English Constitutional Theory and the House of Lords, 1556-1832

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ENGLISH AND

CONSTITUTIONAL THE

HOUSE — 1832 1556

OF

THEORY LORDS

Columbia

No. 607 in Studies in the Social

Sctences

Edited by the Faculty of Political Science of Columbia University

kinglish Constitutional

Lbeory and the House of Lords 1556-18382

CORINNE

NEW

york:

LONDON:

by COMSTOCK

Columbia

WESTON

University

Press

Routledge and Kegan Paul 1965

First published 1965 by Columbia University Press Columbia University, New York and Routledge and Kegan Paul Ltd London, E.C.4

Made and printed in Great Britain by C. Tinling & Co. Ltd Liverpool, London and Prescot Copyright © Corinne Comstock Weston

1965

The Columbia Studies in the Social Sciences (formerly the Studies in History, Economics, and Public Law) is a series edited by the Faculty of Political Science of Columbia University for the purpose of making available scholarly studies produced within the Faculty.

UNIVERSITY LIBRARY Lethbridge, Alberta

Library of Congress Catalog Card Number 65-10808

IN MY

MEMORY

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OF FATHER

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CONTENTS

INTRODUCTION BEGINNINGS OF

MIXED

MIXED

page OF

THE

THEORY

2

GOVERNMENT

MONARCHY

LORDS

ENGLISH

DURING

AND

THE

THE

HOUSE

OF

PURITAN

44

REVOLUTION

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APIO Mest

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87

MONARCHY THE

INFLUENCE

MIXED

OF

AMSOD,

THE

OF

IDI WOE IR INIT ING, RAAD OTC

HOUSE

THEORY

OF

142

GOVERNMENT

THE REAPPEARANCE DEMOCRACY VI

OF

LORDS

‘UNMIXED’ LENNY

ANIEOY,

RENEWED

APPENDICES

Extracts from His Majesties Answer to the XIX. Propositions of Both Houses of Parliament II

1

A Political Catechism BIBLIOGRAPHY INDEX

vii

fe

if

INTRODUCTION

THIS IS A STUDY of the position of the House of Lords and proposals for its reform or abolition or limitation of its powers

that have been made in modern times in the light of prevailing theories of the nature and characteristics of the English government. Except for the interlude of the Puritan Revolution, in which a great variety of proposals affecting the House of Lords appeared, their number before 1832 was surprisingly limited. The thesis of this study is that a major reason why so few political reformers questioned the position of the House of Lords before 1832 was their acceptance of the prevailing constitutional theory of mixed government and the role assigned to the House of Lords in its maintenance. This classical theory of the English constitution, as it may be called, arose in Tudor England and by the end of the seventeenth century had achieved a supremacy never widely questioned until after 1832. With the passage of the Great Reform Bill, however, a new system of government, based on the recognized predominance

of the House

of Commons,

began its evolution;

and to this change constitutional theory would adjust. Thus the

theory of mixed government would end, but not before it had effectually precluded the growth of democratic criticism of the House of Lords for almost 175 years! How the classical theory could shield the House of Lords so long and so completely can best be understood by an explanation of its major tenets. According to these tenets the English government represented a combination, blending, and balancing of the three main types of government that political theorists derived from Aristotle—monarchy, aristocracy, and democracy; and to this combination English thinkers attributed the peculiar excellence of their government. Monarchy was generally defined as the 1

INTRODUCTION

rule of one; aristocracy as the rule of a few; and democracy as the rule of the many. Each of the simple, pure, or ‘unmixed’ forms possessed characteristic virtues and vices. The virtue of monarchy was said to be power; its vice, tyranny. The virtue of aristocracy was wisdom;

its vice, faction. The virtue of demo-

cracy was goodness; its vice, tumult or violence. It was their singular good fortune, Englishmen reasoned, to have established a mixed government, in which the virtues of the pure forms of government were retained while their vices were eliminated. In the English form of mixed government the king represented the monarchic element; the House of Lords, the aristocratic; and the House of Commons, the democratic. In these three branches of

government sovereignty was lodged, in the words of Sir William Blackstone, ‘as beneficially as is possible for society. For in no other shape,’ continued the Commentator, ‘could we be so certain

of finding the three great qualities of government so well and so happily united. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy; and so want two of the three principal ingredients of good polity; either virtue, wisdom, or power.” This mixed government could continue to exist because of the presence of a system of checks and balances, by which each of the three branches of the government was armed with sufficient powers to repel the encroachments of the other branches, singly or together. The three branches were considered equal and thoroughly independent of one another. Each member of the trinity of king, lords, and commons possessed an independent veto upon legislation while at the same time each possessed powers peculiar to itself. The king, for example, named ministers, summoned and dissolved parliament, created peers, etc. ; the House of Lords had the supreme judicial power; and the House of Commons possessed the powers of supply and impeach-

ment. The philosophy that underlay the system of checks and balances was well explained by Josiah Tucker, Dean of Glouces-

ter, writing in the late eighteenth century. Tucker emphasized that each branch should possess enough of the nature of its corresponding simple form of government to be able to check the 1 Blackstone, Commentaries on the Laws of England ed. William Carey Jones (San

Francisco, 1915), Book 1 (Introduction), 52.

2

INTRODUCTION

other two. He wrote: ‘As neither of the above Forms [simple forms of government] is desirable in itself, a Government com-

pounded of all three, and partaking of so much of the Nature of each, as shall make every Part be a Check and Counter-balance

to the others, (without impeding the Motion of the Whole) seems to be the best. . . .. The English possessed just such a government, Tucker added, did they but attend properly to it.2 In the mixed and balanced government the role of the House of Lords was fundamental. Throughout the eighteenth century, sometimes called the classical age of the constitution, Whigs and Tories united in their appreciation of the beautiful equilib-

rium among king, lords, and commons. For the maintenance of

this equilibrium credit was commonly given to the House of Lords, which served as the equipoise of the constitution. Because of its powers as an independent branch of the government and because of the positions and talents of individual peers the House of Lords provided the balance weight of the constitution, helping the complex machinery of government to run steadily. A modern historian of the House of Lords, A. S. Turberville,

described the influence of that House in the eighteenth century as the symbol, indeed, the essence of the maintenance of the golden mean, which, in turn, was the greatest glory of the constitution. Those who thought of the English constitution as a nicely adjusted mechanism, kept in exact position by the safety device of the aristocracy, pictured a social England composed of the palaces of the court, the mansions of the wealthy, and the cottages of the lower classes. Here again it was easy to name the mansion as the most important member of the trinity. For ever since the appearance of James Harrington’s Oceana in 1656, it had become a commonplace to say that political power went hand in hand with property ownership.*

Englishmen were so accustomed to considering the House of Lords as an integral and essential part of the machinery of 2‘A Treatise concerning Civil Government’, Josiah Tucker A Selection from His Schuyler (New York,

Economic and Political Writings ed. Robert Livingston 1931), 528.

a inS. Turberville, The House of Lords in the Eighteenth Century (Oxford, 1927), 430. Sir William Holdsworth, A History of English Law (London, 1938), XI, 276. For the social, economic,

and political influence of the peerage, with which

this study is not concerned, see the work of Turberville just cited and his posthumously published House of Lords in the Age of Reform, 1784-1837 (London,

1958).

3

INTRODUCTION

mixed government that any proposals for altering its powers or composition before 1832 must be related to the classical theory. Within this frame of reference reformers made their proposals for dealing with the House of Lords. A conservative reformer, accepting

the theory of mixed

government,

would

seek to

strengthen that House because of its important role in the workings of mixed government; a democratic reformer would first attack the theory before broaching his plan. So long as

Englishmen accepted as axiomatic and unchallengeable the perfection of their mixed and balanced government, they on the whole advocated neither a democratic reform of the House of Lords nor its abolition. To do so would violate the tenets of the classical theory and propose the ultimate destruction of the much-admired mixed government. Since only a very few reformers before 1832 were willing to take so revolutionary a step, the question of the reform or abolition of the House of Lords remained academic until the practical effects of the Reform Acts of 1832 and 1867 replaced the theory of mixed government with the democratic theory of the supremacy of the House of Commons within the traditional framework. It is proper, then, that a history of the theory of mixed government should accompany a history of proposals for dealing with the House of Lords before 1832. Taken as a theme in itself, the history of the classical theory not only illuminates the position of the House of Lords but also provides perspective for the study of democracy in the movement for parliamentary reform that began in 1769 and climaxed in the Great Reform Bill. Much has been done to establish that the leaders of this movement sought the reform of the House of Commons alone while leaving intact the powers of the king and the House of Lords. Little has been done to relate this moderation to the prevailing constitutional theory. Had the reformers been democratic in the twentieth-century meaning of that term, they would scarcely have confined themselves to proposals for democratizing further the House of Commons by such means as the extension of the suffrage, shortening the duration of parliament, etc. They would have extended their reform plans to include the House of Lords by limiting its powers, changing its hereditary basis, or recommending its abolition. Their lack of interest in curbing the powers of an hereditary aristocratic House certainly suggests 4

INTRODUCTION

that they were thinking in terms of the prevailing constitutional theory. If so, they can only be called ‘mixed’ democrats. To

them it would be perfectly logical to make the democratic branch

more democratic while keeping the aristocratic branch aristocratic and the monarchic branch monarchic. In the following pages an attempt has been made to differentiate between the ‘mixed’ democrats and the ‘unmixed’ or ‘pure’ democrats who were active in the movement for parliamentary reform. Only the latter group may appropriately be described as democrats, and they alone questioned the powers of the House of Lords before 1832.

The cardinal document in the history of the theory of mixed government in modern England and a document of the first importance in the constitutional conflicts of the seventeenth century was the Answer to the Nineteen Propositions, issued by King Charles I in June 1642, on the very eve of the first Civil War. It was drafted by moderate Royalists whom the King had recently appointed to office but was issued in his name and given wide publicity by his order. In it Charles I completely abandoned the theory of the divine right of kings, with which his name is nowadays commonly associated, and declared that

the English government was a mixture of monarchy, aristocracy, and democracy, with political power divided among king, lords, and commons. The comments on the English government, which were only a part of the lengthy Answer, formed its

distinguishing characteristic references to the Answer in strued as applying, unless paragraphs on the English

in the eyes of contemporaries; and the following pages should be conotherwise stated, to the pertinent government, which are printed in

Appendix I of this study. The discourse that they contained on

the English constitution was widely known during the Civil Wars, came later to be associated with the “Martyred King,’ and during the Restoration period was spoken of as the ‘King’s Constitution’. It has already been noted that the theory of mixed government was the accepted theory of the constitution in the eighteenth century and down to about the middle of the nineteenth. The Nineteen Propositions, in which the Long Parliament presented its ultimatum to the King, is a very well-known document and is usually discussed by the historians of Stuart 5

INTRODUCTION

England. By contrast the Answer to the Nineteen Propositions has been strangely neglected. Attention was called to its great historical

importance

and

influence

in

two

recent

Anvil

Originals,* but until the appearance of this study there has

been no extensive historical account of the Answer in print. It received either no attention at all or very little from Samuel Rawson Gardiner and Sir Charles Firth and Godfrey Davies in their generally comprehensive accounts of the political and constitutional history of the years from 1603 to 1660. Neither

Miss C. V. Wedgwood in The King’s War, 1641-1647, which is the second volume of a series planned under the general title

of The Great Rebellion, nor George Macaulay Trevelyan in his standard England under the Stuarts shows awareness of the significance of the Answer. The comments of Charles I on the English government were as influential in the reign of Charles II and afterward as they had been earlier, but these are not discussed by Macaulay nor by Sir George Clark or David Ogg, who have written more recently of England under the later Stuarts. A natural query rising at this point is why the Answer to the Nineteen Propositions has been so neglected. A primary reason,

certainly, is the treatment that it received from the Earl of

Clarendon in his great History of the Rebellion, which is considered the most valuable of the contemporary accounts of the Civil Wars. He discussed the Answer to the Nineteen Propositions but omitted the royal comments on the English government, saying that this part could be read at large by itself. As the Whig Roger Acherley wrote in the early eighteenth century: ‘It may be wondered, why the Noble Historian took no Notice of so Bright a Part of that Answer.’® It will be shown later that Clarendon approved only with marked reluctance the publication of the Answer to the Nineteen Propositions because he agreed with Royalists like Sir Philip Warwick that some aspects

of it ‘rather wounded the regality, than convinc’d the refractory’.® 4 Robert Livingston Schuyler and Corinne Comstock

Weston,

British Constitu-

tional History since 1882 (Princeton, New Jersey, 1957), Chapter 1; Cardinal Documents in British History (Princeton, New Jersey, 1961), 78 ff. The royal Fras eal on the English government are printed in both books but more fully in the first. ° The Britannic Constitution (London, second edition, 1741 ), 497.

* Memoires of the Reigne of King Charles I (London, 1702), 197 f.

6

INTRODUCTION

Another reason is that the Tory historian David Hume failed

to print the Answer though he was familiar with it and recognized that the constitutional theory in it closely paralleled that of

his own day. Hume’s extremely influential History of England, which was published in the years 1754-61, dominated the field until it was superseded in the late nineteenth century. Before its appearance the standard history of England was the Whig Paul de Rapin-Thoyras’ History of England (1725-31), which contained the full text of the Answer to the Nineteen Propositions. Since the Whig historian, who had sailed with Prince William of Orange in 1688, traced mixed government in England to the Anglo-Saxons, he manifested no surprise at the tenor of Charles I’s remarks. Hume, on the other hand, laid down as a proposition basic to his Hzstory that no king and no

subject before 1642 would have pictured the English government as mixed and tempered in the manner of Charles I in the Answer to the Nineteen Propositions; and he relegated his comment on the Answer to a footnote.? Hume’s footnote, to

which Robert Livingston Schuyler called my attention, was the genesis of this book on the relationship between prevailing constitutional theory and the position of the House of Lords. In it major emphasis has been placed upon the historical importance of the Answer to the Nineteen Propositions. In a broader sense, this book is the outgrowth of my doctoral dissertation “The House of Lords, Mixed Government, and Democracy, 1556-1832’, which was completed in 1951 under the direction of Robert Livingston Schuyler. Its scope and depth were due in large measure to his skillful and painstaking direc-

tion, and in carrying my research further I have benefitted on numerous occasions from his advice and encouragement. The book has a number of changes. Besides shortening the study, I have incorporated new materials, notably in the first three chapters; and I have given much more attention to the history of

the theory of mixed government as it was influenced by the Answer to the Nineteen Propositions. Research for this book was facilitated by a grant-in-aid from the American Council of Learned Societies, whose generosity I

very much appreciate. It enabled me to investigate more fully

7 The History of England: from the Invasion of Julius Caesar to the Revolution in 1688 (London, 1822), VI, 419 (footnote).

fi

INTRODUCTION

the pamphlet literature excited by the impeachment of the Earl

of Danby and the Exclusion Crisis (1679-81) and also by the Glorious Revolution so as to learn the extent to which English politicians made use of the Answer to the Nineteen Propositions in their political theory and in their successful attempt to limit the power of the Stuarts. My conclusion, for which the evidence is given in Chapter III, is that Charles I must be placed side-byside with John Locke in any account of the theory of the constitu-

tion that underlay the Glorious Revolution. In the first two chapters I have made use of materials from two articles of mine. One of them, entitled ‘Beginnings of the Clas-

sical Theory of the English Constitution’, was published in the Proceedings of the American Philosophical Society, Vol. 100, No. 2, April 1956, pp. 133 ff.; the other, entitled “The Theory of Mixed Monarchy under Charles I and After’, in the English Historical Review, Vol. LXXV, No. 296, July, 1960, pp. 426 ff.

For permission to do so Iam grateful to the American Philosophical Society and to the editor and publishers, Messrs. Longmans, Green and Co., Ltd., of the English Historical Review.

Since writing the second of these articles I am more aware than earlier of the distinction made in the seventeenth century between the terms ‘mixed monarchy’ and ‘mixed government’;

and this time I have distinguished more exactly between them.

BEGINNINGS OF THE ENGLISH THEORY OF MIXED GOVERNMENT

AS EARLY AS THERE WAS theorizing about the nature of the English government, it was suggested that it was a mixed government. The most notable early expression of this view appeared in the writings of Sir John Fortescue, Chief Justice of

the Court of King’s Bench in the reign of Henry VI and one of the first legal writers in England to deal systematically with the nature of the English constitution. Standing as it were on the thin line separating medieval from modern times, Fortescue may perhaps be taken as representative of constitutional thought in fifteenth-century England. As is well-known, he distinguished sharply between what he called dominium regale, the type of government found in France, and dominium politicum et regale, a

form of mixed government existing in England. Dominium regale has been translated as absolute monarchy, and dominium politicum et regale as limited monarchy, though these terms are possibly too modern for the thought of a medieval lawyer who considered that both types of monarchy had originated under

natural law. Regardless of how Fortescue viewed the French monarch, he saw the English king as a limited monarch who could neither make laws nor levy taxes without the assent of his subjects. The constitutional treatises in which he distinguished 1 Sir John Fortescue De Laudibus Legum Anglie, ed. and trans. S. B. Chrimes (Cambridge, 1942), Chap. xiii. The Governance of England ed. Charles Plummer (Oxford,

1885), 82 ff., Chaps. i-iii. Chrimes,

Fifteenth Century (Cambridge, 1936), 309 ff. B

9

English Constitutional Ideas in the

BEGINNINGS

OF

THE

ENGLISH

THEORY

between the two types of government, though they exerted little influence in his day, shaped Tudor political thought and made him in the seventeenth century a recognized authority on constitutional law.? Fortescue has a place in the evolution of the theory of mixed government because he made Englishmen familiar with the concept of mixture in their government. Since, however, the form in which the theory flourished in England owed less to him than to the writings of Aristotle and Polybius, the theory may appropriately be called the classical theory of the English constitution. According to its tenets government by king, lords, and commons represented a combination and blending of the simple forms of government—monarchy, aristocracy, and democracy ; and to this ¢riple mixture political thinkers attributed what they regarded as the peculiar virtues of the English system. Writing under the influence of the Renaissance, Tudor publicists may have borrowed from Aristotle’s Polztics a system of classifying governments and from the Histories of Polybius the

general form that the theory of mixed government

took in

modern England. Aristotle classified governments according to the numbers of those in whom the ruling power was placed and in terms of whether the ruler or rulers acted for their own or the public interest. In a pure state the ruler or rulers acted for the public benefit; in a corrupt state for his or their own. The three pure forms of government were monarchy (the rule of one), aristocracy (the rule of a few), and polity (the rule of the many). Their corresponding corrupt forms were tyranny, oligarchy, and democracy. A similar classification appeared in the Histories although democracy was used to denominate the rule of

the many in the public interest while the name ochlocracy or mob-rule was used for its impure form.

The theory of mixed government expressed in the Histories strikingly resembled the classical theory that became current in

modern England. In his famous sixth book Polybius discoursed on the workings of the Roman constitution, to which he attributed the unparalleled triumph of Rome over the Mediterranean 2 Caroline Skeel, ‘The influence of the Writings of Sir John Fortescue’, Transac-

tions of the Royal Historical Society, third series, X (1916), 82 f., 91-102. See also Franklin Le Van Baumer, The Early Tudor Theory of Kingship (New Haven, 1940), passim.

10

OF

MIXED

GOVERNMENT

world. Convinced that the most permanent of practical constitutions combined a mixture of monarchy, aristocracy, and democ-

racy with a check and balance system, he found his most important examples in the constitutions of Sparta and Rome, particularly the latter. Unhappily monarchy if left unchecked degenerated into tyranny; aristocracy, into oligarchy; democracy, into mob-rule. To avert their tendencies towards instability the simple forms of government, Polybius pointed out, should be combined as in the Roman republic of consuls, senate,

and assemblies, where the principles of the simple forms were so expertly blended that even those living under this constitution scarcely knew what to call the whole. This Roman constitution, based upon a system of checks and balances, had inherent

strength for correcting all abuses. If one part attempted to encroach upon another, their mutual interdependence was such that ‘the possibility of the pretensions of any one being checked and thwarted by the others, must plainly check this tendency; and so the proper equilibrium is maintained by the impulsiveness of the one part being checked by its fear of the other’.® There was no need for sixteenth-century Englishmen to turn

to the writings of antiquity to become familiar with the theory of mixed government. Expressions of admiration for the theory appeared in the Middle Ages and permeated the literature of the

Renaissance and Reformation. The Histories of Polybius may have acted as a bridge by which the theory passed from the Greeks to the Romans, among whom Cicero was the chief interpreter. 4 Possibly Thomas Aquinas expressed a preference for the mixed form of government in his Summa Theologiae, though this has been questioned; and unmistakably the theory played a prominent part in the Conciliar Movement of the late fourteenth

and early fifteenth centuries. Acute thinkers such as Jean Gerson, Chancellor of the University of Paris, Cardinal Pierre D’Ailly, and Nicholas of Cusa applied it to the church system of govern3 The Histories of Polybius, ed. and trans. Evelyn Shuckburgh (London, 1889), I, 467-74. The accuracy of the analysis of the Roman constitution made by Polybius has been analyzed by Kurt Von Fritz, The Theory of the Mixed Constitution in

Antiquity (New York, 1954), Chap. viil. 4. Barker, The Political Thought of Plato and Aristotle (New York, 1906), 4.83 f. For discussion of the theory of mixed government in antiquity, see, in addition to Von Fritz, Francis D. Wormuth, The Origins of Modern Constitutionalism (New York, 1949) and Zera Fink, The Classical Republicans (Evanston, 1945).

1]

BEGINNINGS

OF

THE

ENGLISH

THEORY

ment by equating the papacy with the monarchic element, the college of cardinals with the aristocratic, and the council with the democratic.*® References to the theory were rife in the literature of the Renaissance and Reformation. In his Education of a Christian Prince (1516) Erasmus described the best form of monarchy as a ‘limited monarchy checked and lessened by aristocracy and democracy’. The book was soon in the possession of the cultivated humanist John Colet, and a copy went to Henry VIII.° Sometime between 1533 and 1536, the King’s chaplain, Thomas Starkey, presented Henry VIII with a copy of the former’s Dialogue between Reginald Pole and Thomas Lupset, in which the humanist suggested firmly that laws and reason, rather than a prince’s will, should govern a state. For this purpose wise men

thought the ‘mixed state to be of all other the best and most convenient to conserve the whole out of tyranny’.? On the continent Machiavelli’s Discourses circulated, in which

his central contention was the superiority of mixed government. For his political theory he borrowed heavily from Polybius, whose views on the Roman constitution were diffused in Italy during the fifteenth century. Other Italian writers adopted the

same reasoning, and such well-known figures as the Italian historian Guicciardini and Cardinal Contarini sang a chorus of praise for the mixed constitution of Venice.’ In the Protestant camp John Calvin’s preference for either an aristocracy or a government mixed of democracy and aristocracy must have

reached an ever-widening audience through his Institutes of the Christian Religion (1536).° Even in France there appeared writers who professed to find the elements of monarchy, aristoc-

racy, and democracy in the French dominium regale. The most extreme statement was in Francis Hotman’s Franco-Gallia, but °C. H. Mcllwain, The Growth of Political Thought in the West (New York, 1932), 331-2 (footnote). J. N. Figgis, Studies of Political Thought from Gerson to Grotius (Cambridge,

1931), 44, 4:7.

* Lester K. Born, ‘Erasmus on Political Ethics: The Institutio Principis Christian’, Political Science Quarterly, XLII (1928), 528. 7A Dialogue Between Reginald Pole and Thomas Lupset, ed. Kathleen Burton (London,

1948), 1, 57, 165.

* Fink, op. cit., 28 ff. H. A. L. Fisher, The Republican Tradition in Europe (New York, 1911), 29, 37 f. ° Institutes of the Christian Religion, trans. John Allen (Philadelphia, 1936), IT, 778.

12

OF

MIXED

GOVERNMENT

even in the more conservative Grand Monarchie (1519) of Claude de Seyssel its influential author asserted that the French

kingdom partook of the three simple forms of government.!°

It is not surprising, then, to find in late sixteenth-century

England a growing tradition that the English dominium politicum et regale was a mixture of monarchy, aristocracy, and democracy. Those who thus described the English government included such varied personalities as the onetime Bishop of Rochester and later Bishop of Winchester, John Ponet; the Tudor statesman and scholar, Sir Thomas Smith; the later Bishop of London, John Aylmer; the prominent leader of the Elizabethan Presbyterians, Thomas Cartwright; and the Jesuit controversialist,

Robert Parsons. Certain generalizations can be made about this

group. Of these five men who were agreed on the mixed nature of the English government, only Smith was not prominent in ecclesiastical affairs, although he was a priest. Their religious ideas often affected their politics, noticeably in the cases of Ponet,

Cartwright, and Parsons. Secondly, they were all scholars; and they were writing under the influence of the new humanism, of which Cambridge was an important center. Moreover, they had spent some time on the continent, where, if they were not al-

ready acquainted with the notions of mixed government, they might easily have acquired familiarity. These generalizations require some elaboration. J. N. Figgis, an original thinker in political and constitutional matters, once remarked that ‘when all reservations have been made, there can be little doubt that it is right to treat the growth

of political ideas, during the fifteenth and sixteenth centuries, as a branch of ecclesiastical history’.11 While he had in mind the

Conciliar Movement, which had given the theory of mixed government a renewed prominence, his comment was equally applicable to the political ideas of such ecclesiastics as John Ponet,

Thomas

Cartwright,

and

Robert

Parsons.

All three

resorted to the theory of mixed government as a logical counterpart to their religious views. When

he published his Shorte

Treatise of politike power (1556), Ponet belonged to that group 10 Willaim Farr Church, Constitutional Thought in Sixteenth-Century France (Cambridge, Mass., 1941), 40, 71, 121 f. Although Seyssel meant his statement to

reflect the facts of the administrative organization, his use of the theory indicates its prevalence. 11 Figgis, op. cit., 28.

13

BEGINNINGS

OF

THE

ENGLISH

THEORY

of Protestants who had taken refuge on the continent after the extreme Catholicism of Mary Tudor replaced the strong Protestantism of the previous reign. Also at odds with the ruling powers was Thomas Cartwright, whose efforts to substitute his Presbyterianism for the Elizabethan Settlement struck directly at the root of the Royal Supremacy. And Robert Parsons wrote his Conference about the next Succession to the Crown of England

(1594) to defend a Catholic claim to the throne of England in bold defiance of the wishes of Elizabeth and the claims of the Protestant James VI of Scotland. No doubt expediency had contributed to their adoption of the theory of mixed government. As a whole they were imbued with classical ideas. With the exception of Parsons, who had taken his M.A. in Oxford before becoming a Jesuit, they had studied in Cambridge while the influence of Erasmus was still potent within its walls. The great humanist had held the Lady Margaret Professorship of Divinity in Queen’s College, where Smith, Ponet, and Aylmer were to

s.udy in the early 1530s; and Cartwright after 1569 occupied the chair of the Lady Margaret Professorship. Ponet, Smith, Aylmer,

and Cartwright were noted ‘Grecians’. Smith, and possibly Ponet, gave a series of lectures in Cambridge on Aristotle’s Politics, and Ponet is known to have given a series of lectures in

Greek. In their writings Smith, Aylmer, and Parsons explicitly acknowledged borrowings from Aristotle. Cartwright’s PuritanPresbyterian polity may have owed much to the Greek philosopher. Smith was versed in Roman history, while Aylmer had read Polybius. Then, too, they had all spent time on the continent. Besides earlier travels abroad Smith spent five years in France where he may have met Hotman. Both Ponet and Aylmer found asylum in Strasbourg. After the loss of his chair in Cambridge Cartwright appears to have lectured in Geneva University, and Parsons was

on the continent much more

in his

later years than in England.12

Thus the theory of mixed government could have entered 12 James Bass Mullinger, The University of Cambridge from the Royal Injunctions of 1535 to the Accession of Charles I (Cambridge, 1884), II, 45 f. 52-56, 294. A. F. Scott Pearson, Church and State: Political Aspects of Sixteenth-Century Puritanism (Cambridge, 1928), Chap. vi. See also John Strype, Life of the learned Sir Thomas Smith (Oxford, 1820), 164 and Historical Collections of the Life. . . of John Aylmer (Oxford,

1821), 146, 158, 161.

14

OF

MIXED

GOVERNMENT

Tudor England through a variety of channels: by means of direct contact of Englishmen with continental ideas, the literature of the Renaissance and Reformation, interest in Greek and

Roman letters, or even the controversial literature excited by the Conciliar Movement. Undoubtedly its entrance was facilitated by the firm conviction of Englishmen that they lived under a limited monarchy, a dominium politicum et regale as Fortescue had termed it. In retrospect nothing seems more natural than the further step by which English humanists professed to discern in the relationship between the monarch and the two houses of parliament the mixture of monarchy, aristocracy, and democracy so widely acclaimed by the philosophers of antiquity.

One of the first Englishmen to refer publicly to the mixed nature of the English government was the Marian exile John Ponet, who wrote his Shorte Treatise of politike power (1556) to justify the deposition and even the killing of a Catholic ruler like Mary Tudor who tried to impose a false religion. In the course of his argument he disclosed his views on the nature of the English government. His classification of governments resembled Aristotle’s. Where one ruled, a monarchy existed; where many of the best, an aristocracy; and where the multitude, a democracy. The English government was a mixture of the three. Where all three were together—that is, a king, the nobility, and commons—there was a ‘mixte state which men by long continuance have judged to be the best sort of all’. Ponet was less interested in this mixture itself than in drawing a sharp distinction between absolute monarchy and a limited monarchy in what he called a mixed

state. There were

two kinds of rulers, he

decided: the tyrant to whom the people had surrendered their authority to make positive law and the ruler in a mixed state in which the people had retained this authority for themselves. England fitted the last description, for there people participated in law-making in that they had a parliament in which all sorts of

people assembled and nothing could be done without the knowledge and consent of all."* 13 4 Shorte Treatise ofpolitike power, and of the true Obedience which subjectes owe to kynges and other civile Governours (1556) was reprinted in Winthrop Hudson, John Ponet (1516?-1556): Advocate of Limited Monarchy (Chicago, 1942). See Shorte Treatise, 9, 12, 25 f.

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Except for the doctrine of tyrannicide there was little to differentiate Ponet’s ideas from those which Sir Thomas Smith expressed in his De Republica Anglorum (A Discourse on the Commonwealth

of England),

written sometime

after 1562 and

published posthumously in 1583. Ponet was Smith’s pupil in

their Cambridge days, and both were among the first to set forth the mixed nature of the English government. Smith acknowledged his debt both to Plato and Aristotle, the latter of whom had ‘most absolutely and methodically treated of the division and natures of common wealthes’. After classifying governments in the manner of Aristotle, he explained ever did a pure form of government exist despite to this effect when the predominant element gave whole. He wrote: ‘Seldome or never shall you wealthes or government which is absolutely and

that seldom if the appearance its name to the finde common sincerely made

of any of them above named, but always mixed with an other,

and hath the name of that which is more and overruleth the other alwayes or for the most part.’ Since he saw parliament as consisting of king, lords, and commons and possessing the supreme power in the state, it may be inferred that Smith considered the English government a mixed monarchy.!4 His little book had wide circulation. Copies may have been taken from the manuscript, and by 1640 it had gone through eleven editions. It has been said that Smith was the most important exponent of mixed government in Elizabethan England.!® Perhaps this was so from the point of view of the great popularity of his treatise and his own varied experiences as ambassador, privy councillor, and secretary of state under Edward VI and Elizabeth. Yet his statement lacked the explicitness and breadth of John Aylmer’s description that appeared in 1559 in his Harborowe

for Faithfull and Trewe Sulbjectes, published anonymously Strasbourg on the eve of the return of the Marian exiles.

in

Aylmer wrote to appease Elizabeth, who, the exiles feared,

might have taken offense at John Knox’s diatribe against government by women in his First Blast of the Trumpet against the monstrous Regiment of Women. Knox had directed his remarks at 14 De Republica Anglorum, ed. L. Alston (Cambridge,

1906), Bk. I., Chaps. i,

iil, vi, vill, ix; Bk. II, Chap. i.

16 J. W. Allen, 4 History of Political Thought in the Sixteenth Century (London,

1941), 263.

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Mary Tudor, but they were obviously applicable to the new Queen. Aylmer found that government by women was less dangerous in England than elsewhere for an excellent reason. The English government

was

mixed, so Elizabeth was not a

‘mere monark’ but a ‘mixte ruler’. Aylmer admitted that he himself would fear the rule of women more and defend Eliza-

beth’s cause less if the Queen could judge offenses by her own wisdom and without the limitations of laws and statutes and if she could decide by herself for war or peace. In parliament could be seen the mixture. His words were explicit: ‘The thinge in

dede, is to be sene in the parliament hous, wherein you shal find these 3 estats. The King or Quene, which representeth the Monarche.

The noblemen, which be the Aristocratie. And the

Burgesses and Knights the Democratie.’ He praised the constitution of ancient Sparta and compared it with the English. Just as in that city state where the union of the three—the kings, the senate, and the ephori—was necessary for making or breaking

laws, for deciding war or peace, or indeed, for doing anything; so in England if the houses of parliament would use their privileges the king could ‘ordein nothing without them’. It would be his usurpation and their folly if the king acted without them.1® And Aylmer applauded those who, he said, in the reign of Henry VIII would not grant to the King that his proclamations should have the force of statutes. Those who had thus opposed the King

were good fathers to their country and worthy of commendation.27

In Smith Ponet most

some ways Aylmer went further than either Ponet or in his description of English mixed government. Where had been content with the brief comment that the best and lasting state was the mixed state and where Smith had

emphasized that seldom or never, despite appearance trary, was a simple state to be found, Aylmer had parliament and stated specifically that there was the monarchy, aristocracy, and democracy. That Smith the mixture to be in parliament was evident from his

to the conpointed to

mixture of considered description

16 4n Harborowe for Faithfull and Trewe Subjectes, agaynst the late blowne Blaste, concerning the Government of Women (Strasbourg, 1559), 26-28. Aylmer stated

that his classification of governments was taken from Aristotle’s Ethics, although he was familiar with the Politics, and from the Pythagorean philosopher Archytas. 17 On this point Aylmer was mistaken. Such a statute had been passed in the reign of Henry VIII.

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of its powers and its component elements.!® But where he had been implicit, Aylmer was explicit. And the latter had gone beyond the usual ancient limitations on the monarch’s authority in his claim that matters of war and peace lay within the province of parliament, a claim not seriously urged in parliament until 1621 and then strongly repudiated by James I. Either Aylmer’s claims for parliament or his caustic comments at this time on the rich livings of bishops proved unpalatable to Elizabeth, for after the appearance of his Harborowe he wrote no more. When he became Bishop of London in 1577, Aylmer abandoned his earlier strong Puritanism and moved vigorously to repress both Catholic and Puritan criticism of the Elizabethan church settlement. In the High Commission he often outpaced Elizabeth herself, notably in the case of the Puritan-Presbyterian leader Thomas Cartwright, whom he summarily consigned to prison. For her own reasons the Queen released Cartwright, disavowed the whole proceedings, and showed toward Aylmer her marked displeasure. Thus insecure in royal favor, the Bishop of London and his Harborowe (published nearly thirty years before) were singled out as major targets by the radical Puritan press, represented by the Marprelate Tracts of 1588-9. Their author

found much of his ammunition against both the bishops and the Queen in Aylmer’s own declamation against the splendor of that order and in his strong claims for parliament. ‘I see a bishopric hath cooled your courage,’ the pseudonymous Martin Marprelate taunted the Bishop of London, ‘for in those days that you wrote this book, you would have our Parliament to overrule her

Majesty, and not to yield an inch unto her of their privileges.’!9 Whether Aylmer had actually become more conservative or not, the doctrine of mixed government,

formulated

by the Marian

exiles on the continent, had by this time passed to a new generation of Protestants, who may be called the Puritan-Presbyterians.

Their leader was Aylmer’s intended victim, Thomas wright, whom

Cart-

the historian John Strype described as the head

and most learned of the Puritans. In the spring of 1570 Cartwright, as the newly appointed Lady Margaret Professor of Divinity in Cambridge, delivered a series of lectures on the Book 18 De Republica Anglorum, Bk. 11, Chap. i. 1° The Marprelate Tracts of 1588-89, ed. William Pierce (London, 1911), 150.

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of Acts, in which he discussed the constitution and hierarchy of the English church and at the same time outlined the essential features of a new Presbyterian system modelled on Calvin’s church in Geneva. By December he had lost his chair, chiefly through the efforts of John Whitgift, the foremost antagonist to the rising tide of Puritanism

within the University;

and soon

afterward Cartwright departed for Geneva. He returned to England in 1572, the year in which two Admonitions were addressed to Parliament urging the adoption of the Presbyterian system. In the ensuing Admonitions Controversy Whitgift emerged as the defender of the Elizabethan church settlement while Cartwright argued for the introduction of Presbyterian-

ism. Whitgift, at the time Vice-Chancellor of Cambridge and after 1583 Archbishop of Canterbury, attributed the second of the Admonitions to Cartwright and prepared a reply that opened a five-year literary duel with the Presbyterian leader. By April 1573, Cartwright’s A Replye to an Answere made of M Doctor Whitgifte Agaynste the Admonition to the Parliament by T. C. was in print; and once more Elizabethan England was to be reminded

of the classical mixture in the English government. Despite a royal proclamation a new edition appeared in June. The popularity of the book was attested by a comment of Edwin Sandys, Archbishop of York and Aylmer’s predecessor in the London see, who reported to Lord Burghley in April 1573: ‘I could never come by that boke although it is Current amongst many. ’?° This first Replye to Whitgift contained Cartwright’s account of the English government, which differed in some details from Ponet’s and Aylmer’s. The keystone to his position in religion and government was the ‘two-kingdom theory’, in which church

and state were seen as self-sufficient but related societies. Viewing the church as superior to the state, the Presbyterian leader

urged that the state should adjust to the form of government in the church but fortunately for his party’s claim to conservatism professed to find a harmony between the Presbyterian polity, as outlined in the Scriptures, and the English government of his own day. Both were mixed governments. In the Presbyterian church, God was the monarch

(thus Queen Elizabeth, as civil

20 Pearson, Thomas Cartwright and Elizabethan Puritanism (Cambridge, 1925), 86.

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magistrate, was shut out); the elders and the ministers formed the aristocracy; and the assent of the laity provided democracy. Hence in the Presbyterian polity, so Cartwright’s argument ran, there existed the kind of government which the philosophers affirmed to be the best. A similar mixture was to be found in the English government. In respect of the Queen, he wrote, ‘it is a monarchy, so, in respect of the most honourable council, it is an

aristocraty, and, having regard to the parliament, which is assembled of all estates, it is a democraty’.2! Whereas Ponet and Aylmer had found the mixture in the king, the lords, and the

commons,

he had designated the king, the council, and the

parliament. This passage on mixed government had repercussions. Whit-

gift would admit that the simple forms of government could be mixed in a variety of ways, but he emphasized that the form of a government was determined by its predominant element. While agreeing with Cartwright on the representation of all the estates in parliament, he preferred to describe England as a monarchy

because the judgment, confirmation, and determination rested in the prince.?? The author of one of the Marprelate Tracts, acting

as a champion for Cartwright, picked up his passage on mixed government, refined its terminology, and passed it on to a wider Elizabethan audience. He made the same comparison of the Presbyterian polity with the existing English government but in his description of the mixture departed somewhat from his

master. The mixed government of the Presbyterian church was reflected in the civil government of England, for it was ‘monarchical in her Majesty’s person; aristocratical in the higher House

of Parliament,

or rather

at the Council

table; demo-

cratical in the body of the Commons of the lower House of Parliament’. 2% With the seizure of the secret press of Martin Marprelate and

his associates the vigorous activity of the Puritan-Presbyterians declined. Yet the notion that the Presbyterian church possessed *1 The Works of John Whitgift, D.D., ed. John Ayre (Parker Society, 1851), I, 390. This volume contains both Cartwright’s 4 Replye to an Answere made of M. Doctor Whitgifte Agaynste the Admonition to the Parliament (1573) and Whitgift’s The Defence of the Answer to the Admonition, against the Reply of T. C. (1574). See also Pearson, Church and State, 10-18, 142 ff.

22 Works of Whitgift, 1, 398. 23 The Marprelate Tracts, 252 f.

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a mixed government, though the classical theory was not necessarily applied at the same time to the English government, lingered long within the ranks of Puritanism. It appeared in the very influential Eccleszasticae Disciplinae . . . Explicatio (1574), written by Walter Travers, who was second only to Cartwright within the ranks of Puritan-Presbyterianism; and the idea apparently passed through the writings of the Separatist John Robinson into Puritan Massachusetts, where men never tired of

reiterating that in the visible church there existed a mixture of aristocracy and democracy.*‘ It is very likely that this idea persisted within the ranks of English Puritanism, whether Presbyterian or Independent.?°

Like the Marian exiles and the Puritan-Presbyterians, the Jesuits in late Tudor England found in the theory of mixed government an expedient and formidable intellectual weapon against a sovereign whose religious views ran counter to their own. The Jesuit Robert Parsons made good use of it in his Con-

ference about the Next Succession to the Crown of England, published under the name of R. Doleman in 1594, to establish the

right of the commonwealth to depose a ruler who failed to keep his promises to rule according to law, conscience, and religion and also to bar from the throne the heir-apparent if he professed a

false religion. This tract, placed under a ban by the Elizabethan government, urged the claims of the Infanta Isabella of Spain, the daughter of Philip II, to the English throne. Parsons praised as the best form of government a monarchy in which the prince was limited by law and the advice of ‘certain counsels and counsellors’, a phrase apparently referring to parlia-

ments and members of privy councils, both of which he noted as being widespread in western Europe. A monarchy so tempered was less in danger of sliding into tyranny, the omnipresent

danger discussed by Aristotle. Concluding that few Christian monarchies were unmixed, Parsons pointed to the mixture in the

English government. ‘In that there is one King or Queen,’ he wrote, ‘it is a Monarchy; in that it hath certain Counsels that 24 4 Full and Plaine Declaration of Ecclesiastical Discipline (n.p., 1574), 177 f. The Works of John Robinson, ed. Robert Ashton (London,

1851), II, 140.

25 See the letter written in 1640 by the Puritan-Independent Lord Saye and Sele in England to John Winthrop, in which that nobleman expressed a preference for mixed and balanced government. Life and Letters of John Winthrop, ed. Robert Winthrop (Boston, 1867), II, 426 (Appendix VIII). See also 248 f.

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must be heard, it participateth of Aristocratia; and in that the

Commonalty have their Voices and Burgesses in Parliament, it taketh part also of Democratia, or popular Government.’?° Whether the Jesuit referred in the phrase ‘Counsels that must be heard’ to the House of Lords, its members being traditionally regarded as the hereditary counsellors of the king, or to the privy council, which prevented a monarchy from slipping into tyranny, he had made one more contribution to the prevalence of the theory of mixed government in the gathering dusk of Tudor England. Some writers replying to Parsons touched upon the classical theory. The historian John Hayward, writing to regain court favor, scornfully rejected the dictum that few pure monarchies existed though his comments revealed familiarity with the analysis made by Polybius of the Roman constitution.?? On the other

hand,

the distinguished

Scottish

lawyer,

Sir Thomas

Craig, who vigorously upheld the claims of James VI to the English throne, agreed that the English monarchy was tempered with aristocracy and democracy and that taxes could be imposed only with public consent.?8 As a whole the Conference met with

little favor among English Catholics, many of whom were both anti-Spanish and anti-Jesuit. Part I of the Conference was republished in 1648; other parts were published in 1655; and the whole book was reprinted in 1681 by supporters of the Exclusion Bill to bar the Roman Catholic James Duke of York from the throne of

England. Since there was probably much unrecorded talk about mixed government in this period, it could be fairly argued that the literate Elizabethan was acquainted with the idea of a classical mixture in the English government. Ponet’s and Aylmer’s tracts in the late 1550s had been followed by Smith’s treatise, in which

that eminent statesman emphasized how few governments were pure. In the 1570s Cartwright carried on a lengthy argument with Whitgift that brought into the limelight the nature of the English government. In the next decade the merry, malicious contents of the Marprelate Tracts, disowned by moderate Puri28 A Conference (n.p., 1681), 16-19. *7 An Answer to the First Part of a Certaine Conference, Concerning Succession

(London,

1603), 35.

%® The Right of Succession to the Kingdom of England (London, 1703), 162.

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tans but read by all classes of the community, not only renewed the Cartwright—-Whitgift feud and refined the Presbyterian leader’s terminology of mixed government, but also gave a new notoriety to Aylmer’s little book. Finally, as the century was closing, the Jesuit Robert Parsons utilized the prevalent notion of mixed government to justify a community in deposing its

ruler and naming his successor ;he was answered by the historian John Hayward and the notable lawyer, Sir Thomas Craig. Meanwhile, the theory of mixed government, as applied to the Presbyterian polity, lay dormant within the ranks of Puritanism, to be applied in the seventeenth century once more to the

English government. Since the classical theory of the constitution was used repeatedly during the reign of Queen Elizabeth, one would reasonably expect to find that it was frequently invoked in explicit language in the quarrels between James I and his parliaments and during the personal rule of Charles I. In fact, however, it appears to have been rarely used. According to R. W. K. Hinton, the claims made on behalf of the House of Commons in this period were not based on the theory of mixed government nor was the idea employed in response to the provocative speeches of James I or the long intermission of parliament under Charles I. Yet Dr. Hinton also noticed that after the outbreak of the first Civil War Royalist and Parliamentarian alike asserted that law-making belonged jointly to king, lords, and commons,

a point of view

that he associated with the idea of mixed government.?® This marked alteration in public opinion was due largely to the circumstance that on June 21st, 1642, almost exactly two months

before war began, Charles I publicly associated the theory of mixed government with the English constitution and thus gave the classical theory a vogue that it could have acquired so rapidly in no other way. The remarks of Charles I on the mixed nature of the English government were contained in his Answer to the Nineteen Propositions, the cardinal document in the history of the classical theory of the English constitution and a pronouncement that proved to be one of the most influential ever made on the nature 29 ‘The Decline of Parliamentary Government under Elizabeth I and the Early Stuarts’, Cambridge Historical Journal, XIII (1957), 122.

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of the English government.®® The Nineteen Propositions to which the King addressed himself had been sent to him early in June by the Long Parliament, and their acceptance would have

made the two Houses masters of the state. Briefly stated, they included parliamentary demands for naming the King’s council-

lors, ministers, and judges, for controiling the militia, and for

reforming the church with parliamentary participation. In his Answer Charles I offered an elaborate series of counter pro-

posals as a basis for continued negotiation, which he seems to have expected. But he characterized the tone of the Nineteen Propositions as emanating from conquerors as he stated his firm resolution not to abandon his royal rights, nor, as he said, ‘to

subvert (though in a Parliamentary way) the ancient, equall, happy, well-poised, and never-enough commended Constitution

of the Government of this Kingdom’. The King based his rejection of the Nineteen Propositions on the ground that the two Houses, because of the constitutional

reforms that had been completed by August 1641, possessed sufficient power to prevent the growth of royal tyranny and that further concessions would upset the balance among king, lords, and commons and eventually encompass the destruction of the mixed and balanced government that he was describing. In words that had an almost magical effect upon contemporaries he praised the existing government as a salutary mixture of the simple forms of government as these had been classified by Aristotle and later political philosophers. There were, he noted,

three main forms of government—monarchy, aristocracy, and democracy—representing respectively the rule of the one, the few, and the many. Each had its own virtues and vices or, as he said, conveniences and inconveniences. The virtue of monarchy was in its uniting a nation under one head to resist invasion from abroad and insurrection at home; of aristocracy, in the conjunc-

tion of council in the ablest persons of a state for the public benefit; and of democracy,

in the courage and industry which

liberty begets. On the other hand, the vice endemic to monarchy was tyranny; to aristocracy, faction and division; and to democ8° It has been placed in perspective in Robert Livingston Schuyler and Corinne Comstock Weston, British Constitutional History since 1882 (Princeton, New Jersey, 1957), Chap. 1. The influence of the Answer during the period of the Civil Wars is discussed in Weston,

‘The Theory of Mixed

Monarchy under Charles I

and After’, English Historical Review, LXXV, No. 296 (July, 1960), 426 ff.

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racy, tumults, violence, and licentiousness. Fortunately, for England, Charles I informed his subjects in a memorable statement: “The experience and wisdom of your Ancestors hath so moulded this [government] out of a mixture of these [monarchy, aristocracy, and democracy], as to give to this Kingdom . . . the conveniences of all three, without the inconveniences of

any one as long as the Balance hangs even between the three Estates [the King, the House of Lords, and the House of Com-

mons], and they run joyntly on in their proper Chanell. . . .’ Delineating what came to be called the King’s Constitution,?!

Charles I implied that the mixture could be seen in the joint participation in law-making of the King, the House of Lords, and the House

of Commons.

Estates’, as he termed

Furthermore,

each

of these

them, had independent powers

‘three

with

which to check the others. The king was charged with the government: he made treaties of war and peace, chose councillors of state, judges, and others, raised armies, created peers,

gave pardons, etc. Armed with these powers, he could command the respect of the nobility and the reverence of the people. In order that the king might not make use of his powers to the detriment of his subjects or make use of the name of public necessity for the gain of his favorites and followers, the House of Commons, an excellent conserver of liberty, was intrusted with raising money and the power of impeachment. Charles I denied that the House of Commons was ever intended to share in the government, presumably the administration,*? or to choose

those who governed. The equipoise in the balanced constitution was maintained by the House of Lords, ‘an excellent Screen and

Bank between the Prince and People’,** assisting each against the encroachments of the others and by means of its judicial power

preserving the law, which ought to be the rule of all three. ‘Since therefore the Power Legally placed in both Houses’ was 31 Anchitell Grey, Debates of the House of Commons from ...1667...to... 1694 (London, 1769), VII, 336. Journals of the House of Commons, IX, 633. 82 Commenting on this phrase, Richard Baxter wrote: ‘He meaneth the execu-

tive part.’ Holy Commonwealth (London, 1659), 465. 33 Seventeen years after the appearance of the Answer and ten years after the death of Charles I, an anonymous pamphlet was published that urged the return of

the nobility to parliament. Striking evidence is supplied of the influence of the royal discourse on the constitution by the title: The Antient Land-Mark Skreen or Bank betwixt the Prince or Supreame Magistrate, and the People of England (London,

1659).

Cc

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‘more than sufficient to prevent and restrain the power of Tyranny’ and since the adoption of the Nineteen Propositions would mean the total subversion of ‘that excellent Constitution of this Kingdom’,

Charles

I refused

the demands

of the two

Houses, repeating the dictum ascribed to the barons at Merton in 1236, Nolumus Leges Angliae mutari. The adoption of this interpretation of the English constitution meant that Charles had abandoned the theory of the divine right of kings which his father James I had preached and he himself had practiced. He probably acted from motives of expediency. Whatever his private thoughts and reservations may have been, the King by publicly enunciating the classical theory of the constitution had cloaked it with a sanctity which the circumstances of his death must have heightened. Since he used the classical theory, he stamped it with royal approval; and this was a fact of fundamental importance. The constitutional tone of the royal statements was due to the moderation of the advisers with whom Charles I had surrounded himself early in 1642. Chief among them were Sir Edward Hyde (later Earl of Clarendon) ;Lucius Cary, second Viscount Falkland, the Secretary of State; and Sir John Colepeper, the Chancellor of the Exchequer. In the first year of the Long Parliament they were leaders in the moves to reduce the expanded prerogative of the King. It was on the motion of Hyde and Falkland that ship money had been declared illegal and its chief apologist, Sir John Finch, prosecuted. They lent tacit if not open approval to the Triennial Act, the acts to abolish the Star Chamber and High Commission, the impeachment of the Earl of Strafford, and the imprisonment of Archbishop Laud. Alienated, however, by the rising tide of Puritanism threatening the Church, these constitu-

tional Royalists entered the service of the King; and Hyde in particular was active in composing royal declarations during the spring of 1642. The task of drafting the Answer to the Nineteen Propositions had fallen to Lord Falkland and Colepeper, according to Hyde, after he had joined Charles I at York early in June; and it was

apparently Colepeper who composed the pertinent paragraphs

on the English constitution. It is likely that he followed closely the analysis that Polybius long before had made of the Roman constitution though Tudor precedents surely help to explain 26

OF

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why the Answer found so spontaneous Englishmen. Falkland and Colepeper ment to Charles I at York with the peruse it and then have it printed and

a response in the minds of sent the completed docurequest that Hyde might publicized. But when they

reached York, they discovered, to their great dissatisfaction, that

it was still in Hyde’s hands. In his account of the episode Hyde related that he had withheld the Answer to the Nineteen Propositions from print because of unwillingness to accept the definition that it contained of the three estates, which he saw as a mistake in point of right, derogatory to the positions of both the King and the bishops. Whereas

Colepeper had designated king, lords, and commons,

Hyde subscribed to the more traditional view of the three estates as consisting of the lords spiritual, the lords temporal, and the commons, ‘the king being the head and sovereign of the whole’.

Presumably he recognized that Colepeper’s definition lowered Charles I abruptly from a position of undoubted superiority to the more ambiguous one of being merely one of three estates, and, further, by excluding the bishops from membership in the three estates, seemed to place the royal seal of approval on the removal of the bishops from the House of Lords, to which in the preceding February the King had given a reluctant assent. Disapproving Colepeper’s doctrine of the three estates, Hyde had only sent the Answer to the printers, who had been summoned to York, after he was sharply reproached by Lord Falkland with disliking the Answer ‘because he had not writ it himself’. Hyde reported that Falkland was later much troubled when he realized

why the printing had been delayed and that he attributed the unfortunate choice of language to his own inadvertence as well as to the misunderstanding of some clergymen and the influence of some lawyers who had misled Colepeper. Hyde’s further statement that ‘the king was afterwards very sensible’ of the decision to print the Answer implies that Charles I was keenly aware of the consequences and that these were markedly painful to him.?4 Subsequent editions of the Answer that were printed in 34 The Life of Edward Earl of Clarendon . . . written by himself (Oxford, 1827), I, 154-6. The lawyers who misinformed Colepeper may have been reading William Lambarde’s Archeion, or, A Discourse upon the High Courts of Justice in

England, two editions of which appeared in 1635. For repeated uses of the term three estates to signify king, lords, and commons, see Archeion ed. Charles H. Mcllwain and Paul L. Ward (Cambridge, Mass., 1957), 123, 126, 128 f., 139 f.

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1643 either omitted the offending passage in which the language

of the three estates was used or else the entire section devoted to the English constitution.*° Though in the long run Hyde’s judgment was vindicated, it appeared at first as if the royal position had been strengthened. The Venetian Ambassador,

Giovanni

Giustinian,

who noticed

that the Answer contained moderate counter proposals to the Nineteen Propositions, wrote of the ‘dulcet strains’ with which the King had ‘charmed the feelings of unprejudiced persons and . some . . . members of the Upper House, including some leaders of consideration among the malcontents’. And he reported, on July 4th, that the House of Commons, after considering the Answer, abandoned its claim to interfere with the royal

power of appointment. ‘The point is one of great importance,’ he recognized, ‘and one on which the ambitious ones have insisted

more than on any other.’® His report may well have been accurate. For the Propositions presented to Charles I at Oxford 35 His Majesties Answer to the Propositions of both Houses of Parliament (Oxford and London, 1643); His Majesties Declaration to All his Loving Subjects: In Answer to the Petition and Advice of Both Houses of Parliament (London, 1643). 36 Calendar of State Papers and Manuscripts, Relating to English Affairs, Existing in the Archives and Collections of Venice, XXVI, 83 f., 92, 95. This is cited hereafter

as Calendar of State Papers: Venetian. Giustinian also reported that, on the occasion when the House of Commons allegedly abandoned its claim to control royal appointments, ‘many parliamentarians declared themselves favourable to the king, some of whom have in the past shown a scant regard for his interests. . . .’ Ibid., 92. The Parliamentarian William Prynne, noting that Charles in the Answer to the Nineteen Propositions had denounced as an intolerable encroachment upon the royal prerogative the demand of the two Houses to name the royal councillors, stated that on this point there was a ‘loud clamor against the Parliament’. The Soveraigne Power of Parliaments and Kingdomes (London, 1643), Part II, p. 41. Charles I’s view prevailed into the reign of George III. Richard Pares, King George III and the Politicians (Oxford, 1953), 93. A. F. Pollard cites other Tudor precedents in The Evolution of Parliament (London, 1920), 70. Hyde was aware of still another ‘error’ in the Answer to the Nineteen Propositions that could be readily construed as implying that the government of England, including the royal power, flowed from the people. Charles I had informed his subjects: “The experience and wisdom of your Ancestours hath. . . moulded this [government] out of amixture. .. .’ On August 12th, 1642, in a public declaration preliminary to raising the royal standard at Nottingham, the King made a notable correction. He was upholding, Charles I stated, ‘the whole frame and constitution of this Kingdome, so admirably founded and continued by the blessing of God, and the wisdome

of Our Ancestours.

. . .’ Edward

Husband,

(London, 1643), 514. Despite the speedy correction Stuarts until the very end of the century.

28

An

Exact

Collection.

this ‘error’ haunted

. . .

the

OF

MIXED

GOVERNMENT

on February Ist, 1643, conspicuously omitted any demand for the

control of administrative and judicial appointments by the two

Houses; and it did not reappear until 1645, after two years of war, when it formed part of the proposals discussed at Ux-

bridge.5? Despite the conciliatory spirit temporarily fostered by the Answer, it had appeared too late to influence decisively the course of events leading to war. One week after the Venetian Ambassador had reported this vital concession by the House of Commons, he wrote that both sides were busily preparing for war. From this time the royal language to which Hyde had taken exception militated against the royal position. During the

remainder of the century Charles I’s comments on the English government were usually employed by those who for one reason or another sought to limit the power of the later Stuarts. Early in the civil-war period Parliamentarian writers, relying on the Answer to the Nineteen Propositions as their point of departure, advanced on behalf of the two Houses claims to a greater share in the government than they had earlier possessed;

and in doing so, they formulated a radically new theory of government from the royal definition of the three estates and Charles I’s statement that the two Houses already possessed sufficient power to prevent and restrain tyranny without his accepting the Nineteen Propositions. The new theory was called ‘mixed monarchy’, by which contemporaries meant a government of divided powers different fundamentally from the mixed monarchy of a Tudor Englishman such as Smith. This term held for Englishmen after 1642 a specific technical meaning derived from the Parliamentarian versions of the Answer to the Nineteen Propositions. Exponents of the new theory of mixed monarchy, which became the reigning theory of the constitution in the years from 1642 to 1660, asserted that the supreme power of the kingdom 37 No record exists in the Journals of the House of Commons of a capitulation on the part of that House as sweeping as that assigned by the Venetian Ambassador to July 4th. It does not appear that the Answer was even discussed on that day. Yet on June 23rd, the first day on which it took the Answer under advisement, the House

of Comraons abandoned the claim to control the membership of the privy council. It continued, however, as late as June 27th, to insist on parliamentary approval of the lord chancellor, lord treasurer, and others. Possibly these reservations soon dis-

appeared; certainly they were gone seven months later. Journals of the House of Commons, II, 637, 642.

29

BEGINNINGS

was divided among

OF

THE

ENGLISH

THEORY

three coordinate or concurrent

king, lords, and commons;

estates

of

and some of them even insisted that

the two Houses could overrule the King since two estates were more than one. Others stressed that the three estates made laws jointly as a corporation, the King giving his assent to measures, sent to him by the two Houses, as a member of the corporation and not by virtue of any inherent legislative prerogative. The meaning of the term ‘mixed monarchy’ was given succinctly by the Royalist Robert Sheringham, who knew full well that it had emanated from the Answer to the Nineteen Propositions. “The pretended Parliamentarians affirm the two Houses to be coordinate with the King in the rights of Soveraignty,’ he wrote,

‘for the Monarchy of England, they say, is a mixed Monarchy, and this mixture is in the power and rights of Majesty themselves, so that the King alone hath not full and plenary authority to perform all acts requisite to Government, but there is in the Monarchy a concurrence of severall powers belonging to several estates which being mixed together make up one whole and entire power, and these several estates one supreme head of the

Common-wealth. ’*8 The enemies of Charles I in the Long Parliament may have used the royal definition of the three estates against the King, but parliamentary records are so fragmentary as to make this difficult to establish as a fact. According to John Nalson, writing

on the side of the court late in the reign of Charles II, ‘that slip of his late Majesties Pen... where . . . he seems to account himself one of the Three Estates . . . was immediately taken up by some

of the leading men

of the Parliament,

who

made

use

of it as a Foundation for their usurped Coordinancy of Authority’. To this usurping principle, as he termed it, the Tory ascribed the death of Charles I,3° a charge that whether 88 The Kings Supremacy Asserted (London, 1660), 12 f. °° An Impartial Collection of the Great Affairs of State (London, 1682), I, xv. The Answer to the Nineteen Propositions, according to Baxter, encouraged men

to believe that resistance to the King was legal; and apparently it had this effect upon Baxter himself. Reliquiae Baaxterianae, ed. M. Sylvester (London, 1696), Part I, 37. Holy Commonwealth, 477 f., 481. See also the Harleian Miscellany (London,

1811), VIII, 58 and the account of Sir Henry Vane’s trial later in this

study. As late as 1702 the Whig James Tyrrell remembered that Charles I had described himself as one of the three estates. Bibliotheca politica . . . Dialogue the Fourteenth (London, 1702), 57.

30

OF

MIXED

GOVERNMENT

valid or not indicates the significance attached by contemporaries to the constitutional analysis made by Charles I. The widespread use of the royal definition of the three estates after the appearance of the Answer to the Nineteen Propositions is a hallmark of its influence. Before its appearance the term three estates had been used officially and popularly to designate the lords spiritual, the lords temporal, and the commons, as Hyde had stated, though instances existed of the interpretation accepted by Colepeper. Following the appearance of the Answer the royal usage was adopted to an extraordinary degree. S. R. Gardiner noted without explanation that this ‘error . . . was being widely adopted since the breach with the King’.4° The royal definition of the three estates spread rapidly during the period of the Civil Wars and Interregnum and was a subject of

controversy in the reign of Charles II. Publicists after 1660 recognized that the royal definition of the three estates and the theory of mixed monarchy went hand in hand, and they traced both ideas squarely to the civil-war period though not necessarily to the statements of Charles I. For example, the playwright John Wilson,

who

is said to have been a protégé of

James Duke of York, declared in 1684: “Those that would have

the King one of the three Estates, say, That our Government is a kind of mixt Monarchy.’ This description, according to the Tory, had never been heard of in England until advanced in the civil-war period as a new idol to be adored by the multitude.4! Wilson’s efforts and those of countless others to demonstrate that the king could not properly be termed one of the three estates proved futile. In the eighteenth century the royal definition of the three estates was a commonplace in parliamentary

oratory, and it was driven from the schoolbooks only by the scorn of nineteenth-century historians. 40 History of the Great Civil War (London,

1910), I, 292 (footnote). Tyrrell

noted that the king was considered one of the three estates ‘during the late Wars’. Patriarcha non Monarcha

(London,

1681), 236.

41 4 Discourse ofMonarchy (London, 1684), 139, 141 f. See also Sir John Pettus, The Constitution of Parliaments in England (London, 1680), 12. Wilson’s comments on the prevalence and novelty of the theory of mixed monarchy in the civilwar period were borrowed directly from the Preface, written by Robert Sanderson, Bishop of Lincoln, to the second edition of Archbishop Ussher’s influential Power Communicated by God to the Prince and the Obedience Required of the Subject (London,

1683). It was reprinted in 1688, Sanderson dismissed the idea of mixed monarchy

as an ‘arrand Bull’ [erroneous decree?], an epithet that achieved much currency.

The Preface lacks pagination.

31

BEGINNINGS

OF

ENGLISH

THE

THEORY

At the time of its appearance the Answer to the Nineteen Propositions received wide publicity. The King at York issued a warrant on June 18th, 1642, to the Speaker of the House of Lords

‘to cause to be read in both Houses the enclosed Answer to the 19 Propositions of both houses’; and three days later, on June

21st,

the Answer

reached

the two

Houses.*?

