written," we find ample proof in the 
law reports of the time. Thus we find in Judge Jenkins' summaries of cases 
in the Exchequer Chamber: "The King by his grant cannot exclude himself from 
prosecuting any plea of the Crown; for it concerns the publick Government, 
and cannot be separated from his person."12 "Where the King has an Estate in 
fee or for life in any land, the king's grant of it quamdiu in manibus 
nostris fore contigerit, is a void grant; for such a grant was never heard 
of."13 "The King cannot grant to any one a power to dispence with any penal 
statute."14 "The King cannot grant power to any to make justices of oyer and 
terminer."15 "Regularly the King is only subject to the law of nature, as to 
the rights of the Crown; as to the rights of the subject he is bounded by 
the laws of the land."16 But the clearest of all such cases is that of 
Cavendish in 1587, when the justices of the Court of Common Pleas flatly 
refused to obey express and repeated orders of the Queen, on the ground that 
"the orders were against the law of the land, in which case it was said, no 
one is bound to obey such an order." 17

A half-dozen years later, when Serjeant Heyle ventured to say in the House 
of Commons that the queen "hath as much right to all our Lands and Goods as 
to any Revenue of her Crown," D'Ewes says, "All the House hemm'd and laughed 
and talked."18 It may have been similar opinions expressed in the same 
parliament by an unnamed "old Doctor of the Civil Law," on hearing of which 
D'Ewes says, "The House hawk'd and spat and kept a great coil to make him 
make an end."19

These were rights of the subject protected by due process of law; but over
against them was the king's government in which he was "subject only to the
law of nature." We might offset Aylmer's constitutionalism by a statement
attributed by Thomas Starkey to Cardinal Pole in the supposed dialogue
between Pole and Lupset:

     Hyt ys not unknown to you, Master Lupset, that our cuntrey
     hathe byn govemyd and rulyd thes many yerys under the state of
     pryncys, wych by theyr regal powar and pryncely authoryte,
     have jugyd al thingys perteynyng to the state of our reame to
     hange only upon theyr wyl and fantasye; insomuch that, what so
     ever they ever have conceyvyd or purposyd in theyr myndys,
     they thought, by and by, to have hyt put in effecte, wythout
     resystens to be made by any private man and subyecte; or else,
     by and by, they have sayd that men schold mynysch theyr
     pryncely authoryte. For what ys a prynce (as hyt ys commynly
     sayd) but he may dow what he wyl? Hyt ys thought that al holly
     hangyth apon hys only arbytryment. Thys hath byn thought, ye,
     and thys yet ys thought, to perteyne to the maiesty of a prynce
     ?to moderate and rule al thyng accordyng to hys wyl and
     plesure; wych ys, wythout dowte, and ever hath byn, the gretyst
     destructyon to thys reame, ye, and to al other, that ever hathe
     come therto.20

If Gardiner does not misrepresent him, these were precisely the opinions of 
Thomas Cromwell: to be a "very king" the prince must make his will a law. It 
seems probable that the dialogue of Cromwell and Gardiner at Hampton Court, 
referred to in Gardiner's letter to Somerset, was the prelude to Henry's 
attempt to put in practice this conception of kingship of Cromwell's by the 
Statute of Proclamations in 1539. It seems equally likely that Aylmer's 
praise of "the good fathers of the country" had reference to the men in the 
House of Commons who forced the king to substitute for his original bill a 
new one which specifically excepted from the king's proclamations the 
"inheritances, lawful possessions, offices, liberties, privileges, 
franchises, goods, or chattels" of subjects, and forbade

     the infringement of any "acts, common laws, ... [or] lawful and
     laudable customs" of the realm. It may have been these things
     that Starkey also had in mind.21

Clearly a struggle was going on in England between will and law about the 
year 1539, and it was to last for one hundred and fifty years. That it did 
not reach the phase of open warfare before the Stuarts is to be explained 
chiefly by the nature of parliament in the Tudor period. "It is of interest 
to note," says Professor Cheyney,

     that the queen [Elizabeth] used the expressions "this parliament"
     and "parliaments," as indeed was practically universal
     contemporary usage. She hardly conceived of "parliament" as a
     permanent institution. There was not in her view a coordinate
     branch of government known as parliament; rather from time to
     time a special assembly known as a parliament was called. The
     permanent continuous government was the queen, her privy
     councillors, judges and other officials.22

Sir Thomas Smith in his De Republica Anglorum, written in Elizabeth's reign, 
devotes considerable space to parliament; and yet, I believe, the statement 
of Sir John Seeley was on the whole a true one when he said that "in Queen 
Elizabeth's reign it would not have been natural ... in describing the 
government of England to mention Parliament at all. Not exactly that 
Parliament was subservient, but, that, in general Parliament was not 
there."23

In the forty-five years of Elizabeth's reign there were only eleven 
parliaments, whose duration was seldom longer than a few weeks; and I think 
one must agree with the further conclusion of Sir John Seeley, that the 
beginnings of parliament as a normal and regular organ of English government 
are to be found only after the Restoration. That, he says, "is the epoch 
from which we may say that the permanence of Parliament dates."24 Even in 
the comparatively short periods when parliament was in session the influence 
of the king was predominant and the "absolute" character of his government 
was recognized by the parliament itself. The words of Henry VIII in Ferrer's 
Case were indicative of the facts when he said: "We at no time stand so high 
in our estate royal as in the time of parliament; when we as head and you as 
members are conjoined and knit together into one body politic."25 It was 
never forgotten, by king or parliament, that the king was the real head; and 
in 1535 Stephen Gardiner held in his Oratio de Vera Obedientia that this was 
a headship in matters ecclesiastical as temporal:

     seeinge the churche of Englande consisteth of the same sortes of
     people at this daye that are comprised in this worde realme of
     whom the kinge his called the headde: Shall he not beinge called
     the headde of the realme of Englande be also the headde of the
     same men whan they are named the churche of Englande?26

In all these matters of government proper, and not of mere jurisdictio, the 
debates of Elizabeth's parliaments collected by Sir Simonds D'Ewes furnish 
concrete and conclusive evidence that the paramount and unquestioned 
authority of the prince as head was fully recognized and accepted by 
parliament itself ?evidence which is all the more significant when we 
contrast it with the strenuous and successful opposition offered by 
parliament when Henry VIII attempted to invade the sphere of jurisdiction in 
the Statute of Proclamations.

Interesting examples of the insistence by the queen, and at tunes of the 
clear acknowledgment by parliament, that government proper was not 
parliament's province, but that of the prince alone, occur in almost every 
one of Elizabeth's parliaments from 1566 on. I have time to note only a few. 
In 1559, in the very first parliament of the reign, Sir Nicholas Bacon, the 
lord keeper, warned the members that they should

     clearly forbear, and, as a great enemy to good Council, fly from
     all manner of Contentions, Reasonings, Disputations, and all
     Sophistical Captious and frivolous Arguments and Quiddities,
     meeter for ostentation of Wit, than Consultation of weighty
     Matters, comelier for Scholars than Counsellors; more
     beseeming for Schools, than for Parliament Houses.27

Not bad advice to any legislative body, but rather ominous coming from such 
a source. And at the end of the parliament of 1571 the lord keeper reproved 
certain of the members,

     although not many in number, who in the proceeding of this
     Session, have shewed themselves audacious, arrogant, and
     presumptuous, calling her Majesties Grants and Prerogatives
     also in question, contrary to their duty and place that they be
     called unto; and contrary to the express Admonition given in her
     Majesties name, in the beginning of this Parliament.

These, he says, her Majesty condemns "for their audacious, arrogant and 
presumptuous folly, thus by superfluous speech spending much time in medling 
with matters neither pertaining to them nor within the capacity of their 
understanding."28 In the same session the speaker of the Commons himself 
admitted that in matters ecclesiastical "wholly her Majesties Power is 
absolute";29 and one member, for encroaching upon this power by proposing a 
bill for reforming the ceremonies of the Church, was called before the Privy 
Council and commanded meantime to remain away from the parliament.30 
Exhibiting such a bill, the treasurer declared, was "against the Prerogative 
of the Queen, which was not to be tolerated." The prerogative in this 
respect was, as one member put it, "not disputable." 31 And the queen 
herself sent word to the Commons that she "would not suffer these things to 
be Ordered by Parliament."32

The boldness of Strickland, who was thus sequestered by the council in 1571
was, however, exceeded in the speech of Peter Wentworth in the parliament
of 1575, for which the Treasurer

     moved for his punishment and Imprisonment in the Tower as the
     House should think good and consider of; whereupon after
     sundry Disputations and Speeches, it was ordered upon the
     Question, that the said Peter Wentworth should be committed
     close Prisoner to the Tower for his said offence, there to remain
     until such time as this House should have further Consideration
     of him.33

When the Commons in the parliament of 1580 had ventured to pass Paul 
Wentworth's resolution for a public fast day "without her Majesty's Privity 
and Pleasure first known," they were rebuked and compelled to make humble 
submission to the queen for thus daring to "intrude upon her Authority 
Ecclesiastical"; and when one member rose to protest, the speaker and the 
House, as D'Ewes says, "did stay him."34 At the opening of the session of 
1593 the lord keeper, "having received new instructions from the Queen," 
closed his address to the parliament with these notable words:

     Wherefore, Mr. Speaker, her Majesties Pleasure is, that if you
     perceive any idle Heads which will not stick to hazard their own
     Estates, which will meddle with reforming the Church and
     transforming the Commonwealth, and do exhibite any Bills to
     such purpose, that you receive them not, until they be viewed
     and considered by those, who it is fitter should consider of such
     things, and can better judge of them.35

Later, when a bill was drawn by Peter Wentworth and another "for entailing 
the Succession of the Crown," the delinquents were called before the 
council, which commanded them "to forbear the Parliament, and not to go out 
from their several Lodgings."36

It seems reasonably certain that the line so clearly drawn by Bracton 
between jurisdictio and gubernaculum in the thirteenth century still remains 
at the end of the sixteenth the main clue to the riddle of the English 
constitution. At the close of Elizabeth's reign, with only a few exceptions 
men seemed to accept, almost as fully as Bracton, the twofold theory that 
the king is under the law and yet under no man, that private right is 
determinable and enforceable by law, and is under the control of courts and 
parliaments; while "matters of state," or the "transforming of the 
Commonwealth," are things "neither pertaining to them nor within the 
capacity of their understanding." The latter are a part of "the Prerogative 
Imperial," 37 which is and ought to be "absolute" and "not disputable." But 
this delicate balance between jurisdiction and government could only be kept 
if the head and the members of the commonwealth remained "conjoined and knit 
together into one body politic," as Henry VIII said. The seams joining them 
were beginning to show signs of strain even in the reign of Elizabeth; and 
under her successor rents began to appear, which were soon to widen till the 
state was divided. A declaration of Sir Walter Raleigh's is significant: 

     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 the prejudice both of
     King and subject.38 

These were prophetic words.

