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26 June, 2013
The Origins Of Modern Constitutionalism
Checks and Balances
by Wormuth, Francis D.


After 1660, and especially after 1688, the idea that the English constitution was in a state of salutary equilibrium was commonplace. King, Lords, and Commons were so poised that no estate could transgress the rights of any other or threaten the liberty which was supposed to result from this partition of power. Some writers, to be sure, denied the possibility of balance. The republicans of the Interregnum had argued against mixed monarchy, asserting that there must be somewhere a single supreme authority; and Hobbes and Filmer agreed. The non-juror Charles Leslie, defending Stuart monarchy in the reigns of William and Mary, William, and Anne, derided the idea of divided authority. In attacking Swift's Discourse of the Contests and Dissensions he insisted that "all power is one, and indivisible, whether in the hands of one or many. And several independent powers, in the same government, is anarchy and confusion."1 But of course the official position was not that the three partners in legislative power were independent. There was a single sovereign authority, the exercise of which required the co-operation of the three powers.

The arguments for balance were for the most part those advanced during the Interregnum for mixed monarchy. In addition, however, some writers indorsed the principle of balance as a good thing in itself, quite apart from the advantages derived from the specific balance of monarchy, aristocracy, and democracy. The idea of balance of power in international affairs was sufficiently familiar to offer a persuasive analogy. Swift insisted that balance abroad and at home was necessary for stability.2 Occasionally the partition of power was justified as a general principle of politics — this idea appeared as early as 1644, when Goodwin and Nye in their introduction to John Cotton's Keys of the Kingdom commended "a suitable and due-proportioned distribution and dispersion .... a dispersion of several portions of power and rights into several hands, jointly to concur and agree in acts and processes of weight and moment. ..." Not uncommon, but less frequent than one might expect, was the analogy to mechanics. John Trenchard in his A Short History of Standing Armies in England (1698) made the fullest use of this argument.

A government is a mere piece of clockwork; and having such springs and wheels, must act after such a manner: and therefore the art is to constitute it so that it must move to the public advantage. It is certain that every man will act for his own interest; and all wise governments are founded upon that principle: so that this whole mystery is only to make the interest of the governors and governed the same. In an absolute monarchy, where the whole power is in one man, his interest will be only regarded; in an aristocracy the interest of a few; and in a free government the interest of everyone. This would be the case of England if some abuses that have lately crept into our constitution were removed. The freedom of this kingdom depends upon the people's choosing the House of Commons, who are a part of the legislature, and have the sole power of giving money. Were this a true representative, and free from external force or private bribery, nothing could pass there but what they thought was for the public advantage. For their own interest is so interwoven with the people's, that if they act for themselves (which every one of them will do as near as he can) they must act for the common interest of England. And if a few among them should find it their interest to abuse their power, it will be the interest of all the rest to punish them for it: and then our government would act mechanically, and a rogue will be as naturally hanged as a clock strike twelve when the hour is come.

Blackstone echoed this idea in his Commentaries.3

And herein indeed consists the true excellence of the English government, that all parts of it form a mutual check upon each other. In the legislature, the people are a check upon the nobility, and the nobility a check upon the people, by the mutual privilege of rejecting what the other has resolved: while the king is a check upon both, which preserves the executive power from encroachments. And this very executive power is again checked and kept within bounds by the two houses, through the privilege they have of inquiring into, impeaching, and punishing the conduct (not indeed of the king, which would destroy his constitutional independence; but, which is more beneficial to the public) of his evil and pernicious counsellors. ... Like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either, acting by itself, would have done; but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community.

Two great constitutional disputes turned on the principle of balance. The first was the question of the independence of the Lords. Queen Anne in 1712, at the advice of her Tory ministry, created twelve peers, and this was denounced by the Whigs as an attempt to bring the Lords under the influence of the crown. In 1719 the Whigs introduced the Peerage Bill, which proposed to restrict the king's power of creating peers. Sir Richard Steele at once attacked the bill in a serial publication called The Plebeian.4 The Commons, he argued, had nothing now to fear from the crown, but much to fear from the Lords. The bill, by putting them beyond the influence of the crown, would create an aristocracy, a government which was "one of the worst sorts of knavery." Addison undertook to answer Steele in a pamphlet called The Old Whig. Addison argued that the balance of the constitution required three separate powers. If the Lords were under the influence of the crown, the Commons might next be overcome. The bill would take from the crown the power of bribing members of the Commons with peerages and would thus promote the independence of the Commons. Moreover, it would actually increase the power of the Commons at the expense of the Lords, for "of all maxims, none is more uncontested than that power follows property," and the bill would prevent the drawing off of wealthy commoners to the Lords. Other controversialists presented the same arguments as Steele and Addison. Fortunately for Great Britain, the bill was defeated.