Charles

I also

ordered that both the Nineteen Propositions and the Answer be read and made public in the churches and chapels of England and Wales by the several parsons, vicars, and curates. 4° Entitled His

Propositions of both Houses of

Majesties Answer to the XIX.

Parliament, the document was printed in 1642 in at least six editions and in such diverse places as London,

Oxford,

Cam-

bridge, and York; and its text appeared in the much-quoted Exact Collections (1643) of Edward Husband. That the pertinent paragraphs on the mixed nature of the English constitution, described by Hyde as ‘the discourse of the constitution of the kingdom’, remained readily available is attested by his comment in 1646 that this portion of the Answer could be read at

large by itself.44 Nor was the royal discourse on the constitution forgotten after the death of Charles I. At this point one example must suffice. The pertinent paragraphs on the English government were reprinted in 1659, a year before the Restoration, by Sir Francis Nethersole, a Royalist who had published at the end of the second Civil War (April—August 1648) a series of pamphlets advocating a peaceful solution of the crisis that had arisen in the relationship between the King and the New Model Army. In 1659, in the last year of his life, Nethersole, scenting that a

critical juncture once more existed in the nation’s affairs, republished Charles I’s discourse on the English constitution with the statement that its republication was for the purpose of ‘setling . . . the mindes of all the good people of this Kingdom in 42 Calendar

of State

Papers, Domestic

Series, Charles I, XIX

(1641-3),

343.

“8 The Parliamentary or Constitutional History of England, X1, 234 (footnote). The title page of the Answer to the Nineteen Propositions, published at York by Robert Barker, bears the statement: ‘By the King. Our expresse pleasure is, That this Our Answer be read and published throughout all Churches and Chappels of the Kingdom of England and Dominion of Wales, by the severall Parsons, Vicars, or Curats of the same.’ “4 The History of the Rebellion and Civil Wars in England, ed. W. Dunn Macray (Oxford,

1888),

II, 176. This

passage

was

Life, I, 156.

32

written

in October

1646. See also

OF

MIXED

GOVERNMENT

the love of the ancient Legal form of Government,

whosoever

may become the Governor thereof’. ‘> The royal discourse on the constitution was equally well-

known to leading members of the House of Commons of the Long Parliament. Before beginning a week-long consideration

of the royal declaration, the House appointed a distinguished committee to reply to what it termed ‘the Preamble of his Majesty’s Answer to the Nineteen Propositions’. Though no record of the committee’s activity seems to have survived, the membership is of special interest in the history of the Answer. It included John Pym, John Hampden, Bulstrode Whitelocke, Nathaniel Fiennes, John Glyn, Sir Henry Vane, and Denzil

Holles. Whitelocke also served as chairman of the committee of the whole when the House considered the Nineteen Propositions

and Charles’s Answer.

In later years Whitelocke, Vane, and

Holles referred to the Answer to the Nineteen Propositions as the document that contained the authoritative definition of the English constitution;

and, in the reign of Charles

II, Richard

Hampden, the second son of John Hampden, brought the Answer itself into the House of Commons and read to its members key passages from the royal discourse on the constitution. After completing its deliberations on the Answer in 1642, the House of Commons, as if in anticipation of a favorable verdict on the

King’s

pronouncements

when

these

were

disseminated

as

planned, resolved that the royal command for reading and publishing declarations in churches and chapels was against the law of the land; and on July 5th, the two Houses passed a restraining ordinance. There is reason to believe, however, that the Answer

received the publicity ordered by Charles I;*® and as late as 1645, the year of Naseby, if not later, he continued to provide this mode of publicity for his declarations. 45 4 Part of the Late King’s Answer to the humble Petition and Advice of Both Houses of Parliament Sent unto his Majesty with nineteen Propositions (1659). The title page states that the work was printed at the request and charge of Sir Francis Nethersole, Knight. 46 That Charles I had very little difficulty in making the Answer public may be surmised from Hyde’s comment that shortly after the King received the Nineteen Propositions ‘he sent to the two Houses, and published to the kingdom, his answer to those Nineteen Propositions’. The History of the Rebellion, 11, 172. See also Journals of the House of Commons, Il, 650-3, 669. Philip Lee Ralph, Sir Humphrey Mildmay: Royalist Gentleman (New Brunswick, New Jersey, 1947), 159. Journals of the House of Lords, V, 182. The membership of the committee appointed to reply to the preamble of the Answer is in Journals of the House of Commons, II, 637.

33

BEGINNINGS

OF

THE

ENGLISH

THEORY

After the formal beginning of the first Civil War in August 1642, literary warfare continued to rage for another year about

the declarations and counter declarations of the contending sides. The Answer to the Nineteen Propositions provided the point of departure for Royalists and Parliamentarians alike, and the theory of mixed government—which is used hereafter as including the closely related theory of mixed monarchy unless otherwise stated—took a firm hold on the national imagination that lasted for two centuries. The main contentions of the Answer were invoked in pamphlets emanating from Royalist writers like Henry Ferne, Dudley Digges, Sir John Spelman, and John Bramhall and from Parliamentarian writers like

Charles Herle, Philip Hunton, and Henry Parker. Each pamphleteer was ready with a gloss reflecting the positions already taken by the King and the two Houses; and from their interpreta-

tions of the Answer—particularly those of Ferne, Herle, Hunton, and Parker—arose the broad strands of opinion on the

theory of mixed government that existed during the civil-war period. Naturally the most conservative exposition came from Henry

Ferne, one of the royal chaplains and the leading Royalist spokesman. He would grant, he said, that England had a mixed government but not a ‘mixed monarchy’, for the latter term im-

parted too great power to the two Houses. His thesis, echoed by other Royalists, was that God had placed the supreme power of the kingdom, undivided, in the monarch, who, in turn permitted

the two houses to share in its exercise whenever laws were made. Their consent and concurrence were requisite, so Ferne wrote, ‘to certain Acts of Monarchicall Power; and this makes a

Mixture, though they have no share in the very power but concurre to the exercise ofitonly’. This right of concurrence, though it had come originally from the assent of the monarch, he recognized as irrevocably settled by law on the two houses. The mixture in the English government was confined to the law-making process: Ferne thought it would be difficult for Parliamentarian writers to demonstrate that the two houses participated in the execution and administration of laws. Insisting that his interpretation of the English constitution left the two houses with sufficient power to restrain the king by moral and parliamentary means, the Royalist denounced the use of physical force for this 34

OF

MIXED

GOVERNMENT

purpose. In an early pamphlet Ferne had used the definition of the three estates expressed in the Answer to the Nineteen Propositions; but when Parliamentarian writers interpreted the

words of Charles I to his disadvantage, Ferne corrected the King’s language. ‘His Majesty did never use that phrase with

any intent of diminution to his Supremacy or Headship,’ the Royalist explained, ‘for properly the Prelates, Lords, and Com-

mons are the three Estates of this Kingdome, under his Majesty as their Head.’4? Ferne was aroused to the danger implicit in the royal language by the writings of Parliamentarians like the Puritan clergyman Charles Herle, who formulated a theory of mixed monarchy from the royal definition of the three estates. Indeed, Herle’s Fuller Answer to a Treatise written by Dr. Ferne (1642) may well have provided the foundation of that theory, to which others added the superstructure. The Parliamentarian viewed England as a ‘coordinative and mixt Monarchy’, the coordination or mixture being in ‘the very supremacy of power itselfe’. He stressed: “Here the Monarchy or highest power is itselfe compounded of 3. Coordinate Estats, a King, and two Houses of Parliament.’ From this emphasis upon the coordination or equality of the three estates flowed Herle’s doctrine of supply that further alienated the Royalists. No subordinate authority, he pointed out, could under any circumstance resist the supreme authority just described, but it was conceivable that the coordinate powers under certain circumstances might have to supply the failings of one another. Thus if the king violated the

law or failed to provide for the safety of the kingdom, the other estates would have to supply the necessary coordination to carry on the government. The Militia Ordinance provided Herle with an example. It was no law, he declared, but a supply of the coordination of government until a law could be had. After Charles I refused to accept a militia bill and began to raise an army, the Parliamentarian considered forcible resistance the only alternative for the two Houses. When Ferne criticized 47 The Resolving of Conscience (Cambridge,

reprinted at London,

1642),

16.

Conscience Satisfied (Oxford, 1643), 14. A Reply unto Severall Treatises (Oxford, 1643), 13, 17 f., 28, 32. For a description of some leading Royalist writers who

echoed Ferne’s analysis of the mixture in the English government, see J. H. M. Salmon, The French Religious Wars in English Political Thought (Oxford, 1959), 90-92, 95.

35

BEGINNINGS

OF

THE

ENGLISH

THEORY

adversely this doctrine of supply, Herle responded with an

appeal to the authority of Charles I. His argument had come, so

he stated, from ‘His Sacred Majesty . . . in his Answer to the Nineteen Propositions. . . .’48

Meanwhile a more moderate adversary to the Royalists had entered the lists. In May 1643, there appeared the highly influential Treatise of Monarchie written by Philip Hunton, a Puritan divine who won considerably contemporary renown by his wellreasoned exposition of what he called mixed monarchy. Unmistakably Hunton wrote in response to the Answer to the Nineteen Propositions. The English government, he affirmed, was a mixed monarchy. His judgment rested on three points. First of all, the English government was explicitly acknowl-

edged in the Answer to the Nineteen Propositions to be a monarchy mixed with aristocracy in the House of Lords and democracy in the House of Commons. Secondly, a monarchy in which the legislative power (the supreme or sovereign power) was in ‘three distinct concurrent Estates, the consent and con-

course of all most free, and none depending on the will of the other’ was ‘in the very modell of it . . . a mixed constitution’. And thirdly, a monarchy in which the three estates were so constituted that each could moderate and restrain from excess the power of the other was ‘mixed in the root and essence of it’. This description fitted the English government as was ‘confessed in the answere to the said Propositions’.*® To this point Hunton had written in a vein reminiscent of Herle but rejecting other aspects of the latter’s political theory as conducive to democracy and writing more like Ferne, Hunton

declared that a full equality could not exist among the three estates if England were to be described as a monarchy more than

an aristocracy or a democracy. In a mixed monarchy the chief share of the supreme power resided in the king, whose powers should be sufficient to preserve the monarchical element without ‘SA Fuller Answer to a Treatise written by Dr. Ferne, Entituled Conscience (London, 1642), 3 f., 7-11. An Answer to Dr. Ferne’s 1643), 33 f. As late as 1644 Herle was referring to the Answer Propositions as his authority for refuting Ferne’s interpretation

the Resolving of Reply (London, to the Nineteen of the constitu-

tion. Ahab’s Fall (London, 1644), 36, 40. Sheringham, op. cit., 13. ‘°A Treatise, 39 ff. Baxter and Sheringham recognized that Hunton

leading spokesman

for the Parliamentarians.

The Kings Supremacy Asserted, 105.

36

Reliquiae Baxterianae,

was a

Part I, 41;

OF

MIXED

GOVERNMENT

being so extensive as to destroy the mixture. Hunton implied that a nice adjustment existed in England where the king sum-

moned and dissolved parliament, executed established law, and

consummated an act by giving his assent while the legislative power was placed, not in the king alone, but in the three estates.

So far as resistance to royal authority was concerned, the Parliamentarian considered that force should not be employed against the person of the king even though the two estates could lawfully resist any persons advising or assisting the king in illegal and destructive acts. Judgment as to when acts were of this nature lay neither with the king nor the two houses but with the community.°° The effect of the Answer to the Nineteen Propositions is also readily discernible in the writings in 1642-3 of the Parliamentarian

Henry Parker, later secretary to Oliver Cromwell,

who is said to have held him in high esteem. Parker’s Observations upon some of His Mayesty’s late Answers and Expresses ( 1642), considered by contemporaries one of the principal works on the side of the two Houses, was permeated with references to the royal discourse on the constitution. But he paid little attention to Charles I’s actual statements about the division of power

among the three estates and even asserted that the two Houses could legislate in an emergency without the King.*! Royalists in reply warned of the danger to the mixed and balanced government if the royal veto were taken away, and Dudley Digges wondered why Parker should want to destroy this ‘most happy restraint of Aristocracy or Democracy’.*?

Another pamphlet that has long been attributed to Parker had this self-explanatory title: 4 Political Catechism, or, Certain

Questions concerning the Government of this Land, Answered in his Majesties own words, taken out of His Answer to the 19 Propositions (1643). Published in that year in three editions, one of them Dutch, and licenced for publication by a committee on printing of the House of Commons, the tract was subsequently republished 50 4 Treatise, 25 f., 41 ff. 51 Observations, 21 ff., 45. This tract is in Volume

Puritan

Revolution, ed. William

Haller

(New

II of Tracts on Liberty in the

York,

1933). Anthony

Wood,

Athenae Oxienses (London, 1691-2), II, 142 f. 52 4n Answer to a Printed Book, Intituled, Observations upon some of His Majesties

Late Answers and Expresses (Oxford, 1642), 36 f. See also his Review of the Observations upon some of His Majesties late Answers and Expresses (Oxford, 1643), 10 ff.

Bf

BEGINNINGS

in 1679

1688,

1689,

OF

1692,

THE

ENGLISH

1693

and

THEORY

1710. It is reprinted

in

Appendix II of this study because it was a main channel through which the discourse on the constitution in the Answer to the Nineteen Propositions passed into English political thought. It was also a prime source of the theory of mixed monarchy even though

its author,

unlike

Herle

and

Hunton,

attached

little

importance to the royal definition of the three estates. Examining in a painstaking fashion the constitutional analysis in the Answer to the Nineteen Propositions, the writer drew from it an account of the relationships among king, lords, and commons that would surely have given pause to Colepeper and Falkland had they anticipated it. So greatly was royal power limited in the Political Catechism that a supporter of the court in the reign of Charles II declared angrily: ‘The Compiler of this Libel makes his Majesties Answer to be, Effectually, an Admittance

of the

Right and Reason of the [Nineteen] Propositions.’®* The Political Catechism is remarkable for the close scrutiny bestowed on the words of Charles I. These are quoted throughout and commented upon; and, in addition, the paragraphs in the Answer from which the quotations were taken are appended for the curious or doubting. Its author began by asking how many simple forms of government existed and by answering, in the

words of Charles I, “There are three kinds of Government among men; Absolute Monarchy, Aristocracy, and Democracy.’ Questioning whether any simple forms were perfect, he continued: ‘All these have their particular Conveniences and Inconveniences.’ So it went as he traversed, step by step, the constitutional argument of Charles I, supplying at appropriate places the page numbers of the first edition of the Answer to the Nineteen Propositions from which quotations were taken. ‘Is the State of England governed by any one of these kinds [of government] simply?’ asked the author of the Political Catechism. The reply in the words of Charles I was this: ‘The Experience and Wisdom of your Ancestors hath moulded this [Government] out of a Mixture of these.’ Since the ancestors of Englishmen had molded their government from a mixture of monarchy, aristocracy, and democracy,

the author of the Political Catechism judged it impossible for the °° Roger L’Estrange, The Case Put, concerning the Succession of his Royal Highness the Duke of York (London, third edition, 1680), 25.

38

OF

MIXED

GOVERNMENT

king to have his power, either solely or immediately, by divine right. In fact, he asserted, the English government,

which he

termed a ‘Regulated and mixt Monarchy’, emanated from the

people. Accordingly, whenever royal power was questioned, it

was the king, not the people, who must produce a grant since all power is presumed to be reserved which cannot be proved to be granted away. Even the power granted to the king was hedged with restrictions. He must act in accordance with the law, and his privileges must be consistent with those of the two houses; for

their privileges provided the mixture in the government and regulated those of the king, not the opposite. The only exceptions were cases involving the royal dignity or the succession to the throne. Above all, the power vested in the king was for the sake of his subjects; and in support of this proposition Charles I was quoted as stating that the king could ‘not make use of this High and perpetuall power [the royal powers were listed in the Answer] to the hurt of those for whose good he hath it’ nor

make ‘use of the name of publike Necessity for the gain of his private Favourites and Followers’. This last statement attained special prominence in the Polztical Catechism. Its author asserted that the two houses were the judges of when the king misused his power to hurt his people or invoked the name of public necessity for the gain of his favorites and followers. For this function each house was armed with special privileges though the author of the Polztical Catechism plainly considered the House of Commons better able to cope with royal agguession. This House, he pointed out, was an excellent conserver of liberty: it could provide that no money was raised without its consent under the pretence of public necessity, as in the shipmoney case, and on some occasions might even raise money without the royal consent. But what were the two houses to do if the king’s favorites and followers persuaded him to act against the laws and liberties of the subject? The author of the Political Catechism found the remedy prescribed in the Answer to the Nineteen Propositions. Charles I was quoted as recognizing that the House of Commons had not only the power to raise money but also to impeach those, in the words of the King, ‘who for their own Ends though

countenanced

by any surreptitiously-gotten

King, have violated

that Law, 39

command

which he is bound

of the

(when he

BEGINNINGS

OF

THE

ENGLISH

THEORY

knowes it) to protect; and to the protection of bound to advise him, at least not to serve him It was no excuse for such persons to claim that the king, for ‘the Law counts all Commands which are any way contrary to the Law,

which they were in the contrary’. they only served from the King, Surreptitiously-

Gotten’. The House of Lords could also help. Intrusted with the judicatory power, that House served as ‘an Excellent Screen and

Bank between the Prince and the people, to Assist each against any Encroachments of the other, and by just Judgments to preserve that Law which ought to be the Rule of every one of the three’. If the two houses had the privileges just enumerated, the author of the Political Catechism considered that they also had the power to carry out their judgments. Charles I was quoted as having admitted to the two Houses: “The power of punishment is already in your hands according to Law.’ Consequently the two houses were the supreme judges in all matters in controversy between the king and the people and had the power to prevent their encroaching upon one another. The king was bound by his own declaration to refrain from protecting those impeached by the House of Commons and found delinquent by the House of Lords; and though these delinquents might obtain his protection and surreptitiously gain his command to raise arms, the two houses could call upon the power of the whole kingdom to apprehend such delinquents. If such persons tried to change the regulated monarchy into a tyranny, the author of the Political Catechism insisted that the two houses could legally raise arms to defend themselves and prevent tyranny. This could be done legally if they even considered that there was danger of tyranny, for had not Charles I stated that the ‘Power Legally Placed in Both Houses is more than sufficient to Prevent and Restrain the power of Tyrannie’?®4 54 A Political Catechism.... (London, 1643), 1-3, 6 ff. Reprinted in Appendix IT of of this study, pp. 269-70, 273 ff. This tract is attributed to Parker in the Dictionary of National Biography, presumably on the authority of Anthony Wood, writing in the late seventeenth century, who reported that Parker was ‘supposed to be author of A Political Catechism’. Op. cit., 11, 143. Yet George Thomason, who was a friend of Parker’s, did not attribute

the tract to him; and modern

authorities

such as

Margaret Atwood Judson, ‘Henry Parker and the Theory of Parliamentary Sovereignty’, Essays in History and Political Theory (Cambridge, Mass., 1936), 159 (footnote) and W. K. Jordan, Men of Substance (Chicago, 1942), 144 (footnote) disagree.

40

OF

MIXED

GOVERNMENT

By 1643, the year in which the Political Catechism appeared, the classical theory of the English constitution was widespread,

either in the form of mixed government urged by Ferne and his

fellow Royalists or in the forms of mixed monarchy enunciated by the anonymous author of the Political Catechism and the Parliamentarians Herle and Hunton. Royalists themselves recognized that the latter theory had emanated from the Answer to the Nineteen Propositions when Ferne wrote: ‘For such a mixed condition of this Monarchy as these men would have, they usually urge what his Majesty has graciously said in His answer to the 19 propositions.’ He added that Parliamentarian writers had exploited,

in particular, the royal definition of the three

estates and Charles I’s recognition that the two Houses had sufficient power to prevent tyranny.*® The latter concession had formed the taproot of the constitutional system in the Polztical Catechism, and both Herle and Hunton had developed from the royal definition of the three estates distinctive systems of mixed monarchy. It was noted in contemporary pamphlets and writings that the theory of mixed monarchy was widespread, indeed, during the civil-war

period;

and

there

even

circulated

euphonious title The Maximes of Mixt which the ideas of Fortescue commingled tion of the three estates. Thomas Hobbes, ence of the theory of mixed monarchy

a tract

with

the

Monarchy (1643), in with the royal definipredating the emergwhile recognizing its

prevalence, attributed the coming of civil war to the prevalent

belief that the powers of government were divided among king, lords, and commons. ‘Few perceive,’ he wrote, ‘that such govern-

ment is not government, but division of the commonwealth into three factions, and call it mixt monarchy.’®® And describing the

nation as infatuated

with mixed

monarchy,

the philosopher

55 Reply unto Several Treatises, 30 ff. See also Sheringham, op. cit., 107 ff. 56 eviathan T

(Oxford, 1952), 139 f., 254. See also Lucy Hutchinson, Memoirs of

the Life of Colonel Hutchinson (London, 1848), 5. Hyde, now Earl of Clarendon, disputed in 1676 Hobbes’ contention that when the first Civil War began the belief was current that the powers of government were divided among king, lords, and commons.

It was, Clarendon stated, ‘an opinion never heard of in England till the

Rebellion was begun... .’.4 Brief View and Survey of the Dangerous and Pernicious Errors

to Church

and State, 54. That

Hobbes

antedated

the appearance

of the

theory of mixed monarchy is not surprising in view of the swiftness with which it spread after the Answer to the Nineteen Propositions was made public; but Clarendon’s comment,

D

offered without elaboration, is misleading.

4

BEGINNINGS

OF

THE

ENGLISH

THEORY

severely censured the royal councillors for espousing a doctrine that made them halfhearted in the conduct of the war because they feared that a complete victory for Charles I would destroy the much-admired mixed monarchy.®? The philosopher had been admitted to the circle of Falkland and Hyde sometime in the 1630s; but, having left England at the time of Strafford’s im-

peachment, he would not have had direct access to the secrets of the circle when the Answer was written. It is interesting, however, that he ascribed the theory of mixed monarchy to the royal councillors even though he was uninformed about the accidental manner in which the theory was born. Equally sweeping testimony of the predominance of the theory of mixed monarchy came from the Royalist Sir Robert Filmer, who wrote: “There is

scarce the meanest man of the multitude but can now in these days tell us, that the government of the kingdom of England is a limited and mixed monarchy.’ He thought it ‘no marvel, since

all the disputes and arguments of these distracted times both from the pulpit and the press do tend and end in this conclusion’.*8

As the war progressed, the character of Charles I became allimportant

to the survival

of government

by king, lords, and

commons. Perhaps significantly Ponet’s Shorte Treatise had been reissued in 1639 and again in 1642; and Parsons’ Conference was

republished in 1648. Both contained persuasive arguments for the deposition of a false ruler in a mixed government. With the execution of Charles I and the abolition of the House of Lords early in 1649 English mixed government was temporarily destroyed. Yet the theory of mixed monarchy created by Parliamentarian writers out of the Answer to the Nineteen Propositions persisted throughout the Interregnum, and after the Restoration it became the twofold task of the supporters of court and church to rescue the king from membership in the three estates by restoring him to the more appropriate position °? The English Works of Thomas Hobbes, ed. Sir William Molesworth (London, 1840), VI, 306 f. 8 Patriarcha and Other Political Works of Sir Robert Filmer, ed. Peter Laslett (Oxford, 1949), 279. The statement is in Filmer’s Anarchy of a Limited or Mixed Monarchy, published in 1648 as a belated riposte to Hunton’s Treatise. The most recent writings to which Filmer referred were those of Hunton, Ferne, and

Parker, but he seems

to have

considered

1648.

42

his comments

still appropriate

in

OF

MIXED

GOVERNMENT

at their head and to bring back the bishops to parliament as one of the three estates.>°

59 In his memoirs, written sometime between 1675 and 1677, Warwick was bitter

about the royal definition of the three estates in the Answer to the Nineteen Propositions. Memoires of the Reigne of King Charles I, 183 f.; 197 f. See also Jeremiah Stephens, 4n Apology for the Ancient Right and Power of the Bishops to sit and vote in Parliaments: As the first and principal of the three Estates of the Kingdome (London, 1660), 14. Wilson, op. cit., 13. Harleian Miscellany, VIII, 625. Thomas Tomkins, The Rebels Plea. (London, 1660), 16 f.

43

II MIXED MONARCHY AND THE HOUSE OF LORDS DURING THE PURITAN REVOLUTION

THE

GREAT

MAJORITY

OF ENGLISHMEN

who reflected on the

nature of their government during the civil-war period accepted either the theory of mixed government or the closely related

mixed monarchy as the fundamental principle of the English constitution.

Any

assurance

secured from Charles

needed

on

this point could

I’s readily accessible,

authoritative

be dis-

course on the constitution with its extraordinarily influential definition of the three estates. His Majesties Answer to the XIX. Propositions of both Houses of Parliament, bearing the royal seal, circulated in London, Oxford, Cambridge, and York. The King

had ordered that the text of the Answer to the Nineteen Propositions be read in both Houses; and, in all liklihood, it was also

made public in the churches and chapels of England and Wales as he had ordered despite the efforts of the two Houses to prevent

this publicity. Moreover, the royal discourse on the constitution inspired numerous commentaries, such as the Political Catechism, that fed the gathering stream of admiration for mixed government during the remainder of the century.! ' Other detailed commentaries are in the Presbyterian Richard Baxter’s Holy Commonwealth (1659), 462 ff, and in the Royalist Robert Sheringham’s The Kings Supremacy Asserted (1660), which was written to refute Herle and Hunton. See, in particular, 107 ff. A third and enlarged edition appeared in 1682. A tract such as The Subject of Supremacte (1643) uses repeatedly the royal definition of the three estates. 44:

MIXED

MONARCHY

AND

THE

HOUSE

OF

LORDS

With the spread of radicalism engendered by the first Civil War the tenets of the classical theory held by the Royalists dropped from sight. On the other hand, the theory of mixed monarchy, developed in a variety of forms by Herle, Hunton, and the anonymous author of the Political Catechism, swiftly became the prevailing constitutional theory, against which radical groups such as the Levellers in vain contended. At the end of the civil-war period the theory of mixed monarchy existed

in two

main

versions,

the variation

arising from

a

difference of opinion about the retention of the royal veto. According to George Lawson, a clergyman writing during the Interregnum, the party that accepted mixed monarchy believed ‘the King, Peers, and Commons

to be three coordinate powers,

yet so that some of them grant three Negatives, some only two’.? Before the first Civil War began, the two Houses had asserted the right to legislate without the King; and both Parker

and William Prynne in the early years of the war raised questions about the royal veto. Parker considered that on occasion the two houses could legally legislate without the king, and Prynne asserted that the royal assent could not be rightfully withheld from bills of common right and justice to the subject.$ Yet other Parliamentarians just as vigorously insisted that every one of the three estates possessed a veto on legislation. Representative of this group was Clement Walker, one of the secluded members of the Long Parliament, who wrote in 1648, when the fate of Charles I and the House of Lords was being determined, that legislative power resided, not in one or two estates, but in

all three, so that neither one nor two could lawfully exclude a third estate from a negative voice in passing, repealing, or

changing laws. * 2 Lawson’s comment is quoted in Yung Chi Hoe, The Origin of Parliamentary Sovereignty or ‘Mixed’ Monarchy (Shanghai, 1935), 364. The tract Sacro-Sancta Regum Majestas (Oxford, 1644), written by John Maxwell, Archbishop of Tuam, described the theory of mixed monarchy as the most extreme that had appeared up to that time. Ibid., 4 f., 103, 180. The Royalist Sheringham, who went into exile on the continent at the end of the civil-war period, attributed the foundation of the

theory of mixed monarchy to Herle’s Fuller Answer and what he called its superstructure to Hunton, some clergymen, and others. Op. cit., 13.

3 The Soveraigne Power of Parliaments, Part II, 74. 4 Walker, The Complete History of Independency ... (London, 1661), Part I, 150. See also Certain Queries Lovingly Propounded to Mr. William Prynne (1647-8), 6f.

45

MIXED

MONARCHY

THE

AND

HOUSE

OF

LORDS

Either version in ordinary times would have protected the House of Lords, the second estate, from damaging attacks upon

its authority; for it had been assigned a role of primary importance in the Answer to the Nineteen Propositions. The aristocratic House, intrusted with the judicial power, was to serve as a mediator between the king and the House of Commons, assisting

each against the encroachments of the other and by just judgments preserving the law that ought to be the rule of all three. But the rush of events proved too much for the House of Lords, and it fell victim to the Puritan Revolution, perishing with the monarchy early in 1649. Before its abolition proposals were made to bring the House of Lords into harmony with the House of Commons; and afterwards, either to reéstablish it or to create a similar chamber to

balance the House of Commons, the latter proposal usually being urged in language reminiscent of the Answer to the Nineteen Propositions.

Some notion of the diversity of proposals

affecting directly or indirectly the House of Lords that were afloat in the single year 1659 can be gleaned from a memorable passage in the memoirs of the republican Edmund Ludlow. He

noted that the great officers of the army were seeking a select standing senate to work with a representative house, while, at the other extreme, there existed advocates of a supreme single house, popularly elected, which would work with a council of state. Others proposed joining to the single house a group of men like the Spartan ephor?, who would exercise a veto in matters involving the essentials of the government such as liberty of conscience,

alteration

of the constitution,

etc.

Still another

group, influenced by the writings of James Harrington, favored a scheme of two elected councils with rotating memberships. One council of about 300 members would be limited to debating and proposing laws; the other, consisting of about 1,000 members, would have the power of decision.®

Ludlow’s list, while suggestive, is not inclusive of all the proposals involving the House of Lords that were mooted during the Puritan Revolution. So abundant were these that it seems best to consider them in terms of the important phases of

constitutional change set in motion by war. The first phase was

5 The Memoirs of Edmund Ludlow 1625-1672, ed. C. H. Firth (Oxford, 1894), II. 99.

46

DURING

THE

PURITAN

REVOLUTION

the growth of democracy in the New Model Army and among the radical Puritans known as Independents. Its result was the destruction of mixed government early in 1649, which contemporaries referred to as ‘the dissolution of the three estates’.6 The second phase began with the attempted revival of mixed government (or mixed monarchy ) provided for in a new constitution known as the Humble Petition and Advice (1657) and ended when Oliver Cromwell, Lord Protector under the Jnstrument of Government of 1653, dissolved the second Parliament of

the Protectorate on February 4th, 1658. The third phase was marked by the ultimate failure of the Petition and Advice when the army compelled the dissolution of Richard Cromwell’s Parliament on April 22nd, 1659. A survey of proposals concerned with the House of Lords in this period would be incomplete, however, unless attention were also given to the removal of the bishops from the House of Lords in February 1642, as a result of the prewar tensions and to the return of single-house rule in the closing months of the Interregnum. The conflict of the years 1641 and 1642, in which the contestants may be broadly classed as king and episcopacy versus parliament and puritanism, resulted in the exclusion of the bishops from the House of Lords before the first Civil War began. The bishops might well have retained their seats despite arrogance in the administration of the church if religious animosities had not been complicated by political. Their advancement in the church depending upon the royal will, they were often servile to the crown when political issues were before the

House of Lords. The judgment of the Puritan Lord Saye and Sele that they were too completely dependent upon the King to sit as free men reflected the viewpoint of many who were not hostile to

episcopacy. Undoubtedly the opponents of Charles I were resolved that he should not have the votes of twenty-six bishops at his disposal in the House of Lords, and a race began between the King seeking a permanent majority through the creation of new peers and the House of Commons striving to control the House of Lords by removing the bishops and also the Catholic peers. The political situation proved in the event more decisive than the insistence of the bishops during the exclusion debates 6 Godfrey

Davies,

The

Restoration

of Charles

1955), 53.

47

II (The

Huntington

Library,

MIXED

MONARCHY

AND

THE

HOUSE

OF

LORDS

that their removal would subvert the constitution. In vain the Bishop of Lincoln asserted that ‘the prelates of this kingdom. . . as a third estate . . . have been in possession hereof these 1,000 years and upwards’.? Certain main steps were noticeable in the action to exclude the bishops from the House of Lords. These included the introduction and failure of the first Bishops’ Exclusion Bill, the threat of

the Root and Branch Bill, and the successful passage of a second Bishops’ Exclusion Bill, entitled the ‘Clerical Disabilities Act’, after an appeal for popular support in the Grand Remonstrance. On May Ist, 1641, the House of Commons adopted the first

Bishops’ Exclusion Bill providing for the exclusion of the clergy from temporal office. The House of Lords, resenting the inter-

ference with its constitution,

amended

the Bill to retain the

legislative power of the bishops. In response the House of Commons passed the Root and Branch Bill abolishing episcopacy; but the peers, undeterred by the implied menace, threw out the

Bishops’ Exclusion Bill early in June. In the following October the House of Commons produced a new bill excluding the bishops from the House of Lords and rendering the clergy as a whole incapable of exercising temporal jurisdiction. To this second Bishops’ Exclusion Bill Cromwell gave support, as did the powerful Pym, who apparently realized that plans to restore the church to a pre-Laudian purity would encounter the solid opposition of the bishops. Within the House of Commons opposition came from Hyde and Falkland, the latter emphasizing that the peers would not permit the House of Commons to determine the membership of their House. Its passage was, nevertheless, rapid in the Lower House, which about this time asked the House of Lords to sequester the votes of thirteen bishops who were being impeached. When the aristocratic House postponed action on both the bill and the sequestration of the bishops’ votes, the irritated House of Commons resolved to appeal to the country with the Grand Remonstrance, primarily a long indictment of the King for past misgovernment with a list of reforms already achieved but also an attack upon the aristocratic House. * Parliamentary History of England, \1, 802. See also ibid., 809. C. H. Firth, The House of Lords during the Civil War (London, 1910), 92, 112. Much of the following narrative is derived from Firth, who has covered the ground thoroughly

though without reference to the theory of mixed government.

48

DURING

THE

PURITAN

REVOLUTION

The House of Commons asked what could be done without the concurrence of the House of Lords and what concurrence could be expected when the bishops and Catholic peers were so numerous as to be able to frustrate the best efforts at reformation. Neither the Grand Remonstrance nor steady pressure from the House of Commons would have secured the passage of the bill to exclude the bishops from the House of Lords if Charles I had not appealed to force in the early months of 1642. The attempt to arrest the five members of the House of Commons, the uncover-

ing of his plots to seize Hull and Portsmouth, and the design to introduce foreign troops into England alienated so many of the peers that the middle party was able to carry its argument that the best hope of peace lay in persuading the King to yield to the House of Commons. On February 5th, 1642, the House of

Lords adopted the second Bishops’ Exclusion Bill; and, ten days later, Charles I, fearmg that Queen Henrietta Maria might be impeached and acting on the advice of Falkland and Colepeper, gave his assent. Thus removal of the bishops had proved to be an arduous task

even in the unusual circumstances of 1641-2 and _ partly because of those circumstances. After the passage of an act early in the reign of Charles II for their return the bishops continued to arouse sporadic irritation on the same ground of servility to

the crown, but they faced no comparable agitation against their legislative authority until it was again brought into question because of their opposition to the passage of the Great Reform

Bills® With the exclusion of the bishops early in 1642 and the withdrawal of the Royalist peers to the side of Charles I on the outbreak of the first Civil War approximately thirty peers remained at Westminster as the House of Lords. It became steadily weaker.

After June

1644, no peer who had once deserted the

Parliamentary cause was readmitted without the consent of both Houses. With the passage of the Self-Denying Ordinance such military commanders as the Earls of Essex and Manchester

resigned their commissions, and the control of military and naval affairs passed into the hands of the more vigorous House of Commons. At that moment in history when the enfeebled House of Lords was least able to withstand

a democratic attack, its

8 J. R. M. Butler, The Passing of the Great Reform Bill (London, 1914), 296 f.

49

MIXED

MONARCHY

THE

AND

HOUSE

OF

LORDS

authority was brought into question as the result of a rising tide of ‘pure’ and ‘unmixed’ democracy in the New Model Army and among the Independents. Since the summer of 1647 found the army and the Independents in control of England, it becomes necessary to notice how thoroughly their ranks had been permeated with the new democratic ideas. The Levellers, Independent in religion and democratic in politics, more than any other group wrought in the minds of a minority of Englishmen an ideological revolution that replaced the prevailing theory of mixed monarchy with a democratic belief in the supremacy of the House of Commons as the only really representative branch of the government. It was in the exercise of its judicial power that the House of Lords first encountered the democratic ideas that had been sown in the army,

the congregations of the sectaries, and London. Unhappily for the House of Lords it imprisoned in the summer of 1646 the chief of the Levellers, the stubborn and opinionated John Lilburne, who, summoned before the bar of that House for an alleged gibe at the Earl of Manchester, refused to answer ques-

tions on the democratic principle that the people of England had given the House of Lords no authority to take cognizance of his case. He was fined and imprisoned, but the Leveller attack soon spread to the legislative power of the aristocratic House. In a flood of pamphlets, addresses, and petitions the Levellers announced publicly that the House of Commons, elected by the people, was the only legal legislature. The king and the House of Lords were tyrannical and arbitrary usurpers. In one of the most famous Leveller tracts,

d Remonstrance of Many Thousand

Citizens (July 1646), Richard Overton voiced the protest of the Levellers against the imprisonment of their leader and at the same time presented their constitutional program as an integrated whole. Anticipating many items in the later Agreement of the People, he urged the abolition of the monarchy and the House of Lords, the supremacy of the House of Commons and its responsibility to the people of England, annual parliaments, unlimited religious toleration, and constitutional guarantees against the possible tyranny of the House of Commons. Overton expressed his democratic view of the supremacy of the House of Commons in these words addressed to its members: ‘Yee only 50

DURING

THE

PURITAN

REVOLUTION

are chosen by Us the People; and therefore in you onely is the Power

of binding the whole Nation, by making, altering, or

abolishing of Lawes.’® A favorite theme with the Levellers, as with later English democrats, was that the existing government of king, lords, and commons had resulted from the Norman Conquest. In a sense the Norman Conquest theory was the key to the attitude of the Levellers towards the war, which they viewed as a crusade to recover the lost liberties of Englishmen. The sign of bondage was government by king, lords, and commons, a bondage no longer endurable. In the Leveller tract, The Just man in Bonds

(June 1646), its anonymous author castigated the peers as ‘sons of conquest . . . and usurpation . . . not made by the people, from whom all power, place and office that is just in this kingdome ought only to arise’.!° Lilburne considered the source of titles unrighteous since they had been inherited from those made dukes, earls, and barons by William the Conqueror, that “Thief

and Tyrant’, for helping him to subdue and enslave England.14 Since government

of king, lords, and commons

was, then, an

imposition foisted upon the English people, the House of Commons should take the lead in curbing the powers of both the King and the House of Lords. And Overton reminded the House of Commons of its duty, saying, “The cause of our choosing you to be Parliamentmen, was to deliver us from all kind of Bond-

ages, 22 The antithesis of Leveller democracy was the much more popular theory of mixed monarchy fashioned earlier by Parliamentarian

writers like Herle, Hunton,

and the author of the

Political Catechism out of the Answer to the Nineteen Propositions. At this stage of the constitutional controversy the royal definition of the three estates, in particular, became the mainstay and comfort of the supporters of government by king, lords, and commons. Their response to the Levellers was unhesitating. The Presbyterian John Bellamie wrote that the three estates of ® Leveller Manifestoes of the Puritan Revolution, ed. Don M. Wolfe (New York, 1944), 116. For the affinity between the political ideas of the Levellers and the Digger leader, Gerrard Winstanley, see Works of Gerrard Winstanley, ed. George H. Sabine (Ithaca, New York, 1941), 61 ff, 528 ff.

10T. C. Pease, The Leveller Movement 11 Firth, op. cit., 163. 12 Wolfe, op. cit., 113.

51

(Washington,

1916), 146 (footnote).

MIXED

MONARCHY

AND

THE

HOUSE

OF

LORDS

king, lords, and commons ‘have in them joyntly, and together all the supreme power of this Kingdom’ ;and he insisted that the House

of Commons,

as one of three estates, only shared this

A similar view was taken by the Presbyterian supreme power. Thomas Edwards, who by 1646 was the leading spokesman for conservative Puritanism. In the third part of his notorious Gangraena (1646), which reflected to a marked degree the influence of the Answer to the Nineteen Propositions, Edwards attributed treason to the Levellers for having sought ‘with so much violence . . . the overthrow of the Three Estates’. Even Lilburne himself, Edwards noted, had earlier used, with appro-

val, the language of the three estates.14 Writing during the second Civil War, the Leveller William

Walwyn recognized that the theory of mixed monarchy had continued to dominate political thought despite two years of incessant Leveller propaganda. His Bloody Project appeared in August 1648, shortly after the Levellers and other Independents had petitioned the House of Commons to formulate a program that would unify popular elements in opposition to Charles I and the Scots. Walwyn considered the primary political problem facing these popular elements to be one of agreeing on the supreme authority in England so as to end the quarrels wracking the nation and plan constructively for the future. His words at this point were revealing. According to ‘common supposition’ this supreme authority was in three estates, all equal and essential, defined until the last few years as lords spiritual, lords temporal, and commons but, ever since the exclusion of the bishops, said to be king, lords, and commons.

Walwyn denied

that the supreme authority had ever been certainly stated and wanted to learn how it had been possible to exclude the bishops from parliament if all three estates were deemed equal and essential. As for the idea that supreme power rested in the

trinity of king, lords, and commons since the exclusion of the bishops, Walwyn remained skeptical. ‘If so,’ asked the Leveller,

‘when did the King assent to your Proceedings in this War, which all the art in the world will not perswade him to be for 18 Pease, op. cit., 123 f. Bellamie, 4 Vindication of the Humble Remonstrance and

Petition of the Lord Mayor, Aldermen, and Commons of the City of London (London,

1646), 13 f.

™ The quotation attributed to Edwards is from The Third Part of Gangraena (London,

1646), 217. See also ibid., the preface and 157, 160, 215 ff.

52

DURING

THE

PURITAN

REVOLUTION

him, but against him... ?’ The common supposition that there were ‘either three or two distinct Estates equally supream’ was scornfully rejected. Such a system of government was ‘an absurd nullity’ since no decision or action could be taken if one estate failed to agree with the others. If it were admitted, as was then

being claimed, that there were only two supreme estates (the two Houses), nothing could be done if they disagreed.14 Though little sympathy for Leveller democracy existed in the predominantly Presbyterian House of Commons or among Presbyterians generally, the army had proved from the first susceptible to the new ideas. When Richard Baxter became a chaplain in the New Model Army right after Naseby, he found the Independents, men and officers alike, ‘vehement against the

King and against all government but popular’. They had scant

respect for the claims of the peers because they thought their own much better. “What were the Lords of England,’ Baxter reported them as asking, ‘but William the Conqueror’s colonels? Or the Barons but his majors? Or the Knights but his captains?’ Lilburne’s and Overton’s appeals were industriously circulated in the army; and Lilburne’s books, so one report had

it, were quoted by the soldiers as statute law.1® This permeation of the army with Leveller doctrines would have meant less to the House of Lords had the two Houses of Parliament used more discretion. At the end of the first Civil War Parliament decided to disband the army, which was strongly Independent in religion and, in the ranks at least, Leveller in politics. Neither protective legislation for acts committed during the war nor adequate pay for war service was provided. To meet the threat of a Presby-

terian restoration of Charles I without adequate guarantees for religious and political liberties, an Army Council was formed consisting of the general officers of the army and two commissioned officers and two soldiers to be chosen from each regiment,

the representatives 15 The

Leveller

Tracts,

of the army 1647-1653

ed.

being known William

Haller

and

as Agitators. Godfrey

Davies

(New York, 1944), 140 f. Joseph Frank, The Levellers (Cambridge, Mass., 1955), 164 ff. Similar sentiments were expressed in the Leveller petition to the House of Commons on September 11th, 1648. Ibid., 167 f. For the fact that this view of the

three estates persisted throughout the Interregnum, chapter and footnote 5 in Chapter III. 16 Firth, op. cit., 166 f.

53

see footnote

33 in this

MIXED

MONARCHY

THE

AND

HOUSE

OF

LORDS

After the army commanders decided to defy Parliament, the army became the controlling factor in political as well as military affairs. The army was in London by August 1647, and the future

would soon show whether Leveller ideas so widespread among the rank and file would determine policy. Despite the strength of Leveller influence in the lower ranks of the army, the commanders, among whom Cromwell and his son-in-law Henry Ireton were the most influential, were much more conservative in politics and at this time were prepared to

maintain the power of the King and the House of Lords. In June Cromwell had written to the city officials of London that the army desired no alteration in civil government. By instinct and background Cromwell was politically conservative, and his interest was primarily in a religious settlement securing toleration. His natural tendency seems to have been towards mixed monarchy. Perhaps a good index to his political thought was contained in his view of social distinctions among men. ‘A nobleman,

a gentleman,

a yeoman,’

Cromwell

declared,

‘that is a

good interest of the nation and a great one.’ Thus he always regarded with distrust the egalitarian ideas of the Levellers and the extreme religious group known as the Fifth Monarchy Men. The latter group believed that the second coming of Christ, which was viewed as imminent, would establish a fifth monarchy on earth, the earlier ones having been the Assyrian,

Persian,

Greek, and Roman empires. With regard to both social and political institutions Cromwell’s instincts were to adhere to the old and established ;but since his chief interest was the religious settlement,

he

left constitutional

decisions

in the

main

to

Ireton.}? Ireton was the spokesman for the conservative party among the army officers in the Army Council. It has been said of him that at this time

he believed

in the ‘Old

Constitution,

“‘its

reason, prudence and justice’, as fervently as Burke’.!8 In point

of fact he dreaded nothing so much as the abstract theories of natural rights on which so much of Leveller doctrine was based. The best expression of Ireton’s political ideas was contained in ™ Firth, ‘Cromwell

LXXI

and the House

of Lords’,

Part I, Mac Millan’s Magazine,

(Nov. 1894—April 1895), 151. Wilbur Cortez Abbott, The Writings and

Speeches of Oliver Cromwell (Cambridge, Mass., 1939), II, 506 f. This is cited hereafter as Abbott.

*G. M. Young, Charles I and Cromwell (London, 1935), 48.

54

DURING

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REVOLUTION

the Heads of the Proposals of the Army (August 1647), in which provision was made for the retention of both the King and House of Lords with no substantial changes in the latter’s historic functions. There was, however, a clause providing that both Houses should pass on the membership of the House of Lords: no peers made since May 21st, 1642, should sit and vote in par-

liament without the consent of both Houses. This proposal had appeared in the Nineteen Propositions of 1642 and in the Propositions of Newcastle of 1646. Cromwell and Ireton were far removed, then, from the position of the Levellers, who were bitterly critical of their proposals

to retain the King and the authority of the House of Lords. When the Agitators presented a short sketch of a new constitution entitled dn Agreement of the People providing for the supremacy of the House of Commons, the dichotomy within the army had been publicly affirmed. In order to reach a compromise the Army Council met at Putney in late October and early November 1647. Cromwell and Ireton represented the conservative element among the officers; Colonel Thomas Rainborough and Colonel Robert Tichborne, its more advanced element, while the

Leveller John Wildman was spokesman for the lower ranks. In the ensuing debates three major proposals were advanced for rendering the House of Lords innocuous enough to placate the democratic sentiments of the rank and file. These were an amalgamation of the two Houses, a suspensive veto for the House of Lords, and what was called an exemptive veto by which the legislation of the House of Commons would bind only commoners unless the House of Lords expressly consented to be bound. Thus the latter House could exempt its members and their property from the operation of a law passed by the House of Commons. Except in cases of an actual affront to their House the peers were to proceed against a commoner only with the consent of the House of Commons, and a further clause pro-

vided that peers should be eligible for seats in the House of Commons.

The amalgamation scheme was given less consideration than that of limiting the legislative power of the House of Lords to a suspensive veto, but it was the scheme of an exemptive veto that received the most influential support. Tichborne argued vigorously for giving the House of Commons the substance of 55

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legislative power while leaving to the King and the House of Lords only the right of review. If after a review the House of Commons decided that the measure under consideration was necessary for the common safety, it would become law without the consent of the King and the House ef Lords. Ireton explained that the committee had dropped the suspensive veto as too dangerous to the House of Lords in favor of the exemptive veto, which would limit the legislative power of the House of Lords while reducing its judicial power to a minimum. Despite Ireton’s eloquent support Wildman remained unconvinced. The people of England, he was sure, would never be satisfied ‘unless . . . all

government be in the Commons’.?® The schemes discussed at Putney never went into effect. When demands swelled within the army for the punishment of Charles I and the abolition of the House of Lords, Cromwell’s

reaction was immediate. He returned the Agitators to the army and took steps to quell the incipient mutiny. The scheme of the exemptive veto never reached Parliament. The general Army Council disappeared and was replaced by an Officers Council. For the time being the army decision on the constitutional settlement of the kingdom was postponed. It was not until the fickleness of Charles I brought on the second Civil War in April 1648, that the King dissipated the reservoir of good will towards him possessed by both Cromwell and Ireton. Only then did the establishment of a republic become possible although it was destined to come into effect in a manner very different from that prescribed by a Leveller Agreement of the People. As the second Civil War ended in the summer

of 1648, the

two Houses began a negotiation with the King generally known as the Treaty of Newport. Among other concessions Charles I agreed to nullify all the titles that he had conferred since May 21st, 1642, and accepted the condition that all new peers should take their seats only with the consent of both Houses. Under this arrangement harmony between the two Houses would have been ensured,

and the Houses

of Commons

would

have been

given permanently a power that it had exercised since 1644. In all other respects the House of Lords would have been preserved

as it had existed on the outbreak of the war. The army, how18 Puritanism Woodhouse

and Liberty,

Being the Army Debates

(1647-49)

ed. A. S. P.

(Chicago, second edition, 1950), 114 ff. Firth, Op, cit. 182m

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ever, had no intention of being ignored in the settlement. In the Remonstrance of the Army (November

16th—20th, 1648), Ireton

pointed out the danger of continuing to deal with Charles I and emphasized the expediency of bringing him to trial. The King’s great crime had been his attempt to convert the English limited monarchy into an absolute government. When Ireton referred to England as a mixed state, he seemed to be saying that

Charles I had sought to destroy the mixed government. Ireton’s constitutional provisions were clearly written under Leveller influence, providing as they did for an elective monarchy in which the supreme power would be in a representative assembly ‘without further appeal to any created standing power’. Thus by implication he had forecast the abolition of the House of Lords.?° Ireton was obviously much more radical now than in the days when he had written the Heads of the Proposals, by which the House of Lords would have been maintained under conditions very similar to those in the proposed Treaty of Newport. In the

past year he and other advanced Independents had lost faith in Charles I, to whom they attributed the blood-letting of the second Civil War. If the monarchy were to go, the House of

Lords would soon follow. On December 6th, 1648, the army with Leveller support carried out Pride’s Purge, which left about fifty members of the House of Commons to rule England. This small House, known as the Rump, proceeded to make speedy provision for the trial of the King and for turning England into a republic. Once the Independents backed by the army were in control of the House

of Commons,

the fate of the House

of Lords was

sealed. Its abolition was hastened by the refusal of the twelve

peers still sitting to approve either the ordinance for the King’s trial or an accompanying resolution that it was treason according

to the fundamental laws of the kingdom for the King to levy war against the kingdom or Parliament. Not one of the twelve peers spoke in favor of the ordinance or the resolution, the Earl of Manchester insisting in the language of mixed monarchy that ‘by the fundamental laws of England, the Parliament consists of three estates, of which the King is the first. . . . Without him there can be no Parliament; and therefore it is absurd to say, the 20 The Parliamentary or Constitutional History of England, XVIII, 176.

E

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King can be a traitor against the Parliament.’?! The rejection of the ordinance led directly to the passage by the House of Commons of the three famous resolutions of January 4th, 1649, asert-

ing that the people were the source of all just power, that it was exercised for them by the House of Commons, and that whatsoever was enacted for law by that House bound all of the people of England even though the King and the House of Lords had not

consented.?? Acting without the House of Lords, the House of

Commons then passed the ordinance for the trial of Charles I, which erected a High Court of Justice to try him. Ignoring his

refusal to accept its jurisdiction, the High Court sentenced him to death on January 27th, 1649; and he was executed, three days later, at Whitehall. On March 17th, 1649, the office of king was

abolished. Notwithstanding the brave resolutions of January 4th, some

indecision lingered about the ultimate fate of the House of Lords. In the debates some speakers favored amalgamation of the two Houses, others were for immediate abolition, while still others

sought to preserve that House as a Court of Judicature or a Court consultory. Objection to the amalgamation scheme came from Bulstrode Whitelocke, a constitutional lawyer who later became one of Cromwell’s trusted advisers. He feared that confusion would result from the presence of the peers in the House of Commons where their influence would be greater than their numbers. The motion was set aside. When another speaker proposed abolition, Cromwell objected vehemently. He wondered whether ‘they were all mad, to take these courses to incense the Peers against them. . . when they had more need to study a near union with them’. The House divided thirty-two to eighteen for his view.?% *1 Quoted in Firth, House of Lords, 207. Before the first Civil War Manchester

(Lord Mandeville) had been a leader of the Puritan and popular party in the House of Lords. At the time of the attempted arrest of the five members of the House of Commons,

his name was added to the list for impeachment; and he was

one of the few peers who stayed with the two Houses after the war came. He served as major-general in the Parliamentary army but was charged with inactivity because ofhis desire to end the war with a treaty rather than by an absolute victory in the field. Hobbes wrote of another Parliamentary general, the Earl of Essex,

that he considered

England

‘not an absolute, but a mixed monarchy’.

Works, VI, 308.

22 Firth, 208. See also Journals of the House of Commons, VI, 111. 28 Firth, House of Lords, 210.

58

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The retention of the House of Lords as a Court of Judicature

or Court consultory was the last proposal debated. For a time it appeared that the matter might go to committee, but the Rump adjourned without taking action. When the discussion was resumed on February 6th, the conservative party in the Rump, wishing to preserve the House of Lords, if not its power, offered a motion “That this House take the advice of the House of Lords in the exercise of the legislative power. . . .’ Despite Cromwell’s support the motion was defeated, twenty-nine to forty-four. It was then resolved without a division that ‘the House

of Peers in Parliament

is useless and dangerous, and

ought to be abolished’.?4 On March 19th, 1649, two days after the office of king had been abolished, the House of Lords was also ended; and on May 19,

1649, England was declared a commonwealth without king and without House of Lords. Thus an oligarchic remnant of the Long Parliament, supported by an unpopular army, remodelled the constitution to set up a republic for a nation imbued with admiration for mixed monarchy. The House of Commons had finally established itself as the supreme power in the state that so many Leveller manifestoes had declared it to be. One estate had devoured the other two, and for the time being the mixed

government so eloquently described by Charles I was gone. Although the House

of Lords perished as a result of the

second Civil War, plans were advanced throughout the civil-war

period for its continued existence side by side with the House of Commons. These plans may usefully be recapitulated at this point. An important source of contention between the two

Houses had been eliminated even before the outbreak of war by the removal of the bishops from the House of Lords. In a sense

the House of Commons had thus succeeded in establishing a claim to pass upon the membership of the aristocratic House, a claim that it sought to legalize. In 1642, 1646, 1647, and again in 1648, proposals appeared to the effect that the entrance of new peers into the House of Lords must be approved by both Houses. As the war went on, the Levellers brought into question the veto power of the House of Lords and, indeed, its very existence. In the Putney debates the issue was seriously discussed as to

24 [bid., 211-13. 59

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whether the House of Lords should have a suspensive or an exemptive veto. This issue grew less vital as Charles I’s lack of good faith alienated the advanced Independents, of whom Ireton and Cromwell were the most powerful. In their anger both abandoned mixed monarchy; and Ireten, at least, moved to the

Leveller position of favoring a strong House of Commons and by implication no House of Lords. From 1645 on proposals had appeared for the destruction of the House of Lords either through a scheme of amalgamation or outright abolition. Before the final decision was taken one last attempt was made in the purged House of Commons to retain the House of Lords as a Court of Judicature or Court consultory. The final abolition of the House of Lords in March 1649, was the work of a minority of Independents, inspired by the pure democracy of the Levellers and

deeply disillusioned with kingship. It was soon seen in the days ahead that the death of Charles I and the dissolution of the three estates had solved nothing. During the next four years the Rump ruled England without king and without House of Lords. Uniting in itself the executive, legislative, and judicial powers which it had inherited, this omnipotent though really unrepresentative body so tried the patience of the army and its Lord General Oliver Cromwell®* that he forcibly dissolved it in April 1653. He thus created a breach between the civilian and military supporters of the republic in the long run fatal to its preservation. Such fervent republicans or Commonwealths-men

as Vane, Sir Arthur

Hesilrige, Thomas

Scot, and Ludlow never forgot the humiliation of the forced dissolution; and they always looked back with nostalgia to the government of the Rump as that of a model republic for England. Just as the Levellers were in part responsible for the destruction of mixed government in 1649 so did the Commonwealths-men eventually help to destroy the imitation of that ancient form provided in the Petition and Advice (completed by June 1657). Although Cromwell now allowed the Council of Officers cooperating with Independent ministers to name moral and religious men to a new parliament, known variously as the Little Parliament or the Parliament of Saints or Barebones’ Parliament, * He described the Rump as ‘assuming to itself the authority of the three estates

that were before’. Firth, Oliver Cromwell (The World’s Classics, 1953), 229,

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it is highly probable that he would have preferred a mixed monarchy. On December 10th, 1651, while the dissolution of the Rump was already under consideration, Cromwell called a meeting at Speaker Lenthall’s house to discuss a constitutional settlement of the kingdom. The date was significant for three months earlier Stuart hopes of a restoration had been dashed at the battle of Worcester, and two months earlier the death of Ireton

had eliminated Leveller influence from Cromwell’s councils. So far as is known there were no Levellers or Rump Republicans present. The group was composed of two main sections: constitutional lawyers anxious for the reéstablishment of mixed monarchy and army officers equally vehement for a republic. Attending the meeting besides Cromwell were the conservative Commissioners of the Great Seal, Sir Thomas Widdrington and

Bulstrode Whitelocke, both of whom had refused to participate in the King’s trial and had retired to Whitelocke’s country home to avoid the distasteful proceedings, and Chief Justice Oliver St. John, who was apparently dismayed at the destruction of the monarchy although he had been one of Charles I’s greatest enemies in the Long Parliament. For the army there were two of Cromwell’s relatives, Colonel Edward Whalley and Major General John Desborough; Lieutenant General Fleetwood, who

later

became

Cromwell’s

son-in-law;

and

Major

General

Harrison, later the leader of the Fifth-Monarchy Men. Whitelocke, who left an account of the meeting, summarized

the discussion when he wrote that “generally the soldiers were against anything of Monarchy . . . the lawyers were generally for a mixt Monarchical government and many were for the Duke of Gloucester [youngest son of Charles I] to be made King’. In the lawyers’ view the administration of laws, depending as it did upon the office of the king, would become easier if the monarchy could be restored. Since Cromwell, Widdrington, and Whitelocke participated in the formation of the Petztion and Advice, though the exact authorship is not known, their remarks

at this meeting are of very considerable interest. Their choice of language provides important evidence that its authors sought to reéstablish mixed monarchy. Whitelocke asked whether they

should not agree on the type of settlement desired—‘whether of an absolute Republic, or with any mixture of Monarchy’. Crom61

MIXED

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LORDS

well seized on the latter phrase. ‘It is my meaning,’ he said, ‘that we should consider, whether a Republic, or a mixed

Monarchical Government will be best to be settled.’ Sir Thomas Widdrington favored ‘a mixed Monarchical Government’ as ‘most suitable to the Laws and People of this Nation’. When Widdrington proposed making the Duke of Gloucester king, Cromwell expressed opposition to the return of the Stuarts but not to ‘a Settlement with somewhat of Monarchical power in it’.26 It was but a year later that Cromwell asked Whitelocke significantly: ‘What if a man should take upon him to be a King?’?? Although the conference at Lenthall’s house led to no immediate decision to reintroduce monarchy, further practical experience with the government of a single house strengthened the conviction of Cromwell and the lawyers that mixed monarchy was preferable to an absolute republic. In December 1653, the Little Parliament surrendered its powers to Cromwell,

who promptly put in force a constitutional document known as the Instrument of Government, which had been prepared by General John Lambert and his fellow officers. The new constitu-

tion provided for a Lord Protector a single House of Parliament and S. R. Gardiner, ‘the stamp of an course between the despotism of despotism of a “‘single House’’’.?8

(Cromwell), a Council, and thus bore, in the words of intention to steer a middle a “‘single person’’ and the Cromwell had started along

the road, then, that led back to mixed and balanced government.

He went still further in this direction with the introduction of the Petition and Advice, which in its original form outlined a

kingship, a House of Lords, and a Lower House that could be called a House of Commons. Cromwell had agreed only reluctantly to the abolition of the House of Lords, and his natural conservatism had subsequently been reinforced by the case of the Quaker James Naylor, whom Parliament punished severely for religious

extravagance.

The

Protector,

seeking

to intervene,

was rebuffed by a member who claimed that Parliament possessed all the power that previously had belonged to the House of 26 Abbott, op. cit., II, 506 f.

*7 Samuel Rawson Gardiner, Oliver Cromwell (London, 1901), 206. *® Introduction to Constitutional Documents of the Puritan Revolution third edition, reprinted 1951), lvi.

62

(Oxford,

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Lords. The lesson that he had learned in Naylor’s case Cromwell communicated with effect to the army officers who complained about the proposed institution of a second chamber in the Petition and Advice. He told them: ‘You are offended at a House of Lords. I tell you that unless you have some such thing as a balance you cannot be safe . . . either you will grow upon the civill liberties by secluding such as are elected to sitt in Parliament [almost one hundred members had been excluded from the existing Parliament]... or they will grow upon your liberty in Religion.’ ?°® The exact authorship of the Petition and Advice is unknown. It may have been prepared by Sir Thomas Widdrington, Speaker of the Parliament that approved it and author of a learned speech in its support, or by the ex-Royalist Lord Broghill, who gave the project active backing after it was launched. It has been generally ascribed to Broghill, Whitelocke, Glyn, and the other lawyers and politicians who on April 11th, 1657, after

the Petition

vigorously

before

and Advice

had

been

Cromwell

the

advantages

brought

in, argued

of monarchy.

Present besides Broghill, Whitelocke, and Glyn were Lords Commissioners

Nathaniel

Fiennes and John Lisle; Sir Charles

Wolseley, a member of the Protector’s Council; and William Lenthall, Master of the Rolls. The group was a committee that had been named by Parliament to confer with Cromwell about his taking the crown, and Whitelocke was its chairman. In constitution-making this Whitelocke Committee, as it may be called, may well have remembered the Answer to the Nineteen Propositions. Whitelocke supplies the prime example. He had been appointed to the committee in 1642 that was to reply to the preamble of the Answer and may have been its chairman;

and he had presided over

the House

of Commons

when, on several occasions, as a committee of the whole it had

considered the Nineteen Propositions and the Answer. More29 Firth, ‘Cromwell and the Crown’ Part II, English Historical Review XVIII (1903), 60 f. That the new House was seen by contemporaries as occupying a place in the government analogous to that formerly held by the House of Lords can be seen in some of the letters of the period. John Maidstone, Steward in the

Protector’s Household, wrote to his kinsman John Winthrop that ‘provision was

made for another house of parliament, instead of the old lords: that this might be a screen or ballance betwixt the protector and commons, as the former lordes had been betwixt the king and them’. 4 Collection of the State Papers of John Thurloe, ed. Thomas

Birch (London,

1742), I, 766.

