mducrocq Bi-licence Anglais/Droit
Please note that from October 12, we'll have class in room 411.
Sesssion 2 Magna Carta - analysis
After reading the Great Charter (Magna Carta) below, answer the following questions:
1. Who is referred to as "we" throughout the text?
2. Explain the references to "the quarrel (...) between us and our barons".
3. Explain the phrases "letters of summons" (§14), a "writ" (§ 34, 35). Look up for "baillis", "écuage".
4. What categories of Englishmen are mentioned in the Charter?
5. List the main liberties they are granted.
6. In what terms are these liberties defined?
7. Explain the reference to "the English Church" in the 1st § and again in the last.
Magna Carta (The Great Charter)
Preamble: John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, and count of Anjou, to the archbishop, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, stewards, servants, and to all his bailiffs and liege subjects, greetings[…]
1. In the first place we have granted to God, and by this our present charter confirmed for us and our heirs forever that the English Church shall be free, and shall have her rights entire, and her liberties inviolate; and we will that it be thus observed; which is apparent from this that the freedom of elections, which is reckoned most important and very essential to the English Church, we, of our pure and unconstrained will, did grant, and did by our charter confirm and did obtain the ratification of the same from our lord, Pope Innocent III, before the quarrel arose between us and our barons: and this we will observe, and our will is that it be observed in good faith by our heirs forever. We have also granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever.
9. Neither we nor our bailiffs will seize any land or rent for any debt, as long as the chattels of the debtor are sufficient to repay the debt; nor shall the sureties of the debtor be distrained so long as the principal debtor is able to satisfy the debt; and if the principal debtor shall fail to pay the debt, having nothing wherewith to pay it, then the sureties shall answer for the debt; and let them have the lands and rents of the debtor, if they desire them, until they are indemnified for the debt which they have paid for him, unless the principal debtor can show proof that he is discharged thereof as against the said sureties.
12. No scutage not aid shall be imposed on our kingdom, unless by common counsel of our kingdom, except for ransoming our person, for making our eldest son a knight, and for once marrying our eldest daughter; and for these there shall not be levied more than a reasonable aid. In like manner it shall be done concerning aids from the city of London.
13. And the city of London shall have all it ancient liberties and free customs, as well by land as by water; furthermore, we decree and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs.
14. And for obtaining the common counsel of the kingdom anent the assessing of an aid (except in the three cases aforesaid) or of a scutage, we will cause to be summoned the archbishops, bishops, abbots, earls, and greater barons, severally by our letters; and we will moreover cause to be summoned generally, through our sheriffs and bailiffs, and others who hold of us in chief, for a fixed date, namely, after the expiry of at least forty days, and at a fixed place; and in all letters of such summons we will specify the reason of the summons. And when the summons has thus been made, the business shall proceed on the day appointed, according to the counsel of such as are present, although not all who were summoned have come.
17. Common pleas shall not follow our court, but shall be held in some fixed place.
18. Inquests of novel disseisin, of mort d'ancestor, and of darrein presentment shall not be held elsewhere than in their own county courts, and that in manner following; We, or, if we should be out of the realm, our chief justiciar, will send two justiciaries through every county four times a year, who shall alone with four knights of the county chosen by the county, hold the said assizes in the county court, on the day and in the place of meeting of that court.
19. And if any of the said assizes cannot be taken on the day of the county court, let there remain of the knights and freeholders, who were present at the county court on that day, as many as may be required for the efficient making of judgments, according as the business be more or less.
20. A freeman shall not be amerced for a slight offense, except in accordance with the degree of the offense; and for a grave offense he shall be amerced in accordance with the gravity of the offense, yet saving always his "contentment"; and a merchant in the same way, saving his "merchandise"; and a villein shall be amerced in the same way, saving his "wainage" if they have fallen into our mercy: and none of the aforesaid amercements shall be imposed except by the oath of honest men of the neighborhood.
21. Earls and barons shall not be amerced except through their peers, and only in accordance with the degree of the offense.
24. No sheriff, constable, coroners, or others of our bailiffs, shall hold pleas of our Crown.
30. No sheriff or bailiff of ours, or other person, shall take the horses or carts of any freeman for transport duty, against the will of the said freeman.
31. Neither we nor our bailiffs shall take, for our castles or for any other work of ours, wood which is not ours, against the will of the owner of that wood.
32. We will not retain beyond one year and one day, the lands those who have been convicted of felony, and the lands shall thereafter be handed over to the lords of the fiefs.
34. The writ which is called praecipe shall not for the future be issued to anyone, regarding any tenement whereby a freeman may lose his court.
36. Nothing in future shall be given or taken for a writ of inquisition of life or limbs, but freely it shall be granted, and never denied.
38. No bailiff for the future shall, upon his own unsupported complaint, put anyone to his "law", without credible witnesses brought for this purposes.
39. No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.
40. To no one will we sell, to no one will we refuse or delay, right or justice.
41. All merchants shall have safe and secure exit from England, and entry to England, with the right to tarry there and to move about as well by land as by water, for buying and selling by the ancient and right customs, quit from all evil tolls, except (in time of war) such merchants as are of the land at war with us. And if such are found in our land at the beginning of the war, they shall be detained, without injury to their bodies or goods, until information be received by us, or by our chief justiciar, how the merchants of our land found in the land at war with us are treated; and if our men are safe there, the others shall be safe in our land.
42. It shall be lawful in future for anyone (excepting always those imprisoned or outlawed in accordance with the law of the kingdom, and natives of any country at war with us, and merchants, who shall be treated as if above provided) to leave our kingdom and to return, safe and secure by land and water, except for a short period in time of war, on grounds of public policy- reserving always the allegiance due to us.
45. We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well.
52. If anyone has been dispossessed or removed by us, without the legal judgment of his peers, from his lands, castles, franchises, or from his right, we will immediately restore them to him; and if a dispute arise over this, then let it be decided by the five and twenty barons of whom mention is made below in the clause for securing the peace. Moreover, for all those possessions, from which anyone has, without the lawful judgment of his peers, been disseised or removed, by our father, King Henry, or by our brother, King Richard, and which we retain in our hand (or which as possessed by others, to whom we are bound to warrant them) we shall have respite until the usual term of crusaders; excepting those things about which a plea has been raised, or an inquest made by our order, before our taking of the cross; but as soon as we return from the expedition, we will immediately grant full justice therein.
53. We shall have, moreover, the same respite and in the same manner in rendering justice concerning the disafforestation or retention of those forests which Henry our father and Richard our brother afforested, and concerning the wardship of lands which are of the fief of another (namely, such wardships as we have hitherto had by reason of a fief which anyone held of us by knight's service), and concerning abbeys founded on other fiefs than our own, in which the lord of the fee claims to have right; and when we have returned, or if we desist from our expedition, we will immediately grant full justice to all who complain of such things.
55. All fines made with us unjustly and against the law of the land, and all amercements, imposed unjustly and against the law of the land, shall be entirely remitted, or else it shall be done concerning them according to the decision of the five and twenty barons whom mention is made below in the clause for securing the peace, or according to the judgment of the majority of the same, along with the aforesaid Stephen, archbishop of Canterbury, if he can be present, and such others as he may wish to bring with him for this purpose, and if he cannot be present the business shall nevertheless proceed without him, provided always that if any one or more of the aforesaid five and twenty barons are in a similar suit, they shall be removed as far as concerns this particular judgment, others being substituted in their places after having been selected by the rest of the same five and twenty for this purpose only, and after having been sworn.
56. If we have disseised or removed Welshmen from lands or liberties, or other things, without the legal judgment of their peers in England or in Wales, they shall be immediately restored to them; and if a dispute arise over this, then let it be decided in the marches by the judgment of their peers; for the tenements in England according to the law of England, for tenements in Wales according to the law of Wales, and for tenements in the marches according to the law of the marches. Welshmen shall do the same to us and ours.
57. Further, for all those possessions from which any Welshman has, without the lawful judgment of his peers, been disseised or removed by King Henry our father, or King Richard our brother, and which we retain in our hand (or which are possessed by others, and which we ought to warrant) […] we will immediately grant full justice in accordance with the laws of the Welsh and in relation to the foresaid regions.
60. Moreover, all these aforesaid customs and liberties, the observances of which we have granted in our kingdom as far as pertains to us towards our men, shall be observed by all of our kingdom, as well clergy as laymen, as far as pertains to them towards their men.
61. Since, moveover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations towards us. And let whoever in the country desires it, swear to obey the orders of the said five and twenty barons for the execution of all the aforesaid matters, and along with them, to molest us to the utmost of his power; and we publicly and freely grant leave to everyone who wishes to swear, and we shall never forbid anyone to swear. All those, moreover, in the land who of themselves and of their own accord are unwilling to swear to the twenty five to help them in constraining and molesting us, we shall by our command compel the same to swear to the effect foresaid. […]
62. And all the will, hatreds, and bitterness that have arisen between us and our men, clergy and lay, from the date of the quarrel, we have completely remitted and pardoned to everyone. Moreover, all trespasses occasioned by the said quarrel, from Easter in the sixteenth year of our reign till the restoration of peace, we have fully remitted to all, both clergy and laymen, and completely forgiven, as far as pertains to us. And on this head, we have caused to be made for them letters testimonial patent of the lord Stephen, archbishop of Canterbury, of the lord Henry, archbishop of Dublin, of the bishops aforesaid, and of Master Pandulf as touching this security and the concessions aforesaid.
63. Wherefore we will and firmly order that the English Church be free, and that the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all respects and in all places forever, as is aforesaid. An oath, moreover, has been taken, as well on our part as on the art of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intent.
Given under our hand - the above named and many others being witnesses - in the meadow which is called Runnymede, between Windsor and Staines, on the fifteenth day of June, in the seventeenth year of our reign.
Source : http://www.constitution.org/eng/magnacar.htm
To prepare session 3 October 18th
The First Act of Supremacy (1534)
After reading the act below, answer the following questions.
1. Find about the religious and political circumstances in which the act was passed.
2. Focusing on the notion of supremacy, how is it defined? Explain the reference to “the imperial crown of this realm”.
3. How is the King’s supremacy legitimised?
4. What role is given to Parliament?
"Albeit the king's majesty justly and rightfully is and ought to be supreme head of the Church of England and so is recognised by the clergy of the realm in their convocations; yet nevertheless for corroboration and confirmation thereof and for increase in virtue in Christ's religion within the realm of England, and to repress and uproot all errors heresies and other enormities and abuses heretofore used in the same, be it enacted by authority of this present Parliament that the king our sovereign lord, his heirs and successors kings of the realm shall be taken, accepted and reputed the only supreme head on earth of the Church of England called Anglicana Ecclesia and shall have and enjoy annexed and united to the imperial crown of this realm as well the title and style thereof, as all honours, dignities, pre-eminences, jurisdictions, privileges, authorities, immunities, profits and commodities to the said dignity of supreme head of the same Church belonging and appertaining. And that from time to time to visit, repress, redress, reform, order, correct, restrain, and amend all such errors, heresies, abuses, offences, contempts, and enormities whatsoever they be, which by any manner [of] spiritual authority or jurisdiction ought or may lawfully be reformed, repressed redressed, ordered, corrected, restrained, or amended, most to the pleasure of Almighty God the increase of virtue in Christ's religion and for the conservation of the peace, unity, and tranquillity of this realm, any usage, custom, foreign laws, foreign authority, prescription or any other thing or things to the contrary hereof notwithstanding."
