The Rise and Fall of England, III. C. Carson

'lQ'l sixteenth century, in the time of Elizabeth 1. But England's leader ship in civilization was still a long way off. Tudor despotism degen erated into Stuart oppression, as we have seen, and oppression was followed by civil war, revolution, and reaction. On the ruins of mo narchical absolutism, however, the English began to lay more nearly enduring political foundations of liberty. It is this work that is to be called up here. There are two elements that en ter into the establishment of lib erty. One is the formal means for circumscribing and inhibiting the power of government. The other is the ideas and beliefs held by those who control the government regarding liberty. It is doubtful 1968 POLITICAL FOUNDATIONS OF LIBERTY 283 that extensive liberty can exist for very long without the presence of both of these elements. Belief in liberty alone may not be expected to restrain for long those who have been given the power of govern ment, for the enticement to the use of power is probably greater for most men than any general love of liberty. On the other hand, any forms of government may be turned to despotic ends when the forms are not undergirded by a desire for liberty. At any rate, ex tensive liberty in England awaited the historical junction of formal restrictions and beliefs which sup ported liberty.

Englishmen have long called those forms by which they are governed and which, it may be, have restrained those who govern, The Constitution. They have spoken of the constitution as if it had an unquestionable concrete existence. Yet, to an American, it is quite often not clear what the Englishman can be referring to. In the United States when some one refers to the Constitution, he refers to an actual document - us ually, anyway - which was drawn by men in convention in 1787 and has been added to from time to time. It has bodily existence, as it were. This is not the case, in the main, for the British constitution. True, there are some documents which are reckoned to be a part of the constitution, such as Magna Charta, or the Bill of Rights, or the Act of Supremacy. But they are only the concretizing of some aspect of the constitution at a given time. These concrete provi sions may become irrelevant or fall into disuse, may be subtly altered by changes in institutions, may be revised by later parliamen tary enactments, or may no longer be applicable; yet, the constitution remains. What, then, it is proper to ask, is the constitution?

A Shifting Balance of Power The first thing to note about it is that it is not fixed. It changes without any specific action being taken as institutions and proce dures change, and it may be changed by act of Parliament. No unusual procedure is required to change it. Succinctly stated, the constitution of England consists of all those rules, written and un written, which prescribe how things governmental are to be done. These prescriptions may have taken shape by customary usage or by royal recognition or by legislative enactment. Gener ally speaking, any practice of long standing having to do with the modes of governmental operation would most likely be reckoned a part of the constitution. In addi tion, long established rights and privileges of persons are thought 284 THE FREEMAN May to be constitutionally safeguarded. For example, freedom from ar bitrary imprisonment (the right to a writ of habeas corpus) is a part of the constitution. Yet, no unusual procedures would have to be followed to abridge this right, or any others.

Liberty in England, then, has depended not so much upon sub stantive protections of it acknowl edged in documents - though these have played some part - as upon the existence of effective counter weights to the powers of those who govern. The crucial conception for understanding how liberty has been protected in England is that of a Balance of Powers. More pre cisely, it has depended upon the counterweight of those who do not have the power to govern, at least, not at a given time. In the United States, there was a con certed effort to establish a balance of powers within the government. This has never been so to any ex tent in England, and it is a very important difference between the United States and the British constitution. The Loyal Opposition There is no balance of powers within The Government in Eng land, nor has there ever been to my knowledge. The Government in England does not have the same denotation as "the government"

in the United States does. Indeed, when Americans refer to "the gov ernment," they refer to the whole paraphernalia of government pow er, all the institutions connected with it, and all those who com prise its arms. To put it another way, Americans refer in this way to everything having to do with governance and to nothing in par ticular. When speaking formally, the British do not do this. They refer specifically to those who make governmental policy as The Government. In contemporary England, The Government is us ually comprised of a Prime Min ister and his cabinet chosen from the ranks of the majority party (though a coalition government may also exist). In earlier times, the monarch and his chief min isters would have comprised what is nowadays referred to as The Government. The Government in England, then, is the result of a concentra tion of power, not a balance of powers. The checks upon this gov ernmental power are not within it, strictly speaking (though they might be in a coalition cabinet), but outside of and in opposition to it. In short, The Government exercises all the powers of govern ment, but there may be contests for control of The Government, and those who contest may serve to limit and restrain the use of 1968 POLITICAL FOUNDATIONS OF LIBERTY 285 that power. The Government, at any moment, has the exclusive use of governmental power, but any extension or change in this power may be contingent upon the con sent of others. There may, then, be counterweights to the exercise of power; and when these have suf ficient strength and independence, it can be said with sufficient ac curacy that a balance of power ex ists which will inhibit an extension of power by The Government or even result in reducing the amount formerly available. It is this sit uation that has produced the for mal protections and safeguards to liberty in English history.