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over, he had been present at the meeting in December 1651, at Lenthall’s house, in the course of which there were frequent references to mixed monarchical government; and early in the reign of Charles II he wrote a book on the English government in which he not only used the royal definition of the three estates but also, after noting that the power of each estate was ‘exactly described by the late king in his . . . answer to the 19 propositions’, quoted in full Charles I’s discourse on the constitution as the authoritative exposition of their powers.*° Fiennes and Glyn had also been appointed to the committee of 1642, and both Widdrington and Lenthall had attended the meeting of December 1651. Parliament had voted on March 5th, 1657, that future parliaments should consist of two houses; and Cromwell

was asked

to assume the crown. When he yielded to the protest of the army and refused the royal title, the new constitution was amended to retain the Protector’s office and was formally accepted by Cromwell on May 25th, 1657. On June 26th further changes were added by the Additional Petition and Advice so that in the final form of the new government the Protector was given the right to name his successor and the life members of the House of Lords. The judicial functions of the new House were precisely defined; the legislative functions were not. Had Cromwell become king, the ‘other House’ would have fallen automatically heir to the legislative power of the old House of Lords. Since he had remained Lord Protector, the function of the new

House

remained to be decided. In the debates the supposition had prevailed that refusal of the title of king by Cromwell would mean no second chamber. That Parliament did not drop the idea of a new House suggests that

the hope of reinstating mixed monarchy lingered, and that further definition of the powers of this House did not follow his refusal of the crown seems to indicate that the way was being kept open for his eventual consent. In the final result the ‘other House’ was the victim of this game. If the pro-monarchical element had conceded defeat, the position of the ‘other House’ might have been defined in a manner agreeable to the opposition. In this sense the army leaders had won a major victory °° Whitelockes

Notes

Uppon

1766), II, 43 f., 50, 308-10.

the Kings

64

Writt,

ed. Charles

Morton

(London,

DURING

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when they virtually compelled the Protector to refuse the crown. As one

Oliverian

wrote,

they had forced him like Aaron

‘to

make a Calfe like the Egyptian Ox, an other House instead of a House of Peers’. Their victory consisted of having erected an institution that must lead either to a kingly settlement or to the undoing of the new constitution. The consequent vulnerability of the ‘other House’ made it the focal point of opposition in the next session of this Parliament and in the Parliament of Richard Cromwell. It had numerous enemies; for in this House lay the most serious threat to the advocates of military rule, the Commonwealths-men, and to the sectaries, who considered that the

religious provisions of the Petition and Advice menaced their religious freedom.*4 The success or failure of the ‘other House’ in being recognized as a House of Lords was of vital importance to the new settlement, and most people felt that its future would be assured if the old Lords agreed to sit in Cromwell’s House. The Protector’s objective was to erect a House of Lords having as its nucleus a small group of hereditary peers complemented by a larger number of life peers. On December 10th, 1657, he issued

writs of the ancient form to sixty-three persons, of whom some forty-two accepted; and thirty-seven of these appeared at the first meeting. Of the seven hereditary peers summoned, only two came; and they were too unimportant, both in person and in fortune, to lend the new

House

of Lords

the desired aura of

antiquity. They were Cromwell’s son-in-law Thomas Bellasis, Lord Fauconberg, and George Lord Eure, a poor and insignificant peer. Of the other five hereditary peers of England who were summoned

the Earl of Mulgrave,

old and ill, died in August

1658; the Earl of Manchester had stood aloof from the government ever since the execution of Charles I; and the Earl of War-

wick, whose grandson and heir with his permission had just married the Protector’s daughter Frances, stayed away, either because of pride or fear of seeming to surrender the rights of his order; Philip Lord Wharton, the fourth peer summoned, would perhaps have accepted had he not been dissuaded by a letter from Lord Saye and Sele, the fifth peer. Lord Saye and Sele’s letter bore distinct marks of the influ31 R. C. H. Catterall, ‘The Failure of the Humble Petition and Advice’, American Historical Review, 1X, 41 f.

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ence of Charles I’s Answer to the Nineteen Propositions. The English constitution, he reminded Wharton, was the best in the world. Composed of a mixture of the three forms of governments, it contained the ‘quintessence of them all, and thearby

alsoe the one is a boundary unto the other’ so that each was kept from falling into ‘the extreames which eather apart are apt to

slippe into, Monarchy into Tyranny’, etc. The mainstay of this

mixed and balanced government

was the House of Lords, the

members of which had acted as ‘the beame keepinge both scales, Kinge and people, in an even posture, without incroachments one upon another to the hurt and dammage of both’. Long experience had made it evident that ‘they have preserved the just rights and libertyes of the people agaynst the tirranical usurpation of Kings, and have alsoe as steppes and stares [stairs] upheld the Crowne from fallinge and beinge cast downe upon the flower

[floor] by the insolency of the multitude from the throne of government’. Since this was so, he wrote to Wharton, it would be most unjust, dishonorable, and unworthy for the peers to

allow themselves to be made a stalking horse for the designs of Oliver Cromwell.*? The refusal of these five peers to accept seats in the ‘other House’ deprived it of weight and reputation. Indeed, their absence foredoomed the new House of Lords to failure; for the

opposition seized upon it as a pretext for denying recognition to the new House, ‘scrupling to owne all of them as Lords’, as

one writer said, “especially seeing the Earles of Warwick, Mulgrave, and Manchester, the Lo: Wharton and Lo: Say did not appeare there.’*3 There were, moreover, defects in the composi-

tion of the larger assemblage of life peers. Probably Cromwell's great mistake was in giving the military element too large a representation. Of the men chosen as members of the ‘other House’ some 18 were related to the Protector, 4 were sons of peers, 10 were sons of knights and barons, and 16 were of ancient family. About 21 were Cromwellian colonels; and all the 82 English Historical Review, X (1895), 106 f. Lord Saye and Sele had expressed an admiration for mixed government before the appearance of the Answer. See footnote 25 in Chapter I. 88 Catterall, loc. cit., 49 (footnote). An objection to the ‘other House’, voiced in Richard Cromwell's Parliament by Anthony Ashley-Cooper, was that it gave the Protector the power of becoming ‘in effect two of the three estates’, W. D. Christie, A Life of Anthony Ashley Cooper (London, 1871), 1, Appendix IV, Ixvi.

66

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of the Council

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named

except

John

Thurloe,

Secretary of State and close confidant of Cromwell during the period in which the decision on the kingship had been in suspense. The partisan quality of the ‘other House’ was obvious. Had it received the accession of strength which the old peers

could have given it, it might well have become a strong buttress for the Cromwellian dynasty. But without the presence of the hereditary peerage observers feared that the new House would be, in the words of John Maidstone,

‘too thin for a screen, too

light for a balance’.*4 Equally inauspicious for the launching of the new government was the composition of the mons. As a consequence of a that the Lower House should members about ninety-three

Lower House or House of Comprovision in the Petition and Advice determine the eligibility of its own anti-Cromwellians, excluded from

the first session, moved into the Lower House while thirty Cromwellians went to the ‘other House’. The anti-Cromwellians formed a majority, or nearly so, in the Lower House. Their leaders were the Commonwealths-men Hesilrige and Scot, ably supported by Anthony Ashley-Cooper, whose aim was to reéstablish the Rump, which they considered the ideal republican government, without check by another house or ‘single person’. They could rely on the support outside Parliament of the FifthMonarchy Men, the sectaries, and malcontents in the army. The

anti-Cromwellians decided that their best strategy, since they were bound by oath to the Protectorate and the new constitution, was to attack the ill-defined position of the ‘other House’. Although the meaning of the Petition and Advice had been that the new House should be a legislative body occupying much the same position as the old House of Lords, they contended that it was merely a judicial High Court for certain classes of cases. On

this point they hoped to create a breach in the new constitution. Two days after the opening of Parliament the arrival of messengers from the ‘other House’ furnished the Commonwealthsmen with the opportunity to attack the new House of Lords. Whether a reply should be addressed to the ‘other House’ or to the House of Lords became of cardinal significance. The first appelation would keep the new House in the dubious position 34 Firth,

The Last Years of the Protectorate,

16 (footnote). Thurloe, op. cit., I, 766.

67

1656-1658,

(London,

1909),

II,

MONARCHY

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assigned by the Petition and Advice, whereas the second would

recognize that the new chamber possessed the rights and privi-

leges of the old hereditary House of Lords. After one member

had suggested deferring decision, Sir Lislebone Long asserted

vigorously that if the sense of the House was that the ‘other House’ was no House of Lords, no member was worthy to sit in the Lower House who would not tell the members of the ‘other House’ that it was not ‘fit to call them a Lords’ House’.*® But the Lower House took no such decisive step, and the debate dragged on until interrupted by Cromwell on January 25th. He summoned the two Houses to the Banqueting House at Whitehall and urged their members to lay aside constitutional disputes. He asked them pointedly: ‘Have you any frame or model of things that would satisfy the minds of men, if this be not the frame that you are now Called together upon, and engaged in—I mean the two Houses of Parliament and myself?’ When a committee of the Lower House was sent to secure a copy of his speech for printing, Cromwell seized the opportunity to clarify his meaning: he told its members that his comments in the Banqueting House were to both Houses, ‘the House of Lords and the House of Commons’.

His meaning was unmistakable. House

were

to agree,

the

‘other

If Cromwell

and the Lower

would

House’

have

to be

accepted as a House of Lords.*6 The Protector’s support failed to secure the coveted recognition. The debates in Parliament grew more prolonged as Hesil-

rige and Scot aired their grievances against the old House of Lords and their opposition to a new one. Meanwhile the Commonwealths-men were busy outside Parliament. One of their number,

John

Weaver,

was

a prime

mover

in an

attempt

to

effect a coalition of republicans opposed to the new constitution. A petition, calculated to appeal to dissident elements, circulated widely and obtained thousands of signatures. It promised the restoration of the Rump or the formation of a similar parliament,

unchecked

by Protector,

second

chamber,

or

written constitution; no oppression of tender consciences; and

no cashiering of officers without the consent of a council of war. The later history of the petition showed that it was promoted by some Baptists and Fifth-Monarchy Men. The plan was to ignore 8° Diary of Thomas Burton. . . . (London, 1828), II, 343. SOVADDOtt, Op. Clt., V5 Wee.

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the existence of the ‘other House’ by presenting the petition to the Lower House as the only proper legislature and then to use it as a talking point for the destruction of the government provided in the Petition and Advice and perhaps for the overthrow of the Protectorate. Cromwell’s dissolution of Parliament on February 4th, 1658, was, no doubt, to forestall the presentation of the petition. After sending the Black Rod to summon the Lower House, he com-

mended the ‘Lords’ for their faithfulness to the public interest

and their willingness to carry on the government as it had been settled Houses to the Advice

in the new constitution. His tone to the assembled was sharp. He owed his present position, he told them, House of Commons which had framed the Petition and ‘in reference to the ancient constitution’. He had not

sought this government, and he had undertaken its burden only with the understanding, Cromwell told the members of the Lower House, that “some other body . . . might interpose between you and me. . . to prevent a tumultuary and popular spirit’. Such a body was the ‘other House’, the members of which he had named

with integrity; for he had named

it out of men

valuing the Christian and English interest who would be a ‘balance to a Commons House of Parliament’. But the Com-

mons, he continued, had tried to overthrow this government and set up another, in which some tribune of the people (clearly Hesilrige or Scot) would rule all. If this were the purpose of their sitting, he concluded solemnly, it was high time that it was ended.3? Once Parliament was dissolved, Cromwell cashiered

six principal officers of his own regiment, all Anabaptists, because, as one of them said afterward, they had refused to recognize the ‘other House’ as a House of Lords.** So ended for the time being the attempt to reinstate mixed monarchy with the House of Cromwell in the place of the House of Stuart. Once the Protector had refused the crown, the fate of

the Petition and Advice had rested upon the fortunes of the ‘other House’. Seen in retrospect the result is not surprising. In its first session the Parliament responsible for the preparation of the new constitution had been pro-Cromwellian, but in its next session Parliament had split into two Houses in such a way that 37 Tbid., 728-32. 38 Catterall, loc. cit., 57. Burton, op. cit., III, 165 f.

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the Lower House became anti-Cromwellian while the Upper House was pro-Cromwellian. Add to this unhealthy situation the absence of the office of king so vital to the settlement as a whole and the consequent ill-defined position of the ‘other House’, and it is clear that the transition to a two-house legislature would have been difficult in the most favorable circumstances. The part which failure to define the status and functions of the ‘other House’ had played in the failure of the Petition and Advice was obvious. Josias Berners upbraided the monarchists who had prepared the constitution for spending so much time on a title (of king) while neglecting to build the House of Lords on a sure foundation. The answer to this reproach would be, of course, that had Cromwell become king, the new House of Lords would have

automatically rested upon a sure foundation. After his refusal the ‘other

House’,

as one

observer

remarked

acutely,

had

been

totally disowned by all who had anything to do with it: when summoned, it was disowned by the House of Commons that had made it; it was disowned by the old peers who refused to sit in it; it was disowned by the ‘generality of the people’ who made no addresses to it; and it was disowned by Oliver Cromwell when he dissolved Parliament because no hope existed of reconciliation between the two Houses. Undoubtedly, Oliver’s Lords could have had little to do but meet and look at each other.3? There

appeared

in Richard

Cromwell’s

Parliament

(January

27th—April 22nd, 1659) a new republican element influenced by the political ideas of James Harrington and hostile to the amorphous ‘other House’. His ideas were expressed in The Commonwealth of Oceana (1656) to which his friend Henry Neville is thought to have contributed. Unlike the Commonwealths-men and the sectaries Harrington concluded that more was necessary to make England a republic than the execution of the King and the abolition of the House of Lords. ‘A council without a balance’ was, he asserted, ‘not

a commonwealth

but an oligarchy.’ On

39 Catterall, loc. cit., 54, 55 (footnote). The Journal of the Protectorate House of Lords is in Historical Manuscripts Commission, The Manuscripts of the House of Lords, 1699-1702,

IV, New Series, 503-67.

It is evident from the Journal that

the members of the ‘other House’ viewed it as a House of Lords and sought to

carry on in the manner of the old House of Lords. See the ‘Introduction to the Journal of the Protectorate House of Lords’, ibid., xlvi-lxii.

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this point he was more in harmony with Cromwell than with Hesilrige. He had therefore drawn up a plan for government by a two-chambered

legislature, which he dedicated to the Lord

Protector in the hope that he might put it into effect and then retire. Tradition has it that Cromwell read the work and then remarked that the gentleman would trepan him out of power, but

what he had won by the sword, he would not relinquish for a little paper shot.

The political system described in the Oceana was based on the fundamental Balance

Harringtonian principle that ‘Empire follows the

of property’,

or, as his admirer

‘Power follows property.’ landownership in a state state, or, in Harrington’s ballance of . . . property

John Adams

put it,

The nature of the distribution of determined the government of that own words, ‘as is the proportion or in Land, such is the nature of the

Empire’. This could easily be demonstrated from English history. The breaking up of the great estates and the monasteries during the early Tudor period, he explained, had so distributed the land that monarchy and aristocracy had become impossible in England. When Queen Elizabeth had elevated the House of Commons, the status of the nobility by comparison with commoners was further depressed; and when Charles I, acting on the

advice of his clergy, had created a breach between himself and the Commons, the ‘house of Peers which alone had stood in this Gap, now sinking down between the King and the Commons’,

the monarchy had been destroyed and government dissolved. In a word, the Civil Wars

had not caused the dissolution of the

government; the dissolution of the government had caused the Civil Wars. Harrington applied the principle of the balance of property to

the theory of mixed government with resulting definitions of government markedly different from the traditional. Government according to the ancients and Machiavelli, ‘the only Polititian of Later Ages’, was of three kinds: the government of one called monarchy, of the better sort called aristocracy, and of the whole people called democracy. Since these simple forms easily degenerated into tyranny, oligarchy, and anarchy, the ancients had held that only a mixture of the three good forms was desirable. Because Harrington held that government was determined by the possession of land, his own definitions of government were rial

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determined by landownership within a state. If a man were the sole landlord of a country, or the great part of it, the state was an

absolute monarchy. If the greater part of the land were in the hands of the few—of the nobles and the clergy as in England until recently—a mixed monarchy was the result. Finally, if the land were in the hands of the people as a whole, as was now the case in England, then the state was a commonwealth unless force

was used to prevent this natural result from occurring. To maintain a stable commonwealth in England, Harrington argued, it was necessary that land distribution be fixed by an agrarian law. Since the change in land ownership in England had made the continuance of the monarchy and the House of Lords impossible, Harrington was ready with a form of government to replace it which would retain the principle of mixed government in a republic by combining monarchy (in the magistracy), aristocracy (in the Senate), and democracy (in the people represented by the Prerogative Tribe). To secure purity in government four fundamentals were necessary: the ballot, indirect election, rotation in office, and two elective chambers in which the functions of

debating and voting were kept separate. In Harrington’s words, ‘that which is proposed by the Authority of the Senate and resolved by the Command of the People, is the Law of Oceana’. This senate would be composed of about 300 members, of which one-third would go out each year. To be a member a candidate should be thirty years old, have had military service, be married, and possess goods, land, or money equivalent to £100 a year. The Prerogative Tribe would have 1,050 members, who would

also hold office on a rotation basis. The more populous assembly would have both the legislative power of passing laws and the highest judicial power. Elec tion would be indirect. Every man not a servant could vote for deputies, who, in turn elected the members of each house.*® These were the main tenets of the extremely influential political system associated with James Harrington. They were widely aired, particularly through the activity of Henry Neville, in the Parliament of Richard Cromwell and in the

period of political anarchy that followed its dissolution. Through

4° The Common-wealth of Oceana, ed. S. B. Liljegren (Heidelberg, 1924) 13-16, 25, 33, 48-50,

117,

125,

127,

142.

H.

F. Russell

Smith,

Harrington

and his

Oceana (Cambridge, 1914), 23, 46 f. Firth, Last Years of the Protectorate, 1, 68 ff.

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Neville these principles permeated the ‘Good Old Cause’, a phrase of republican or regicide origin that usually referred to the pure republican government of the Rump, for which a philosophical basis had been provided by Vane’s Healing Question (1656). Vane had urged the sovereignty of those who had adhered to the cause for which the Parliamentarians had contended in their war with Charles I. To Vane the essentials of the ‘Good Old Cause’ were religious freedom and government by a single popular assembly, and accordingly he urged that the whole body of ‘honest men’ should set up a supreme judicature. It would be aided by a Council of State, its members elected for life, that would attend to foreign affairs, while executive power could be placed in a separate office. But both would be subject to the supreme Judicature elected by those faithful to the cause.4! After Vane read the Oceana, he wrote to express his admiration; and

the remaining Levellers joined the Harringtonians. Vane’s definition of the “Good Old Cause’ brought hostile criticism from Richard Baxter, whose Holy Commonwealth (1659) revealed that his views on the English government had been importantly influenced by the Answer to the Nineteen Propositions. His book supplies convincing evidence that, ten years

after the King’s death and a year before the Restoration, the Answer

still occupied a prominent place in English political

thought. Plainly the Presbyterian leader viewed it as the authoritative exposition of the English constitution. Baxter denied that it had been part of the old cause to assert that sovereignty was in the people, whether godly or not; and he was equally certain that it was not in the House of Commons alone. It was past doubt, he said, that sovereignty was seen, on the eve of the first Civil War, as mixed and distributed in the hands of king,

lords, and commons and that no part had authority to change the constitution. To state that the purpose of the war was to change the constitution, as Vane had implied, was, in Baxter’s judgment, to place at the door of the two Houses the guilt for the bloodshed and the miseries of the nation. In support of his constitutional analysis the Presbyterian leader invoked the Answer

to the Nineteen Propositions, and he reprinted zm extenso the 41 4 Healing Question was reprinted in 1660 and is in Somers Tracts, ed. Walter Scott (London, 1811), VI, 303 ff.

“5

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pertinent paragraphs on the mixed nature of the English government.42

The republican union of Vane and Harrington and the disaffection of the army posed the greatest threat to the survival of the Protectorate based on the Petition and Advice. On his deathbed Oliver Cromwell had named his oldest son Richard as his successor, much to the disappointment of some army officers led by Fleetwood and Desborough. Three distinct parties now arose. The Wallingford House party, which met at Fleetwood’s residence, was composed of the disaffected army officers determined to secure for him a position at least equal to Richard’s.

The civilian republicans met at Vane’s house in Charing Cross, from which they proclaimed the illegitimacy of any government but the Rump. In an intermediatory position was the court party, composed of such members of the Council as John Thurloe and Fiennes, with support from Henry Cromwell (a younger son of Oliver Cromwell) and Lord Broghill, possibly even from General Monk. Their aim was to make Richard’s Protectorate a continuation of his father’s, and the announcement of a new parliament for January 1659, marked the second phase of the

attempt to establish the ‘other House’ as a House of Lords.

Secretary Thurloe looked on apprehensively as elections were carried on, but the complexion of the parliament proved more favorable than anticipated. The membership of the ‘other House’ was composed of those among the sixty-three peers, named by Oliver Cromwell, who chose to attend the new Parliament. So

many of the Wallingford House party had been named that in the usual slim House of about forty the military may have been stronger than the court party. More important for the future of the ‘other House’ was the composition of the Lower House. Of some 558 members almost fifty were pure republicans, among them

Scot,

Vane,

Hesilrige,

Ludlow,

Neville,

and

Weaver.

There were ten Harringtonians, the most prominent of whom were Neville and a certain Captain Baynes, who had speculated in Royalist lands and was very much aware of the Harringtonian dictum that political power should follow property. Thurloe was the leader of about 100 Government adherents; and 42 Holy Commonwealth,

‘An Addition to the Preface’ and 462 ff. Baxter in turn

was answered by the Cromwellian publicist Marchamont Needham who was also familiar with the Answer to the Nineteen Propositions. Interest will not lie. . (London, 1659), 34 f.

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he waited anxiously to discover the view of the remaining neutral members, many of whom were Presbyterians. That the new Lower House was friendlier than the last to the new constitution was quickly seen, for on February 19th, it voted without a division that the legislature should consist of two chambers. It remained only to define the nature and powers of the second chamber. Once the Lower House had recognized the existence of the ‘other House’, a debate ensued on the limitations to be placed on

its powers. One speaker was in favor of calling it the House of Lords, and he spoke the language of mixed government in urging his brief. “I take the single person and the Commons as two scales,’ he declared,

‘the House

of Lords

as the beam.

Both

scales are subject to factions and tyranny and extravagances. The beam is prudential.’4 The next speaker feared that enslavement would follow calling the ‘other House’ a House of Lords. So the debate dragged on. Such a plethora of schemes was mooted that it is difficult to discern the threads of continuity. But there was general agreement on certain broad principles: the membership in the ‘other House’ should not be hereditary

though there was no decision as to whether its members ought to be elected or to sit for life; the balance of property prohibited a return to the old House of Lords; and the ‘other House’ should not receive too much power because of its preponderant military element. One of Henry Cromwell’s correspondents supplied a good index to the nature of the debate when he wrote that ‘the house is much divided, some being for the old peeres only, some for the new lords only, and others for both together; while the

commonwealth partye sett still, resolveing to give their vote to the greatest disadvantage of his highnesse’.*#

Prominent in the debates were the Harringtonians Neville and Baynes. The former announced that those seeking a commonwealth were for a single person, a senate, and a popular assem-

bly—not for king, lords, and commons.

On another day he

implied that the ‘other House’ might be considered preparatory for what existed in many places: one assembly to propound and another to decide the laws. ** In his later Plato Redivivus (1681), 43 Burton, Diary, III, 362. 44 [bid., 363; Thurloe, State Papers, VII, 626. 45 Burton, Diary, III, 182-4; 320 f.

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Neville was more cautious than in 1659. In this work he followed closely the Harringtonian doctrine of the relationship between land ownership and political power; but on the subject of the House of Lords he was reticent, confining himself to the

suggestion that peers should be made by both houses of parliament, a proposal that had frequently appeared in the civil-war period.4® During the debates in Richard Cromwell’s Parliament he was ably seconded by Baynes, who announced bluntly that if property were in the hands of the people, political power also

belonged there. If a House of Lords could be established that could balance their property, then let it be done. But Baynes was skeptical. Above all, he insisted, there must be a balance.*?

A former member of the Long Parliament, John Stephens,

presented an ingenious combination of proposals that came close to being inclusive of those broached in the debates as a whole. He began by stating the Harringtonian dictum that the House of Lords owed its previous place in the government to the landed property possessed by its members. Now that the Commons possessed more than the Lords, they should possess a larger share of the political power. Let the House restore such of the old Lords as had not forfeited, he proposed, and add some new ones, both the numbers and persons to be approved by the Com-

mons. In general, this ‘other House’ should not have a veto power. However, it could be said that there were two kinds of

acts, private and public. Let private acts pass without the assent of the ‘other House’; but if the Commons should declare an act public and disagreement should arise, first hold a conference; and if this were unsuccessful, let the two Houses sit together and vote as one. Stephens was unwilling that the ‘other House’ should have too much power because of its military complexion. It might pull down the Lower House.48 On March 28th, 1659, the Lower House reached the fateful decision, 198 to 125, that it would transact business with the

persons now sitting in the ‘other House’ as a house of parliament during the present Parliament, though it was not intended there46 The Oceana of James Harrington . .. to which is added Plato Redivivus... .

ed. John Toland (Dublin, 1737), 636.

f

47 Burton, Diary, III, 146-8.

‘8 Ibid., 404 f. Stephens’ proposal for resolving differences between the two houses was a Curious anticipation of the deadlock clause in the ‘C ommonwealth ‘ Australia Act’ (1900). So

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by to exclude such peers as had been faithful to parliament from their privilege of being duly summoned to serve as members of that House. The noted republican Ludlow was bitter about the vote, asserting that it was due to the Cavalier support of those who saw the decision as a first step back towards the old peerage.4® The angered republicans joined forces with the Wallingford House party to destroy the Protectorate, and on April 22nd,

1659, Fleetwood and Desborough compelled Richard to dissolve Parliament. So ended the attempt to resurrect the House of Lords under the Petition and Advice. The first Parliament that included the ‘other House’ had been sent home by Oliver Cromwell in his anger aroused by republican machinations; the second, by the republicans supported by the army or the army supported by the republicans. For the time being the supporters of the Rump had won their fight to restore the rule of a single chamber, unchecked by constitution, single person, or second chamber. By its appeal to force the Commonwealths-men had won a victory over the court party. But the real meaning of the victory was that one republican group had destroyed the rule of another, and their dissension paved the way for the restoration of Charles II. The reasons for the failure of the new constitution have been suggested, but that the attempt was foredoomed from the start is not so clear. There were equally good reasons for thinking that the Protector might have been successful in his constitutional experiment of resurrecting the House of Lords. First of all, there was nothing in the institution of a second chamber and

the nomenclature of a House of Lords necessarily in conflict with

the political principles of the Puritans so long as the titles implied no claim to hereditary authority. Cromwell had made up his chamber from a very few of the old peers, and an overwhelming majority were life peers. Among the Puritans in general there was little trace of a desire for social equality. The

members of the House of Lords had been attacked as hereditary legislators; once this claim was abolished, their claim to other

honors had been observed. Secondly, a new aristocracy was in process of formation. Time was the essence. The change in land ownership had created proprietors friendly to the new govern-

ment. Given ten years, the experiment might well have taken 49 Ludlow, Memoirs, II, 59 f.

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root. The descendants of Fleetwood and Lambert might have retained their places after the Restoration.

Abortive

as the

scheme proved to be, still it sprang from the conviction that a single chamber, uncontrolled by a constitution or a second chamber, could not be trusted with the rule of a great nation.*°

Just prior to the Restoration a variety of constitutional experi-

ments were urged to prevent the return of Charles II. For example, the Wallingford House party, after deciding that its best course was an arrangement with the Commonwealths-men,

sought an agreement for the institution of a select senate coordinate with the Rump as a condition for the latter’s recall. Apparently some Commonwealths-men,

notably Ludlow, were

willing to have such a senate if it were to be short-lived but not if it were to be permanent. On May 7th, 1659, the Rump returned; and shortly afterwards the army petitioned for the promised select senate.*! After the Rump had been restored, its members soon demonstrated that they had no intention of introducing a second cham-

ber to share its authority. Harrington and his followers were aroused

to new

activity,

and

early in November

1659,

the

famous Rota Club was formed to discuss the proposals in Oceana. Harrington kept the minutes, the chair was usually taken by John Milton’s friend, Cyriac Skinner, and among the

varied membership could be found the diarist Pepys; two Levellers, John Wildman

and

Maximilian

Petty;

a leader

of the

Fifth-Monarchy Men, Thomas Venner; and the economist Sir William Petty. The Rota Club lasted until approximately the middle of February 1660, when General Monk restored the secluded members of the Long Parliament; and, then, as a con-

temporary observer put it, ‘all these aierie modells vanished’.5? Yielding to public pressure, the Rump finally appointed a committee to prepare a constitutional settlement with the understanding that the finished product would be a constitution

for a free commonwealth without king, single person, or House of Lords. By the time that the committee report was due the efforts of the Rump to control the army had produced a breach 50 Firth, ‘Cromwell and the House of Lords’ Part II, loc. cit., 288-40. 51 Ludlow, Memoirs, Il, 73-76. See also the footnotes on 75 and 166.

52 Smith, op. cit., 85-108.

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between them; and on October 13th, Lambert, aspiring to be an

Oliver Cromwell, forcibly dissolved Parliament. The Rump had been in power for five months. Although it now received an

offer of support from General Monk, it was not restored until ten weeks later. In the last days prior to the Restoration there appeared one more prominent republican theorist who sought to postpone the restoration of mixed government by the plan of a constitution that would provide political stability. The thoughts of John

Milton on the political change brought on by Lambert’s coup d’état were reflected in a letter to a friend, published subse-

quently as A Letter to a Friend Concerning the Ruptures of the Commonwealth (dated October 20th, 1659). He recommended government by two perpetual aristocracies, the one military, the other civil. The military aristocracy should be composed of the great army officers; the other should be in the form of a large Council of State. Both would be sworn to the two great principles of liberty of conscience and resistance to any attempt at sovereignty in the hands of a single person.** A more complete exposition of his views appeared in his Readie and Easie Way to Establish a Free Commonwealth (March

$rd, 1660). Any thoughtful person, Milton declared, knew that government without king and House of Lords was best if it could be had. Despite the past disappointing experience he was convinced that one more vigorous effort would bring success. The central idea of his pamphlet was government by a Grand

Council of the ablest men in England, chosen for life by the people. Although willing to entertain the notion of rotation in office, he preferred his first suggestion. In effect he was urging the reconstituted Long Parliament (by this time Monk had restored both the Rump and the secluded members)

to declare

itself, or some enlargement of itself, a perpetual Grand Council

and to refuse elections that might bring back government by king, lords, and commons.°* The restoration of the monarchy was now imminent. At the end of December 1659, the Rump had been restored; at the end

of February 1660, the Long Parliament was reéstablished by the 58 The Works of John Milton, ed. F. A. Patterson (New York, 1932), VI, 101-6.

54 [bid., 124 ff., 134 f. David Masson, 1946), V, 644 ff.

a2

The Life of John Milton

(New York,

MIXED

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LORDS

return of the secluded members who had played no part in the execution of Charles I and the abolition of the House of Lords. As a condition of their return they had promised General Monk to dissolve themselves and call for a free parliament; and on March 16th, 1660, the dissolution took place. On April 25th, 1660, the Restoration

Parliament

that was

to bring back the

King met with ten peers sitting in the House of Lords. The Earl of Manchester was chosen Speaker pro tem; and present besides Manchester were the Earls of Northumberland, Lincoln, Denbigh, and Suffolk, Viscount Saye and Sele, and Lords Wharton,

Hunsdon, Grey of Wark, and Maynard. What Oliver Cromwell, with all his power, had not been able to do in England, the

prospect of the return of Charles II had secured. Since no such abundance of proposals concerned directly or indirectly with the reform or abolition of the House of Lords or restraint of its powers reappeared before the passage of the Great Reform Bill in the early nineteenth century, it seems

advisable

to recapitulate

briefly the constitutional

schemes

concerned with the composition or powers of that House that

were suggested during the Puritan Revolution. Even before the outbreak of the first Civil War the bishops had been removed from the House of Lords. Later, proposals were made for control over its membership by the House of Commons and for a limitation upon its legislative power, either through a suspensive or an exemptive veto. Both the Levellers and the later Commonwealths-men were openly hostile to the existence of a House of Lords, whether its members sat by hereditary right or as life peers. Once the House of Lords had indicated its willingness after the second Civil War to deal with the King, its days were numbered.

Before

its abolition

in March

1649, proposals were

made that the remaining peers should sit in the House of Commons and that the House of Lords should be retained as a Court of Judicature or a Court consultory.

After the overthrow of mixed government England was governed by the oligarchic Rump, which before its dissolution in 1653 had collected a coterie of admirers resolutely resistant to the resurrection of the House of Lords. Most important of the

republican theorists who favored the rule of a single house were Vane and Milton. As time went on Cromwell and his fellow army officers became convinced of the need of a second house al80

DURING

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though they differed about its form. Under the Petition and Advice Cromwell sought to reéstablish the House of Lords by surrounding a nucleus of hereditary peers with a larger number of peers sitting for life. The ill-fated constitution, weakened by his refusal of the crown, was destroyed in the spring of 1659 by a coalition of Commonwealths-men, Fifth-Monarchy Men, and the army. Even after the debacle of the ‘other House’ proposals

were not lacking for the institution of a second chamber. The army petitioned for a select senate, which it hoped to control; and from 1656 to 1659 the Harringtonians used a variety of devices to publicize the beneficient qualities of a system of two elected assemblies, one proposing and the other disposing. But all these fine schemes came to naught. Edward

Jenks, a student of the constitutional

experimenta-

tion of the Interregnum, suggested that the House of Lords gained rather than lost by the Civil Wars; for it returned with

an immensely increased prestige which lasted almost to the changes of 1832.°5 There is evidence, however, that the House of

Lords passed through a transition period after 1660 that gave its admirers anxious moments. Hyde, now known as the Earl of Clarendon, was fearful lest Charles II, listening to the advice of

other Royalists, might underestimate the power of the House of Lords to aid or hurt him. This error in the King’s judgment might arise, he thought, not only from poor counsels but also

from the inactivity of that House, which had shortened its sitting time and refrained from ‘meddling with anything in the government till . . . invited to it by some message or overture from the house of commons’. Too often it adjourned as soon as it met for one or two days together, while the House of Commons sat and drew the eyes of the nation to its proceedings. Clarendon also censured the peers for their captious insistence on their

privileges by which they weakened their position and ability to ‘preserve a power in themselves to put the house of commons in mind of their exceeding their limits’.°* It can be said with some justice that just as the Tory Duke of Wellington in the nineteenth century was to preside over a transition in the position of the House of Lords after the passage of the Great Reform Bill, so did Clarendon, one of the founders of the Tory party, display 55 The Constitutional Experiments of the Commonwealth (Cambridge, 1890), 8 f. 56 Tife, III, 163 ff.

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a similar concern immediately after the Restoration for the weakened House of Lords which had not as yet gained the strong position in the state that the general acceptance of the theory of mixed government or mixed monarchy would once more give it. The rival theories that had flourished in the early years of the first Civil War were in evidence at the Restoration. Ferne’s exposition of the theory of mixed government, as contrasted with that of mixed monarchy, reappeared in the Royalist Robert Sheringham’s The Kings Supremacy Asserted, which was published twice in 1660, the first time a few months

before the

Restoration and again shortly afterwards. Dedicated to Charles II and distinguished by the royal seal, this tract was praised in later years as a learned defense of Charles I. Sheringham set forth the Royalist view of the theory of mixed government contained in the Answer to the Nineteen Propositions, and his comments may well have reflected a wide-spread concern among the exiles arising from the popularity in England of the theory of mixed monarchy formulated by Herle, Hunton, the anonymous author of the Polztical Catechism, and their fellow Parlia-

mentarians.

Sheringham responded to them by restating Ferne’s argument of 1643 that the mixture in the English government, discerned by Charles I, was due to the circumstance that the two houses shared in the exercise of the supreme power of the kingdom whenever laws were made even though they possessed no part of the supreme power itself. If the two houses were said at any time to make laws, it was by a delegated power. The Roya-

list pointed out that Charles I had acknowledged monarchy to be so mixed with aristocracy and democracy ‘in the exercise of some part of his power’ that the conveniences of the simple forms of government were obtained without their inconveniences. “But he denyeth the mixture to be in the power it self,’ wrote Sheringham, ‘for the convenience which he saith it hath from Monarchy, is, that it is Governed by one Head.’ Accord-

ingly, the king was the only supreme head and governor of England; and, contrary to the claims of the Parliamentarians, the two houses were not coordinate with him. Contending that the Parliamentarians had ‘notoriously perverted the meaning of his Majesty’, Sheringham attributed their general constitutional

argument to their misreading ‘the testimony of His Majesty, of 82

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Bracton, and Fortescue’, a comment that placed Charles I as a legal and constitutional authority in distinguished company.*? This conservative exposition of the Answer to the Nineteen

Propositions was challenged early when the theory of mixed monarchy invoked in the defense of Sir Henry of the Commonwealths-men, who

in the reign of Charles II and the Answer itself were Vane, the renowned leader was found guilty of high

treason on June 6th, 1662. His trial, followed a week later by his execution, aroused intense interest. For Vane alone, among the

fourteen persons

executed

at the beginning of the reign of

Charles II to requite the civil wars, was not a regicide; and he

died because Charles II considered him too dangerous to live. Two non-regicides, Vane and Lambert, had been excepted from the Act of Indemnity by the two Houses, who, however, peti-

tioned the King to spare their lives if the two men were attainted. Charles II assented. But after two years in the Tower they were brought to trial, following a request of the Cavalier Parliament that proceedings be instituted against them; and though the submissive Lambert escaped death, the bolder Vane was executed. The historian Henry Hallam, who considered Vane’s execution a breach of the Act of Indemnity and a violation of the spirit if not the letter of the law, pronounced it ‘one of the most reprehensible actions’ of the reign of Charles IT.* In his defense, which differed markedly in tone from the Healing Question, Vane reviewed the problem of allegiance created by the outbreak of civil war. He had been elected to serve as burgess of Kingston upon Hull in a parliament, he noted, that was not only summoned and assembled after the usual manner and possessed, therefore, of the power and privileges

incident to the high court of parliament but also so constituted by statute and the ‘consent of the three estates [king, lords, and

commons]’ that its own consent governed its continuance, adjournment, prorogation, and dissolution. The statute against dissolving the Long Parliament without its own consent had obviously made a strong impression upon Vane’s thought. Insisting that the law supported his actions, he pointed out that it had enjoined his continued attendance in parliament so as to carry out the tasks set forth in the preamble to that statute and 57 The Kings Supremacy Asserted, 14 ff., 90 ff., and 107 ff. 58 The Constitutional History of England (New York, 1859), 407 f., 417 f.

83

MIXED

MONARCHY

AND

THE

HOUSE

OF

LORDS

also to act in all matters pertaining to parliament for the good and safety of the kingdom in a time of imminent danger.®*® As aresult of this statute, Vane insisted, the two Houses had

more than enough power to prevent and restrain tyranny, a fact recognized by Charles I in his Answer to the Nineteen Propositions. To this document Vane turned as the appropriate authority to support his description of the constitutional position of the Long Parliament. His acquaintance with its contents dated from 1642 when he had been appointed to the committee of the House of Commons of the Long Parliament that was to reply to the preamble of the Answer to the Nineteen Propositions. And as recently as 1659 he had been reminded of its contents when his Healing Question was answered by Richard Baxter, who in his Holy Commonwealth appealed to the Answer as containing the

authoritative statement of the English constitution. Moreover, in writing his defense, Vane must have had at his side the anonymous Political Catechism, which had appeared in 16438. It contained both the discourse on the English constitution found in the Answer to the Nineteen Propositions and a Parliamentarian interpretation of that discourse. Unmistakably, a whole passage in Vane’s defense came straight from the Political Catechism.*° In 1662, twenty years after the first appearance of the Answer to the Nineteen Propositions, Vane paid his respects to that memorable

document.

In this declaration,

he said, Charles

I

‘does very briefly and exactly state the nature and kind of government that is exercised in this kingdom’. As he quoted the

royal remarks, the great leader of the Commonwealths-men reflected, perhaps even unwittingly, the pervasive influence of the theory of mixed monarchy derived from the Answer by the Parliamentarian writers during the first Civil War. He made high claims for the two houses of parliament. According to

Vane, Charles I had described the English government by say5° A Complete Collection of State Trials, comp. T. B. Howell (London, 1816), VI, 119 ff., 156 f. One means of reconciling, if this is necessary, the political arguments of the Healing Question and the defense may be found in Vane’s interesting assertion that he had viewed the Rump as the root of the ancient form of government into which the three estates had retired until the season of their revival should come.

Ibid., 163. Mrs. Janelle Greenberg, a graduate student at the University of

Houston, called to my attention the fact that Vane used the Answer to the Nineteen Propositions in his defense.

°° Compare ibid., 158 with the Political Catechism, p. 277, of this study.)

84

11 f. (See Appendix

II

DURING

THE

PURITAN

REVOLUTION

ing: “The laws of this kingdom are made by a King, a House of Peers, and a House

of Commons,

chosen

by the People, all

having free votes and particular privileges.’ At this point the in-

fluence of the theory of mixed monarchy became evident. Charles I was reported as stating: “These three estates making one incorporate body, are they, in whom the sovereignty and supreme power is placed, as to the making and repealing of laws.’ From the next comment it appeared that Charles I had permitted the

two Houses to join him in administering the laws of the kingdom when he surrendered the power to dissolve the Long Parlia-

ment. The King was said to ment, according to these laws, interval of parliament is sole which, the parliament sitting,

have admitted that ‘the governis trusted to the king, who in the in the exercise of government, he is to exercise in conjunction

with the two Houses’. At this point Vane recounted faithfully

Charles I’s very influential description of the mixed and balanced nature of the English government. The problem of allegiance, Vane recalled, was complicated

after 1642 by the circumstance that a parliament was in being that could be dissolved only with the consent of the three ‘coordinate’ estates. Although he granted that allegiance was ordinarily due to the king, the Commonwealths-man insisted

that so long as the Long Parliament sat it was due to the King in conjunction with parliament, the law, and the kingdom. Under the peculiar circumstances of these years an unprecedented situation was created whenever the three estates opposed one

another. Subjects could not know their duties when power and command that should flow from all three estates came sometimes from all three, sometimes from one alone, sometimes from two against one. All in all, Vane explained, the question of

allegiance was so complicated that the only body capable of judging the issues involved was the Long Parliament itself. Vane’s argument implied that he himself had been guided in his

choice of allegiance by the statement of Charles I in the Answer to the Nineteen Propositions that the legal power existing in the two Houses was sufficient to prevent and restrain tyranny. It will be remembered that the anonymous author of the Polztical Catechism had also made much of this statement.

‘If so,’ Vane

concluded in language borrowed from the Polztical Catechism, ‘then are they the legal judges, when there is danger of tyranny ; 85

MIXED

MONARCHY

AND

THE

HOUSE

OF

LORDS

and have legal power to require their judgment and resolves to be obeyed, not only when arms are actually raised against them, but when they discern . . . a preparation towards it; else they may find it too late to prevent .. . tyranny.’®?

King Charles II reacted angrily to Vane’s defense. In a letter written to Clarendon on June 7th, the day after the Commonwealths-man was tried and condemned, the King remarked on the insolence with which Vane had admitted all that he had done,

‘acknowledging no supreme power in England, but a parlia-

ment; and many things to that purpose’. “You have had a true account of all,’ continued Charles II, ‘and if he has given new

occasion to be hanged, certainly he is too dangerous a man to let live, if we can honestly put him out of the way.’®? A week later Vane was executed. The perspicacious Hallam, who noted that Clarendon in the continuation of his History made no mention at all of Vane’s trial, suggested that the omission was due perhaps to the former’s belief that the execution was a breach of the Act of Indemnity.® It is also possible that the omission was due to Clarendon’s distaste for the careless words of Falkland and Colepeper in the Answer to the Nineteen Propositions that had returned in so unpalatable a form to confront the son of Charles I and in a sense to usher in the Restoration. 61 Howell, op. cit., VI, 158 ff. 62 Ibid., 187-8 (footnote). The anonymous author of The Secret History of the Court and Reign of Charles the Second (London, 1792) thought that the King was angered by the part of Vane’s defense in which he invoked the theory of mixed monarchy.

Ibid.,

I, 121,

127.

Francesco

Giavarina,

the Venetian

Resident

in

England, wrote that Vane during his trial, unlike Lambert, had ‘gloried in his actions, maliciously questioning the authority of the Court and impiously abjuring the king and his hereditary lordship over these realms’. Calendar of State Papers: Venetian,

XX XIII, 155. See also the footnote.

63 Constitutional History, 419.

86

II] THE

TRIUMPH OF THE THEORY OF MIXED MONARCHY The full, the perfect plan Of Britain’s matchless Constitution, mixt

Of mutual checking and supporting powers, King, Lords, and Commons. James Thomson, ‘Liberty’ (1736)

THE THEORY

OF MIXED

reign of Charles

GOVERNMENT

Spread steadily in the

II and after, and in the second

half of the

eighteenth century received its perfected form in the writings of Montesquieu,

Sir William

Blackstone, John Louis De Lolme,

William Paley, and Edmund Burke. Two corollaries were of increasing importance as the theory developed. The first was the belief that the secret of the constitution lay in the maintenance of a balance among three independent, powerful branches of government, that is, among the three estates. Consequently, it was the

theory of mixed monarchy expounded by the Parliamentarians in the civil-war period, not the Royalist theory of mixed government, that triumphed either in the Revolution of 1689 or very shortly afterwards.! The second corollary was that the House of 1 The term ‘mixed monarchy’ was slow in disappearing. As late as 1795 Major John Cartwright considered its appropriateness as a description of the English government and rejected it. The Commonwealth in Danger (London, 1795), 98. It was used in the early nineteenth century by the historian Hallam and also by Lord Brougham, the latter in a book written about 1842 entitled On Democracy and Mixed Monarchy.

87

THE

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OF

THE

THEORY

Lords, the second estate, provided the equipoise of the mixed and balanced government. Indeed, Sir William Holdsworth, writing early in the present

century, generalized that in the eighteenth century ‘all the leading statesmen and thinkers agreed that the House of Lords was

useful as a check—a check upon the people in the interests of the

King, and upon the House of Commons in the interests of King and People’.2 Such prominent political figures as Sir Robert

Walpole, Lord Bolingbroke, and Lord Chatham assigned to the

House of Lords the position of ‘mediators between the Crown and the Commons’; and George III described it as ‘that respect-

able corps’, established by the wisdom of past Englishmen ‘to prevent either the Crown or the Commons from encroaching on

the rights of each other’. Holdsworth concluded that although the House of Lords was the weaker of the two Houses, it had a

distinct part to play in the eighteenth-century constitution; and ‘nobody thought of questioning its right to exercise freely the powers which enabled it to play that part’.? This conclusion bears directly on the thesis of this study; namely, that a major reason why so few political reformers questioned the position of the House of Lords before 1832 was their acceptance of the prevailing constitutional theory of mixed and balanced government and the role assigned to the House of Lords in its maintenance. Before the progress of the theory of mixed government is delineated, the constitutional situation in 1660 and the manner in

which the House of Lords was fully restored should be noted. From the viewpoint of the lawyer there was no need of a new

settlement of the constitution at the Restoration. Nothing in the way of constitutional or legal change that had taken place since the outbreak of the first Civil War was deemed legal. Thus all that was done to define the legal nature of the Restoration was the passage of a short act of parliament by which the illegality of acts passed since the outbreak of the first Civil War was asserted and by which penalties (loss of all property and imprisonment for life) were prescribed for all who should maintain the validity of legislation passed by either one or both houses without the king. The legal view was that the régime of 1642, not of 1640, 2 History of English Law, X, 615. 3 Ibid., XI, 276. Earl Stanhope, Life of . . . William Pitt (London,

Appendix vi.

88

1867), I,

OF

MIXED

MONARCHY

was restored—the King’s Constitution, not divine right monarchy, lay at the basis of the Restoration. Even those who in the years ahead professed the divine right of succession, the impiety of resistance to the king, and the duty of the subject to render passive obedience, at the least, to royal commands were wedded

to the great reforms of 1641. They rejected any notion of an arbitrary prerogative to legislate and tax. The popular view in 1660 may well have been expressed by an anonymous publicist writing at the time of the Revolution of 1689, who declared that ‘the supreme power personal of England, is in King, Lords, and

Commons: and so it was in Effect agreed to, by King Charles the First, in his Answer to the nineteen Propositions; and resolved

by the Convention of Lords and Commons in the year 1660’.4 When the Convention Parliament assembled, on April 25th, 1660, it contained only ten peers, all of whom had sided with the

two Houses against Charles I. Their Speaker was the wellknown Presbyterian, the Earl of Manchester; and the Presbyterians, hopeful of keeping control of the House, had engaged Monk’s help to this end. Their attempt failed when the ‘young lords’, those had succeeded to their titles since 1648, insisted

on admittance despite Monk’s request that they stay away. In succession came the peers who had borne arms on the side of the King and then the peers who had been created since 1642 either by Charles I or Charles II. Opposition to the entrance of the last group was effectively silenced by a personal message from Charles II that he desired their admittance. By June Ist, 1660, of 147 eligible to sit eighty were in the House. The bishops, who had been legally excluded by an act of parliament to which Charles I had assented, did not return, however, until the sum-

mer of 1661 when the Cavalier Parliament repealed the ‘Clerical Disabilities Act’ by passing an act called the ‘Act Restoring the Temporal Power of the Clergy.’ The delay was due to a number of causes: the predominance of Presbyterians in the Convention Parliament, the lack of any deep enthusiasm for bishops among Englishman, and the arrogance of the bishops themselves. The Convention Parliament evinced no interest in their return and proceeded to pass laws while ignoring the question of whether the absence of the 4 Some Short Considerations relating to the Settling of the Government (London,

1689), 4. G

89

THE

TRIUMPH

OF

THE

THEORY

bishops made such legislation unconstitutional. Jeremiah Stephens, best known as the literary coadjutor of the great anti-

quary Sir Henry Spelman, was alarmed enough to publish a pamphlet that urged the right of the bishops as the first and principal estate of the kingdom to both civil and ecclesiastical jurisdictions. Bulstrode Whitelocke, writing in retirement,

noted that a great objection was being raised at this time against the exclusion of the bishops on the ground that as the first estate the bishops should sit in the House of Lords, an argument that aroused, he said, ‘no smalle doubte’.® As late as March 1661, at the time of elections for the Cavalier

Parliament, Pepys reported cries in London of ‘no bishops, no bishops’; and he added that ‘indeed the bishops are so high, that

few do love them’. Yet the return of the overwhelmingly Royalist Parliament seemed to augur well for their speedy return. A bill quickly passed the House of Commons;

but in the

House of Lords, from which no opposition was anticipated, it went into committee where it remained. According to the Earl of Clarendon, now Lord Chancellor, the obstruction was due to the Earl of Bristol whom Clarendon distrusted as a Roman Catholic,

a profligate, and a rival for the ear of Charles II. Bristol, the

Lord Chancellor reported, had played on the pro-Catholic sentiments of his master and persuaded him that if the bishops were allowed to take their seats before toleration was secured for English Catholics, the latter’s hopes must be disappointed. When Clarendon learned from Charles II that he was using his influence to keep the bill in committee, he told the King that if the news became public of his efforts to keep the bishops from their seats for such a reason, it would be impossible to secure relief for the Catholics, to which, Clarendon added significantly,

‘his majesty knew he was no enemy’. The Lord Chancellor won. When Charles II came to give his assent to the bills prepared for him, he told the Parliament that ‘he did thank them with all

his heart . . . for the repeal of that act which excluded the bishops from sitting in parliament’, for the two Houses had thus ‘re° Whitelockes Notes Uppon the Kings Writt, 11, 44. The membership of the three estates had been a subject of lively debate during the Interregnum. Roger Twysden, Certaine Considerations upon the Government of England ed. John Mitchell Kemble (Camden Society, 1849), 127 f. See also Stephens, An Apology for the Ancient Right and Power of the Bishops ..., 14. A. S. Turberville, ‘The House of Lords under Charles II’, Part I, English Historical Review, XLIV (1929), 402.

90

OF

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MONARCHY

stored parliaments to their primitive institutions’.* To this, no doubt, Clarendon breathed amen.

The conduct of the bishops after their return substantiated

Bristol’s forecast of their voting in religious matters. Although the king expected them to vote according to his dictates, they always voted on the side of religious intolerance whenever the question of dissent arose. Otherwise, they voted on the side of the king, much to the disgust of those in opposition to the Government. One of them recommended in 1680 the introduction of a bill “to exclude the Bishops’ votes, as they show themselves

enemies to the Commons’, and there was some hostility towards them manifested during the Revolution of 1689 because of the fear that they might influence the House of Lords against concurrence with the House of Commons in making William and Mary joint sovereigns.’ They were attacked from time to time on the ground of servility to the crown. In the eighteenth century David Hume recommended their exclusion in order to strengthen the House of Lords, and the Unitarian Joseph Priestley proposed their election. Although there was a move in the 1830s to remove the bishops from the House of Lords because of their opposition to the Great Reform Bill, no organized hostility existed earlier towards them. The continued spread of the theory of mixed government after 1660 precluded the rise of any democratic criticism of the House of Lords until after 1789, when, under the influence of the French Revolution, a few democrats, who were also republicans,

appeared in England. While in the Restoration period there were

still republicans who, of course, repudiated the House

of

6 Tbid. Clarendon, Life, II, 99 ff. ? Turberville,

‘The

House

of Lords

under Charles

II’, Part II, English His-

torical Review, XLV (1930), 61 f. Several Queries relating to the present Proceedings in Parliament (N.p., 1689), 3. Reasons of the House of Commons Why Bishops ought not to have Votes in Parliament (London, 1689), passim. The latter tract was published originally in 1641. 8 Hume,

‘The

Idea of a Perfect Commonwealth’,

Essays Moral, Political, and

Literary (The World’s Classics, 1904), 512 f. The Theological and Miscellaneous Works of Joseph Priestley ed. J. T. Rutt (London, 1821), XXII, 96. Butler, op. cit., 992, 297. At least three times in the 1830s—in

1834,

1836, and 1837—motions

were made in the House of Commons that were aimed at the removal of the bishops from the House of Lords. Usually these were supported by followers of Jeremy Bentham.

Parliamentary

Debates, third series, VIII, 890 f., 929; XXII,

131 ff.; XXXIII, 311 ff.; and XXXVI, 609 ff. Turberville, The House of Lords in the Age of Reform, 312 ff.; 317 f.

91

THE

TRIUMPH

Lords, their numbers

OF

THE

THEORY

were not formidable; and they dwindled

with the passage of time. The editor of Somers Tracts reported

that only one voice was raised for a republic in 1689. ® Presumably

there was more republicanism in England, but doubtless the passage of almost thirty years had lessened the amount and may in some cases have seen the substitution of the theory of mixed monarchy for republicanism in the minds of those dissatisfied with the state of the realm. A modern writer, B. Behrens, con-

cluded from a survey of constitutional theory in the reign of Charles II that despite bitter ideological differences, ‘the reign . .. was far from devoid of common assumptions and the “‘mixed

monarchy’’

[mixed government?]

was

one of them’.!° The

Revolution of 1689 gave great impetus to the spread of the idea

of mixed monarchy. By 1719, as the debates on the abortive Peerage Bill demonstrated, the Whig party as a whole had accepted the theory, if, indeed, it had not done so much earlier.

And Lord Bolingbroke’s Dissertation on Parties (1735) revealed that even conservative Tories had followed suit.! In summary, the years from 1660 to about the middle of the eighteenth century—when the classical theory began to take on its perfected form—were marked by the steady progress of the theory of mixed government, which after 1689 became in substance a theory of mixed monarchy. The inspiration for this steady progress was furnished by Charles I’s Answer to the Nineteen Propositions, which was readily accessible in the reign of Charles II and after. In fact, as late as the 1740s the pertinent paragraphs on the mixed nature of the English government were printed alone.12 It appears in ® Somers Tracts, X, 197. See also ibid., XI, 209. 10*The Whig Theory of the Constitution in the Reign

of Charles

II’, The

Cambridge Historical Journal, VII (1941-3), 51. 11.

R. Turner,

“he

Peerage

Bill of 1719’,

The English

Historical

Review

XXVIII (1913), 252 f. Bolingbroke, 4 Dissertation upon Parties (London, seventh edition, 1749), 124; 204 f. The Whigs as a party had probably been converted as early as 1710, if not earlier. Howell, op. cit., XV, 61, 119.

12°The text was published in William Sanderson’s Life . . . of King Charles (1658), 529 ff.; in R. Royston’s edition in 1662 of the Workes of King Charles the Martyr, I, 85 ff; in The Works of King Charles the Martyr (London, second edition, 1687), 262 ff.; in John Rushworth’s

Historical Collections (London,

1692),

IV, 725 ff.; and in Paul de Rapin-Thoyras, The History of England trans. N. Tindal (London, 1730), XI, 532 ff. The Answer had been published in at least six editions during the civil-war period, and numerous copies must have survived. The

92

OF

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MONARCHY

retrospect that the key episode in the history of this document after the Restoration occurred in 1679 when it was used by the Shaftesbury Whigs to embarrass Charles II. In that year a very

substantial portion of what Clarendon had designated as ‘the

discourse of the constitution of the kingdom’ was used publicly on an occasion so dramatic as to refresh the memory of Englishmen already acquainted with the constitutional analysis of

Charles I while introducing it to the generation of parliamentarians who wrote the Bill of Rights. The occasion arose during the famous impeachment of the Earl of Danby. Unhappily for the

Lord Treasurer his share in the financial dealings of Charles II with Louis XIV was revealed at a time when the nation was fearful of Catholic France and deeply disturbed by the supposed Popish Plot and the Catholicism of James Duke of York, heir to the throne. On December

23rd, 1678, the House of Commons

impeached Danby on the charge among others that he had sought to promote tyranny; and to save his minister, Charles II dissolved the long-standing Cavalier Parliament. In the event, the King had only postponed his difficulties. The general election of February 1679, returned a hostile House of Commons with a large number of the country party soon to be called the Whigs. They were led by Lord Shaftesbury in the House of Lords and in the House of Commons by William Sacheverell, Richard Hampden, Sir Thomas Lee, William Gar-

roway, Henry Powle, and Sir Francis Winnington. This ‘little Westminster Parliament’ or ‘Danby’s Parliament’, as contemporaries variously termed it, which met from March 15th to

May 27th, continued the Danby impeachment; and during the protracted dispute that soon arose between the two Houses, Shaftesbury from his place in the House of Lords guided the policies of the country party in the House of Commons. To his enemies in the two Houses he seemed ‘the fairy fiend that haunted and deluded both’. The hostile Roger North noted with paragraphs on the English government were printed independently in Baxter’s Holy Commonwealth (1659), 462 ff.; in Whitelockes Notes Uppon the Kings Writt, II, 308 ff.; in A Political Catechism, published at first in three editions in 1643 and reprinted in 1679, 1688, 1689, 1692, 1693, and again in 1710; and as late as

1741 in Roger Acherley’s Britannic Constitution (London, second edition, 1741), 141 ff. A tract such as Sheringham’s Kings Supremacy Asserted, twice published in

1660 and again in 1682, quotes liberally from the Answer.

93

THE

TRIUMPH

OF

THE

THEORY

admiration the dexterity with which Shaftesbury managed to secure the authority of parliament for his policies, arranging votes, speeches, protests, and the like and having them printed and well publicized. When the Tory mentioned that Shaftesbury also arranged what North called ‘conferences with reasons’,1® the latter perhaps was thinking of a much publicized conference between the two Houses on May 26th, 1679. It will be seen that at this conference, attended by Shaftesbury and a group of peers, spokesmen for the House of Commons urged Danby’s speedy trial and in support of their position read a prepared paper of ‘reasons’ distinguished by extensive quoting from the Answer to the Nineteen Propositions. Following a resolution of the House of Lords early in the new parliament that dissolution did not impair an impeachment already underway, Charles II embarked upon a course of action that heightened opposition to him. He informed the two Houses that he had granted to his former minister (Danby had resigned as Lord Treasurer) a pardon under the great seal that would be repeated ten times over if necessary. The irregular procedure used in sealing the pardon further angered the House of Commons. The great seal had been affixed in the royal presence, and during the process Lord Chancellor Nottingham considered it

out of his custody. No record was made in his office of the pardon, which he characterized as ‘a stamped pardon by creation’, a phrase echoed with a sense of outrage by members of the House of Commons. The two Houses agreed upon a bill of attainder that compelled Danby’s surrender, but at this point their cooperation

abruptly ended. He was committed

to the Tower, where he

stayed for five years, but was never tried. After Danby pleaded his pardon as a bar to impeachment, the House of Commons, on May 5th, condemned it as illegal and void, only to find the House

of Lords dilatory when asked to join in the condemnation. The House of Commons

was particularly incensed when the peers,

despite opposition from Shaftesbury, voted that the bishops * North, Examen: Or, An Enquiry into the Credit and Veracity of a Pretended Complete History (London, 1740), 88. G. M. Trevelyan, England under the Stuarts (London, 1920), 389 ff. There is a list of commoners eminent in parliament in the

reign of James II in Andrew Browning, Thomas Osborne, Earl of Danby and Duke of Leeds (Glasgow, 1951), Ill, 158 f. This list can be usefully applied to the last parliaments of Charles II.

94

OF

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MONARCHY

could participate if they wished in the preliminary proceedings against Danby before judgment was given in his impeachment, a vote interpreted by the House of Commons to signify that the bishops, who would support Charles II, would be present to judge Danby’s pardon. When the House of Lords followed this vote with a decision to try five Catholic peers charged with complicity in the Popish Plot before judging Danby’s plea of his pardon, it encountered the determined opposition of the House of Commons. That House resolved, on May 24th, ‘that an Answer be returned to the

last Message of the House of Peers . . . with Reasons why this House cannot proceed to the Tryal of those five Lords, before Judgment be given of the Earl of Danby’s Plea of his Pardon;

and the point of the Bishops not voting in any Proceedings upon Impeachments in capital offences be settled’. The House then appointed a committee to prepare and draw up its ‘Answer... with Reasons’;

its chairman

was

William

Sacheverell

whom

Speaker Onslow once described as the ablest parliament man in the reign of Charles II. An original member of the Green Ribbon Club, Sacheverell in 1679 managed the House of Commons for Shaftesbury and may well have been at this time its real leader. Sacheverell was described by Macaulay as a veteran Whig with extensive authority in his party at the time of the Revolution of 1689 and ‘an orator whose great parliamentary abilities were many years later a favourite theme of old men who lived to see the conflicts of Walpole and Pulteney’.14 This Sacheverell Committee prepared an influential report that was published under a variety of titles, the earliest being The Reasons and Narrative of Proceedings Betwixt the two Houses; which were delivered by the House of Commons, to the Lords at the

Conference Touching the Tryal of the Lords in the Tower (1679), which was usually referred to by contemporaries as the Narrative and Reasons. One of them described it accurately as a paper 14 Howell, op. cit., XI, 735 f. Grey, Debates of the House of Commons, VII, 326. Journals of the House of Commons, IX, 630. Sacheverell is discussed in the D.N.B. and in George Reresby Sitwell, The First Whig: An Account of the Parliamentary Career of William Sacheverell (Scarborough, 1894). Ibid., 2, 60. Thomas Babington Macaulay, The History of England from the Accession of James II (New York, n.d.), II, 555. The bishops would have withdrawn from the proceedings against Danby if the King had been willing to have only the temporal lords vote on the pardon. Bishop Burnet’s History of His Own Time (Oxford, 1833), II, 214.

95

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OF

THE

THEORY

divided between reasons and remonstrances. It began with a narrative complaining that the House of Lords had failed to follow the usual course and methods of parliament in impeaching Danby and ended with five reasons in support of the resolution

of May 24th. The most thoroughly developed was the second

reason, which claimed that the use of a pardon to bar an impeachment defeated the whole effect of impeachments. The practice if allowed would totally discourage impeachments for the future so that the chief institution for the preservation of government would be destroyed and consequently the government itself.