Compare with the Second Act of Supremacy (1559)
Most humbly beseech your most excellent majesty, your faithful and obedient subjects, the Lords spiritual and temporal, and the Commons, in this your present Parliament assembled, that where in time of the reign of your most dear father, of worthy memory, King Henry VIII, divers good laws and statutes were made and established, as well for the utter extinguishment and putting away of all usurped and foreign powers and authorities out of this your realm, and other your highness's dominions and countries, as also for the restoring and uniting to the imperial crown of this realm the ancient jurisdictions, authorities, superiorities, and preeminences to the same of right belonging and appertaining, by reason whereof we, your most humble and obedient subjects, from the five-and-twentieth year of the reign of your said dear father, were continually kept in good order, and were disburdened of divers great and intolerable charges and exactions before that time unlawfully taken and exacted by such foreign power and authority as before that was usurped, until such time as all the said good laws and statutes, by one Act of Parliament made in the first and second years of the reigns of the late King Philip and Queen Mary, your highness's sister, intituled an Act repealing all statutes, articles, and provisions made against the See Apostolic of Rome since the twentieth year of King Henry VIII, and also for the establishment of all spiritual and ecclesiastical possessions and hereditaments conveyed to the laity, were all clearly repealed and made void, as by the same Act of repeal more at large does and may appear; by reason of which Act of repeal, your said humble subjects were eftsoons brought under an usurped foreign power and authority, and do yet remain in that bondage, to the intolerable charges of your loving subjects, if some redress, by the authority of this your High Court of Parliament, with the assent of your highness, be not had and provided:
May it therefore please your highness, for the repressing of the said usurped foreign power and the restoring of the rites, jurisdictions, and preeminences appertaining to the imperial crown of this your realm, that it may be enacted by the authority of this present Parliament, that the said Act made in the said first and second years of the reigns of the said late King Philip and Queen Mary, and all and every branch, clauses, and articles therein contained (other than such branches, clauses, and sentences as hereafter shall be excepted) may, from the last day of this session of Parliament, by authority of this present Parliament, be repealed, and shall from thenceforth be utterly void and of none effect.
And that also for the reviving of divers of the said good laws and statutes made in the time of your said dear father, it may also please your highness, that one Act and statute made in the twenty-third year of the reign of the said late King Henry VIII, intituled, An Act that no person shall be cited out of the diocese wherein he or she dwells, except in certain cases;
And one other Act made in the twenty-fourth year of the reign of the said late King, intituled, An Act that appeals in such cases as have been used to be pursued to the see of Rome shall not be from henceforth had nor used, but within this realm;
And one other Act made in the twenty-fifthyear of the said late King, concerning restraint of payment of annates and firstfruits of archbishoprics and bishoprics to the see of Rome;
And one other Act in the said twenty-fifth year, intituled, An Act concerning the submission of the clergy to the king's majesty;
And also one Act made in the said twenty-fifth year, intituled, An Act restraining the payment of annates or firstfruits to the Bishop of Rome, and of the electing and consecrating of archbishops and bishops within this realm;
And one other Act made in the said twenty-fifth year, intituled, An Act concerning the exoneration of the king's subjects from exactions and impositions heretofore paid to the see of Rome, and for having licences and dispensations within this realm, without suing further for the same;
And one other Act made in the twenty-sixth year of the said late king, intituled, An Act for nomination and consecration of suffragans within this realm;
And also one other Act made in the twenty-eighth year of the reign of the said late king, intituled, An Act for the release of such as have obtained pretended licences and dispensations from the see of Rome;
And all and every branches, words, and sentences in the said several Acts and statutes contained, by authority of this present Parliament, from and at all times after the last day of this session of Parliament, shall be revived, and shall stand and be in full force and strength, to all intents, constructions, and purposes.
And that the branches, sentences, and words of the said several Acts, and every of them, from thenceforth shall and may be judged, deemed, and taken to extend to your highness, your heirs and successors, as fully and largely as ever the same Acts, or any of them, did extend to the said late King Henry VIII, your highness's father.
And that it may also please your highness, that it may be enacted by the authority of this present Parliament, that so much of one Act or statute made in the thirty-second year of the reign of your said dear father King Henry VIII, intituled, An Act concerning precontracts of marriages, and touching degrees of consanguinity, as in the time of the late King Edward VI, your highness's most dear brother, by one other Act or statute, was not repealed; and also one Act made in the thirty-seventh year of the reign of the said late King Henry VIII, intituled, An Act that doctors of the civil law, being married, may exercise ecclesiastical jurisdiction; and all and every branches and articles in the said two Acts last mentioned, and not repealed in the time of the said late King Edward VI, may from henceforth likewise stand and be revived, and remain in their full force and strength, to all intents and purposes; anything contained in the said Act of repeal before mentioned, or any other matter or cause to the contrary notwithstanding.
And that it may also please your highness, that it may be further enacted by the authority aforesaid, that all other laws and statutes, and the branches and clauses of any Act or statute, repealed and made void by the said Act of repeal, made in the time of the said late King Philip and Queen Mary, and not in this present Act specially mentioned and revived, shall stand, remain, and be repealed and void, in such like manner and form as they were before the making of this Act; anything herein contained to the contrary notwithstanding.
And that it may also please your highness, that it may be enacted by the authority aforesaid, that one Act and statute made in the first year of the reign of the late King Edward VI, your majesty's most dear brother, intituled, An Act against such persons as shall unreverently speak against the Sacrament of the Body and Blood of Christ, commonly called the Sacrament of the altar, and for the receiving thereof under both kinds, and all and every branches, clauses, and sentences therein contained, shall and may likewise, from the last day of this session of Parliament, be revived, and from thenceforth shall and may stand, remain, and be in full force, strength, and effect, to all intents, constructions, and purposes, in such like manner and form as the same was at any time in the first year of the reign of the said late King Edward VI; any law, statute, or other matter to the contrary in any wise notwithstanding.
And that also it may please your highness, that it may be further established and enacted by the authority aforesaid, that one Act and statute made in the first and second years of the said late King Philip and Queen Mary, intituled, An Act for the reviving of three statutes made for the punishment of heresies, and also the said three statutes mentioned in the said Act, and by the same Act revived, and all and every branches, articles, clauses, and sentences contained in the said several Acts and statutes, and every of them, shall be from the last day of this session of Parliament deemed and remain utterly repealed, void, and of none effect, to all intents and purposes; anything in the said several Acts or any of them contained, or any other matter or cause to the contrary notwithstanding.
And to the intent that all usurped and foreign power and authority, spiritual and temporal, may for ever be clearly extinguished, and never to be used or obeyed within [Page 447] this realm, or any other your majesty's dominions or coun-tries, may it please your highness that it may be further enacted by the authority aforesaid, that no foreign prince, person, prelate, state, or potentate, spiritual or temporal, shall at any time after the last day of this session of Parliament, use, enjoy, or exercise any manner of power, jurisdicdiction, superiority, authority, preeminence or privilege, spiritual or ecclesiastical, within this realm, or within any other your majesty's dominions or countries that now be, or hereafter shall be, but from thenceforth the same shall be clearly abolished out of this realm, and all other your highness's dominions for ever; any statute, ordinance, custom, constitutions, or any other matter or cause whatsoever to the contrary in any wise notwithstanding.
And that also it may likewise please your highness, that it may be established and enacted by the authority aforesaid, that such jurisdictions, privileges, superiorities, and preeminences, spiritual and ecclesiastical, as by any spiritual or ecclesiastical power or authority have heretofore been, or may lawfully be exercised or used for the visitation of the ecclesiastical state and persons, and for reformation, order, and correction of the same, and of all manner of errors, heresies, schisms, abuses, offences, contempts, and enormities, shall for ever, by authority of this present Parliament, be united and annexed to the imperial crown of this realm.
And that your highness, your heirs and successors, kings or queens of this realm, shall have full power and authority by virtue of this Act, by letters patent under the great seal of England, to assign, name, and authorize, when and as often as your highness, your heirs or successors, shall think meet and convenient, and for such and so long time as shall please your highness, your heirs or successors, such person or persons being natural-born subjects to your highness, your heirs or successors, as your majesty, your heirs or successors, shall think meet, to exercise, use, occupy, and execute under your highness, your heirs and successors, all manner of jurisdictions, privileges, and preeminences, in any wise touching or concerning any spiritual or ecclesiastical jurisdiction, within these your realms of England and Ireland, or any other your highness's dominions or countries; and to visit, reform, redress, order, correct, and amend all such errors, heresies, schisms, abuses, offences, contempts, and enormities whatsoever, which by any manner spiritual or ecclesiastical power, authority, or jurisdiction, can or may lawfully be reformed, ordered, redressed, corrected, restrained, or amended, to the pleasure of Almighty God, the increase of virtue, and the conservation of the peace and unity of this realm, and that such person or persons so to be named, assigned, authorized, and appointed by your highness, your heirs or successors, after the said letters patent to him or them made and delivered, as is aforesaid, shall have full power and authority, by virtue of this Act, and of the said letters patent, under your highness, your heirs and successors, to exercise, use, and execute all the premises, according to the tenor and effect of the said letters patent; any matter or cause to the contrary in any wise notwithstanding.
And for the better observation and maintenance of this Act, may it please your highness that it may be further enacted by the authority aforesaid, that all and every archbishop, bishop, and all and every other ecclesiastical person, and other ecclesiastical officer and minister; of what estate, dignity, preeminence, or degree soever he or they be or shall be, and all and every temporal judge, justice, mayor, and other lay or temporal officer and minister, and every other person having your highness's fee or wages, within this realm, or any your highness's dominions, shall make, take, and receive a corporal oath upon the evangelist, before such person or persons as shall please your highness, your heirs or successors, under the great seal of England to assign and name, to accept and to take the same according to the tenor and effect hereafter following, that is to say:
'I, A. B., do utterly testify and declare in my conscience, that the queen's highness is the only supreme governor of this realm, and of all other her highness's dominions and countries, as well in all spiritual or ecclesiastical things or causes, as temporal, and that no foreign prince, person, prelate, state or potentate, has, or ought to have, any jurisdiction, power, superiority, preeminence, or authority ecclesiastical or spiritual, within this realm; and therefore I do utterly renounce and forsake all foreign jurisdictions, powers, superiorities, and authorities, and do promise that from henceforth I shall bear faith and true allegiance to the queen's highness, her heirs and lawful successors, and to my power shall assist and defend all jurisdictions, pre-eminences, privileges, and authorities granted or belonging to the queen's highness, her heirs and successors, or united and annexed to the imperial crown of this realm. So help me God, and by the contents of this book.'