In the contention between jurisdictio and gubernaculum which was becoming 
imminent in the later years of Elizabeth's reign and developed into an open 
strife under her successor, each side emphasized the fact that its rights 
were an "inheritance." The parliament itself unwittingly strengthened the 
position of James I in the first statute of his reign when they declared, in 
the face of a statute of Henry VIII still in force and flatly contrary, that

     the Imperial Crown of the realm of England, and of all the
     kingdoms, dominions, and rights belonging to the same, did by
     inherent birthright and lawful and undoubted succession descend
     and come to your most excellent Majesty, as being lineally,
     justly, and lawfully next and sole heir of the blood royal of this
     realm.39

James himself always insisted on his royal rights as an inheritance. To him the
"fundamental" laws, if any were fundamental, gave protection, not to the
subject, but to him alone; they were "onely those Lawes whereby confusion is
avoyded, and their King's descent mainteined, and the heritage of the
succession and Monarchie."40 They were no part of the common law, and
therefore "not fit for the tongue of any lawyer" even in the high court of
parliament. That "highest and most authenticall court of Englande," as Sir
Thomas Smith had called it,41 was itself for James merely a "subalterin
iudiciall seate."42 Like the parliament of Scotland where the members "must
not speake without the Chauncellors leave," it was no place "for every rash
and hare-brained fellow to propone new Lawes of his owne invention."43 As
late as 1621 he ordered the speaker of the Commons "to acquaint that house
with our pleasure, that none therein shall presume to meddle with anything
concerning our government or mysteries of state," and to warn them

     that we think ourself very free and able to punish any man's
     misdemeanours in parl. as well as during their sitting as after.
     ...44

     We cannot allow of the stile, calling it [parliamentary privilege]
     your antient and undoubted right and inheritance, but could
     rather have wished that ye had said, that your privileges were
     derived from the grace and permission of our ancestors and us;
     (for most of them grow from precedents, which shews rather a
     toleration than inheritance). ... So as your house shall only have
     need to beware to trench upon the prerogative of the crown;
     which would enforce us, or any just king, to retrench them of
     their privileges, that would pare his prerogative and flowers of
     the crown.45

"The plain truth is," as he said later, "that we cannot, with patience, 
endure our subjects to use such antimonarchical words to us, concerning 
their liberties, except they had subjoined that they were granted unto them 
by the grace and favour of our predecessors."46

The true nature and the gravity of this issue are indicated in the replies 
to these assertions of the king, made by such men as Sir Thomas Wentworth, 
later earl of Strafford and Sir Edward Coke. In one of the newly discovered 
diaries of this parliament of 1621 Wentworth is reported to have said, "The 
common Lawes are but custome, and wee claime our liberties by the same title 
as we doe our estates, by custome."47 The crisis of the constitution, and of 
constitutionalism, could hardly have been expressed in fewer or truer words, 
and Coke's are equally significant: "When the kinge sayes he can not allowe 
our liberties of right, this strikes at the roote. Wee serve here for 
thousands and tenn thousands."48 This was a life-and-death struggle between 
liberties held "of right," as the subject's estates were, and James's view 
that they were "derived from the grace and permission of our ancestors and 
us"; it was a dramatic collision of the old jurisdictio and gubernaculum. 
The liberties of the people were to them as much an inheritance guaranteed 
by the common law as the hereditary right to his authority, independent of 
that law, was to James; and in a case of the third year of Elizabeth it had 
been asserted in the court of Common Pleas that, since a particular statute 
had been enacted

     to save Men's Inheritance, we ought to construe it according to
     the Consideration of the Common Law, and to admeasure the
     Prerogatives of the King upon this Act, which is made for the
     Safety of the Inheritances of others, in such Manner as the
     Common Law admeasures them in Cases that affect the
     Inheritances of others at Common Law. ... The King's
     Prerogative by the Common Law cannot prevail against such a
     custom as stands with the Right of Inheritance of another.

In case of a procedure where "the Party might be disinherited thereby ... 
the Common Law will not suffer the King to have such a Prerogative." 
Therefore it was said that the king was bound by the statute in question,

     for of a Law which belongs to a common Person, be it the
     Common Law or a special Law, every Man shall take
     advantage, which the King of common Right cannot defeat, for
     every Man is an Inheritor to this Common Law of Addition as
     well as to any other Common Law, which the King cannot
     defeat without Parliament, for of this Law every Man shall take
     advantage. ... Every Subject may claim from him Justice and the
     King is forced by Justice to do that which he ought.49

The wily king had hinted that the privileges of parliament depended solely 
on precedents. He might have taken warning from Coke's reply, that the 
Commons "served for thousands and tens of thousands," or from Wentworth's 
earlier statement: "We are they that represent the great bulk of the 
commonwealth."50 For in these replies we find the first vague promise of the 
future constitutional principle of the responsibility of government to the 
people, as a matter not merely of law but of policy. The crisis of 1621 is 
one of the turning points in the history of constitutionalism. It marks the 
coming of the new principle of political responsibility to reinforce the old 
guarantee of law, for the protection of the rights of the subject when 
threatened by arbitrary will. Parliament was not merely "the most 
authenticall court" for the determination of private right; it was that, but 
it was more. It represented "the great bulk of the Commonwealth," and was 
now beginning to act in their name and in their interest against a "head" 
whose hereditary rights could no longer be reconciled with the traditional 
liberties of the members of the commonwealth.

This principle of the people's consent and of parliament as the channel of 
this consent, reasserted by Wentworth and Coke in 1621, is a very ancient 
one. As we have seen, it was the original foundation of the binding force of 
leges in republican Rome;51 and it was asserted by Bracton in his repetition 
of Papinian's dictum that lex is the "common engagement" of the republic,52 
and in his Introductio when he said that laws could "neither be changed nor 
destroyed without the common consent of all those with whose counsel and 
consent they have been promulgated."53 This is the principle to which Edward 
I referred in his summonses to the parliament of 1295 ?quod omnes tangit ab 
omnibus approbetur?54 It is also implied in the repudiation by parliament in 
1366 of the papal overlordship of England and Ireland because neither King 
John who had conceded it, nor any other, could place his realm or his people 
under such subjection "without their assent and agreement." 55

The general principle is ancient and is clear; but it was long before the 
corollary became equally clear ?that the voice of parliament is the voice 
of the people. As late as 1365 counsel was arguing in an English court that 
one accused of breach of a statute could not be guilty if the statute had 
not been proclaimed locally in his county;56 as late as 1441 it was 
seriously debated in the courts whether a churchman's subsequent vote in 
Convocation should estop him from claiming an immunity granted by royal 
charter, thus implying that an act of Convocation is merely the act of its 
members individually;57 and as late as 1550 the following words were used by 
the chief justice of the court of Common Pleas to explain the effect of the 
recent Statute of Uses:

     And when the Statute 27 H 8 was made, it gave the land to
     them that had the use. It is to be seen then, who shall be
     adjudged in Law the Donor after the Execution of the
     Possession to the Use. And, Sir, the Parliament (which is
     nothing but a Court) may not be adjudged the Donor. For what
     the Parliament did was only a Conveyance ... from one to
     another, and a Conveyance by Parliament does not make the
     Parliament Donor; but it seems to me that Feoffees to Use shall
     be the Donors, for when a Gift is made by Parliament, every
     Person in the Realm is privy to it, and assents to it, but yet the
     Thing shall pass from him that has the most Right and Authority
     to give it. ... So here it shall be said the Gift of the Feoffees by
     Parliament, and the Assent and Confirmation of all others. For if
     it should be adjudged the Gift of any other, then the Parliament
     would do a Wrong to the Feoffees in taking a thing from them,
     and making another the Donor of it.58

By some such fiction as this the Roman lex had been transformed, and it now 
furnished a basis for the beginnings of a new theory of parliamentary 
sovereignty; for its underlying assumption of consent and representation 
concealed the extent of parliament's potential control over individual 
right.59 Wentworth was speaking the language of the future when he said, "We 
are they that represent the great bulk of the commonwealth"; of the past, 
when he appealed to custom as the subjects' title to liberty and property. 
But in 1621 both right and representation were threatened by the rapid 
extension of royal power.

The old dichotomy of jurisdiction and government was now strikingly 
displaying its one essential weakness ?the lack of sanction for the 
protection of the sphere of law from invasion by the power of government. To 
a careful reader of the great constitutional law cases of the Stuart period 
nothing is more obvious than the embarrassment and hesitancy of the great 
defenders of individual liberty, such as Selden and Hakewill. If they were 
not to proclaim themselves revolutionists, which ' no man dreamt of doing or 
dared to do before the Long Parliament, these men had no recourse but to 
rely on earlier precedents; and these precedents afforded very inadequate 
protection for the rights they recognized. What was needed was a penalty for 
breaches of right, and there was none. Nothing less than a revolution could 
add the sanction necessary to make the people's legal liberties secure, but 
men were not yet ready openly to preach revolution. James had shown his 
accustomed shrewdness by relying on precedent in his argument against 
parliamentary privilege; for precedent clearly recognized the power of the 
king as absolute in government, and it provided no adequate check for an 
abuse or undue extension of the king's discretionary power beyond its 
legitimate sphere.

Discretionary powers are by their very definition not controllable by any 
law. It is as true now as in 1621. Under the pardoning power a governor of 
one of our states can make gaol delivery of all the dangerous criminals in 
its prisons, and it is not so long since something like that was actually 
done.

Jurisdictio marked the limits of the king's authority but provided no means 
of enforcing their observance. One practical difficulty lay in the very 
indistinctness of the line dividing the spheres of royal government and 
private right and the ease with which that line might be ignored by the king 
on the pretext of "reasons of state" or the familiar and ever-present excuse 
of "national emergency." An interesting instance of this dangerous 
indefiniteness, and one concerned with the personal rather than the 
proprietary rights of the subject, is afforded by the history of judicial 
torture in England. Torture, Sir Thomas Smith piously declared, "is not used 
in England, it is taken for servile."60 "The nature of our nation is free, 
stout, haulte, prodigall of life and bloud: but contumelie, beatings, 
servitude and servile torment and punishment it will not abide."61 "Heading, 
tormenting, dismembring, either arme or legge, breaking upon the wheele, 
empailing, and suche cruell torments as be used in other nations by the 
order of their law, we have not."62 "There is no one opinion in our Books, 
or judiciall Record (that we have seen and remember) for the maintenance of 
tortures or torments, &c.," says Sir Edward Coke in his Third Institute.63

And yet the actual occurrence of such "cruell torments" in England in the 
reigns of Elizabeth and James I is attested by evidence that is 
unquestionable.64 "Torture was constantly used as an instrument of evidence 
in the investigation of offences, whether municipal or political, without 
scruple, and without question as to its legality."65 In the case of Peacham 
in 1615 Secretary Winwood reported, "Upon these interrogatories Peacham this 
day was examined before torture, in torture, between torture and after 
torture."66 In 1571, only a few years after writing the statement above that 
torture was "not used in England," Sir Thomas Smith wrote to Burleigh con-

cerning prisoners implicated in the treason of the duke of Norfolk, 
"Tomorrow do we intend to bring a couple of them to the rack."67 The queen 
had commanded that they should "find the tast therof,"68 and they probably 
did. Coke himself, when attorney general, seems to have authorized the use 
of torture on at least one occasion.69

This anomaly has often been attributed to the mere weakness or cowardice of 
the officials involved ?an explanation no more satisfactory than the usual 
indiscriminate condemnation of all the king's judges of the time; while 
Francis Hargrave thought that the instances of torture proved nothing more 
than "an irregularity of practice."70 The true and, to me, the only adequate 
explanation of these many instances is given by Jardine, to whom they "show, 
not the casual, capricious, or unjust acts of particular kings or 
councillors, but a practice handed down and justified by a constant course 
of precedents as an unquestionable prerogative of the Crown, though directly 
opposed to the fundamental principles of reason and law." "No doubt," he 
says,

     the assertion of the illegality of torture is in one sense strictly
     true. It was not lawful by the common law; ... it was contrary to
     Magna Charta and many statutes; and therefore the Judges
     could not inflict it as a punishment in the ordinary course of
     administering justice. But it was lawful as an act of prerogative,
     ?as an act of that power to which, according to the doctrines
     of those days, the laws belonged as a kind of property, ?a
     power, which was superior to the laws, and was able to
     suspend the laws, ?and which was the only and uncontrolled
     tribunal to judge of the necessity of such suspension.71

As Gardiner briefly puts it, "Torture had been allowed by custom as 
inflicted by prerogative, but not by law."72 "Here in England, they take a 
man & rack him I doe not know why, nor when, not in time of Judicature, but 
when some body bidds," says the caustic Selden.73 The rack is thus only 
another case, and one very dangerous to liberty, of the old parallelism of 
jurisdictio and government. The king's prerogative in this matter was not 
merely "out of the course of the common law," as Blackstone said in the next 
century; it was still in danger of being "above" it, as Dr. Cowell, in his 
Interpreter, said it was in 1607.