Danby urged, was of mittee

should be tried before the five Catholic peers, it was because his case affected all impeachments while theirs more limited effect. At this point the Sacheverell Cominvoked the Answer to the Nineteen Propositions in

support of the position of the House of Commons, saying to the

peers: And without resorting to many authorities of greater antiquity, the Commons desire your lordships to take notice, with the same regard they do, of the declaration which that excellent prince king Charles the first, of blessed memory, made in this behalf, in his answer

to the nineteen propositions of both Houses of Parliament: wherein, stating the several parts of this regulated monarchy, he says, “The King, the House

of Lords, and the House

of Commons,

have each

particular privileges:’ and amongst those which belong to the king, he reckons power of pardoning: after the enumerating of which, and other his prerogatives, his said majesty adds thus again, that ‘the prince may not make use of this high and perpetual power, to the hurt of those for whose good he hath it; and make use of the name of public necessity for the gain of his private favourites and followers to the detriment of his people’. The House of Commons (an excellent conserver of liberty) is solely intrusted with the first propositions concerning the levies of monies; and the impeaching of those, who, for their own ends, though counte-

nanced

by any surreptitiously gotten command

of the king, have

violated that law, which he is bound (when he knows it) to protect;

and to the protection of which they are bound to advise him, at least not to serve him in the contrary: And the Lords, being intrusted with the judicatory power, are an excellent screen and bank between the prince and the people, to assist each against any encroachments of the other; and, by just judgment, to preserve that law which ought to be the rule of every one of the three. 96

OF

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MONARCHY

Therefore the power, legally placed in both Houses, is more than sufficient to prevent and restrain the power of tyranny.15

The last sentence of the passages quoted from the Answer by the Sacheverell Committee had been frequently invoked in the civil-war period by exponents of the theory of mixed monarchy who sought, as in the Political Catechism, to justify far-reaching claims for the two houses. However, the Sacheverell Committee

proceeded cautiously, employing Charles I’s term ‘regulated monarchy’ rather than the much more provocative ‘mixed monarchy’ of the Parliamentarians though the passages utilized were virtually inseparable from the ones in which Charles I had

described the mixture in the English government and defined the three estates as king, lords, and commons. Perhaps the otherwise daring Sacheverell Committee proceeded with care in the effort to gain the support of the court party. More probably, its members were unwilling to associate themselves publicly with a

constitutional theory tainted with the violence of the civil-war period despite their willingness to insist on a stronger position

for the House of Commons or the two Houses in their relationship with the King. Interestingly, the idea of borrowing from the Answer to the Nineteen Propositions was due, not to Sacheverell, whom his biographer considered to be the chief author of the report, but to another leading member of the Sacheverell Committee. It originated with Richard Hampden, the second son of the great Puritan leader and in his own right a very eminent man according to Bishop Burnet. Possibly Richard Hampden had learned of the Answer through his father, who, along with Vane and Whitelocke, had been appointed to the committee of the House of Commons in 1642 that was to reply to the Answer, or, perhaps, as a result of his friendship with Baxter, who continued in these years to cherish that document as containing the authorita-

tive statement of the English constitution. The renowned leader of the Presbyterians, who stayed with Hampden during the Great Plague, described him as his ‘dearly beloved and honoured 18 Howell, op. cit., XI, 829 f. The report of the Sacheverall Committee is printed in a number of places: Journals of the House of Commons, IX, 631 ff. Journals of the House of Lords, XIII, 590-3; Howell, op. cit., XI, 824 ff.; and The History and

Proceedings of the House of Commons from the Restoration (London, 1742), I, 365 ff. See also H.M.C., Manuscripts of the Marquess of Ormonde, V, 116.

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friend’ and in 1670 dedicated his Life of Faith to Hampden and his wife.

On May Sth, the day on which the House of Commons after a formal condemnation of Danby’s pardon had demanded judgment from the peers, Hampden read to the House from the

Answer, selecting the passages dealing with the distribution of power among king, lords, and commons

and with the par-

doning power in particular. The parliamentarian pointed out that if Danby escaped punishment the House of Commons would receive a setback not only in its power to impeach great men but also in its control of finance since the House was in-

vestigating Danby’s accounts, and he implied that in granting the pardon to his minister Charles II had acted unconstitutionally. He was not well versed in records, Hampden declared, but in

the Answer to the Nineteen Propositions Charles I had stated

the nature of the government and admitted that he could not use his high power ‘to the hurt of those for whose good he hath it, and make use of the name of public necessity, for the gain of his private favourites and followers, to the detriment of his people’. In conclusion Hampden wondered aloud why Charles I had made these statements if a pardon could be used to bar an impeachment. 16 The members of both Houses were given such ample opportunity to become familiar with the Narrative and Reasons, with its passages from the Answer to the Nineteen Propositions, that

knowledge of the latter’s contents must have been widespread indeed at this time. The reading of the report on May 26th by Sacheverell from his seat in the House of Commons was followed by a second reading in the House, this time by the clerk. It was amended in debate and then inscribed in the Journals, which members often inspected in search of information and

precedents.1? The debate House voted to soften the ‘injustice’ from the peers verell Committee were

is of marked interest. At the end the language of a passage complaining of though some members of the Sacheadamantly opposed to changes. Sir

Robert Howard, who favored deleting the controversial word,

otherwise praised the report, saying, “The Paper is well drawn, and there is no need of a hard passionate word to help the 16 Grey, op. cit., VII, 183. Howell, op. cit., XI, 788.

17 Tbid., 824.

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Reasons: they themselves will convince the World.’!8 A member of the Sacheverell Committee who argued vigorously for retention of the original wording was William Garroway, who was called in a contemporary ballad the Hector of the House. A close associate of Sacheverell’s, Garroway revealed the significance attached by the Committee itself to the Answer when he declared in a striking phrase: ‘If they will break the late King’s Constitution . . . let not us.’ The phrase ‘the late King’s Constitution’ referred to the paragraphs on the English government in the Answer to the Nineteen Propositions, and Garroway was

charging that Charles II’s use of the pardoning power to protect his ex-minister violated a fundamental principle of the constitution delineated by Charles I.1° According to the Oxford English Dictionary, use of the word Constitution to denote a body or system of fundamental principles by which a nation is constituted and governed is of comparatively recent growth, having risen gradually out of precedents between 1689 and 1789. Actually this use of the word arose before 1689, as Garroway’s remark indicates; and the ideas behind it antedate the seventeenth century when the word became common. The prevalence of Constitution, used in this

sense, during the reign of Charles II was due to the Answer to the Nineteen Propositions and supplies an important example of the latter’s influence. Charles I had praised ‘that excellent Constitution of this Kingdom’, and also ‘the Constitution of the

Government of this Kingdom’, phrases that were repeated by the anonymous author of the Polztical Catechism, who converted the royal pronouncements into a constitutional system severely limiting the royal power, and by Bellamie, Edwards, Baxter, Whitelocke, Vane, and others. The phrase, “The Constitution of

the Government’, appeared in the Narrative and Reasons, which, by appealing to the authority of the Answer to the Nineteen Propositions, implicitly reproached Charles II for departing from his father’s constitution. The Tory Roger North, writing of the reign of Charles II, pointed out that the word Constitution was neither an ill word

nor one with a meaning different at this time from what it had 18 Grey, op. cit., VII, 338. 19 [bid., 336. Garroway’s First Whig, 10, 26, 159.

remark

is explained

99

in the editorial footnote.

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been earlier. But he noticed that a different usage was evolving and taking the place of the older ‘Laws of this Kingdom or Nation, his Majesty’s Laws, the Laws of the Land, or the Common Law.’ The word was ‘commonly brought forward with a Republican Face,’ he wrote, ‘as if it meant somewhat excluding,

or opposite to the Monarchy, and carried an Insinuation as of a Co-ordination, or Coercion, of the Monarchy’.2° The latter idea, it has been seen, was characteristic of the theory of mixed

monarchy. By the time of the Glorious Revolution the usage decried by North and manifested in Garroway’s phrase ‘the late

King’s Constitution’ had found so much acceptance (though not with high Tories) that the House of Commons of the Convention Parliament resolved after the flight of James II that he had en-

deavored to subyert ‘the Constitution of the Kingdome’ by breaking the original contract between him and his people.?? The Narrative and Reasons must have been as familiar to the House of Lords of the little Westminster Parliament as to the House of Commons. Shortly after the debate in the lower House the Sacheverell Committee met in a conference with a group of peers headed by Shaftesbury, to whom Sacheverell read the Narrative and Reasons; and Shaftesbury later read it to the House of Lords. Presumably his words commanded more than ordinary attention, for since the previous April he had been Lord President of the Privy Council, which had been reconstituted on the lines of a scheme recommended by Sir William Temple. The following day, May 27th, the Narrative and Reasons was once more read to the peers, this time by the clerk, before being inscribed in the Journals so that on two separate occasions the peers were reminded of the memorable words of Charles I on the English government. According to a contemporary newsletter, the peers spent the 20 Framen, 332. See also J. W. Gough, Fundamental Law in English Constitutional History (Oxford, 1955), 51, 59, 67 ff., and 86 ff. This work is concerned with a more technical definition of the word Constitution. Ibid., 2 and 51.

*1 Newsletters, 1674-1715, addressed to members of the Newdigate family of Arbury, Warks. See comment

under the date of January 29th, 1689. These news-

letters are referred to hereafter as the Newdigate Newsletters. At least in their beginnings, they were the official newsletters of Sir Joseph Williamson, one of the secretaries of state until February 1679, when the little Westminster Parliament

was elected. These newsletters are in the Folger Shakespeare Library in Washington, D.C. See also Journals of the House of Commons, X, 14, and Norman Sykes,

Church and State in England in the XVIIIth Century (Cambridge, 1934), 29.

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evening of May 26th in a debate as to whether to bring the lords in the tower to trial at once or to answer first the Narrative and Reasons. Reaching no resolution, they adjourned at 10 o’clock; and the following morning they met at eight to renew the debate. At this time the peers, in the words of the newsletter, ‘had

a greate debate abt. the Comons Reasons’. After a heated discussion they voted to maintain their position with regard to the bishops and the Catholic peers, despite the opposition of twentyeight peers led by Shaftesbury, who formally recorded their protest.?? Before the dispute between the two Houses entered a new stage, Charles II suddenly prorogued Parliament to August 14th; and before that date he dissolved it by royal proclamation. The reason given for the prorogation was the ill effect of a prolonged dispute between the two Houses, but the King may well have been moved by concern for the succession. Less than two weeks earlier, on May 15th, the first of the bills to exclude James Duke of York from the throne was read in the

House of Commons. Hampden though not Very probably the some attention during 21st—28th, 1681), the

It was actively promoted by Richard by all members of the country party. Narrative and Reasons was the subject of the very brief Oxford Parliament (March last parliament in the reign of Charles II.

Despite the fact that its chief concern was the passage of an exclusion bill to bar the Duke of York from the throne in favor of the illegitimate Duke

of Monmouth,

the House

gave consideration once more to Danby’s case. unpropitious even by his friends, the former had petitioned the House of Lords to free him; Commons responded promptly by appointing

of Commons

At a time deemed Lord Treasurer and the House of a committee, on

March 25th, 1681, to ‘inspect the Journals of the late Parlia-

ments, relating to the impeachment of the Earl of Danby; and . . immediately make a Report thereof to the House’. Richard Hampden reported for the committee, called hereafter the Hampden Committee ;and the House of Commons ordered Lord 22 According to the Newdigate Newsletter, May 29th, 1679, the peers gave special attention to the ‘Reasons’ in the Narrative and Reasons, and this statement is confirmed in The History and Proceedings of the House of Lords (London, 1742), I, 242, where it is asserted that the peers long debated the ‘Reasons’. See also Journals of the House of Lords, XIII, 590 ff.; H. M. C. Eleventh Report, Appendix,

Part II, The Manuscripts of the House of Lords, 40 f.; Grey, op. cit., VII, 343 (footnote) ;and Ormonde Manuscripts, V, 115 If

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Cavendish (a member of the country party in the House of Commons and Sacheverell’s colleague for Derbyshire) to carry a message to the House of Lords asking the peers to appoint a day for giving judgment on Danby’s pardon. Before further action was possible, Charles II, to protect his brother’s claim to the throne, dissolved the Oxford Parliament in what proved to be the prelude to the effective rout of the Whigs during the

remainder of the reign. No record seems to exist of the report of the Hampden Committee, but it is reasonable to suppose that its

members in their search of the Journals encountered the Narrative and Reasons, distinguished by its liberal borrowing from the Answer to the Nineteen Propositions. Richard Hampden had been responsible for the borrowing, and five members of the Hampden Committee were earlier appointed to the Sacheverell Committee. 3

Of greater significance in the history of the Answer to the Nineteen Propositions was the dissemination of the Narrative and Reasons throughout the country following the prorogation of the little Westminster Parliament. As the members of the House of Commons streamed homeward, apparently in a joyful mood,

a hostile observer commented:

‘When

their Narrative

and Reasons comes out in print let the country judge whether they have done well or ill.” He anticipated an adverse verdict when the country realized that the prorogation, for the time

being at least, spelled the end of legislation involving the renewal of the licensing act, the importation of Irish cattle, and measures affecting the Catholics.24 The House of Commons was ready to run the risk. Spokesmen for the Sacheverell Committee had threatened to make their report public if the peers proved obdurate, and the Narrative and Reasons was prepared with the dual aim of putting the House of Lords publicly in the wrong and justifying the course of action taken by the House of Commons. Sir Robert Southwell, Clerk of the Privy Council, writing to the Marquess of Ormonde, Lord Lieutenant of Ireland, commented

shew

that its members

if they did not further proceed

23 Ibid., VI, 8f., 20. H. M.

Manuscripts of . Committee is in on the very day *4 Newdigate

C., Fourteenth

. . the Earl of Lindsay, the Journals of the House that the Committee was Newsletter, May 29th,

sought ‘to

in other public affairs

Report, Appendix,

Part

IX, The

426 ff. The membership of the Hampden of Commons, 1X, 708. Hampden reported appointed. 1679.

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expected from them, where the true impediment lay’.25 The Narrative and Reasons was in print as early as May 27th, the very day of the prorogation. It was published at first in two

parts, and the Reasons appeared in greater numbers than the Narrative, a fact suggesting that the House of Commons placed a higher value on this part of its case. Southwell, writing to Ormonde, expressed the hope that the Lord Lieutenant would ‘receive the five reasons of this paper from some other hand, because many copies of them pass about, which at present I can-

not get; but the preamble [the Narrative] which fewer have I mererenclose ayes. 2® The Narrative and Reasons appears to have been disseminated

throughout the kingdom. By May 30th the two parts had been bound into one tract and it was being distributed by the country party, which had its headquarters in London at the King’s Head Club, renamed in 1679 the Green Ribbon Club. According to Lord Keeper North, the country party was so thoroughly organized at this time that its members ‘in 24 hours . . . could entirely possess the city with what reports they pleased, and in less than a week spread it [sic] all over the kingdom’.?’ By every post and special message news was sent to the coffee

houses in city and country, and a network of correspondents maintained constant communication between the country party and its adherents everywhere. One of them, described by Ormonde as ‘a constant and dangerous correspondent with the ill-

affected here’, wrote to a merchant in Ireland on May 31st, four days after the prorogation of the little Westminster Parliament. Enclosing a copy of the Narrative and Reasons, he recommended it enthusiastically, writing, ‘It is worth your reading.’ Explaining that it had been printed at first in three sheets but now in one convenient for mailing, he remarked that there had been three impressions of the tract in two days’ time. Though it had been twice seized, once by order of the court and once by that of the lord mayor, he doubted that the publication could be suppressed ‘because so thick brought up’.?* The writer of a contemporary newsletter noted that an order was issued to seize the printer.?°® 25 Grey, op. cit., VII, 336 f. Ormonde Manuscripts, IV, 519. 26

j

27 Hi op. cit., VI, 1499. 28 Ormonde Manuscripts, V, 119, 142. 29 Newdigate Newsletter, June 2nd, 1679.

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Published as a pamphlet and a broadside the tract appeared

under a variety of titles, at least five, this variety also suggesting that the Narrative and Reasons had been published in quantity.

The titles stressed the ‘Reasons’, which at first had been published separately.®° In addition, the tract was published as part of

the larger Impartial Account of Divers Remarkable Proceedings . . . Relating to the Horrid Popish Plot, which was printed in at least four editions in 1679. The following year the Journal of the

House of Commons of the little Westminster Parliament, which, of course, contained the Narrative and Reasons, was printed in a

pirated edition; and in 1682 the report of the Sacheverell Committee was published once more, this time in a radical work,

written by the extreme Whig Robert Ferguson, that was entitled The Second Part of the Growth of Popery and Arbitrary Government. This tract, regarded with abhorrence by the court,

circulated among the adherents of the Duke of Monmouth; and

the Tory journalist Roger L’Estrange,

writing to Leoline

Jenkins, one of the secretaries of state, confided that in his view

it had come from abroad (whence Shaftesbury had fled) and that *9 The report of the Sacheverell Committee was published in 1679 under the following titles: The Reasons and Narrative of Proceedings Betwixt the Two Houses; Which were delivered by the House of Commons, to the Lords at the Conference Touching the Tryal of the Lords in the Tower. On Monday the 26th of May, 1679; The Narrative and Reasons of the Honourable House of Commons, concerning the Tryal of the Lords in the Tower... .; The Narrative and Reasons of the House of Commons why the Earl of Danby should be tried before the Five Lords in the Tower; The Narrative and Reasons which were delivered by the House of Commons to the Lords at the Last Conference, Touching the Trials of the Lords in the Tower; A Narrative, and Reasons of the House of Commons about the Triall of the Lords in the Tower, at a Conference with the Lords. Apparently the country party feared that spurious editions were being put out, for a notation at the end of the second of these states:

‘This is a true Copy

carefully examined, and published to prevent abuses by false ones.’ The ‘Reasons’ figured prominently in the titles of the tract, and it may be noted that the historian James Ralph, writing in the first half of the eighteenth century, considered the ‘Reasons’ the part of the report that was worth reprinting. The History of England (London, 1744), I, 454 f. For direct borrowing from the report of the Sacheverell Committee and hence from the Answer to the Nineteen Propositions, see Humphrey Mackworth, ‘A Vindication of the Rights of the Commons of England’ (1701), Somers Tracts, XI, 281 ff., 287. The Whig Sir John Trenchard, writing in

collaboration with Walter Moyle, showed himself a convert of the theory of mixed monarchy in an influential tract entitled An Argument shewing, That a Standing Army 1s inconsistent with a Free Government (1697). See A Collection of

State Tracts, Publish’d during the reign of King William III (London, 1706), I, 565. Trenchard was a member of the Sacheverell Committee. See also 4 Compleat Catalogue of all the Stitch’d Books and Single Sheets Printed since the First Discovery of the Popish Plot (London, 1680), 12.

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‘some touches in it betray the E [arl] of S [haftesbury]] had a sight of it’.31 The active dissemination of the Narrative and Reasons renewed public interest in the Answer to the Nineteen Proposi-

tions, for it will be seen that the document was very well-known, indeed, in the last years of the reign of Charles II. Soon after the publication of the Narrative and Reasons there reappeared two tracts, written in the civil-war period under the stimulus of the Answer to the Nineteen Propositions, that had shaped impor-

tantly the theory of mixed monarchy. These were the Political Catechism, which was printed in 1679 as both a pamphlet and a broadside, and Hunton’s Treatise of Monarchie published in 1680. The republication of the latter was probably also in response to Sir Robert Filmer’s Anarchy of a Limited or Mixed Monarchy, published in 1648 in reply to Hunton and other Parliamentarians,

and now

reissued in 1679,

1680,

1684, and

1694 as part of a larger work entitled The Freeholders Grand Inquest. Obviously some Englishmen disliked deeply the spread of the theory of mixed monarchy in the late seventeenth century, an attitude that likewise explains the reissue in 1682 of Sheringham’s Kings Supremacy Asserted in an enlarged, third edition. The Political Catechism—in essence, the Parliamentarian ver-

sion of the Answer

to the Nineteen Propositions—was

circu-

lated in London a few months after the prorogation of the little Westminster Parliament. There is an affidavit in the Public Record Office, dated May 22nd, 1680, of one Stephen Whiteway,

a hawker of seditious books around London. He had become acquainted in July or August 1679, so he asserted, with a certain

George Cawdron and a Robert Murray in the Penny Letter Office; and the former had persuaded him to sell the Political Catechism.32 Its reappearance attracted the notice of contemporaries. Commenting wryly that the Polztzcal Catechism had been

‘lately reprinted, no doubt for the good of the people’, Edward Stillingfleet, later Bishop of Worcester, pointed out that the unwary concessions in the Answer to the Nineteen Propositions 81 Calendar of State Papers, Domestic Series, January 1st to December 31st, 1682, 537, 563 f. This was the continuation of a work begun by Andrew Marvell. See also the comment on 607. 82 [bid., January Ist, 1679 to August 31st, 1680, 488. See also Notes and Queries, New Series, Vol. 11, No. 3 (March, 1964), 96 f.

H

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had proved of dangerous consequence to Charles I when ‘the King’s enemies framed the Political Catechism out of them. Much stronger language emanated from the Tory journalist Roger L’Estrange, who, in a pamphlet that went through three

editions in the years 1679 to 1680, denounced the Polttical Catechism in scathing language as ‘the most audacious Libel (perhaps) that ever flew in the Face of any Government’. Its effect, he said, was to authorize a commotion under the form of

the people’s right because of its emphasis on the legal right of the two houses to take whatever action was needed to restrain tyranny if they even suspected it. Charging its anonymous author with having drawn his principles from the Nineteen Propositions, rather than the Answer, and with seeking to impose them on the English people as the concessions of Charles I and the fundamentals of the state, L’Estrange gave striking testimony concern-

ing the audience won by the Political Catechism. Its principles have become, he wrote, ‘the Common

Arguments of our Clubs

and Cabals’.*4 If the Tory meant to state that the tract itself was discussed in the coffee houses and cabals, he might just as well have written that the Answer to the Nineteen Propositions was the topic of conversation since it formed so integral a part of the structure of the Political Catechism. L’Estrange was well-acquainted with libels. An ardent Royalist, he had been intrusted in 1662 with the congenial task of licensing books and pamphlets and given the power to seize seditious books and libels and bring their authors before the council. Even though the licensing act ran out in 1679, he con-

tinued to act as a censor and spy for the court, receiving gifts of money and other signs of favor from Charles II and later from

James II. L’Estrange’s chief business in the last years of Charles II was waging an unrelenting campaign against the Whigs, as the members of the country party may now be called, and their dissenting allies. Towards the latter he was virulent, attributing to them the responsibility for the outbreak of civil war in 1642, the guilt of Charles I’s death, and, at this later date, new *8 ‘Of the Jurisdiction of the Bishops in Capital Edward Stillingfleet, late Lord Bishop of Worcester work, inspired by the quarrel over the jurisdiction is also known as The Grand Question concerning the ment in Cases Capital. It appeared in 1680. 34The Case Put. ..., 24-26, 98 f.

106

Causes’, The Works of . . . Dr. (London, 1710), II, 871. This of the bishops in Danby’s case, Bishops Right to Vote in Parlia-

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plots threatening Charles II. So vehement were his attacks on the Presbyterians and the other dissenters at the time of the Popish Plot that L’Estrange was accused of having Roman Catholic sympathies and seeking to divert attention with a new Presbyterian plot. Resentment ran deep at his activities. In a pamphlet

published during the Revolution of 1689 the court was censured for countenancing a mercenary whose business was ‘to palliate Popery, to villifie Parliaments, and to ridicule the best of anen °° A favorite charge of L’Estrange’s, levelled against both the Whigs and the dissenters, was that they believed in mixed monarchy. The latter group came under fire in his Dissenters Sayings, where he listed their beliefs as follows: (1) that the two houses could legally raise arms on the suspicion of tyranny even before arms

were

raised against them;

(2) that sovereignty

in the

English government was vested in king, lords, and commons; (3) that England was a mixed monarchy, governed by the major

part of the three estates in parliament; (4) that the two houses were coordinate with the king not only in making laws but also in the very power of acting; and (5) that kings derived their power and prerogative from the people.*® These doctrines were ascribed to a number of sources, including the two Houses during

the civil-war

period;

but two

of L’Estrange’s

prime

targets were the Polztical Catechism and Baxter’s Holy Commonwealth (1659).%? The Holy Commonwealth contained not only frequent appeals to the Answer to the Nineteen Propositions as containing the authoritative statement on the nature of the English constitution but also doctrines radical ring for the tion. Baxter wrote of reviling (which

reminiscent of mixed monarchy which had a political climate prevailing after the Restorathat it had furnished his ‘Enemies with matter none must dare to answer ).’*§ At one point,

35 4 Letter to a Gentleman at Brussels, Containing an Account of the Causes of the People’s Revolt from the Crown (London, 1689), 8. 36 The Dissenters Sayings, In Requital for L’ Estrange’s Sayings (London, 1681) 25 ff. This work went through four editions, the last in 1683. See also such works as An Answer to the Appeal from the Country to the City (London, 1679), 34; Citt and Bumpkin

(London,

1680),

24 ff.; 36; A Short Answer

to a whole

Litter of

; Libellers (London, 1680), 15 f. 387 The Dissenters Sayings, 25. See in particular L’Estrange’s The Casuist Uncas’d, in a Dialogue Betwixt Richard and Baxter, (London, 1680), passim. 88 Reliquiae Baxtertanae, Part I, 118.

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for example, he had explained his decision to side with the two Houses during the first Civil War by saying that he had found two of the three estates united against the will of the king; and

in another place, he described the power of parliament as rising from a contract between prince and people by which the parliament became a trustee for the people’s rights and liberties. Parliament seems to have meant to Baxter the two Houses. By

the constitution they shared in the sovereignty, as Charles I himself had confessed in his Answer to the Nineteen Propositions.’® Bitter criticism from the Royalists finally induced Baxter to disown the book though he refused to recant any of its specific doctrines.*° For a time he wrote no more about political matters; but, in the face of L’Estrange’s accusations that the dissenters had not only caused the death of Charles I but also planned rebellion in the reign of his son, Baxter decided to reénter the political arena despite the advice of friends in parliament who told him: “You can publish nothing so truly, or warily, but men will draw Venom out of it.”44 In his Second Part of the Nonconformists Plea (1680) the Presbyterian leader shunned the principles in his Holy Commonwealth that implied an advocacy of the theory of mixed monarchy and in their place stressed those elements of political thought that he deemed acceptable to Tory and Whig, churchman and dissenter, alike. Relying on the royal declarations of 1642 for a statement of the English constitution on which all could agree, he turned in particular to the Answer to the Nineteen Propositions, saying, ‘In his Majesties answer to the 19. Propositions he thus describeth the Constitution. . . .” The pertinent portions of the Answer were then quoted, without comment, as constituting the official constitutional position of the dissenters in so far as Baxter could speak for them.4#2 Thus the Presbyterian leader, who had already affirmed his high regard for the Answer to the Nineteen Propositions in his Holy Commonwealth, appealed to it once more, this time in 1680, approximately one year after ‘his dearly beloved and honoured friend’ Richard Hampden had persuaded the House of Commons 89 Holy Commonwealth,

40 Reliquiae

457 ff., 470, 474, 481.

Baxterianae,

Part

III, 71 f. His

Life of Faith, published in 1670.

revocation

is at the end

of his

41 Reliquiae Baxterianae, Part III, 188. “2 The Second Part of the Nonconformists Plea for Peace (London, 1680), 81 ff.

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of the little Westminster Parliament to rely upon the authority of the Answer in the constitutional argument with Charles II and the House of Lords. Though Baxter made no explicit disavowal of a belief in the theory of mixed monarchy, he was almost certainly a principal contributor to a tract entitled The Opinion of Divers Learned and Leading Dissenters, Concerning the Original of Government (1680) that took sharp issue with a leading tenet

of the Political Catechism. Despite the accusations of L’Estrange and other Tory publicists very few tracts were newly written during the Exclusion Crisis in support of the theory of mixed monarchy.

Yet this

theory, with its corollary of the three estates, was often criti-

cized in Tory tracts as though it had gained wide acceptance.

Perhaps at this point in its history the theory of mixed monarchy was more talked about than written about, its maxims argued in coffee houses and in those gatherings where Englishmen discussed their government. The following testimony concerning the prevalence of the theory by a writer hostile to it has an authentic ring. Before the passage of the statute 13 Car. 2 (making it illegal to assert that one or both houses could

legislate without the king), he wrote, some persons held the opinion ‘that both or either Houses of Parliament, had a Legislative Power without the King; since which time the like Principle hath been revived, that both or either Houses of Parliament hath

a co-ordinate power and share in the Government with the King, and that this is the ancient Constitution of the Government of this Kingdom’.*4 Other writers were concerned with the related 48 The argument of the Opinion closely resembles that in the Second Part of the Nonconformists Plea, 35 ff., 53 f. The tenet, derived directly from the Answer to

the Nineteen Propositions, was that kings receive their power originally from the people.

See the Political Catechism,

2-3

(See Appendix

II, of this study, p.

270) and also footnote 34 in Chapter I of this study. 44 The Arraignment of Co-Ordinate-Power (London, 1683), 13. England is described as a mixed monarchy in the introduction to Henry Care’s English Liberties (London, 1682), but this is exceptional. For statements indicating that the theory was prevalent, however, see A Letter to a Friend, Shewing . . . how false

That State Maxim is, Royal Authority is Originally and Radically in the People (London, 1679), 9; John Brydall’s Jura Coronae (London, 1680), 20 ff.; 146 and his New-Years-Gift for the Anti-Prerogative-Men (London, 1682), 5; and England’s

Concern in the Case of his R.H. (London, 1680), 4. One of the most influential attacks in this period on the theory of mixed monarchy was in Sanderson’s Preface to Ussher’s Power Communicated by God. Denial that the two houses were coordinate with the king was often the preliminary to a denunciation of the idea of diverting the line of succession from the Duke of York.

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proposition that the king was one of the three estates, this idea having received considerable attention as a result of the controversy over the bishops’ right to participate in Judging Danby’s pardon. One of them recognized that the idea was widespread

when he wrote: “There is much Art used to give Countenance to, or rather to form an Opinion that the King is one of the three States. It is now almost come to be an Opinion. . . .” He knew, as

did Denzil Holles writing at this time, and countless others, that a major source of the error, as he described it, was Charles I’s

Answer to the Nineteen Propositions. ** Holles, it will be remembered, was appointed in 1642 to the committee of the House of Commons that was to reply to the Answer.

Signs are plentiful, then, that the remarks of Charles I on the English government were recalled to numerous Englishmen in the years marked by the Popish Plot, the impeachment of the Earl of Danby, and the repeated attempts to exclude the Duke of York from the throne. The Answer had been invoked by Shaftesbury and the leaders of the country party in the House of Commons during the dramatic proceedings against Danby; and the key paragraphs on the English government, almost in their entirety, circulated as part of the very well-publicized Narrative and Reasons. As the report of the Sacheverell Committee it had been twice read by both Houses, had been debated in both Houses, had been printed in the Journals of both Houses. The Journal of the House of Commons of the little Westminster Parliament had been brought out in a pirated edition in 1680, and the Narrative and Reasons may well have been recalled to the Oxford Parliament. Moreover, despite the efforts of the court,

the Narrative and Reasons circulated both as a pamphlet and a 4° Mr. Hunt’s Argument for the Bishops Right (London, 1682), 197. See ibid., 199 for recognition of Charles I’s error in defining the three estates. Curiously, though Hunt corrected the royal definition, he declared in a notorious Postscript that the English government was a mixed monarchy. But this was not the usual practice, and even contemporaries noted the difference in tone between the Argument and the Postscript. Other writers who knowingly discussed the error included Stillingfleet;

John

Nalson;

Laurence

Womock,

Bishop

of St. Davids;

and the

anonymous authors of two tracts: The Dialogue betwixt Cit and Bumpkin Answered (London, 1680), 15 and A Letter of a Gentleman to his Friend, Shewing that the Bishops are not to be Judges in Parliament in Cases Capital (N.p., 1679), 100. The

latter tract is attributed in the D.N.B. to Denzil Holles. Henry Care reported that there was ‘a great debate about the three Estates’ in these years. English Liberties, TERE

110

OF

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MONARCHY

broadside under a variety of titles, and the Reasons was published alone. The tract was also printed in An Impartial Account of Divers Remarkable Proceedings . . . Relating to the Horrid Popish Plot and in Ferguson’s The Second Part of the Growth of Popery and Arbitrary Government, which was circulated among the adherents of the Duke of Monmouth. Apparently the Narrative and Reasons passed through the labyrinth of channels open to the Green Ribbon Club to the rest of the kingdom, and to its influence may be attributed the reprinting of the Treatise of Monarchie and the Political Catechism. The principles of the latter were,

according to L’Estrange, the common talk of the coffee houses in 1679.

There was no explicit reference in the Narrative and Reasons to the theory of mixed monarchy, and very few pamphlets were written in this period in its support. Its maxims were too radical for the years in which the doctrines of passive obedience, nonresistance, and the divine right of succession were ascendant. Yet

the influence of the theory of mixed monarchy continued to be felt; for it was either denounced by Tories who were unable to forget the pamphlets of the civil-war period and their mistrust of the dissenters, with whom they associated the theory, or else,

in all probability,

discussed

by Englishmen

whenever

they

gathered to talk of political matters. When in these years the Presbyterians and their fellow dissenters were charged with being exponents of the theory of mixed monarchy and practitioners of rebellion, Baxter responded by referring to the royal declarations of 1642, notably, to the Answer to the Nineteen Propositions, as a statement of the English constitution on which Tories

and

Whigs,

churchmen

and

dissenters,

could

unite.

Finally, the issue of whether the king was or was not one of the three estates continued to cause lively debate. The idea that he was one of the three estates was a matter of considerable consequence ; for its tendency, as a contemporary said, was ‘to depress the King, and to suppress the Bishops’.*®

The zenith of Tory hostility to the royal definition of the three estates and the accompanying theory of mixed monarchy was reached after the disclosure of the so-called Rye House Plot to murder Charles II and the Duke of York. On July 21st, 1683, the

day that the Whig Lord William Russell was put to death for his 46 Mr. Hunt’s Argument,

199.

1

THE

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OF

THE

THEORY

alleged complicity, Oxford University in a full convocation, with no dissenting voices, condemned certain pernicious books and ‘damnable’ doctrines as destructive of the sacred persons of princes, their state and government, and all human society. The books were publicly burned. The fourth doctrine of the twentyseven condemned was that ‘the sovereignty of England is in the three estates, viz. king, lords, and commons.

The king has but

a coordinate power, and may be over-ruled by the other two.’ Three of the four books burned for allegedly containing this doctrine were published in 1643-4; the fourth in 1659. They were Hunton’s

Treatise of Monarchie

(1643), A Political Cate-

chism (1643), the Presbyterian Samuel Rutherford’s Lez, Rex (1644), and Baxter’s Holy Commonwealth (1659). All of them reflected the influence of the Answer to the Nineteen Propositions, and the pertinent paragraphs on the mixed nature of the English government were reprinted in both the Polztical Catechism and the Holy Commonwealth. Happily, Baxter’s comment on the action of Oxford University has survived. Denying that he had ever drawn from the royal definition of the three estates the conclusion attributed to him, the Presbyterian leader explained with irony that when he wrote his book, he had considered parliament as having a share in legislation, a reason for this opinion being “The King’s Answer to the Nineteen Propositions.4% Considerable interest attaches to the later history of the University’s decree, which by implication had condemned the theory of mixed monarchy. Copies in Latin and English were sent to the court and read in the presence of Charles II, the Duke of York, and leading ministers, who seemed

gratified by the

action of the University. Provision was also made to post the decree in the libraries, refectories, and other fit places in the

several halls and colleges within the University, and the teaching of the condemned doctrines was forbidden. The decree was printed in the London Gazette and as a pamphlet entitled The Judgment and Decree of the University of Oxford. During the Revolution of 1689 copies of the decree were quietly removed from their places though its principles continued to be cherished 47 Baxter’s reply, dated July 28th, 1683, is in Richard Schlatter, Richard Baxter

and Puritan Politics (New Brunswick, New Jersey, 1957), 146 ff. See also Somers Tracts, VIII, 420 ff. and Ormonde Manuscripts, VII, 80.

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by high Tories. Reprinted in 1709, the Judgment and Decree was used in the defense of Henry Sacheverell, the high Tory clergyman educated at Oxford whose two sermons on passive obedience were construed by the Whig Government of the day as an attack upon the Glorious Revolution. Impeached, he was found guilty; and though he received only a light sentence, the House of Lords ordered that the offending sermons and the Judgment and Decree be burned publicly by the common hangman. The latter was described by the peers as containing ‘several positions contrary to the Constitution of this Kingdom’. Though they did not mention explicitly the fourth doctrine in the list condemned by the University, the doctrine that the supreme power in England resided in the three estates of king, lords, and commons seemed

to other Englishmen the very foundation of parliamentary government and their civil rights. In the eighteenth century it was, in the words of a contemporary, ‘the modern opinion, that the King is the first estate, and the bishops and nobility the .4¢ second: Thus Charles’s doctrine of the three estates triumphed after the Revolution of 1689. The language of mixed monarchy was frequently employed in tracts published at the time of the Revolution, and afterwards its maxims became commonplace. Two civil-war tracts were reprinted that were now classics in the history of the theory of mixed monarchy. Two editions of Hunton’s Treatise of Monarchie appeared in 1689; and the Political Catechism, which had so offended the Tories during the Exclusion Crisis, was reprinted in 1688, 1689, 1692, 1693, and

1710. In 1688 and 1692 the Political Catechism was reprinted as an appendix to another tract, likewise attributed to Henry Parker, that was hostile to the theory of the divine right of succession. The Polztical Catechism was reprinted in 1689 and 1693 as part of the State Tracts and by itself, in 1710, as an outgrowth of the 48 Francis

S. Sullivan,

Lectures

on

the Constitution

(London,

second

edition,

1776), 202. For an example of the value attached by some Englishmen to the fourth doctrine in the list condemned by Oxford University, see University Loyalty (London,

1710), 3, 12, 15, 22, 41 and 43. The Whig Robert Molesworth

pressed the same

ex-

sentiment in his preface to his translation of Franco-Gallia

(London, second edition, 1721), vi, vii. Other works to be consulted are Calendar

of Domestic State Papers, Charles II (July—Sept. 1683), 185, 210; Howell, op. cit., XV, 475; and W. Kennett, 4 Complete History of England (London, 1719), IU, 411 (footnote).

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THEORY

Sacheverell affair.4® The tract contained a number of doctrines suitable for the times. Its anonymous author, relying on the words of Charles I, had insisted that the king must govern in

accordance with the law and his subjects’ welfare and that the

two houses had the legal power to take any action that they deemed necessary to prevent and restrain tyranny. An aspect of the theory of mixed monarchy that had been evident from the beginning was prominent during the Glorious Revolution. Writers who in the civil-war period had described the government as consisting of three supreme estates often commented on their working in unison as a kind of corporation. A similar view existed during the Revolution among writers who considered that the flight of James II to France had dissolved

the corporation. One of them, after he had described the mixed character of the English government, wrote: “The supreme power of the nation being placed in a parliament, which is a corporation of king, lords, and commons, that is, the supreme authority residing in king, lords, and commons, as one corpora-

tion, there does appear, at this conjuncture, a dissolution of the governments. ==

No doubt the authors of the Bill of Rights, the major document

in the Revolution

Settlement,

were

familiar

with

the

49 The Political Catechism was printed in a work with this title: The True Portraiture of the Kings of England . . . to which is added the political Catechism (London, 1688). The latter was reprinted, again with the Political Catechism, in 1692, under the title 4 Short History of the Kings of England. See also the 1689 and 1693 editions of State Tracts: Being a Collection of Several Treatises relating to the Government, 447 ff. Two tracts asserting that the English government was a mixed monarchy by writers well acquainted with the Answer to the Nineteen Propositions are A Friendly Debate between Dr. Kingsman, a Dissatisfied Clergyman, and Gratianus Trimmer, a Neighbour Minister, concerning ... the Nature of our English Government (London, 1689), 23; and The New Oath of Allegiance Justified, From the Original Constitution of the English Monarchy (London, 1689), 9 ff., 17 ff. The first of these is cited hereafter as 4A Friendly Debate; the second as The New Oath... Justified. 5° Somers Tracts, X, 199. See also ibid., 196. The corporate view was implicit in the constitutional analyses of Parliamentarians like Herle and Hunton but perhaps was most succinctly expressed in the Ma.ximes of Mixt Monarchy (London, 1643), where it was asserted: ‘The three estates are co-essentiall, co-equal, coordinate, and co-workers in the political power. Being co-essentiall they make up one body inseparably.’ The tract has no pagination. For the continued identification of this idea with the term mixed monarchy during the remainder of the century, see Wilson, 4 Discourse of Monarchy, 139. The idea was also expressed

in Tudor England. Maitland: Selected Essays, ed. H. D, Hazeltine, G. Lapsley, and P. H. Winfield (Cambridge, 1936), 79 f.

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controversy surrounding the membership of the three estates and consequently the theory of mixed monarchy. Following the flight of James II, Prince William of Orange, as is well known,

summoned the Convention Parliament; and this irregular body

prepared a Declaration of Right, which was accepted formally by Prince William and Princess Mary before they were proclaimed

King and Queen. The Declaration of Right was included in the more comprehensive Bill of Rights, and the expanded document was passed as a Statute in the second session of the Convention

Parliament. In the reported debates on the Bill of Rights mixed government (but not mixed monarchy) is mentioned; and the doctrine of the three estates, as used by Charles I, appears.®4 Even if the Bill of Rights itself contained no explicit reference to either form of the classical theory, its provisions were fully consonant with that theory; and numerous contemporary pamphlets—a dozen can be readily cited—made use of the Answer to the Nineteen Propositions. In some pamphlets the borrowing was extensive.®? Sometimes their authors singled out for special approval the royal comment that the government of Englishmen had been molded by the experience and wisdom of their ancestors; it was quoted to signify that the government was of human, not divine, extraction.

As one writer concluded:

‘And so this

51 Parliamentary History, V, 40, 48, 51. The meaning is unclear of the reference

in the opening paragraph of the Bill of Rights to ‘the estates of the people of this realm’. 52 It was very extensive, indeed, in 4 Friendly Debate. See, for example, ibid., 20-23, 28, 36, 47, etc. Any list of a dozen tracts in this period referring specifically

to the Answer to the Nineteen Propositions should include 4 Friendly Debate; in addition, there could be included The New Oath... Justified, 9 f.; Reflections upon

our late and present Proceedings (London, 1689), 5; Some Short Considerations relating to the settling of the Government, 4; ‘An Examination of the Scruples of those who refuse to take the Oath of Allegiance’, A Collection of State

Publish’d on Occasion of the late Revolution (London,

Tracts,

1705), 1, 313; The Case of

Allegiance in our Present Circumstances Consider’d (London,

1689), 11; Peter Allix

Reflections upon the Opinions of Some Modern Divines (London, 1689), 83 f.; The Present Conjuncture in a Dialogue between a Churchman and a Dissenter (London, 1689), 4; The Historian Unmask'd; Or, Some Reflections on the Late History of Passive Obedience (London, 1689), 53; Samuel Johnson, ‘A Discourse of Magistracy’, A Fifth Collection of Papers relating to the Present Juncture of Affairs (London, 1689), 17 f. and An Argument Proving, That the Abrogation of King James by the People of England from the Regal Throne, and the Promotion of the Prince of Orange, one of the Royal Family, to the Throne of the Kingdom in his stead, was according to the Constitution of the English government, and Prescribed by it (London,

1692), 4; and James Tyrrell, Bibliotheca politica . . . Dialogue the Fifth (London, 1692), 339. The paging is bad in Tyrrell’s tract, and this should probably be page 347.

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THEORY

Government, as far as it was moulded by them [the ancestors of ’** Englishmen], is an Ordinance of Man, or an Humane Creature.

Writers generally referred to the Answer as containing the constitution which James II had violated with the consequent loss of his throne.*4 There are very good reasons for concluding that the authors of the Bill of Rights knew directly of the pertinent paragraphs on the English government found in the Answer to the Nineteen Propositions, a matter of considerable importance in explaining their view of the English government since the Bill of Rights itself is on the whole severely practical in nature. The Works of King Charles the Martyr, published originally in 1662 by R. Royston, was republished in two editions in 1687, and it will be remembered that ten years before the Revolution the House of Commons of the little Westminster Parliament had seen fit to make use of the Answer in the quarrel with the King and the House of Lords. Probably the Narrative and Reasons had been the subject of attention on the part of the Hampden Committee of the House of Commons of the Oxford Parliament. Only a short parliament in the reign of James II intervened between the Oxford Parliament and the Convention Parliament of 1689 that prepared and approved the Bill of Rights. The House of Commons took the initiative in drawing up the Bill of Rights by appointing, on January 29th, 1689, a committee for this purpose, of which the Whig John Somers was chairman.*®

The task of establishing whether the members of the Somers Committee

knew directly of the pertinent paragraphs in the

Answer to the Nineteen Propositions has been complicated by the destruction of most of the Somers papers in the eighteenth century. It may be approached, however, by ascertaining whether leading members of the Somers Committee were involved in the proceedings against Danby ten years earlier when the Sacheverell Committee used the Answer to strengthen the constitutional position of the House of Commons in the struggle °° A Friendly Debate, 28. Johnson, ‘A Discourse of Magistracy’, op. cit., 17 f.

The point was made explicitly in the much reprinted Political Catechism, 2 f. (See Appendix II, of this study, p. 270) and in Acherley’s

See also footnote 43 in this chapter.

Britannic

Constitution,

144.

54 See in particular 4 Friendly Debate, 47, 50; The New Oath... Justified, 6, 15, 18 ff.; and The Case of Allegiance . . . Consider’d, 10 f., 14.

55 Journals of the House of Commons, X, 15.

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with Charles II and the House of Lords. In short, was there a

direct relationship between the authorship of the Narrative and Reasons and that of the Bill of Rights? In this connection it may be noted that the first draft of the Declaration of Right, reported by the Somers Committee and voted by the House of Commons, contained a clause that no pardon should be pleadable to an impeachment. The Somers Committee may have worked from some proposals prepared by Henry Polexsen, who as counsel for Danby in 1679 had advised him to rest his plea upon his pardon. If so, apparently these pro-

posals did not include a clause about pardons though this was soon added. The Somers Committee was afterwards instructed

by the House to distinguish between the clauses in the Declaration introducing new law and those declaratory of ancient rights. When the Somers Committee reported, on February 7th, it was with the simple statement that its members ‘for divers weighty reasons’ thought fit to omit the clause concerned with pardons,

and no other explanation was given. Possibly among the weighty reasons was deference for Danby, who played a prominent part in the Revolution and was an influential member of the House of Lords. Though the clause was then dropped, an unsuccessful attempt occurred later in the House of Lords to attach one of

similar import to the Bill of Rights.** The clause favored at first by the Somers Committee reappeared in the Act of Settlement (1701), an important statute forming part of the Revolution Settlement and often denominated a delayed supplement to the

Bill of Rights. Other links existed between the Somers Committee and the events of 1679. Almost two-thirds of its membership had sat in the little Westminster Parliament.*? Some are reported as 56 Ibid.,

17, 19, 21. Grey,

op. cit., IX, 72. Parliamentary

History, V, 482.

Newdigate Newsletter, January 29th, 1689. See the account of the discussion of January 29th, 1689, found in Miscellaneous State Papers (London, 1778), H, 413 ff.,

422. It consists of notes taken by Somers in the Convention Parliament when the House of Commons decided to attach conditions for the bestowal of the throne.

Richard Temple seems to have been the first member of the Convention Parliament to suggest that a clause be added to bar pardons that prevented impeachments. Ibid., 415. 57 Members of the Somers Committee who sat in the little Westminster Parliament were Colonel John Birch, William Sacheverell, Hugh (?) Boscawen, Sir Thomas Lee, William Harbord, Sir George Treby, Sir Edward Seymour, Sir Heneage Finch, William Garroway, Thomas Foley (son of Paul Foley), Sir William Williams, Sir Robert Howard, Sir Henry Capel, Richard Hampden, Sir

az

THE

TRIUMPH

OF

THEORY

THE

speaking in the House of Commons on May 5th, the day that

Richard Hampden brought the Answer to the floor, and in the debate of May 26th, when the House amended the report of the Sacheverell Committee.5® Of the greatest significance is the fact that the most prominent and active members of the Somers Committee, with the exception of Somers himself, were also members of the earlier Sacheverell Committee that prepared and publicized the Narrative and Reasons; and some were appointed to the Hampden Committee. Members of the Somers Committee named to the earlier Sacheverell Committee were Sacheverell

(the second person named to the Somers Committee) ;Garroway; Richard Hampden; Paul Foley (who first sprang into prominence in the little Westminster Parliament and later served as Speaker of a Williamite House of Commons); Sir

George Treby (one of the managers of the impeachment of the five Catholic

peers);

Sir Thomas

Lee

(an eminent

country

gentleman whose name appears frequently in the parliamentary

history of the time); the high Tory Sir Christopher Musgrave, who had great weight in his party; and Sir William Williams (Speaker of the last two Parliaments of Charles II). Henry Powle, a member of the Sacheverell Committee, would doubtless

have been named to the Somers Committee had he not been chosen unanimously Speaker of the House of Commons in the Convention

Parliament.

Hampden

and

Musgrave

were

also

named to the Hampden Committee, as was a Mr. Harbord, presumably the prominent Whig, William Harbord, who was

also a member of the Somers Committee. Somers cannot be connected directly with the Answer to the Nineteen Propositions. He had entered parliament for the first time in 1689, and in the absence of his papers one can only conJecture as to his knowledge of the constitutional analysis made by Charles I. There were, however, numerous ways by which he might have become familiar with the contents of the Answer. °8 They

were

Garroway,

Richard

Hampden,

Sacheverell,

Williams,

Clarges,

Lee, Sir Robert Howard, Capel, and Seymour.

Thomas Clarges, Sir Joseph Tridenham, John Hampden (son of Richard), Thomas

Wharton, Sir Christopher Musgrave, Paul Foley, and Sir William Ellis. Also on

the Somers Committee were Henry Polexsen and Sir John Holt (who was added after the Committee had been named); both were counsel for Danby in 1679.

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OF

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For example, the Somers family was closely acquainted for many years with Baxter, who repeatedly in his lifetime displayed keen appreciation of the importance of the Answer to the Nineteen

Propositions. John Somers spent his early years at Whiteladies, the family home and onetime nunnery near Worcester, so close to Baxter’s church at Kidderminster that it has been described as ‘a sort of outsettlement of Baxter’s, in constant communication

with him and Kidderminster’.®® In later life Somers studied law in the chambers of the Whig Sir Francis Winnington,

a member

of the Convention Parliament in 1689 who had earlier been appointed to both the Sacheverell and Hampden Committees. And it was during the Exclusion Crisis that Somers became

acquainted with the Whig chieftains. Finally, Somers because of his interest in constitutional matters collected and read all that was published on both sides during the constitutional controversy between Charles I and the Long Parliament.®° The members of the Somers Committee who had earlier helped produce the Narrative and Reasons participated prominently in the preparation and passage of the Bill of Rights. Thus, it was Garroway, who, on January 22nd, 1689, the first day of the Convention Parliament, moved that the Prince of Orange

undertake the administration of the government until a settlement of the kingdom had been made. In 1679 the parliamentarian had described the Answer to the Nineteen Propositions as ‘the late King’s Constitution’,

and he was foremost

in urging the

House of Commons of the little Westminster Parliament to make public the Narrative and Reasons.®! His motion in 1689

was

seconded

by Richard

Hampden,

who

had brought the

Answer to the attention of the Sacheverell Committee. He had

read passages from Charles I’s discourse on the constitution to the House of Commons. According to Sir Charles Firth, Hampden played a dignified and important part in the Convention Parliament; and he was rewarded subsequently for his part in making the Revolution by being appointed to the treasury

board in the years from 1689 to 1693. On two crucial days he 59 Richard Cooksey, Essay on the Life and Character of John Lord Somers (Worcester, 1791), 13. Somers’ grandfather was a devoted admirer of Baxter and spent his last days with him. Ibid., 19.

60 Edward Foss, The Judges of England (London, 1864), VII, 352. Lord Campbell, Lives of the Lord Chancellors (Jersey City, 1885), IV, 464, 468. 61 Grey, op. cit., VII, 325, 327; IX, 3.

19)

THE

TRIUMPH

OF

THE

THEORY

served as chairman of the committee of the whole house: on January 28th, 1689, when the House of Commons resolved that the throne was vacant because James II had abdicated the govern-

ment; and on January 29th when the House gion, laws, and liberties before filling the as chairman of the committee of the whole dence reposed in him by his colleagues in

voted to secure relithrone. His election indicated the confithe House of Com-

mons of the Convention Parliament, and contemporaries viewed it as the first step in hewing the path that the House would now follow. By this action, Robert Harley declared, it “was easily guessed how their other debates would succeed [ensue? ]’.®? After Hampden was chosen chairman of the committee of the whole, the House turned to a consideration of the constitutional

situation created by the flight of James II. The lead in arguing that the throne was vacant because of what were deemed to be the illegal acts of the King was taken by Sir Robert Howard; and his allegations were supported by such former members of the Sacheverell

Committee

as

Sacheverell

himself,

Garroway,

Treby, and Lee. In 1679 Howard had praised the Narrative and

Reasons, saying that ‘the Reasons . . . will convince the World’. On February 5th managers for the House of Commons met in an eventful conference with a group of peers to urge acceptance of the word ‘abdicated’ in the Declaration of Right to describe James’ abandonment of the government. Named to represent the House of Commons were parliamentarians who had either be-

longed to the Sacheverell Committee or might reasonably be expected to have heard the Narrative and Reasons read in the little Westminster Parliament. In the first group were Sacheverell, Garroway, Hampden, Foley, Treby, and Lee. In the other

were Howard, Henry Polexsen, Sir John Maynard, Hugh (?) Boscawen, Sir Henry Capel, and Colonel John Birch.®

In the vote of January 29th to prepare conditions for the acceptance of the new monarchs, the House responded to the

proposal of Lord Falkland, grandson of the celebrated Lord Falkland, who, with Colepeper, had written the Answer to the

Nineteen Propositions. This proposal received vigorous support

°° H. M. C., Fourteenth Report, Appendix, Part II, The Manuscripts of . . . the Duke of Portland,

III, 424.

Firth wrote

the article on Richard

D.N.B.

Hampden

in the

°° Parliamentary History, V, 66 ff. History and Proceedings of the House of Commons,

II, 202 f.

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OF

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MIXED

MONARCHY

and Williams, who were

shortly afterwards

appointed to the Somers Committee and earlier had been members of the Sacheverell Committee.*4 Another parliamentarian, active in framing the Bill of Rights, was Treby, who also be-

longed to both Committees. Reporting for the Somers Committee on February 2nd, he offered for the consideration of the House of Commons

the first draft of the Declaration of Right;

and later he piloted the Bill of Rights through the House of Commons.°°

Convincing reasons exist, then, for assuming that the authors of the Bill of Rights had direct knowledge of the Answer to the Nineteen Propositions. The evidence is impressive, indeed, if

one adds together such historical clues as the interest shown by its authors in preventing for the future the use of a pardon to bar an impeachment, the relationship of the leading members of the Somers

Committee

to the little Westminster

Parliament, and

the prominent role taken in framing the Bill of Rights by parliamentarians who had earlier prepared and made public the Narrative and Reasons.

Moreover,

when the Sacheverell

Committee

chose to rest its case on Charles I’s Answer to the Nineteen Propositions, that document had already had a fascinating history during which the remarkable words of Charles I had exercised a great influence on English political thought. This was no ordinary document to which the Sacheverell Committee, under the leadership of Richard Hampden, had turned.

The extraordinary nature of the remarks of Charles I on the English constitution was recognized and commented upon in the late seventeenth and early eighteenth centuries. James Tyrrell, an intimate friend of John Locke, published in the years from 1691 to 1702 a series of dialogues on the constitution under the title of Bzbliotheca politica. This work has been described as a valuable summary of the Whig theory of the constitution in the late seventeenth century. Discussing the feasibility of having a mixed as contrasted with a limited monarchy, Tyrrell pointed out that the theory of mixed monarchy was ‘no Invention of the Commonwealth-Men’. To discover this one should ‘read King

Charles the 1st’s Answer to the 19 Propositions, sent him by the

Parliament’.

“The words,’

Tyrrell exclaimed,

64 Grey, op. cit., IX, 29 f.

65 [bid., 42. Journals of the House of Commons, X, 17.

I

WAN

‘are Remark-

THE

TRIUMPH

OF

THE

THEORY

able.’®* The reaction of the Whig Roger Acherley, writing in the eighteenth century, must have been typical of Englishmen when he wrote of the Answer to the Nineteen positions: ‘These evidences, out of the Mouth of a King

early many Prohim-

self, and such a King, when he was entering into a War with the Parliament, being so Clear and Distinct, and so often, at Distant

and Sundry Times, Repeated, is [sic] the Strongest Evidence and Proof, that ever was given, or can be given of this ConstituTOs Since the House of Commons took the lead in the formulation

of the Bill of Rights, it is unnecessary to examine in detail the proceedings in the House of Lords. It should be noted, however,

that the chairman of the committee of the whole when the House of Lords considered the Declaration of Right, occupying a position analogous to that of Richard Hampden in the House of

Commons, was none other than the Earl of Danby. He had been the most important of the Tory signatories to the invitation that was sent, just before the Revolution, to Prince William, inviting

him formally to intervene in English affairs; and he had secured the north of England for the Prince. At the time of the Revolution Danby may have had in his possession a copy of the Narrative and Reasons. Many years later, when he was involuntarily retired from politics, he prepared an apologia for his political con-

duct during the reign of Charles IT that included a work entitled Memoirs Relating to the Impeachment of Thomas Earl of Danby (1710). Its copious appendix contained the central documents of the famous impeachment proceedings, including the Narrative and Reasons; and a passage in the Memoirs implies that Danby had preserved these documents for more than a generation.8 86 Bibliotheca politica .. . Dialogue the Fifth, 345 ff. 87 The Britannic Constitution,

144.

8 Memoirs Relating to the Impeachment of Thomas Earl of Danby (now Duke of Leeds,) in the Year 1678 (London, 1710), Appendix, 18 ff. The Preface, which lacks pagination, has this statement: ‘I must own, ’tis with the greatest Satisfaction that I have reserv’d these Papers thus long.’ Whether these were Danby’s own papers is unclear, The standard biography of the Tory leader states only that the latter authorized

the publication

of the Memoirs;

but it is likely that, even

if

another hand had been at work, Danby himself supplied the papers in the Memoirs. Browning, op. cit., I, 564. The Speaker of the House of Lords in the Convention Parliament was the Marquis of Halifax, one of the most eminent exponents of mixed government in the late seventeenth century. H. W. C. Foxcroft, The Life and Letters of . . . First Marquis of Halifax (London, 1898), II, 287, 296 f.,

458 ff. 122

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The Answer to the Nineteen Propositions must have been known to Tory and Whig alike in 1689. Danby was preéminent in Tory ranks;

and Sir Christopher

high Tory, was a member

Musgrave,

an influential

of the Sacheverell Committee,

Hampden Committee, and the Somers Committee. Whigs

like Shaftesbury,

Richard

Hampden,

the

Yet it was

Sacheverell,

and

Garroway, who gave the Answer, by means of the Narrative and Reasons, the publicity that made its contents widely known in the years before the Glorious Revolution. So successful were they that anyone wishing to understand the political and constitutional ideas underlying the Bill of Rights must consult not only John Locke’s celebrated Two Treatises of Government (1690) which was probably written, in the main, in the autumn and winter of 1679-80, but also the all-important discourse on the English constitution in the Answer to the Nineteen Propositions, which was utilized so skilfully only a few months earlier by Locke’s patron, the Earl of Shaftesbury, and his able lieu-

tenants in the House of Commons Parliament.

of the little Westminster

It is worth noting, moreover, that among the few

books on history and government recommended by Locke to his readers was the State Tracts of 1689, in which the notorious

Political Catechism was reprinted.°°

The theory of mixed government expressed in the Answer to the Nineteen Propositions was elaborated and systematized in the eighteenth century in the writings of publicists such as Montesquieu, Sir William Blackstone, John Louis De Lolme, William

Paley, and Edmund Burke. In their several ways each contributed to the supremacy of the classical theory and to the popular assumption that the House of Lords, representative as it was of landed property, maintained, or ought to, the equipoise of the constitution, its membership constituting in Burke’s neat phrase, ‘the ballast in the vessel of the commonwealth’.”° Each publicized

England’s matchless constitution. Montesquieu brought it an international reputation. More than the others, Blackstone and

De Lolme formulated the classical expression of its theory. 69 John Locke, Two Treatises of Government, edited with an Introduction by (Cambridge, 1960), 61, 77, and footnote. See also The Works of Peter Laslett John Locke (London, 1812), III, 273.

70 Reflections on the Revolution in France (1790), The Works of . . . Edmund Burke (The World’s Classics, 1906-7), IV, 56.

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Paley rationalized the operation of influence as an integral part of mixed government. And Burke rallied his countrymen with the cry of the constitution in danger. Each also contributed to the security of the House of Lords so that its powers remained unchallenged until after 1789 and without serious challenge until after 1832. To them the House of Lords was the moderating element in the constitution, and their appraisal of its political usefulness was affected only by their estimates of its fitness and strength to play its assigned role in the constitution. In his Spirit of the Laws, published in French in 1748, Montesquieu by stating that the direct end of the English constitution was political liberty brought that constitution an international prestige on a scale hitherto unknown. He had admired the English constitution, as Burke said later, and held it out to the admiration of mankind. It becomes, then, of particular interest

to note the terms he used. On first sight Montesquieu appears to have broken with the tradition of mixed government. He was interested primarily in establishing that English political liberty was due to what he believed to be the sharp separation of powers among the executive, legislative, and judicial branches of the government; that is, among king, parliament, and bench. He

thus applied to the English government what has since become a commonplace classification of the powers of government and professed to find the secret of the English government in the equilibrium among three divided and mutually antagonistic branches.

Political liberty, he asserted,

was

attainable

only if

there were no abuse of power by government; and the mechanism to secure this was the separation of powers. Of the European kingdoms, England alone had been able to separate the execu-

tive and legislative powers; others had achieved only the separation of the judicial power from the other two. Montesquieu seemed to be attributing political liberty in England to the balance maintained among king, parliament, and bench, whereas believers in mixed government claimed that the

desideratum was a balance among king, lords, and commons. Until he modified this major thesis, he was saying that political liberty in England was due to the separation of powers in the government and not to the combination and balance of the three simple forms of government in such a way that their virtues were retained while their vices were eliminated. The distinction is 124

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fundamental. But it was though Montesquieu hesitated and then

decided to throw in his lot with English publicists. He shifted his emphasis from a balance among king, parliament, and bench to a balance among king, lords, and commons; he encouraged the already prominent tendency among Englishmen to attribute the stability of their complex government to the moderating influence of the House of Lords; and he noticed, by indirection, the

monarchic, aristocratic, and democratic elements in the English constitution. His first step was to dismiss from consideration the judicial branch. It was ‘in some measure next to nothing’. There remained to be considered only the executive and legislative branches of government, and these required a regulating power to moderate them that could properly be supplied by the nobility as part of the legislature. Thus Montesquieu’s newly minted separation of powers, as applied to the English government, had melted into the tradition of mixed government as he described what he called the fundamental English constitution in these words: “The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislative.’ Like Harrington earlier, Montesquieu was convinced that a nobility was essential to a limited monarchy. Neither could survive without the other. Abolish the nobility, he warned; and either a despotism or a popular state would result. In a much-quoted phrase Montesquieu added that ‘this beautiful system was invented first in the woods’. This ‘Gothic’ constitution had originated among the Germans who conquered the Roman Empire. By reading Tacitus one could see how these people, while in Germany, had assembled for public business; but after the conquest they had adopted the use of representatives with a resulting government of monarchy mixed with aristocracy. At that time the people were bondsmen; but, once they were enfranchised, there followed a perfect harmony among the civil liberty of the people, the privileges of the nobility and clergy, and the prerogative of the prince.” Thus Montesquieu had fused two separate ideas: the separation of powers (execu71 The Spirit of the Laws, trans. Thomas Nugent (London, 1878), Vol. I, Book II,

Chap. 4, p. 17; Book XI, Chap. 6, pp. 162 f., 167, 171-3 and Chap. 8, p. 175. Wormuth has a discussion of the idea of the Gothic constitution. Op. cit., 169 ff.