To prepare session 4
After reading the Petition of Right, answer the following questions
1. What is the specific nature of the document? Who are the authors? Who is the addressee?
2. Find references to past statutes in the document. What purpose do they serve?
3. Explain the references to “your Privy Council” (§ II, V), “your Majesty’s writ of habeas corpus” (§V), “your Majesty’s great seal” (§VII)? What constitutional form is targeted here?
4. What key notion is promoted here?
The Petition of Right (1628)
The Petition exhibited to his Majesty by the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, concerning divers Rights and Liberties of the Subjects, with the King's Majesty's royal answer thereunto in full Parliament.
To the King's Most Excellent Majesty,
I. Humbly show unto our Sovereign Lord the King, the Lords Spiritual and Temporal, and Commons in Parliament assembles, that whereas it is declared and enacted by a statute made in the time of the reign of King Edward I, commonly called Stratutum de Tellagio non Concedendo, that no tallage or aid shall be laid or levied by the king or his heirs in this realm, without the good will and assent of the archbishops, bishops, earls, barons, knights, burgesses, and other the freemen of the commonalty of this realm; and by authority of parliament holden in the five-and-twentieth year of the reign of King Edward III, it is declared and enacted, that from thenceforth no person should be compelled to make any loans to the king against his will, because such loans were against reason and the franchise of the land; and by other laws of this realm it is provided, that none should be charged by any charge or imposition called a benevolence, nor by such like charge; by which statutes before mentioned, and other the good laws and statutes of this realm, your subjects have inherited this freedom, that they should not be compelled to contribute to any tax, tallage, aid, or other like charge not set by common consent, in parliament.
II. Yet nevertheless of late divers commissions directed to sundry commissioners in several counties, with instructions, have issued; by means whereof your people have been in divers places assembled, and required to lend certain sums of money unto your Majesty, and many of them, upon their refusal so to do, have had an oath administered unto them not warrantable by the laws or statutes of this realm, and have been constrained to become bound and make appearance and give utterance before your Privy Council and in other places, and others of them have been therefore imprisoned, confined, and sundry other ways molested and disquieted; and divers other charges have been laid and levied upon your people in several counties by lord lieutenants, deputy lieutenants, commissioners for musters, justices of peace and others, by command or direction from your Majesty, or your Privy Council, against the laws and free custom of the realm.
III. And whereas also by the statute called 'The Great Charter of the Liberties of England,' it is declared and enacted, that no freeman may be taken or imprisoned or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land.
IV. And in the eight-and-twentieth year of the reign of King Edward III, it was declared and enacted by authority of parliament, that no man, of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned, nor disinherited nor put to death without being brought to answer by due process of law.
V. Nevertheless, against the tenor of the said statutes, and other the good laws and statutes of your realm to that end provided, divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your Majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your Majesty's special command, signified by the lords of your Privy Council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law.
VI. And whereas of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants against their wills have been compelled to receive them into their houses, and there to suffer them to sojourn against the laws and customs of this realm, and to the great grievance and vexation of the people.
VII. And whereas also by authority of parliament, in the five-and-twentieth year of the reign of King Edward III, it is declared and enacted, that no man shall be forejudged of life or limb against the form of the Great Charter and the law of the land; and by the said Great Charter and other the laws and statutes of this your realm, no man ought to be adjudged to death but by the laws established in this your realm, either by the customs of the same realm, or by acts of parliament: and whereas no offender of what kind soever is exempted from the proceedings to be used, and punishments to be inflicted by the laws and statutes of this your realm; nevertheless of late time divers commissions under your Majesty's great seal have issued forth, by which certain persons have been assigned and appointed commissioners with power and authority to proceed within the land, according to the justice of martial law, against such soldiers or mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanor whatsoever, and by such summary course and order as is agreeable to martial law, and is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial.
VIII. By pretext whereof some of your Majesty's subjects have been by some of the said commissioners put to death, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might, and by no other ought to have been judged and executed.
IX. And also sundry grievous offenders, by color thereof claiming an exemption, have escaped the punishments due to them by the laws and statutes of this your realm, by reason that divers of your officers and ministers of justice have unjustly refused or forborne to proceed against such offenders according to the same laws and statutes, upon pretense that the said offenders were punishable only by martial law, and by authority of such commissions as aforesaid; which commissions, and all other of like nature, are wholly and directly contrary to the said laws and statutes of this your realm.
X. They do therefore humbly pray your most excellent Majesty, that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of parliament; and that none be called to make answer, or take such oath, or to give attendance, or be confined, or otherwise molested or disquieted concerning the same or for refusal thereof; and that no freeman, in any such manner as is before mentioned, be imprisoned or detained; and that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come; and that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by color of them any of your Majesty's subjects be destroyed or put to death contrary to the laws and franchise of the land.
XI. All which they most humbly pray of your most excellent Majesty as their rights and liberties, according to the laws and statutes of this realm; and that your Majesty would also vouchsafe to declare, that the awards, doings, and proceedings, to the prejudice of your people in any of the premises, shall not be drawn hereafter into consequence or example; and that your Majesty would be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, that in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honor of your Majesty, and the prosperity of this kingdom.
Source : http://www.constitution.org
After reading the passage from Walter Bagehot, The English Constitution (1873), answer the following questions:
1. How does Bagehot define the constitutional role of the House of Lords in 1873 ?
2. What “anomaly” is he referring to at § 7?
3. What according to him are the benefits of a hereditary second house?
4. What are its major defects?
N° IV THE HOUSE OF LORDS
§1 The use of the House of Lords or, rather, of the Lords, in its dignified capacity—is very great. It does not attract so much reverence as the Queen, but it attracts very much. The office of an order of nobility is to impose on the common people—not necessarily to impose on them what is untrue, yet less what is hurtful; but still to impose on their quiescent imaginations what would not otherwise be there. The fancy of the mass of men is incredibly weak; it can see nothing without a visible symbol, and there is much that it can scarcely make out with a symbol. Nobility is the symbol of mind. It has the marks from which the mass of men always used to infer mind, and often still infer it. A common clever man who goes into a country place will get no reverence; but the "old squire" will get reverence. Even after he is insolvent, when every one knows that his ruin is but a question of time, he will get five times as much respect from the common peasantry as the newly-made rich man who sits beside him. The common peasantry will listen to his nonsense more submissively than to the new man's sense. An old lord will get infinite respect. His very existence is so far useful that it awakens the sensation of obedience to a sort of mind in the coarse, dull, contracted multitude, who could neither appreciate nor perceive any other.
§2 The order of nobility is of great use, too, not only in what it creates, but in what it prevents. It prevents the rule of wealth—the religion of gold. This is the obvious and natural idol of the Anglo-Saxon. He is always trying to make money; he reckons everything in coin; he bows down before a great heap and sneers as he passes a little heap. He has a "natural instinctive admiration of wealth for its own sake". […] From this our aristocracy preserves us. There is no country where a "poor devil of a millionaire is so ill off as in England". The experiment is tried every day, and every day it is proved that money alone—money pur et simple—will not buy "London Society". Money is kept down, and, so to say, cowed by the predominant authority of a different power.
§3 But it may be said that this is no gain; that worship for worship, the worship of money is as good as the worship of rank. Even granting that it were so, it is a great gain to society to have two idols: in the competition of idolatries the true worship gets a chance. But it is not true that the reverence for rank—at least, for hereditary rank—is as base as the reverence for money. […] In reverencing wealth we reverence not a man, but an appendix to a man; in reverencing inherited nobility, we reverence the probable possession of a great faculty—the faculty of bringing out what is in one. The unconscious grace of life MAY be in the middle classes: finely-mannered persons are born everywhere; but it OUGHT to be in the aristocracy: and a man must be born with a hitch in his nerves if he has not some of it. It is a physiological possession of the race, though it is sometimes wanting in the individual.
§4 There is a third idolatry from which that of rank preserves us, and perhaps it is the worst of any—that of office. The basest deity is a subordinate employee, and yet just now in civilised Governments it is the commonest. In France and all the best of the Continent it rules like a superstition. It is to no purpose that you prove that the pay of petty officials is smaller than mercantile pay; that their work is more monotonous than mercantile work; that their mind is less useful and their life more tame. They are still thought to be greater and better. They are decords; they have a little red on the left breast of their coat, and no argument will answer that. In England, by the odd course of our society, what a theorist would desire has in fact turned up. The great offices, whether permanent or Parliamentary, which require mind now give social prestige, and almost only those. An Under-Secretary of State with 2000 pounds a year is a much stronger man than the director of a finance company with 5000 pounds, and the country saves the difference. But except in a few offices like the Treasury, which were once filled with aristocratic people, and have an odour of nobility at second-hand, minor place is of no social use. A big grocer despises the exciseman; and what in many countries would be thought impossible, the exciseman envies the grocer. Solid wealth tells where there is no artificial dignity given to petty public functions. A clerk in the public service is "nobody"; and you could not make a common Englishman see why he should be anybody. […] The dignified torpor of English society is inevitable if we give precedence, not to the cleverest classes, but to the oldest classes, and we have seen how useful that is.
§5 The social prestige of the aristocracy is, as every one knows, immensely less than it was a hundred years or even fifty years since. Two great movements—the two greatest of modern society—have been unfavourable to it. The rise of industrial wealth in countless forms has brought in a competitor which has generally more mind, and which would be supreme were it not for awkwardness and intellectual gene. Every day our companies, our railways, our debentures, and our shares, tend more and more to multiply these SURROUNDINGS of the aristocracy, and in time they will hide it. And while this undergrowth has come up, the aristocracy have come down. They have less means of standing out than they used to have. Their power is in their theatrical exhibition, in their state. But society is every day becoming less stately. […] As the picturesqueness, the featureliness, of society diminishes, aristocracy loses the single instrument of its peculiar power.
§6 If we remember the great reverence which used to be paid to nobility as such, we shall be surprised that the House of Lords as an assembly, has always been inferior; that it was always just as now, not the first, but the second of our assemblies. I am not, of course, now speaking of the middle ages: I am not dealing with the embryo or the infant form of our Constitution; I am only speaking of its adult form. Take the times of Sir R. Walpole. He was Prime Minister because he managed the House of Commons; he was turned out because he was beaten on an election petition in that House; he ruled England because he ruled that House. Yet the nobility were then the governing power in England. In many districts the word of some lord was law. The "wicked Lord Lowther," as he was called, left a name of terror in Westmoreland during the memory of men now living. A great part of the borough members and a great part of the county members were their nominees; an obedient, unquestioning deference was paid them. As individuals the peers were the greatest people; as a House the collected peers were but the second House.