For most of the history of Eng land, the monarch has been, in ef feet, The Government, though the terminology would not have been used in this way. In consequence, most of the attempts to limit, re strain, regularize, or inhibit gov ernmental action have been efforts of various forces in opposition to the exercise of power by the king. The great and revered documents of the British constitution - Mag na Charta, Petition of Rights, Bill of Rights - are concessions and acknowledgments wrested from or imposed upon monarchs. Though the political foundations of liberty which concern us here were laid in the seventeenth and eighteenth centuries, they were built of ma terials which have a much greater antiquity. Therefore, it is appro priateto review briefly the history of some of the early constitutional struggles and the forces involved. The Norman Conquest-J066 A convenient and useful place to begin is with the Norman Con quest of England in 1066 and the ensuing years. William the Con queror was hardly the first king of England, but he was probably the first to rule a unified England with so much power concentrated in his hands. After William's con quest he attempted to set up a situation in which all force in the land was ultimately under his con trol.

No power, independent of his will, could, in theory, be exercised in the land. The great tenants-in chief, or barons, had their fiefs directly from him. All vassals, of whatever rank, owed their final al legiance to him. No castle could be built in the land unless he licensed it. The Roman Catholic church, while it might technically be independent of him, was de pendent upon his will in many respects for its operations. Wil liam was potentially as absolute as any medieval monarch, though he is not remembered for being an arbitrary king. Later kings, par ticularly Henry II (twelfth cen tury) , increased their sway by the establishment of king's courts 286 THE FREEMAN May which began to make rulings on the basis of a common law. Even so, counter forces to that of the king continued to exist or shortly came into being. One that every wise king would recognize in the Middle Ages was custom and customary law. People were profoundly conservative, as they usually are, and whatever had been done in the past. must con tinue to be observed or there would most likely be trouble. Local cus toms were early given the effect of law. Even the common law which began to be shaped in the twelfth century was mainly a law for all England abstracted from common features found in local customs and laws. The courts which dispensed such law might be the king's, but the law was that of England and served po tentially to restrain monarchs.

Moreover, the tendency was for all holdings and privileges to be come hereditary. The nobility might owe their fiefs originally to the monarch; but over the years these holdings were passed on from father to eldest son, and the new holder held his fief as if by right. Hence, the nobility began to think of themselves as having rights not dependent on the will of the king. Similarly, charters to towns and universities tended to become perpetual, and the rights and privileges derived from them to pass in perpetuity to profes sors, students,' and burgers. The Church was based at Rome, and it had weapons - excommunication and interdict - with which to check and restrain monarchs. The clergy also enjoyed certain privileges which were not conceived of as depending upon any arbitrary grant or rescission by the mon arch. In short, the classes and orders of medieval England emerged as counterweights to the powers of the king.

The Magna Charta-l2lS How this balance of powers or forces could be brought into play was dramatically demonstrated in the early years of the thirteenth century during the reign of King John. The first of these forces to meet John head-on was Pope In nocent III, the most forceful and powerful of medieval popes. Their troubles arose over the appoint ment of an archbishop to the See of Canterbury. When the Pope caused Stephen Langton to be named Archbishop, King John re fused to accept him, and these two became locked in a seven-year struggle for dominance. Innocent III excommunicated John and laid the realm of England under inter dict. "This interdict meant that all the churches were closed: no masses sung, no marriages or fu nerals conducted. Only baptism 1968 POLITICAL FOUNDATIONS OF LIBERTY 287 and confession for the dying were permitted."1 Before the threat of being deposed by the Pope and having the sentence carried out by King Philip of France, John finally capitulated. Indeed, he went so far as to declare that he was a vassal of the Pope, and that he had re ceived England as a fief from the pontiff. In general, it should be pointed out that papal powers gave the clergy some independence of royal authority.