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tive, legislative, and judicial) and mixed government

(mon-

archy, aristocracy, and democracy). But he was interested primarily in the provision for political liberty made by the separation of the legislative and executive branches of government, and to him the doctrine of mixed gov-

ernment was secondary. Englishmen, imbued with the maxims of the classical theory, probably found confirmation of their preconceived ideas in the Spirit of the Laws; but the uninitiated were

more likely to carry away a realization of the importance of the separation of powers to political liberty rather than an awareness of the adaptation of that doctrine to the classical theory. Montesquieu’s contribution to the supremacy of the theory of mixed government was in bringing world-wide attention to the English system and in his emphasizing the moderating role of the nobility in the English government. In brief, he made but an indirect contribution to the classical theory, of which others wrote more fully and more specifically. It was

Sir William

Blackstone,

sometimes

called the high

priest of the cult of constitutionalism, who gave Montesquieu’s separation of powers its classical English form. The announcement of a course of lectures at Oxford from which stemmed the Commentaries on the Laws of England (1765-9) was posted on June 23rd, 1753; but the first volume of the Commentaries, in

which he included his well-known description of the English constitution, did not appear until 1765. Few books have been so successful. It went through eight editions in Blackstone’s lifetime and made him a comfortable fortune. Burke thought as many volumes had been sold in the English colonies in America as in England. Blackstone’s exposition of the English constitution was, if stereotyped, at least complete. He drew together what his predecessors in the field had said earlier. In his long introduction to 300k I he pointed out that the writers of antiquity would admit no more than three regular forms of government—monarchy, aristocracy, and democracy—for others were either corruptions or reducible to the simple forms. Each had its respective virtues and vices: in a democracy public virtue or goodness of intention was more likely to exist than in other forms of government; in an aristocracy, less honesty than in a democracy but more wisdom; and ina monarchy, more power than in the others but more 126

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likelihood of tyranny. In general, according to the Commentator, the ancients had no idea of any other permanent form although Cicero thought that the best-constituted republic would combine monarchy, aristocracy, and democracy. Tacitus, on the other hand, had thought such a combination visionary, which, if it could be effected, could not last.

A standing exception to the validity of Tacitus’ argument was the English constitution,

in which the executive power was

lodged in a single person so that the advantages of absolute monarchy were secured, while the legislative power was lodged in three distinct powers entirely independent of one another. They were the king, the lords spiritual and temporal (‘an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valor, or their property’); and the House of Commons, freely chosen from the people and thus a kind of democracy. Among these powerful branches of government, Blackstone discerned a perfect equilibrium; for in this aggregate body, actuated by different motives and interests, there could be

no ‘inconvenience’ attempted by one of the three branches which could not be withstood by one of the others, armed with a negative power adequate to repel any inexpedient or dangerous innovation. He enlarged upon the merits of the English constitution. In

the legislature was lodged the sovereignty of the English people as beneficially as possible for any society. There could be found the three great qualities of government. If the supreme power were lodged in only one branch, the English must be exposed to the inconveniences of absolute monarchy, aristocracy, or democracy and so lack two of the three principal ingredients of good polity, either power, wisdom, or virtue. If power were lodged in two branches such as the king and the House of Lords, laws might

be well made and executed but the good of the people might well be neglected. On the other hand, if power were lodged in the king and the House of Commons, then the ‘circumspection and

mediatory caution, which the wisdom of the peers’ afforded, would be lacking. Finally, if the king had no veto on the proceedings of the two houses, they might abolish the office and destroy the executive power. Fortunately for Englishmen, con-

cluded Blackstone, ‘the constitutional government of this island is so admirably tempered and compounded, that nothing can 127

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endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest’. Like Montesquieu, whose terminology of the separation of powers he had adopted, the Commentator forecast the end of the constitution if the independence of one branch should be lost.** This description of the English government dominated for almost 100 years the thinking of the great majority of Englishmen who gave any thought at all to their government.“ Blackstone and the constitution were practically synonymous in the pamphlet literature of the time, and after 1832 the Radicals who attacked the constitution aimed their diatribes at Blackstone. Not untypical was a tract entitled the Matchless Constitution (1835), in which an obscure follower of Jeremy Bentham was critical of the Commentator for having taught the Tories that the constitution contained within itself all the necessary checks on all abuses of power.7# The relationship between Blackstone’s Commentaries and John Louis De Lolme’s Constitution of England (1770) was succinctly, if ironically, expressed in the epigrammatic comment of the dissenter David Williams, who was one of the first Englishmen in the eighteenth century to reject the theory of mixed government. Williams thus summed up the connection: ‘Englishmen learnt their political creeds from these romances copied into political breviaries. . . . See Blackstone’s Introduction copied from Mon-

tesquieu; and De Lolme’s Constitution of England copied from Blackstone.’7° In 1770 De Lolme published in Holland his Constitution of England, written in French; and five years later an English translation was in print. The times were auspicious for its success. English national pride was troubled by the Wilkes affair and the Letters of Junius, both revealing defects in the much vaunted constitution. While De Lolme’s thesis that the mechanism of the English constitution insured English liberty was soothing, it was also flattering that a foreigner should have

devoted a full-length treatise to the history of the development of the English constitution, followed by a discussion of its prin*2 Commentaries on the Laws of England, 1, 49 ff. Butler, Opacit. 2S

*8G. Lowes Dickinson, The Development of Parliament during the Nineteenth Century (London, 1895), 47 f.

74 Pamphlets for the People, ed. J. A. Roebuck (London, 1835), No. 11, p. 14. The author was T. Falconer, brother-in-law to Roebuck. Letters on Political Liberty (London, 1789), 10-11 (footnote).

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ciples. By 1784 the Constitution of England had passed through four editions, and it continued to enjoy high repute until superseded in the second half of the nineteenth century by Walter Bagehot’s English Constitution, first published in 1867. It was perhaps inevitable that De Lolme should have been compared

with his illustrious predecessor who had given the English constitution its international reputation. He has been called the English Montesquieu, and it has been suggested that his Constitution of England was but an elaboration of Book eleven, chapter six of the Spirit of the Laws. De Lolme treated the English constitution as a piece of machinery in which king, lords, and commons, each armed with

an independent veto, served as balancing weights. The desideratum of this mechanism was not progress but stability. This stability had come into being because the early strong power of the crown had created a popular force as a counterweight. In the Conquest William I had so centralized his government, De Lolme explained, that he had aligned against himself and succeeding kings the combined force of the nobles and the people. The main problem of government was the equalization of the two forces. Since the king could not originate laws, he had been

unable to invade successfully the popular power. And the royal power had remained intact because of the division of the legislature into two bodies, each jealous of the other and zealous to prevent the other from engrossing the power of the crown. In

this way the views of the House of Commons and the House of Lords cancelled each other like equal quantities on opposite sides of an equation. Thus De Lolme had postulated a double balance in the English constitution; first, a balance between the king and the popular power (nobles and people) and secondly, a subsidiary balance between the lords and commons, the net result of which was constant protection of the royal power. Not only did the English constitution possess a double

balance; it also had the unique advantage of combining monarchic, aristocratic, and democratic elements. Had this constitu-

tion been planned, this was the reasoning its planner probably followed. Recognizing that nothing was more chimerical than a state of perfect liberty or equality, he would have anticipated the rise of a despot by establishing a sovereign whose powers could be bound and rendered innocuous. Around such a person 129

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in every state there usually grew up a privileged class, potentialities could be turned to the use of the state granting of titles and by the formation of a House of Since the House of Commons, the true representative

whose by the Lords. of the

people, was by this circumstance the more powerful house, what

the House of Lords lacked in real strength it had to receive in outward splendor and greatness. When De Lolme ended with a warning to those who would tamper with this delicate mechaniism without understanding its principles, he placed himself squarely against the rising demand for a reform in the House of Commons, even as did Paley and Burke.7® Another important contributor to the spread of the classical theory was William Paley, Archdeacon of Carlisle, whose Principles of Moral and Political Philosophy (1785) went through fifteen editions during his lifetime, was adopted as a textbook at Cambridge, and was widely read, studied, and criticized. In 1792

the chapter on the English constitution was reprinted separately.

His most original contribution to the classical theory was in his justification of influence as an integral part of mixed government. By influence he meant the control exercised by the king and peers over the membership of the House of Commons, a control exercised through patronage and the manipulation of small electorates in some of the boroughs. Paley’s exposition of the principles of the English constitution was memorable for the attention that he gave to the operation of influence, the equilibrium of the constitution, and the role of the House of Lords. Like Blackstone, the theologian traced distinc-

tion among governments to the location of the legislative power. A mixed government existed when the legislature combined two or more simple forms of government. In whatever proportion a simple form entered the constitution, its advantages and disadvantages were reproduced. This observation afforded a rule for directing the construction and improvement of mixed government. For example, a monarchy was usually considered to have great energy and also a propensity towards tyranny. It became the duty of the other estates to refrain from officious interference 6 The Constitution of England, ed. John Macgregor (London, 1853), 18 ff., 159 (footnote), 161 f., 179, 252, 259 f. For the fact that De Lolme in the first French

editions

of his work

was

favorable

to parliamentary

reform,

Palmer, The Age of the Democratic Revolution (Princeton, 1959), 148.

130

see R. R.

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with the executive functions, which should be reserved for the administration of the prince, but to be on their guard against military domination and needless wars. A foreign element sometimes appeared in the combination of simple forms without its being indigenous to any of them

separately. This quality Paley called corruption, by which he seems to have meant influence. Whereas influence would not exist in a pure monarchy or pure democracy, it would be present in a government combining them. A considerable portion of influence, he pointed out, was viewed by many wise and virtuous politicians as necessary to give cohesion and stability to a mixed government. Paley’s account of how royal influence had arisen showed perspicacity. It had developed as a result of a shift in the power of the king, which he dated from the accession of James I. Earlier kings had carried their measures in parliament through

the use of force, but after 1660 they had adopted new methods. The result was the growth of influence, which was needed to check the pretensions of a popular assembly. Accordingly, the theologian viewed the aim of reformers to limit the patronage at the disposal of the crown as a threat to the constitution and even

to the state. Like De Lolme, Paley was particularly interested in the balance of the constitution, which he saw as two-fold: a balance of

power and a balance of interest. By the balance of power, he explained, no branch of the government possessed a power, the abuse or excess of which was not checked by an antagonistic power elsewhere in the constitution. For example, the power of the two houses to legislate was checked by the king’s veto, while an attempted arbitrary administration could be frustrated by the two houses’ refusal to grant supplies. The accompanying balance of interest which gave efficiency to the balance of power meant that whenever there was an attempted encroachment by one estate, the other two would unite in resistance. It was to the

interest of the House of Lords, for example, to prevent the king from expanding his power at the expense of the House of Commons.

If the king became arbitrary, the nobility would lose the

‘hereditary share they possess in the national counsels’ and would become but part of the ‘empty pageantry of a despotic court.’ On the other hand, if the House

of Commons

should

attempt to encroach upon the royal prerogative, the House of 131

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Lords would take instant alarm and side with the crown. Every principle that actuated human conduct would draw the peers to the side of the king. Finally, if the peers sought to regain their feudal privileges, king and people would unite against them. Paley dwelt at length upon the usefulness of aHouse of Lords. It added stability to the monarchy, it provided a means by which the king could reward

his servants,

and, most

important,

it

stemmed the popular fury. If one man in a hundred could think for himself and not allow himself to be swayed by demagogues, he continued, an hereditary nobility would not be necessary to check the people. For when allowance was made for the difference in rank and education, the decision of a nation was usually right for its interests. Unfortunately, large bodies of men were subject to certain frenzies and the only way to stop the ‘fermentation’ was ‘to divide the mass’ by erecting different orders in the community with different prejudices and interests. It was not that the nobility was free of prejudice, he emphasized. It was

that their prejudices being different, they might counteract those of others. Certainly, Paley’s justification of the House of Lords differed from the usual, although he too gave great weight to its moderating influence. He justified the control exercised by individual peers over the membership of the House of Commons on the grounds that in this way an alliance was formed between the two Houses and that the government of the country could thus be kept in the Commons, where it would not stay if ‘so powerful and wealthy a part of the nation as the peerage compose, were excluded from all share and interest in its constitution’.?? One of the ablest of Paley’s contemporaries was the great Edmund Burke—Whig orator, political philosopher, and parliamentarian. In the closing decades of the eighteenth century he emerged as one of the most vigorous champions of the English constitution. He has been called the devoted worshipper of the cult of constitutionalism,

of which

priest.”° Burke’s

on mixed

remarks

Blackstone

was

government,

the high

which

are

scattered throughout his writings, were, however, less roseate

than those of Blackstone and De Lolme and more reminiscent of ™ The Principles of Moral and Political Philosophy (New York, 1837), Il, 79 f., 93 ff., 98 ff. CIB utlen Opa Clustcodn

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Paley. His reservations may have been due in part to the time in which he wrote. He had been a bitter critic of what he viewed as the unconstitutional activities of George III in the early years of his reign; and when the House of Commons refused to allow John Wilkes to take his seat despite the popular verdict of the Middlesex elections, Burke had been active to reverse its deci-

sion. Finally, he was writing in a period in which the predominance of the theory of mixed government was being undermined by the example of American republicanism and after 1790 by French experiments with democracy, that simple form of government that spelled tyranny to Burke and to the great

majority of his countrymen. At the same time the position of the House of Lords was less secure than earlier in the century. One of its members, Lord Chesterfield, had pronounced it a ‘Hospital of Incurables’, while Burke himself in 1793 acknowledged that it was the feeblest branch of the constitution. David Hume and De Lolme were agreed. On the other hand, the House of Commons seemed to be growing in strength; social and economic changes seemed to

portend for the future a considerable alteration in the constitutional position of the House of Lords. As early as 1742 Hume had recognized that the House of Commons was the most powerful member of the trinity, and even George III had commented that ‘the House of Commons is the scene for a man to exercise his Tallents and to acquire that facility which the Superior House can never give occasion to’. The Younger Pitt, when asked in 1783 what part of the English constitution would decay first, replied, ‘the prerogative of the King, and the authority of the Piouse.of Peers:27° Burke’s ideas on the English constitution were expressed primarily in three main works: Thoughts on the Cause of the Present Discontents (1770), in which he severely criticized George III’s system of government; Reflections on the Revolution

in France (1790), by which he helped turn a nation against the French

Revolution;

and An

Appeal from the New

to the Old

Whigs (1791), in which he further developed the views in the Reflections. Of the three the Reflections was the most influential. It had a greater immediate eftect on political opinion than any 79 Holdsworth, op. cit., X, 618 f. (see also the footnotes).Stanhope, op. cit., I, 133.

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other work of the century, so W. E. H. Lecky thought, and its permanent influence was perhaps greater than that of any other book of the eighteenth century with the single exception of the Wealth ofNations. Its sale was spectacular. Before the year was out eleven editions were in print, and its main points had become the topic of conversation in every political circle, arousing violent reactions of either admiration or hostility. In the upper circles of England and the Continent the Reflections was warmly received. Although George III had hitherto not forgiven Burke for his friendliness to the American colonies, he now unbent and

spoke enthusiastically of the work, saying it was ‘a good book, a very good book; every gentleman ought to read it’. Some of his favorites received elegantly bound copies as a sign of royal favor; others studied it ostentatiously.

Burke’s writings on the English constitution were by no means a prolonged panegyric of mixed government. That he admired the English constitution a great deal cannot be denied; and not

untypical was his often-quoted comment that if we could not admire that masterpiece, we should rather ‘believe that we are dull, than that the rest of the world has been imposed on’, and

consequently that “we ought to understand it according to our measure;

and to venerate

where

we are not able presently to

comprehend’.®® Yet the tone of his writings as a whole was one of reasoned exposition although he always insisted that the English constitution was a complex and intricate product of long growth, neither easily understood by laymen nor to be tampered with by reformers. Consistently opposing parliamentary reform, he, nevertheless, was adversely critical of the constitution

as it had actually been working; and he was the author of one of the most comprehensive bills ever to pass through parliament for diminishing the number of places at the disposal of the crown. This economical reform, as it was generally called, was perfectly compatible with the classical theory, for it could be said that the diminution of the influence of the crown over the House of Commons strengthened both the democratic branch and mixed government as a whole. When Burke was charged in the 1790s with apostacy to the principles that he had applied to the American Revolution, he explained his reasoning in terms that threw much light on the 8° An Appeal from the New to the Old Whigs (1791), Works, V. 133 f.

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attitude of all those who advocated reforms within the framework of mixed government. He had supported the various branches of the government on their various principles. Any apparent inconsistency in his political conduct was directly traceable to the variation in the principles of the separate parts of the government. He wrote: He who thinks, that the British constitution ought to consist of the

three members, of three very different natures, of which it does actually consist, and thinks it his duty to preserve each of those members in its proper place, and with its proper proportion of power, must (as each shall happen to be attacked) vindicate the three several parts on the several principles peculiarly belonging to them.

For monarchy could not very well be supported on the principles of democracy, nor aristocracy on the principles of either monarchy or democracy or of both. All must be supported on different principles, he emphasized, even though the constitution as a whole presented an harmonious appearance. No man could defend such varied, and at first sight discordant, elements with-

out being open to the charge of inconsistency.§? Since the best of all possible governments was a reformed and balanced monarchy, Burke could not condone the action of the French in recklessly throwmg away its materials in order to erect a republic with ‘no better apparatus than the metaphysics of an undergraduate, and the mathematics and arithmetic of an

exciseman’. Yet Burke’s enthusiasm for the monarchic and aristocratic elements in the English constitution was distinctly qualified. While the monarchic element was its keystone, he feared lest the extension of royal power would be its ruin. So he had spent much of his parliamentary life in opposing what he conceived as the revival of the prerogative in the form of influence. Those who wished the extension of the royal influence, he reported, argued that only by freeing the king from his ministers could the balance of the constitution be kept from being overturned by the rabble or a faction of the nobility. Others had invoked only the specter of the aristocracy. But Burke considered the peers guilty of servility to the crown rather than a source of danger to the constitution. The Whig statesman,

himself not a member

81 [bid., 30 f. 135

of the aristoc-

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racy, had something of a dislike for the nobility—‘the Corinthian capital of polished society-—although he was quite aware of its useful constitutional function. This dislike was expressed in such remarks as that of all the simple forms of government, he would hate most to see England become an aristocracy under ‘that austere and insolent domination’. In 1796 he wrote cuttingly of the Duke of Bedford (who had criticized Burke’s pension) that he had been ‘swaddled, and rocked, and dandled into a legislator’. Yet Burke recognized that while the aristocracy possessed so much property, it must be a tremendous political

force;

for

Harrington’s

dictum

of the

relationship

between landownership and political power was now a commonplace. Moreover, members of the aristocracy had done things in the past too great for the historically minded Burke to overlook. These facts coupled with his view of the innocuousness of the aristocracy convinced him that it played a useful part in the state. His fears were of a different nature. In his earlier political career he had dreaded the power of the crown. In the twilight of that career he feared the people and the spread of revolutionary doctrine among them.®? But such a view of the aristocracy, and

thus of the House of Lords, was a far cry from Blackstone’s ebullience that its members were selected for ‘their piety, their birth, their wisdom, their valor, or their property’.

Thus in every decade of the second half of the eighteenth century there had appeared an important new formulation of the classical theory. In the early 1750s Montesquieu’s Spirit of the Laws

was

in circulation,

and

Englishmen

could revel in the

knowledge that the direct end of their constitution was political liberty. It would be difficult to overestimate the influence of Blackstone’s Commentaries after its publication in the 1760s. He gave the separation of powers its characteristically English form in terms of mixed government. In the 1770s De Lolme’s elaboration of the system of checks and balances was available, while in the next decade William Paley through his Principles of Moral and Political Philosophy was removing the anxiety felt by some Englishmen about the influence of the crown and the peers in the House of Commons. This influence, it could be said, was

the ‘unearned increment’ of mixed government. Finally in the 8° Works, Il, 21 f.; 1V, 56, 153, 204; V, 35; VI, 51. John MacCunn, The Political

Philosophy of Burke (London, 1913), 157 ff.

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1790s Burke wrote his defense of that complex, mixed, balanced,

prescriptive English constitution, under which Englishmen lived and in terms of which they did their political thinking. The interrelationship of the classical theory—accepted as it was by both parties, by lords and commoners, by statesmen and publicists**—and the position of the House of Lords cannot be too often stressed. Undoubtedly Montesquieu added to its security by his reiteration of the Harringtonian dictum that a monarchy could not exist without a nobility. It must become either a republic or a despotism. The prestige of the House of Lords was further heightened by Blackstone’s eulogies of its wisdom and its intermediatory position in the constitution, while De Lolme’s decision that what it lacked in real strength should be remedied by its outward splendor went far to justify its privileges. Paley had rationalized the operation of influence in the House of Commons—a matter that might have raised questions detrimental to the position of the House of Lords. Impressed with its usefulness, Burke had made an essentially negative contribution to its security. Emphasizing the weakness of the House of Lords when compared with the other branches, he found the menace to the constitution in the democratic or monarchic branches. As the eighteenth century neared its close, a new form of the classical theory that now appeared made it even more unlikely that any serious criticism of the powers of the House of Lords would develop before 1832. Late in the eighteenth century there arose, apparently in response to the movement for parliamentary reform, a new form of

the classical theory of the English constitution. By 1831—2 it had gained such currency that opponents of the Great Reform Bill could appeal as readily to its tenets as to those of the classical theory itself. The new interpretation of the English constitution rested on these postulates: (1) that the House of Commons was the

strongest branch of the government and capable of engrossing

most of the legislative power; (2) that because nominees of the 88 There is some excellent material on the House of Lords and the supremacy of the theory of mixed government in eighteenth-century England in Holdsworth, ‘The House 307 ff.; 432 ff.

K

of Lords:

1689-1783’,

E37)

Law

Quarterly Review, XLV

(1929),

THE

OF

TRIUMPH

THE

THEORY

crown and of the aristocracy sat in the House of Commons, it of monarchy,

could be said that the mixture

aristocracy, and

democracy now existed in that House; and (3) that if these elements were removed by parliamentary reform, the English form of mixed government would be transformed into a pure democracy. Since the system of checks and balances, according to this new form of the classical theory, operated within the House of Commons to ‘modify the measures of government in their concoction’, the vetoes of the king and the House of Lords were

seen

as extraneous;

and

its advocates

stressed

the ad-

vantages of a system by which the constitution was freed from the jars and shocks that open conflict among the three branches would engender. The response of the parliamentary reformers was bitter. The people’s share in the constitution was now put at one-ninth, they said, while the other two branches acquired

the same amount in addition to their original shares as described in the classical theory.®4 The inspiration for this change in the theory of mixed government is directly traceable to Hume and Paley, whose writings had successfully rationalized for many the existence of influence as inseparable from the nature of mixed government.®® But the most systematic and influential exposition of the new form of the classical theory emanated from the Scottish philosopher, Dugald Stewart, who presented it eloquently in a series of lectures on political economy, given in Edinburgh University after 1800. Thoroughly acquainted with the writings of Blackstone and his fellows, Stewart, nevertheless, rejected their interpreta-

tions of the English constitution as not in accordance with the facts. No one could seriously claim, he said, that each branch of

the government could exercise its veto with equal effect when it was known that the royal veto had long been in disuse and that the House of Lords was unable to resist successfully the combined wishes of the king and the House of Commons. The royal power of creating peers must always defeat the House of Lords. Since the king and the House of Lords were not the coordinate partners of the House of Commons, it followed that the practical efficiency of the government centered in the latter House. Mixed

government,

however,

was

no chimera,

84 Butler, op. cit., 240. 85 “Of the Independency of Parliament’, Essays, 44 f.

138

Stewart

re-

OF

MIXED

MONARCHY

assured his listeners; for these three powers so long considered the distinguishing feature of the English government did exist and in a most effectual manner, but not in the manner described

by Montesquieu and Blackstone. They operated, not so openly

but just as effectually, by ‘being blended together in the composition of the House of Commons; an assembly which is no longer

composed of men whose habits and connexions can be supposed to attach them exclusively to the people, but of men, some of whom . . . may be presumed to lean to the regal part of a government, others to the aristocratical. . . .’ Stewart conceived as the

real problem the maintenance of a balance among the three branches within the House of Commons. If this could be secured,

so far from influence being an abuse in the English government, it became a method of compensating the aristocratic and monarchic branches for their loss of strength by the effect of the passage of time on the customs and manners of the people.8¢ Apparently through these lectures a small group of future Whigs—Francis Jeffrey, Sydney Smith, Francis Horner, and Henry Brougham—picked up the interpretation and then trans-

mitted it to a large reading public through the Edinburgh Review. In two articles, in July 1807 and in July 1809, which were printed in about 10,000 copies each, the editor Francis Jeffrey utilized the new interpretation to refute the arguments for parliamentary reform advanced by William Cobbett, Sir Francis Burdett, and

Major John Cartwright, all active in the reform circles of the time. Although the three branches of government had originally been independent, Jeffrey explained to the reformers, it had been seen as desirable that the regal, aristocratic, and democratic

elements should modify the measures of government in the House of Commons rather than subject the system of mixed government to the shocks and conflicts implicit in the operation of the open, vindictive checks called for by the classical theory.8? 86 The Collected Works of Dugald Stewart, ed. Sir William Hamilton (Edinburgh, 1856), IX, 440 ff. If the crown and the peers lacked influence in the House of Commons, Stewart asserted, ‘the constitution, under the forms of a mixed government, would be a pure Democracy ;whereas, if each has a certain influence,

the three powers may balance each other, and may produce the happy result aimed at in the theory of our constitution’. Ibid., 449.

87 Edinburgh Review, X (July 1807), 412; ibid., XIV (July 1809), 300. Lord

Cockburn, Life of Lord Jeffrey (Edinburgh, 1852), I, 421. Sir Walter Scott placed the number of copies of the Edinburgh Review printed quarterly in these years at nine thousand, while Francis Horner reminded Jeffrey in June 1809, to be careful

139

THE

TRIUMPH

OF

THE

THEORY

A letter written by the Whig clergyman, Sydney Smith, re-

vealed, however, that the doctrine found less favor among the

Whigs than the Tories. ‘Your notions of the English constitu-

tion delight the Tories beyond all belief,’ Smith told Jeffrey, but

‘the Whigs . . . shake their heads at your general political doctrines2° In April 1822, the young Whig Lord John Russell arose in the House of Commons to denounce the new doctrine as too dangerous to be accepted. A year earlier he had attacked the notion that the House of Commons ought to display a mixed representation—a representation of the crown, of the aristocracy, and of all the upper classes, but not the body of the people. In 1822 he saw fit to deal with the doctrine at greater length. Nothing could be more absurd, in Russell’s opinion, than the idea that the

balance of the constitution had shifted to the House of Commons alone. If it were so, he could see no security for the people, for there was no way of telling how the balance was adjusted within that House. Where would be the people’s guarantee, he wanted

to learn, that their wishes were not being entirely neglected in a House called a House of Commons, instituted for the purpose of gathering their wishes and protecting their privileges?®® The Whig denunciation was complete when Jeffrey, Lord Advocate in the Grey Government, arose in 1831, during the debates on the Great Reform Bill, to characterize the doctrine scornfully as

a ‘fine-spun and hypothetical dissertation’.®° By this time the new doctrine was safely berthed in the Tory party, whose leaders utilized it to damage the efforts of the Whigs to pass their Reform Bill.*? The new form of the theory of mixed government was even more of a support to the position of the House of Lords than the *8 Lady Holland,

4 Memoir of the Rev. Sydney Smith (London, 1869), 303. The

letter was dated November 89 Parliamentary Debates, 90 Tbid., third series, III, 91 [bid., third series, III,

18th, 1807. new series, V, 605; VII, 54. 65. 103-5; third series, IX, 431.

about committing himself on parliamentary reform since eleven thousand cepies would go out of whatever he wrote. Leslie Stephen, Hours in a Library (London 1904), ILI, 95. Memoirs and Correspondence of Francis Horner, ed. Leonard Horner (Boston, 1853), 1, 494 f. For the relationship between Stewart and the young Whigs, see the appropriate articles in the D.N.B.

140

OF MIXED

MONARCHY

older classical theory. According to the classical theory the House of Commons was the democratic element in the government and the means by which the people participated in that government. Accordingly, reformers could with consistency urge the reform of this House—as Burke would have said, upon its own principle—while leaving intact the powers of the king and the House of Lords. By the new form of the theory of mixed government the reformers were placed completely on the defensive. They had to prove that the democratic branch of the government

was

supposed

to represent the people and not to act, as

first the conservative Whigs and then the Tories claimed, as a senate in which the various conflicting interests of the state were deposited. This meant that they had a double task in relation to the House of Commons, for they had to demonstrate that they had a right to reform that House and also to win support for their particular brand of parliamentary reform. Accordingly, in the intellectual speculation of parliamentary reformers, the House of Lords was further removed than ever from the center of the reform agitation. So difficult was their task rendered by the new form of the theory of mixed government as well as by the conservatism of many who accepted the English constitution, in its existing form, as perfect, that few reformers in their thinking would go

beyond the immediate problem posed by the unreformed House of Commons. For the fact that reformers did not ordinarily see beyond the reform of the democratic branch of the government, we have the testimony of Major Cartwright, veteran of almost

fifty years’ campaigning for the reform of the House of Commons alone. He spoke for two generations of reformers, active before

and

after the

French

Revolution,

when

he declared:

‘Radical reform of the Commons’ House being merely a dictate of plain common sense; plain unlettered men were competent to a perfect conviction of the truth of the doctrine. But it is contrary to reason and experience to imagine, that, in the ranks in ques-

tion, more than here and there a solitary individual carried his ideas of reform further.’®? There is every reason to think that Cartwright was right. °2 Cartwright,

The

English

Constitution

1823), 175. 141

Produced

and

Illustrated

(London,

IV THE INFLUENCE OF THE THEORY OF MIXED GOVERNMENT

THE MIXED CHARACTER Of the English constitution was a fundamental assumption of eighteenth-century England. Although the theory of mixed government received its classical form in the writings of Blackstone and De Lolme, perhaps the keynote of the eighteenth century was equally well expressed in a sermon preached before the House of Commons in 1701 by Francis Atterbury, later Bishop of Rochester and leader of the English Jacobites. ‘Tis natural for Men to think that Government the Best, under which they drew their first breath,’ he

explained, ‘and to propose it as a Model and Standard for all Others. But if any People upon Earth have a just Title thus to boast, tis We of this Island; who enjoy a Constitution, wisely moulded, out of all the different Forms and Kinds of Civil

Government.’ It was a ‘Constitution, nicely poiz’d between the Extremes of too much Liberty, and too much Power; the several Parts of it having a Proper Check upon each other. . . .”4 The influence of the theory of mixed government, as expounded by Atterbury and countless others, pervaded English political life in the years from the Restoration to the passing of the Great Reform Bill. It shaped the early movement for parliamentary reform that flourished in the years from 1769 to 1799, 1 Sermons and Discourses on Severall Subjects and Occasions (London, 1723), I, 263 f. The sermon was delivered on the anniversary of the restoration of Charles IT.

142

THE

THEORY

OF

MIXED

GOVERNMENT

for example; and it also inspired the statesmen who in the spirit of imperial reform prepared the Constitutional Act of 1791 that gave Canada the institutions of mixed government. It even led would-be reformers of the House of Lords, strange as this seems

at first appearance, to advance proposals aimed at strengthening that House for the more efficient performance of its functions in mixed government. A few preliminary comments should be made about the description in the following pages of the early movement for parliamentary reform. First, Major John Cartwright and Joseph Priestley have been included because of their importance in this period even though they eventually became democrats and attacked the House of Lords. Their views after they became democrats are separately discussed in later chapters of this study. Secondly, while the Younger Pitt and Charles James Fox were parliamentary reformers, their ideas on government will be emphasized, not in relationship to the early reform movement, but in connection with the preparation of the Constitutional Act of Wg

Even though recent research has gone far to establish the moderation of the leaders of the movement for parliamentary reform that grew up after 1769, little has been done to show the effect of prevailing constitutional theory on the approach of reformers to the problems of reform and on their attitude towards the House of Lords. The two were intimately related. While at least one modern historian noticed a sharp difference between the agitation for reform before the French Revolution and the agitation for reform in the years immediately after 1789,2 no attempt has been made, so far as we know, to explain

the change in terms of the relationship between reform and the

reformers’ ideals of government. In the reform agitation before 1789 there had been no proposals to abolish the House of Lords or the monarchy;

but after

1789, under the influence

French Revolution and Thomas

of the

Paine, some support for pure

democracy appeared. Still there was not a lot, and the classical theory continued to be predominant. Had those men who participated in the reform movement in the years from 1769 to 1799, as a whole, been democratic in the

twentieth-century meaning of that term or had they accepted the 2. C. B. Roylance Kent, The English Radicals (London, 1899), 95 f., 130.

143

THE

INFLUENCE

OF

THE

THEORY

theory of popular sovereignty as fully as the seventeenth-century Levellers, they would scarcely have stopped, as they did,

with advocating the reform of the House of Commons. They would have insisted either on a limitation of the powers of the House of Lords, a change in its hereditary basis, or its abolition. That they made none of these proposals suggests that they were ‘mixed’ democrats, who would have reformed only the demo-

cratic branch of the mixed government while leaving the aristocratic branch aristocratic and the monarchic branch monarchic. To these ‘mixed’ democrats it was no anomaly, on the contrary it was perfectly natural, that the aristocratic House of Lords, its members representing no one but themselves, should exercise an independent veto on the measures of a House of Commons, unreformed or reformed. According to the classical theory, in terms of which they were thinking, if the House of

Lords rejected a bill of the House of Commons, aristocracy would have checked democracy for the public good. But to limit the powers of the House of Lords, to change its hereditary basis, to render it subordinate in any way to the House of Commons, or to abolish it would be to replace the English system of mixed government with a simple form of government—either pure monarchy or pure democracy—both tyrannical and equally frightful to contemplate. Their point of view was well expressed in a pamphlet published in 1792 in defense of the reformers by Christopher Wyvill, a clergyman of the Church of England and founder of the Yorkshire Association, which was organized in the winter of 1779-80 to promote reform at a time when the House of Commons could not fairly be said to represent the people of England. He wrote: Let it be considered . . . that men do not attempt to correct and improve what they wish to destroy; that a strong disapprobation of a body of National

Representatives

returned

by the little, venal, and

enslaved Boroughs, and the corrupt and factious state of Parliament, which is the necessary consequence, may well consist with a decided approbation of the general frame of our Government; that he best proves his attachment to the Constitution, not who defends with blind or selfish zeal every defect . . . ; but he who wishes to preserve the ancient foundations untouched, and the general plan unaltered; yet endeavours to remove the blemishes which disgrace the venerable 144

OF

MIXED

GOVERNMENT

structure; to repair what age has injured, to supply what experience has proved to be deficient; and to compel the subtle thief, or more audacious robber, to restore what each may have purloined or plundered; that the strength and beauty of the Fabric may thus be com-

pleted.

How correctly Wyvill had viewed the parliamentary reformers can be seen from a survey of the constitutional ideas of representative advocates of reform of the House of Commons. In order to understand how prevailing constitutional theory shaped the goals of the movement for parliamentary reform it is advisable to review briefly the state of representation that aroused the reformers’ wrath and their suggested remedies. Besides the obstacles to the reform of the House of Lords, im-

posed by the classical theory, the extent of the task confronting the parliamentary reformers was such that it is little wonder they confined their attention to the democratic branch. Eighteenth-century representation was the product of growth, custom, even caprice. Many peculiarities existed, for no changes had been made in the electoral laws since the fifteenth century, and with the advent of the Industrial Revolution and the consequent shifts in population from the south and east to the north and west the already existing inequalities became the more glaring. Once flourishing boroughs decayed but continued to send members to parliament while the new commercial and industrial centers were without representation. The electoral system, if system it should be called, afforded the

king, the aristocracy, and other large landowners unusual opportunities to influence the House of Commons. The king and his government directly controlled some thirty seats, but for managing the House of Commons they relied primarily on royal patronage to win the support of peers who had a greater direct influence in the constituencies. The personal influence of the peers because of their large estates and individual prestige was the chief factor in securing to their interest members of the House of Commons. But this facet of the problem was ignored

by the parliamentary reformers, who aimed their shafts at the 3 4 Defence of Dr. Price and the Reformers of England (London, 1792), 53 f. The modern historian, R. R. Palmer, noted the moderation of parliamentary reformers,

pointing out that none of them attacked the House of Lords or the crown in any basic way and all revered the British constitution. Op. cit., 303.

145

OF

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THE

THE

THEORY

more tangible, crude forms of bribery and corruption exercised in borough elections. Of the 558 members of the eighteenthcentury House of Commons, 432 sat for the boroughs as against

122 for the counties and 4 for the universities of Oxford and Cambridge. The county electorate was numerous and independent enough because of the 40s. franchise so that it was not easily controlled, and nearly all the abuses of the unreformed House of Commons grew out of the manipulation of the borough representation.

The emphasis placed by reformers on the extension of the franchise was due to the small number of voters within the boroughs, which made manipulation of their electorates relatively easy. In the franchises of the boroughs there was no uniformity; and even within the four distinct classes, in which the boroughs can be grouped, there was for the most part no uniformity as to the conditions on which the exercise of the franchise depended. These classes have been listed as scot and lot boroughs,

burgage

boroughs,

corporation

boroughs,

and

freeman boroughs. In the scot and lot boroughs the franchise was given to those who paid the poor rate or church rate, the equivalents of scot and lot, or even to those who were economically independent and had not been a charge on the poor rate. In the burgage boroughs the right to vote went with the ownership of parcels of land; and since these were saleable, a rich man could

easily control such a borough. Corporation boroughs were those in which municipal corporations elected the members of the House of Commons. Tiverton was representative of this type; there twenty-five members of a self-elected corporation chose the representatives. Most numerous, about eighty in all, were the freeman boroughs where by apprenticeship, inheritance, marriage, or purchase, persons were qualified for the freedom of the borough and the vote that went with it. It has been calculated

that at the accession of George III 55 peers and 56 commoners made or effectively influenced the return of approximately 205 members of the House of Commons. After 1769 an organized movement for reform arose outside the *Sir Lewis Namier, (London,

second

The Structure of Politics at the Accession of George III

edition,

formed House of Commons Commons,

1660-1832

1957),

148 ff. Edward

(Cambridge,

(London,

and Annie

Porritt,

The

Unre-

1909), I, 29 ff. Betty Kemp, King and

1957) 90ifr

146

OF

MIXED

GOVERNMENT

walls of parliament. Its leaders were divided into two groups. Whigs like Burke sought no constitutional reorganization but aimed to restrict the pensions, sinecures, and other offices avail-

able to the king and his ministers that could be used to influence members of parliament. That this program, which was called economical reform, was compatible with the classical theory has already been noted. More far-reaching was the program of parliamentary reform demanded by the so-called Radical re-

formers,

who,

influenced

by American

and French

doctrines,

demanded that the House of Commons be made more representative. It will be seen that this movement likewise remained

within the framework of mixed government. The Wilkes agitation of 1769 gave rise to the first serious attempt to control and reform parliament by popular pressure outside its walls. In that year John Wilkes and John Horne Tooke

founded the Society of the Supporters of the Bill of Rights, perhaps the first political society for parliamentary reform. Its purposes were to uphold Wilkes in his struggle with the House of Commons and to promote electoral reform, annual parliaments, the exclusion of placemen, and the subordination of a member of the House of Commons to his constituents. In this political society and in the Constitutional Society, formed when Tooke seceded after a quarrel with Wilkes, a Radical party came into being. The meaning of electoral reform to the new party is not altogether clear. The term used was full and equal representation, and by it Wilkes, Cartwright, and the Duke of Richmond meant universal manhood suffrage. Wilkes made his proposal in the House of Commons in 1776, the year that Cartwright published his famous Take Your Choice. From this tract the politically prominent Duke of Richmond borrowed the idea of universal

manhood suffrage. On the other hand, the more moderate John Horne Tooke, or Horne Tooke, as he was usually called, always

opposed so extensive a reform despite his earlier close association with Wilkes. By an equal representation the reformers may have meant the division of England into equal electoral districts, as had been suggested earlier by Hume; but more probably, they meant the disenfranchisement of rotten boroughs and the enfran-

chisement of the large commercial and manufacturing towns.° 5 H. W.C. Davis, The Age of Grey and Peel (Oxford, 1929), 61. W. E. H. Lecky,

A History of England in the Eighteenth Century (New York, 1887), III, 188 ff.

147

THE

INFLUENCE

OF

THE

THEORY

A more moderate section of the Radicals was led by the Anglican clergyman Christopher Wyvill, whose activities were closely linked with the Yorkshire Association, as already indicated, and the plan of parliamentary reform introduced into the House of Commons on April 18th, 1785, by the Prime Minister,

William

Pitt the Younger.

The

program

of the Yorkshire

Association included economical reform, as urged by a section of

the Rockingham Whigs, the addition of at least 100 county members to the House of Commons,

triennial parliaments, and

the extension of the franchise to all rate-paying householders. With the successful formation of the Yorkshire Association and the development of a scheme to unite the various county associations for parliamentary reform Wyvill induced Pitt to introduce a motion for parliamentary reform in 1783 and, two years later, a plan. In taking this action Pitt marked himself as a parliamentary reformer just as his father had been earlier. The latter, Lord Chatham, differing in his reform ideas from Burke, had sought

to associate the Rockingham Whigs with parliamentary reform. As early as 1770 he had proposed new members for the counties and had made in the House of Lords, in the words of the gossipy Horace Walpole, ‘one of his highest coloured orations, inflaming Lord Rockingham . . . to pursue the recovery of the Constitution, and advising him to carry the pursuit even to extremes, the democratic part of the Constitution having been, he said, inten-

tionally oppressed’.® The next year he pronounced himself a convert to triennial parliaments. In his scheme the Younger Pitt provided for the abolition of thirty-six rotten boroughs with compensation for the electors, the transfer of the seventy-two seats to the counties, and some extension of the franchise in the

counties although not so much as Wyvill and the Yorkshire Association had wished. After the failure of Pitt’s motion Wyvill and his fellow reformers decided to disband the Yorkshire Association and wait for a more auspicious moment. Still a third group of Radicals dissatisfied with the state of representation were the dissenters James Burgh, Richard Price, and Joseph Priestley. Price associated openly with the Yorkshire

movement,

and the dissenters

as a whole

backed

the county

® Memoirs of the Reign of King George the Third, ed. G. F. Russell Barker (London,

1894), IV, 39.

148

OF

MIXED

GOVERNMENT

association movement for parliamentary reform. Perhaps all three at this time would have been content with a householder franchise. When Price was consulted in 1783 on the best means of reforming the Irish Lower House, he suggested the advisability of conferring the vote only on those who paid taxes and possessed property. As far as England was concerned, Price was

satisfied with the Yorkshire scheme of transferring 100 seats from the boroughs to the counties. Although Burgh, Price, and Priestley did little to originate concrete schemes for reform of the House of Commons, they made extensive contributions to speculative Radicalism by their published writings, their political sermons, and their teaching in the dissenting academies. An attempt will be made in the following pages to establish that the leaders of the dissenters were interested in the reform of the House of Commons within the framework of mixed government, just as were

advanced

reformers

like Wilkes,

Tooke,

Cartwright, and Richmond and moderates like Wyvill and the Yorkshire Association. That the reformers were ‘mixed’ democrats can be determined by specific statements of a resolution to reform the House of Commons only while leaving the remainder of the constitution intact; by their coupling proposals to reform the House of Commons with praise of the constitution whether the term mixed government appeared or not; and by proposals to reform the House of Commons without any accompanying proposal to reform the House of Lords. The last criterion will be used as substantiation for the first two.

The first English Radical reformer was John Wilkes, a man whose private life scarcely fitted him for the role. His duel with a House of Commons clearly subservient to the court, which refused him his seat despite the results of three Middlesex elections, brought into prominence the need for a reform in the democratic branch. Fundamentally the conflict was between the people and the House of Commons. The Society of the Supporters

of the Bill of Rights, founded at this time by Wilkes and Horne Tooke, laid particular stress on the doctrine that the members of the House of Commons were the delegates of their constituents.

Tooke had thrown himself with great energy into Wilkes’ campaign to be returned from Middlesex so that he became almost

as prominent as Wilkes in the struggle between the House of Commons and the people. He was considered at the time to be 149

THE

INFLUENCE

OF

THE

THEORY

one of the most violent of London politicians, and he has since been called the most formidable of the ‘gentleman’ Radicals. He and Wilkes soon quarrelled over how the new Society’s funds should be spent; and Tooke seceded to form the new, but shortlived, Constitutional Society, which was in turn the parent of

such later societies as the Friends of the People and the London Corresponding Society. In the history of the struggle of the people to control the House of Commons from without, he and Wilkes because of their public agitation and petitions must be classed as the earliest of the Radicals. Their activities extended only to the reform of the House of Commons. Wilkes’ claim to Radicalism rested on his part in the movement to bind representatives by their constituents and on his proposal in 1776 for universal manhood suffrage. After he took his seat in the House of Commons, his speeches were restrained; and on his retirement from parliament he made a profession of his faith in a limited monarchy, which, founded on law,

secured a subject’s freedom. His vitriolic remarks in the North Briton had been aimed at Lord Bute, the unpopular Scottish minister of George III, not at the English constitution.

To Wilkes the freedom of election was the most solid part of that beautiful fabric, the English constitution; and he urged the

right of the people to their ‘fair and just share of power’. But unmistakably, that share was only the right to elect their representatives. In 1782, after the House of Commons had expunged from its records his expulsion, he praised the English constitution as ‘that perfection of human wisdom, that noblest work of

mankind’.? While Wilkes, like many other Radicals, was fond of describing the people as the source of political power, the limitation of the people’s share to the free election of their representatives, his eulogies of the constitution, and the absence

in his

writings of any real criticism of the House of Lords strongly suggest that he was a ‘mixed’ democrat. Horne Tooke was more conservative. Although he was accused of being a pure democrat, or a republican, in the state trials of 1794, he seems to have been little more than a Whig in

his political opinions. Cartwright was a witness for Tooke in the trials, and his testimony threw considerable light on the opinions : 7 Speeches of Mr. Wilkes in the House of Commons

(London,

1786), 27, 436.

Kent, op. cit., 33, 45 f. The Works of John Wilkes (London, n.d.), II, 223 f.; 239 f.

150

OF

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GOVERNMENT

of both. The Major, who had known Tooke intimately for sixteen years, gave this testimony: ‘In conversing with Mr. Tooke ... [have always heard him maintain that the regal and aristocratic branches of the constitution of this country were good and excellent in themselves, and that if a reform in the other branch of the constitution, meaning the House of Commons could be obtained, that our constitution, then, in his opinion, would be the

most perfect of any upon earth.’* Unless they were in the habit of talking the language of mixed government, Cartwright’s testi-

mony would hardly have taken this particular form. Certainly, there could be no more explicit a statement of a desire for reform within the framework of mixed government. As the state trial of Horne Tooke neared its end, Chief Justice

Eyre summed up for the jury the facts that the defendant, acting as his own lawyer, had established about his political views. As far as the testimony of witnesses was concerned, the Chief Justice began, Tooke had established that his principles were ‘directly opposite to republican principles; that he was firmly attached to the monarchy of the country, and firmly attached to the constitution

of it, in a King, Lords, and Commons—only

quarrelling with the Commons House in its present state’ and then only in a great measure because of his attachment to the king and to the House of Lords. Horne Tooke was of the opinion, Eyre affirmed, that ‘the true balance of the constitution

consisted in the king having his prerogative upon high ground; the hereditary nobility, having their balance in the state; the Commons being a pure and perfect representation of the people.’ Although Tooke had given demonstration of these points by public acts in the year 1780, in the year 1782, in the year 1785, in the year 1788, and in the year 1790, the Chief Justice left it to

the jury to decide whether Tooke still had the same principles in 1794. In eight minutes the jury declared Horne Tooke innocent of the charge of high treason and of having plotted to institute a republic, on the principles of Thomas Paine, in England.® One other point might be made about Tooke’s ideas on reform and their relationship to the English constitution. After 1797 he acquired a new and important disciple in Sir Francis Burdett, a 8 Howell, op. cit., XXV, T. J. Howell.

330. The

State

9 Ibid., 741, 743.

TS

Trials was

continued

from

1783

by

THE

INFLUENCE

OF

THE

THEORY

wealthy reformer who played a prominent role in the movement for parliamentary reform of the early nineteenth century. Burdett’s latest biographer has emphasized that both Burdett and Tooke disliked the writings of Paine, both were opposed to universal manhood suffrage, and both believed in the monarchy and the House of Lords. Their quarrel was with the House of Commons, as then constituted, and their essential conservatism was

due to their belief in what they called the ancient principles of the constitution.!° It should be evident that Horne Tooke was a ‘mixed’ democrat. Equally conservative in the same sense was Major John Cartwright, who, it has been said, represented the pure essence of the

Radical spirit as it existed on the eve of the French Revolution. If this is so, it would not be difficult to show that the Radicals as

a whole approached parliamentary reform in the spirit of mixed

government. For Cartwright in his own way was as devout a worshipper of the English constitution as Burke. In his reform

tracts he borrowed freely from Blackstone’s

analysis of that

constitution, and in 1793 he classed himself with De Lolme and

other admirers of the constitution. He asked spiritedly, “What is the difference between an association to support the constitution, and an association to promote a parliamentary reform?’

Although his works were legion and said substantially the same thing until he changed his mind at the age of eighty-two, the best exposition of Cartwright’s ideas when he would have reformed the House of Commons alone was in his Give Us Our

Rights (1782) and the Commonwealth in Danger (1795), in both of which he reiterated the need for the reform of the House of Commons to complete the natural perfection of the English form of mixed government. In the Commonwealth in Danger he declared that England had such a government as contained the elements of monarchy, aristocracy, and democracy with a balance among the three. Unless the House of Commons were reformed, he warned, the balance would be lost and the fabric of

the constitution destroyed. This was mixed-government language with a vengeance to justify the reform of the House of Commons.

In this mixed constitution, which Cartwright likened

to a pyramid, the wisdom of the peerage and members of the House of Commons held the balance between the people and the 10 M. W. Patterson, Sir Francis Burdett and his Times (London, 1931), I, 118 f.

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executive magistrate. In 1823, after he had become an unmixed

democrat, Cartwright apologized for having spent forty-seven years in seeking the reform of the House of Commons alone, and he attributed to his former ideas on the English constitution his failure to realize that such a reform would be inadequate without concomitant changes in the monarchy and the House of Lords.1} Last of the extremists among the parliamentary reformers to be considered is the Duke of Richmond, who borrowed much of

his reform program from Cartwright. Along with the Younger Pitt, Richmond brought the movement its greatest prestige. Testimony of his importance in it was given in the state trials of 1794 when the reformers steadily claimed that they had been motivated only by his and Pitt’s plans. Richmond was called to testify, and long sections of his Letter to Lieutenant-Colonel Sharman (1783), in which he had justified his scheme, were read into the minutes. The great lawyer for the defence, Thomas Erskine, told the jury that the Letter had become the very scripture of the reform societies. Indeed, Richmond’s advocacy of universal manhood suffrage had become classic. After passing through numerous editions it was reprinted in 1824 in the twenty-fourth volume of the Pamphleteer and again in 1859 in the

Right of the People to Universal Suffrage (1859). The Duke of Richmond’s sentiments on parliamentary reform have real significance. Unmistakably, he considered the reform of the House of Commons compatible with the spirit of mixed government. While advocating a major extension of the suff rage, he recognized the danger of making the House of Commons too dependent upon the people and thus of converting mixed government into a pure democracy. To avert so disastrous

a result he urged the restoration of the House of Lords to a position of equality with the House of Commons through allowing the hereditary House to originate money bills, and he favored strengthening the executive power although he was opposed to having the royal veto restored to ordinary use. His reasoning

represented that of many a reformer when he said: ‘I am not for a democratic, any more than for an aristocratic, or monarchic government, solely; I am for that admirable mixture of the 11 4 Letter from John Cartwright, Esq. to a Friend at Boston (London, 1793), 11, 38. The Commonwealth in Danger, 22, 97 f., 103, 105, 107. The English Constitution

Produced and Illustrated, vii (Preface).

.

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three, that our inimitable and comprehensive constitution has established.’!?

Equally imbued with the notions of the classical theory were Christopher Wyvill and the Yorkshire Association. In working out the details of the plan of parliamentary reform, proposed by Pitt in 1785, Wyvill revealed himself a firm believer in mixed government. It will be remembered that the Yorkshire plan, the essential details of which Pitt had adopted, had provided for giving additional representation to the counties. Wyvill was particularly anxious that representation should be apportioned to counties in proportion to population, not on the principle of equality, as had always been the case in the past. He had told Pitt, he reported to the Yorkshire Association, that if an equal number were assigned to the counties regardless of their population, the aristocratic element in the constitution, already too powerful at the expense of the democratic, would be further strengthened. For in the less populous counties, where a few powerful families dominated, the element of aristocracy was strong, whereas democracy prevailed in those more thickly inhabited. Thus the merit of the plan of adding county members must depend upon their being added in due proportion to popu-

lation.18 In brief, Wyvill had argued that unless the county members were allotted in sucha way that democracy was strengthened within the mixed constitution, his plan of parliamentary reform was scarcely worthwhile. That he had thus acted consciously on the principles of mixed government in setting up the details of the Yorkshire scheme was striking evidence of the extent to which those principles were dominant in his mind. In 1793 Wyvill repeated his earlier proposals for the householder franchise in the counties and pointed out that such a plan would not touch the just constitutional power of the king and the peers: it would simply give back to the people, in his words, ‘their lost weight in our mixed frame of Government,

without

the hazards of a Revolution’. In reply to the objection that the destruction of the influence of the peers within the House of 12 4 Letter from His Grace the Duke of Richmond to Lieutenant-Colonel Sharman

(London, 1792), 10-12. For the same tract see A Letter of His Grace the Duke of Richmond, in answer to the Queries proposed by a committee of correspondence in Ireland, on the subject of a Parliamentary Reform (London, 1783), 45-47, 49. ‘8 The Correspondence of the Rev. C. Wyvill with... William Pitt (Newcastle,

1796), Part I, 2 f.

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Commons would eventually lead to the destruction of the aristocracy (in view of the French Revolution, a tender topic), Wyvill emphasized that to remove the usurped powers of the peers in the boroughs was just, whereas to destroy wholly the power of men with great estates or mercantile interests would be not only dangerous but would also, in all probability, be destructive of the

constitution. He did not think this result at all likely, for the aristocratic influence would still possess the natural weight of property. Society had been formed, he wrote, to protect men in the enjoyment of both their personal rights and their property. !4 While Wyvill asserted that the majority of dissenters were ‘mixed’ democrats like himself, most of his contemporaries failed to share his opinion. Typical was the comment of the Reverend

William

Jones

in

1786

that

the

dissenters

were

generally zealous republicans, who, because of their hostility towards the established church, could never be cordial friends to

the aristocratic and monarchic parts of the constitution.!> The dissenters had played a prominent part in the county association

movement for parliamentary reform (1779-83); and when they were accused publicly of republicanism by Burke in the early 1790s, Wyvill sprang to their defense, declaring that in every meeting in which they had been a majority or nearly so, the language of their petitions and their plans of association had revealed their adherence to the principles of mixed government. As proof he printed the form of association of the Constitutional Society of Cambridge in 1783, which could have contained no more explicit an affirmation of a desire for parliamentary reform within mixed government. Its members had resolved that ‘the British constitution of King, Lords, and Commons

is the most

perfect theory of Government in the world, and may be rendered as perfect in practice, if the House of Commons be so Reformed as to be independent on [szc], and uninfluenced by, the other two branches of the Legislature’. The influence of the crown and the House of Lords in the House of Commons had brought great evils to the country, but the society hastened to disavow any desire to change any but the democratic branch. 14 Wyvill, 4 State of the Representation of the People of England . . . (York, 1793), 31, 33-35. Wyvill, 4 Letter to...

William Pitt (York, 1793), 21.

15 Defence of Dr. Price, 7f. Anthony Lincoln, Some Political and Social Ideas of English Dissent, 1763-1800 (Cambridge, 1938), 53 (footnote).

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‘The whole House of Parliament consists of King, Lords, and Commons,’ they emphasized, ‘but our attention is wholly con-

fined to the last, they being the Representatives of us.’?® The leading representatives of the dissenting interest involved

in the movement for parliamentary reform were James Burgh, Richard Price, and Joseph Priestley. The last two were the more important, but Burgh was also prominent in dissenting circles. His Political Disquisitions (1770) became the handbook of dissenting politics, supplying a whole armory of useful facts to contemporary critics of the representative system. The work is still worth reading as a contemporary analysis of the state of representation; it supplied Wilkes with his argument for universal suffrage and became a Bible for some reformers. Burgh placed sovereignty in the people but denied being a republican. Under different circumstances he might have been, he confessed; for if a state were settling its government, a republic would be preferable to a monarchy. In the 1790s Wyvill held a similar view. Burgh was explicit in his denial that he proposed to alter the English constitution. To propose to restore parliaments to their original period of one year and to attempt to secure adequate representation and the effectual exclusion of placemen from the House of Commons were, in his words, ‘not proposing to abolish either king, lords, or commons: but to preserve and re-establish them, on their original and proper foot.’ He employed effectively the claim that history was on the side of the reformers. In the past there had been an English parliament free from the abuses of his day. Restoration was not alteration, and antiquity was a reason for removing abuses, not for keeping them.17 Burgh was the disciple of his neighbor in Newington Green, Richard Price, whom Wyvill considered the leader of the dissenters and who at the least shared the distinction with his friend Priestley. It was Price who preached one of the most famous sermons of the eighteenth century, his notorious ‘Discourse on

the Love of our Country’, which has been called the red rag that drew Burke into the arena. He was also the author of Observa*® Defence of Dr. Price, 8, Appendix, 99 f. For the suggestion that perhaps the

dissenters did protest too much, see H. Butterfield, George III, Lord North, and the

People, 1779-80 (London, 1949), 254. 17 Political Disquisitions (London, 1770), II, 18; III, 278, 299, 308.

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tions on Civil Liberty (1776), which was second only to Paine’s Common Sense in its influence on the American controversy. Through the publication of the Observations he became one of the best-known men in England. Published simultaneously in

London and Philadelphia, the original edition was soon followed by a cheaper edition, from which Price gained little profit. About 60,000 copies were sold. Praised by one set of politicians, abused by another, Price had the notable distinction of having the Observations criticized by such men as Josiah Tucker, Burke, John Wesley, and the Archbishop of York. Despite Burke’s prejudice against him Price had much more in

common with the champion of the English constitution than with democrats like Paine. That Price was a ‘mixed’ democrat can be seen from his comments on that constitution in his Observations and from the testimony of the loyal Wyvill. The dissenter began his philosophical discussion of civil and political liberty with certain fundamental propositions. Civil government, to be free, must be the creature of the people. In a great state, where the people were unable to participate personally in legislation and government, Price considered that they might delegate this power and still retain their liberty to the highest degree if these conditions were met: the terms of the delegates must be short,

their election should be by the unbiassed voices of a majority of the state, and they should be bound by the instructions of their constituents.

In brief, if the House

of Commons

were

made

representative of the people, the highest degree of liberty was possible in England. The essentially narrow nature of Price’s democracy, a characteristic common to the reformers of the time, was revealed in his

discussion of the degree of liberty possible in the state. This liberty could range from the nominal to the complete, depending upon the share of the people in the government and their control over their representatives. Slavery existed where the people did not have a body of representatives with a share in the legislative power. A perfect constitution, on the other hand, was formed when to the representative body were added an hereditary council consisting of men of the first rank in the state (a House of Lords) and a supreme magistrate (a king). Thus useful checks would be added, and the qualities of vigor, union, and

dispatch brought into government. 157

The essentials of liberty

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would be preserved so long as the representative body was a fair representative of the people, possessed the power of legislation, and had the sole power of taxing and originating supply. That he

viewed the reform of the House of Commons only within the framework of mixed government was made conclusive by his final judgment: ‘A government by King, Lords, and Commons,

(it has been said), is the perfection of government; and so it is when the Commons are a just representation of the people,’ and with a sidelong glance at the American situation, when ‘it is not

extended to any distant people, or communities, sented:4°

not repre-

Unlike Price, Joseph Priestley, under the spell of the French Revolution, abandoned the classical theory and recommended

the abolition of the House of Lords. His pure and ‘unmixed’ democracy was undisguised in the anonymous Polztical Dialogue on the General Principles of Government (1791). Yet he had earlier been a ‘mixed’ democrat

who

accepted the House

of

Lords with the single qualification that the bishops should be excluded. Referring to his religion and politics, he was then accustomed to call himself a Unitarian in religion and a Trinitarian in politics. In 1765 Priestley utilized the maxims of the classical theory to express opposition to the adoption of a system of public education, which he feared might perpetuate permanently the abuses in the English constitution and strengthen the power of the crown. The preservation of the mixed government rested, he insisted, upon the retention of education in the hands of private individuals; for the balance would be destroyed if any part of the mixed government were allowed to provide for a system of public education. The existing English government was a mixture of regal, aristocratical, and democratic elements,

Priestley’s argument ran; and the adoption of public education might result in strengthening one part at the expense of the others. If the House of Commons, representing the people, chose public instructors, a republic might well arise from the ruins of the mixed government while analogous results would

flow from control being exercised by the monarchic or aristocratic elements. His real fear was that a system of public educa-

18 Observations on the Nature of Civil Liberty . . . (London, fifth edition, 1776), 6-10, 11 f., 46. Defence of Dr. Price, 62-65.

158

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tion would promote the influence of the crown. It was not that the existing government was perfect, for Priestley believed it could be altered for the better; but compared to other governments, it was ‘the best actual scheme of civil policy’.19 Thus Priestley before 1791 stood for the reform of the House of Commons within the framework of mixed government. In the few things that he had written of a political nature, he pointed out in 1792, he had been an avowed advocate of ‘mixed government by King, Lords, and Commons’. As he said, ‘Every publi-

cation which bears my name is in favour of our present form of government.’?° But a year earlier the Political Dialogue had been printed anonymously, and in its pages his acceptance of democracy,

pure

and ‘unmixed’,

was

frankly expressed.

This

fact in no way alters, however, the fundamental point made here that, in so far as Priestley contributed to the Radical speculation

underlying the movement for parliamentary reform in the late eighteenth century, he made his contribution as a believer in mixed government, as a ‘mixed’ democrat. Despite his pure democracy after the beginning of the French Revolution Priestley’s democracy was earlier that of other advocates of House of Commons reform. It was a democracy of the mixed government variety and extended only to the reform of the democratic branch of the mixed government. This explanation is offered for what the modern historian C. B. R. Kent in 1899 called ‘one of the most remarkable facts in English history, that the efforts of the earliest Radicals were directed, not against

the House of Lords, not even primarily against the Crown, but against the House of Commons’.?! Kent was writing when democracy had effectually replaced mixed government as the basic principle of the English constitution; and an attitude that

seemed to him inconsistent from the viewpoint of nineteenthcentury democratic theory was perfectly consistent, from the viewpoint of the classical theory, to reformers like Wilkes, Tooke,

Cartwright,

Richmond,

Wyvill,

Burgh,

Price,

and

Priestley. On this point it would be well to dwell on Burke’s 19 Memoirs of Dr. Joseph Priestley, to the year 1795, written by himself. . . (Northumberland, 1806), I, 197. An Essay on a Course of Liberal Education for Civil and Active Life... To which are added, Remarks on a Code of Education (Lon-

don, 1765), 160, 206 f. 20 Memoirs, I, 135 f. 21 Kent, op. cit., 17.

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THEORY

admonition that all the branches of the constitution must be supported on their respective principles and, further, that no man could defend such varied, and at first sight discordant, elements without being open to the charge of inconsistency. That William

Pitt and

his great

rival,

Charles

James

Fox,

also

approached parliamentary reform in the spirit of mixed government will be disclosed in connection with the proposal in 1791 to export the principles of the English constitution to Canada.