What was thus true of secular cases before the council was equally true of 
ecclesiastical cases coming under the High Commission. The oath Ex Officio, 
which required one accused of nonconformity to incriminate himself under 
oath, was a procedure flatly contrary to common law and never employed in a 
common-law court, but its use was common in the prerogative court of the 
High Commission for Ecclesiastical Causes.74

Other illustrations of the relations of government to law in the critical 
period of constitutionalism about the opening of the seventeenth century 
might easily be added,75 but of them all royal monopolies are in some ways 
the most striking. For such a monopoly was by definition a branch of the 
prerogative in the hands of a subject. It originated in a grant made by 
virtue of the king's "absolute" authority as "supreme governor," and in the 
eye of the monarch was therefore not controllable by any law nor debatable 
by subjects even in the high court of parliament. It was, as Elizabeth said 
in 1597, if Egerton reported her correctly, "the chiefest Flower in her 
Garden, and the principal and head Pearl in her Crown and Diadem."76 On the 
other hand, these monopolies were often clearly against both statute and 
common law as well as oppressive in their actual effects. Did they therefore 
come within the "absolute" powers of the prince as mere "matter of polity," 
or were they subject to the rules of the law, enforceable by the courts? 
This was the constitutional question, and it was a question of first 
importance both practical and theoretical.

Up to a year or two before her death Elizabeth had no doubt about the 
answer. Monopolies were her concern alone. She certainly thought them not 
"fit for the tongue of any lawyer." As late as October 7, 1601, when a 
plaintiff tried to bring in question the legality of Darcy's monopoly of the 
manufacture of playing cards by an action in the Common Pleas, the council 
at the queen's instance issued an order to the justices of that court 
commanding them to stay all proceedings till the queen's pleasure was made 
known to them. "Her Prerogative Royall may not be called in question for the 
valliditie of the letters patentes."77 In 1603 this very patent was declared 
to be against law in the case of Darcy v. Allen.78 But in the meantime, some 
six weeks after the council's order just mentioned, the House of Commons 
took up the question of monopolies in a five days' debate which is without 
parallel in the surviving records of earlier parliamentary history. A list 
was read of the new patents granted since the last parliament. "Is not Bread 
there?" asked William Hakewill. "If order be not taken for these, Bread will 
be there, before the next Parliament."79 Despite the strenuous efforts of 
the ministers, who urged a procedure by humble petition to the queen, it was 
evident that the house was resolved on the bold step of proceeding by bill 
to restrict the royal prerogative ?a method without precedent. In the 
accusations against Richard II parliament had charged the king with saying 
that the laws were "in his mouth." Here was a proceeding on the part of 
parliament which, when Elizabeth first came to the throne, would have seemed 
hardly less revolutionary than the assertions of Richard II. The speaker was 
summoned to the queen in haste on November 24, 1601, while the debate was at 
its height, and the next day announced to the house a message from Elizabeth 
promising full redress of all their grievances not in futuro but at once. 
"What patent soever is granted," Secretary Cecil added, "there shall be left 
to the overthrow of that Patent, a Liberty agreeable to the Law."80 Three 
days later the Queen was as good as her word and issued a proclamation "by 
her regal power and authority" and of "her mere grace and favor," in which 
some monopolies were abolished and most of the others "left to law," adding, 
however, "that if any of her subjects shall seditiously or contemptuously 
presume to call in question the power or validity of her prerogative royal, 
annexed to her imperial crown, in such cases all such persons so offending 
shall receive severe punishment, according to their demerits."81 It was a 
virtual surrender that these last words hardly served to conceal.

The threat against law and jurisdiction and against all legal rights, inherent in a
prerogative with boundaries as vague and ill-defined as Elizabeth's, was made
evident to Englishmen probably far more by the greed of the holders of royal
patents than by any oppressive acts of direct government on the part of the
queen herself. What uncertainty was left in 1603, however, the first two
Stuarts proceeded without much delay to remove.



                       CHAPTER VI

         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 Hake-will'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 onesided 
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 Stratford'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. Alien 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 
absolute, 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 Stafford 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 then: 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.



                          Notes

                   CHAPTER I (pages 1-22)

1. Quoted in the Oxford Dictionary s.v. "constitution."

2. Rights of Man in The Complete Works of Thomas Paine (London), pp.
302-303, 370.

3. An Appeal from the New to the Old Whigs (1791), in The Works of the
Right Honourable Edmund Burke (1855), III, 81.

4. Ibid., p. 13.

5. A Dissertation upon Parties (1733-1734), in The Works of Lord
Bolingbroke (1841), II, 88.

6. Ibid., p. 105. The Septennial Act was defended by its supporters as the 
exercise of an extraordinary rather than an ordinary power of parliament. 
The Jacobite rising in 1715, it was held, had created a national emergency 
in which the very safety of the state depended upon the postponement of a 
parliamentary election. As the judges of Charles I had justified the royal 
prerogative in the levy of ship money, so the Whigs now justified an 
extension of parliament's power by misquotation of Cicero's Salus populi 
suprema lex esto, turning his esto into an est, and perverting the mere 
exhortation addressed to the commander of an army in the field into a 
general maxim of arbitrary government. The argument for emergency powers is 
not an unsound one ?far from it; but it becomes a grave menace to 
individual liberty when "the sole judge, both of the danger, and when and 
how the same is to be prevented, and avoided," is a king; and may be such 
even when the sole judge is a representative assembly; the more so if only a 
partisan, a corrupt, or an "unreformed" one. John Selden noticed this 
substitution of est for the esto of Cicero's maxim and deplored its misuse 
in his day to justify absolutism under pretext of national emergency. He 
mistook it, however, for an extract from the XII Tables. "There is not any 
thing in the World more abus'd then this Sentence Salus populi suprema lex 
esto, for wee apply it, as if wee ought to forsake the knowne law when it 
may bee most for the advantage of the people, when it meanes no such thing: 
for first, tis not salus populi lex est, but esto ..." (Table Talk, s.v. 
"People," folio 56b). Selden's strictures would probably have been even more 
severe if he had known that the maxim was applied originally by Cicero to a 
military commander alone, and then only when he was actually in the field: 
militiae, but never domi (Cicero, De Legibus, lib. III, cap. 3, sec. 8). 

Others besides Selden in his time made the same mistake of attributing this 
important maxim to the XII Tables instead of to Cicero. See, for example, 
Richard Zouche's Elementa Jurisprudence (Oxford, 1636), part IV, p. 55; 
William Fulbecke, A Direction or Preparative to the Study of the Laws 
(London, 1620), folio 2; Bacon, Essays, Of Judicature. Bacon, as many 
others, omits the verb altogether, but evidently implies an est, not an 
esto. Serjeant Maynard, a century after Bacon, has esto instead of est, but 
still thinks it comes from the XII Tables (Parliamentary History, vol. V, 
col. 125).

Arbitrary government, possible under the Tudors as an ordinary power, became 
impossible under the Stuarts except as an extraordinary power warranted only 
by the doctrine of emergencies. This was one of the most momentous of the 
results of "the winning of the initiative" by the House of Commons, but in 
the later use of the phrase it was in process of becoming a justification of 
arbitrary government by a parliament as it had formerly justified royal 
absolutism.

The Septennial Act of 1716 is no doubt the first important application of 
the theory of parliamentary omnipotence after the Revolution, but within a 
dozen years of that event there are indications that the House of Commons is 
already beginning to think of itself not merely as the "full and free 
Representative of this nation," which the Declaration of Rights in 1689 had 
declared it to be, but as a body with an inherent authority independent of 
the people who had chosen it. This appears as early as 1701 in the 
imprisonment by the House of the Kentish petitioners. That such a view was 
not shared by all, however, is indicated in many contemporary tracts, 
especially the remarkable "Legion's Memorial," so-called, probably written 
by Defoe (Parliamentary History, V, 1252; Later Stuart Tracts, ed. by George 
A. Aitken, pp. 179-186), which closes with the significant warning, 
"Englishmen are no more to be Slaves to Parliaments, than to Kings." As the 
rhyming pamphleteer of the same year said,

          Posterity will be ashamed to own, 
          The actions we their ancestors have done, 
          When they for ancient precedents enquire, 
          And to the Journals of this age retire, 
          To see one tyrant banish'd from his home, 
          To set five hundred traitors in his room.

The History of the Kentish Petition (Somers Tracts, XI, 254; Parliamentary 
History, vol. V, app. xvii, col. 188; Later Stuart Tracts, p. 178) probably 
also by Defoe.

The fundamental cleavage between such views as these and the new temper of 
the House of Commons appears clearly in the answer to these "Legion" 
pamphlets made by Sir Humphrey Mackworth (Somers Tracts, XI, 176 ff.) in 
which he declared "that the King, lords, and commons, united together, have 
an absolute supreme power to do whatever they shall think necessary or 
convenient for the public good of which they are the only judges, there 
being no legal power on earth to controul them. ... The king, lords, and 
commons, therefore, as supreme, have superior powers, and the liberty of 
exercising them (according to the nature and constitution thereof) as they 
in their respective wisdoms and discretion shall think most conducing to the 
public good, without rendering any account for the same" (pp. 282-283). To 
this Defoe replied: "The people of England have delegated all the executive 
power in the King, the legislative in the King, Lords, and Commons, the 
sovereign judicative in the Lords, the remainder is reserved in themselves, 
and not committed, no not to their representatives: all powers delegated are 
to one great end and purpose, and no other, and "that is the public good. If 
either or all the branches to whom this power is delegated invert the 
design, the end of their power, the right they have to that power ceases, 
and they become tyrants and usurpers of a power they have no right to" (The 
Original Power of the Collective Body of the People of England Examined and 
Asserted [London, 1701], in The Works of Daniel Defoe, by William Hazlitt 
[London, 1843], III, 9). It is the English form of the old controversy of 
the early glossators, whether the populus had conferred on the Emperor all 
its imperium and potestas unconditionally and irrevocably or not. For 
references to some further contemporary statements, see The Theory of 
Balanced Government, by Stanley Pargellis, The Constitution Reconsidered 
(New York, 1938) pp. 37-49.

The same conflicting views are brought out again in 1704-1705 in the great 
case of Ashby v. White (Howell's State Trials, XIV, col. 697 ff.) in which 
the Lords declared, "It could not then [in 1628, when the Petition of Right 
was framed by the Commons] have been imagined, that the successors of those 
men would ever have pretended to an arbitrary and unlimited power of 
depriving their fellow subjects of their liberties" (col. 869). And they 
add, "This is the first time a House of Commons have made use of their 
having given the People's money, as an argument why the prince should deny 
Writs of Right to the subject, obstruct the course of justice, and deprive 
them of their birth-rights" (col. 871).

Thus, as Bolingbroke said in 1733, the new conception of parliament's power, 
"in less than twenty years," "is grown or is growing familiar to us." From 
this it was but a step to the denial, in the reign of George III, of the 
right of the electors of Middlesex to choose their own representatives; to 
that statement of the Lord Chancellor in 1766 that "every government can 
arbitrarily impose laws on all its subjects"; and to the assertion made 
about the same time in the Commons that that body alone in the enacting of 
law "constitutes the only people of England which the law acknowledges." In 
these things Burke had ample warrant for his declaration in 1770, in his 
Thoughts on the Cause of the Present Discontents, that "the Distempers of 
monarchy were the great subjects of apprehension and redress, in the last 
century; in this, the distempers of parliament." "This change from an 
immediate state of procuration and delegation to a course of acting as from 
original power, is the way in which all the popular magistracies in the 
world have been perverted from their purposes." "To be a Whig on the 
business of an hundred years ago, is very consistent with every advantage of 
present servility." For all the rest of the people of England, outside the 
Commons, there seemed no remedy left for such "distempers" and their 
deprivation of these ancient "birth-rights" except the resort to force; for 
from the fact that there was no appeal from their jurisdiction in 
controverted elections, the Commons were implying, as Burke says, that they 
were bound by no rule but their own discretion. That ultimate remedy of 
force the authors of the "Legion's Memorial" had threatened to use as early 
as 1701; its actual use came first in 1775 by Englishmen in the colonies of 
North America; Englishmen were "no more to be slaves to Parliaments, than to 
Kings." In England itself the threat of such slavery finally became a thing 
of the past through the reforms of the nineteenth century, the gradual 
growth of truly "responsible" government, and the adoption in law and 
practice of the principle of Sir John Holt's dissenting opinion in the case 
of Ashby v. White.