§7 Several causes contributed to create this anomaly, but the main cause was a natural one. The House of Peers has never been a House where the most important peers were most important. It could not be so. The qualities which fit a man for marked eminence, in a deliberative assembly, are not hereditary, and are not coupled with great estates. In the nation, in the provinces, in his own province, a Duke of Devonshire, or a Duke of Bedford, was a much greater man than Lord Thurlow. They had great estates, many boroughs, innumerable retainers, followings like a Court. Lord Thurlow had no boroughs, no retainers; he lived on his salary. Till the House of Lords met, the dukes were not only the greatest, but immeasurably the greatest. But as soon as the House met, Lord Thurlow became the greatest. He could speak, and the others could not speak. He could transact business in half an hour which they could not have transacted in a day, or could not have transacted at all. When some foolish peer, who disliked his domination, sneered at his birth, he had words to meet the case: he said it was better for any one to owe his place to his own exertions than to owe it to descent, to being the "accident of an accident". But such a House as this could not be pleasant to great noblemen. They could not like to be second in their own assembly (and yet that was their position from age to age) to a lawyer who was of yesterday,—whom everybody could remember without briefs, who had talked for "hire," who had "hungered after six-and-eightpence". Great peers did not gain glory from the House; on the contrary, they lost glory when they were in the House. They devised two expedients to get out of this difficulty: they invented proxies which enabled them to vote without being present, without being offended by vigour and invective, without being vexed by ridicule, without leaving the rural mansion or the town palace where they were demigods. And what was more effectual still, they used their influence in the House of Commons instead of the House of Lords. In that indirect manner a rural potentate, who half returned two county members, and wholly returned two borough members, who perhaps gave seats to members of the Government, who possibly seated the leader of the Opposition, became a much greater man than by sitting on his own bench, in his own House, hearing a Chancellor talk. The House of Lords was a second-rate force, even when the peers were a first-rate force, because the greatest peers, those who had the greatest social importance, did not care for their own House, or like it, but gained great part of their political power by a hidden but potent influence in the competing House.
§8 When we cease to look at the House of Lords under its dignified aspect, and come to regard it under its strictly useful aspect, we find the literary theory of the English Constitution wholly wrong, as usual. This theory says that the House of Lords is a co-ordinate estate of the realm, of equal rank with the House of Commons; that it is the aristocratic branch, just as the Commons is the popular branch; and that by the principle of our Constitution the aristocratic branch has equal authority with the popular branch. So utterly false is this doctrine that it is a remarkable peculiarity, a capital excellence of the British Constitution, that it contains a sort of Upper House, which is not of equal authority to the Lower House, yet still has some authority. The evil of two co-equal Houses of distinct natures is obvious. Each House can stop all legislation, and yet some legislation may be necessary. At this moment we have the best instance of this which could be conceived. The Upper House of our Victorian Constitution, representing the rich wool-growers, has disagreed with the Lower Assembly, and most business is suspended. But for a most curious stratagem, the machine of Government would stand still. Most Constitutions have committed this blunder. The two most remarkable Republican institutions in the world commit it. In both the American and the Swiss Constitutions the Upper House has as much authority as the second: it could produce the maximum of impediment—the dead-lock, if it liked; if it does not do so, it is owing not to the goodness of the legal constitution, but to the discreetness of the members of the Chamber. In both these Constitutions, this dangerous division is defended by a peculiar doctrine with which I have nothing to do now. […] There ought to be in every Constitution an available authority somewhere. The sovereign power must be come-at-able. And the English have made it so. The House of Lords, at the passing of the Reform Act of 1832, was as unwilling to concur with the House of Commons as the Upper Chamber at Victoria to concur with the Lower Chamber. But it did concur. The Crown has the authority to create new peers; and the king of the day had promised the Ministry of the day to create them. The House of Lords did not like the precedent, and they passed the bill. The power was not used, but its existence was as useful as its energy. Just as the knowledge that his men CAN strike makes a master yield in order that they may not strike, so the knowledge that their House could be swamped at the will of the king—at the will of the people—made the Lords yield to the people.
§9 From the Reform Act the function of the House of Lords has been altered in English history. Before that Act it was, if not a directing Chamber, at least a Chamber of Directors. The leading nobles, who had most influence in the Commons, and swayed the Commons, sat there. Aristocratic influence was so powerful in the House of Commons, that there never was any serious breach of unity. […] Since the Reform Act the House of Lords has become a revising and suspending House. It can alter bills; it can reject bills on which the House of Commons is not yet thoroughly in earnest—upon which the nation is not yet determined. Their veto is a sort of hypothetical veto. They say, We reject your Bill for this once or these twice, or even these thrice: but if you keep on sending it up, at last we won't reject it. The House has ceased to be one of latent directors, and has become one of temporary rejectors and palpable alterers. […] This is the mode in which the House of Lords came to be what it now is, a chamber with (in most cases) a veto of delay with (in most cases) a power of revision, but with no other rights or powers. The question we have to answer is, "The House of Lords being such, what is the use of the Lords?"
§10 The common notion evidently fails, that it is a bulwark against imminent revolution. As the duke's letter in every line evinces, the wisest members, the guiding members of the House, know that the House must yield to the people if the people is determined. The two cases—that of the Reform Act and the Corn Laws—were decisive cases. The great majority of the Lords thought Reform revolution, Free-trade confiscation, and the two together ruin. If they could ever have been trusted to resist the people, they would then have resisted it. But in truth it is idle to expect a second chamber—a chamber of notables—ever to resist a popular chamber, a nation's chamber, when that chamber is vehement and the nation vehement too. There is no strength in it for that purpose. Every class chamber, every minority chamber, so to speak, feels weak and helpless when the nation is excited. In a time of revolution there are but two powers, the sword and the people. The executive commands the sword; the great lesson which the First Napoleon taught the Parisian populace—the contribution he made to the theory of revolutions at the 18th Brumaire—is now well known. Any strong soldier at the head of the army can use the army. But a second chamber cannot use it. It is a pacific assembly composed of timid peers, aged lawyers, or, as abroad, clever litterateurs. Such a body has no force to put down the nation, and if the nation will have it do something it must do it. […]
§11 With a perfect Lower House it is certain that an Upper House would be scarcely of any value. If we had an ideal House of Commons perfectly representing the nation, always moderate, never passionate, abounding in men of leisure, never omitting the slow and steady forms necessary for good consideration, it is certain that we should not need a higher chamber. The work would be done so well that we should not want any one to look over or revise it. […] But though beside an ideal House of Commons the Lords would be unnecessary, and therefore pernicious, beside the actual House a revising and leisured legislature is extremely useful, if not quite necessary.
§12 At present the chance majorities on minor questions in the House of Commons are subject to no effectual control. The nation never attends to any but the principal matters of policy and State. Upon these it forms that rude, rough, ruling judgment which we call public opinion; but upon other things it does not think at all, and it would be useless for it to think. It has not the materials for forming a judgment: the detail of bills, the instrumental part of policy, the latent part of legislation, are wholly out of its way. It knows nothing about them, and could not find time or labour for the careful investigation by which alone they can be apprehended. A casual majority of the House of Commons has therefore dominant power: it can legislate as it wishes. And though the whole House of Commons upon great subjects very fairly represents public opinion, and though its judgment upon minor questions is, from some secret excellencies in its composition, remarkably sound and good; yet, like all similar assemblies, it is subject to the sudden action of selfish combinations. There are said to be 200 "members for the railways" in the present Parliament. If these 200 choose to combine on a point which the public does not care for, and which they care for because it affects their purse, they are absolute. A formidable sinister interest may always obtain the complete command of a dominant assembly by some chance and for a moment, and it is therefore of great use to have a second chamber of an opposite sort, differently composed, in which that interest in all likelihood will not rule.
§13 The most dangerous of all sinister interests is that of the executive Government, because it is the most powerful. It is perfectly possible—it has happened and will happen again—that the Cabinet, being very powerful in the Commons, may inflict minor measures on the nation which the nation did not like, but which it did not understand enough to forbid. If, therefore, a tribunal of revision can be found in which the executive, though powerful, is less powerful, the Government will be the better; the retarding chamber will impede minor instances of Parliamentary tyranny, though it will not prevent or much impede revolution. […]
§14 But the greatest defect of the House of Commons is that it has no leisure. The life of the House is the worst of all lives—a life of distracting routine. It has an amount of business brought before it such as no similar assembly ever has had. The British Empire is a miscellaneous aggregate, and each bit of the aggregate brings its bit of business to the House of Commons. It is India one day and Jamaica the next; then again China, and then Schleswig-Holstein. Our legislation touches on all subjects, because our country contains all ingredients. The mere questions which are asked of the Ministers run over half human affairs; the Private Bill Acts, the mere privilegia of our Government—subordinate as they ought to be—probably give the House of Commons more absolute work than the whole business, both national and private, of any other assembly which has ever sat. […] While the House of Commons is what it is, a good revising, regulating and retarding House would be a benefit of great magnitude. But is the House of Lords such a chamber? Does it do this work? This is almost an undiscussed question. The House of Lords, for thirty years at least, has been in popular discussion an accepted matter. Popular passion has not crossed the path, and no vivid imagination has been excited to clear the matter up.
§15 The House of Lords has the greatest merit which such a chamber can have; it is POSSIBLE. It is incredibly difficult to get a revising assembly, because it is difficult to find a class of respected revisers. A federal senate, a second House, which represents State unity, has this advantage; it embodies a feeling at the root of society—a feeling which is older than complicated politics, which is stronger a thousand times over than common political feelings—the local feeling. "My shirt," said the Swiss state-right patriot, "is dearer to me than my coat." Every State in the American Union would feel that disrespect to the Senate was disrespect to itself. Accordingly, the Senate is respected; whatever may be the merits or demerits of its action, it can act; it is real, independent, and efficient. But in common Governments it is fatally difficult to make an UNpopular entity powerful in a popular Government.