A similar issue arose in connection with the Scottish peers who under the Act of Union were elected to sit in the House of Lords. Six Scottish lords in 1735 presented a petition to the House, alleging that at the last election a "King's list" of peers had been chosen by corruption and intimidation.5 On this petition James Erskine, Lord Grange, founded his The Fatal Consequences of Ministerial Influence (1736). Erskine was a bitter enemy of Walpole and quite probably was an advisor in the framing of the petition. The pamphlet deplored ministerial influence as a threat to the independence of the Lords, and argued that "the true life and spirit of our constitution consists in keeping the three political powers, of which it is composed, always in an equilibrium. ..."

The second great controversy turned on the independence of the House of Commons. Here were at issue the developing cabinet system, which bridged the gap between legislature and executive, and also the administration of royal patronage by the prime minister, a device very important in control of the House of Commons. The objects of the attack were Sir Robert Walpole, who was actually prime minister from 1721 to 1742, and later George III, when he attempted to control the Commons in the years 1762-1783.

The English had always associated the idea of a chief minister with Turkish despotism: such a grand vizier was a danger both to subjects and to his royal master. Clarendon had vigorously rejected the suggestion that he become "first minister" of Charles II.6 According to orthodox theory the king should exercise the executive power, subject to the laws, and should participate as an independent member of the legislature, eschewing of course the advice of evil counsellors. The Lords and Commons should likewise act each in complete independence of the other partners. This curious scheme was unworkable. Charles II and James II succeeded in bridging the gap between legislature and executive, first by bribery and then, after the stormy interlude of the Oates plot, by reliance on the partisan loyalty of the Tories. In the reigns of William and, later, of Anne it became even clearer that there must be some sort of mutual dependence between the legislature and the executive. A useful device for achieving this was the introduction into the House of Commons of "placemen" whose interests identified them with the ministers. Walpole regularized this practice and by pensions and places retained command of the House of Commons for twenty-one years. This was, of course, contrary to accepted constitutional morality. Acts forbidding certain placemen and pensioners to sit in the House were passed in the reigns of William and Mary, William, Anne, and George I, but these did not end the evil.7 The new system of premiership was likewise attacked, and it was repeatedly asserted that the name and idea of prime minister were inconsistent with the constitution. Walpole never admitted that he held such an office, although he did speak of "ministers," "government," and "the administration."

Anthony Hammond in 1698 protested against a House of Commons "abounding with officers" because this would obstruct the House in its important duty of "calling ill ministers to account."8 Later writers made the same point, that the separation of legislature and executive was necessary in order that the first might censure the second. Furthermore, it was argued that the wholesome balance within the legislature was destroyed by ministerial influence, which allowed the crown to corrupt the Commons. Bolingbroke and The Craftsman were among the most vigorous critics of Walpole's system of corruption, which, they alleged, jeopardized English liberty. The Craftsman went further and urged that the chief minister was a threat to the king as well; by engrossing the power of the king, he could make the latter his slave.9 John Douglas, who later became Bishop of Salisbury, repeated this warning in his Seasonable Hints from an Honest Man in 1761: "It used to be looked upon as the perfection of the English government, that the supreme

power is divided between the three estates of the kingdom, but according to the doctrine of the above-mentioned monopolizers of places, the present distribution of power is a faulty one; and, in order to correct this fault, a cabal of ministers must be allowed to erect themselves into a fourth estate, to check, to control, to influence, nay, to enslave the other three. If the advocates for governing by such a system would speak out, they must admit this to be the principle on which all their politics proceed. ..."

Walpole denied that the crown or the administration influenced members of the Commons. "I do not believe, that ever any minister or placeman opposed, or supported a question in this House, contrary to his private sentiments, and only because he was a minister or placeman."10 Others, however, were more candid. The London Journal, an administration organ, declared the rigid separation of legislature from executive to be Utopian,11 and asserted that if the king were not permitted to influence the Commons by patronage he would be overborne by the Commons.12 David Hume argued in all seriousness that corruption was necessary to maintain the balance of the constitution. The House of Commons, he said, had the power to command the whole government. The King's legislative power had become little better than a form. His executive power was, of course, subject to the legislative; in addition, it depended upon grants of money, which were at the will of the Commons. As for the Lords, they could stand only with the assistance of the crown and were inconsiderable in themselves. Hence it was fortunate that "The crown has so many offices at its disposal, that, when assisted by the honest and disinterested part of the House, it will always command the resolutions of the whole so far, at least, as to preserve the ancient constitution from danger. We may, therefore, give to this influence what name we please; we may call it by the invidious appellations of corruption and dependence; but some degree and some kind of it are inseparable from the very nature of the constitution, and necessary to the preservation of our mixed government."13