7. Parliamentary History, XVI, 170. The italics are mine. 

8. An Appeal from the New to the Old Whigs, Works, III, 30. 

9. A Collection of State Tracts (London, 1705), I, 106.

10. Some Remarks upon Government (written in 1689), in State Tracts, I,
159, 160, 162.

11. A Discourse Concerning the Nature, Power, and Proper Effects of
the Present Conventions in Both Kingdoms (1689), in State Tracts, I,
220.

12. Some Political Writings of James Otis (ed. by Charles F. Mullett; The
University of Missouri Studies), p. 79.

13. Hezekiah Miles, The Principles and Acts of the Revolution in
America, p. 19.

14. "What a word is that franchise? The lord may tax his villain high or 
low, but it is against the franchises of the land, for freemen to be taxed, 
but by their consent in parliament. Franchise is a French word, and in Latin 
it is Libertas" (1627; in Parliamentary History, II, 237).

15. The Political Works of James I (Cambridge, Mass., 1918), p. 300.

16. Howell's State Trials, II, 481, in which this speech is given as the 
speech of Yelverton. The notes of the debates in this parliament published 
by S. R. Gardiner show that the speech was made by Sir James Whitelocke 
(Parliamentary Debates in 1610 [Camden Society, 1862], p. 103).

17. Candid Quarterly Review, no. 1 (February, 1914), p. 31. 

18. The Letters and Speeches of Oliver Cromwell (ed. by S. C. Lomas),
II, 382.

19. In such cases in the past it has been challenged occasionally though 
without success. For example, just after the Restoration, when the abolition 
of feudal tenures was agitated, one opponent of the measure declared: "And 
if an Act of the Commons alone, or of the Lords alone, or of both together, 
cannot amount to an Act of Parliament, the King himself cannot grant away 
his Regality, or Power, or means of governing by his Charter, or any Act 
which he can singly doe, his concurrence with both the Lords and Commons can 
no more make an Act to confirme that which should not be done or granted, 
than his own grant or Charter could have done, or than if he and the House 
of Commons only had made an Act." He then goes on to cite authorities for 
the principle "that the Superlative power of Parliaments above all but the 
King, is in some things so restrained, as it cannot enact things against 
Right Reason, or common Right, or against the Lawes of God or Nature" 
(Fabian Philipps, Esq., Tenenda non Tollenda [London, 1660], pp. 254-255). 
On the various interpretations of Coke's statement of this principle in 
Bonham's Case, see C. H. McIlwain, The High Court of Parliament (1910), pp. 
286 ff.; W. S. Holdsworth, "Courts of Law and Representative Assemblies in 
the Sixteenth Century," Columbia Law Review, XII (January, 1912), 1-31; T. 
F. T. Plucknett, "Bonham's Case and Judicial Review," Harvard Law Review, XL 
(1926), 30-70; S. E. Thorne, "Dr. Bonham's Case," Law Quarterly Review, 
October, 1938, pp. 543-552; S. E. Thorne, A Discourse upon the Exposition & 
Understandinge of Statutes (San Marino, Calif., 1942), Introduction.

                  CHAPTER II (pages 23-40)

1. Hoveden, for example, usually refers to Henry II's Constitutions of 
Clarendon as leges (Chronica Magistri Rogeri de Houedene [Rolls Series], I, 
220-222). Walter of Coventry calls them consuetudines quae inductae sunt 
contra ecclesias terrae suae in tempore suo (The Historical Collection of 
Walter of Coventry [Rolls Series], I, 207). 

2. Liebermann, Gesetze der Angelsachsen, I, 553.

3. Lib. II, cap. vii (Glanvill De Legibus et Consuetudinibus Angliae, ed.
by George E. Woodbine [New Haven, 1932], p. 63).

4. Lib. XIII, cap. xxxii, p. 172.

5. Folio 312 B.

6. Folio 168 B.

7. Philippe de Beaumanoir, Coutumes de Beauvaisis, ed. Am. Salmon
(Paris, 1899-1900), ?958 (I, 486).

8. De Republica Libri Sex et Viginti, Authore D. Petro Gregorio
Tholosano, lib. I, cap. i,  16, 19 (Lugduni, 1609, pp. 4, 5). 

9. Cicero, De Re Publica, I, 45 (69).

10. Ibid., II, 21 (37). When, early in the fifteenth century, Jean de Terre 
Rouge wishes to express the idea conveyed by Cicero's constitutio or our 
"constitution," he uses, not that word, but the phrase status publicus. A 
century later Seyssell translates this by the term La Police, for which 
Sleidan in his admirable Latin translation of Seyssell employs politia and 
not constitutio as its equivalent. So Bodin, in speaking of the constitution 
of a republic, refers to it as L'estat d'une Republique (Les six livres de 
la republique, liv. II, chap. 11 [Paris, 1577, p. 200]). In his Latin 
version, it is status Rei-publicae (Paris, 1586, p. 189). It is true that 
Bernard de Girard Seigneur du Haillan, in the first edition of his important 
book, De L'Estat et Succez des Affaires de France, referring in the plural 
number to the limitations of government implied in Seyssell's term La 
Police, applies to them the word constitutions, but it seems clear that he 
is using the term constitutions to connote not the modern conception of the 
whole of the complex governmental framework in a state as we do but its 
older sense, borrowed by the canonists from imperial Rome, by which he means 
only the several specific enactments of emperors or kings. If so this 
implies a reluctant acceptance on his part of the theory already asserted by 
Charles du Moulin and others that the existing limitations of monarchy 
contained in the customary law of France were originally effected by the 
enactments of former kings and not by the people more utentium. This is a 
far-reaching change from the medieval conception of Jean de Terre Rouge and 
Seyssell and the limitations of the English common law. It marks the longest 
theoretical step toward the absolutism which ultimately made the France of 
Louis XIV so different from England with its constitutionalism. Du Haillan's 
statement is in part as follows: "... qui sont les mesmes mots de Claude de 
Seissel en son livre de la Monarchie de France, lesquels (bien qu'ils 
sentent l'antiquit? nous n'avons voulu changer: toutesfois on voit bien que 
ce bel ordre institu?en nostre Monarchie, est corrompu, & que nous ne 
retenons que l'ombre de ces belles premieres constitutions. Voila donc trois 
freins & brides, qui guident l'estat du royaume de France, & qui le gardent 
de se precipiter aux dangers, ausquels les estats, qui sont mal conduits & 
menez, se precipitent" (De L'Estat et Succez des Affaires de France [Paris, 
1571], p. 82).

It is noteworthy here that du Haillan still uses the word constitutions in 
the plural and in its older medieval sense to include the several 
fundamental enactments of earlier kings. Thus far I have found no use of the 
word in its modern meaning, as the whole governmental framework of a state, 
before the seventeenth century. The first clear instance I have met with is 
Sir James Whitelocke's jus publicum regni referred to above at page 13. Even 
in 1649 the Court in its accusation of Charles I refers to "the fundamental 
constitutions of this Kingdom," not to the "Constitution" (Rushworth, 
Historical Collections, VII, 1396), and as late as the Revolution the 
pamphleteer quoted above at page 6 speaks of "the present Laws and 
Constitutions of England." The twelfth century Constitutio Domus Regis (Red 
Book of the Exchequer [Rolls Series], p. 807; Black Book of the Exchequer, 
ed. Thomas Hearne [London, 1774], I, 341) might be considered an exception, 
but to me that document as a whole looks more like an administrative order 
than a "constitution" in our modern sense of the term. The two extracts 
quoted by Du Cange in which the word is said to be equivalent to consuetudo 
also seem to me to refer to administrative provisions rather than 
promulgations of custom (Glossarium Mediae et Infimae Latinitatis, s.v. 
"constitutio"). They appear to be very like the lex regia of the Leges 
Henrici Primi (Liebermann, Gesetze der Angelsachsen, I, 556), or aliquid de 
communi consilio ... constitutum in the Exchequer (Dialogus de Scaccario, I, 
i), or the "novella constitutio," "hoc est a domino rege nostro," by virtue 
of which Thomas Brown, the king's almoner, sat in the Exchequer in the reign 
of Henry II, the predecessor of the later king's remembrancers or 
Rememoratores Regis (Dialogus de Scaccario, I, V, C). Apparently the word 
"constitution," although well-known in this earlier period, has a different 
meaning and cannot be normally interpreted in the sense of Cicero's 
"Constitution" or of our present one. In England the appearance of our 
modern conception of the "constitution" was delayed by the lawyers' habit of 
defining all public relations in terms of private law. As Professor 
Plucknett says, "When government has ceased to be regarded as private 
property ... only then can we begin to speak of political thought and a 
constitution in the modern non-feudal sense" (The Lancastrian Constitution, 
Tudor Studies, p. 181).

11. Outlines of Historical Jurisprudence, vol. II. The Jurisprudence of the
Greek City, p. 12.

12. Ibid., p. 19.

13. Ibid., pp. 41-42.

14. Ibid., p. 136.

15. The Politics of Aristotle, I, 209-210.

16. Laws, VII, 817.

17. ?138. Almost the same words are used in Areopagiticus, ?14.

18. Politics, VI (iv), chap. xi.

19. Cicero, De Re Publica, III, 22.

20. Werner Jaeger, Aristotle (English translation), p. 290. 

21. Ibid., p. 13.

22. Politicus, p. 297. The italics are mine.

23. Politics, III, 16.

24. Page 715.

25. Page 659.

26. Hermann Rehm, Geschichte der Staatsrechtswissenschaft, p. 78.

27. Ibid., p. 81.

28. Ibid., pp. 95-96.

29. Lego de nomon ton men idion ton de koinon. "I refer, on the one hand to 
municipal law, on the other to the jus gentium" (Rhetoric, I, 13, 2).

30. Politics, VIII, 1307.

31. The Politics of Aristotle, tr. by J. E. C. Welldon, pp. 348-349.

32. Ibid., p. 368.

33. Ibid., pp. 392-393.

34. Ibid., p. 393.

35. Ibid., p. 394.

36. Ibid., p. 396.

                  CHAPTER III (pages 41-66)

1. A History of Medieval Political Theory in the West, I, 8-9.

2. "... cum ipse imperator per legem imperium accipiat" (Gai, Institutiones, 
I, 2, 5).

3. De Legibus, III, 12. "It is the stoics who emancipated mankind from its
subjection to despotic rule, and whose enlightened and elevated views of life
bridged the chasm that separated the ancient from the Christian state, and led
the way to freedom" (Lord Acton, The History of Freedom, p. 24; see also
pp. 28-29).

4. Digest, 1, 2, 2, 9.

5. Only one has survived to modern times, the one enacted at the accession 
of the Emperor Vespasian, A.D. 69-70. For the text of it see P. F. Girard, 
Textes de droit romain, 4th ed., pp. 107-108. The entrusting by the populus 
to the emperor of its authority to enact binding law is thus expressed by 
Ulpian in his Institutiones in the third century A.D.: "Quod principi 
placuit, legis habet vigorem; utpote cum lege regia, quae de imperio eius 
lata est, populus ei et in eum omne suum imperium et potestatem conferat" 
(Dig., 1, 4, 1.). In the sixth century this is paraphrased thus by the 
authors of the Institutes of Justinian: "Sed et quod principi placuit, legis 
habet vigorem, cum lege regia, quae de imperio eius lata est, populus ei et 
in eum omne suum imperium et potestatem concessit" (Inst., 1, 2, 6.). This 
substitution of concede for confero in the sixth century statement of the 
principle, and above all the deliberate change to a past tense instead of 
the present as used by both Gaius and Ulpian ?these seem to warrant the 
view that no predecessor of Justinian had ever asserted this doctrine of 
absolutism quite as unequivocally as he.

6. Geschichte der Staatsrechtswissenschaft, pp. 149-150. 

7. Edouard Cuq, Les institutions juridiques des Romains (1904), vol. I, p.
xxiv.

8. Geist des rmischen Rechts, vol. I, tide 1, chap. 2, sec. 18.

9. Loc. cit.

10. Dissertations on Early Law and Custom, p. 389.

11. Digest, 2, 15, 14.

12. Digest, 1, 7, 34.

13. Digest, 2, 14, 7, 5.

14. Institutiones, III, 145.

15. Ibid., p. 146.

16. Digest, 1, 3, 1. In the next fragment of the same title, from the
Institutions of Marcianus, an extract is given in Greek from a supposed
oration of Demosthenes in which lex is defined as poleos syntheke koine;
and some have thought that the words of Papinian are a mere paraphrase of
this definition. It does not seem to me probable.