§16 It is almost the same thing to say that the House of Lords is independent. It would not be powerful, it would not be possible, unless it were known to be independent. The Lords are in several respects more independent than the Commons; their judgment may not be so good a judgment, but it is emphatically their own judgment. The House of Lords, as a body, is accessible to no social bribe. And this, in our day, is no light matter. Many members of the House of Commons, who are to be influenced by no other manner of corruption, are much influenced by this its most insidious sort. The conductors of the press and the writers for it are worse—at least the more influential who come near the temptation; for "position," as they call it, for a certain intimacy with the aristocracy, some of them would do almost anything and say almost anything. But the Lords are those who give social bribes, and not those who take them. They are above corruption because they are the corruptors. They have no constituency to fear or wheedle; they have the best means of forming a disinterested and cool judgment of any class in the country. They have, too, leisure to form it. They have no occupations to distract them which are worth the name. Field sports are but playthings, though some lords put an Englishman's seriousness into them. Few Englishmen can bury themselves in science or literature; and the aristocracy have less, perhaps, of that impetus than the middle classes. Society is too correct and dull to be an occupation, as in other times and ages it has been. The aristocracy live in the fear of the middle classes—of the grocer and the merchant. They dare not frame a society of enjoyment as the French aristocracy once formed it. Politics are the only occupation a peer has worth the name. He may pursue them undistractedly. The House of Lords, besides independence to revise judicially and position to revise effectually, has leisure to revise intellectually.
§17 These are great merits: and, considering how difficult it is to get a good second chamber, and how much with our present first chamber we need a second, we may well be thankful for them. But we must not permit them to blind our eyes. Those merits of the Lords have faults close beside them which go far to make them useless. With its wealth, its place, and its leisure, the House of Lords would, on the very surface of the matter, rule us far more than it does if it had not secret defects which hamper and weaken it.
§18 The first of these defects is hardly to be called secret, though, on the other hand, it is not well known. A severe though not unfriendly critic of our institutions said that "the cure for admiring the House of Lords was to go and look at it"—to look at it not on a great party field-day, or at a time of parade, but in the ordinary transaction of business. There are perhaps ten peers in the House, possibly only six; three is the quorum for transacting business. A few more may dawdle in or not dawdle in: those are the principal speakers, the lawyers (a few years ago when Lyndhurst, Brougham, and Campbell were in vigour, they were by far the predominant talkers) and a few statesmen whom every one knows. But the mass of the House is nothing. This is why orators trained in the Commons detest to speak in the Lords. Lord Chatham used to call it the "Tapestry". The House of Commons is a scene of life if ever there was a scene of life. Every member in the throng, every atom in the medley, has his own objects (good or bad), his own purposes (great or petty); his own notions, such as they are, of what is; his own notions, such as they are, of what ought to be. […] The Lower Chamber is a chamber of eager politicians; the Upper (to say the least) of not eager ones.
§19 The next defect is even more serious: it affects not simply the apparent work of the House of Lords but the real work. For a revising legislature, it is too uniformly made up. Errors are of various kinds; but the constitution of the House of Lords only guards against a single error—that of too quick change. The Lords—leaving out a few lawyers and a few outcasts—are all landowners of more or less wealth. They all have more or less the opinions, the merits, the faults of that one class. They revise legislation, as far as they do revise it, exclusively according to the supposed interests, the predominant feelings, the inherited opinions, of that class. Since the Reform Act, this uniformity of tendency has been very evident. The Lords have felt—it would be harsh to say hostile, but still dubious, as to the new legislation. There was a spirit in it alien to their spirit, and which when they could they have tried to cast out. That spirit is what has been termed the "modern spirit". It is not easy to concentrate its essence in a phrase; it lives in our life, animates our actions, suggests our thoughts. We all know what it means, though it would take an essay to limit it and define it. To this the Lords object; wherever it is concerned, they are not impartial revisers, but biassed revisers.
§20 This singleness of composition would be no fault; it would be, or might be, even a merit, if the criticism of the House of Lords, though a suspicious criticism, were yet a criticism of great understanding. The characteristic legislation of every age must have characteristic defects; it is the outcome of a character, of necessity faulty and limited. It must mistake some kind of things; it must overlook some other. If we could get hold of a complemental critic, a critic who saw what the age did not see, and who saw rightly what the age mistook, we should have a critic of inestimable value. But is the House of Lords that critic? Can it be said that its unfriendliness to the legislation of the age is founded on a perception of what the age does not see, and a rectified perception of what the age does see? The most extreme partisan, the most warm admirer of the Lords, if of fair and tempered mind, cannot say so. The evidence is too strong. On free trade, for example, no one can doubt that the Lords—in opinion, in what they wished to do, and would have done, if they had acted on their own minds—were utterly wrong. This is the clearest test of the "modern spirit". It is easier here to be sure it is right than elsewhere. Commerce is like war; its result is patent. Do you make money or do you not make it? There is as little appeal from figures as from battle. Now no one can doubt that England is a great deal better off because of free trade; that it has more money, and that its money is diffused more as we should wish it diffused. In the one case in which we can unanswerably test the modern spirit, it was right, and the dubious Upper House—the House which would have rejected it, if possible—was wrong.
§21 There is another reason. The House of Lords, being an hereditary chamber, cannot be of more than common ability. It may contain—it almost always has contained, it almost always will contain—extraordinary men. But its average born law-makers cannot be extraordinary. Being a set of eldest sons picked out by chance and history, it cannot be very wise. It would be a standing miracle if such a chamber possessed a knowledge of its age superior to the other men of the age; if it possessed a superior and supplemental knowledge; if it descried what they did not discern, and saw truly that which they saw, indeed, but saw untruly.
For December 16
After reading this passage from Walter Bagehot, The English Constitution (1873), answer the following questions:
1. In what ways can the English Constitution be said to be a “living Government”?
2. What are the two essential parts of any Government, according to Bagehot?
3. What branch of the Constitution does Bagehot allude to when he refers to “The elements which excite the most easy reverence… the sort of thing--the only sort-- which yet comes home to the mass of men” (end of §11)?
4. What are the main characteristics of the Cabinet (function and composition)?
5. To what extent can we speak of a separation of powers in the UK?
I. INTRODUCTION TO THE SECOND EDITION.
§1 There is a great difficulty in the way of a writer who attempts to sketch a living Constitution--a Constitution that is in actual work and power. The difficulty is that the object is in constant change. An historical writer does not feel this difficulty: he deals only with the past; he can say definitely, the Constitution worked in such and such a manner in the year at which he begins, and in a manner in such and such respects different in the year at which he ends; he begins with a definite point of time and ends with one also. But a contemporary writer who tries to paint what is before him is puzzled and a perplexed: what he sees is changing daily. He must paint it as it stood at some one time, or else he will be putting side by side in his representations things which never were contemporaneous in reality. The difficulty is the greater because a writer who deals with a living Government naturally compares it with the most important other living Governments, and these are changing too; what he illustrates are altered in one way, and his sources of illustration are altered probably in a different way. This difficulty has been constantly in my way in preparing a second edition of this book. It describes the English Constitution as it stood in the years 1865 and 1866. Roughly speaking, it describes its working as it was in the time of Lord Palmerston; and since that time there have been many changes, some of spirit and some of detail. In so short a period there have rarely been more changes. If I had given a sketch of the Palmerston time as a sketch of the present time, it would have been in many points untrue; and if I had tried to change the sketch of seven years since into a sketch of the present time, I should probably have blurred the picture and have given something equally unlike both. […]
II. THE CABINET
§2 "On all great subjects," says Mr. Mill, "much remains to be said," and of none is this more true than of the English Constitution. The literature which has accumulated upon it is huge. But an observer who looks at the living reality will wonder at the contrast to the paper description. He will see in the life much which is not in the books; and he will not find in the rough practice many refinements of the literary theory.
§3 It was natural--perhaps inevitable--that such an under growth of irrelevant ideas should gather round the British Constitution. Language is the tradition of nations; each generation describes what it sees, but it uses words transmitted from the past. When a great entity like the British Constitution has continued in connected outward sameness, but hidden inner change, for many ages, every generation inherits a series of inapt words--of maxims once true, but of which the truth is ceasing or has ceased. As a man`s family go on muttering in his maturity incorrect phrases derived from a just observation of his early youth, so, in the full activity of an historical constitution, its subjects repeat phrases true in the time of their fathers, and inculcated by those fathers, but now true no longer. Or, if I may say so, an ancient and ever-altering constitution is like an old man who still wears with attached fondness clothes in the fashion of his youth: what you see of him is the same; what you do not see is wholly altered.
§4 There are two descriptions of the English Constitution which have exercised immense influence, but which are erroneous. First, it is laid down as a principle of the English polity, that in it the legislative, the executive, and the judicial powers are quite divided--that each is entrusted to a separate person or set of persons--that no one of these can at all interfere with the work of the other. There has been much eloquence expended in explaining how the rough genius of the English people, even in the middle ages, when it was especially rude, carried into life and practice that elaborate division of functions which philosophers had suggested on paper, but which they had hardly hoped to see except on paper.
§5 Secondly, it is insisted that the peculiar excellence of the British Constitution lies in a balanced union of three powers. It is said that the monarchical element, the aristocratic element, and the democratic element, have each a share in the supreme sovereignty, and that the assent of all three is necessary to the action of that sovereignty. Kings, lords, and commons, by this theory, are alleged to be not only the outward form, but the inner moving essence, the vitality of the Constitution. A great theory, called the theory of "Checks and Balances," pervades an immense part of political literature, and much of it is collected from or supported by English experience. Monarchy, it is said, has some faults, some bad tendencies, aristocracy others, democracy, again, others; but England has shown that a Government can be constructed in which these evil tendencies exactly check, balance, and destroy one another--in which a good whole is constructed not simply in spite of, but by means of, the counteracting defects of the constituent parts.
§6 Accordingly, it is believed that the principal characteristics of the English Constitution are inapplicable in countries where the materials for a monarchy or an aristocracy do not exist. That Constitution is conceived to be the best imaginable use of the political elements which the great majority of States in modern Europe inherited from the mediaeval period. It is believed that out of these materials nothing better can be made than the English Constitution; but it is also believed that the essential parts of the English Constitution cannot be made except from these materials. Now these elements are the accidents of a period and a region; they belong only to one or two centuries in human history, and to a few countries. The United States could not have become monarchical, even if the Constitutional Convention had decreed it, even if the component States had ratified it. The mystic reverence, the religious allegiance, which are essential to a true monarchy, are imaginative sentiments that no legislature can manufacture in any people. These semi-filial feelings in Government are inherited just as the true filial feelings in common life. You might as well adopt a father as make a monarchy: the special sentiment belonging to the one is as incapable of voluntary creation as the peculiar affection belonging to the other. If the practical part of the English Constitution could only be made out of a curious accumulation of mediaeval materials, its interest would be half historical, and its imitability very confined.
§7 No one can approach to an understanding of the English institutions, or of others, which, being the growth of many centuries, exercise a wide sway over mixed populations, unless he divide them into two classes. In such constitutions there are two parts (not indeed separable with microscopic accuracy, for the genius of great affairs abhors nicety of division): first, those which excite and preserve the reverence of the population--the DIGNIFIED parts, if I may so call them; and next, the EFFICIENT parts--those by which it, in fact, works and rules. There are two great objects which every constitution must attain to be successful, which every old and celebrated one must have wonderfully achieved: every constitution must first GAIN authority, and then USE authority; it must first win the loyalty and confidence of mankind, and then employ that homage in the work of government.