King John was hardly out of difficulty with Innocent III before he was in deep trouble with other forces in the land. There was wide spread dissatisfaction with the ar bitrariness of John's rule. The bar ons took up the cause against the king, and they defeated John at Runnymede in 1215. They required of him that he make written acknowledgment of important rights and privileges possessed by his subjects and of restraints upon his use of power. This was done in the Magna Charta. Magna Charta not only affirmed the rights and privileges of the barons but also of the clergy, of merchants and tradesmen, of the towns, and of free men in general. One clause read, "No freeman shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed; 1 Christopher Brooke, From Alfred to Henry III (New York: W. W. Norton, 1966), p. 218. nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land."2 Magna Charta was so revered because it was the most thorough of the early documents affirming the rights and privileges of the classes in Eng land against the king. The maj or point here, however, is to show how other forces limited the power of the king.

Tlte Model Parliament-J 295 Developments for the remainder of the thirteenth century, under Henry III and Edward I, continued generally along the lines of limit ing monarchy. Magna Charta was reaffirmed on a number of occa sions. A major problem arose over how to keep a monarch to his word. Committees and commis sions, made up of barons, were tried, but with indifferent suc cess. These committees to hold the king in check were the immediate forerunners of Parliament. Parlia ment took its classic shape with the meeting of the Model Parlia ment under Edward I in 1295. It is called the "Model" because the classes which were so long to com prise it were there: the nobles, the clergy, the knights, the townsmen, and so on. In the next century 2 Engen Weber, ed., The Western Tradition (Boston: D. C. Heath, 1959), p. 196.

288 THE FREEMAN May England became even more defi nitely a limited monarchy. In addi tion to being limited by the classes who were represented or sat in Parliament, the notion spread that the king was under the law. Henry Bracton, the great jurist of the thirteenth century, said: "The king should be under God and the law."3 The traditional elements for re straining and counterbalancing the power of The Government - the king - were the classes, Parlia ment, and the common law. It must be kept in mind that in the Middle Ages these did not so much establish liberty for Englishmen in general as protect the char tered privileges and prerogatives of the various classes, themselves devoted to maintaining status and stability. Realistically, too, the classes could only provide counter weights to the power of the king so long as they were independent of him to considerable extent. By, or in, the sixtee.nth century the classes largely lost or were los ing their independence. This set the stage for Tudor absolutism and for the Stuart despotism which has been earlier examined.

In the late Middle Ages, kings be came less and less dependent upon the nobility as warriors. Feudal ism disintegrated; the nobility were decimated by the Wars of 8 Brooke, Ope cit., p. 221. the Roses (latter part of the fif teenth century); and Henry VII, the first of the Tudors, subdued the remainder of the nobility, mainly with the instrument of his Court of the Star Chamber. The clergy lost such independence as they had enjoyed with the break from the Roman church, effected in 1534. The guilds had long been declining in vitality, and manorial serfdom had been replaced by ten ant farming. The Petition 01 Right-J628 Parliament - consisting of the Lords temporal and spiritual, and the Commons - continued to be called into session and to take ac tion. But, for the Tudor monarchs it was largely an auxiliary to their absolute and, frequently, arbitrary rule. The early Stuarts (James I and Charles I) enjoyed no such pleasant relationship with Parlia ment in the first half of the seven teenth century. Parliament (and some judges, notably Sir Edward Coke) balked at simply being aids to the despotism of monarchs. The kings dropped the pretense that Parliament had any independence and tried, so far as possible, to rule without them.