17. Digest, 35, 2, 1, pr.

18. II, 249.

19. Digest, 1, 3, 31.

20. English Law and the Renaissance, Cambridge, 1901.

21. Doctor and Student, Dialogue I, chap. 5.

22. This was apparently the first sentence of the Institutiones of Gaius. 
The single surviving manuscript of Gaius is defective in the beginning and 
does not include these words, but in the corresponding part of the 
Institutes of Justinian the whole paragraph of which this is the first 
sentence is quoted verbatim from the extract from Gaius in the Digest (1, 1, 
9). The paragraph is the first in the Gaius manuscript, and its lost first 
sentence may therefore be supplied without hesitation from the Digest. It is 
likely that Saint-German knew it, if at all ?and he probably did know it ?
from its inclusion in the Institutes of Justinian.

23. F. W. Maitland, Select Passages from the Works of Bracton and Azo
(Selden Society), p. xiv.

24. "... car chascuns barons est souverains en sa baronie" (Beaumanoir,
Coutumes de Beauvaisis, II, 1043 [p. 23]).

25. "La maxime princeps legibus solutus est dans l'ancien droit public
francais," in Essays in Legal History, ed. by Paul Vinogradoff (Oxford,
1913), pp. 201 ff.

26. Ibid., p. 204.

27. For Vacarius, see C. F. C. Wenck, Magister Vacarius Primus Juris
Romani in Anglia Professor (Lipsiae, 1820); F. de Zulueta (editor), The
Liber Pauperum of Vacarius (Selden Society), 1927.

28. This distinction here so clearly made between leges and consuetudines 
refers, I think, to the difference between enactments and customs. The 
peritia juris of the next sentence refers to the law or "right" involved in 
particular cases, and the consuetudo regni immediately following it has 
reference to the feudal consilium due from tenants in chief in the Curia 
Regis, sanctioned by a feudal customary law common in the whole realm. The 
old English translation of John Beames is very misleading here. He 
translates the words above, in peritia juris et regni consuetudinibus, "in 
skill in the Law and Customs of the Realm," reading consuetudinibus as 
though it were consuetudinum and thus confusing and distorting the whole 
meaning and constitutional significance.

29. Leges namque Anglicanas licet non scriptas leges appellari non videatur 
absurdum, cum hoc ipsum lex sit, quod principi placet legis habet vigorem, 
eas scilicet quas super dubiis in concilio definiendis, procerum quidem 
consilio et principis accedente auctoritate constat esse promulgatas.

30. Digest, I, 3, 32.

31. Chronicon Monasterii de Abingdon (Rolls Series), I, 297. It seems 
probable, from the details he gives, that the chronicler may have been an 
actual witness of what he records here, for the account must have been 
written soon after 1185; the chronicle itself ends in 1189. Although 
allowance must be made for the author's natural bias, this is not likely to 
have affected the correctness of the most significant words in his quotation 
from the Chief Justiciar.

                  CHAPTER IV (pages 67-92)

1. F. W. Maitland, Bracton's Note Book, I, 9-10. See also his introduction 
to Select Passages from the Works of Bracton and Azo. 

2. Maitland, Bracton's Note Book, I, 30-33. Maitland thinks this addicio may 
possibly have been made by Bracton himself after the completion of the body 
of his treatise, but in any case Maitland is also clear that it contradicts 
other statements made at least five times in all parts of the book. To me it 
is those other statements, and not this one, that give us the true 
indication of the political views of Bracton himself and the majority of men 
in his time. I concur heartily with Dr. Kantorowicz against Maitland, in the 
former's higher estimate of Bracton's knowledge and understanding of Roman 
law, though possibly for reasons somewhat different from his; but I cannot 
agree that "no passage more genuinely Bractonian" than this one "stands in 
the whole treatise" (H. Kantorowicz, Bractonian Problems [Glasgow, 1941], 
pp. 49-52). The important and revolutionary ideas of Dr. Kantorowicz 
respecting the date and authorship of the Bractonian text are only remotely 
related to the question of Bracton's constitutionalism, and are therefore 
not discussed here. On pages 78, 89, and elsewhere I have retained the date 
of Bracton's Treatise preferred by Gterbock and Maitland. For criticisms of 
the theories of Dr. Kantorowicz, see Professor G. E. Woodbine, "Bractonian 
Problems," in Yale Law Journal, LII (March, 1943), 428-444; Fritz Schulz, 
"Critical Studies on Bracton's Treatise," in Law Quarterly Review, LIX 
(April, 1943), 172-180. I have discussed the views of Dr. Kantorowicz more 
at length in "The Present Status of the Problem of the Bracton Text," in 
Harvard Law Review, LVII (December, 1943). See also Fritz Schulz, "Bracton 
on Kingship," in English Historical Review, LX (May, 1945), 136-176.

3. Ante, p. 50, Digest, I, 3, 1; Bracton De Legibus et Consuetudinibus 
Angliae, folio 2 A (ed. by George E. Woodbine [New Haven, 1922], II, 22).

4. "... et est loi commun plgen de toute commun chose" (Li livres de 
jostice et de plet, ed. Rapetti, p. 4).

5. Folio 1.

6. Digest, 1, 4, 1; Inst., I, 2, 6.

7. Folio 107.

8. Arthur Taylor, The Glory of Regality (London, 1820), p. 410.

9. This passage of Bracton was commented on with great learning by John 
Selden (Ad Fletam Dissertatio, cap. iii, ?ii), who, according to Hallam 
(Middle Ages, chap. ix, part ii), "extenuated the effect of Bracton's 
predilection for the maxims of Roman jurisprudence." Maitland seems to agree 
substantially with Selden, but regards Bracton's variation from Justinian 
"rather a playful perversity than a mistake" (Bracton's Note Book, I, 4, 
note 2). My interpretation does not vary materially from that of Selden and 
Maitland, except that I fail to see anything "playful" in the passage. It 
has been criticized by Dr. Ludwik Ehrlich (Proceedings Against the Crown 
[Oxford Studies in Social and Legal History], ed. by Sir Paul Vinogradoff, 
VI, 39, note 3).

There is no doubt that Bracton's cum is a preposition in the text as we have 
it. This, however, is only to say on the evidence of that text that Bracton 
consciously altered Justinian's statement, whether seriously or "playfully." 
It is not to say that he misunderstood it. In fact, although the cum is 
undoubtedly a preposition in the existing text, I am inclined to believe 
that this in itself is no sufficient proof that Bracton necessarily thought 
of the original as such. If he had been preparing this statement for a 
modern printer he might well have included the words cum lege regia within 
quotation marks. He could scarcely quote verbatim Justinian's legalized 
despotism in support of his own conception of government limited in its 
scope by law. As Professor Schulz well says, "He [Bracton] ought to have 
written 'etc.' after 'est,' or," as he adds somewhat less convincingly, 
"perhaps he did write it" (English Historical Review, LX, 155).

10. Folio 54.

11. Folio 5. For some practical illustrations of these principles, see the 
excellent little book by Professor A. B. White, Self-Government at the 
King's Command (Minneapolis, Minn., 1933).

12. Howell's State Trials, III, cols. 28, 49.

13. Folio 55 B ff.

14. De Regimine Principum, Book III, part 2, chap. vi.

15. Reliquiae Spelmannianae, p. 57, English Works (London, 1727).

16. Matthew Paris, Chronica Majora (Rolls Series), III, 75-76.

17. Stubbs, Select Charters, 9th ed., p. 350.

18. Ibid., pp. 395-397.

19. Ibid., pp. 407-411.

20. Ibid., p. 396.

21. Folio 55 B. In form perhaps this is consciously reminiscent of 
Justinian's phrase, quod ad singulorum utilitatem pertinet (Institutes, I, 
1, 3), as an antithesis to it.

22. Folio 1 B.

23. Chronicon Monasterii de Bello (London, 1846), pp. 65-67. 

24. De Necessariis Observantiis Scaccarii Dialogus, ed. by Hughes, Crump, 
and Johnson (Oxford, 1932), p. 139.

25. Stubbs, Select Charters, 9th ed., p. 173.

26. Ante, p. 75.

27. Ante, p. 65.

28. Ante, pp. 81-82.

29. The Case of Proclamations, 8 James I, 12 Rep., p. 75. 30. The Governance 
of England, ed. by Charles Plummer (Oxford, 1885), introduction, p. 83.

31. Chapters in the Administrative History of Mediaeval England, V, 61.

32. "Le corps de tout le Royalme," the words of Chief Justice Thorpe in the 
Bishop of Chichester's Case (Year Book, Easter Term, 39 Edward III). 

33. English Constitutional Ideas in the Fifteenth Century (Cambridge, 1936). 
See also Professor T. F. T. Plucknett, The Lancastrian Constitution (Tudor 
Studies, ed. by R. W. Seton-Watson; London, 1924), pp. 161-181; C. H. 
McIlwain, The Growth of Political Thought in the West (New York, 1932), pp. 
354-363; and the admirable new critical edition of Fortescue's De Laudibus 
Legum Angliae, ed. by Dr. S. B. Chrimes (Cambridge, 1942), the first edition 
to be based on all the known manuscripts.

34. Religion and the Rise of Capitalism, p. 102.

35. In I, II, and III Codicis Libros Commentaria (Venice, 1615), folio 64, 
cited by A. Lemaire, Les lots fondamentales de la monarchie franaise 
(Paris, 1907), p. 41, note.

36. On the Continent, the transition from the medieval theory of dominium to 
the modern theory of sovereignty ?the theoretical concomitant of the 
development of the modern nation-state ?was made largely in the form of a 
changing interpretation of the merum et mixtum imperium et jurisdictio of 
the Roman law sources. The contemporary discussions of these all-important 
terms in the period between the thirteenth and the seventeenth century are 
fundamental and very numerous but they have been used amazingly little by 
the historians of political thought. Bracton's discrimination between 
gubernaculum and jurisdictio might be called the English equivalent of these 
discussions; but Bracton came too early to develop his distinction fully, 
and his successors in England lacked the knowledge of Roman law and the 
interest in it which so color and control all continental treatments of the 
same important political problems. It has been necessary here to confine 
attention to the English side of this development alone. This, however, 
seems to show that Cowell was historically correct, and Coke wrong, when the 
former asserted, early in the seventeenth century, that the English common 
law nihil aliud esse quam Romani & feudalis mistionem (Institutiones Juris 
Anglicani, Authore Johanne Cowello [Oxford, 1664], "Epistola Dedicatoria"; 
first published in 1605). For similar views about the Roman element in 
English law expressed by Lord Ellesmere, see his speech in the case of the 
Post-Nati (Howell's State Trials, II, 673). For the continental side, 
reference might be made to Mr. C. S. N. Woolf's Bartolus of Sassoferrato 
(Cambridge, England, 1913), which deals with an early stage of the 
development; and for the later stages, to the volume by Mr. Myron P. 
Gilmore, Argument from Roman Law in Political Theory 1200-1600 (Harvard 
Historical Monographs, Cambridge, Mass., 1941). I can now include also the 
admirable study of Mr. William Farr Church, Constitutional Thought in 
Sixteenth-Century France (Harvard Historical Studies, Cambridge, Mass., 
1941).

                  CHAPTER V (pages 93-122)

1. The Whole Workes of W. Tyndall, John Frith, and Doct. Barnes (London, 
1573), pp. 111-118, passim. On the general subject of the early Tudor 
monarchy and the contemporary theories concerning it, see The Early Tudor 
Theory of Kingship, by Franklin Le Van Baumer (New Haven, 1940); Early Tudor 
Government, Henry VII, by Kenneth Pickthorn (Cambridge, 1934).