The attack upon George III did not involve a criticism of the ministerial system, for his chief offense was in acting as his own prime minister. But it was argued that the crown, through patronage, was upsetting the balance of the constitution. So Edmund Burke wrote: "The power of the crown, almost dead and rotten as Prerogative, has grown up anew, with much more strength, and far less odium, under the name of Influence."14 Burke's Economy Bill was intended to weaken the crown by reducing patronage. The prospect that the East India Act might increase the number of places at the disposal of the crown alarmed some; Wilkes spoke against it for that reason,15 and Beaufoy warned that the Act made imperative Parliamentary reform to safeguard the liberties of the people.16

But by now all factions had accepted the ministerial system and ministerial responsibility to the Commons. This meant, in substance, that the old balance was gone. An anonymous pamphlet of 1783, A Dialogue on the Actual State of Parliament, repeated the arguments of David Hume. Against the proposal of Parliamentary reform it contended that a free House of Commons would overthrow the constitution. In form the king possessed certain prerogatives, but he could not exercise them in defiance of the Parliament, "and a right, which in prudence can never be exerted, amounts in fact to no right at all." But the Lords were under the influence of the crown, which meant that ultimately power rested with the Commons. This was the necessary outcome of the "alteration in the balance" introduced by Henry VII, who by allowing the peers to alienate their land and by encouraging commerce caused the enrichment of the Commons. But the House of Commons was influenced by the crown and the Lords as well as by the people; the present mixture lay within the single House, which possessed decisive power. A reform which ousted the influence of king and peers would destroy the happy mixed monarchy of Great Britain.

This was not an unapt description of the situation. The balance of three powers had retired to the House of Commons. Nevertheless formal apologetics continued in the old vein. In 1784 Fox invited the Commons to defy the King17: "Let us preserve the beauty of our constitution; of that happy practical equilibrium which has all the efficiency of monarchy, and all the liberty of republicanism; moderating the despotism of the one, and the licentiousness of the other; that which was in theory proved to be so fallacious, but which has been, since the Revolution, so pure and so effectual." On this his editor, Lord John Russell, commented18: "But the practice, as well as the theory, of our mixed government shows, that when two of the powers of the state cannot agree, and the business of the state is stopped, the only appeal is to the people at large. ... Any other doctrine would invest the House of Commons, elected for the ordinary business of the state, with a supreme power over every branch of it. This supreme power must vest somewhere; according to our constitution, it vests in the common assent of the realm, signified by the persons duly qualified to elect the members of the House of Commons."

Russell learned this from the passage of the Reform Bill of 1832. That event demonstrated that nothing could stand against a determined public. When it became clear that the king would create enough peers to carry the Bill through the Lords, the Duke of Wellington protested, "there is no doubt that the constitution of this House and of this country is at an end."19 This speech of Wellington was what Disraeli mockingly named it, "the funeral oration of the Venetian constitution."

NOTES

(1) The New Association, Part II (London, 1705), p. 50.

(2) A Discourse of the Contests and Dissensions between the Nobles and the Commons in Athens and Rome, etc. (London, 1701).

(3) I, pp. 154-155.

(4) Four numbers appeared. Steele in 1713 had published a pamphlet advocating a bill to disable a peer to vote in the Lords for three years after the date of his patent: A Letter to Sir M. W. Concerning Occasional Peers, in Rae Blanchard, ed., Tracts and Pamphlets of Sir Richard Steele (Baltimore, 1944), p. 72.

(5) Lords Journal, xxiv, 459, 465, 466, 470, 472, 475-477.

(6) The Continuation of the Life of Edward Earl of Clarendon ... Written by Himself (Oxford, 1759), ii, 85-91.

(7) These acts are collected in Mark A. Thomson, A Constitutional History of England, 1642 to 1801 (London, 1938), pp. 117-118, 187, 238-240, 326, 378-379.

(8) Considerations upon the Choice of a Speaker of the House of Commons in the Approaching Session (1698). The quotation is from The Honest Elector (London, c. 1748), one of the many reprints of Hammond's pamphlet.

(9) No. 498, January 17, 1735-6.

(10) The Beauties of the British Senate (London, 1786), i, 188.

(11) Bolingbroke, Remarks on the History of England, in Works (London, 1809), ii, 187.

(12) Mary S. Kuypers, Studies in the Eighteenth Century Background of Hume's Empiricism (Minneapolis, 1930), p. 112 n.

(13) Essays Moral, Political, and Literary (London, 1889), i, 120.

(14) Thoughts on the Causes of the Present Discontents (1770), in Works (World's Classics ed.), ii, 11.

(15) The Beauties of the British Senate, ii, 106.

(16) Ibid., ii, 238.

(17) Lord John Russell, ed., Memorials and Correspondence of Charles James Fox (Philadelphia, 1853), ii, 191-192.

(18) Ibid., p. 193-

(19) Hansard's Parliamentary Debates, 3d Series, vol. xii, 995 (May 17, 1832).

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