§8 There are indeed practical men who reject the dignified parts of Government. They say, we want only to attain results, to do business: a constitution is a collection of political means for political ends, and if you admit that any part of a constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the constitution, however dignified or awful it may be, is nevertheless in truth useless. And other reasoners, who distrust this bare philosophy, have propounded subtle arguments to prove that these dignified parts of old Governments are cardinal components of the essential apparatus, great pivots of substantial utility; and so they manufactured fallacies which the plainer school have well exposed. But both schools are in error. The dignified parts of Government are those which bring it force--which attract its motive power. The efficient parts only employ that power. The comely parts of a Government HAVE need, for they are those upon which its vital strength depends. They may not do anything definite that a simpler polity would not do better; but they are the preliminaries, the needful prerequisites of ALL work. They raise the army, though they do not win the battle.
§9 Doubtless, if all subjects of the same Government only thought of what was useful to them, and if they all thought the same thing useful, and all thought that same thing could be attained in the same way, the efficient members of a constitution would suffice, and no impressive adjuncts would be needed. But the world in which we live is organised far otherwise.
§10 The most strange fact, though the most certain in nature, is the unequal development of the human race. […] There used to be a notion--not so much widely asserted as deeply implanted, rather pervadingly latent than commonly apparent in political philosophy--that in a little while, perhaps ten years or so, all human beings might, without extraordinary appliances, be brought to the same level. But now, when we see by the painful history of mankind at what point we began, by what slow toil, what favourable circumstances, what accumulated achievements, civilised man has become at all worthy in any degree so to call himself--when we realise the tedium of history and the painfulness of results--our perceptions are sharpened as to the relative steps of our long and gradual progress. We have in a great community like England crowds of people scarcely more civilised than the majority of two thousand years ago; we have others, even more numerous, such as the best people were a thousand years since. The lower orders, the middle orders, are still, when tried by what is the standard of the educated "ten thousand," narrow-minded, unintelligent, incurious. It is useless to pile up abstract words. Those who doubt should go out into their kitchens. Let an accomplished man try what seems to him most obvious, most certain, most palpable in intellectual matters, upon the housemaid and the footman, and he will find that what he says seems unintelligible, confused, and erroneous--that his audience think him mad and wild when he is speaking what is in his own sphere of thought the dullest platitude of cautious soberness. Great communities are like great mountains--they have in them the primary, secondary, and tertiary strata of human progress; the characteristics of the lower regions resemble the life of old times rather than the present life of the higher regions. And a philosophy which does not ceaselessly remember, which does not continually obtrude, the palpable differences of the various parts, will be a theory radically false, because it has omitted a capital reality-- will be a theory essentially misleading, because it will lead men to expect what does not exist, and not to anticipate that which they will find.
§11 Every one knows these plain facts, but by no means every one has traced their political importance. When a State is constituted thus, it is not true that the lower classes will be wholly absorbed in the useful; on the contrary, they do not like anything so poor. No orator ever made an impression by appealing to men as to their plainest physical wants, except when he could allege that those wants were caused by some one`s tyranny. But thousands have made the greatest impression by appealing to some vague dream of glory, or empire, or nationality. The ruder sort of men--that is, men at ONE stage of rudeness--will sacrifice all they hope for, all they have, THEMSELVES, for what is called an idea--for some attraction which seems to transcend reality, which aspires to elevate men by an interest higher, deeper, wider than that of ordinary life. But this order of men are uninterested in the plain, palpable ends of government; they do not prize them; they do not in the least comprehend how they should be attained. It is very natural, therefore, that the most useful parts of the structure of government should by no means be those which excite the most reverence. The elements which excite the most easy reverence will be the THEATRICAL elements--those which appeal to the senses, which claim to be embodiments of the greatest human ideas, which boast in some cases of far more than human origin. That which is mystic in its claims; that which is occult in its mode of action; that which is brilliant to the eye; that which is seen vividly for a moment, and then is seen no more; that which is hidden and unhidden; that which is specious, and yet interesting, palpable in its seeming, and yet professing to be more than palpable in its results; this, howsoever its form may change, or however we may define it or describe it, is the sort of thing--the only sort--which yet comes home to the mass of men. So far from the dignified parts of a constitution being necessarily the most useful, they are likely, according to outside presumption, to be the least so; for they are likely to be adjusted to the lowest orders--those likely to care least and judge worst about what IS useful.
§12 There is another reason which, in an old constitution like that of England, is hardly less important. The most intellectual of men are moved quite as much by the circumstances which they are used to as by their own will. The active voluntary part of a man is very small, and if it were not economised by a sleepy kind of habit, its results would be null. We could not do every day out of our own heads all we have to do. We should accomplish nothing, for all our energies would be frittered away in minor attempts at petty improvement. One man, too, would go off from the known track in one direction, and one in another; so that when a crisis came requiring massed combination, no two men would be near enough to act together. It is the dull traditional habit of mankind that guides most men`s actions, and is the steady frame in which each new artist must set the picture that he paints. And all this traditional part of human nature is most easily impressed and acted on by that which is handed down. Other things being equal, yesterday`s institutions are by far the best for to-day; they are the most ready, the most influential, the most easy to get obeyed, the most likely to retain the reverence which they alone inherit, and which every other must win. The most imposing institutions of mankind are the oldest; and yet so changing is the world, so fluctuating are its needs, so apt to lose inward force, though retaining out ward strength, are its best instruments, that we must not expect the oldest institutions to be now the most efficient. We must expect what is venerable to acquire influence because of its inherent dignity; but we must not expect it to use that influence so well as new creations apt for the modern world, instinct with its spirit, and fitting closely to its life.
§13 The brief description of the characteristic merit of the English Constitution is, that its dignified parts are very complicated and somewhat imposing, very old and rather venerable; while its efficient part, at least when in great and critical action, is decidedly simple and rather modern. We have made, or rather stumbled on, a constitution which--though full of every species of incidental defect, though of the worst workmanship in all out-of-the-way matters of any constitution in the world--yet has two capital merits: it contains a simple efficient part which, on occasion, and when wanted, can work more simply and easily, and better, than any instrument of government that has yet been tried; and it contains likewise historical, complex, august, theatrical parts, which it has inherited from a long past--which take the multitude--which guide by an insensible but an omnipotent influence the associations of its subjects. Its essence is strong with the strength of modern simplicity; its exterior is august with the Gothic grandeur of a more imposing age. Its simple essence may, mutatis mutandis, be transplanted to many very various countries, but its august outside- -what most men think it is--is narrowly confined to nations with an analogous history and similar political materials.
§14 The efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers. No doubt by the traditional theory, as it exists in all the books, the goodness of our constitution consists in the entire separation of the legislative and executive authorities, but in truth its merit consists in their singular approximation. The connecting link is the Cabinet. By that new word we mean a committee of the legislative body selected to be the executive body. The legislature has many committees, but this is its greatest. It chooses for this, its main committee, the men in whom it has most confidence. It does not, it is true, choose them directly; but it is nearly omnipotent in choosing them indirectly. A century ago the Crown had a real choice of Ministers, though it had no longer a choice in policy. During the long reign of Sir R. Walpole he was obliged not only to manage Parliament but to manage the palace. He was obliged to take care that some court intrigue did not expel him from his place. The nation then selected the English policy, but the Crown chose the English Ministers. They were not only in name, as now, but in fact, the Queen`s servants. Remnants, important remnants, of this great prerogative still remain. The discriminating favour of William IV made Lord Melbourne head of the Whig party when he was only one of several rivals. At the death of Lord Palmerston it is very likely that the Queen may have the opportunity of fairly choosing between two, if not three statesmen. But, as a rule, the nominal Prime Minister is chosen by the legislature, and the real Prime Minister for most purposes--the leader of the House of Commons--almost without exception is so. There is nearly always some one man plainly selected by the voice of the predominant party in the predominant house of the legislature to head that party, and consequently to rule the nation. We have in England an elective first magistrate as truly as the Americans have an elective first magistrate. The Queen is only at the head of the dignified part of the Constitution. The Prime Minister is at the head of the efficient part. The Crown is, according to the saying, the "fountain of honour"; but the Treasury is the spring of business. Nevertheless, our first magistrate differs from the American. He is not elected directly by the people; he is elected by the representatives of the people. He is an example of "double election". The legislature chosen, in name, to make laws, in fact finds its principal business in making and in keeping an executive.
§15 The leading Minister so selected has to choose his associates, but he only chooses among a charmed circle. The position of most men in Parliament forbids their being invited to the Cabinet; the position of a few men ensures their being invited. Between the compulsory list whom he must take, and the impossible list whom he cannot take, a Prime Minister`s independent choice in the formation of a Cabinet is not very large; it extends rather to the division of the Cabinet offices than to the choice of Cabinet Ministers. Parliament and the nation have pretty well settled who shall have the first places; but they have not discriminated with the same accuracy which man shall have which place. The highest patronage of a Prime Minister is, of course, a considerable power, though it is exercised under close and imperative restrictions--though it is far less than it seems to be when stated in theory, or looked at from a distance.
§16 The Cabinet, in a word, is a board of control chosen by the legislature, out of persons whom it trusts and knows, to rule the nation. The particular mode in which the English Ministers are selected; the fiction that they are, in any political sense, the Queen`s servants; the rule which limits the choice of the Cabinet to the members of the legislature--are accidents unessential to its definition--historical incidents separable from its nature. Its characteristic is that it should be chosen by the legislature out of persons agreeable to and trusted by the legislature. Naturally these are principally its own members--but they need not be exclusively so. A Cabinet which included persons not members of the legislative assembly might still perform all useful duties. Indeed the peers, who constitute a large element in modern Cabinets, are members, now- a-days, only of a subordinate assembly. The House of Lords still exercises several useful functions; but the ruling influence--the deciding faculty--has passed to what, using the language of old times, we still call the lower house--to an assembly which, though inferior as a dignified institution, is superior as an efficient institution. A principal advantage of the House of Lords in the present age indeed consists in its thus acting as a reservoir of Cabinet Ministers. Unless the composition of the House of Commons were improved, or unless the rules requiring Cabinet Ministers to be members of the legislature were relaxed, it would undoubtedly be difficult to find, without the lords, a sufficient supply of chief Ministers. But the detail of the composition of a Cabinet, and the precise method of its choice, are not to the purpose now. The first and cardinal consideration is the definition of a Cabinet. We must not bewilder ourselves with the inseparable accidents until we know the necessary essence. A Cabinet is a combining committee--a hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part of the State. In its origin it belongs to the one, in its functions it belongs to the other.