The influence of the theory of mixed government on the minds of eighteenth-century Englishmen was evident not only among political theorists and parliamentary reformers but also among statesmen. A classic example was furnished in the constitutional experiment carried out by William Pitt and his Government in Canada after 1791. The Constitutional Act of 1791, according to the first Lieutenant-Governor

of Upper Canada,

John Graves

Simcoe, provided a constitution for Canada that was the very image of Great Britain’s. Such, indeed, was the purpose of Pitt and his Home Secretary Lord Grenville; for they had concluded that the loss of the old American colonies had been due to ‘the want of more resemblance in their constitution with that of Great Britain’. When Pitt introduced the bill in the House of Commons, he summarized its purpose: this bill was to bring Canadian government as near as possible to that of Great Britain.?? Even the opposition leader, Charles James Fox, who proved troublesome to Pitt in the debate over the Legislative Councils,

declared that ‘he laid it down as a principle never to be departed from, that every part of the British dominion ought to possess a government, in the constitution of which monarchy, aristocracy, and democracy were mutually blended and united’. No government would be fit for British subjects ‘which did not contain its due weight of aristocracy . . . the proper poise of the constitution, the balance that equalized and meliorated the powers of the two other extreme branches, and gave stability and firmness to the whole’.?%

The aim of the Constitutional Act of 1791 was two-fold: to 22H.

E. Egerton and W.

L. Grant,

Canadian

Constitutional Development

..

(London, 1907), 99. R. Coupland, The American Revolution and the British Empire (London,

1930), 279.

*3 Parliamentary History, XX1X, 409.

160

.

OF

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GOVERNMENT

prevent a repetition of the American Revolution and to forestall any attempt of France to recover the possessions lost to the English in 1763. The method was to divide Canada into two provinces, Upper and Lower Canada, and to give each a copy of the matchless constitution. In this way Pitt hoped to secure eventually the voluntary union of the French and English populations after they had enjoyed separately the blessings of mixed government. Mixed government was to reconcile French Canada to English rule, to eliminate ‘jarring interests’ within Canada, and to forestall any future attempt of France to fish in troubled waters.?4 One fact emerges with startling clarity from the debates on the bill. Englishmen were convinced that the essence of the English constitution was the House of Lords. Pitt made a long speech on the aristocracy as the poise of the constitution, the link holding the branches together and imparting stability and strength to the whole. Accordingly he proposed to give a House of Lords, as nearly as local conditions permitted, to each of the newly created provinces. In the Act of 1791 provision was made for Legislative Councils, consisting of at least seven members in Upper Canada and fifteen in Lower Canada, summoned under the great seal of the province and sitting for life. Permission was given, though never exercised, to create a provincial nobility

whose members could demand as an hereditary right a writ of summons to the Legislative Councils. This provision for the bestowal of hereditary honors on members of the Legislative Councils was a new feature of colonial government as compared with the representative government in the old colonies. On the eve of the American Revolution the idea of introducing such a colonial aristocracy had been proposed in a memorandum to the

Cabinet by William Knox, the Under-Secretary for American Affairs.25 The proposal seems to have been given greatest currency, however, through the writings of two leading Loyalists,

Joseph Galloway and William Smith. Galloway had risen to early prominence in the American colonies as the powerful Speaker of the Pennsylvania Assembly during the decade before the Revolution. When friction developed between the mother country and the colonies, he had bent 24. W. P. M. Kennedy, The Constitution of Canada (London, 1922), 84 ff. 25 Parliamentary History, XX1X, 414. Kennedy, op. cit., 78 (footnote).

161

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all his energies toward reconciliation and the preservation of the

imperial connection. A reconciliation could be brought about, he thought, through the English parliament’s promulgating a

written imperial constitution by which the crown would appoint a governor general who would work with a grand council elected in the American colonies. This grand council was to have legislative authority to regulate all affairs in which Great

Britain and the colonies were interested. This first Galloway

plan, the best-known of the Loyalist’s plans for imperial union, since it made no provision for an aristocracy violated the basic principle of English mixed government. After the First Continental Congress failed to approve it in 1774, Galloway became openly sympathetic to the English; and after Howe evacuated Philadelphia, of which Galloway was the civil administrator during the English occupation, the Loyalist left for England. There he became the spokesman for the American Loyalists and busied himself with various new plans for imperial union, which he included in two letters, one to Lord George Germain in 1779 and the other to Charles Jenkinson. It is not known whether the

King or Lord North ever saw these plans.

In these years Galloway’s preference was a plan by which American representatives would enter the English parliament, but he put it aside as impossible to realize. His alternative plan an extraordinary exemplification of the influence of the theory of mixed government—provided for the institution of an American branch of the English parliament, to be organized on the principles of mixed government and recognized as inferior to the English parliament, This time he provided for an aristocracy, for the proposed central government for the American colonies was to consist of a representative of the crown, an upper house, and a representation of the people. The first should be appointed by the crown; the second also by the crown, its members sitting for life and vested with a rank or dignity above that of the Commons; and the third, by assemblies of the several

colonies. Galloway had thus provided for what he considered the

basic principle of permanent imperial unity: ‘that the same essential principles of policy should pervade the whole, should run thro every inferior and Subordinate Politic Body.’26 26 Julian Re Boyd, Anglo-American the British Empire, 1774-1788

Union: Joseph Galloway's Plans to Preserve

(Philadelphia,

162

1941), 117, 121; 187, 141 f.

OF

MIXED

GOVERNMENT

The American Revolution, in Galloway’s view, resulted from the failure of English colonial policy to observe the simple rule that ‘every inferior Corporation or Body Politic should be in Miniature a perfect resemblance of the Principal Government and always subject to its controul and authority. Every deviation must destroy the balance and weaken the principal System.’ As soon as the colonies were subdued, a homogeneity should replace the prevailing heterogeneity of colonial governments. All should become royal colonies with governments by a governor, an upper house with its members appointed by the crown and removable on the address of the governor and assembly, and this assembly chosen by the people. An error in the past, Galloway considered, had been the lack of monarchic and aristocratic elements in the charter governments of New England. This circumstance and the religion of its settlers had made these colonies perfect democracies. Little wonder that sedition had begun in New England, Galloway concluded. Once English mixed government had been duplicated in the American branch of the English parliament and in the royal colonies, the identity of polity throughout the empire would establish peace and concord and form the great cement of union, binding the parts of the empire together.?? Galloway’s thesis was ably seconded by another leading Loyalist, William Smith, Chief Justice of the Province of New

York before the American Revolution and of the Province of Quebec after its close. He was at the elbow of the Governor of Canada, Lord Dorchester, when he was transmitting to England his proposals for revising the Constitutional Act before its presentation to parliament. No doubt Smith’s views helped to

confirm those of the Pitt Government. As early as 1778 he had attributed the present troubles in America

to ‘that unmixed

Democracy prevalent in the Plantations’ and stated his wish for the institution of an aristocracy so as to prevent the revival of that spirit of democracy after the war. In a letter, forwarded by Dorchester along with proposed revisions of the constitution for Canada, Smith in 1790 attributed the American Revolution to the

fact that the colonies had outgrown their constitutions and to the

failure to apply the true remedy. “To expect wisdom and moderation from near a score of Petty Parliaments, consisting in 27 [bid., 121, 123-5; 142, 145-7, 150. 163

THE

OF

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THEORY

effect of only one of the three necessary branches of a Parliament,’ he wrote, ‘must, after the light brought by experience,

appear to have been a very extravagant expectation.’ Unfortu-

nately, at the outset, he concluded, all America had been ‘abandoned to democracy’.*®

The debates on the Constitutional Act of 1791 revealed the firm conviction, held by English statesmen, of the need to export a transcript of English mixed government to Canada in order to preserve the imperial connection. Pitt and Fox disagreed only on the details of how the aristocratic branch should be constituted. Pitt wanted the members of the Legislative Council to be

named by the crown while Fox urged an elected council, whose

members should meet high property qualifications and might even sit for life. He was adamantly opposed to introducing hereditary titles in Canada, where social conditions could supply no roots for such an aristocracy. An aristocracy should rest, as in England, on a two-fold basis of rank and property. If Fox were asked whether he would recommend an elected House of Lords for England, he would reply in the negative, he said, for the

plain reason that the British House of Lords had the acknowledged respect of the country. It was impossible to place an infant constitution on the same footing. No one could think that he favored democracy, Fox declared, unless such a person had

read very little and little understood the subject.?° An aristocracy based on property or on the elective principle, Pitt objected, would bring the balance of the constitution nearer to the people than it was to the crown in the English constitution. If the aristocracy originated with the crown, the imperial connection would be strengthened; for experience in the American colonies had demonstrated the need for such honors. But the Prime Minister did not want to see this provincial aristocracy dependent upon either the crown or the people. He wanted to bring it as near as possible to the model of the British aristoc-

racy. Even though there were not enough men in the colony with distinction suitable for a completely hereditary Legislative Council, he trusted that the flow of commerce and wealth, coming in the wake of the new constitution, would in time make *® Egerton and Grant, op. cit., 105. B. F. Stevens, Facsimiles of Manuscripts in

European Archives . . . 1778-88

(London,

*9 Parliamentary History, XXX,

1892), XII, 1204, 1299,

410-12, 427.

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GOVERNMENT

the infant aristocracy, provided for in this bill, of more weight in the constitution and eventually make an hereditary peerage a reality in Canada.*° The same William Pitt, who proposed to give Canada a transcript of the much-admired English constitution, had in 1783 and again in 1785 publicly pledged his support to parliamentary reform. Both times he had received Fox’s support. Pitt had abandoned the cause, but Fox had been steadfast. There is

no reason to think their views of the English constitution in 1791 differed materially from those that they had held earlier. In words reminiscent of his father, Pitt had declared in 1783

his opposition to the abolition of the rotten boroughs, deformities though they were, because the amputation might endanger the constitution. Instead, he advocated more representation for

the counties. The following year he declared, in language which Blackstone

might have used, that the constitution of England

was its glory, that it constituted the pride of Englishmen, and that they would give it up only with their lives. Its excellence consisted of the nice adjustment of its parts, for English mixed government eliminated the vicissitudes of a republic and the

vassalage of a despotism by blending the democratic and monarchic elements to produce a system which had become the envy and admiration of the world.*! In 1785 Pitt introduced his plan of reform. Similarly, Fox was no democrat.

In a debate on the Army

Estimates (February 9th, 1790) he denied that his praise of the French Revolution involved any desire to see a pure democracy in England. He was, he said, the “enemy of all absolute forms of government, whether an absolute monarchy, an absolute aristo-

cracy, or an absolute democracy’. He was the friend only of a mixed government, like the English, in which, if the aristocracy

or any of the three branches of the constitution were destroyed, the good effect of the whole would be ended.** When Fox advocated parliamentary reform, his choice of language reflected the influence of the classical theory. He was in the habit of praising the English constitution as having the important quality that it could be reformed in the democratic branch without danger to the main fabric. The people should be included in the government, he urged, by making the House of Commons 30 [bid., 414-16.

31 Ibid., XXIII, 832; XXIV, 710f.

165

more repre-

%? Ibid., XXVIII, 364.

THE

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OF

THE

THEORY

sentative. A reformed House would be no menace to the other branches of government. Let the monarchy and the House of Lords be abolished if they were useless and unnecessary, Fox declared; but he was convinced that the people believed them essential and that a House of Commens freely chosen would cherish and protect them both.** Fox’s repeated denials that he was a democrat were borne out by the facts of his parliamentary career and by his language in the debates on the Constitutional Act of 1791. Thus, just as the debates on the abortive Peerage Bill of 1719 (to be discussed) had revealed agreement between the Government and the opposition on the excellence of English mixed government, so in the last decade of the eighteenth cen-

tury there was also a basic compatibility on this point between the Government and the opposition. Both favored sending the principles of this superior constitution to England’s chief North American colony. Underlying the debates of 1791 was the conviction that the loss of the American colonies had been due to the failure to assimilate colonial political institutions to those of the mother country, to ensure, in Galloway’s words, that the “essen-

tial principles of policy should pervade the whole’. In view of the general disillusionment following the American Revolution the statesmen of 1791 were paying the classical theory the highest possible compliment when they placed upon its principles the burden of preserving the imperial connection between England and Canada. The emphasis placed upon a House of Lords for Canada reflected, moreover, the importance attached by Englishmen to their hereditary House so long as their political thinking was dominated by the classical theory. That not only statesmen in England approached the solution of their constitutional problems under the spell of the theory of mixed government was clearly evidenced in the writings of the Loyalists Galloway and Smith, whose solutions for imperial problems were given a fair trial in the Constitutional Act of 1791.

Long before Pitt and Fox agreed in extolling the House of Lords as the equipoise of the English constitution, mediating between the other two branches and giving stability and firm%° Speeches of . . . Charles James Fox in the House of Commons (London, 1815)

IV, 410; V, 114; VI, 354 f.

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GOVERNMENT

ness to the whole, there appeared some mixed government reformers, though their number was small, who advocated the reform of that House. From the modern democratic viewpoint

reform of the House of Lords suggests making it more popular and less aristocratic in nature, but this was not the object of those who proposed its reform in the years from 1660 to 1832. What animated would-be reformers of the House of Lords in these years was not the desire to democratize that House or diminish its powers, but rather a wish to strengthen it for its role in the famed English mixed government. Their proposals fall into five main categories: (1) the institution of property qualifications for membership in the House of Lords; (2) the limitation of the power of the crown to create peers; (3) the conversion to an hereditary basis of seats in the House of Lords held by elected Scottish peers after the Act of Union (1707) and by elected Irish peers after the corresponding act for Ireland in 1800; (4:) the exclusion of bishops and the Scottish peers on the ground of their servility to the crown; and (5) the crea-

tion of life peers as proposed by David Hume and the antiquary Sir Nicholas H. Nicolas. The philosophy of the would-be reformers of the House of Lords was well expressed late in the eighteenth century by an obscure Scottish clergyman. George Skene Keith proposed property qualifications for membership in the House of Lords because the nation as a whole was too little concerned about that House.

This indifference,

he feared, might allow England to

slide into pure democracy once the House of Commons was reformed and the House of Lords still retained useless and dangerous privileges. “Io preserve the House of Peers,’ he stated,

‘I would reform that House.’*4 In the following pages the proposals of those who wished to reform that House because they

wished to preserve or strengthen it will be included in a discussion of two major and comprehensive topics: the attempted passage of the Peerage Bill of 1719 and the reform plans advanced by David Hume in a little essay called “The Idea of a

Perfect Commonwealth’ (1752). The essence of the Peerage Bill was included in the resolutions 34 Tracts on the Reform of the British Constitution (N.p., 1793), 26. He described the nation as ‘wholly intent upon reforming Commons’ and too indifferent about reform of the House of Lords.

167

THE

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OF

THE

THEORY

introduced in the House of Lords by the distinguished Lord

Somerset on February 28th, 1719. The resolutions provided for the limitation of the English peerage (princes of royal blood were excluded from this limitation in the final form of the Bill) and for a change in the existing representation of Scotland in the

House of Lords as this had been determined by the Act of Union (1707). Six new English (sic) peerages might be added to the present number, but no more unless there should be a failure of male issue in an existing peerage. The sixteen elected Scottish peers would be replaced by twenty-five hereditary peers, designated by the crown; and future vacancies would be filled from the remaining Scottish peerage. Henceforth the House of Lords would include no temporal peers whose seats were not hereditary, and the power of the crown to control that House would have received a strong check. While proposals to limit the creation of peers through the imposition of qualifications were not new, the extent of the limitation in the Peerage Bill was revolutionary. During the Civil Wars the House of Commons had sought to control the membership of the House of Lords, and in the Restoration period Henry Neville had proposed the creation of peers by act of parliament. Probably as a result of the dissemination of the Harringtonian dictum on the relationship between political power and property ownership numerous proposals appeared during and after the Restoration for the imposition of property qualifications. In an undated essay “Of Popular Discontents’ Sir William Temple urged that a baron be required to entail £4,000 a year on that honor, a viscount,

£5,000, etc. And during the

passage of the Act of Settlement through the House of Lords Viscount Longueville proposed that a baron should have property, inalienable from the peerage,

worth

£3,000

a year, a

viscount, £4,000, etc. This proposal appeared with minor modifications in the terms down to 1832.35 The scheme proposed by the Whig Ministry in 1719 went far 8° The Works of Sir William Temple (London, 1814), Il, 62. A. S. Turberville, The House of Lords in the reign of William III (Oxford, 1913), 168. The proposal

appeared in such anonymous tracts as A Memorial offered to Her Royal Highness, The Princess Sophia . . . (written in 1703); An Outline of General Reform of the British Constitution

(1792), ‘The Peerage Bill in 1719’, Retrospective Review, ed.

Henry Southern and Nicholas Harris Nicolas (London, 1828), Second Series, II, 118 f.

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OF

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GOVERNMENT

beyond any of the previously proposed limitations on the royal power of creation. Had the Peerage Bill become law, the House of Lords would have become a closed corporation of about 235

members, unchecked by the king or the House of Commons. Naturally the proposed scheme would be eminently acceptable to the House of Lords, which had everything to gain; but only an exceptional combination of circumstances could have encouraged the Whig Ministry to introduce with a definite expectation of success a bill that would so diminish the powers of the king and the House of Commons. The motives of the two Whig ministers,

the Earls

of Sunderland

and

Stanhope,

who

pro-

moted the Bill were mixed; but paramount were their distrust of the Prince of Wales and the fear that his accession as George II would mean their replacement in office by Sir Robert Walpole, who had built up a party of discontented Whigs and Tories around the heir to the throne. George I hated his son. The consequence of the split in the royal family was the Peerage

Bill of 1719. The movement less an attempt at fore, than a party hope to maintain

to limit the royal power to make peers was genuine reform of the House of Lords,-theremaneuver designed by Sunderland and Stantheir control of that House. It was doubtless

inspired by the creation of a Tory dozen by Queen Anne in 1712 in order to win parliamentary approval of the treaty of Utrecht. The lapse of seven years had not erased from Whig memory the incident which had created considerable stir at the time, some

saying that the action had made the House of Lords the property of the court. To forestall a repetition and maintain their own political power Sunderland and Stanhope sought to close the House of Lords permanently to royal influence. The decision to include the Scottish provisions probably originated in a dislike of the elective principle in relationship to the House of Lords. During the passage of the Treaty of Union through the House of Lords the introduction of this principle had encountered resistance as a dangerous innovation. The lead in the opposition to the pertinent Article 22 was taken by one of the most powerful men in the country, the Earl of Rochester, son of the great Earl of Clarendon and the uncle of Queen Anne. He described the article as incongruous, contradictory, and incon-

sistent in its meaning: sixteen elected peers would be peers, and M

169

THE

INFLUENCE

OF

THE

THEORY

yet no peers. To make them elective would be to divest them of their peerages. He could not understand how the Scottish peers had ever accepted such a condition, but it would be even stranger if the House of Lords allowed them to sit. The House of Lords accepted the article; but five peers, among them Rochester, recorded their protest. They attacked specifically the introduction of the elective principle into the constitution of the House of Lords. If the Scottish peers sat in that House on so different a

foundation from the others, their argument ran, the dignity of

the Scottish nobility would suffer, and the constitution of the House of Lords would be altered.*® The real discussion on the Peerage Bill began in the House of Lords on March 8rd, and the Scottish provisions received major consideration. The most prominent Whig to oppose the Bill was Earl Cowper, who gave his attention to the changes proposed for the Scottish peers. He characterized them as a manifest violation of the Act of Union as well as the grossest piece of injustice. For the Scottish peers who would be excluded from the twenty-five hereditary seats would be in a worse condition than any other subject, he insisted. They would neither represent nor be represented. The Scottish Earl of Islay, later third Duke of Argyll, disagreed. He voiced the feeling of many a Scottish and English lord when he protested the election of peers as derogatory to the House of Lords. For himself, he had long wished to see this defect in the Act of Union remedied. The election of peers was ignominious, their independence was removed, and they became servile creatures of the court.’7 Islay’s speech revealed that the dislike of the elective principle in conjunction with the House of Lords, expressed earlier by Rochester and others, was still strong. In contemporary pamphlet literature the argument that the Peerage Bill would alter Article 22 was a telling argument for its passage. One writer stated that to change the status of the Scottish peers was to accommodate their condition to those with whom they sat. He claimed to have been present during the debates on the Bill in the House of Lords and to have heard a number of Scottish lords declare in the strongest terms that they never would have agreed to sit by election if they had not hoped for the present 36 Parliamentary History, V1, 470. $7 Ibid., VII, 591 f.

170

OF

MIXED

GOVERNMENT

opportunity.** The erratic Earl of Peterborough wanted to learn whether elected Scottish peers were ‘fit Guests for the House of Lords’ .® Still another writer, in the anonymous The Constitution Explain’d (1719), announced that it was contrary to the design of a House of Lords to have that body elective in any of its parts:3°

The Ministry’s strength in the House of Lords was evidenced when all the resolutions were carried, eighty-three to thirty. A bill was drawn up, based upon their contents and entitled ‘An Act for Settling the Peerage of Great Britain’. So far the Government had encountered

little difficulty. Then, unexpectedly,

on

April 14th, the day appointed for the third reading, Earl Stanhope rose in the House of Lords to withdraw the Bill. Increasing public excitement outside Parliament had caused the Ministry to abandon its program temporarily. Seldom has so much able polemical writing on a political measure appeared in so short a time. It was asserted that the proposals were an insult to the Prince of Wales, a source of injury to Scotland, and a threat to

the balance of the constitution. Both the advocates and opponents of the Peerage Bill were agreed that England had a mixed and balanced government. Their quarrel was concerned with the effects of the Bill on that government. Its advocates urged that only by this limitation upon the power of the crown to create peers could mixed government be retained. Otherwise the House of Lords was so much under the control of the court that arbitrary government could be introduced without effective hindrance. So long as the power of creation remained unchecked, the House of Lords, it was said,

was both useless and dangerous: useless as one of the three parts of the constitution and dangerous as the creature of the court. Since it was agreed on all sides that the House of Lords was the middle estate between the crown and the House of Commons, its dependence involved the destruction of the balance of the constitution and thus of the constitution itself.4! 38 Considerations concerning the Nature and Consequences of the Bill now depending in Parliament

of 1711-12:

(London,

1719), 7 f. See also G. S. Holmes,

A Crisis in Anglo-Scottish

Relations’,

“The Hamilton Affair

English

Historical Review,

LXXVII (April, 1962) 268, 273 ff. 39 Farl of Peterborough, Remarks on a Pamphlet .. . (London, 1719), 13 f.

40 The Constitution Explain’d, 37. et Worle, Sy UG, Wile

Wail

THE

INFLUENCE

OF

THE

THEORY

From the other side Walpole argued convincingly that if the Peerage Bill became law, the House of Lords would become an

independent body, in his felicitous phrase, ‘a compact, impenetrable phalanx’, not to be called to account like a ministry, nor dissolved like the House of Commons. For the royal prerogative, in no way diminished, was essential to the continuance of the existing constitution with its salubrious combination of monarchic, aristocratic, and democratic elements.

In this mixed

constitution, he contended, the aristocracy was the ornament of the crown and the balance against the democratic part of the government, the House of Commons. Only the royal power of creation could keep the House of Lords in its intermediatory position. The power of creation, insisted Walpole, was the ‘only Recourse the King and People have against any Exorbitances and Combinations of their Body’. Readily admitting that the crown had abused its prerogative in the previous reign so that some preventive measure was necessary to avert future packing of the House of Lords, he proposed that no new peer should give

a vote within a limited time in the House of Lords without the consent of its members.4? It may have been Walpole who suggested, in the Moderator, an act of parliament by which no lord would be allowed to vote in the House of Lords within two or three years of becoming a member of it.43 In the light of Walpole’s failure to make this proposal during his long term of office, from 1721 to 1742, it was probably only a party maneuver. The third reading of the Peerage Bill in the House of Lords was adjourned from April 14th to April 24th, and in the meantime Parliament was prorogued. In the next November a similar Bill, after passing the House of Lords, was lost in the House of

Commons by a vote of 269 to 177.44 Walpole’s opposition had brought defeat, and Stanhope recognized soon afterward that his

Government needed the Whig leader’s support. The wings of the party came together as Walpole became Paymaster of the Forces without a seat in the Cabinet. There are signs that the rejuvenated Whig party planned to revive, this time with Wal“2 Thoughts of a Member of the Lower House . . (London, 1719), 9 ff. William Coxe, Memoirs of the Life and Administration of Sir Robert Walpole (London, 1800), I, 210, 215 f. 48 The Moderator, Number

1 (London,

LONE

Loe

** Turberville, The House of Lords in the XVIIIth Century, 184.

172

OF

MIXED

GOVERNMENT

pole’s support, the portions of the Peerage Bill pertaining to the Scottish peers.4® But the South Sea Bubble intervened, both Stanhope and Sunderland died, and no more was heard from the Government about the Scottish provisions of the Peerage Bill. From time to time the proposal to give the elected Scottish peers hereditary seats was renewed, but with little effect. The Duke of Richmond presented to the House of Lords in 1780 his bill for parliamentary reform, in which he proposed universal

manhood suffrage and annual parliaments. True to his view that reform in the House of Commons must be accompanied by an increase of strength in the other two branches, he recommended the removal of the elective principle from the constitution of the House of Lords. The elected peers for Scotland should, hereafter, have this representation hereditary in their families; and

the remainder of the Scottish peerage should become eligible to be created ‘peers of England’, while their eldest sons should be eligible for election from boroughs in Scotland to the House of Commons. The bill was thrown out with scarcely a discussion. *® An analogous plan was advocated in 1809 by William Playfair, a self-styled aristocrat because of disillusionment with the French

Revolution,

who

considered

the admission

of elected

members to the House of Lords injurious to its purity.’ The conservatism of the men whose proposals for the reform of the House of Lords have already been described was as obvious as Playfair’s. In proposing property qualifications for membership in the House of Lords, limitations on the royal power of creation, and the removal of the elective principle from the constitution of the House of Lords, they were motivated by the desire for a strong House of Lords to perform its functions

in mixed government. Temple had made his proposal to enable that House, as the occasion required, to defend the liberties of the people or support the crown. Longueville had sought to amend the Act of Settlement in order to make the House of Lords an effective counterweight to the House of Commons. Both the English and Scottish provisions of the Peerage Bill, though its main purpose was political, were related to the theory 45 Turner,

(footnote).

loc. cit., 258.

Earl Stanhope,

(London, 1858), I, 366. 46 Parliamentary History,

Basil

Williams,

Stanhope

(Oxford,

1932),

416-17

History of England from the Peace of Utrecht .. X XI, 686-8.

47 4 Fair and Candid Address to the British Nobility (London, 1809), 97 ff.

173

.

THE

INFLUENCE

of mixed government. ment

David

Hume,

OF

THE

THEORY

In the same interest of mixed govern-

in the middle

of the eighteenth century,

offered a comprehensive program of reform for the House of Lords. Admiring in general the existing English constitution, Hume

nevertheless had definite ideas of how it could be perfected. For his own day he thought the English constitution, as completed in 1689, was the most perfect example of that mixed government which philosophers had eulogized since the days of Polybius and Cicero. In one of his essays he wrote that one universal maxim in politics was ‘that an hereditary prince, a nobility without vassals, and a people voting by their representatives, form the best Monarchy, Aristocracy, and Democracy’.* In his ‘Idea

of a Perfect Commonwealth’ (1752) Hume suggested the ways in which English mixed government could be improved. He first proposed a reform of the House of Commons and then a series of changes for the House of Lords. For the first he preferred the ‘plan of Cromwell’s parliament’, by which representation would be made equal and a high property qualification of #200 would be established for the county franchise. By equal representation he apparently meant that England would be divided into equal electoral districts. Since a reformed House of Commons would be ‘too weighty for a frail House of Lords, like the present’, Hume recommended a sweeping program of reform for that House. First of all, the bishops and the Scottish peers should be removed, and

then the House of Lords should be enlarged to three or four hundred members. These new members should be chosen by the existing House, and the members of the enlarged House should

sit only for life. He had thus dismissed the hereditary principle. The advantage of the new constitution of the House of Lords would be that the House would ‘consist entirely of the men of the chief credit, abilities, and interest in the nation; and every

turbulent leader in the House of Commons

might be taken off,

and connected by interest with the House of Peers’. Thus the House

of Lords,

too weak,

at present,

to act as a balance

in

mixed government, would be in a position to fulfill its function. At this time Hume was concerned to strengthen the House of Lords against the monarchic power, but by 1775 he was per48) Essays, 17.

174

OF

MIXED

GOVERNMENT

suaded that liberty in England was becoming too great to be compatible with mixed government.?® The importance of these proposals was due to the position of their author; their significance, to the time in which they appeared. Hume was, of course, one of the most eminent philosophers and historians of the eighteenth century; and his Political Discourses,

of which

the

‘Idea

of a Perfect

Commonwealth’

formed a part, commanded the greatest contemporary popularity, on first publication, of any of his works.®° In a period in which no one thought of questioning the powers of the House of Lords Hume had suggested a comprehensive program of reform that would render that House still more powerful. Probably he considered his plan of only academic interest, but that he suggested it at all is extraordinary. Of particular interest was the comprehensive nature of the proposed changes. He proposed to remove the hereditary basis of the House of Lords, to allow its

members to elect a new House of Lords composed of life peers, to increase, almost to double, its membership, and to exclude the

bishops and the Scottish peers, presumably on the ground of their alleged servility to the crown. In recognizing that a reformed House of Commons would be too strong for an unreformed House of Lords, he showed a prescience far beyond that of the later parliamentary reformers; and he anticipated the problem faced by the Liberal and Conservative parties in the nineteenth century. The proposal to create life peerages for the purpose of strengthening the House of Lords also appeared in the antiquary Sir Nicholas H. Nicolas’ 4 Letter to the Duke of Wellington on Creating Peers for Life (1830), which was printed anonymously and privately circulated. Before the year was out, a new edition appeared; and in 1834 still a third, the last bearing the antiquary’s name. His proposals were addressed to the Duke of Wellington, Nicolas explained, because the soldier-statesman seemed best fitted for the task of stopping the degradation of the peerage and bringing to the service of the Government, through 49 Ibid., 512 f. John Hill Burton, Life and Correspondence of David Hume (Edinburgh, 1846), II, 480 f. There is a somewhat similar scheme in The Petty Papers, ed. Marquis of Lansdowne (London, 1927), I, 8 ff. William Petty would have

drawn the new members for an enlarged House of Lords (520 members) from not only the British Isles but also from English colonies in Asia, Africa, and America. 30 Burton, op. cit., I, 350, 354.

175

THE

INFLUENCE

OF

THE

THEORY

the grant of life peerages, the talents considered desirable in the House of Lords. Nicolas was particularly concerned about the judicature of the House of Lords, which he deemed seriously weakened by the absence of the best legal talent; and he also feared the danger to the constitution involved in an indigent House of Lords that might arise from the extensive creation of peers under the Younger Pitt and his successors. In the years from 1784 to 1820 the peerage had increased by 166. A new system was needed to slow this process, and Nicolas was ready with proposals for Wellington to adopt at the outset of his administration. He made two main proposals: (1) no new hereditary peers should be made hereafter unless the grantee possessed an unencumbered estate of a value proportionate to his rank, which would be strictly entailed to the heir of the title; and (2) life peerages should be given to those unable to meet the property qualification who would otherwise be desirable inmates of the House of Lords. For extraordinary service to the state Nicolas suggested an hereditary peerage with the condition that the country supply an adequate estate. Commending especially the legal profession as a fertile source for life peerages, he dwelt at length on the need for skilled lawyers in the House of Lords to deal with the intricacies of Scottish law and peerage claims.*! Underlying all the proposals advanced in the years from 1660 to 1832 for the reform of the House of Lords lay the fundamental objective of making that House sufficiently strong and independent to perform its functions in the mixed government. A reformer like Temple or Nicolas who proposed property qualifications considered that the peers must possess substantial landed wealth if the House of Lords was to perform effectively its alloted tasks in mixed government. Both Temple and Nicholas made their proposals after periods in which the membership of that House had been greatly expanded, in the one case because of Stuart creations that raised its numbers from 5 A Letter to the Duke of Wellington (London, second edition, 1830), 5-9, 13 f.,

30. Nicolas was probably the author of the anonymous article ‘The Peerage Bill in 1719’ that appeared in the Retrospective Review in 1828, of which he was co-editor. There is definite anticipation in the article of the proposals in the Letter. Its author suggested that £3,000 a year be entailed to the heir receiving the title and that peerages be attached to certain high offices such as those of the lord chancellor, the chief justices, and some of the ministers. Loc. cit., 118 f.

176

OF

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GOVERNMENT

fifty-nine in 1603 to 153 in 1689, and in the other because of the large number of creations for which the Younger Pitt was notorious. So far as Temple was concerned, it seems likely that his proposal was conceived under the influence of Harrington. Members of the House of Lords should not only have enough property to support their titles; that House must also have its political independence if the constitution was to be preserved. This was the ostensible reason for the Peerage Bill of 1719 and formed generally the justification for excluding the bishops and the Scottish peers. The dissenters were, of course, hostile, as a whole, to the continued presence of the bishops in that House,

but Wyvill testified that this attitude was consistent with a decided approbation of the principles of mixed government.®2 In response to the view that the hope of future promotions influenced the votes of the bishops, which was held by others than dissenters, a scheme was started in 1730 to bring in a bill for-

bidding the translation of bishops from one see to another, only to be defeated by the Government.** Proposals to exclude the Scottish peers were as common as those aimed at the bishops. Not only was it felt that the election of peers made them peculiarly susceptible to royal influence, but also the mere act of election of a peer was deemed a derogation of the dignity of the House of Lords. In general, in the years before 1832, with the exception of the writings of Hume and Nicolas, little was heard of life peerages as a method of reforming the House of Lords. One suspects that the more typical opinion of life peerages was that expressed by Fox in 1791 when, in what appears to have been a rather academic digression, he spoke of the creation of life peerages as an event to be deplored. By making peers for life, he said, the

crown and the ministry could make a tool of the House of Lords and thus destroy the constitution. Yet he had seemingly favored life members in the Legislative Councils for Canada.°* Some writers such as Playfair disapproved the provision in the Act of Union with Ireland (1800), by which twenty-eight lords temporal were to be elected for life by the peers of Ireland; but in the debates on the union in the House of Lords leading peers 52 Defence of Dr. Price, 12. 53 Turberville, House of Lords in the XVIIIth 54 Parliamentary History, XXIX, 413, 427.

ives

Century, 423.

THE

THEORY

OF

MIXED

GOVERNMENT

described the provision as a wise corrective of Article 22 in the Act for Union with Scotland.®* Presumably under ordinary cir-

cumstances they would not have hastened, however, to give their approval to the principle of life peerages. In proposing life peerages both Hume and Nicolas had been guided by the desire, not to democratize in any way the House of Lords, but rather to prepare that House to fulfill better its functions in the English constitution as prescribed by the classical theory. The character of the variety of proposals discussed in this chapter, that appeared in the years from 1660 to 1832, bear, unmistakably, the impress of the theory of mixed government. 55 Parliamentary

History, XXXV,

172, 176 f. See also Turberville,

of Lords in the Age of Reform, 114f.

178

The House

V

OF

THE REAPPEARANCE *“UNMIXED’ DEMOCRACY

AFTER THE OUTBREAK Of the French Revolution in 1789 a sharp change occurred in the nature of English political Radicalism, the advocates

of which, hitherto, with signal unanimity,

had urged only the reform of the House of Commons within the framework of mixed government. The democracy of these reformers, as has been seen, extended only to the reform of the democratic branch of the mixed government. The change after 1789 was due to the activities of three men—Joseph Priestley

(1733-1804), Thomas Paine (1737-1809), and William Godwin (1756—1836)—who were ‘pure’ or ‘unmixed’ democrats because they rejected the theory of mixed government, denounced the hereditary principle in government, and demanded the abolition of the House of Lords. When, in the following pages, these men are called democrats, it should be understood

that they advocated an ‘unmixed’ democracy, the principles of which were in direct contradistinction to those of the classical theory. They usually favored a democratic republic. Through the activities of these democrats, particularly of Paine, the House of Lords, for the first time, became the center

of agitation in the Radical campaign, thus replacing the House of Commons as the object of Radical criticism. Parliamentary reform, which had for its aim the purification of the House of Commons,

receded into the background because in the greater

Dent, .opy cts.) 12350130)

179

THE

REAPPEARANCE

changes contemplated by the democratic theorists, the lesser would automatically be encompassed. This is not to say that the democracy,

represented

by Priestley,

Paine, and Godwin, be-

came the dominant characteristic of English Radicalism. Rather it is to say that the writings of these democrats introduced into English Radicalism an element of open, unabashed, ‘unmixed democracy that had not been seen in England since the Civil Wars and Interregnum and the heyday of Lilburne and the Levellers, who had helped to overthrow mixed government and thus King Charles’ Constitution. The years 1791 and 1800 mark the beginning and end respectively of this democratic agitation, the first since the seventeenth century. In 1791 Joseph Priestley by publishing his Political Dialogue on the General Principles of Government became the first of the English democrats to reject mixed government and to propose publicly a pure democratic system in its stead.® Earlier Paine in his Common Sense (1776) had repudiated the classical theory and denounced the hereditary principle in government, but he did not actually outline his scheme for changes in the English government until the publication of his Rights of Man Part IT (February 1792). Not until 1793 did Godwin’s proposals for a democratic government, probably influenced by Paine’s, appear in his Enquiry concerning Political Justice and tts Influence on Morals and Happiness. By 1800, the end of the period under discussion, Priestley had entered voluntary exile in Northumberland, Pennsylvania. Paine was in France, and God-

win was still in England but busy writing novels. The two * Horace Walpole wrote of an avowed but very small republican party before 1789, the chief members of which were John Sawbridge, onetime mayor of London, Thomas Hollis, connoisseur of commonwealth literature, and Catherine

Macaulay, well-known historian of her time. Walpole, op. cit., III, 220. While all three were distinguished by their zeal for liberty, they outlined, so far as we know, no democratic system of government for England; and, indeed, they may well have been advanced ‘mixed’ democrats. Archdeacon Francis Blackburne, in his biography of Hollis, stated, for example, that he was not a republican if the word meant enmity to mixed government. Memoirs of Thomas Hollis (London, 1780), I, 210. See, however, the comment in Caroline Robbins, The Eighteenth-Century Commonwealthmen (Cambridge, Mass., 1959), 358 ff., who agrees with Walpole and adds to his list. But her comment implies that Sawbridge was no republican. See also Davis, op. cit., 60. For Mrs.

Macaulay’s

views,

see

Observations

on a

Pamphlet (London, 1770), 20-29 and her Observations on the Reflections of Burke (1790),

32f.

She did outline,

in 1767,

a democratic

form

of government

for

Corsica. Loose Remarks on Certain Positions . . . in Mr. Hobbes’s Philosophical Rudiments of Government and Society (London, 1767).

180

OF

“UNMIXED”

DEMOCRACY

political societies accused in 1794 of plotting to institute Paine’s republic in England were either dead or dying. The Society for Constitutional Information, whose leading member was Horne

Tooke when he was tried for treason, never met again after the state trials. By 1799 the London Corresponding Society had little vitality to meet the restrictions imposed by the Pitt Government on secret associations, trade unions, freedom of the

press, and the right of congregation in lecture rooms. Democratic republicanism, made notorious by Paine, went underground, only to reappear, as will be seen, in the pages of the so-called “‘Unstamped Press’, particularly after 1819. A number of reasons can be advanced for what was a singular, almost iconoclastic action by Priestley, Paine, and Godwin in literally shrugging off the tenets of the classical theory, so uniformly and, as a whole, so unquestioningly accepted by their contemporaries in England. The pure democracy of Paine is the most readily explained. By the time that he was making his proposals for the introduction of a republic in England, he had had lengthy experience in America, where his ideas had been in the vanguard of the republican, democratic sentiments loosed by the American Revolution. Thomas Cooper, one of the most famous of Priestley’s disciples, explained Paine’s point of view as expressed in the Rights of Man. The plainness and simplicity of Paine’s

reasonings

were

not strange,

he wrote,

when

it was

remembered that he had lived for some years in America ‘where he had the successful facts under his eye, where the subject of politics was the daily and hourly topic of conversation and discussion with man, woman, and child, where republican principles

were almost universally adopted in theory, and had been found effectual in practice on a very large scale’.* Indeed, Paine had made great contributions to this republican outlook when in the pages of Common Sense he had boldly attacked the king, the English constitution, and the policies of the English government.

Both Priestley and Godwin lacked Paine’s experience in the

more democratic New World. But Priestley was heavily influenced by the political changes and the religious toleration that he saw in both America and France; and Godwin

wrote in his

diary in 1789: ‘This was the year of the French Revolution. 3 Priestley, Memorrs, II, 355.

181

THE

REAPPEARANCE

My heart beat high with great swelling sentiments of Liberty.’ He had been for nine years a republican in principle, he admitted, and he had read with great satisfaction the writings of Rousseau, Helvétius, and others. ‘I could not refrain from conceiving sanguine hopes of a revolution of which such writings had been the precursors,’ he recorded.# If political changes in America and France had furnished the

impulse for political speculation, there were particular reasons why Priestley, Paine, and Godwin proved receptive. They had a common background of religious dissent between which and democratic republicanism there was an historical affinity—the’ two had gone hand in hand during the Puritan Revolution— and, more important, there was also a natural affinity since dis-

senters in eighteenth-century England were subject to various disabilities which predisposed them toward political discontent. The relationship between pure democracy and dissent was especially evident in Priestley, who was one of the principal leaders of the Unitarians. He and his co-religionists were not entitled under the law even to the toleration granted to Trinitarian dissenters by the Toleration Act of 1689. Very probably the religious situation within England as contrasted with America and France effected Priestley’s adoption of democracy. Withal, Priestley, Paine, and Godwin

were children of the eighteenth

century, the intellectual outlook of which had been shaped by Newtonian physics; and they believed fervently in the onward rush of reason,

the perfectibility of mankind,

and the need for

simplicity in political institutions. Little wonder that this trinity of Englishmen, dissatisfied with the status quo, inspired by the vision of a future glorious state, and stimulated by the examples of the United States and France, should have made, after 1789,

their proposals to democratize completely the mixed government of king, lords, and commons!

Earliest of the democratic Radicals to criticize at length the position of the House of Lords, recommend its abolition, and give the details of a democratic, republican government for

England was Joseph Priestley, more commonly remembered today for his discovery of oxygen and his fearless promotion of fey. ses Paul, William

Godwin:

His Friends and Contemporaries

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unpopular

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Unitarianism

than

DEMOCRACY

for

his

political

speculation.

Though theology was avowedly his first interest, he has some

claim to recognition as a political thinker. His Essay on the First Principles of Government (1768) contained the statement that ‘the good and happiness of the . . . majority of the members of any state, is the great standard by which everything relating to that state must finally be determined’.® This statement influenced the Utilitarian philosopher, Jeremy Bentham, in the formu-

lation of his famous principle of the ‘greatest happiness of the greatest number’, which he and his school adopted as the touchstone for judging institutions in nineteenth-century England. Bentham, too, became a democrat. Priestley was the leader of the Unitarians, who were equally disliked by the more orthodox dissenters (7.e. Presbyterians, etc.) and by the Anglicans. In politics, literature, and theology their prominence equalled the unpopularity of their religious beliefs. Priestley, for example, moved in a much larger sphere of society than was customary for a dissenting minister. For seven

years (1773-80) he acted as a literary companion to the great Whig magnate, the Earl of Shelburne. At Calne near Shelburne’s residence at Bowood Priestley entertained his fellow dissenting ministers as well as gave his time to his beloved science, metaphysics, and theology. During the winter months he lived with Shelburne in London, visited with his close friend, Richard Price, and attended dinners at the publisher Johnson’s,

where he met such diverse people as William Cowper, William Blake, Horne Tooke, and possibly at a later date, Thomas Paine, William Godwin, and Mary Wollstonecraft, who became God-

win’s wife. Because of the relationship with Shelburne, Priestley met some of the first politicians and thinkers of France and England.

He knew personally Turgot,

Necker,

Abbé

Raynal,

and Adam Smith; and his sympathy with the colonists in the period of strain before the American Revolution led to intimate relations with Franklin and Burke though friendship with the latter did not survive Burke’s attack upon Price and his sermon

in the Old Jewry. By the summer of 1791 distrust of the French Revolution was strong in England,

and Priestley’s unpopularity

had grown

apace. His Letters to Burke (1791), written in defense of Price, 5 Theo. and Mis. Works, XXII,

13.

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had further increased his unpopularity with his countrymen, who distrusted his unorthodox religious views and feared a republican conspiracy among the dissenters, especially after the recent failures to repeal the Test and Corporation Acts. The defeat of Fox’s motion for repeal in March 1790, was partly due to Priestley’s own indiscretion. In a strong letter, addressed to the Anglican clergyman Edward Burn, he had uttered what was construed as a warning to the Church of England when he wrote that those who befriended the establishment only accelerated its destruction if the system were not well founded. ‘In fact,’ he wrote, ‘they are assisting me in the proper disposal of those grains of gunpowder, which have been some time accumulating, and at which they have taken so great an alarm, and which will certainly blow it up at length; and perhaps as suddenly, as unexpectedly, and as completely, as the overthrow of the late arbitrary government of France.’ These sentences and others of similar purport were extracted, printed separately, and sent before the debate on repeal to all the bishops as well as to the members of the House of Commons. From this time on he was known as ‘Gunpowder Priestley’, and in the following years he was frequently burned in effigy with Paine.® Probably the best index to his unpopularity with his fellow Englishmen was afforded by the Birmingham Riots during the summer of 1791. In that city, where Priestley had lived since leaving Shelburne’s employment, feeling ran high between Anglicans and dissenters, Tories and Whigs. But the friends of the French Revolution were undeterred. The Constitutional Society of Birmingham planned to hold a dinner on July 14th to commemorate the fall of the Bastille; and, until warned of rising public agitation, Priestley expected to attend. The dinner was

held early. When

a mob broke in, the participants had left.

During the next three days the rioters attacked Unitarian property and pillaged the Priestley home. During these activities the mob shouted: ‘God save the Ring; Long live the King and the Constitution in Church and State ;Down with the Dissenters; Down with all the abettors of French rebellion; Church and

King; Down with the Rumps; No Olivers; No false Rights of

Man.’ Priestley considered the cause of the riots as primarily religious rather than political, and he attributed them to the 6 Ibid., XIX, 311. Memoirs, I, 154. Lincoln, op. cit., 6 (footnote).

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bigotry of the high church party. His views ran counter to the times, however; and it would be no exaggeration to say that in the early 1790s Priestley, next to Paine, was the most maligned

man in England. George III probably represented current opinion in his comment that he was pleased to find Priestley the sufferer though he deplored the atrocious means employed.?

The violence in Birmingham revealed how completely Priestley was distrusted by more orthodox elements and how vain was any hope of effecting a revolution in their thinking by the publication of his democratic Political Dialogue. Had he tried openly to alter the English form of government,

to democratize com-

pletely English mixed government, an intention that he always disclaimed, his efforts would have gone for naught. The fact that

as a democrat he bitterly opposed the House of Lords meant very little in terms of Priestley’s ability to win converts to his democratic ideas and convince them of the inutility of the aristocratic branch of the government. The decision to publish his democratic tract anonymously suggests that he realized how

his name would limit its effect.® Much of the political thought of Priestley’s Polztical Dialogue (1791) was implicit in his earlier, more famous Essay on the First Principles of Government (1768); but there were no American and French examples in 1768 to aid him in drawing democratic conclusions from his premises. The difference between a ‘mixed’ democrat and a pure democrat can be readily

seen in a comparison of the two works: the one written by an advocate of mixed government who considered English mixed government ‘the best actual scheme of civil policy’; the other, by a democrat who rejected the classical theory and consequently the House of Lords. In the earlier years when Priestley was a tutor in Warrington Academy he had impressed observers as being an ardent admirer of the English constitution. Of his lectures on history, given in Warrington, Priestley declared, correctly, that these were much in favor of the existing constitution

though containing hints for improvements desired by many up-

right and enlightened persons of all denominations.° ? Theo.and Mis. Works, 1, Part Il, 117 (footnote) ; XIX, 392. Lincoln, op. cit., 151.

8 The Political Dialogue was included in the list of Priestley’s printed works at the end of his Memoirs. See also Theo. and Mis. Works, 1, Part II, 114, 542.

9 |bid., XIX,

1824), 461. N

388. Lucy Aikin,

Memoirs of John Atkin, M.D.

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In this period Priestley had argued against a system of state education because of the danger posed by its adoption to the balance of the mixed government if one branch were to control such a school system. While composing his Remarks on a Code of Education he had become interested in the nature of civil and political liberty and had decided to publish his thoughts on the subject in an essay on government.?¢ It is almost redundant to add that he was thinking in terms of mixed government and that the classical theory provided him with a frame of reference when he wrote his Essay on the First Principles of Government. Priestley’s belief in the perfectibility of mankind was apparent in the first chapter as he began his discussion of the source of government. The instrument of Divine Providence for the improvement of man was society and the government implicit in its organization. Like Locke he accepted the convenience of a social contract, and like Rousseau he regretted the possible surrender ofliberty to deputies in whose hands would be lodged, almost irreversibly, the whole power of the state. The deputies to whom liberty might be surrendered were of two types: the king, the peers, and the electors of the House of Commons were standing deputies and the members of the House of Commons were temporary deputies. The guides of the deputies were their reason and conscience; their judge was the people. The liberty that might be surrendered consisted of political liberty, epitomized in the notion of the career open to talent, and civil liberty, contained primarily in the retention by an individual of the natural rights of education and religious freedom. In the last analysis Priestley was less concerned about the actual form of government

than with the maintenance

of civil liberty, for he

considered political liberty important primarily in the protection that it gave to civil liberty. He recognized, moreover, that political liberty, which, he said, could be perfect only in small states, had to be restrained in states the size of England, France,

and Spain.

To Priestley that government was best that governed least. Accordingly he had no objection at this time to a mixed government

of king, lords, and commons

unless

the balance

in the

constitution were upset and arbitrary rule instituted. Should the

balance be upset, Priestley like a true son of Locke reserved the 10 Priestley, Memoirs, 1, 47 f. Theo. and Mis. Works, XXII, 3.

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right of revolution. He struck the democratic note in his statement that in its original principles and earliest form every government was an ‘equal republic’. Whenever abuses of power occurred, the people might demand the return of these powers. Although in the course of the essay he displayed some concern for the effects upon the liberty of the people of continued tenure of office, he concluded that in the English government the nice balance of the constitution lessened the danger from hereditary institutions. As he said, ‘Hereditary nobles stand in the same predicament with hereditary princes. The long continuance of the same parliaments have also the same tendency. And had not these things . . . been wonderfully balanced in our constitution, it could never have stood so long.’!! In 1768 Priestley accepted the House of Lords with but one qualification. As a dissenter he was critical of the presence of the bishops and he called their seats the ‘relic of . . . Popish usurpations over the temporal

rights of the sovereigns of Europe’. The bishops, if they had a true sense of the nature and dignity of their offices, would retire

voluntarily. Their seats in the House of Lords, he emphasized, only flattered their pride and gave the ministers that many more votes,1? In his Political Dialogue, published

in June

1791, Priestley

frankly admitted the change in his view of the best possible government that had been induced by the appearance of new constitutions in America, Poland,?* and particularly, in France.

In his opening paragraph he has two statements, made by A and B (Priestley), that go to the heart of his new position. Clearly he had reéxamined his constitutional opinions when he had had

them say: A. The two most striking features in the new government of France, are the abolition of all ¢tztles of nobility, and the assumption of the whole power of the state by the National Assembly, without allowing an effectual negative to any other body of men, or to the king; 11 [bid., 10-15, 26-29, 33, 40.

12 [bid., XXII, 96; XXIV, 245. 18 The Polish constitution of May,

1791, which Priestley admired, was formulated in part under the influence of the French Revolution. It provided for an hereditary monarchy, in which the king possessed a suspensive veto only; a senate

appointed by the king, which had only an advisory role; and a chamber of deputies,

which had the real power in the state. The position of the senate, which particu-

larly interested Priestley, was like that of the House of Lords after 1911.

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whereas we in this country are so used to the idea of the balance of three powers, that we are apt to think no other system can be so good. B. [Priestley] This is a very general opinion, and was my own. But perhaps we have not sufficiently considered either the late situation of France, the origin and use of nobility, or the proper nature and use of checks upon public resolutions.!4

This new democratic republicanism may have been partly inspired by Part I of Paine’s Rights of Man, which had appeared in the previous March. After waiting its appearance with painful anxiety, Priestley made arrangements to secure a copy; and later that year he visited Paine in London. Yet there was no direct reference to Paine in the Polztical Dialogue, and Priestley

explicitly attributed the change in his opinions to the examples of new constitutions in France, the United States, and Poland. He

wrote, ‘In America and France (to say nothing of Poland) we have examples of two entirely new constitutions of government that deserve particular notice, as differing from any that the world has seen before.” Then came his admission: ‘I own that my reflections upon them have given me new lights on the subject of government.’?® Priestley stated explicitly his new preference for the unchecked rule of a single house, popularly if indirectly elected, modelled on the French National Assembly. Earlier he had declared in his Essay that the governors of a state were responsible to the governed, and now he showed how this responsibility might be achieved. He insisted that there should be but one will in the state, saying: ‘In every state, as in every single person, there ought to be but one will, and no important business

should be prevented from proceeding, by any opposite will.’ So he recommended government by a single assembly, consisting of 1,000 persons, chosen indirectly, and thus constituting a ‘national assembly, similar to that of France at present (179tje

Its members

should be chosen, perhaps annually, by electors

using the ballot, who

had themselves

been originally elected

from districts of ten or twenty thousand. In a state where rule by a single popularly elected assembly existed experiments could be tried with safety because it was not to the interest of the majority 14 Political Dialogue, Theo. and Mis. Works, XXV, 84. 16 [bid., 83 f. Theo. and Mis. Works, 1, Part 11, 103, 105-7. Thomas Clio Rick-

man, The Life of Thomas Paine (London, 1819), 100.

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to aggravate or perpetuate abuse. The great source of abuse, Priestley continued, was in the ‘excessive emoluments of office, and the continuance of them in the same persons or families’. Under the system outlined the hereditary principle would

vanish, taking with it the accompanying degradation of the remainder of the community, for it would be to the interest of all

that privileges should be open to virtue and ability directed to the public good. After a long explanation of the dire effects of hereditary distinctions upon the privileged themselves, Priestley announced, in the true democratic manner, that men would never appear to advantage until they were in a state of perfect equality. If the interest of the whole society, consisting of a number

of indi-

viduals all equal with respect to their natural rights, was the true

end of government,

it was

obvious,

he wrote,

that ‘no

particular class or body of men within the state should have an absolute negative on the proceedings of all the rest’. In these words was contained Priestley’s democratic criticism of the House of Lords. These sentiments of political equality were now prevailing in Europe, he continued; and did the affairs of America, France, and Poland but prosper a few years longer, both hereditary monarchy and hereditary nobility would be

extinguished. 1” But what about the need for balance in government among the different orders of the state in order to prevent tyranny? Was not the real criticism of the new French constitution, not so much from the abolition of titles, A was made to ask, as ‘from

the whole business of the state being done in one assembly?’ Priestley was ready with an answer that revealed his rejection of the classical theory. There was no reason for giving different bodies of man in the state a check upon the other. Rather, true

political wisdom dictated the blending of different interests by admitting all to the seat of government. To prevent hasty resolutions times might be fixed for reconsidering all measures and hearing arguments against them. If the majority of the people

understood their interest, they should have the power to promote it with as little delay as possible. If negatives in govern16 Political Dialogue, op. cit., 87-89, 96. Priestley preferred indirect elections even after he had been for some time in the United States. Memoirs,

17 Political Dialogue, op. cit., 92-95, 97.

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ment were useful at all, they should not be given to classes of men with different interests, 7.e., in a House of Lords, but to

persons ‘differently enlightened’. A revising chamber, if admitted, should consist of about 100 persons with a reputation for superior wisdom. He would even admit a single executive, chosen for checking both houses. But, significantly, if there were to be only one will in the state, these negatives should

operate for a limited length of time. Moreover, none of these powers would be hereditary. Let the individual members of the revising chamber be elected and let their power be continued so

long as it was expedient, but let their descendants have advantages only from merit.18 Unmistakably, Priestley’s proposed second chamber differed radically from the English House of Lords, hereditary in its membership and armed with an absolute veto. Yet he denied any intention of trying to alter the existing form of the English government, not wishing to change it, he said, for this democratic form that he would recommend for a

country without an existing government. He preferred to aim only at the reform of the House of Commons and the removal of obstacles to reform. For Priestley did not underestimate the conservatism of the English people. He said with great practical wisdom: ‘Things once established should be respected by specu-

lative politicians, because they will be respected by the people at large.’1® As a speculative politician Priestley preferred the democratic scheme of government that he had outlined for England in place of the existing complicated, mixed government

of king, lords,

and commons. He believed that the whole power of the state should be concentrated in the House of Commons or a popularly elected assembly.

If there were a second chamber, its function

would be to moderate the action of the House of Commons; and

it should possess only a suspensive veto. By 1791 the existing House of Lords, armed with an independent veto on legislation,

was anathema to the democratic Priestley inspired by the new republics in America and Europe. He was more drawn, how-

ever, to the models furnished by France and Poland than by the

United States, perhaps because of his conviction that under a 18 Tbid., 95-97. ae DIde Ode

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republican guise the Americans had established a government much like the English, whereas the French and Polish constitutions more nearly resembled pure democracy. Priestley parti-

cularly disliked the legislative veto of the American senate. But the chief lesson that he drew from these political changes was that the feudal system in all its parts must inevitably decline and that it behooved ‘all hereditary princes and nobles to act with the greatest moderation, that the decline of their power may be less rapid, and the revolution that must take place may be the easiest to themselves and the country in general’.2° Priestley’s attitude towards the English monarchy and the House of Lords revealed the effect of the new constitutional experiments outside England on at least one Englishman, who as a result abandoned mixed government for a democratic system, recommended

the destruction of feudal privilege, and

proposed either the abolition of the House of Lords or the substitution of an elected House, its members

sitting for a limited

time and possessing only a suspensive veto. Although in later years Priestley denied that he had ever advocated any form of government for England except mixed government of king, lords, and commons, it is evident that in his anonymous Polztical

Dialogue he had outlined his ideal constitution; and it follows that he would have approved its trial by the English people. Yet he was too much a student of history to think that the English

constitution, in such high favor with the great majority of Englishmen, could be suddenly altered without a revolution. He preferred to think that if the House of Commons were made truly representative, English mixed government would become a pure democracy as hereditary institutions, over a period of time, withered away. But Thomas Paine proved less patient.

Unlike Priestley, who had accepted the tenets of the classical theory for almost twenty-five years before becoming a democrat, Thomas Paine early rejected the theory of mixed government

and severely criticized the English constitution. Politics held the same fascination for Paine that religion held for Priestley. Not only was Paine a democrat longer than Priestley, but he also was more

active in his attempts to translate his ideas into a

working reality in England. Among the democrats—Priestley, 20 Theo. and Mis. Works, XXIV, 251, 285.

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Paine, and Godwin—only Paine was a man of action; and of the

three he seems to have had the most powerful and prolonged influence. An indirect reflection of the fear of Paine on the part of the Pitt Government was the holding of the state trials of 1794, in which the defendants were charged with seeking under

his influence to institute a republic in England. For forty years

after the publication of the Rights of Man (1791-2) Paine’s ideas inspired the chief political literature of the working classes,

and his writings influenced not only the Chartist movement but also the later republican movement of Mid-Victorian England. Born at quiet Thetford,

in Norfolk, of parents with slender

means, Paine early displayed the restlessness that was to bring him to the center of the stage in the revolutionary events of the New World and the Old. Hard-pressed in England to make a living, he was first a staymaker, then intermittently an exciseman, first in Thetford and then in Lewes. Between times he was

a schoolmaster despite his limited formal education. Even in this earlier, more obscure period Paine displayed the polemical skill for which he was later famed. When the excisemen at Lewes decided to ask parliament for an increase in salary, Paine was chosen to draw up their case. He did so in a pamphlet entitled The Case of the Salary of the Officers of the Excise, of which some 4,000 copies were printed in 1772. In London on this business, Paine encountered Franklin; and when he left for

the American colonies, two years later, he carried a letter of introduction from Franklin. In the American colonies he made a reputation as a journalist and a pamphleteer, particularly after the publication of his Common Sense, of which 120,000 copies were supposed to have been sold in a little over a year. Friends and foes alike agreed that it had an unexampled effect on American opinion. Paine may well have been the first Englishman during the classical age of the constitution to ridicule its maxims publicly. As part of his brief for American independence he sought to explode what he considered the myth of the English constitution, which was venerated in the colonies. In his Common

Sense

he explained the principle which he had applied in his examination of the English constitution. He had drawn his idea of the best form of government, he said, ‘from a principle in nature which no art can overturn, viz. that the more simple anything is, 192

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the less liable it is to be disordered, and the easier repaired when disordered’. The very complexity of the English government, he told the colonists, was its defect. In simple governments the causes of a people’s ills could easily be ascertained, but not in the complex government of king, lords, and commons. Its component parts were ‘the base remains of two ancient tyrannies, compounded with some new Republican materials’. The republican materials composed the House of Commons, but even there the corrupt influence of the crown had extended to destroy Englishmen’s freedom. “Why is the Consti-

tution of England sickly,’ the democrat asked rhetorically, ‘but because monarchy hath poisoned the Republic; the crown has

engrossed the Commons?’?! Moreover, the principle of check and balance was farcical. The words either lacked meaning or were contradictory. If the House of Commons checked the king, two propositions would have to be accepted: one, the king could not be trusted because of his thirst for absolute power; and two, the House of Commons was either wiser or more worthy of confidence. But the English constitution not only provided that the House of Commons should check the king, but also that the king, in turn, should

check the House of Commons. The king must then be considered wiser than those presumed to be wiser than he. “A mere absurdity,’ concluded Paine, as he dismissed scornfully the very famous concept of balance in the English constitution, which had been hitherto little questioned in the eighteenth century. The prejudice of Englishmen for their constitution, he emphasized, was due to their national pride rather than to reason. Their freedom was due to the people, not to the English constitution. Paine devoted the remainder of his remarks on that constitution to its hereditary components, confining his attention to the king, however, rather than to the House of Lords.?* Not until

1792 did Paine advance a plan of democratic government for the English people. By 1787, when Paine was ready to return to England, his name was known on both sides of the Atlantic. Returning primarily for the purpose of promoting his plan for an iron 21 The Complete Writings of Thomas Paine, ed. Philip S. Foner (New York, 1945) I, 6f., 16. 22 Ibid., 7-9.

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bridge, he soon gave his attention to political matters. By November 1790, Burke’s Reflections was supplying the ruling classes of England with an intellectual justification of the status yuo in the face of the challenge offered by the French Revolution. Amid the plethora of replies, some thirty-eight in all, loomed

Paine’s Rights of Man. He outlined his general principles of

government in Part I, which appeared in March 1791, and in Part II, published in February 1792, offered a plan of a democratic republic for England’s adoption. When the publisher Johnson saw the rabidly republican contents of Part I, he drew back in alarm; it was given to another publisher; and a committee consisting of Brand Hollis, William Godwin, and Thomas

Holcroft supervised the publication, Paine in the interim having gone to France for a visit. Part II was published with much difficulty. It has been estimated that 200,000 copies were circu-

lated by 1793 and that in one edition or another the Rights of Man reached the figure of almost 1,500,000. In order to add to

the circulation the work was allegedly used as a wrapper for children’s sweetmeats. The Rights of Man was adopted as a democratic Magna Carta by the Society for Constitutional Information and the London Corresponding Society, who commended and circulated it; and Paine’s picture adorned many a cottage wall.?3 William Hazlitt said of the Rights ofMan that it was the only really powerful answer to the Reflections. It was so powerful, he said, that ‘the government undertook to crush it by an ez officio

information, and by a declaration of war against France to still the ferment, and excite an odium against its admirers, as taking part with a foreign enemy against their prince and country’.?4 No doubt Hazlitt went too far, but the effect of the Rights of Man

in England was equalled only by the effect of Common Sense in the American colonies. Paine was made a French citizen in August

1792; the next month he left England forever. The Rights of Man was banned by the Government, he was outlawed, and in 1794 the leading members of the Society for Constitutional In-

formation and the London Corresponding Society went on trial.

