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The Origins Of Modern Constitutionalism
The Alterability of the Constitution
by Wormuth, Francis D.
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In the early Stuart period English government was
thought to be grounded on various "fundamental laws." Sir Edward Coke and some
others appear to have believed that these fundamental laws were inviolable and
could not be changed even by king and Parliament. Francis Bacon as a lawyer
agreed with this view, but as a political theorist he held a contrary opinion:
Parliament was supreme and the source of law, and therefore was uncontrollable.
It would even be possible for Parliament to transfer its power to the king or
to change the government from a monarchy to an aristocracy or
democracy.1
During the Civil Wars it became usual to define the English government
as a mixed monarchy; this implied that none of the three partners had a right
superior to the others. The question then arose, Who should determine disputes
between the partners? Philip Hunton in his Treatise of Monarchy (1643)
confessed that in the nature of things there could be no arbiter and every man
must follow his own conscience. But the more radical parties rejected the
theory of mixed monarchy. The Levellers insisted that power derived from the
people, who could therefore reshape the government at will. The Rump
politicians argued for the sovereignty of the House of Commons. John Cook, in
the address which he prepared for the trial of King Charles, asked: "How is it
possible to imagine two supreme powers in one nation, no more than two suns in
one firmament? If the king be supreme, the parliament must be subordinate; if
they supreme, then he subordinate. But then it is alleged that the king
challenged a power only co-ordinate, that the parliament could do nothing
without him, nor he without them. Under favor, two powers co-ordinate is as
absurd as the other; for though in quiet times the commons have waited upon the
king, and allowed him a negative voice in matters of less concernment, where
delay could not prove dangerous to the people; yet when the commons shall vote
that the kingdom is in danger, unless the militia be so and so settled, now, if
he will not agree to it, they are bound in duty to do it themselves.
..."2
The Stuart Restoration meant a revival of the ideas of Coke. So it is
natural to find the judges declaring in Godden v. Hales in
1686,3 as Coke had done earlier, that no act of Parliament could
abridge the King's dispensing power. But if this was Stuart doctrine, it was
not the opinion of the Whigs. In the debates over the bill to exclude the Duke
of York from the succession to the throne in 1680 it was said in the Commons
that "such a bill would be against law and conscience"; this argument drew the
rejoinder, "Sir, I admire to hear that honorable member make a doubt as to the
legality of this bill; certainly, Sir, our legislative power is unbounded, and
we may offer to the Lords, and so to his Majesty, what bills we think good. And
it can as little be doubted, that the legislative power of the nation, King,
Lords, and Commons, should want a law to make laws; or that any laws should be
against what laws they make."4
The Exclusion Bill failed, but the action of the Convention Parliament
in installing William and Mary in 1689 once more raised the question of
sovereignty. The Parliament itself evaded the issue, but Orangeist pamphleteers
boldly claimed a supreme power for Parliament or people. An Answer to a Paper,
Entitled, Reflections on the Prince of Orange's Declaration (1688)
declared,
I allow that a lawful authority, by exceeding their just bounds, may act
unlawfully; but the legislative power cannot, since all over the world the
supreme power ever was absolute, be it in one or more.
The Earl of Danby, in The Thoughts of a Private Person (1689),"
observed:
If the King without the Parliament could determine the difference, he
would be arbitrary, and if the people or the Parliament could determine it
without him, they would be supreme, and then it could be no monarchy; and if
the judges had the determining power, they would get the supremacy of both ....
seeing this cause transcends the executive part of the government, it cannot be
decided by legal process, but by lawmakers, and if they cannot agree, men are
at liberty to join with that side they judge in the right: reason and
conscience must be their guide, the law cannot. ...
Dr. Matthew Tindal's Essay concerning Obedience (1694) posed the
question of a difference between King and Parliament:
But it may be asked, Who shall judge between them, if either should
usurp the right that belongs to the other?
I answer, None can judge as a superior in whose sentence both sides must
acquiesce, because that would suppose someone superior to the supreme
legislative power: or if the judges of the land should have an absolute power
to determine in these matters, and people should be obliged to submit to
whatever they decree, they could make either party the supreme legislative
power, or themselves, by declaring themselves to be so. ...
Where people have not parted with their rights, it must be presumed they
have retained a power to judge whether those rights are invaded, or else the
design of preserving those rights would be to no purpose.
When it was proposed in 1716 that Parliament extend the tenure of the
current House of Commons from three years to seven, the issue arose once more.
Against the Septennial Act it was contended that the members of the Commons
held a mandate for only three years, and could not extend their own authority.
Archibald Hutcheson argued in the House:
But I have a much stronger objection against this part of the bill, and
cannot help being yet of opinion, that if it should go through all the forms of
an act of Parliament, pass both Houses, and have the royal assent, that it will
still remain a dead letter, and not obtain the force of a law; for I am
warranted by one of our greatest lawyers, to affirm, "That an act of Parliament
may be void in itself," and if there are any cases out of the reach of the
legislature, this now before us must be admitted to be one; for what can be
more against common sense and reason, than to be a felo de se, to
destroy that constitution, or any essential part thereof, upon which our
existence in our political capacity depends?6
To this the reply was made that Parliament possessed supreme power.