§17 The most curious point about the Cabinet is that so very little is known about it. The meetings are not only secret in theory, but secret in reality. By the present practice, no official minute in all ordinary cases is kept of them. Even a private note is discouraged and disliked. The House of Commons, even in its most inquisitive and turbulent moments, would scarcely permit a note of a Cabinet meeting to be read. No Minister who respected the fundamental usages of political practice would attempt to read such a note. The committee which unites the law-making power to the law- executing power--which, by virtue of that combination, is, while it lasts and holds together, the most powerful body in the State--is a committee wholly secret. No description of it, at once graphic and authentic, has ever been given. It is said to be sometimes like a rather disorderly board of directors, where many speak and few listen--though no one knows. [Footnote: It is said that at the end of the Cabinet which agreed to propose a fixed duty on corn, Lord Melbourne put his back to the door and said, "Now is it to lower the price of corn or isn`t it? It is not much matter which we say, but mind, we must all say THE SAME." This is the most graphic story of a Cabinet I ever heard, but I cannot vouch for its truth Lord Melbourne`s is a character about which men make stories.] But a Cabinet, though it is a committee of the legislative assembly, is a committee with a power which no assembly would--unless for historical accidents, and after happy experience--have been persuaded to entrust to any committee. It is a committee which can dissolve the assembly which appointed it; it is a committee with a suspensive veto--a committee with a power of appeal. Though appointed by one Parliament, it can appeal if it chooses to the next. Theoretically, indeed, the power to dissolve Parliament is entrusted to the sovereign only; and there are vestiges of doubt whether in ALL cases a sovereign is bound to dissolve Parliament when the Cabinet asks him to do so. But neglecting such small and dubious exceptions, the Cabinet which was chosen by one House of Commons has an appeal to the next House of Commons. The chief committee of the legislature has the power of dissolving the predominant part of that legislature--that which at a crisis is the supreme legislature. The English system, therefore, is not an absorption of the executive power by the legislative power; it is a fusion of the two. Either the Cabinet legislates and acts, or else it can dissolve. It is a creature, but it has the power of destroying its creators. It is an executive which can annihilate the legislature, as well as an executive which is the nominee of the legislature. It was made, but it can unmake; it was derivative in its origin, but it is destructive in its action. This fusion of the legislative and executive functions may, to those who have not much considered it, seem but a dry and small matter to be the latent essence and effectual secret of the English Constitution; but we can only judge of its real importance by looking at a few of its principal effects, and contrasting it very shortly with its great competitor, which seems likely, unless care be taken, to outstrip it in the progress of the world. That competitor is the Presidential system. The characteristic of it is that the President is elected from the people by one process, and the House of Representatives by another. The independence of the legislative and executive powers is the specific quality of Presidential government, just as their fusion and combination is the precise principle of Cabinet government.
For December 2
- Please note US Attorney General Holder will give a lecture on December 2 (9h30-10h30, bât B, salle de conférences). It is necessary you have your documents (PASSPORT or ID CARD) with you to pass the security control.
- The final exam will take place on January 13. Meanwhile, you are strongly encouraged to hand in preparations on the texts we study in class.
After reading the text by Bolingbroke, answer the following questions:
1. Find about St John Bolingbroke.
2. How do you understand the following sentence: “I am not one of those oriental slaves, who deem it unlawful presumption to look their kings in the face” (§1)?
3. What kind of political regime does he favour?
4. What importance does he give to kings’ education?
5. What kind of legitimacy does he give to men’s rulers?
The Idea of a Patriot King
Henry St. John Bolingbroke
Dec. 1, 1738.
§1 Revising some letters I wrote to my Lord --, I found in one of them a great deal said concerning the duties which men owe to their country, those men particularly who live under a free constitution of government; with a strong application of these general doctrines to the present state of Great Britain, and to the characters of the present actors on this stage. I saw no reason to alter, none even to soften, any thing that is there advanced. On the contrary, it came into my mind to carry these considerations further, and to delineate, for I pretend not to make a perfect draught, the duties of a king to his country; of those kings particularly who are appointed by the people, for I know of none who are anointed by God to rule in limited monarchies. After which I proposed to apply the general doctrines in this case, as strongly and as directly as in the other, to the present state of Great Britain.
§2 I am not one of those oriental slaves, who deem it unlawful presumption to look their kings in the face [...] Much otherwise. It seems to me, that no secrets are so important to be known, no hearts deserve to be pried into with more curiosity and attention, than those of princes. But many things have concurred, besides age and temper, to set me at a great distance from the present court. Far from prying into the hearts, I scarce know the faces of our royal family. I shall therefore decline all application to their characters, and all mention of any influence which their characters may have on their own fortune, or on that of this nation. The principles I have reasoned upon in my letter to my Lord, and those I shall reason upon here, are the same. They are laid in the same system of human nature. They are drawn from that source from whence all the duties of public and private morality must be derived, or they will be often falsely, and always precariously, established. [...]
§3 We have been long coming to this point of depravation: and the progress from confirmed habits of evil is much more slow than the progress to them. Virtue is not placed on a rugged mountain of difficult and dangerous access, as they who would excuse the indolence of their temper, or the perverseness of their will, desire to have it believed; but she is seated, however, on an eminence. We may go up to her with ease, but we must go up gradually, according to the natural progression of reason, who is to lead the way, and to guide our steps. On the other hand, if we fall from thence, we are sure to be hurried down the hill with a blind impetuosity, according to the natural violence of those appetites and passions that caused our fall at first, and urge it on the faster, the further they are removed from the control that before restrained them.
§4 It seems to me, upon the whole matter, that to save or redeem a nation, under such circumstances, from perdition, nothing less is necessary than some great, some extraordinary conjuncture of ill fortune, or of good, which may purge, yet so as by fire. Distress from abroad, bankruptcy at home, and other circumstances of like nature and tendency, may beget universal confusion. Out of confusion order may arise: but it may be the order of a wicked tyranny, instead of the order of a just monarchy. Either may happen: and such an alternative, at the disposition of fortune, is sufficient to make a Stoic tremble! We may be saved, indeed, by means of a very different kind; but these means will not offer themselves, this way of salvation will not be opened to us, without the concurrence, and the influence, of a Patriot King, the most uncommon of all phenomena in the physical or moral world. Nothing can so surely and so effectually restore the virtue and public spirit essential to the preservation of liberty and national prosperity, as the reign of such a prince [...]
§5 To conclude this head therefore: as I think a limited monarchy the best of governments, so I think an hereditary monarchy the best of monarchies. I said a limited monarchy; for an unlimited monarchy, wherein arbitrary will, which is in truth no rule, is however the sole rule, or stands instead of all rule of government, is so great an absurdity, both in reason informed or uninformed by experience, that it seems a government fitter for savages than for civilized people. But I think it proper to explain a little more what I mean, when I say a limited monarchy, that I may leave nothing untouched which ought to be taken into consideration by us, when we attempt to fix our ideas of a Patriot King.
§6 Among many reasons which determine me to prefer monarchy to every form of government, this is a principal one. When monarchy is the essential form, it may be more easily and more usefully tempered with aristocracy, or democracy, or both, than either of them, when they are the essential forms, can be tempered with monarchy. It seems to me, that the introduction of a real permanent monarchical power, or any thing more than the pageantry of it, into either of these, must destroy them and extinguish them, as a greater light extinguishes a less. Whereas it may easily be shown, and the true form of our government will demonstrate, without seeking any other example, that very considerable aristocratical and democratical powers may be granted on a monarchical stock, without diminishing the lustre, or restraining the power and authority of the prince, enough to alter in any degree the essential form.
§7 A great difference is made in nature, and therefore the distinction should be always preserved in our notions, between two things that we are apt to confound in speculation, as they have been confounded in practice, legislative and monarchical power. There must be an absolute, unlimited, and uncontrollable power lodged somewhere in every government; but to constitute monarchy, or the government of a single person, it is not necessary that this power should be lodged in the monarch alone. It is no more necessary that he should exclusively and independently establish the rule of his government, than it is that he should govern without any rule at all: and this surely will be thought reasonable by no man.
§8 I would not say God governs by a rule that we know, or may know, as well as he, and upon our knowledge of which he appeals to men for the justice of his proceedings towards them; which a famous divine has impiously advanced, in a pretended demonstration of his being and attributes. God forbid! But this I may say, that God does always that which is fittest to be done, and that this fitness, whereof neither that presumptuous dogmatist was, nor any created being is, a competent judge, results from the various natures, and more various relations of things: so that, as creator of all systems by which these natures and relations are constituted, he prescribed to himself the rule, which he follows as governor of every system of being. In short, with reverence be it spoken, God is a monarch, yet not an arbitrary but a limited monarch, limited by the rule which infinite wisdom prescribed to infinite power. I know well enough the impropriety of these expressions; but, when our ideas are inadequate, our expressions must needs be improper. Such conceptions, however, as we are able to form of these attributes, and of the exercise of them in the government of the universe, may serve to show what I have produced them to show. If governing without any rule, and by arbitrary will, be not essential to our idea of the monarchy of the Supreme Being, it is plainly ridiculous to suppose them necessarily included in the idea of a human monarchy: and though God, in his eternal ideas, for we are able to conceive no other manner of knowing, has prescribed to himself that rule by which he governs the universe he created, it will be just as ridiculous to affirm, that the idea of human monarchy cannot be preserved, if kings are obliged to govern according to a rule established by the wisdom of a state, that was a state before they were kings, and by the consent of a people that they did not most certainly create; especially when the whole executive power is exclusively in their hands, and the legislative power cannot be exercised without their concurrence.
§9 There are limitations indeed that would destroy the essential form of monarchy; or, in other words, a monarchical constitution may be changed, under pretence of limiting the monarch. This happened among us in the last century, when the vilest usurpation, and the most infamous tyranny, were established over our nation, by some of the worst and some of the meanest men in it. I will not say that the essential form of monarchy should be preserved though the preservation of it were to cause the loss of liberty. Salus reipublicae suprema lex esto is a fundamental law; and, sure I am, the safety of a commonwealth is ill provided for, if the liberty be given up. But this I presume to say, and can demonstrate, that all the limitations necessary to preserve liberty, as long as the spirit of it subsists, and longer than that no limitations of monarchy, nor any other form of government, can preserve it, are compatible with monarchy. I think on these subjects, neither as the Tories, nor as the Whigs have thought; at least, I endeavour to avoid the excesses of both. I neither dress up kings like so many burlesque Jupiters, weighing the fortunes of mankind in the scales of fate, and darting thunderbolts at the heads of rebellious giants; nor do I strip them naked, as it were, and leave them at most a few tattered rags to clothe their majesty, but such as can serve really as little for use as for ornament. My aim is to fix this principle: that limitations on a crown ought to be carried as far as it is necessary to secure the liberties of a people; and that all such limitations may subsist, without weakening or endangering monarchy.