3 Paul, op. cit., I, 69 f. Kent, op. cit., 111. G. S. Veitch, The Genesis of Parlia-

mentary Reform (London, 1913), 236.

*4 Quoted in the Introduction, written by George Jacob Holyoake, to the Right

of Man (Everyman’s Library, 1951), ix—x.

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Basic to Paine’s political theory was the belief that there was a fundamental distinction between society and government and that society was a blessing while government, at its best, was but a necessary evil, at its worst, an intolerable one. In the open-

ing pages of his Common Sense, he wrote, ‘Society is produced by our wants, and government by our wickedness.’ Since government at its best was an evil, Paine—and

in this Priestley and

Godwin were agreed—wanted as little government as possible. To them the rights of man suggested limitations upon government. To Paine the only legitimate government was republican government; that is, government established and conducted for

the interest of the public, individually and collectively. There were

four distinct forms

of government—democratic,

aristo-

cratic, monarchic, and representative. Aristocracy and monarchy were corrupt; a democracy was inadequate for dealing with the affairs of an extensive population, and so a representative government was the only acceptable system. Paine’s ideal was representation grafted upon democracy. To discover what government is or ought to be, Paine said, it

must be traced to its source. Government either rose ‘out of the people, or over the people’, or to phrase it differently, either out of a social compact or without such a compact. Those governments which rose out of a social compact were governments of reason; those without a social compact were governments of either conquerors or priest-craft. In his use of the social compact, or contract, Paine differed little from John Locke; his con-

ception and use of the state of nature were Lockeian. According

to Paine men had surrendered to government only those rights related to security and protection which they lacked the strength to exercise for themselves. Since lawful government came into being as a result of a compact made among individuals, it must be viewed as a national association, the object of which was the good of all individuals individually and collectively. A govern-

ment thus created was the only type that had a right to exist.”® The English government had arisen not from a social compact, but from the Norman Conquest. In language reminiscent of the seventeenth-century Levellers, who had also traced the undemocratic elements in the English government to the Con25 Writings, 1, 277 f., 388. See also William A. Dunning, 4 History of Politica

Theories from Rousseau to Spencer (New York, 1920), 110 ff.

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quest, Paine declared that England had never yet regenerated itself and hence lacked a constitution. Probably no other statement could so have injured English national pride, and evidence that the charge rankled is plentiful in contemporary literature. The only hope for the English was

to learn from the French;

and it would be justice, he was sure, for the example of France to contribute to the regeneration of the freedom which a French province had destroyed.?® In his Rights of Man Paine renewed for the English the animadversions on mixed government which he had begun for the colonists in his Common Sense. He divided prevailing modes of government into classes: government by election and representation and government

by hereditary succession.

The first,

usually called a republic, acted on the basis of reason and was free; the second, usually called a monarchy or aristocracy, acted

on the basis of ignorance and was tyrannical. No one but the uninformed would endure hereditary rule. But what of a mixed government like the English, composed of monarchic, aristocratic, and democratic elements? Paine was scornful. Mixed government, or as it was sometimes called, a ‘government of this, that, and t’other’, was moved by corruption. The monarchic and aristocratic sections, based upon ignorance, had to

bribe the republican section, based upon reason. In such a government, its discordant parts cemented

by corruption, there could

be no responsibility. As he said, ‘in mixed governments there is no responsibility: the parts cover each other till responsibility is lost; and the corruption which moves the machine, contrives at the same time its own escape’. Happily, one could easily see from the enlightenment of mankind that hereditary governments were on the verge of decline. It would be an act of wisdom, he thought, to anticipate the approach of representative government throughout Europe so that the settlement might be made with reason rather than in the convulsion of revolution.27 Paine, of course, had no use for an aristocratic House of Lords,

either as a privileged body or as a second chamber in the legislature. What was called aristocracy or nobility, he stated, had arisen out of governments founded on conquest; and the instrument for the maintenance of this military order was primogeniture—that ‘law against every law of nature’ by which the 26 Writings, I, 279, 282.

27 Ibid., 338 f., 344.

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younger members of a family were disinherited. Intrinsically evil, an aristocracy was even more pernicious when possessed of a house in the legislature. He spoke at length of the mischiefs flowing from the wretched scheme of a House of Lords. In its irresponsibility the House of Lords resembled a rotten borough, it was a constant source of expense, and it refused to accept its share of taxes.?8 Paine listed the grounds, apparently accepted by him as valid, on which the French had refused to introduce a House of Lords. In the first place, aristocracy was maintained through family tyranny and injustice. Secondly, the institution of primogeniture poisoned the aristocracy’s ideas of ‘distributive justice’ and made its members unsuitable for being legislators. Thirdly, the concept of hereditary legislators was as absurd as that of hereditary mathematicians, wise men, and poets. Fourthly, a body of men,

accountable to no one, ought not to be trusted. Fifthly, the principles of government founded in conquest were thus perpetu-

ated. And finally, Paine was convinced that this inbred portion of society inevitably degenerated. He concluded in an outburst of democratic fervor: “The artificial NOBLE shrinks into a dwarf before the NOBLE of nature.’?° Exclusive of its hereditary nature, the House of Lords was unacceptable to Paine because it was a second chamber with an arbitrary veto on the action of the House of Commons. Such a system was unacceptable because there was an inconsistency in one House’s reaching a decision while the other still deliberated,

because there was the possibility of the will of the minority defeating that of the majority, and because there was no philosophical justification for a system of check and balance. Like Priestley he preferred the rule of a single-chamber legislature, perhaps with 300 members, checked by a written constitution. Lest this prove inadequate to limit the hasty action of a single house, he offered a mechanical scheme to ensure protracted deliberation. The representation in the house should be divided into two or three parts, each part to debate the measure in turn while the other or others listened. Then the whole assembly should vote together. Paine was also in favor of rotation in office; one-third of the representatives should go out each year, and every third year a general election should be held. By pro28 Ibid., 288, 389 (footnote), 413.

29 [bid., 289.

197

THE

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visions for a written constitution, for division of the assembly

in its deliberations, and for rotation in office, he hoped to obviate the need for a second house in the legislature.*° Thus Paine favored for England the government of a singlechamber legislature, which should have the important task of making just laws that would secure the support of the nation. Both he and Priestley, after their initial rejection of the classical theory, sought diligently a substitute for the House of Lords with its check upon the representative House. Both objected to an hereditary second chamber with an absolute veto upon the proceedings of the popular assembly, and so they devised methods for the revision of laws passed by the popular house without the necessity for a second house in the legislature with powers equal to those of the first. Priestley had resorted to a second chamber of the enlightened, who should possess, at the most, a suspensive veto, while Paine favored the division of the

assembly into smaller groups for discussion purposes. The latter would also have used the principle of rotation in office, presumably as a check upon the popular assembly. Despite their hatred of hereditary houses with absolute veto powers both Paine and Priestley seemed to hesitate to trust their representative assemblies. And despite their brave renunciation of the doctrine of check and balance both labored to find some check upon the legislation of the elected assembly. The enormous success of the Rights of Man gave new energy to the reform societies in England. The Society for Constitutional Information, which Major Cartwright had founded in 1780, thanked Paine publicly for each part of his book. Early in 1792 the London Corresponding Society had taken shape under

the leadership of Thomas Hardy, master shoemaker and man of the people. A network consisting of between twenty and thirty societies was established under its auspices. The London Corresponding Society maintained intimate relations with the Society for Constitutional Information, of which Paine was an honorary member. Together the two societies spread his writings, printed letters and proclamations, in which they declared their objective to be parliamentary reform alone, and sought to secure the cooperation of other similar societies, notably the

Friends of the People, numbering 20 Ibid., 389 f., 422. 198

in its membership

such

OF ‘UNMIXED’

DEMOCRACY

prominent Foxite Whigs as the young Charles Grey, Richard Brinsley Sheridan, John Lambton,

and Thomas

Erskine, who

defended the accused in the state trials of 1794. By 1792 parliamentary reform was unpopular in England although the most active Government repression did not come until the state trials in the autumn of 1794. In May of that year the Government arrested thirteen members of the London societies, seven from the Corresponding Society and six from the Society for Constitutional Information, sometimes called loosely the Constitutional Society. The next October a grand jury returned a true bill against twelve of the arrested. The most prominent of the accused were the quiet Thomas Hardy, guiding spirit of the Corresponding

Society, and the clever, versatile

Horne Tooke, who was not only the leading member of the Society for Constitutional Information but also apparently had helped to draw up the constitution of the London Corresponding Society. At the time of the arrests the Government had secured the papers of the London Corresponding Society practically intact as well as two trunks of papers from the home of the secretary of the Society for Constitutional Information. If the Government failed to convict the two leaders, it would not be for

lack of evidence on the activities of their societies. It was to the trials of Hardy and Tooke that public excitement fastened. When they were acquitted, the other defendants were no longer in jeopardy. The trial of Hardy, the first and therefore the most important, lasted eight days; and public anxiety as to its outcome was visible throughout the kingdom. Young Grey wrote to his wife that if Hardy were hanged, he did not know how soon

his turn would come. And William Godwin attended both trials on every day. The trial of Thomas Hardy opened October 28th. The Attorney General, Sir John Scott, later Lord Chancellor Eldon,

opened the case with a nine-hour speech to the Jury, one of whose members later declared that even if the evidence had been

much stronger, he would have had great difficulty in convicting men of a crime when it took the Attorney General nine hours to

tell what it was.*1 In essence, Hardy and the others were charged 81 Philip Brown, The French Revolution in English History (New York, 1924), 118 f., 127, 129. Minnie C. Yarborough, 165. Stanhope, Life of Pitt, II, 267.

199

John Horne

Tooke (New York,

1926)

THE

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with ‘compassing the king’s death’, and the overt act which, the Government claimed, manifested their intent was a plan by which both societies were to hold a convention in order, in Scott’s words, to ‘subvert and alter the legislature, rule, and govern-

ment established . . . and depose the king’, etc. The Government’s task was to establish ‘constructive treason’, according to

which conspiracy against the king’s government was construed as conspiracy against the king’s person, the latter action alone being high treason as defined in the pertinent act of Edward III. The Government had the further task of proving what the defendants had intended, not what they had actually done; for the convention had never met. The plan for a convention was particularly alarming because Paine had stated that the only constitutional method of reforming the House of Commons was through a convention elected for that purpose. By such a convention, Sir John

Scott

claimed,

Hardy

and

his associates

had

planned, under Paine’s influence, to institute a republic in England without king and without House of Lords. His chief evidence was that the societies had disseminated Paine’s writings and had sought what they called a ‘full and fair representation of the people in Parliament’.*? Undoubtedly, the societies had spread Paine’s writings. During the trial the prosecution asserted that not a cutler in Sheffield lacked a cheap copy of the Rights of Man. It was more difficult to show that the societies had approved specifically its republican sections. If anything, the contrary was shown. The Government read into the evidence a resolution of the Society for Constitutional Information on March 16th, 1792, thanking Paine

for the second part of the Rights of Man, in which it was declared that his influence had been felt in the repeal of oppressive taxes in the present session of Parliament. The society hoped that ‘this adoption ofasmall part of Mr. Paine’s ideas will be followed by the most strenuous exertions to accomplish a complete reform in the present inadequate state of the representation of the people’.*3 Indeed, the question of real interest in the trials was this: had

the movement

for parliamentary

reform,

hitherto

32 Howell, op. cit., XXIV, 255 ff., 266, 277, 326, etc. 83 Tbid., 283, 1042. See also the use that the Government

operating

tried to make of the

answer of the London Corresponding Society to the Norwich Society for Political Information.

Ibid., 393 f., 1217 ff.

200

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within the limits of mixed government, come under the domina-

tion of the democratic republican theory, so ably presented by both Priestley and Paine? A careful reading of the evidence, particularly that presented by the Government, leaves no room for any serious doubt but that the responsible leaders of the reform societies looked to the reform of the House of Commons alone. As a whole they stood for the schemes of parliamentary reform laid down earlier in the century by the Duke of Richmond and the Younger Pitt. At one time in Hardy’s trial Chief Justice Eyre, who was more hostile than otherwise to the defendants,

asserted

that twenty

witnesses

had testified

that

Hardy’s sole object was parliamentary reform, as outlined in the Duke of Richmond’s plan; and the Chief Justice was willing to grant that such, at least, had been the defendant’s original intention. And in the trial of Horne Tooke, Eyre told the jury that Tooke had established his adherence to the principles of mixed government for ten years, beginning in 1780. Undoubtedly, there was some republicanism in the societies. Here and there, a solitary individual carried his ideas further and accepted the teachings of Paine. Still on the Government’s own evidence the amount was limited.*4 Apparently, the juries shared this view, for both Hardy and Tooke were acquitted. By 1799 the reform societies were moribund. The theory of mixed government, upheld by such champions as Burke and Pitt, had triumphed over the strain of democratic, republican thought

represented by Priestley and Paine. Paine’s failure was due to the apathy of public opinion, for his ideas were too advanced even for the Radical reform societies. His influence, which was felt particularly among the politically inarticulate, continued underground in the pages of the ‘Unstamped Press’ until 1832 and for another generation afterward among working class elements.** The representatives of the ‘Unstamped Press’ were such journalistic booksellers, evading for long periods of time the stamp duty of 1817, as Thomas Jonathan Wooler, editor of the Black Dwarf (1817-24); William Hone, editor of the Reformer’s Register

(February to October 1817), and Richard Carlile, the republican atheist who edited first The Republican (1819-26) and then The Prompter (November

18th, 1830, to November

12th, 1831).

Of the three Carlile was the only republican. The others con85 Fisher, op. cit., 304. 84 Ibid., 1098, 1882; XXV, 615 f., 741. O

201

THE

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fined themselves, as had Hardy and Tooke, to the reform of the

House of Commons alone, although Wooler sympathized with Major Cartwright’s republicanism in the last years of the old reformer’s

life. The most

audacious

of the three was

Carlile,

through whom Paine’s republican ideas filtered into the undercurrents of the great towns. In the years from 1818 to 1832 Carlile kept the democrat’s ideas before the reading public, particularly within the lower classes. Carlile, a young journeyman tinsmith, had begun his republican career by reading the Rights of Man in 1816, and two years later he published the theological, political, and miscellaneous

works

of Paine.

For

propagating Paine’s religious and political ideas Carlile spent approximately nine years in prison, and in these years he received considerable support from Jeremy Bentham’s following. Carlile, even from jail, did much to publicize Paine’s republican views. In The Republican his memory was kept green. Carlile printed descriptions of birthday celebrations held each year in honor of Paine; and later in The Prompter he printed pertinent extracts from the Rights of Man. He told the lower classes that ‘republicanism is so pure and perfect a system, that it needs only to be clearly understood by each individual, to be admired by all’. One of its great beauties was its simplicity: it was not ‘a compound of different systems incompatible with each other, like a certain Government, which it would be Aigh-treason to name’. In language borrowed almost literally from Paine he castigated the complex government of England as a natural refuge for the oppressors of the people, who could hide behind the ‘ENTRENCHMENTS OF CORRUPTION’. The only kind of government which would safeguard the liberties of the people was a pure representative government. If monarchy and aristocracy were added to this government,

nothing would

be

left to the people but the appearance of being free. If Carlile were elected to the House of Commons, he promised to move for the abolition of the monarchy and the House of Lords—the latter a ‘wholly useless part of the legislature’.*6 8° The Prompter, 28 ff., 43 ff. The Republican, 11 (1820), 106; VIII (1823), 29. Carlile noted that he alone among the journalistic booksellers was not a ‘mixed’ democrat

when

he wrote:

‘Be it remembered,

that I first, and long alone, as a

writer connected with the periodical press of England, have written and published, that a real House

of Commons

will not tolerate

an expensive

Monarchy,

checking legistorial (sic) power in King or Lords.’ The Prompter, 292.

202

or a

OF

“UNMIXED’

DEMOCRACY

In 1830 Carlile engaged as a ‘Freethought Coliseum’ the Rotunda,

a onetime

famous

music

hall on

Blackfriars

Road.

Many public men of London attended his republican lectures there; and in 1830 Sir Robert Peel, the Home Secretary, report-

ing to the King on the efficiency of the new London police, stated that the principal meeting place of lower-class bands

roaming the streets would be at the Rotunda when Carlile was to harangue the crowd. Peel estimated that there would be two thousand within the building and a very large crowd outside.%? About this time Carlile also began publication of The Prompter,

the schoolmaster, as he said, of the country while the Rotunda provided the finishing school. In his lectures he told a numerous audience that disunion among reformers was due to the lack of such clear and consistent principles as could be found only in

the political writings of Tom Paine.*8 Through Carlile, Paine’s republicanism passed into the politics of the lower classes in the great towns. Chartism, which did not begin until the late 1830s, was for a time interested in

making the ‘House of Lords responsible to the people’. Among the lecturers in Carlile’s Rotunda were such later Chartist leaders as William Lovett, Bronterre O’Brien, Henry Hetherington, John Cleave, and James Watson. Watson, in fact, had

come to London originally to take care of Carlile’s shop in Fleet Street when he was being prosecuted for selling Paine’s works. In Bronterre’s National Reformer (February 11th, 1837) a meeting was reported in Blackfriars, at which the participants declaimed against ‘kings, lords, and priests’, Carlile’s favorite

triumvirate of bogeys, while in the Chartist Circular (March 14th, 1840) there appeared an article called “Expediency of the House

of Lords’,

the reasons

adduced

against such a House

37 Sir Robert Peel from his Private Papers, ed. Charles Stuart Parker (London,

.

1899), II, 168.

88 The Prompter,

12, 292. During the debates on the Great Reform Bill, Carlile

watched events with fascinated interest. He was delighted with the Bill because he was convinced that the destruction of the monarchy and the House of Lords would

follow the reform of the House of Commons. It had been a great political error among English politicians, Carlile testified, to believe that the English government was a ‘due admixture of Monarchy, Aristocracy, and Democracy, or King, Lords, and Commons’. The mixture had never existed, for if the people had been represented in the government, they would surely have overthrown the monarchy and the aristocracy. The Prompter, 196, 339.

203

THE

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being culled from the Rights of Man.**

Paine’s influence was

being felt as late as 1870, for his and Carlile’s teachings helped to provide inspiration for Charles Bradlaugh and the republican clubs formed during the long retirement

of Queen Victoria:*°

There can be little doubt but that of the three prominent demo-

cratic theorists who recommended the abolition of the House of Lords in the England of the 1790s, Paine’s influence was the

most lasting. But it is advisable to return to those same 1790s and note the democracy of William Godwin, of whom William Hazlitt wrote that ‘Tom Paine was considered for the time as a Tom Fool to him, Paley an old woman, Edmund Burke a flashy

sophist.’4!

The well-known historian G. S. Veitch once remarked thoughtfully that the Pitt Government made the mistake of prosecuting the harmless and allowing the dangerous to go free. He was thinking of Godwin, whose Enquiry concerning Political Justice (1793) was the most powerful solvent of tradition to appear in his generation and of which Hazlitt said that no work of the time gave such a blow to the philosophical mind of England. Veitch offered a number of reasons why the rabidly republican Political Justice did not receive the harsh treatment meted out to the Rights of Man. First of all, its abstract nature was its protection. Godwin claimed to be a theorist, and he was believed. In the state trials Cartwright made the same claim for Paine, but

he was not believed. Secondly, Godwin disliked political associations unless they were used only as a means for spreading information, for he wanted only such changes as would flow from the ‘clear light of the understanding’. The violence of these associations could only slow the spread of reason. Thirdly, Godwin considered duties more important than rights, and he attacked the prevailing theory of the social contract. Finally, Pitt made the egregious error of assuming that the price of three guineas 89 Tbid., 8. Life and Struggles of William

Lovett (London,

1920), I, 55, (foot-

note), 116 f. A. R. Schoyen, The Chartist Challenge (London, 1958), 5f., 14. Bronterre’s National Reformer (¥ebruary 11th, 1837) should be compared with the Prompter, 348, 850 and The Chartist Circular, ed. William Thomson 1841), Vol. I, No. 25, pp. 103 f., with Paine’s Writings, 1, 289.

(Glasgow,

*° Fisher, op. cit., 302-5. For Bradlaugh’s debt in both religion and politics to

Paine and Carlile, see Hypatia Bradlaugh Bonner, Charles Bradlaugh: A Record of

his Life and Work (London, 1894), I, 9 f; Il, 165.

41 William Hazlitt, The Spirit of the Age (The World’s Classics, 1935), 18.

204

OF ‘UNMIXED’

DEMOCRACY

a copy would make the book inaccessible to the lower classes.4? Prior to the publication of his Political Justice Godwin was an ex-dissenting minister and a professional pamphleteer for the Foxite Whigs. Just before the outbreak of the French Revolution he had become intimate with Thomas Holcroft, a selfeducated dramatist, actor, and later defendant in the state trials.

Godwin’s

daughter,

Mrs. Shelley, thought that the French

Revolution kindled in both Godwin and Holecraft ‘that ardent love

of Political

Justice

with

which

both

were

afterwards,

according to their diverse dispositions, warmed’. Godwin himself named Holcroft as one of the four principal instructors in the formulation of his thought, and it seems likely that Holcroft played no inconsiderable part in the formulation of the views in the Political Justice. Apparently the dramatist, whose opinions were

much

like Godwin’s,

acted as a stimulant

to Godwin’s

more academic mind. Before their meeting Godwin had become convinced that monarchy was a corrupt species of government, but it was to the French Revolution that he owed his subsequent conviction that the utmost simplicity in government was the desideratum. In his journal he recorded for the year 1790 that his mind was becoming ‘more and more impregnated with the principles afterwards developed in my Political Justice’, that these principles were the constant topic of his conversations with Holcroft, and that Holcroft was converted to the republicanism which Godwin himself had accepted earlier.** In the summer of 1791 Godwin suggested to the bookseller Robinson the idea of writing a treatise on political principles. His original conception, Godwin said, proceeded from his feeling that he should supply a less faulty work than Montesquieu’s Spirit of the Laws, which he had found full of imperfections and errors.44 One of these that would have to be corrected was, presumably, the French philosopher’s view of the excellence of the

English mixed government. For by this time Godwin was convinced that the source of excellence in a government arose not from complexity, but from extreme simplicity. He attributed 42 Ibid. Veitch, op. cit., 264, 267 ff. Paul, op. cit., I, 61. Howell, op. cit., XXV, 340 f.

43 H. N. Brailsford, Shelley, Godwin, and their Circle (New York, n.d.), 80 ff., 86. Paul, op. cit., I, 17, 26, 64 f. Enquiry concerning Political Justice and tts Influence on Morals and Happiness, ed. F. E. L. Priestley (Toronto, 1946), I, ix—x. 44 Paul, op. cit., I, 67.

205

THE

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this conviction to the influence of the French Revolution, but it

seems likely that he was equally indebted to Paine’s conclusions on the subject as well as to Paine’s and others’ criticisms of English mixed government. In the spring of 1791 Paine, whose acquaintance Godwin had made earlier in the home of Brand Hollis, published Part I of his Rights of Man. Godwin and Holcroft had seen much of the work in manuscript,

and Hollis,

Godwin,

and

Holcroft

formed

the

committee that took care of publication.4® Once Godwin had undertaken his own work, his objections to the English constitution were probably reinforced by some of his friends. He apparently discussed the principles of the Political Justice with the dissenter

David

Williams,

with

James

Mackintosh,

whose

Vindiciae Gallicae (April 1791) contained questions on the efficacy of mixed government,‘® and with the American republican Joel Barlow, whose Advice to the Privileged Orders (1792)

was to achieve a notoriety in the state trials second only to the Rights of Man. Barlow, recently arrived in London by way of Paris, was soon in close touch with Paine and Priestley. In view of the democratic company kept by Godwin, it is little wonder that his Political Justice, although its language was more guarded, should have been written in as democratic a strain as

Paine’s more forthright Rights of Man. The first edition of Political Justice appeared in 1793, and it had almost immediately a strong contemporary influence, followed in time by a vigorous, hostile reaction. Godwin’s purpose was to limit its sale to the upper classes, and he purposely made the price—three guineas for the two quarto volume—too high for the lower income groups. Burke’s Reflections had sold for one-tenth as much; Paine’s Rights of Man, for even less. When the Privy Council considered Godwin’s prosecution, Pitt is supposed to have dismissed the suggestion with the remark that ‘a three guinea book could never do much harm among those who had not three shillings to spare’. The publication of Political Justice was timely, for interest in political theory had been stimulated first by the imminence and then the coming of war with France as well as by the activities of the reform societies. The 45 Ibid., 69 f. 46 Vindiciae Gallicae, (Boston, 1854), 444.

The

Miscellaneous

206

Works

of . . . Sir James

Mackintosh

OF

‘UNMIXED’

DEMOCRACY

book was not limited in its appeal to the upper classes and was soon being read by workingmen, who banded together for its purchase and reading it aloud. It has been estimated that about 4,000 copies of the three guinea edition were sold. Although only three legitimate editions appeared during Godwin’s lifetime, pirated editions were soon brought out in Scotland and Ireland. Apparently because of this fact the new edition in 1796, its contents very similar to the first, sold for 14s. In 1794 Godwin made a visit to Norfolk and Warwickshire and discovered that he was nowhere a stranger. Anyone in the villages he visited who had any acquaintance with modern publications, he reported, was acquainted to some degree with his Political Justice.” Indeed, the Political Justice had created a sensation scarcely surpassed by the Rights of Man. Opinions varied on the work. For

some

years

Coleridge,

Southey,

and

Wordsworth

were

fascinated by its logic. Coleridge wrote a sonnet, in which he blessed Godwin’s ‘holy guidance’. Southey read, studied, and all but worshipped Godwin, and Wordsworth told a student in the Temple to throw aside his books on chemistry and read Godwin on Necessity. Together, Coleridge and Southey planned the founding of a community, based on Godwinian principles—a Pantisocracy on the banks of the Susquehanna; but instead they

married the Fricker sisters. In 1795 Wordsworth wrote to tell Godwin of his disapproval of monarchic and aristocratic governments, no matter how they were modified. “Hereditary distinctions, and privileged orders of every species,’ Wordsworth declared in Godwinian language, ‘must necessarily counteract the progress of human improvement. Hence it follows, that I am not among the admirers of the British Constitution.’4? Godwin’s influence was also evident among the younger poets, particularly over his son-in-law Shelley. It has been said that in Queen Mab, The Revolt of Islam, and Prometheus Unbound the poet wrote under the influence of Political Justice. Sir Leslie Stephen declared of Queen Mab, a work which Carlile circulated actively, that ‘many passages read like the Political Justice done into verse’. Amongst Shelley’s fragmentary essays was one entitled 4 System of Government by Juries, a conception parti47 Paul, op. cit., I, 80 f., 118. Brailsford, op. cit., 91 f. Ford K. Brown, The Life

of William Godwin (London, 1926), 43, 56 ff.

'

48 [bid., 73. Brailsford, op. cit., 51-53. Kent, op. cit., 119 f. Hazlitt, op. cit., 18.

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THE

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cularly prominent in Godwin’s proposals for an ideal democratic government, if government had to exist at all.*® Reaction among the parliamentary reformers was diverse. Priestley approved the sections on government while Horne Tooke had no use for the book as a whole. Godwin wrote that Priestley felt ‘uncommon approbation’ of the investigation of the first principles of government in the Polztical Justice. On the other hand, Tooke, whose opinion Godwin particularly valued,

told him that the book was a very bad book and would do a great deal of harm. To others Tooke said that the Polztical Justice had been written with good intentions but nothing could be so foolish and that Godwin and Holcroft had their heads too full of plays and novels and thought themselves philosophers. It was, however, no ordinary book that drew the attention of such men as Coleridge, Southey, Wordsworth, Shelley, Priestley, Horne Tooke, and even Burke, who, when asked if he had seen it,

replied that he had and ‘a mighty stupid looking book it is’. In the last decade of the eighteenth century Godwin, as Hazlitt has

told us, ‘blazed as a sun in the firmament of reputation; no one was more talked of, more looked up to, more sought after, and wherever liberty, truth, justice was the theme, his name was not

far Ones? Godwin’s conception of the ideal form of government for England and other countries can best be understood by reviewing the relationship in his thought between society and government, between morality and politics, and between the perfecti-

bility of man and his political institutions. He considered it desirable that each man should be wise enough to govern himself without the intervention of compulsory restraint; for since government was even in its best state an evil, the objective to be sought was as little government as the general peace of human society would allow. Government should only suppress injustice to individuals within the community and defend it from invasion. In order to reach these conclusions Godwin professed like Paine to find a distinction between society and government. The first was necessary for the development of the individual, while 4° Brailsford, op. cit., 218 f. Political Justice, 111, 108-12. Stephen, Hours Library, Ill, 366 f., 377. 50 Paul, op. cit., I, 116. Kent, op. cit., 120. Hazlitt, Opascitundir.

208

in a

OF ‘UNMIXED’

DEMOCRACY

government had grown out of the errors and perverseness of the few. He quoted with approval the passage from Common Sense, in which Paine had attributed the formation of society to man’s wants, the rise of government to his wickedness. Unfortunately, Godwin regretted, political philosophers had failed to realize the effect of political institutions upon morality. He attributed to government all the existing moral evils as well as the calamities oppressing man. Faith in the eventual euthanasia of government must rest upon the rational progress of mankind; and the hopes of human improvement rested in turn on these five God-

winian principles: (1) Sound reasoning and truth, when adequately communicated, must always win over error; (2) Sound reasoning and truth are capable of being so communicated; (3) Truth is omnipotent; (4) The vices of men are not invincible; and consequently, (5) Man is perfectible, or, in other words,

capable of perpetual improvement. It followed from these principles that the interest of mankind required a gradual but uninterrupted change. On this point rested Godwin’s gravamen against government, for it was naturally opposed to change and a perpetuator of past abuses. The desideratum was as little government as possible until its demise.*! Godwin’s task was to determine the form of government that would do the least harm before its eventual demise. He first condemned

the English mixed government of king, lords, and

commons. To be acceptable, political institutions should have a constant relation to the principles of political justice, among which none was so material, in Godwin’s words, to ‘the moral rectitude of mankind, as that no man can be distinguished but by

his personal principle of democracy, government

merit’. Monarchy and aristocracy, founded upon the inequality, were unacceptable. To join them with as in the English government, was to produce a based upon political imposture. For to teach men

that kings and nobles were wiser than their humbler neighbors,

he insisted, was to practice deception and fraud and to violate reason and truth, the triumph of which would secure the perfectibility of mankind. Thus the philosopher opposed mixed

government on these grounds: its twin bases were deception and prejudice; it must degrade whoever either practiced the fraud or endured it; it rested upon the assumption that the human species 51 Political Justice, I, 5, 85 f., 124, 243-6; II, 200. Brailsford, op. cit., 94.

209

THE

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was essentially stationary; and its complexity made the fixing of responsibility in government impossible.®? On the moral grounds on which he had condemned mixed government Godwin also condemned aristocracy and its institutionalized expression, the House of Lords. Two main features of aristocratic institutions—the monopoly of wealth and the monopoly of privilege—were in complete opposition to sound morality and independence of character. To elect men to the rank of nobility, he continued, was to elect them to a post of moral danger; and to make this rank hereditary was to exclude its holders, with few exceptions, from all the causes that generate ability and virtue. It was but a mere statement of fact to

observe that the members of the English peerage, or any other peerage, were sunk below the ordinary standard of men in society. Thus the dissolution of the aristocracy would be bene-

ficial both to those who suffered from the imposed inequality and to its own

members,

whose

potential development

was

stifled by wealth and leisure. Mankind, in Godwin’s opinion, would never to any eminent degree be either happy or virtuous until each man possessed only the portion of distinction to which he was entitled by personal merit. Moreover, through entail and primogeniture, the aristocracy turned the stream of property from its natural channel and into the hands of the few. The existence of want in the rest of the community contracted men’s intellectual powers by transferring ‘nineteen-twentieths’ of them

into beasts

of burden,

annihilating

their thought,

their

virtue, and their happiness.*? While recognizing that the nature of simple democracy was not hostile to the rational improvement of mankind, Godwin was likewise critical of its defects. These were remediable to a

certain degree by the use of representation, but he disliked the coercion

of a minority

by the majority in a representative

assembly. To keep government

authority to a minimum

he

recommended local associations or juries in parishes for dealing with offenders who would be amenable to their neighbor’s

judgment;

and, for the settlement of difficulties among

the

parishes and for general defence against invasion, he proposed

a single-chamber National Assembly, meeting as little as pos5° Political Justice, 1, 125 f.; Il, 67, 69, 76 f., 96, 103, 124f.,

°8 Tbid., II, 86 ff., 91, 93, 95, 98 f., 110 f. 210

185-8; III, 41 f

OF

‘UNMIXED’

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sible, perhaps for one day a year or, preferably, only for an emergency. It should be elected only when a certain number of districts demanded its meeting, and its size should be in exact proportion to the number of districts requiring its services, whether two or 200. Although the Assembly and the juries at first might command or use force, eventually they would only have to invite cooperation. Gradually public institutions would become unnecessary. ‘With what delight,’ he wrote, ‘must every

well informed friend of mankind look forward to the . . . dissolution of political government,

of that brute engine, which has

been the only perennial cause of the vices of mankind.’®4 Like Priestley and Paine, Godwin considered a strong second chamber unnecessary as a check upon the popular assembly although he, too, considered the problem of securing protracted

deliberation in this assembly. Once more he condemned the English system when he pointed out that monarchy and aristocracy were too evil in their effects to permit their use as a check. Similarly, the institution of two representative houses offered no remedy and was unjust. To choose two assemblies was the direct way to divide a nation against itself. Moreover, under such a system the will of the majority could be defeated by a minority. He cited the example of the French Assembly of Notables, which had met in 1787. By the division of that body into seven corps, with the provision that no one should vote outside his corps, fifty members had become the majority in an assembly of 144.55 There was one species of check perfectly simple and adequate to the purpose. His proposal was reminiscent of Paine’s. He suggested that no proceeding should have the force of a general regulation until it had received five or six discussions in the assembly or until the expiration of one month from the time of the introduction of the measure.®* Paine had proposed that the assembly should be divided into two or three parts for the sake of discussion and, then, that the whole assembly should vote as

a unit. Without being so specific in the technique to be used Godwin had made essentially the same provision for protracted deliberation within his National Assembly. 54 Tbid., II, 122 f., 198, 207-12. 55 Tbid., Il, 183-6. 58 [hid 186 f.

BUA

THE

REAPPEARANCE

The Political Justice brought Godwin an instant fame. In its pages he had assailed, in an unprecedented manner, not only the venerated English political institutions, the theory of mixed government, and the philosophic basis of a House of Lords, but

also such sacrosanct social institutions as marriage and property. He had thus collided with all contemporary opinion considered respectable in the last decade of the eighteenth century. He had even found inadequate the ideal of ‘unmixed’ democracy, set up by Priestley and Paine. Only portions of this treatise could find ready acceptance, even in minds prepared to receive its democratic message. Probably no one but Godwin and Holcroft accepted in its entirety the system laid down in the Polztical Justice. Nevertheless, Godwin’s strong feeling for individualism, his

hatred of restrictions upon liberty, political and religious, his faith in the innate goodness of man, and his reliance upon the power of reason differed from Priestley’s and Paine’s only in

their degree of intensity. If Priestley and Paine had shaped the advanced thought of their day, Godwin had gone far beyond it. His position in the history of Radicalism is unique. He was no agitator like Wilkes and Horne Tooke, no organizer of parliamentary reform like Wyvill and Hardy, no pamphleteer like Cartwright, no dissimulator about pure democracy like the usually straightforward Priestley, who never admitted publicly that he had written a democratic tract, and no agitator like Paine, who appealed directly and convincingly to the masses of

men. Godwin was preéminently the eighteenth-century philosophe, an English Condorcet; and with Condorcet he shared a passionate faith in the progress and perfectibility of mankind.*? In the first generation of Godwinians were included such varied personalities

as the Pantisocrats;

Holcroft;

his friend

Francis Place, who later became the influential lieutenant of Bentham; John Thelwall, who also stood trial in 1794; Mackintosh; Hone; Crabb Robinson; and Hazlitt, whose later admira-

tion went to Napoleon. Ominous for their optimism were the state trials of 1794 and the Pitt-Grenville Bills of 1795, which broke the back of the early movement for parliamentary reform. Godwin let neither go unnoticed. Fresh from the triumph of his Political Justice, he entered the rolls for the reformers who went 6? Brailsford, op. cit., 142. Kent, op. cit., 126, Paul op. cit., I, 111-12.

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OF ‘UNMIXED’

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on trial in 1794. After Eyre had outlined to the grand jury, which was to return a true bill against the reformers, the essence of the

Government’s

charge of constructive

treason,

Godwin

pub-

lished his Cursory Strictures on Chief Justice Eyre’s Charge to the Grand Jury (1794), in which he analyzed with crushing clarity the departure of the Government from the definition of treason contained in the all-important Act of Edward III. To this pamphlet the usually cynical Horne Tooke publicly declared he owed his life. If the reformers thought that Godwin stood for direct action, they must have been bitterly disillusioned by the tone of his Considerations on Lord Grenville’s and Mr. Pitt’s Bills

(1795), in which he called the London Corresponding Society a formidable machine that was not entirely free from blame in bringing on the state trials of the previous year.*® With the death of Mary Wollstonecraft in 1797 ended the happiness in Godwin’s career. From that year he himself dated the reaction that finally overwhelmed the ‘new philosophy’, of which he was the fountainhead. The end of his active political life was marked by the pamphlet he wrote in 1800 to defend himself from the strictures of three able antagonists: Dr. Parr, sometimes known as the Whig Johnson; Mackintosh, who had

lashed out at Godwin in his lectures of that year; and T. R.

Malthus, whose Essay on Population (1798) was intended as a rebuttal of the philosophy of the Polztical Justice. In this pamphlet Godwin sketched the situation of reforming party. “The societies have perished,’ he stated,

“or where

they have not,

have shrunk to a skeleton; the days of democratical declamation are no more;

even the starving labourer in the alehouse is be-

come a champion of aristocracy’.®® By this time Wordsworth had become one of Godwin’s angriest opponents, Thelwall had broken with the philosopher, and Mackintosh was trying to eradicate the youthful blunder of writing a Vindiciae Gallicae. But Mackintosh was soon penitent for his attacks upon Godwin, and Shelley took Wordsworth’s place as a revolutionist. Shelley’s little essay entitled A System of Government by Juries revealed a faithful disciple’s interest in 58 [bid., 147. Political Justice, III, 101. Godwin, ville’s and Mr. Pitt’s Bills (London, 1795), 22, 81.

5® Godwin, (London,

Thoughts

Considerations on Lord Gren-

Occasioned by the Perusal of Dr. Parr’s Spital Sermon

1801), 7. Brailsford, op. cit., 154.

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THE

REAPPEARANCE

the form of government proposed by Godwin.* After 1800 Godwin remained aloof from politics. When he was asked eighteen years later by the busy Lady Caroline Lamb to give his vote for the Whig candidate

in the Westminster

election, he

excused himself with the graphic explanation that he was a republican in principle though in practice a Whig. “But I am a philosopher,’ he concluded: ‘I do not mix in the business of the world.’!

As a matter

of fact, Godwin

had already made

his

contribution to the business of the world: a chapter from the Political Justice under the title ‘Moral Effects of Aristocracy’ was published in the Chartist Circular on October 12th, 1839; and four years later, at the height of the Chartist movement, the Political Justice was republished. Though the specific program of the Chartists probably owed more to Paine than to Godwin, they made, nevertheless, effective use of the Polztical Justice.®?

At the most these democrats—Priestley,

Paine, and Godwin—

had succeeded in introducing into the English political mind, for the first time in the eighteenth century, a real doubt about the efficacy of mixed government and hereditary legislators. Although in the pamphlet literature of the 1790s there appeared for the first time in this century abuse of the peers as hereditary legislators,®* the position of the House of Lords was not materially affected. Among the lower classes Paine had made converts; Godwin, similarly, among the intellectuals. Of Priestley’s democratic influence, as exercised through the Political

Dialogue, there is no trace. Apparently there was some republicanism in the reform societies. Godwin, at least, thought so.®4

Yet their responsible leaders appear to have been carrying on the tradition of parliamentary reform within the framework of mixed government as that tradition had been established before 1789. In a letter written to the reformer John Cam Hobhouse at 60 Political Justice, 11, 101-3. Memoirs of .. . Mackintosh, ed. R. J. Mackintosh (London, 1835), I, 134 f. 61 Kent, op. cit., 124 f. ae Chartist Circular, Vol. I, No. 3, p. 10. Life of... Lovett, I, xix. Political Justice 7 A12:

%° A Review Reply to Mr. 1792), 32 ff. maurice, Life

of the Constitution of Great Britain (1791), 11 f. See also T. Cooper’s Burke's Invective against Mr. Cooper and Mr. Watt (Manchester, For decline in the prestige of that House by 1798, see Lord Fitzof Shelburne (London, 1876), III, 546.

84 Constderations on Lord Grenville’s and Mr. Pitt’s Bills, 12 f.

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OF ‘UNMIXED’

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the time of the passage of the Great Reform Bill Thomas Hardy drew an illuminating parallel between his own and his associates’ activities In 1794 and those of the Grey Reform Ministry when he wrote: ‘The King and his Ministers turned Parliamentary Reformers! committing the very same crime, that [the] Pitt and Dundas infamous government charged the reformers in

the year 1794 with, the highest crime known to our laws, High sUreasony35 That some doubt about English mixed government had been introduced into the English mind in the last decade of the eighteenth century can be gathered from a conversation between Mackintosh

and Fox, which the former described in 1800. It

was not clear from this description when the conversation had occurred, but the form it took suggested that in Whig circles the

merits of mixed government as contrasted with other forms of government were being discussed. Mackintosh himself had temporarily accepted the simple democracy represented by the French National Assembly, only to recant publicly in a series of lectures in Lincoln’s Inn. It was reported in 1800 that he had asked Fox whether or not it was true that free governments needed to be complex in form because of the various elements and interests which they represented. Fox had replied that ‘nothing certainly could

be more

true, nor

any thing more

foolish than the doctrines of the advocates for simpler forms of government’.°6 By 1800 the political societies were moribund. Napoleon had

overthrown the French republic. And the English idealists who had looked to France for inspiration saw there only a military despotism, a confirmation of the statement so generally received

in the eighteenth century that a pure, ‘unmixed’ democracy was a form of government unsuitable for states as large as France and England. George Canning recognized the effect upon English democratic opinion when he declared that a lasting ridicule had been thrown upon all systems of democratic equality. “The idol of Jacobinism is no more,’ he exclaimed.*’ As the war went on and military defeat smashed Pitt’s laboriously constructed coalitions, English patriotism rose above liberalism. 65 Thomas Holcroft, Life, ed. Elbridge Colby (London, 1925), H, 56. 66 Memoirs of . . . Mackintosh, 1, 109 (footnote). 87 Keith Feiling, The Second Tory Party, 1714-1832 (London, 1938), 205.

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OF

‘UNMIXED’

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Parliamentary reform was dropped for a generation. In these years to nine Englishmen out of ten, only the war mattered. When Napoleon was decisively defeated in 1815, the English constitution had, at the least, the prestige which it had enjoyed before 1789. After 1800 the new form of the classical theory, as

expounded by Stewart and Jeffrey, rendered the task of parliamentary reformers in the early nineteenth century more difficult than that which in the 1790s had faced the London Corresponding Society, the Society for Constitutional Information, and the

Friends of the People.

216

VI THE

DEMOCRATIC ATTACK ON THE HOUSE OF LORDS RENEWED

IN EARLY NINETEENTH-CENTURY ENGLAND Major John Cartwright (1740-1824), experienced campaigner in the movement for parliamentary reform, and Jeremy Bentham (17481832), the influential founder of Philosophic Radicalism, made

further contributions to the strain of ‘unmixed’ or pure democracy, introduced earlier into political Radicalism by the writings of Priestley, Paine, and Godwin in the 1790s. To these five prominent democratic republicans—Priestley, Paine, Godwin, Cartwright, and Bentham—the intellectual heirs of the seventeenth-century Leveller movement, was due whatever there was in England of the ideology of democracy, and consequently of hostility to the hereditary House of Lords, prior to the passage of the Great Reform Bill and the operation of the reformed mixed government. Arriving by devious routes at the same conclusions, the demo-

crats were agreed on three fundamental points: (1) the rejection of the theory of mixed government; (2) the abolition of the House of Lords; and (3) the substitution of government by a popularly elected, single-house legislature for the complex government

of king, lords, and commons.

How

Cartwright in

his English Constitution Produced and Illustrated (1823)

Bentham P

in his Constitutional ANT

Code

(1827-41)

and

publicly re-

THE

DEMOCRATIC

ATTACK

nounced their adherence to the English form of mixed government and in its place proposed a democratic republic as the best

possible form of government will form the major topic of con-

sideration in this final chapter of this study. It is desirable in conclusion to attempt an assessment of the effectiveness of the democratic attack on the classical theory and the House of Lords. To be sure, the democracy of both Godwin

and Paine had made inroads, and Paine’s ideas had won lasting converts among the lower classes; but how little real effect the

democratic ideology had on the ruling classes will be seen in an analysis of the constitutional outlook of the Whig ministers who prepared the Reform Bill of 1832 and of the debates during its passage. From such an investigation one definite conclusion

emerges. Unmistakably, among the ruling classes of England democracy had won no disciples before 1832. These classes were loyal to the theory of mixed government, either in the classical form outlined by Blackstone and De Lolme or in the new interpretation popularized by Stewart and Jeffrey. Either way the House of Lords was comfortably sheltered by the prevailing constitutional theory before 1832. Although the wars of the French Revolution coupled with the repressive measures of the Pitt Government had given a temporary quietus to the movement for parliamentary reform, there

appeared even before Waterloo a new generation of reformers who in the aggregate may be called a Radical party. Within it were several classes of reformers working on partly independent lines for the reform of the House of Commons within mixed government. Most important in view of their ultimate effect upon public opinion were the Philosophic Radicals, of whom

Jeremy Bentham was the intellectual leader. Within parliament was the wealthy Sir Francis Burdett, who later led a small group of parliamentary Radicals. Outside of parliament was the powerful journalist William Cobbett and the handsome Henry ‘Orator’ Hunt. Partially eclipsed by the new generation of reformers was that man of one idea, Major John Cartwright, onetime officer in the Nottinghamshire militia, who had lost his com-

mission because of his advanced political views. Yet his service for almost fifty years in the cause of parliamentary reform made him the link between two generations of reformers. Typical of his tenacity was the postscript he penned to Horne Tooke’s dis218

ON

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couraged comment in 1797 that the cause of reform was dead and buried. ‘But J. C. is a believer in the resurrection,’ wrote

Cartwright.1 His faith When Bentham in Major Cartwright was question of the House was a Radical without

was not misplaced. 1808 joined the Radical party, of which the leading member, it was silent on the of Lords and accepted the monarchy. It being a republican party.2 Both Bentham

and Cartwright were ‘mixed’ democrats

at this time; and the

similar constitutional views of Burdett, whose political ideas were taken from Horne Tooke, have been noticed elsewhere in

this study. Hunt and Cobbett appear to have been no more

extreme. Hunt seems to have sought the reform of the House of Commons alone while Cobbett denied explicitly that he wanted innovation. “All I wished and all I strove for,’ he recorded, ‘was

the Constitution of England, undefiled by corruption.’® From somewhat unexpected quarters came impressive testimony of the constitutional language used by the reform leaders. In 1817 J. W. Ward, Tory stalwart and friend of Canning, told

the House of Commons that if the reformers listened to their leaders, they would believe Radical reform to be all that was needed to make the English constitution ‘the very perfection of a mixed and balanced constitution’. The king would exercise his prerogative, even regaining his lost veto; the peers their privi-

leges, including that of rejecting bills of which they disapproved ; and the House of Commons would defend the rights of the people.* Canning also recognized that the words, at least, of the reformers showed their attachment to English mixed govern1F, D. Cartwright, The Life and Correspondence of Major Cartwright (London, ; 1826), I, 240 (footnote). 2 Elie Halévy, The Growth of Philosophic Radicalism, trans. by Mary Morris (London,

1928), 415.

3 Robert Huish, The History of the Private and Political Life of Henry Hunt (London,

1836), II, 1, 390.

The Autobiography of William

Cobbett, ed. William

Reitzel (London, 1947), 201, 213 f. The editor has linked the autobiographical writings of Cobbett. 4 Parliamentary Debates, XXXVI (1817), 763 f. Ward (later Earl of Dudley) later opposed the Great Reform Bill. In the articles in the Edinburgh Review in which Jeffrey advanced the new interpretation of the classical theory, he stated that

both Cobbett and Burdett recognized that if the reform of the House of Commons were carried out, the king’s prerogative would have to be strengthened. Cobbett, he said, talked repeatedly of the irregularity of parliament’s interfering with the

king’s ministers, while Burdett was reported as having insisted on the benefits of the king’s determining what boroughs should be allowed to return members of

parliament and which should lose the right. Loc. cit., XIV, 303.

DNS)

THE

DEMOCRATIC

ATTACK

ment. ‘With the House of Commons alone they take the freedom of familiarity,’ he admitted. ‘Upon it they pour out all the vials of their wrath.’ And Bentham commented in 1821 that both moderate and Radical reform (by which the House of Commons would be organized as a representative democracy )would leave the king and the House of Lords in full possession of their powers. ®

Major John Cartwright was a leading representative Radical reformers. When he died in 1824 at the age of four, he had published over eighty tracts in the tireless tion of his adopted cause; and his Radical program contained

these four essentials:

universal

manhood

of the eightypromousually

suffrage,

annual parliaments, equal representation, and the ballot. Until two years before his death the ‘Old Gentleman’, as he was often called, remained convinced that the reform of the House of Com-

mons alone was sufficient to render the English government ‘agreeable to the perfection of reason’. The ‘mixed’ democracy

characteristic of his writings before 1823 was evident in such tracts as Take Your Choice (1776), in which he asserted that a pure democratic government was suitable only for small states; that hereditary distinctions, when properly regulated, served useful purposes in large states; and that the English constitution was worthy of all the regard one could possibly feel for it. Fortunately, reform was not innovation but renovation, he argued; for both annual parliaments and equal representation

were the ancient practice of the constitution.? With the publication of Take Your Choice Cartwright fired the opening salvo of his campaign to reform the House of Commons

within the framework of mixed government. His singleminded efforts persisted throughout the era of the French Revo® Speeches of . . . George Canning delivered . . . in Liverpool (London, 1825), 224. Canning was certain that the reformers, despite their constitutional language, knew enough English history to realize that ‘the prerogative of the crown and the privileges of the peerage would be but as dust in the balance against a preponderating democracy’. ° Halévy, op. cit., 415. Works of Jeremy Bentham, ed. John Bowring (Edinburgh,

1843), IX, 144.

* Legislative Rights of the Commonalty Vindicated; or, Take Your Choice (London, second edition, 1777), 6, 18, 26. He wrote of the ‘complicated frames of mixed “bbe bias like our own’. Ibid., 9. This work is cited hereafter as Take Your ome.

220

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lution and the period of repression that lasted after the downfall of Napoleon. When the mutterings of reform agitation grew louder after 1815, he was in the vanguard of the movement. His

reforming strength lay in his organizing ability as well as in his bull-dog tenacity. Before 1789 he had founded the Society for Constitutional Information. In the early 1790s he was active in the more conservative Friends of the People, which included such respectable Whigs as Charles Grey, W. H. Lambton (father of the later Lord Durham), and the then Lord John Russell, whose son later helped frame the Reform Bill. By 1813 Cartwright was busy in the Hampden Club, carrying out two tours in the north of England in the cause of parliamentary reform. In the reform societies before the turn of the century, he worked, so he said, to counteract the efforts of Paine to introduce pure republicanism.®

Just why Major Cartwright at the age of eighty-two, an age when few discard the views of a lifetime, should have demon-

strated the flexibility of his mind by Jjettisoning the classical theory and adopting pure democracy is not readily explicable. The reasons

why Priestley, Paine, and Godwin

became demo-

crats do not apply with equal force, if at all, to the Major. He was not of a dissenting background;

he had the comfortable,

independent means that usually make men contented with established institutions; and he had proved relatively immune to the democratic republicanism engendered by the American and French Revolutions. All in all, he could reasonably have been expected to live out the few remaining years of his life at peace with the monarchy and the House of Lords. That his choice was otherwise may partly be explained by these facts. First of all, although he did not become a democrat until the third decade of the nineteenth century, his mind had been shaped by the forces of the Enlightenment. He believed implicitly in the law of nature, natural rights, the inevitable

spread of knowledge, and the application of Newtonian physics

to the art of government. Secondly, although he had not succumbed to the late eighteenth-century democratic ferment, he 8F, D. Cartwright,

op. cit., I, 192. For Cartwright’s own

statement, see The

English Constitution Produced and Illustrated, 186. So well known were the Major and his program for reform of the House of Commons alone that modern historians (i.e., Kent, Veitch, and Davis) have assumed that he never went beyond its tenets.

221

THE

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ATTACK

was not unaffected by the new ideas on government. The American Revolution had aroused his interest in parliamentary reform and made him, like Paine, a politician. He, too, had been influ-

enced by American constitution-making, especially by the Pennsylvania constitution with its provision for a single-chamber legislature, which Franklin had drawn up in 1776; and he regretted its subsequent modification to introduce a legislature of two coordinate branches.® After

becoming

a democrat,

Cart-

wright referred frequently to the republican literature inspired by the French Revolution—to the Rights of Man and to an anonymous extremist tract entitled 4 Review of the Constitution of Great Britain (1791) that was notable for a long attack upon the House of Lords.!° Only a catalyst appears to have been needed to draw together the scattered elements of democracy latent in Cartwright’s mind, and this George Canning provided. On August 30th, 1822, Canning delivered at Liverpool the speech against parliamentary reform that converted Cartwright, by his own admission, into a democrat.

For at least ten years

Canning, wrapped in Burke’s mantle as the defender of the constitution, had warned that a reformed House of Commons would

destroy the House of Lords and the monarchy. In 1822 he confronted the parliamentary reformers with a blunt ultimatum. If they proposed to purify the representative system, they must also provide, he insisted, for the future status of the House of Lords and the monarchy. He struck specifically at the plaint that England’s ills grew out of the abuses of the unreformed House of Commons. If it were granted for the sake of argument that the proceedings of parliament in these past years had been reprehensible, the House

of Lords must share the odium.

Canning

asked a series of penetrating questions to which there could be only one answer. ‘Were they the proceedings of the House of Commons alone?’ he asked. His questions became more specific. ‘Does the British constitution act by a single organ? . . . Is there no other assembly in existence which partook of the opinions on which the House of Commons has proceeded, and which would make, therefore, the reform of the House of Commons nugatory

. unless the coordinate authority was also reformed?’ Un-

equivocally Canning placed before the English reformers the ® The English Constitution, 219 f. Take Your Choice, 181 f. 10 English Constitution, 56 ff., 79 ff., 185 f., ete.

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dilemma, which as ‘mixed’ democrats they had hitherto either failed to recognize or had refused to accept. ‘If you reform the House of Commons, on the grounds of past misconduct,’ asked

the Tory statesman, ‘what will you do with the House of Lords?’11 Cartwright had the wit to see that Canning had penetrated the paradox of the reform position as it involved the House of Lords. Either reform of the House of Commons because of its ultimate effect upon mixed government and the House of Lords would have to be abandoned or else the theory of mixed government and the House of Lords would have to be rejected. The next year Cartwright’s decision was in print, the decision of a resolute

democrat

like Priestley,

Paine,

and

Godwin.

In his

English Constitution Produced and Illustrated (1823), embodying the considered thought of his last years, the Major heaped scorn on the classical theory, demanded the abolition of the House of

Lords, and proposed a pure democratic government for England, modelled on what he called the Anglo-Saxon polity (by definition an unwritten constitution). The perfection of the AngloSaxon polity had long been a favorite notion with the ‘Old

Gentleman’, but so long as he was a ‘mixed’ democrat he was in the habit of praising a two-fold polity—arms-bearing and representation—as perfect and universal. In 1823 he claimed to be producing such a polity, now with five main principles, as a response to Paine’s taunt in 1791 that the English had no constitution. 1}? In the introduction to his English Constitution the Major apologized for having devoted forty-seven years to the reform of the House of Commons without realizing the inadequacy of his reform program. To Canning more than anyone else the re-

formers of England should be grateful, for he had been the first 11 Speeches . . . in Liverpool, 357 f. 12 Graham Wallas, The Life of Francis Place, 1771-1854

(New York,

1919),

62 f. English Constitution, vii. Carlile, who wrote an illuminating description of the revolution in the Major’s political ideas, argued that the old reformer had only been converted to Paine’s political ideas. Cartwright, he wrote, ‘only asks to be allowed to retain a few Saxon names! The title of King he would have changed to Heretogan. The House of Lords he would have abolished. And the House of Commons should be called a Wittenagemote.’ The Republican, VIII (1823), 31. As early as 1776 Cartwright was referring to the Anglo-Saxon period as a kind of golden age of the English constitution. For the general influence of this idea on English reformers, see Butterfield, op. cit., 348 ff.

293

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to instruct them to what length they should extend their views and what they must achieve if they were to obtain the freedom and security that they were seeking. Canning had said that a reform of the House of Commons would be nugatory without a concomitant reform of the House of Lerds. “Thus, what I, for the first time, in private clearly see,’ came the veteran reformer’s

significant admission, ‘Mr. Canning publicly preaches.’ If the Tory statesman had received £14,000 and a rich service of plate for advocating the restoration of the constitution as it existed before the institution of the House of Lords, Cartwright thought

that Canning could not have done more satisfactorily what he had been so obliging as to do gratis.!* Cartwright’s response was to unveil what he called the true, long-lost English constitution, the Anglo-Saxon polity, the principles of which were in direct contradistinction to those of the existing mixed government

of king, lords, and commons.

The

elements of this polity had existed, he stated, in the first planting of an Anglo-Saxon state in England under Hengist. Because of their genuine simplicity and unchangeable nature they had been at all times and still were the polity of England. In the following five elements of the Anglo-Saxon polity Cartwright found his new political creed, and so they are reproduced exactly as he phrased them. The Elements of England’s Constitution I. Those principles of Truth and Morality on which Political Liberty and Social Order depend. II. A Militia of all men capable of arms-bearing. III. A Wittenagemote annually elected by the People for enacting Laws. IV. Grand and Petit Juries of the People, fairly drawn, for applying

the Laws. V. A Magistracy elected by the People for duly performing all executive Duties. This, in the abstract, will be,

I. Principles. II. Arms-bearing. III. Legislation. IV. Judicature.

V. Magistracy.14 13 English Constitution, vii, 175, 182.

14 [bid., 75, 85.

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Legislation was the most important of the elements, for upon it the health of the state depended. The power of legislation, according to Cartwright’s distorted version of Anglo-Saxon history, had once belonged exclusively to the Witenagemot, elected annually by the people

to make their laws. Such an elective, single-house legislature was alone compatible with the sovereignty, freedom, and dig-

nity of a nation. As he looked about him, Cartwright was convinced, he said, that the only cure for England’s ills would be a

return to the government of the Witenagemot, for the state suffered from only one disease; namely,

‘A PALSY

IN THE

ORGAN OF REPRESENTATION.’ He became explicit about his dislike for an hereditary second house or even any other house at all. Two coordinate houses were unnatural, like a ventriloquist with two voices, one natural, the other unnatural.

Such a double voice was a deviation from nature and a deformity. His new democratic contempt for English mixed government was manifested in this comment: ‘When, opposed to one popular and free branch of a Legislature, there shall be set up against it two branches standing on hereditary, arbitrary, and unnatural pretensions, and those two having a common interest adverse to Liberty, the institution so compounded becomes a very monster in politics.’15 Following the path blazed earlier by Priestley, Paine, and Godwin, the venerable ‘Father of Reform’ urged the adoption of a government in which a single-chamber, popularly elected legislature would be sovereign in place of the existing English mixed government of king, lords, and commons. Unwilling to allow a veto upon the legislative power of this assembly,1® he too was concerned with the problem of eliminating precipitance in legislation.

He

suggested,

therefore,

a small

Council

of

Elders, whose members should be at least forty-five years of age, to replace the hereditary, independent House of Lords. If Cartwright’s democratic scheme had replaced, as he hoped it would,

the existing English government

of king, lords, and

commons, the results in terms of that government would have been rule by a reformed House of Commons (the popular 15 [bid., 116, 120 f., 398.

16 [bid., 211. The Witenagemot could, of course, be overridden by the will of the people, but the reference here is to a veto by the king or House of Lords.

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assembly )with the help of a committee (the Council of Elders)

to perfect the legislation of the House of Commons, neither the committee nor the king (an elected magistrate )having any veto upon the proceedings of the popular house. The function of the Council of Elders was to be purely advisory, the real power of law-making being in the hands of the popular assembly. Cartwright was explicit about the mode of procedure to be followed by the Council of Elders. By a fundamental law, co-eval

with the creation of the democratic constitution, he suggested, it

might be provided that every bill passing the popular assembly should go to the Council of Elders, where a three-fold discussion would ensue. The Council would read and debate the provisions of the bill, analyze these in a committee

of the whole,

and,

finally, read them a second time for the purpose of correctness. The Council could only advise changes. Its members might, for example, underline any words that they thought unconstitutional. Omissions noticed or recommendations for amendment would be included in a separate paper, to be appended to the bill and returned to the popular assembly. This advice the assembly would have full authority to accept or reject at will. A final reading in the popular assembly would make the bill law; but if any new material varying from the proposals of the Council were incorporated, the same process must take place in the Council of Elders before the bill could be returned to the assembly to become law.!7 While Cartwright failed to indicate how the Council of Elders should be named, he probably favored popular election with short terms for its members. This Council of Elders was obviously far removed from the existing powerful House of Lords, possessing by the maxims of mixed government a coordinate position in the legislature with the House of Commons. But the theory of mixed government had yielded to the democratic theory in Cartwright’s mind, and the thesis of his English Constitution was that mixed government and the House of Lords had been foisted upon England by her Norman conquerors. Like Paine and like the seventeenth-

century Levellers, the veteran reformer ascribed the defects in the English government to the Norman Conquest. It was William the Conqueror who had made the ruinous breach in the Anglo-Saxon polity by substituting a hereditary council of his 17 Tbid., 254 f.

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own for the annually elected Witenagemot. The legislature of king, lords, and commons was an innovation, a forgery, a counterfeit of the Witenagemot, palmed on a duped nation by

the brutal Normans.!8 Well-known writers on the English constitution

such as

Montesquieu, Blackstone, and De Lolme had become apologists for this Norman counterfeit, Cartwright continued, when they

tried to demonstrate that the English government was a kind of ‘cream taken from monarchy, aristocracy, and democracy’. A chemical analysis, in the reformer’s judgment, would reveal the

cream to be dregs, mixed in a manner violating all rules of experience and producing more tyranny than an undisguised despotism. He looked forward to the day when the English legislature composed of discordant powers, serving as the source of contentions, corruptions, and evil consequences, would recover

its former simplicity and be known by the appropriate name of Witenagemot.!® Cartwright thus disposed of the theory of mixed government that he had cherished for approximately fifty years. He was equally short with the House of Lords. If there were anything unmistakable in history, Cartwright pointed out, it was the lack of a House of Lords in the Anglo-Saxon constitution 600 years after its origin. For the sole purpose of enslaving the people William the Conqueror had created the hereditary House, and Cartwright recommended turning through this Augean stable of England the all-cleansing river of free popular elections. There were other objections besides the historical to this institution. Legislation by hereditary legislators was unnatural, unjust, despotic, and unspeakably absurd. The old reformer applied his main test of utility to the House of Lords

and found it wanting. ‘What is contrary to nature,’ he said simply,

‘cannot

be good.’ A House

of Lords

was,

moreover,

irreconcilable with equality, the essential ingredient of popular freedom. Despite the virtue of some individual peers the order as a whole, by its violation of the principle of equality, must be

both tyrannical and pernicious. He was equally biting about the legislation that had come in the past from the House of Lords.°° Nothing in the long run would do for England but the restored constitution, but Cartwright expressed willingness that WT oyeb, Wil, 1, Weir, ete.