Viscount Bolingbroke believed that "There must be an absolute,
unlimited, and uncontrollable power lodged somewhere in every
government"7 but he followed Locke in denying that this absolute
power was arbitrary. Consequently he repudiated Bacon's opinion, and argued
that a cession of power by the Parliament to the crown would be
unlawful.8
An attempt of this kind would break the bargain between the king and the
nation, between the representative and collective body of the people, and would
dissolve the constitution. ... From hence it follows, that if the constitution
was actually dissolved, as it would be by such an attempt of the three estates,
the people would return to their original, their natural right, the right of
restoring the same constitution, or of making a new one.
Obviously this argument derived from the scheme by which Locke undertook
to identify moral with legal rights for the paradoxical purpose of establishing
a legal right of rebellion, and was subject to all the criticisms to which the
social contract theory was exposed.
A lawyer could hardly afford to legalize rebellion. Blackstone firmly
upheld the sovereignty of Parliament.
For, as to such public oppressions as tend to dissolve the constitution
and subvert the fundamentals of government, they are cases which the laws will
not, out of decency, suppose; being incapable of distrusting those whom it has
invested with any part of the supreme power; since such distrust would render
the exercise of that power precarious and impracticable. For, wherever the law
expresses its distrust of abuse of power, it always vests a superior coercive
authority in some other hand to correct it; the very notion of which destroys
the idea of sovereignty.9
Samuel Johnson expressed orthodox doctrine in his Taxation No
Tyranny (1775) :
In sovereignty there are no gradations. There may be limited royalty,
there may be limited consulship; but there can be no limited government. There
must in every society be some power or other from which there is no appeal,
which admits no restrictions, which pervades the whole mass of the community,
regulates and adjusts all subordination, enacts laws or repeals them, erects or
annuls judicatures, extends or contracts privileges, exempt itself from
question or control, and bounded only by physical necessity.
Apparently the issue was seriously raised for the last time, though in a
somewhat oblique way, by George III. In 1795 he asked Chief Justice Kenyon's
opinion of a proposal for Catholic emancipation. Such an act, said George,
would violate the Bill of Rights, the Act of Settlement, and the Act of Union
with Scotland, all of which were intended to be permanent, as well as other
statutes binding upon the King and the members of Parliament.10
Is it not advisable, therefore, to put an end at once to a claim that is
inconsistent and incompatible with the terms of the original contract between
the King and the people, and subversive of that part of the Constitution formed
for the preservation of the Protestant Religion established by law? The same
great fundamental statutes, which secure the rights and liberties of the
people, secure also the Protestant Reformed Religion as by law established, and
if that part of them which secures our religion is to be repealed now, what
security remains for the preservation of our civil rights and liberties? Is it
not therefore necessary to extinguish such vain expectations by an explicit
declaration that they cannot be complied with?
Kenyon replied that:
It is a general maxim that the supreme power of a State cannot limit
itself.
Either of the Houses of Parliament may, if they think proper, pass a
Bill up to the extent of the most unreasonable requisition that can be made;
and, provided sound policy, and a sense of the duty they owe to the established
religion, do not operate on their minds so as to prevent their doing what is
improper, there is no statute law to prevent their entertaining and passing
such Bill, to abolish the supremacy, and the whole of the government and
discipline of the Church of England, as now by law established.
Kenyon concluded with the cautious suggestion that the King, "being
constitutionally advised," must decide for himself whether approving a bill
would violate his coronation oath.
The suggestion that the king's veto might be used to protect the
constitution was repeated in the debates on Irish emancipation in
1913.11 But even this preposterous proposal did not amount to the
proposition that a Parliament of King, Lords, and Commons could not alter the
constitution in any manner it chose. The omnipotence of Parliament was now a
settled dogma of the British constitution.
NOTES
(1) On this subject, see the present writer's The
Royal Prerogative, 1603-1649 (Ithaca, N. Y., 1939), pp. 57-60.
(2) King Charles's Case: Or, An Appeal to All
Rational Men, etc., in Somers Tracts (London, 1811), v, 224.
(3) Comberbach, 21.
(4) The Faithful Register: Or, The Debates of the
House of Commons in Three Several Parliaments (London, n.d.), p.
36.
(5) The attribution to Danby is in Samuel Halkett and
John Laing, Dictionary of Anonymous and Pseudonymous English Literature
(ed. Kennedy, Smith, and Johnson), vi, 35.
(6) A Speech Made in the House of Commons April the
24th 1716; Against the Bill for the Repeal of the Triennial Act, etc.
(London, 1722). The reference to "one of our greatest lawyers" seems to be to
Sir Robert Raymond, whose speech against the Triennial Bill is quoted on the
title-page from the Historical Register, i, 396: "With great submission
I speak it, in my poor opinion, King, Lords, and Commons can no more continue a
Parliament beyond its natural duration, than they can make a
Parliament."
(7) The Idea of a Patriot King, in Works
(London, 1809), iv, 244.
(8) A Dissertation upon Parties, in Works,
iii, 271-272.
(9) Commentaries on the Laws of England, i,
244.
(10) George T. Kenyon, The Life of Lloyd, First Lord
Kenyon (London, 1873), p. 316.
(11) Graham Wallas, Our Social Heritage (London,
1921 ), pp. 227-228; C. H. McIlwain, Constitutionalism Ancient and
Modern (Ithaca, N. Y., 1940), p. 19.
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