§10 I shall be told, perhaps, for I have heard it said by many, that this point is imaginary; and that limitations, sufficient to procure good government and to secure liberty under a bad prince, cannot be made, unless they are such as will deprive the subjects of many benefits in the reign of a good prince, clog his administration, maintain an unjust jealousy between him and his people, and occasion a defect of power, necessary to preserve the public tranquillity, and to promote the national prosperity. If this was true, here would be a much more melancholy instance of the imperfection of our nature, and of the inefficacy of our reason to supply this imperfection, than the former. In the former, reason prompted by experience avoids a certain evil effectually, and is able to provide, in some measure, against the contingent evils that may arise from the expedient itself.
§11 But in the latter, if what is there advanced was true, these provisions against contingent evils would, in some cases, be the occasions of much certain evil, and of positive good in none; under a good prince they would render the administration defective, and under a bad one there would be no government at all. But the truth is widely different from this representation. The limitations necessary to preserve liberty under monarchy will restrain effectually a bad prince, without being ever felt as shackles by a good one. Our constitution is brought, or almost brought, to such a point, a point of perfection I think it, that no king, who is not, in the true meaning of the word, a patriot, can govern Britain with ease, security, honour, dignity, or indeed with sufficient power and strength. But yet a king, who is a patriot may govern with all the former; and, besides them, with power as extended as the most absolute monarch can boast, and a power, too, far more agreeable in the enjoyment as well as more effectual in the operation.
§12 To attain these great and noble ends, the patriotism must be real, and not in show alone. It is something to desire to appear a patriot: and the desire of having fame is a step towards deserving it, because it is a motive the more to deserve it. If it be true, as Tacitus says, contemptu famae contemni virtutem, that a contempt of a good name, or an indifference about it, begets or accompanies always a contempt of virtue; the contrary will be true: and they are certainly both true. But this motive alone is not sufficient. To constitute a patriot, whether king or subject, there must be something more substantial than a desire of fame, in the composition; and if there be not, this desire of fame will never rise above that sentiment which may be compared to the coquetry of women: a fondness of transient applause, which is courted by vanity, given by flattery, and spends itself in show, like the qualities which acquire it. Patriotism must be founded in great principles, and supported by great virtues. The chief of these principles I have endeavoured to trace; and I will not scruple to assert, that a man can be a good king upon no other. He may, without them and by complexion, be unambitious, generous, good-natured; but, without them, the exercise even of these virtues will be often ill directed: and, with principles of another sort, he will be drawn easily, notwithstanding these virtues, from all the purposes of his institution.
§13 I mention these opposite principles the rather, because, instead of wondering that so many kings, unfit and unworthy to be trusted with the government of mankind, appear in the world, I have been tempted to wonder that there are any tolerable; when I have considered the flattery that environs them most commonly from the cradle, and the tendency of all those false notions that are instilled into them by precept, and by example, by the habits of courts, and by the interested selfish views of courtiers. They are bred to esteem themselves of a distinct and superior species among men, as men are among animals.
§14 Louis the Fourteenth was a strong instance of the effect of this education, which trains up kings to be tyrants, without knowing that they are so. That oppression under which he kept his people, during the whole course of a long reign, might proceed, in some degree, from the natural haughtiness of his temper; but it proceeded, in a greater degree, from the principles and habits of his education. By this he had been brought to look on his kingdom as a patrimony that descended to him from his ancestors, and that was to be considered in no other light: so that when a very considerable man had discoursed to him at large of the miserable condition, to which his people was reduced, and had frequently used this word, 'l'état', though the King approved the substance of all he had said, yet he was shocked at the frequent repetition of this word, and complained of it as of a kind of indecency to himself. This will not appear so strange to our second as it may very justly to our first reflections; for what wonder is it, that princes are easily betrayed into an error that takes its rise in the general imperfection of our nature, in our pride, our vanity, and our presumption? The bastard children, but the children still, of self love; a spurious brood, but often a favourite brood, that governs the whole family. As men are apt to make themselves the measure of all being, so they make themselves the final cause of all creation. Thus the reputed orthodox philosophers in all ages have taught, that the world was made for man, the earth for him to inhabit, and all the luminous bodies, in the immense expanse around us, for him to gaze at. Kings do no more, no, not so much, when they imagine themselves the final cause for which societies were formed, and governments instituted.
§15 This capital error, in which almost every prince is confirmed by his education, has so great extent and so general influence, that a right to do every iniquitous thing in government may be derived from it. But, as if this was not enough, the characters of princes are spoiled many more ways by their education. I shall not descend into a detail of such particulars, nor presume so much as to hint what regulations might be made about the education of princes, nor what part our Parliaments might take occasionally in this momentous affair, lest I should appear too refining, or too presumptuous, in my speculations. But I may assert in general, that the indifference of mankind upon this head, especially in a government constituted like ours, is monstrous.
§16 I may also take notice of another cause of the mistakes of princes, I mean the general conduct of those who are brought near to their persons. Such men, let me say, have a particular duty arising from this very situation; a duty common to them all, because it arises not from their stations, which are different, but from their situation, which is the same. To enumerate the various applications of this duty would be too minute and tedious; but this may suffice, that all such men should bear constantly in mind, that the master they serve is to be the king of their country: that their attachment to him, therefore, is not to be like that of other servants to other masters, for his sake alone, or for his sake and their own, but for the sake of their country likewise.
To prepare session 6 We will finish studying the Petition of Right and we will start studying the Bill of Rights as we will have to devote more time to this key moment in British constitutional history (as a consequence we won't be studying the Instrument of Government of Comwell). Here are the questions to be addressed:
1. Find about the connection between James II and Mary. Where did William and Mary come from? Find about the circumstances of their return to Britain.
2. As appears through the (long) list of grievances, what is James II accused of?
3. On what implicit terms could William and Mary ascend the throne?
4. In what way has the so-called 'Glorious Revolution' been considered a landmark in British constitutional history?
BILL OF RIGHTS (1689)
" An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown
Whereas the Lords Spiritual and Temporal and Commons assembled at Westminster, lawfully, fully and freely representing all the estates of the people of this realm, did upon the thirteenth day of February in the year of our Lord one thousand six hundred eighty-eight [old style date] present unto their Majesties, then called and known by the names and style of William and Mary, prince and princess of Orange, being present in their proper persons, a certain declaration in writing made by the said Lords and Commons in the words following, viz.:
• Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom;
• By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament; By committing and prosecuting divers worthy prelates for humbly petitioning to be excused from concurring to the said assumed power;
• By issuing and causing to be executed a commission under the great seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes;
• By levying money for and to the use of the Crown by pretence of prerogative for other time and in other manner than the same was granted by Parliament;
• By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law;
• By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law;
• By violating the freedom of election of members to serve in Parliament;
• By prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament, and by divers other arbitrary and illegal courses;
• And whereas of late years partial corrupt and unqualified persons have been returned and served on juries in trials, and particularly divers jurors in trials for high treason which were not freeholders;
• And excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects;
• And excessive fines have been imposed;
• And illegal and cruel punishments inflicted;
• And several grants and promises made of fines and forfeitures before any conviction or judgment against the persons upon whom the same were to be levied;
• All which are utterly and directly contrary to the known laws and statutes and freedom of this realm;
And whereas the said late King James the Second having abdicated the government and the throne being thereby vacant, his Highness the prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did (by the advice of the Lords Spiritual and Temporal and divers principal persons of the Commons) cause letters to be written to the Lords Spiritual and Temporal being Protestants, and other letters to the several counties, cities, universities, boroughs and cinque ports, for the choosing of such persons to represent them as were of right to be sent to Parliament, to meet and sit at Westminster upon the two and twentieth day of January in this year one thousand six hundred eighty and eight [old style date], in order to such an establishment as that their religion, laws and liberties might not again be in danger of being subverted, upon which letters elections having been accordingly made;
And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare:
• That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;
• That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;
• That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;
• That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;
• That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;
• That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;
• That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;
• That election of members of Parliament ought to be free;
• That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;
• That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
• That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;
• That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;
• And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.
And they do claim, demand and insist upon all and singular the premises as their undoubted rights and liberties, and that no declarations, judgments, doings or proceedings to the prejudice of the people in any of the said premises ought in any wise to be drawn hereafter into consequence or example; to which demand of their rights they are particularly encouraged by the declaration of his Highness the prince of Orange as being the only means for obtaining a full redress and remedy therein.
Having therefore an entire confidence that his said Highness the prince of Orange will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights which they have here asserted, and from all other attempts upon their religion, rights and liberties, the said Lords Spiritual and Temporal and Commons assembled at Westminster do resolve that William and Mary, prince and princess of Orange, be and be declared king and queen of England, France and Ireland and the dominions thereunto belonging, to hold the crown and royal dignity of the said kingdoms and dominions to them, the said prince and princess, during their lives and the life of the survivor to them, and that the sole and full exercise of the regal power be only in and executed by the said prince of Orange in the names of the said prince and princess during their joint lives, and after their deceases the said crown and royal dignity of the same kingdoms and dominions to be to the heirs of the body of the said princess, and for default of such issue to the Princess Anne of Denmark and the heirs of her body, and for default of such issue to the heirs of the body of the said prince of Orange. And the Lords Spiritual and Temporal and Commons do pray the said prince and princess to accept the same accordingly.
And that the oaths hereafter mentioned be taken by all persons of whom the oaths have allegiance and supremacy might be required by law, instead of them; and that the said oaths of allegiance and supremacy be abrogated.
"I, A.B., do sincerely promise and swear that I will be faithful and bear true allegiance to their Majesties King William and Queen Mary. So help me God."
"I, A.B., do swear that I do from my heart abhor, detest and abjure as impious and heretical this damnable doctrine and position, that princes excommunicated or deprived by the Pope or any authority of the see of Rome may be deposed or murdered by their subjects or any other whatsoever. And I do declare that no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority, ecclesiastical or spiritual, within this realm. So help me God."
Upon which their said Majesties did accept the crown and royal dignity of the kingdoms of England, France and Ireland, and the dominions thereunto belonging, according to the resolution and desire of the said Lords and Commons contained in the said declaration.
And thereupon their Majesties were pleased that the said Lords Spiritual and Temporal and Commons, being the two Houses of Parliament, should continue to sit, and with their Majesties' royal concurrence make effectual provision for the settlement of the religion, laws and liberties of this kingdom, so that the same for the future might not be in danger again of being subverted, to which the said Lords Spiritual and Temporal and Commons did agree, and proceed to act accordingly.
Now in pursuance of the premises the said Lords Spiritual and Temporal and Commons in Parliament assembled, for the ratifying, confirming and establishing the said declaration and the articles, clauses, matters and things therein contained by the force of law made in due form by authority of Parliament, do pray that it may be declared and enacted that all and singular the rights and liberties asserted and claimed in the said declaration are the true, ancient and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed and taken to be; and that all and every the particulars aforesaid shall be firmly and strictly holden and observed as they are expressed in the said declaration, and all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all time to come. "