But Parliament was still a po tentially organized center of re sistance: and when Charles I dem onstrated his determination to rule without that body as far as 1968 POLITICAL FOUNDATIONS OF LIBERTY 289 possible, the potentiality became an actuality. -The House of Com mons became the center of a re sistance which turned into a civil war in 1642. Failing in their ef forts to restrain the king, they overthrew him. In 1649, Charles I was beheaded, and there followed 11 years of rule without a king. Civil war turned into revolution. But, as so often happens, revolu tion resulted not in the establish ment of constitutionally protected liberty and balanced government but in military rule. The English experience without a king was not a happy one. The rule of Oliver Cromwell with the support of the army was hardly more palatable than that of the Stuarts. Shortly after Cromwell's death, monarchy was restored in 1660. The struggle to restrain and limit the monarch continued.

Indeed, the seventeenth century was the scene of a prolonged ef fort to limit the monarch and to establish other sources of power to.counterbalance his. One line of the effort was to get the monarch to concede limits to his power. The major constitutional docu ments of the century are of this character, in the main. The first of these of major importance was the Petition of Right, assented to by Charles I in 1628. By its terms, there was to be no taxation with out the consent of Parliament, no detaining or imprisonment simply because the king commanded it, nor arbitrary use of martial law.4 Another landmark on the way to preventing arbitrary action by the monarch was the Habeas Cor pus Act of 1679. It had been long established that a man being held prisoner should be shown cause be charged with violating some law - why he was held. On the other hand, individuals were some times held in prison arbitrarily by the monarch. The Habeas Cor pus Act required judges to issue the appropriate writs upon re quest, and it provided stiff penal ties should they refuse. In like manner, those who held them in prison could be penalized for re fusing to release prisoners when presented with such a writ. In short, the right to a writ of habeas corpus was firmly established.

The Sill of Rights-1689 The most famous document of the seventeenth century is, of course, the Bill of Rights. It was propounded by a convention in 1689, after James II had fled from England and before William and Mary came to the throne. In view of the circumstances, it is under stood that the acceptance of its terms was a condition of their 4 See William L. Sachse, ed., English History in the Making (Waltham, Mass.; Blaisdell, 1967), pp. 249-50.

290 THE FREEMAN May coming to power. By its terms, there was an attempt to prevent all those abuses with which they were so familiar from the recent past. A few of its provisions will indicate the general tenor of them: That the pretended power of sus pending of laws or the execution of laws by regal authority without con sent of Parliament is illegal. ... That levying money for or to the use of the crown by pretense of pre rogative without grant of Parlia ment, for longer time or in other manner than the same is or shall be granted, is illegal. ... That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law. That the subjects which are Prot estants may have arms for their de fense, suitable to their conditions and as allowed by law. That election of members of Par liament ought to be free. 5 A Time of Testing One thing seems certain: once again, constitutional monarchy had been established in England. It is commonly said, also, that Parlia ment had triumphed, that hence forth it was the dominant branch within government. Such a posi tion certainly overstates the case so far as the actual business of governance is concerned. The king 5 Ibid., p. 318.

was still, in effect, The Govern ment. As one writer says, "He still had his prerogative of making war and peace, choosing his own min isters, pardoning criminals, creat ing peers, summoning, proroguing and dissolving Parliament, and minting coin."6 Indeed, there was strong sentiment in the last years of the seventeenth century against members of the House of Com mons participating in The Gov ernment. Jarrett describes the sit uation in this way: The House of Commons viewed the Executive in very much the same way that the heroes of the tradition al school story view their masters. They saw a great gulf fixed between the authorities and themselves and despised as a careerist and a toady anybody who sought to bridge it. Like the schoolboy heroes, they con sidered that they were there to ham per the establishment, not to help it. . . . [The] Act of Settlement of 1701 . . . forced upon the King a clause providing that anyone holding an office of profit under the Crown should be ineligible for membership of the House of Commons. 7 This last provision was short lived, but it does indicate that the House of Commons distinctly did not consider itself a part of The 6 Derek Jarrett, Britain: 1688-1815 (New York: St. Martin's Press, 1965), pp. 11-12.