2. Commentary on the Book of Daniel, Works, V, 91.

3. De Justa Henrici Tertii Abdicatione e Francorum Regno Libri Quatuor, 
Parisiis, 1589.

4. "... Iesuits are nothing but Puritan-papists" (A Premonition, Political 
Works of James I, p. 126).

5. Cited by A. Lemaire, Les lois fondamentales de la monarchie franaise, p. 
58.

6. "Et neantmoins demeure tousiours la dignit?& auctorit?royalle en son 
entier, non pas totalement absolue, ne aussy restraincte par trop, mais 
regle & refrene par bonnes loix, ordonnances & coustumes, lesquelles sont 
establies de telle sorte qu'a peine se peuuent rompre & adnichiler, iaoit 
qu'en quelque temps & en quelque endroit, il y aduienne quelque infraction & 
violence. Et pour parler desdictz freins par lesquelz la puissance absolu?
des Roys de France est regle, i'eu treuue trois principaulx, Le premier est 
la religion, Le second la iustice, Et le tiers la police." Chap. viii, 
folios 9-10. "Le second frein est la iustice, laquelle sans point de 
difficult?est plus auctorise en France qu'en nul autre pas du monde que 
lon sache, mesmement ?cause des parlements qui ont est?instituez 
principalement pour ceste cause, & ?ceste fin de refrener la puissance 
absolu?dont vouldroient vser les Roys" (Claude de Seyssel, La grand' 
monarchie de France [Paris, 1558], chap. x, folio 11; first edition, 1519).

7. De I'estat et succez des affaires de France (Paris, 1571), p. 82.

8. The Letters of Stephen Gardiner, ed. by James Arthur Muller (New York, 
1933), p. 370.

9. Ibid., p. 377.

10. Ibid., pp. 379 ff.

11. Quoted by Thomas McCrie, Life of John Knox, note BB. 

12. Eight Centuries of Reports, by Judge Jenkins (1734), Fourth Century, 
Case XCIII.

13. Ibid., Sixth Century, Case XXXV, 23 Elizabeth.

14. Ibid., Seventh Century, Case LXXXIII, 2 James I.

15. Ibid., Fourth Century, Case XXXVI, 1 Henry VII.

16. Ibid., Fifth Century, Case XXVII, 34 Henry VIII.

17. Andersen's Reports, I, 152, translated in Thayer's Cases on 
Constitutional Law, I, pp. 12-15.

18. A Compleat Journal of the Votes, Speeches and Debates, both of the House 
of Lords and House of Commons Throughout the Whole Reign of Queen Elizabeth, 
of Glorious Memory, collected by ... Sir Simonds D'Ewes, Baronet (London, 
1693), p. 633. For the unfavorable estimate of the character of Serjeant 
Heyl, Hele, or Heale, by Lord Ellesmere, himself no enemy of the royal 
prerogative, see Lord Campbells Lives of the Lord Chancellors and Keepers of 
the Great Seal of England (2d ed.; London, 1846), II, 207-210. In a case 
before the Star Chamber in 1604, Lord Ellesmere voted to "find him [Hele] 
guilty in all of corruption and ambition, craft and covetous practices," and 
apparently he was fined 1,000 pounds (Les Reportes del Cases in Camera 
Stellata, ed. by W. P. Baildon [1894], pp. 171-176, 411). See also The 
Egerton Papers (Camden Society, 1840), pp. 315, 391, 399; Lives of Eminent 
Serjeants-at-Law, by Humphry William Woolrych (London, 1869), I, 172-185.

19. Ibid., p. 640.

20. England in the Reign of King Henry the Eighth (Early English Text 
Society), pp. 100-101.

21. For a convenient though abridged text of the Statute of Proclamations, 
see Tudor Constitutional Documents, ed. by J. R. Tanner, p. 532; for the 
circumstances of the passing of the act, Dr. Tanner's introductory note (pp. 
529-532), and the article by Professor E. R. Adair, in English Historical 
Review, XXXII, 34-46.

22. A History of England from the Defeat of the Armada to the Death of 
Elizabeth, II, 275.

23. Introduction to Political Science, p. 256.

24. Ibid., pp. 253-254. While this is true for most of the time as a matter 
of form after the enactment of the Triennial Act in 1664, and a parliament I 
was usually in being, parliament's effectiveness was not secured till means 
were found to ensure a session as well as an election, and such means were 
not found till the Revolution. The unprecedented number of prorogations and 
dictated adjournments in the reigns of Charles II and James II were as 
effective as a dissolution in checking any parliamentary opposition to the 
Crown. In 1677 Buckingham and Shaftesbury argued that such prorogations if 
they lasted more than one year were equivalent to a dissolution under the 
provisions of two unrepealed statutes of Edward III. For this Shaftesbury 
was put in prison at the pleasure of the Lords and the King, where he 
remained for more than a year and was then released only on a full 
renunciation of his error. The Tudor monarchs had met the growing opposition 
of parliament by subjugating their parliaments, a method progressively less 
and less effective. The Stuart method came to be one by suppression rather 
than subjugation when subjugation failed, and Charles I succeeded in this 
policy till the Scottish war forced his hand. After the Restoration Charles 
II was not faced with the problem until the later sessions of the long 
Cavalier Parliament and its successors. He then followed his father's 
method, but by prorogation instead of flat violation of the Triennial Act of 
1664. Before his death, however, he was forced to violate his own statute. 
James II, in the single parliament called by him, returned to his brother's 
earlier method of suppression through prorogation.

25. Parliamentary History, I, 555.

26. In the old English translation of the Latin original (Pierre Janelle, 
Obedience in Church and State [Cambridge, 1930], p. 93). 

27. D'Ewes, Journal, p. 12.

28. Ibid., p. 151.

29. Ibid., p. 141.

30. Ibid., p. 168.

31. Ibid., p. 175.

32. Ibid., p. 185.

33. Ibid., p. 244.

34. Ibid., pp. 284-285.

35. Ibid., p. 460. The italics are mine. These matters are referred to later 
in the same parliament as "matters of State, or Causes Ecclesiastical" 
(ibid., p. 479).

36. Ibid., p. 470.

37. The phrase of Sir Humphrey Gilbert on 1571 (ibid., p. 168).

38. The Prerogative of Parliaments (1644), Harleian Miscellany (ed. of 
1745), V, 208.

39. 1 Jac. I, cap. 1; Statutes of the Realm, IV, 1017.

40. The king's speech in parliament in 1607 (The Political Works of James I 
(Cambridge, Mass., 1918), p. 300.

41. De Republica Anglorum, ed. by L. Alston (Cambridge, 1906), book II, 
chap. ii, p. 58.

42. The Trew Law of Free Monarchies in The Political Works of James I, p. 
62.

43. Speech of 1605 (ibid., p. 288).

44. Parliamentary History, I, 1326-1327.

45. Ibid., I, 1344.

46. Ibid., I, 1351. For a penetrating analysis of the constitutional 
struggle in England between 1603 and 1649, see The Royal Prerogative, 1603-
1649 by Francis D. Wormuth (Ithaca, N.Y., 1939).

47. Commons Debates, 1621, ed. by Notestein, Relf, and Simpson (New Haven, 
1935), V, 239.

48. Ibid., p. 240.

49. Willion v. Berkley, Plowden's Commentaries, pp. 236-237. 

50. Commons Debates, 1621, II, 490.

51. Ante, p. 44 et seq.

52. Ante, p. 69.

53. Ante, p. 70.

54. Palgrave, Parliamentary Writs I (Anno XXIII Regis Edwardi, p. 30).

55. Rot. Parl., II, 290 A. Qe le dit Roi Johan ne nul autre purra mettre lui 
ne son Roialme ne son Poeple en tiele subjection, saunz Assent & accorde de 
eux.

56. Rex v. the Bishop of Chichester, Year Book Pasch. 39 Edward III, p. 7.

57. Year Book Pasch. 19 Henry VI, no. 1; Plucknett, The Lancastrian 
Constitution, Tudor Studies, ed. by R. W. Seton-Watson, p. 163.

58. Wimbish v. Tailbois, 4 Edward VI, Plowden's Reports, p. 59. For 
reference to this interesting case I am indebted to the unpublished thesis 
of Mr. Edward T. Lampson, The Royal Prerogative, 1485-1603, in the Harvard 
University Library. Mr. Lampson has now published an interesting analysis 
and discussion of this important case: "Some New Light on the Growth of 
Parliamentary Sovereignty: Wimbish versus Taillebois," American Political 
Science Review, XXXV (October, 1941), 952-960. For some discussion of the 
earlier English cases dealing with this matter, see Brinton Coxe, An Essay 
on Judicial Power and Unconstitutional Legislation (Philadelphia, 1893), pp. 
147-164; A Discourse upon the Exposicion and Understandinge of Statutes, by 
Samuel E. Thorne (San Marino, California, 1942). On the general subject of 
the expropriation of private property, see also my Growth of Political 
Thought in the West, p. 181, note 2, and p. 190, note 1, with the references 
there cited, especially the valuable paper by E. Meynial, "Notes sur la 
formation de la thorie du domaine divis?" in Mlanges Fitting 
(Montpellier, 1908), II, 409-461. The political principles vaguely touched 
on in Wimbish v. Taillebois became the basis of the long struggle between 
ruler sovereignty and popular sovereignty and of the antithesis between the 
constitutional limits possible under the former and the illimitable power of 
the people. The persistence of this fundamental conflict is well illustrated 
by the antagonistic views of Thomas Jefferson on the one side and those of 
Chief Justice Marshall and Mr. Justice Story on the other. See "The Story-
Marshall Correspondence (1819-1831)" by Charles Warren, William and Mary 
College Quarterly, 2d ser., XXI, no. 1 (January, 1941). Thus Jefferson wrote 
in 1820: "When the legislative or executive functionaries act 
unconstitutionally, they are responsible to the people in their elective 
capacity. The exemption of the judges from that is quite dangerous enough. I 
know no safe depository of the ultimate powers of society but the people 
themselves; and if we think them not enlightened enough to exercise their 
control with a wholesome discretion, the remedy is not to take it from them, 
but to inform their discretion by education. This is the true corrective of 
abuses of constitutional power." In a letter from Story to Marshall of June 
27, 1821, the former writes: "Mr. Jefferson ... in the most direct terms 
denies the right of the Judges to decide constitutional questions ... and 
endeavours to establish that the people are the only proper Judges of 
violations of constitutional authority and by changes in the course of 
election are alone competent to apply the proper remedy. If, he says, it is 
objected they are not sufficiently enlightened to exercise this duty with 
discretion, the remedy is to enlighten them the more. ... There never was a 
period of my life when these opinions would not have shocked me, but at his 
age, and in these critical times, they fill me alternately with indignation 
and melancholy. Can he wish yet to have influence enough to destroy the 
government of his Country?"

59. See Appendix, post, pp. 170 ff.

60. De Republica Anglorum, ed. by Alston, p. 105.

61. Ibid., p. 106.

62. Ibid., p. 104.

63. The Third Part of the Institutes of the Laws of England (1644), p. 35.

64. The evidence is collected in David Jardine's valuable Reading on the Use 
of Torture in the Criminal Law of England Previously to the Commonwealth 
(1837), and many instances are given in A History of Crime in England, by 
Luke Owen Pike, 2 vols., London, 1873, 1876. See also Sir William 
Holdsworth, A History of English Law, Vol. V (1924), pp. 184-188. The most 
recent work on this subject is The History of Torture in England by L. A. 
Parry, but it adds little to our knowledge of the subject and nothing to our 
understanding of its constitutional implications.