7 Ibid., p. 17.

1968 POLITICAL FOUNDATIONS OF LIBERTY 291 Government at the beginning of the eighteenth century. Limiting the Monarch The reality that took shape, however, did not fit neatly into the theory of government as it has commonly been held. In fact, a kind of" balance of powers existed in the eighteenth and well into the nineteenth century. The king still governed, or ruled, in theory and, largely, in practice, though the first two of the Hanoverian monarchs (George I, 1714-1727, and George II, 1727-1760) did al low much of their power to slip away. The king still chose his chief ministers, still made maj or decisions of state, could effect elec tions to the House by various de vices, could influence members of Parliament by perquisites at his disposal, and could increase the membership in the House of Lords by new appointments. On the other hand, he could not rule for long without Parliament.

He was dependent upon that body for appropriations, for the passage of laws, and for the meeting of obligations. A recalcitrant Parlia ment could bring the monarch to his knees, and that rather quickly. Moreover, the House of Commons was well on the way to establishing itself as independent in its source of power from the Crown. Its members were elected, and they owed their place to the electorate, not to the king. The point of in sisting upon freedom of elections was that the monarch might not interfere in, determine, or manip ulate elections. Freedom of speech in Parliament and freedom from arrest were also important ad j uncts to their independence. Also, judicial independence was fully es tablished in the eighteenth cen tury. "For the judges, though ap pointed by the Crown, were no longer subject to its influence in their decisions, since they could not be removed except on an ad dress from both houses of parlia ment." There was a rule that their tenure ceased when a new mon arch came to the throne unless he reappointed them, but "George III himself, at the beginning of his reign, promoted the Act abolishing this rule."s A Limited Government England had not only limited monarchy but, much more impor tant, limited government. The king was limited by Parliament and by an independent judiciary, as well as by documentary consti tutional provisions. The House of Lords was limited by the House of Commons, for the latter body alone could initiate appropriations.

8 Basil Williams, The Whig Suprem acy (London: Oxford University Press, 1939), p. 56.

292 THE FREEMAN May The House of Commons was lim ited by the electorate, by an hered itary House of Lords, and by the monarch. Each of these had some what different sources of power: the House of Commons was elected; the House of Lords inherited or attained position by royal appoint ment, the judiciary by royal ap pointment, and the monarch by heredity. More checks upon power were developed in the eighteenth cen tury. The Cabinet began to take shape. It was, in theory, the king's instrument for government, but, in practice, the king found it nec essary to appoint members of Par liament to places on it. Moreover, as Parliament gained in power, this was accompanied by an in terior division into political parties which checked its exercise. Political parties emerged in the latter part of the seventeenth cen tury, but they came into their own in the eighteenth. Close divisions in parties inhibited the exercise of power by the majority party.

Moreover, it enabled an astute monarch to cling to power' by be ing a balance wheel between them. One of the major foundations for liberty had been laid, then, by the eighteenth century: struc turally limited government. The other one is belief in and commit ment to liberty. We must now turn to the development and spread of ideas which extended re ligious liberty, freed enterprise, spurred inventiveness, and loosed the energies of the English people. ~ The next article in this series will dis cuss the "Intellectual Thrust to Liberty." Why Liberty? WHAT has made so many men, since untold ages, stake their all on liberty is its intrinsic glamour, a fascination it has in itself, apart from all "practical" considerations. For only in countries where it reigns can a man speak, live, and breathe freely, owing obedi ence to no authority save God and the laws of the land. The man who asks of freedom anything other than itself is born to be a slave.

ALEXIS DE TOCQUEVILLE, The Old Regime and the French ~evolution WILLIAM HENRY CHAMBERLIN THE PROPOSAL to make travel out side this hemisphere a crime is a tremendous step backward from the ideal of working for maximum freedom of movement for men, goods, and capital-the three free doms that made the nineteenth century, after the end of Napo leon's wars, one of the most peace ful and prosperous in human his tory. The proposed tax has about every fault a tax could have. It is inherently unj ust, because it makes a crime of something that is inherently innocent and benefi cial. It is discriminatory. It is re strictive. It is most probably unMr. Chamberlin is a skilled observer and re porter of economic and political conditions at home and abroad. In addition to writing a number of books, he has lectured widely and is a contributor to The Wall Street Journal and numerous megazines. enforceable. It is a confession that the dollar is no longer good for a very important purpose: payment of travel expenses.