65. Jardine, A Reading on the Use of Torture, p. 16.

66. Howell's State Trials, II, 871.

67. Jardine, p. 24.

68. Ibid., Appendix 15.

69. Holdsworth, History of English Law, V, 185.

70. II State Trials, 774, note.

71. Jardine, p. 59.

72. History of England, Vol. VI, p. 359, n. 2. See also Holdsworth, History 
of English Law, V, 186.

73. John Selden, Table Talk, s. v. Tryalls.

74. For discussions of the oath Ex Officio and its constitutional 
importance, see R. G. Usher, The Reconstruction of the English Church 
(1910); The Rise and Fall of the High Commission (1913); Mary Hume Maguire, 
Attack of the Common Lawyers on the Oath Ex Officio as Administered in the 
Ecclesiastical Courts in England, in Essays in History and Political Theory 
in Honor of Charles Howard McIlwain (1936), pp. 199-229; [Richard Cosin], An 
Apologie for Sundrie Proceedings by Iurisdiction Ecclesiasticall (1593); 
[James Morice,] A briefe treatise of Oathes exacted by Ordinaries and 
Ecclesiasticall Iudges, to answere generallie to all such Articles or 
Interrogatories, as pleaseth them to propound. And of their forced and 
constrained Oathes ex officio, wherein is proved that the same is unlawful; 
The Argument of Master Nicholas Fuller, in the case of Thomas Lad, and 
Richard Maunsell, his Clients, Wherein it is plainely proved, that the 
Ecclesiasticall Commissioners have no power, by vertue of their Commission 
to Imprison, to put to the Oath Ex Officio, or to fine any of his Maiesties 
Subjects, Imprinted 1607. The book of Cosin is an elaborate defense of the 
procedure of the Commissioners, approximately one-third of which is devoted 
to the Ex Officio oath and to the attack on it in Morice's book and in one 
other anonymous writing of the time. Mrs. Maguire refers also to A 
Collection shewinge what iurisdiction the Clergie hath heretofore lawfully 
used and may lawfully use in ye Realme of England (Calthorpe MSS., Vol. 44, 
folios 99-202), another attack on the methods of the commissioners, by 
Robert Beale, which I have not seen.

75. For the illustration of the dispensing power, see Paul Birdsall, "Non 
Obstante" ?A Study of the Dispensing Power of English Kings, in Essays in 
History and Political Theory in Honor of Charles Howard McIlwain, pp. 37-76.

76. D'Ewes, Journal, p. 547.

77. Acts of the Privy Council, New Series, Vol. 32, p. 237; State Papers 
Domestic, Elizabeth, Vol. 82, no. 8.

78. The Case of Monopolies, XI Coke's Reports, 84. The case is reported also 
in the Reports of Noy and Moore. See Cheyney, History of England, II, 306-
308; W. H. Price, The English Patents of Monopoly (Harvard Economic 
Studies), pp. 22-24; Select Charters of Trading Companies (Selden Society), 
ed. by Cecil T. Carr, Introduction, p. lxvi; J. W. Gordon, Monopolies by 
Patents (1897), especially app. II (pp. 193-232); Sir William Holdsworth, A 
History of English Law, IV (1924), 343-354; D. Seaborne Davies, "Further 
Light on the Case of Monopolies," Law Quarterly Review, no. 48 (July, 1932), 
pp. 394-414.

79. Townshend's Historical Collections (1680), p. 239.

80. Ibid., p. 249.

81. Proclamation of November 28, 1601. Price, The English Patents of 
Monopoly, app. J (pp. 156-159). The historians of the constitution have 
dwelt upon Elizabeth's suppression of actual monopolies, which she did by 
her mere prerogative. It is far more significant that subjects injured by 
the monopolies allowed to remain were here declared to have "their liberty 
to take their ordinary remedy by her Highness's laws of this realm." Similar 
provisions occur in the subsequent proclamations of James I and in the 
Statute of 1624. But Charles I characteristically preferred to act in such 
matters "of his mere grace and favor" and "by his regal power" wherever he 
was able to do so. It may be said without exaggeration that this fundamental 
power claimed as of right by the king, to stay any action involving the 
royal prerogative in the lower courts of common law or any debate touching 
it in "The High Court of Parliament," is in practice the real crux of the 
whole constitutional struggle of the sixteenth century in England. The 
"Prerogative Royall may not be called in question"; yet, since the time of 
Henry VIII, by the common lawyers, it had been "made a great matter, the 
stay of the Common Lawe," as Stephen Gardiner wrote to the Protector 
Somerset in 1547. See also Original Letters Illustrative of English History, 
ed. by Sir Henry Ellis, 3d ser., IV, 87-90, (London, 1846), a letter to the 
Lord Chancellor and Lord Treasurer written apparently in 1591 and signed by 
eleven judges of the common-law courts, the whole of the three benches 
except Baron Sotherton, complaining, among other things, that "divers have 
bene imprisoned for sueinge ordinarie accons and sutes att the common lawe 
untill they will leave the same, or, againste theire matter to order, 
althoughe sometime yt be after judgmente and execucon."

                 CHAPTER VI (pages 123-146)

1. Report of Barbaro in Calendar of State Papers Venetian, V, 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, 991-992). 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 Rpublique, 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. by Notestein, Relf, and 
Simpson, IV, 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. by 
Molesworth, VI, 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. 193-194.

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, 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 authorit? et de leuer sur leurs peuples des Tailles et 
des subsides; mesmes sans leur consentement" (De la souverainet?du Roy, par 
messire Car. Le Bret, Conseiller ordinaire de sa majest?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, 314.

31. Ibid., I, 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, 508.

40. Coke's Reports, XI, 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.



                        Appendix

In the last session of the Reformation Parliament in 1536 two remarkable 
statutes were enacted truly revolutionary in character, the Statute of Uses 
with which the above case of Wimbish v. Tail-bois is concerned, and the act 
transferring to the Crown the property of the lesser monasteries. Both these 
acts involve an invasion of private right by parliament almost, if not 
entirely, without precedent before 1536 and far more revolutionary than the 
Statute of Proclamations enacted by a subsequent parliament three years 
later, which has been called "the English Lex Regia" and termed even by 
Maitland "the most extraordinary act in the Statute Book" (The 
Constitutional History of England, p. 253). These two statutes of 1536 
therefore mark an important early stage in the developments which led in the 
course of time to the constitutional doctrine of parliament's omnipotence 
and the modern theory of legislative sovereignty.

In the reign of Edward II Parliament had, it is true, transferred from the 
reversioners to the Hospitallers lands formerly belonging to the Templars; 
but this was only some years after Pope Clement V had totally suppressed the 
Order of the Templars in his bull Vox in excelso, and the transfer was 
expressly said by the Judges and Council to be "for the Health of their 
Souls and Discharge of their Consciences," because these lands had 
originally been granted for pious uses only, and "insomuch as the foresaid 
Order of the Templars is ceased and dissolved, and the foresaid Order of the 
Hospital is provided, instituted, and canonized for the defence of 
Christians" (17 Edward II, stat. II, 1323-4, Statutes of the Realm, I, 194 
ff.). This was in essence a judicial decision based on a principle closely 
analogous to the Cyprs doctrine of the later courts of Equity. Doubts of 
the statute's validity seem to have persisted however, for in 1330 there was 
a petition in parliament praying for its annulment on the ground that it had 
been obtained by the Despencers by force, and was "contre Ley et contre 
reson" (Rot. Parl. II, 41-42). In the king's responsio to this petition the 
matter was reserved for action in a later parliament, but no record of any 
such action is known. During the Hundred Years' War parliament had also 
dealt in a somewhat similar way with the lands of the alien priories.

As encroachments upon private right and departures from common law by mere 
authority of parliament, these and all such earlier cases, however, fall 
considerably short of the act of 1536, in which the Lords and Commons 
"humbly desire the King's Highness that it may be enacted by authority of 
this present Parliament, that his Majesty shall have and enjoy to him and 
his heirs forever" all the lands and goods of monastic houses not having 
revenues above 200 pounds a year (27 Henry VIII, C.28, Statutes of the 
Realm, III, p. 575 ff.); an act directed not against "alien" houses, and not 
in time of war. For the bad eminence as "the most extraordinary act in the 
Statute Book," I should therefore be inclined to nominate this revolutionary 
act of 1536, expropriating the lands of the lesser monasteries, in place of 
the usual greatly limited and short-lived Statute of Proclamations, enacted 
by a later and apparently somewhat less subservient parliament; at least if 
contemporary rather than modern standards are to be taken into account. The 
story told by Sir Henry Spelman of the pressure required to secure the 
passage of this statute seems not improbable. The bill had originated with 
the King himself, and not with the Commons (F. C. Dietz, English Government 
Finance 1485-1558, University of Illinois Studies in the Social Sciences, 
vol. IX, no. 3, 1920, p. 120); and, as Spelman reports the tradition, "It is 
true the Parliament did give them [the lesser monasteries] to him, but so 
unwillingly (as I have heard), that when the Bill had stuck long in the 
lower house, and could get no passage, he [the King] commanded the Commons 
to attend him in the forenoon in his gallery, where he let them wait till 
late in the afternoon, and then coming out of his chamber, walking a turn or 
two amongst them, and looking angrily on them, first on the one side, then 
on the other, at last, I hear (saith he) that my Bill will not pass; but I 
will have it pass, or I will have some of your heads: and without other 
rhetoric or persuasion returned to his chamber. Enough was said, the Bill 
passed, and all was given him as he desired" (The History and Fate of 
Sacrilege, ed. of 1895, p. 99).

In an earlier session of the Reformation Parliament an ominous prelude to 
the Act of Dissolution appears in the preamble to the statute of 1534 (25 
Henry VIII, chap. 21, Statutes of the Realm, III, 464), concerning Peter's 
Pence and papal dispensations, in which it is declared, that "It standeth 
therefore with natural Equity and good Reason, that in all and every such 
laws human made within this Realm, or induced into this Realm by the said 
Sufferance, Consents and Custom, your Royal Majesty, and your Lords 
Spiritual and Temporal, and Commons, representing the whole State of your 
Realm, in this your most high Court of Parliament, have full Power and 
Authority, not only to dispense, but also to authorize some elect Person or 
Persons to dispense with those, and all other human Laws of this your Realm, 
and with every one of them, as the Quality of the Persons and Matter shall 
require; and also the said Laws, and every of them, to abrogate, annul, 
amplify or diminish, as it shall be seen unto your Majesty, and the Nobles 
and Commons of your Realm present in your Parliament, meet and convenient 
for the Wealth of your Realm." This, however, is only a preamble; and "the 
object of Tudor preambles," as Dr. Tanner says, "is not to tell the truth 
but to make out a case." The enacting clauses themselves "abrogate" no 
provisions which their makers professed to regard as true law, but only such 
as were termed usurpations or involved an "unlawful paiment." 
Notwithstanding this sweeping inclusion in the preamble of all human laws, 
this statute, therefore, constitutes no revolutionary break with the past 
comparable with the act of dissolution two years later, but its remarkable 
language is a no less interesting indication of men's changing notions 
concerning the relation of government to law. It is noteworthy that the 
legislative power here claimed for parliament is a power not directly to 
make new law, but to annul, enlarge, or restrict the old. Such preambles as 
these were not alone apologies for the specific enactment immediately 
following: they were part of the royal propaganda to ensure the passage of 
more drastic legislation in the future. The startling character of that 
propaganda proves alike the newness of the proposals made and to be made and 
the opposition to them to be expected. 

Hardly less revolutionary than the Act of Dissolution was the contemporary 
proposal which failed of enactment, for setting up a new court of 
"Conservators" with jurisdiction in cases where "anye persone or persones 
shall chaunce at any tyme hereaftir within any Counties or liberties of this 
Realme or within any other place of any of the King our soueraine lordis 
dominions as well in and vpon lande as in or vpon any watirs freshe or Salte 
to doo or tattempte any devise practice or experience whiche hathe bene is 
or in tyme to come shal be thought vnto the said Conservatours to bee 
hurtefull or preiudiciall to the Comon Weale of this Realme, and none Acte, 
statute prouysion or ordynaunce made for Refourmacion of the same" 
(Transactions of the Royal Historical Society, 4th ser. XIX [1936], 143-
144). This provision, if it had become law, would have rivaled in 
arbitrariness the German Penal Code Amendment Law of 1935 authorizing the 
Courts to punish as offences acts which no law had ever forbidden. See, on 
the general principles involved in this proposed legislation, the admirable 
article of Professor Jerome Hall, "Nulla Poena sine Lege," Yale Law Journal, 
XLVII, no. 2 (December, 1937).

The legality of the Act of Dissolution and of similar "legislation" was 
unquestionably a matter of some doubt in the minds of the lawyers of the 
time. In 1532 Christopher Saint German declared in his Treatise concernynge 
the division betwene the spiritualtie and temporaltie: "It is holden by them 
that be lerned in the lawe of this royalme, that the parlyamente hath an 
absolute power as to the possession of all temporall thynges within this 
realme, in whose handes so ever they be, spiritualle or temporalle, to take 
them froo one manne, and gyve theym to an nother withoute anye cause or 
consideration. For if they doo it, it byndeth in the lawe" (The Apologye of 
Syr Thomas More Knyght, ed. by Arthur Irving Taft, Early English Text 
Society, London, 1930, app., p. 228).

To this assertion of the absolute power of parliament, Sir Thomas More gave 
the following answer: "But by what right men maye take awaye from any man 
spyrytuall or temporall agaynste hys wyll, the lande that is al redy hys 
owne that thynge thys pacyfyer [Saint German] telleth vs not yet. ... But I 
have herde some good and wyse and well lerned men saye, that all the worlde 
can neuer brynge the reason that euer can preuve it ryghte. ... For all be 
it that onys in the tyme of the famouse prynce kyng Henry the fourth, aboute 
the tyme of a greate rumble that the heretykes made, whan they wolde have 
destroyed not the clergye onely but the kynge also and hys nobylbte to there 
was a folysshe byll and a false put into a parleament or twayn, and spedde 
as they were wurthy: yet had I neuer founden in all my tyme whyle I was 
conuersaunt in the courte, of all the nobylytie of thys land aboue the 
nomber of seuen (of whyche seuyn there are now thre dede) that euer I 
perceyued to be of the mynde, that it were eyther ryght or reasonable, or 
could be to the realme profytable without lawful cause, to take any 
possesyons awaye from the clergy, whyche good and holy prynces and other 
deuoute vertuouse people, of whome there be now many blessed sayntes in 
heuen, have of deuocyon towards god geuyn to the clergy to serve god and 
praye for all Chrysten soulys" (op. cit., pp. 86-94). 

Further evidence of the doubts existing in the reign of Henry VIII 
concerning the authority of parliament thus to "legislate" appears in the 
elaborate preparations for the act of dissolution, in the visitations, the 
reports of the visitors, and the long apologetic preamble to the statute 
itself, reciting the monastic abuses found and piously attributing the 
statute to the King's reforming zeal in "daily finding and devizing the 
increase, advancement, and exaltation of true doctrine and virtue in the 
said Church, to the only glory and honour of God and the total extirping and 
destruction of vice and sin." For hypocrisy and studied mendacity this 
preamble has but one rival, the preamble which the government felt it 
necessary to prefix to the statute of 1539 ratifying the dissolution of the 
larger monasteries. The act of 1536 had contemplated sending inmates of the 
dissolved smaller houses to live in the larger, "considering also that 
divers and great solemn monasteries of this realm wherein, thanks be to God, 
religion is right well kept and observed, be destitute of such full numbers 
of religious persons as they ought and may keep." After that admission it 
was difficult even for Henry VIII to attempt a direct dissolution of the 
larger houses, on the former pretext of "manifest sin, vicious, carnal, and 
abominable living," and therefore it is asserted in the preamble of the act 
of 1539, flatly contrary to fact, that these larger houses had surrendered 
all their lands and goods to "our said Sovereign Lord, his heirs and 
successors for ever," "of their own free and voluntary minds, good wills, 
and assents, without constraint, coaction, or compulsion of any manner of 
person or persons ... by due order and course of the common laws of this his 
realm of England, and by their sufficient writings of record under their 
convent and common seals" (31 Henry VIII, c. 13, Statutes of the Realm, III, 
733). The truth is, as Dugdale says, that the monks of these larger 
monasteries were induced to surrender their houses to the King "partly 
through corrupting the chief in each of them, with large pensions, during 
their lives: and partly by terror, to such as were not plyant" (The Baronage 
of England [London, 1675], I, The Preface). 

The uncertainty as to parliament's inherent authority to violate rights 
guaranteed by earlier law thus indicated is also reflected in the comments 
of Sir Edward Coke upon the procedure by bill of attainder in the case of 
Thomas Cromwell in 1540. In the section on the High Court of Parliament in 
his Fourth Institute, he says, "And albeit I finde an attainder by 
Parliament of a subject of High Treason being committed to the Tower, and 
forth-comming to be heard, and yet never called to answer in any of the 
Houses of Parliament, although I question not the power of the Parliament, 
for without question the attainder standeth of force in law; yet this I say 
of the manner of the proceeding, Auferat oblivio, si potest; si non, 
utcumque silentium tegat: for the more high and absolute the jurisdiction of 
the court is, the more just and honourable it ought to be in the proceeding, 
and to give example of justice to inferiour Courts. But it is demanded, 
since he [Cromwell] was attainted by Parliament, what should be the reason 
that our Historians do all agree in this, that he suffered death by a law 
which he himselfe had made. For answer hereof, I had it of Sir Thomas Gawdye 
Knight, a grave and reverend Judge of the King's Bench who lived at that 
time, that King Henry VIII commanded him to atend the chiefe Justices, and 
to know whether a man that was forth-comming might be attainted of High 
Treason by Parliament and never called to his answer. The Judges answered, 
that it was a dangerous question, and that the High Court of Parliament 
ought to give examples to inferiour Courts for proceeding according to 
justice, and no inferiour Court could do the like; and they thought that the 
High Court of Parliament would never do it. But being by expresse 
commandement of the King and pressed by the said Earle [Cromwell] to give a 
direct answer: they said that if he be attainted by Parliament, it could not 
come in question afterwards, whether he were called or not called to answer. 
And albeit their opinion was according to law, yet might they have made a 
better answer, for by the Statutes of Mag. Cart. ca. 29, 5E. 3, cap. 9 et 
28E. 3, cap. 5. No man ought to be condemned without answer ... which they 
might have certified, but facta tenent multa quae fieri prohibentur; the act 
of Attainder being passed by Parliament, did bind, as they resolved. The 
party against whom this was intended was never called in question, but the 
first man after the said resolution that was so attainted, and never called 
to answer, was the said Earl of Essex. ... The rehearsall of the said 
Attainder can work no prejudice for that I am confidently perswaded that 
such honourable and worthy members shall be from time to time of both Houses 
of Parliament, as never any such Attainder where the party is forth comming, 
shall be had hereafter without hearing of him" (The Fourth Part of the 
Institutes of the Laws of England, pp. 37-38).

Facta tenent multa, quae fieri prohibentur, says Coke, quoting a current 
maxim which apparently paraphrases a dictum of Innocent III from the 
Decretals of Gregory IX, III, 31, 16: "quia multa fieri prohibentur, quae si 
facta fuerint, obtinent firmitatem." But if so, in all probability another 
maxim of the law was no less prominent in his mind: non firmatur tractu 
temporis, quod de jure ab initio non subsistit: Liber Sextus Decretalium de 
Bonifacii Papae VIII, V, 12, De Regulis Juris, Regula xviii; or the words of 
Paulus from which it was derived: Quod initio vitiosum est, non potest 
tractu temporis convalescere (Dig., 50, 17 [De Diversis Regulis Juris 
Antiqui] 29). "Many things which have been done are binding although they 
are forbidden to be done!" Coke as well as the judges to whom he refers, 
seems, on the whole, to be thinking here of parliament in its judicial 
rather than its legislative capacity; as the dernier resort, the body from 
whose decision there is no appeal, even though wrong. Except for his too 
modern characterization of parliamentary attainder as an act of "legislative 
power," the interpretation of this statement of Coke's by Sir John Hawles, 
Solicitor General, author of the celebrated Englishman's Right, in the great 
case of Sir John Fenwick in 1696, the last English attainder in a capital 
case, seems to be entirely sound: "The truth is, it hath been the irregular 
Proceedings in obtaining those Acts have been blamed, and not the making use 
of the Legislative Power for that purpose; and therefore consider the Acts 
of Attainder mentioned by the Council, which have been blamed, and first, 
that of my Lord Cromwel which my Lord Coke blames: One of the Council at the 
Bar pretended to repeat my Lord Coke's Words of that Matter at large; but he 
did not deal so candidly with you in that matter as he ought to have done; 
for he should have repeated all my Lord Coke says on that Subject, which 
was, That Cromwel was never brought to answer, never permitted to say any 
thing for himself, either in Parliament or elsewhere, and for that Reason 
alone my Lord Coke blames that Precedent" (The Proceedings Against Sir John 
Fenwick, Bar. upon a Bill of Attainder for High Treason, printed in the 
year, 1702, p. 207; Howell's State Trials, XIII, 666, where the statement is 
somewhat abridged).

From Coke's own emphasis in his comments it is apparent that he considered a 
parliamentary attainder as a judgment of the highest of all courts, a 
judicial procedure warranted by the famous clause of Edward Ill's Statute of 
Treasons, which, after the definition of certain specific acts as treason 
actionable in the courts below, goes on to provide "That if any other Case 
supposed Treason, which is not above specified, doth happen before any 
Justices, the Justices shall tarry without any going to Judgement of the 
Treason till the Cause be shewed and declared before the King and his 
Parliament whether it ought to be judged Treason or other Felony" (25 Edw. 
III, Stat. 5, c.2, I Statutes of the Realm, p. 320).

Two or three years after the enactment of the statute the parliamentary 
attainder of Roger Mortimer was annulled en plein Parlement as erroignes & 
defectives en touz pointz, solely on the ground that le dit Counte estoit 
rays a la mart & desherite sanz nul Accusement & sanz estre mesne en 
Juggement ou en Respons (Rot. Parl. 28 Edw. III, no. 11 [vol. II, p. 256]).

In view of such precedents Sir Edward Coke evidently regarded a 
parliamentary attainder as a procedure at the common law, and for this 
reason condemned Cromwell's attainder for lack of "due process," because the 
accused was "forthcomming to be heard, and yet never called to answer." "For 
that reason alone my Lord Coke blames that precedent." The validity of a 
"legislative" act would not be affected whether the accused were 
"forthcoming" or not, nor by any other defect of "due process." It was 
probably for the same general reason that Coke, unlike Wentworth, insisted 
on going by petition instead of by bill in the Petition of Right in 1628. 
(See The Petition of Right, by Frances Helen Relf, Minneapolis, 1917, pp. 
27-43).

This passage from the Fourth Institute may also serve to make somewhat 
clearer the meaning of Coke's well-known and much debated assertion in Dr. 
Bonham's case that "in many cases the common law will controul acts of 
Parliament, and sometimes adjudge them to be utterly void" (8 Reports, 118). 
It may be worth noting that the Earl of Shaftesbury, a former Lord 
Chancelor, made a similar statement in 1677: "This Court [The King's Bench] 
will, and ought to judge an Act of Parliament null and void if it be against 
Magna Charta" (A Life of Anthony Ashley Cooper, First Earl of Shaftesbury, 
by W. D. Christie, London, 1871, vol. II, app. VI, p. XCV). Bonham's case is 
not an assertion of the supremacy of natural law or of judicial discretion: 
it is the common law, and it alone, that "will controul acts of parliament." 
On the general question whether the above clause of Edward Ill's statute was 
regarded by later English jurists as referring to judicial or to legislative 
action, see my High Court of Parliament (New Haven, 1910), chap. III, note A 
(pp. 247-248).

Such a collision of royal will, embodied in Cromwell's case in an act of 
parliament, with the prohibitions of the law, in the sixteenth century is 
reminiscent of similar occurrences in England in the middle ages referred to 
above on page 83, and somewhat analogous to the French lit de justice. The 
Tudor monarchs were strong enough to prevail in such a contest, and it is 
not strange that Henry VIII could say, some two years after Cromwell's 
attainder, that "we at no time stand so high in our estate royal as in the 
time of parliament"; but it was not to remain so in the future, and the 
ultimate outcome of the long struggle was to be a supremacy in parliament of 
a kind which few or none of the earlier combatants had ever envisaged. Yet 
it was the Reformation Parliament, impelled by pressure from the King, that 
brought about the greatest break with medieval ideas of law and government 
and initiated the intellectual movement which culminated later in the 
constitutional doctrine of the omnipotence of Parliament and the modern 
theory of legislative sovereignty.