19 Ibid., 151 f., 252.

20 Ibid., 185, 197, 203, 213, 232 f. goT

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the reformers should continue to seek the reform of the House of Commons alone. His patience arose from the conviction that truth and time were on the side of the democrats. Englishmen would soon demand effectively their long-hidden, long-unknown constitution. Nations newly emerging from servitude, declared the optimistic Cartwright, would indignantly reject all pretensions of hereditary power. The combined forces of light and liberty were on the march and must prove irresistible.?? Cartwright, though he considered even a civil war justifiable to restore the English polity, preferred to put his faith in the power of public discussion. When publishers, afraid of prosecution under the Six Acts, refused to circulate the English Constitu-

tion, the undaunted reformer opened a small shop and arranged for his secretary Thomas Cleary to sell the controversial work. Carlile, angry because the book was not being sold through regular booksellers’ channels, declared, perhaps out of pique, that its sale was small. He had not had a single order for it.?? Whereas most periodicals passed over the constitutional treatise in silence, the Radical

Black Dwarf took unusual notice of it,

even carrying an abridgment during the month of December 1823, so that Cartwright’s new democratic ideas reached a much wider audience. The editor of this Radical weekly, Thomas

Jonathan Wooler, was in these years the chief journalistic rival of Cobbett; and at least in its beginnings the Black Dwarf was very popular with the lower classes. In the latter half of 1818 a Tyne colliery manager noticed that the Black Dwarf could be found ‘in the hat crown of almost every pitman you meet’.?3 It is very probable that the Major financed the Black Dwarf. Its Radicalism was of the Cartwright variety, his name appeared

throughout, and it died with his passing. Wooler had the same concern for Anglo-Saxon history—they both distorted the past for the sake of reform; he thought the House of Lords had originally been elective; and after the appearance of the English Constitution he announced a new predilection for republicanism.*4 Further evidence of Cartwright’s connection with the

21 [bid., 159 f., 378. 22 The Republican, VIII, 30. F. D. Cartwright, op. cit., II, 240.

*3 Feiling, The Second Tory Party, 298. *4 Alexander Bain, James Mill (London,

1882), 433. The Black Dwarf, III,

433 f., (August 6th, 1817); I-II, 683 f., (November

(February 11th, 1824).

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weekly was furnished by a curious letter in the July 1823, issue, which was signed ‘Quintilianus Politicus’ and was written by a gentleman anxious to give his opinions on Cartwright’s latest tract. This correspondent, who, one suspects, was no other than

the Major himself, reported in detail a rumored discovery in a vault near Crayford, Kent, of a large shield, five feet in length,

on which were clearly inscribed Saxon polity. From the date on likely that the body found there had founded the Anglo-Saxon correspondent had surmised that

the five elements of the Anglothe vault it seemed extremely might be that of Hengist, who state. From these details the this discovery had provided the

germ, indeed the very text, for Cartwright’s treatise.?>

The influence of Cartwright’s new democratic ideas depended to a great degree upon his prestige with his fellow reformers and the rest of England. At first sight he appears to have been a rather ridiculous person, tolerated but scarcely respected by his countrymen. Francis Place, political manager of the borough of Westminster,

labelled, if he did not libel, the old reformer as

exceedingly troublesome in political matters and sometimes exceedingly absurd. Indeed, so badly did the ‘Old Gentleman’ fare in the Westminster election of 1819, in which he received

less than forty votes out of a possible vote of over 8,000, that there was some point in Place’s further comment that the Major was utterly incompetent and a man for whom the electorate would not vote. Even his writings because of his poor scholarship gave the enemies of Radical reform the opportunity to laugh at him. He became the butt of the Whigs at Holland House as well as of the anti-reformers in parliament for having mistranslated ‘Brevia Parlementaria Rediviva’ as ‘short parliaments Revived :.2° Perhaps the truer note of appreciation was sounded when 25 Tbid., XI, 168-72 (July 1823). Cartwright found other ingenious ways to publicize the treatise. Several thousand medals were struck off at Birmingham, on which the five elements of the Anglo-Saxon polity were engraved. Abridgements were translated into the respective languages and sent to Greece, Italy, and France so as to frustrate any intentions that the Holy Alliance might have of introducing a House of Lords into those countries. Two other works, inspired by the AngloSaxon polity, were soon in print: they were A Political Dialogue (1824), written for the Spanish, and 4 Problem, written in February 1824. 26 Wallas, op. cit., 62, 118, 137. Lord Broughton, Recollections of a Long Life,

ed. Lady Dorchester (New York, 1909), II, 97. Parliamentary Debates, 629, 1175.

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Burdett told the House of Commons that if Cartwright’s scholarship might be disputed, his arguments for reform were not so easily controverted.?7 Nor was it a silly old man whom Canning described as ‘the old heart in London, from which the veins of

sedition . . . were supplied’.28 Yet Cartwright’s complete rout in the Westminster election can only be partially explained away by the suggestion that he was competing for the liberal

vote against the more moderate John Cam Hobhouse, who had the backing of Burdett. For the Major’s reform platform was

advanced for the year of Peterloo. No doubt he was being pushed into the background by the new generation of reform leaders, but that he still possessed considerable influence in the movement

can be surmised from Carlile’s frankly expressed fear lest the English Constitution replace the Rights of Man as a rallying standard for the reformers.*® In brief, like Paine’s extreme vanity and Godwin’s notorious sponging habits, the Major’s tiresomeness would not have hurt the effectiveness of his democratic attack upon the House of Lords and the classical theory had he begun sooner. If he had placed the House of Lords on his reform schedule early in his reforming career, the people of England before 1832 would have, at the least, suspected that the House of Lords could represent a problem. In the result it was left to Bentham to make the final democratic attack on the position of the House of Lords before the year 1832 had come and gone, taking with it England’s matchless constitution. When

Jeremy Bentham died on June 6th, 1832, the Great Re-

form Bill lacked only the assent of William IV to become law. 27 Tbid., 1184.

28 Quoted in F. D. Cartwright, Life, Il, 180 (footnote). °° The Republican, VIII, 30, 32. Ina letter dated February 16th, 1825, Cartwright’s niece, who became his biographer, wrote to Thomas Jefferson of her feeling that her uncle was neglected by his political associates in the last years of his life though Cartwright himself, she stressed, had never complained of neglect. Papers of Thomas Jefferson, Library of Congress. Information about this letter was supplied to me by Naomi Churgin, who is preparing a study of the veteran reformer. After his death Cartwright was remembered by the friends of parliamentary reform. A monument was erected to his memory, and after 1832 a Cartwright Club was formed to win the reforms that he had advocated. In a speech reported in the Morning Chronicle (August 27th, 1832) the Rev. William Fox praised Cartwright in the same breath as Hampden, Pym, and Sidney. A Collection of Manuscript Notes concerning John Cartwright, Houghton Library, Harvard University.

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In the sense that the reform of the House of Commons led to a series of momentous changes that eventually transformed England into an essentially democratic state, the passage of the Bill may be taken as a symbol of Bentham’s triumphant labors, incomplete as this triumph was. For the activity of the hermit philosopher of Queen’s Square, Westminster, had contributed materially to the success of the movement for parliamentary reform. The Radical doctrine, of which he was the philosopher,

continued long after his death to haunt the English political mind. Benthamite philosophy underlay the Chartist agitation for further reform of the House of Commons and the progressive achievement of universal suffrage in the successive bills in 1867 and after. It is no less true that Bentham’s assault on the theory of mixed government and the position of the House of Lords had little real effect even on the intimate circle of his followers until his teachings had been reinforced first by the opposition of that House to the Reform Bill of 1832 and afterwards by the operation of the reformed mixed government. Bentham like Cartwright was converted to democracy late in life. For two-thirds of his life he was not consciously Radical at all. His change to democracy seemed the more revolutionary

because like Godwin he had run the gamut from a youthful Toryism to a strong democratic republicanism. There were two

distinct periods in Bentham’s life: the one, the years before 1789, in which he was an eighteenth-century philosopher in the style of Voltaire or Hume;

the other, the years after 1815, in

which he became the secluded theorist of the reform party known as the Philosophic Radicals or Utilitarians. Bred in the Tory tradition, Bentham was wont to talk in his boyhood of Charles I as the Great Martyr. He was a ‘determined aristocrat’, and as such he had abhorred the agitator Wilkes and sided with George III against the troublesome American colonies. Throughout the first period Bentham was less interested in the political system of a state than in elaborating the portions of jurisprudence that could be used under any form of government. If anything, he would have preferred to live under a Frederick the Great. The enlightened despot gave at least lip service to the

advice of philosophers, and Bentham was quite willing to have his reforms put into effect by royal fiat.*° 80 Kent, op. cit., 178. Halévy, op. cit., 3, 144, 490 if

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Long before he displayed any zeal for providing Radicalism

with a political philosophy, Bentham turned his incisive mind to the rearrangement of English law. To this task he brought the principle of utility, by which a criterion could be established for judging laws, institutions, and actions. From Priestley’s Essay on Government Bentham had learned, he said, that ‘the good and happiness of the members, that is, the majority of the members

of any state, is the great standard by which everything relating to that state must finally be determined’. From Helvétius and Beccaria he took his definition of happiness—it consisted of the presence of pleasure and the absence of pain. Since men always seek pleasure and strive to avoid pain, human conduct could be regulated by the contrivance of institutions that would bring pleasure for social conduct and pain for unsocial conduct. This principle of utility was equally applicable to the field of ethics. John Stuart Mill, who had been brought up in the Benthamite

circle, explained that those who accepted the Greatest Happiness Principle considered actions right in proportion as they tended to promote happiness, wrong as they tended to promote the opposite. By assuming that the principle of utility was the foundation of all just laws and of all moral and political reasoning, Bentham satisfied himself that he had discovered a simple formula for the criticism of all laws and institutions.*! This utilitarianism as such was not the distinguishing characteristic of Bentham. A line of English philosophers reaching back to the seventeenth century had preceded him in expounding the doctrine of utility. What did distinguish him and make him the founder of a school was his attempt to introduce exact method into the discussion of utility and to make legislation, economics, and ethics into sciences. Since the proposition that a legislator should aim for the greatest happiness of the greatest number was too vague for practical use, he tried to set up a ‘felicific calculus’ in order to measure scientifically the pain and pleasure that resulted from given actions. The degree of his success and the difficulties he himself recognized as inherent in the attempt to measure intensity of feelings have been ably discussed by Wesley *1 Bentham, A Fragment on Government, ed. F. C. Montague (London, 1931), 34 (Introduction). Graham Wallas, Men and Ideas (London, 1940), 22 f, John

Stuart

Mill,

Utilitarianism,

Liberty and Representative

Everyman’s Library, 1951), 8. Hazlitt, op. cit., 5.

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Mitchell, but the point to be made here is that in setting for himself this task Bentham revealed himself to be a true product of the Enlightenment. Like Godwin, he aspired to be the Newton of the moral world. At one time he explained that all his writings on the subject of legislation or moral science represented ‘an attempt to extend the experimental method of reasoning from the physical branch to the moral’. His lifelong work had been an attempt to apply to the social sciences the methods already invented for the natural sciences.?? Only after Bentham met the Scottish philosopher James Mill in 1808 and through him the Radicals Place, Burdett, and Cart-

wright, was he converted first to liberalism, then to political Radicalism, and finally to pure democracy. He was psychologically prepared for a change. For long years he had suffered the neglect of his reform schemes by an indifferent monarch and aristocracy. He was particularly embittered by the failure of hiv Panopticon scheme, on which he had lavished time and money for almost thirty years. With his brother Sir Samual Bentham, he had worked out the details of a scheme for prison reform and poor relief, the central feature of which was a wheel-shaped

building called the Panopticon. This proposal he had submitted to the government, only to have the project finally end in his bitter disappointment. In 1811 the Tory philanthropist, William Wilberforce, declared: “Never was any one worse used than Bentham. I have seen the tears running down the cheeks of that strong-minded man through vexation at the pressing importunity of creditors and the insolence of official underlings.’ Soon after this the Government decided against the scheme and awarded £23,000 to Bentham as a compensation.** The Government had not assuaged the disappointed inventor’s feelings. The real value of the Panopticon scheme to him had been his hope of eventually drawing up a penal code for England. As Bentham meditated on the failure of his reform proposals, he began to suspect that his indifference to political forms had been a mistake. He no longer believed that an informed aristocracy would remedy abuses. By its very nature an aristocracy was a close corporation with interests opposed to those of 32 Halévy, op. cit., 6. Wallas, Men and Ideas, 22. W. C. Mitchell, ‘Bentham’s

Felicific Calculus’, Political Science Quarterly,

XX XIII (June 1918), 161 ff.

33 Halévy, 82 ff., 252 f. Wallas, Men and Ideas, 26 ff.

Q

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society. Justly or not, he attributed the defeat of the precious

Panopticon scheme to George III, who he believed had a personal animus towards him dating from an incident in 1789. In that year a series of letters, signed ‘Partizan’, had appeared in the Gazette de Leyde, urging the King of Denmark to rupture his agreements with Russia. Bentham had replied, urging the opposite course, only to learn from his patron Shelburne that ‘Partizan’ was no other than George III. Whether Shelburne was serious or not, Bentham always believed that from sheer spite, arising out of this incident, George III had opposed the Panopticon scheme.?4 It was in this period of increasing disillusionment with the motives of the ruling classes that Bentham met James Mill and the Westminster Radicals.

Through Mill and Place the disappointed law reformer was for the first time brought into the realm of practical politics and convinced that his Greatest Happiness Principle was meaningless unless it led to universal suffrage. In his Plan of Parliamentary Reform, begun about 1809 but not published until 1818, Bentham began the direct application of his theories to the English constitution. Their final and most elaborate exposition formed the amazing Constitutional Code (1827-41), the main work of his last years and the work that excited the warmest admiration in the Benthamite circle, which included such diverse personalities as James Mill and his son John Stuart Mill; Place; John Bowring, Bentham’s literary executor; Joseph Hume, per-

haps the ablest representative of the Utilitarian philosophy in parliament; Albany Fonblanque, leader writer for the Examiner after 1826; and a younger generation, influenced by John Stuart Mill—John Arthur Roebuck, Sir William Molesworth, and Charles Buller. By the time that he began the Constitutional Code,

written in the years from 1818 to 1832, Bentham had become the philosopher of the Radical party, the chief thinker of Radicalism. In the Plan of Parliamentary

Reform Bentham

made it clear

that English mixed government had lost its charm for him. The participation

of monarchy

and

aristocracy

in government,

though endurable, was no longer desirable for the best form of

government. Contenting himself at this time with a demand for the democratic ascendancy of the House of Commons, his abandonment of the maxims of the classical theory was complete 34 Works of Jeremy Bentham, X, 211 f. Halévy, op. cit., 253 f.

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when he stressed his intention of making that House the most powerful of the trinity. He wrote: ‘ Balance? equality? No: | cannot say equality, when what I mean is ascendency. Palsied would be this hand .. . if. . . it were to attempt deception.’ The democratic ascendancy of the House of Commons could be achieved

through Radical reform, the main items of which were universal

suffrage, the secret ballot, annual parliaments, and the exclusion of placemen. For those fearful that democratic ascendancy might mean anarchy, Bentham invoked the example of the United States, where representative democracy as contrasted with the ‘self-acting’ democracy of ancient Greece and Italy was to be found.*® He sharpened his wit at the expense of the concepts of balance and mixture in the English constitution. As for balance, he wrote, leave that to Mother Goose and Mother Blackstone. In a

machine in which forces balanced one another the result was a standstill in operations. Was the perpetual absence of all motion

the desideratum in government, he inquired sarcastically. Was it not known that in the absence of motion, the body politic like the natural died? He was equally disparaging of the mixture. A mixed government, in which power was divided among the one, the few, and the many, was excellence itself contrasted with a

government in which the interests of the many were unconsulted. Where was its excellence, Bentham wished to learn, when con-

trasted with a government in which the interest of the many alone was consulted. To those who claimed that the glory of the constitution lay not in its separate parts but in their mixture, he would reply that the notion was all right so long as the nature of the several interests lay hidden. If their nature was considered, Bentham refused to believe that the mere addition of monarchic and aristocratic elements to the democratic produced a quality as excellent as that belonging to the democratic alone. For what could any man say in behalf of monarchy, he asked scathingly, but that it was legitimate; in behalf of aristocracy, but that property was virtue?*® The strong democratic tendencies of the philosopher’s thought were readily apparent. After the publication of the Plan of Parliamentary Reform his progress towards pure democracy was 35 Works of . . . Bentham, III, 447, 451 ff.

36 [bid., 450 f.

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rapid. By 1821 he was a democrat although the complete expression of these ideas had to await the publication ofhis Constitutional Code and On Houses of Peers and Senates (1830). In his Radicalism not Dangerous, written in 1818-20 to separate the cause of Radical reform from current anti-property doctrines, he asserted that in a mixed government the great body of the people were viewed with contempt and hatred by their rulers. In 1820 he advised the Spanish in vigorous language not to institute a House of Lords, a body always hostile to reform.*? The next year he repudiated both moderate and Radical reform in England because both respected the existence of the monarchy and the House of Lords.** He then turned to the intensive preparation of a Constztutional Code, which had such typical Benthamite objectives as completing the legal development of society and covering the world with republics. Bentham wrote the constitution of a democratic state, in which a single-house legislature, elected according to the tenets of

Radical reform, was omnipotent.

Any limitation on the com-

petence of the people’s representative body contradicted the Greatest Happiness Principle. There was, accordingly, no provision for a second chamber to limit the powers granted to the single house by the sovereign people. He seized the opportunity to discuss the advisability of second chambers, whether heredi-

tary as in England or popular as in the United States, and considered the matter in some detail. The interests of a second chamber must either coincide or not coincide with those of the majority of the peovle. If its interests differed, its existence was incompatible with the Greatest Happiness Principle and a violation of the principle of utility.*® There was, of course, no hope that the House of Lords could

pass the test of utility. Bentham’s condemnation was unequivocal. The good effects of an hereditary House were none; its evil

effects, many. No advantage having any reference to the Greatest Happiness Principle could be cited in favor of a House of Lords. In point of fact, any benefit accruing from

such an institution

went either to the king or to the aristocracy through increased opportunities for legalized depredation. Other charges against

this House were that it served to screen the king from the just 37 [bid., 620; VIII, 468. 88 Tbid., IX, 144f,. 39 Ibid., IX, 114. Halévy, op. cit., 407.

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resentment of the people while giving the monarchy stability. One conclusion flowed from these facts: a House of Lords was a decided benefit to the monarch, not to the people. As far as the happiness of the people was concerned, they would have more to gain from a pack of wolves loosed on the countryside. In time the wolves would be killed, and their skins were useful. The same

could not be said for the peers. “The Lords, though each of them would do more mischief than many wolves, would not be killed,’ he wrote, ‘and if they were killed, their skins could not be put to any use.’4° Despite his admiration for the American government he was equally ruthless in his dismissal of an elected second chamber. His reasons were manifold. There would be delay, the expense of remuneration if its members expected to be paid, and the everpresent possibility that the will of the minority might frustrate the will of the majority. Other potential evils included the appearance of a ‘sinister interest’ and the danger of a second chamber, jealous of the first, clogging legislation. Even if there

were no separate ‘sinister interest’, increased complexity in government made popular observation of its operation difficult, allowing interests different from the majority to flourish. Bentham also expressed fear that complicated institutions might facilitate corruption, which existed even in a representative democracy, while at the same time preventing the taking of counteracting

measures.

Nor, unlike Cartwright,

did he have

any use for a second chamber of elders, in which more wisdom supposedly lurked. Thus under his Constitutional Code, the supreme legislative authority was undivided. It was lodged, in Bentham’s

words,

‘in one

body, composed

of representatives

located [elected] by the supreme constitutive [the people ]’.* The same arguments hostile to second chambers and the same pure democracy appeared in his On Houses of Peers and Senates.*? Short of a revolution, Bentham scarcely conceived that his Constitutional Code would be immediately applicable to England. With an unusual modesty he admitted his inability to estimate the amount of suffering required to pass from a monarchy to a democracy. The old assurance was manifested, however, in the 40 Works of .. . Bentham, IX, 114.

41 Tbid., 114 ff. 42 Ibid., IV, 421 ff., 449.

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further remark that when the change came, his Constitutional

Code would provide a directive. Just how unlikely it was that the writings of his later years would influence many readers outside

the charmed circle of Benthamites can be gathered from Place’s

caustic comment to James Mill in 1817 on the crabbed, illegible

style employed by the master in his Codification Papers. These were written in a manner to require laborious study of each sentence and each paragraph, he complained. ‘Most men think it trouble enough to study the subject... ,” Place continued, ‘without being obliged at the same time to make a study of the phraseology of the author.’ Yet Bentham would not have altered his style, as Mill said in reply, if all the world preached to him till doomsday.#8 The effect of Bentham’s broadside against the classical theory on the Benthamites themselves was attested by a long passage in John Arthur Roebuck’s Pamphlets for the People (1835). The latter was seeking to demonstrate that the two Houses, rendered

mutually independent by the Reform Bill, could no longer be fitted into one machine of government. He invoked Bentham’s authority to support his contention that mixed government was a mirage. ‘In other words, then,’ wrote Roebuck, ‘the English Constitution, that far-famed affair of balances and checks, has been shown to be, what BENTHAM long since proved it, an admirable machine for standing still. That happy mixture of powers, that due amalgamation of Monarchy, Aristocracy, and

Democracy . . . is now seen to be a chimera.’44 Roebuck was writing after a session in which the House of Lords had badly mutilated the Municipal Reform Bill as well as a series of bills for Ireland. The Benthamites responded with a series of proposals for dealing with the House of Lords. On September 2nd, 1835, Roebuck, who would have preferred, with Place, the abolition of the House of Lords, had announced that

he would bring forward in the next session a motion House a suspensive veto only in legislation.4® The Joseph Hume also gave notice that he would move next session for a select committee to examine the

to give that same night early in the constitution

48 Ibid., 450; IX, 2. Wallas, Life of Francis Place, 84 f.

44 Pamphlets for the People, No. 15, p. 13. 4° Parliamentary Place, 346.

Debates,

third series, XXX,

238

1268 f. Wallas,

Life of Francis

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and condition of the House of Lords.4® In two articles, both published in January 1836, James Mill, who, since Bentham’s death

had become

the patriarch of the Philosophic Radicals, sug-

gested the unseating of the bishops and a suspensive veto for the House of Lords. He differed from Roebuck in that he would have allowed the House of Lords the opportunity to consider a bill twice (Roebuck suggested once) before it could become law without the assent of that House.4? James Mill’s proposal was embodied in the Parliament Act of 1911. In the interval between the end of the session in 1835 and the appearance of Mill’s articles early in 1836 the great Irish leader,

Daniel O’Connell, who had corresponded at some length with Bentham, embarked on a tour of northern England and Scotland

for the express purpose of winning popular support to his plan to make the House of Lords a smaller, elected House. In 1829, at

a meeting of the East London Catholic Association, O’Connell had avowed himself an admirer of the hereditary branch of the government along with being a Radical reformer; but his views

had definitely changed.*® O’Connell’s plan was at once in high favor with Albany Fonblanque, whose Utilitarian Examiner was the chief organ of high-class Radicalism; and the wealthy Philosophic Radical, Sir William Molesworth, at a dinner in

Birmingham announced to his audience that the greatest thanks were due to O’Connell for making thousands aware of the need to reform the House of Lords. Early in 1837 a more conservative Philosophic Radical, Charles Buller, strongly recommended

the removal of the bishops from the House of Lords: “The answer of the Radicals was—they would carry the Bishops to the door of the House of Lords.’4® Meantime, in the pages of the Utilitarian London

Review John Stuart Mill was crusading for

the reform of the House of Lords although he did not broach his 46 Parliamentary Debates, third series, XXX,

1269 f. Still Hume disavowed the

desire to see the House of Lords abolished. 47 London

Review

(1835-36),

I], 297.

Westminster

Review,

XXIV,

78 f. For

authorship of these articles, see Bain, op. cit., 399 and Halévy, History of the English People, Epilogue, Vol. II (London, 1934), 312. 48 Albany Fonblanque, England under Seven Administrations (London, 1837), III, 233, 265 ff. Annual Register (1835), 367 ff.; (1836), 299 f. 49 Pamphlets for the People, No. 34, p. 8. Fonblanque, op. cit., III, 265, 323. Parliamentary Debates, third series, XXXVI, 625-7. For a statement that Buller

sought reform within the constitution, see The Greville Diary, ed. Philip Whitwell Wilson

(New York,

Se),

NE, 3KO)

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own plan until 1846 when he proposed as the model to be followed the French Senate, whose members were appointed for life. The complete expression of his ideas on second chambers had to await the publication of his Representative Government in 1861558

Enough has been stated to suggest that the seeds of democracy planted before 1832 by Bentham within his own circle had by 1835 under the pressure of events blossomed into a full-blown Utilitarian attack upon the powers of the House of Lords. Indeed, Place, Roebuck, and Molesworth expressed frankly democratic views although Roebuck lived to regret his youthful exuberance. °*

It should be emphasized Priestley, Paine, Godwin,

that the democratic Cartwright,

writings of

and Bentham

had had,

nevertheless, surprisingly little effect before 1832 on the supremacy of the theory of mixed government. Whatever there

was of democratic ideology in England on the eve of the Reform Bill was due in part to Bentham but primarily to Paine. The latter’s influence was evident in Carlile’s activities at the Rotunda and in such working-class publications as a new Republican, this one edited by the working-class leader and later Chartist, Henry Hetherington. His republicanism was evident in the announcement heralding the appearance of his new paper; the list of his objectives included ‘Extirpation of the Fiend Aristocracy; Establishment of a Republic, viz. Democracy by Representatives elected by Universal Suffrage; Extinction of hereditary offices, titles, and distinctions;

Abolition

of the unnatural

and unjust

law of primogeniture. . . .>2 All this was pure Paine and no doubt representative of a considerable portion of lower-class sentiment.

Yet the only direct link between the democratic attack upon the House of Lords before 1832 and the plethora of proposals for dealing with that House that afterwards appeared seems to have been provided, not by Paine, but by the teachings of Bentham. 50 London Review, Il, 272-7. J. S. Mill, Dissertations and Discussions (Boston, 1865), II, 159 f. J. S. Mill, Utilitarianism, Liberty, and Representative Government, 436 ff.

ne OF Molesworth’s expressed desire to abolish the House of Lords, see Parliamentary Debates, third series, XXX, 1436. Life and Letters of John Arthur Roebuck, ed. R. E. Leader (London, 1897), 338 f. °2'S. Maccoby, English Radicalism 1832-52 (London, 1935), 32 f. Butler, op.

cit., 302 ff.

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Even so, the proposals of his followers formed only part of the whole; and the conclusion seems

inescapable that there was, in

fact, very little relationship between the earlier democratic attack and the agitation against the House of Lords that marked the 1830s after the Reform Bill became law. It was not a democratic tradition with its roots before 1832 that had introduced the disillusionment with the classical theory and the House of Lords to the degree that it did exist after 1832. While it would be a mistake to overestimate the amount of the immediate disillusionment, it was still large by comparison with that existing before 1832. For the first time since the seventeenth century some popular doubt had been created about mixed government

and the House of Lords by the spectacle of that House banding with the King to oppose the reform of the House of Commons. That doubt was reinforced after the Reform Bill had become law by the difficulties encountered by the Whig Government in operating the machinery of reformed mixed government. For the Whig Government, relying for its support on the reformed House of Commons, found its efforts continually thwarted by an

angry House of Lords, primarily Tory in its complexion because of Pitt’s numerous creations. Three main facts suggest that the agitation against the House of Lords after 1832 was traceable to the manner in which the Reform Bill passed and to its subsequent effects rather than to the establishment of any considerable amount of support before 1832 for the democratic dogma of Paine and company. First of all, on the eve of the Reform Bill the democratic dogma had made

no converts among the ruling classes. For the Whig Government that prepared and passed the Reform Bill, despite the allegations of the Tory opposition, were not democrats but firm believers in mixed government; and they passed their Reform

Bill in the fond conviction that they were strengthening that mixed government. Secondly, the abundance and variety of proposals affecting the House of Lords that appeared in the short space of approximately five years after 1832, as contrasted with the relative scarcity and essential sameness of the proposals scattered over approximately forty years before 1832 suggest a change in the Englishman’s view of his government. Finally, contemporary thinkers who noticed the change in popular sentiment towards the English constitution and the House of 241

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Lords were practically unanimous in dating the change from the passage of the Reform Bill. For an elaboration of the first of these points it is advisable to turn to the preparation and passage of the Reform Bill by which the aristocratic Lord Grey and his Government unwittingly destroyed mixed government. On March Ist, 1831, Lord John Russell introduced in the House

of Commons the new reform measure, the provisions of which so startled the Tories that they could only cheer in hopeless derision. The Whig plan, as introduced and subsequently modified,

provided for the total disenfranchisement of 55 boroughs and for taking 1 member from 30 more; for giving 2 members to 22 boroughs and a single member to 20 more; for establishing within the boroughs a uniform £10 householder franchise ; and, finally, for adding members to certain counties while extending

the county franchise beyond the 40s. freeholder. Despite the wide scope of the reform there were no provisions for universal manhood suffrage, annual or triennial parliaments, or the ballot—all items sought at one time or another by prominent leaders of the movement for parliamentary reform who would have reformed the House of Commons in the spirit of mixed government. It was around the disenfranchisement clauses and the borough qualifications that the battle raged most fiercely in Parliament. From the first almost to the last the House of Lords opposed the Bill that would destroy the influence of individual peers over the membership of the House of Commons. The passage of the Great Reform Bill was stormy. The first Bill was wrecked in the House of Commons sitting as a committee of the whole. Dissolution and an election followed, and the

Grey Government was returned with a large majority. Thus the feeling of the country was ascertained to be in favor of the measure. Much the same Bill repassed the House of Commons, only to be rejected in the House of Lords by a majority of fortyone. Despite a warning from Grey the bishops had voted, twenty-one to two, in the opposition. In the fall of 1831 the House of Lords faced a new unpopularity that was aggravated by the concomitant abolition of the French hereditary peerage by the Casimir-Périer Ministry. The bishops faced an anti-clerical hostility unequalled since the days of the Long Parliament as the

cry for their exclusion arose not only from working men but also 24:2

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from such moderate middle-class publications as the Times. William IV prorogued Parliament so that the Grey Ministry

might reintroduce its Bill in a new session. Before a third Bill reached the House of Lords, the King began to waver; and the Grey Government decided to resign. In the critical days of May Wellington tried to form a Tory administration. He failed. Grey returned. And William IV capitulated. Before the House of Lords could be swamped with new creations, the Tory peers abandoned their opposition. Enough of them stayed away on the

third reading for the Bill to pass the House and become law a few days later, on June 7th, 1832. During and after the passage of the Reform Bill no one was more grimly aware of what was happening to mixed govern-

ment than the two Tory leaders in the House of Commons and House of Lords respectively, Sir Robert Peel and the Duke of Wellington. Peel sounded a curiously prophetic note during the debate on the reform for Ireland. One no longer asked what the House of Lords would do, he reported on March 24th, 1831,

because it was being increasingly assumed that its opposition was useless to a Bill that extended popular privileges and conformed to the wishes of the majority of the people. Since the trend would continue in the future, Peel forecast the increasing strength of the House of Commons as countervailing forces grew weaker.*? After the passage of the Reform Bill Wellington described to

a high Tory friend, Lord Camden (son of the more famous Lord Camden), what had occurred. No reflecting man who looked at the transactions of that time could fail to see, wrote the Tory leader, ‘that the Reform Bill was carried against the intentions

of the King and excepting the Ministers the unanimous wish of the House of Lords—that is to say by the Ministers and the

House of Commons against the King and the House of Lords’. Wellington considered that the House of Commons remained the only strong branch of the government while neither the King nor the House of Lords was independent or capable of

rendering any real service to the state.*4 53 Parliamentary

Debates,

third series,

III, 906.

Butler,

op. cit., 236, 296 f.

George M. Trevelyan, Lord Grey of the Reform Bill (London, 1920), 307 f., 316, 346.

64 Feiling, The Second Tory Party, Appendix VIII, 403. The letter was dated December 8th, 1832.

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In view of the revolutionary effects of the Great Reform Bill it seems extraordinary that the Bill should have been carried, as Wellington had said, by the Whig Government and the House

of Commons against the will of the King and the House of Lords. For the Grey Government included some of the most aristocratic family names

of England—Russell,

Richmond,

Stanley,

Lansdowne, and Ponsonby—while the Cabinet possessed amongst themselves more acreage than any previous cabinet. Four years before the introduction of the Reform Bill Grey had declared in the House of Lords that if there should come a contest between the peers and the people, ‘my part is taken, and with that order to which I belong I will stand or fall’.*° Yet the explanation is relatively simple if the prevailing constitutional theory is remembered. The Grey Government believed in 1831-2 that by the reform of the House of Commons the English government would be returned to a pristine purity with the corruptions imposed by the passage of time destroyed; and secure in this faith, it passed the Reform Bill. As Fonblanque wrote later, had Grey taken a juster view of the character and circumstances

of the House

of Lords, he would

have altered its composition even before he altered the constitution of the House of Commons. ‘The improvement of the Commons is small,’ wrote the journalist, “but, small as it is, it gives

a momentum, against which the Lords cannot bear up.’>* In a word, when Grey had voluntarily reformed the House of Commons, he had involuntarily destroyed mixed government. One week after Grey formed his Cabinet he had assigned the task of framing the Reform Bill to his son-in-law Lord Durham. He was

to be aided

by Lord John Russell,

whose

consistent

record in the cause of parliamentary reform made him the leading Whig reformer in the House of Commons. A few days later it was agreed that a Committee of Four to draw up the Bill should include Durham

and Russell and, in addition, the First

Lord of the Admiralty, Sir James Graham (who was supposed at the time to have taken directions throughout from the Whig

leader in the House of Commons, Viscount Althorp), and Lord

Duncannon, First Commissioner of Woods and Forests, who as

one of the two Government

whips could be trusted to know

55 Butler, op. cit., 54, 152.

56 Fonblanque, op. cit., II, 369.

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what the party would approve. The final scheme of reform was the work of these four men, guided throughout by the instructions of Lord Grey that ‘the outline of a measure should be prepared, large enough to satisfy public opinion and to afford sure ground of resistance to further innovation’ but maintaining the essential character of the constitution. During the debates on the Bill Grey in the House of Lords and Althorp in the House of Commons declared that it was meant to be a permanent settlement of a great constitutional question.®’ Because Lord Durham

was, by general consensus, the most

advanced reformer in the Grey Government, his constitutional ideas will be reviewed at considerable length. If it can be shown that he considered reform of the House of Commons as compatible with the existence of mixed government by king, lords, and commons, it would seem fair to assume that the remainder of

the Committee of Four agreed on the compatibility of the Reform Bill with the English constitution as traditionally conceived. A biographer of Lord Durham declared that the main interest of his career lay in his determination to destroy oligarchic government (so far a very good statement), indeed ‘to establish democracy (although he abstained from employing a word that was so odious at that time to the mass of Englishmen)’.®® A truer picture of the nobleman’s place in the movement for parliamentary reform could be gleaned by a comparison of his reform ideas with those of other leaders of the reform movement. He might be compared with Cartwright. Durham’s advocacy of the ballot, household suffrage, and triennial parliaments,

while more advanced than the program embodied in the Reform Bill and the views of other members of the Whig Government, still lagged some distance behind Cartwright’s advocacy of the ballot, universal manhood suffrage, and annual parliaments while the ‘Old Gentleman’ still accepted mixed government. When Cartwright became a democrat, he, of course, left Durham

even further behind. In brief, perspective on the democracy of the leaders of the reform movement can be gained only by reference to the prevailing constitutional theory of mixed govern5? Butler, op. cit., 172-4. Trevelyan, op. cit., 262. Lord John Russell, Letter to the Electors of Stroud, on the Principles of the Reform Act (London, second edition,

1839), 5, 24-7. 58 Chester New, Lord Durham: A Biography of John George Lambton First Earl of Durham (Oxford, 1929), 24.

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ment: Durham was a ‘mixed’ democrat; he was not a ‘pure’ or ‘unmixed’ democrat. And a consideration of the careers of such reformers as Priestley, Cartwright, and Bentham, who had origin-

ally sought their objectives within the framework of mixed government, only to cast it aside, illuminates the difference. As early as April 17th, 1821, Durham brought forward his own plan for parliamentary reform in order, as he said, that the people might be fairly and adequately represented in the legislature and the balance of the constitution restored. Although Blackstone had seen in the legislature the people acting as a check upon the nobility, the nobility upon the crown, and the crown upon both, Durham regretted that ‘the practice according to modern innovations and corruptions is widely different from

this theory. In the enumeration of these checks, we must entirely omit that of the people: for they are not represented in the legislature.’ So he had presented his plan.*® Ten years later in the debates on the Reform Bill he peremptorily denied that the Bill represented any danger to the existing constitution, saying, ‘It

involves no departure whatever from the principles on which the Constitution was established in 1688.’ In fact, the Reform Bill

represented the final settlement of that great work, which in this respect was avowedly left defective.®° In 1834 the nobleman professed publicly to see in the English government of king, lords, and commons ‘as great a degree of liberty as ever existed in any other country of the world, and as much rational liberty as any people under the sun can or ought to enjoy’.®! If by the late 1830s Durham was exasperated enough by the conduct of the House of Lords to announce as his wish (as did Russell) that the hereditary House should be leavened continually by fresh creations, he also announced his adamant opposition to organic change in that House and particularly to an elective

House of Lords.*? During the passage of the Reform Bill he had urged the creation of peers to carry that Bill as a strictly consti59 Parliamentary Debates, new series, V, 365-7, 383. 6° Speeches of the Earl of Durham, on Reform of Parliament

100 f., 105.

(London,

1835),

61 Speeches . . . delivered at Public Meetings in Scotland and Newcastle (London, fifth edition, 1835), 9. His reform program consisted, he said, of household suffrage, the ballot, and triennial parliaments. Ibid., 41, 113. *? Stuart J. Reid, Life and Letters of the First Earl of Durham (London, 1906), ie 13-16, Spencer Walpole, The Life of Lord John Russell (London, 1889), I,

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tutional measure. In a long letter to Earl Grey, Durham wrote that the King had recommended, the House of Commons had adopted, and the country had sanctioned a measure, which the House of Lords alone seemed determined to oppose. In urging

his remedy, he spoke the language of mixed government. That harmony which ought to exist among the three branches of government had been interrupted and the confidence of the people shaken by the opposition of the House of Lords. This situation could not be remedied by the acquiescence of the other two branches in the objectives of one branch alone. Only the alternative

remained,

of creation

he wrote,

‘the adoption

of

which, in order to produce that harmony in the three powers of the State, by the exercise of a recognized admitted prerogative, can be no violation of the Constitution, but is in strict accordance

with its fundamental

principles’. The creation of peers by a so his argument ran, would go far to re-

Whig Government,

adjust the balance within the House of Lords, which had been upset by Pitt’s large Tory creations. Such an action would tend not to the destruction of the House of Lords but to its preservations? Finally, what Durham always declared his political creed to be in domestic politics he outlined in a speech after the passage of the Reform Bill. He wished to rally Englishmen around the throne, the House

of Lords, the House

of Commons,

and the

established church, he said; and for this purpose he preferred the preservation of old institutions. While some would preserve the advantages of these institutions for the few, he was anxious to

throw them open to all who had the ability to comprehend them and the vigor to defend them. The ruling principle of his political life, Durham

continued,

was

to strive

‘to bring all classes,

especially the middle and the lower within the pale of the true, not the spurious Constitution’ so that those classes would feel that ‘whilst the Crown enjoyed its prerogatives, and the upper classes their honours, they also were vested with privileges

most valuable to them’.*4 Such views as these led Albany Fonblanque to declare on Durham’s death that he ‘was not a Reformer of the Republican cast. He was sincerely attached to the Monarchy, but he occupied as it were the frontier-line of 63 Reid, op. cit., I, 273 f.

64 [bid., 220 f:

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Constitutional reform’.®® Everything in Durham’s career suggests that Fonblanque was right. In summary, there is every reason to think that the letter Sir James Graham

wrote to Russell in 1859 contained an accurate

description of what the Committee of Four and the Whig Government had tried to do in 1831-2. Graham wrote that in 1832 they had ‘based the representation on property and intelligence and carefully maintained the balance of power, so blending the influence of land and numbers in the election of the representative body that collision with the Crown and an independent House of Lords might be avoided’. It was a question of balance and proportion, he emphasized.®® And Place, writing in 1836, was confident that Grey and his colleagues had supposed their measure to reform the House of Commons to be compatible with the maintenance of the powers and privileges of the House of Lords.®” In the debates on the Reform Bill both the Whig Government and the Tory opposition claimed to be upholding the mixed constitution

of king, lords,

and

commons.

Each

accused

the

other of innovation and with seeking to destroy the constitution. The Whigs insisted that reform was essential to its preservation while the Tories were equally certain that a reformed House of Commons was incompatible with the maintenance of mixed government. The Tories proved to be the better prophets. Even before the Bill reached the House of Lords Grey was announcing his intention of proving when the proper time came that the plan did not provide for a new constitution but a return to the principle of the old, ‘from which very material deviations had occurred, from lapse of time, and the introduction of abuses’. The objective of the Reform Bill was to establish the elective franchise on the true principles of the constitution. Again in October 1831, he told his fellow peers that there was nothing in °° The Life and Labours of Albany Fonblanque, ed. Edward Barrington de Fonblanque (London, 1874), 81. °° K. B. Smellie, 4 Hundred Years of English Government (New York, 1937), 45. A similar comment appeared in Life and Letters of Sir James Graham, ed. Charles Stuart Parker (London, 1907), II, 70. For Russell’s moderation, see Parliamentary Debates, first series, XLI,

1098; second series, XV, 659; his Essay

on the History of the English Government and Constitution (London, 1865), Introduction, xxiii ff., and Walpole,

Life, I, 283, 289 f.

s7 Butler, op. cit. 2or-.

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the measure that was not founded on the acknowledged principles of the English constitution, nothing that could not be adopted without full safety to the rights and privileges of all orders of the state, and particularly of the House of Lords. The intentions of the arrangements in Schedules A and B, by which the redistribution of representation was provided, were, in the

Prime Minister’s words, ‘to infuse new health and vigour into the Constitution, to lop off decayed branches, and to engraft on

the parent stock new and healthful shoots, which shall bring forth good fruits. . . .” The English constitution, which had been the admiration of mankind, would have to be restored to its

original purity.*8 Sir Robert Peel answered for the Tory party when he announced unequivocally that the proposed reform was not a restoration of the constitution and that the House of Commons as at present constituted was neither a usurpation nor a novelty. He would remind the Grey Government that the constitution of a government was a matter of extreme delicacy and importance ; it was a complex machine, not to be judged in its isolated parts but as a whole. While he could remember speeches by Burke and Canning in praise of the English constitution, Peel took special pleasure in recalling a speech made by Russell in December 1819, in which the Whig leader had stated his strong un-

willingness to throw the English constitution into the lottery of constitutions. To those who emphasized the defects in the English constitution, the Tory leader opposed the unsuccessful efforts of governments in Spain, France, Portugal, and Belgium

to copy it—‘to adjust the nice balance between the conflicting elements of royal, aristocratical, and popular power’. Another time he wanted to learn what proof the Government could advance that a popular assembly based on the principle of representation contained in this Bill could coexist with a monarchy and an hereditary House of Lords.®® Despite the attempt of the Tories to pin the democratic label on the Whigs and their reform measure both parties were in harmony in their basic appreciation of England’s mixed government. They differed on the need for reform in the House of Commons and the type of reform, if any, that should be adopted. 88 Parliamentary Debates, third series, II, 1256; third series, VII, 934, 939, 959,

69 Ibid., II, 1839-41, 1351; IV, 881.

a

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Without belittling that difference one should notice that there was agreement on the acceptance of the classical theory of the constitution, made so familiar by the eighteenth-century writings of Montesquieu, Blackstone, and De Lolme. Despite an ance of clashing constitutional theories in the debates Reform Bill the Whigs and the Tories, in the main, did agree on the fundamental proposition that the English

appearon the not disform of

mixed government, as traditionally described, was the best possible form of government. The democratic writings of Priestley, Paine, Godwin,

Cartwright, and Bentham found no

echo within the walls of Parliament in 1831-2. In so far as there was a conflict of constitutional theories it arose from the Whigs’ acceptance of the classical theory and from the advocacy by an extreme element of the Tory party of the new form of the classical theory that had been popularized by Stewart and Jeffrey in the opening decade of the nineteenth century. It will be remembered that this new interpretation of the English constitution had begun in the Whig camp, only to end in the Tory. Its main tenets were two: (1) that the House of Commons was the strongest branch of the government because the crown and peerage, in return for the exercise of their influence there, had allowed the House of Commons

to become the

arena for the discussion and settlement of the most important questions and (2) that the presence of the nominees of the crown and peerage in the House of Commons meant the addition of monarchic and aristocratic elements to the democratic to produce there the mixture of the English constitution. A reform of the House of Commons must consequently destroy the mixed government. This interpretation of the classical theory was utilized during the debates by such important Tories as Croker, a long-time Secretary of the Admiralty during Tory administration; Sir Robert Inglis; Sir James Scarlett, Attorney-General under Canning; and the wealthy financier, Alexander Baring,

perhaps best known as Lord Ashburton.7°

The Whigs were ready with their answer. Grey thought it singular, when the regulations of the House of Commons positively declared the interference of peers in elections unconstitutional,

to

hear

that

the

safety

of the

English

%0 Tbid., II, 1126 f.; III, 108-5; VII, 158, 218; XI, 475 f.

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depended on the right of the aristocracy to appoint members of the House of Commons.

John Campbell, the future chancellor,

mentioned the new doctrine recently brought forward ‘not to be found in Blackstone or De Lolme—forming no part of that constitution praised by Montesquieu and other foreign writers of great name—that this House is the arena in which the three great powers of the state, are to struggle, and that in particular the Peerage are to retain a mercenary band of political gladiators or condottieri, who are here to fight their battle’. This doctrine

could only bring the peers into contempt. Collision between the two branches, as must occur occasionally according to the clas-

sical theory, had happened before in the best of times. And Althorp spoke the sense of his party when he bluntly confessed to being one of those theorists who thought the House of Commons should represent the people.7! It was this view that prevailed.

The years after 1831—2, in which the Whig Ministry prepared and finally succeeded

in passing theGreat-Reform Bill, were

marked by a definite change in the Englishman’s view of his mixed government and the House of Lords. Whereas before the passage of the Bill the democratic attack of Paine and company, scattered over approximately forty years, had elicited comparatively little response, in the following decade there developed a criticism of the classical theory and the powers of the House of Lords, more severe and widespread than in any comparable period since the seventeenth-century Civil Wars. For example, Peel told the guests at a public dinner in Glasgow in 1837 that he had heard speeches of late, delivered by those whose special duty it was to uphold the English constitution, which made him unwilling to entrust its defense to their official exertions. Lord Melbourne’s

Whig

Government,

he hinted

broadly,

would

reform the House of Lords if its members could decide on a scheme of reform. “There they are, hard at work ransacking the pigeon-holes, in which are deposited plans for reforming the House of Lords,’ Peel declared scornfully. They should save themselves the trouble of comparison, for the effect would be the same ‘whether in the place of the House of Lords there shall be a council of Ancients, or a council of five hundred or a new body 71 [bid., II, 1142; IV, 119, 826 f.

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elected by the Peers, or a body elected by the heads of families, or whether the Peers shall have a suspensive veto.’7? How novel the questioning of the classical theory as well as the agitation against the House of Lords in the 1830s was considered by the contemporary observer can be seen in the writings of Benthamites like Roebuck. He dated public criticism of the House of Lords and the English government from the passage of the Reform

Bill. Until lately, he wrote in 1835, to doubt the

services of the House of Lords was worse than doubting the truth of the Thirty-Nine Articles. For a man could be a good Christian without squaring his belief to the precise number of thirty-nine points of faith, but ‘it was impossible for him to be a good citizen unless he conceived an irresponsible and hereditary body necessary to a perfect political constitution’.7? During the same year Roebuck stated in the House of Commons that ever since the passage of the Reform Bill the two Houses had faced each other in open hostility, a situation attributable, he considered, to the Reform

Ministry and particularly to Lord John

Russell, who under the spell of mixed government had reformed

the House of Commons. Unfortunately, Russell had not shared the knowledge of Roebuck and others (presumably Bentham) that the interests of the House of Commons and the House of Lords were basically incompatible.74 In 1836 the Benthamite admitted reluctantly that a poll of the people would reveal a majority favoring the retention of the House of Lords. But he thought that some doubt had entered the popular mind since the Reform Bill. “So rapid a change in the feelings of a people, respecting any of their institutions, never took place,’ he was certain, ‘as that which has taken place with respect to the House of Lords in this country, within the last five years.’75 While the Philosophic Radicals as a group were ready with proposals for making the House of Lords responsible to the "2 4 Correct Report of the Speeches delivered by . . . Sir Robert Peel on his Inauguration into the Office of Lord Rector of the University of Glasgow (London, second edition, 1837), 65 f. For a further idea of the variety of proposals made after 1832, see two articles, one in the Edinburgh Review, LXIV

(1836), 243-6, and the other

in the Westminster Review, XXIII (1835), 509 ff. 78 Pamphlets for the People, No. 9, p. 10. See the comment of Francis Place in Wallas, Life, 322 f., and also the Westminster Review, XXIII, 512. *4 Parliamentary Debates, third series, XXX, 11683 f.

” Tbid., XXXIV,

1103. Molesworth also emphasized the newness of the agita-

tion against the authority of the House of Lords. Ibid., XXX,

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people, the Whig Government, headed after 1834 by Lord Melbourne, could only vacillate in the face of its difficulties with that

House. Their dilemma after the long and trying session over municipal reform was aptly described by Albany Fonblanque. His words can be understood only in the light of prevailing constitutional theory. He was describing the respective Tory, Radical, and Whig views of the House

of Lords.

The Tories

were perfectly consistent: they approved of the institution of the House of Lords and its workings. In their disapproval the Radicals were equally consistent. But the poor, confused Whigs —and this description has point—were standing between the two. They had one foot on the sea and one on the shore: for ‘they agree with the Radicals as to the mischievous working of the institution; and they agree with the Tories as to the inviolability of its principle’.’® The confusion of the Whigs was the natural result of a transition virtually complete in the English government by 1837. The Reform Bill of 1832 had made absolute a situation which earlier had only been qualified. In the years from the accession of George III to the accession of Victoria a public opinion, representative of the middle classes, had been growing up outside the landed interest and continually expanding in its influence

through increasing trade and industry. The growth of this public opinion had strengthened the ministry against the monarchy and the House of Commons against the House of Lords. The Reform Bill gave a new impulse to the process, adding new strength to both the ministry and the House of Commons. With the growing power of public opinion had come a gradually increased dependence of the House of Commons upon the electorate, the ministry upon the House of Commons,

the king upon his ministers, and

the House of Commons upon the ministers because of the royal power of dissolution. The process was also aided by the growth of the modern two-party system. The end result would be, under a middle-class Queen, a middle-class constitution providing not for a mixed government but for a cabinet system of government based upon the supremacy of the House of Com-

mons, this democratic ascendancy, as Bentham had called it, being exercised

through

the party system.

Time

would

be

needed to complete the process, but the maxims of mixed govern76 Fonblanque, England under Seven Administrations, III, 330 f.

253

THE

DEMOCRATIC

ATTACK

ment contained in the celebrated pages of Blackstone’s Commentaries would yield to the maxims of cabinet government contained in the equally celebrated pages of Walter Bagehot’s English Constitution (1867) and these in turn to the maxims found in Sidney Low’s perceptive Governance ofEngland (1904). The full effects of the Reform Bill of 1832 on the position of the House of Lords and mixed government were slowed by one circumstance. Such statesmen as Lords Russell, Palmerston, and

Derby, who had grown up under the old régime (mixed government), were in charge of the English government until the second installment of reform in 1867. Nevertheless, there were

those in the late 1830s and early 1840s who realized what had occurred. While it is comparatively well known that the Duke of Wellington claimed to have presided over the change, perhaps less has been said about the views of Peel, Lord Durham, and the colonial reformers. In 1846 Wellington wrote to Derby that ever since he had retired from office in 1830, he had acted as

moderator of the House of Lords, objecting to all extreme and violent measures and supporting the Government on important measures, always seeking to avoid a collision between the two Houses. He had thus prevailed with his fellow peers to absent themselves during the last stages of the Reform Bill; and he had

similarly

advised

a moderate

course

on

such controversial

matters as Irish tithes, Irish corporations, and the unification of

the two Canadas.77 An equally realistic appraisal of the position in which the House of Lords found itself after the reform of the House of Commons was taken by Peel when on May 11th, 1835, he made

a speech at the Merchant Tailors’ Hall, in which, despite a tendency to speak in the language of mixed government, he revealed an awareness of the basic principle of modern cabinet government. No administration could enjoy power, he told his Tory audience, unless it possessed the confidence of the House of Commons. So important was this House that mixed government was endangered unless Tory principles regained their proper influence in it. While the powers of the king and the

House of Lords were still useful parts of the mixed government,

these powers should be used only with care. ‘I warn you,’ he 7 Walter

Bagehot,

The

English

Constitution

(Boston,

163 ff. Russell, Letter to the Electors of Stroud, 40 f.

254

rev.

edition,

1873),

ON

THE

HOUSE

OF

LORDS

RENEWED

said, ‘that you must not place an exclusive reliance either upon

the prerogative of the Crown, or on the influence or authority of the House of Lords, or upon the conjoined effect of the prerogative of the Crown and the authority of the House of Lords.’ Their powers, though constitutionally potent in occasionally controlling the acts or encroachments of the House of Commons, must not be strained. “You must not now depend upon them as bulwarks which are impassable, and which can be committed without apprehension to the storm of passion, the struggle of ambition, and the appetite for change,’ Peel continued. For ‘the government of the country,’ he emphasized, ‘must, after all,

be mainly conducted with the concurrence and through the immediate agency of the House of Commons.’ It would be a vain notion to conceive of governing against the majority of the House of Commons.”® Peel’s policy, sarcastically analyzed by the young Benjamin Disraeli as the ‘conservation of the independence of the House of Lords, provided it is not asserted’,’® was more constructive than Disraeli’s scornful paraphrase suggested. Charles Buller, writing

after the completion of the Durham Report (1839), found in the Tory leader’s counsel to his party the principle of responsible government.®® On this principle Buller was something of an authority. He and another Benthamite colonial reformer, Edward Gibbon Wakefield, had helped Lord Durham formulate his

recommendations for the introduction of responsible government

into the British North

American

colonies;

that is, the

introduction of the English cabinet system as it was operating in England after 1832. Durham proposed that the governor of a united Canada should take as his advisers only those men who

were acceptable to the majority in the popular Assembly. In essence, the executive, representing the king of England, should have a cabinet responsible to the Canadian Assembly, whose advice he was

bound

to accept, unless the matter had been

reserved for settlement in England.*? 78 Speech of . . . Sir Robert Peel . . . delivered at . . . Merchant Tailors’ Hall (London, 1835), 10 ff. 79 W. F. Monypenny and G. E. Buckle, The Life of Benjamin Disraeli (New York, 1929), I, 303 f. Disraeli favored the more forceful policy of Lord Lyndhurst. 80 FE. M. Wrong, Charles Buller and Responsible Government (Oxford, 1926), 90. 81 Chester New, author of a standard biography of Lord Durham, concluded that

the latter adopted the idea of responsible government for Canada at the suggestion of Robert

Baldwin,

a reformer

in Upper

255

Canada.

Prior to coming

to Canada,

THE

DEMOCRATIC

ATTACK

Thus the circle was complete. In 1791 Pitt and his Government had sought to give Canada a transcript of English mixed government, and by 1839 Durham was proposing to add responsible government to that representative (mixed) government. The next year Buller published his Responsible Government for Colonies, where he expounded and elaborated Durham’s views on the extension of the English parliamentary system to the colonies. In 1844 appeared Wakefield’s Sir Charles Metcalfe in Canada, in which he anticipated, to a remarkable degree and by

more than twenty years, Walter Bagehot’s classic analysis of the workings of English cabinet government in the middle of the nineteenth century. Bagehot’s English Constitution has generally been considered the pioneer work in the field. Wakefield’s analysis of how the English cabinet system worked will be considered because it brings into stark relief the emancipation of the colonial reformers, in approximately a decade after the passage of the Reform Bill, from the traditional conception of the English government as a mixture of monarchy, aristocracy, and democracy. The English constitution, according to Wakefield, had only two main features: the notion of mini-

sterial responsiblity for the actions of the king and the admitted practical ascendancy of the House of Commons. On this latter point Wakefield’s language is of interest in view of what had happened to the theory of mixed government. “To all practical intents,’ he wrote, ‘the House of Commons,

though in theory

but the third estate of the realm, has become the representative embodiment of the nation as a whole.’8? The House of Lords, the

special representative of the aristocracy, had become a council of revision, less amenable to popular control and with more show

of privilege but with less real power in the state; and the king, secure in the responsibility of his ministers, retained the prerogatives necessary for the administration of affairs. That the ministers were responsible to the House of Commons, rather than to the king, Wakefield made perfectly clear. 82 Wrong,

op. cit., 188.

Durham, despite his experience with the reformed English government,

is said to

have had no idea of advocating the central idea of his famous Report on the Affairs of British North America (1839). In view of his continued attachment to the theory of mixed government after 1832, this view of Durham’s conversion is probably correct. Lord Durham, 411 ff.

256

ON

THE

HOUSE

OF

LORDS

RENEWED

A House of Commons, armed with the power of supply and with the power of withholding the yearly Militia Bill, could make the government of the country impossible. If the ministers could not shape a course, capable of inspiring the confidence of the House of Commons, they had the alternative of persuading the king to dissolve parliament or of resigning. If the new House proved adverse, there the struggle ended. Wakefield was equally ex-

plicit about the new role of the House of Lords. So long as a ministry possessed the confidence of the House of Commons, the hereditary House could only embarrass the Government. For the House of Lords could not long veto legislation against the determined will of the House of Commons, backed by public opinion. If need be, the House of Lords could be forced into line by the royal power of creating peers.®* Thus in the decade after Lord Grey and his Government had sought to restore the English constitution to a former golden age (that existed only in the minds of parliamentary reformers) the classical theory was beginning to yield to a new constitu-

tional theory reflecting the gradual appearance of a cabinet system of government resting upon the ascendancy of the House AANA

ALOT

the House a Lords. remained the t sole 3remnant of the, ey

government that had not been fitted into. the new. machinery.of “government. By. asserting its authority. during. the nineteenth

Governments to take counteraction, ‘the House of Lords retained

itslegislative |veto legally unimpaired until the Parliament Act of 1911 limited the power of that House to delay legislation to two years, a period reduced to one year. by.the Attlee. Government in 1949. In the long period of the supremacy of the classical theory the Housese of Lords, stipported by”“public opinion,

had readily parried the thrusts of the democrats Priestley,Paine, Godwin, Cartwright, and Bentham... But...public..opinion. had _ shifted” a

‘would Continue to _shift, _Afterthe passing of the

Réform Bill of 1832 the spread of industrialism,..the,extensions

of the~franchise;~and™ the~ ‘perfecting of cabinet government could-onty-mear™ that the position” ‘of the;‘aristocratic. House.of Lords’would be rendered increasingly |untenable. 8 Tbid., 185, 187 ff. Wakefield’s article, which Wrong reprinted, originally appeared in Fisher’s Colonial Magazine, 1, No. 7 (July 1844).

Roy

APPENDICES

I. The extracts reprinted here from pp. 17-22 of His Majesties Answer to the XIX. Propositions of Both Houses of Parliament are from a London edition in the possession of the Humanities Research Center, University of Texas, Austin, Texas.

II. The text of A Political Catechism reprinted here is from an original copy in the possession of the Humanities Research Center, University of Texas, Austin, Texas.

259

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are resolved not to quit them, nor to subvert (though in a Parliamentary way) the ancient, equall, happy, well-poised and never-enough commended Constitution of the Government of this Kingdom. . There being three kindes of Government amongst men, Absolute Monarchy, Aristocracy and Democracy, and all these having their particular conveniences and inconveniencies. The experience and wisdom of your Ancestors hath so moulded this out of a mixture of these,

as to give to this Kingdom (as far as humane Prudence can provide) the conveniencies of all three, without the inconveniences of any one, as long as the Balance hangs even between the three Estates, and they run joyntly on in their proper Chanell (begetting Verdure and Fertility in the Meadows on both sides) and the overflowing of either on either side raise no deluge or Inundation. The ill of absolute Monarchy is Tyranny, the ill of Aristocracy is Faction and Division, the ills of Democracy are Tumults, Violence and Licentiousnesse. The good of Monarchy is the uniting a Nation under one Head to resist Invasion from abroad, and Insurrection at home: The good of Aristocracy is the Conjunction of Counsell in the ablest Persons of a State for the publike benefit: The good of Democracy is Liberty, and the Courage and Industry which Liberty begetts. In this Kingdom the Laws are joyntly made by a King, by a House of Peers, and by a House of Commons chosen by the People, all having free Votes and particular Priviledges: The Government according to these Laws

is trusted

Peace, of making

of War

and

Peers, of chusing Officers and Councellours

to the King, Power

of Treaties

for

State, Judges for Law, Commanders for Forts and Castles, giving Com-

missions for raising men to make War abroad, or to prevent or provide against Invasions or Insurrections at home, benefit of Confiscations,

power of pardoning, and some more of the like kinde are placed in the King. And this kinde of regulated Monarchy having this power to preserve that Authority, without which it would be disabled to preserve the Laws in their Force, and the Subjects in their liberties and proprieties, is intended to draw to him sucha Respect and Relation from the great Ones, as may hinder the ills of Division and Faction, and such a Fear and Reverence from the people, as may hinder Tumults, Violence and Licenciousnesse. Again, that the Prince may not make use

263

APPENDIX

I:

‘HIS

MAJESTIES

ANSWER

TO

THE

XIX

of this high and perpetuall power to the hurt of those for whose good he hath it, and make use of the name of Publique Necessitie for the gain of his private Favourites and Followers, to the detriment of his People, the House of Commons (an excellent Conserver of Liberty, but never intended for any share in Government, or the chusing of

them that should govern) is solely intrusted with the first Propositions concerning the Leavies of Moneys (which is the sinews as well of Peace as War) and the impeaching of those, who for their own ends, though countenanced by any surreptitiously gotten Command of the King, have violated that Law, which he is bound (when he knows it) to protect, and to the protection of which they were bound to advise him, at least not to serve him in the Contrary. And the Lords being trusted with a Judicatorie power,

are an excellent Screen and Bank

between the Prince and People, to assist each against any Incroachments of the other, and by just Judgements to preserve that Law, which

ought to be the Rule of every one of the three. . . Since therefore the Power Legally placed in both Houses is more then sufficient to prevent and restrain the power of Tyranny, and without the power which is now asked from Us We shall not be able to discharge that Trust which is the end of Monarchy, since this would be a totall Subversion of the Fundamentall Laws, and that excellent

Constitution of this Kingdom, which hath made this Nation so many yeers both Famous and Happy to a great degree of Envie; since to the power of punishing (which is already in your hands according to Law) if the power of Preferring be added, We shall have nothing left for Us, but to look on; since the incroaching of one of these Estates upon the power of the other is unhappy in the effects both to them and all the rest; since this power of at most a joynt Government in Us with Our Councellors, (or rather Our Guardians) will return Us to the worst kinde of Minority, and make Us Despicable both at home and abroad, and beget eternall Factions and Dissentions (as destructive to publike Happinesse as War) both in the chosen, and the Houses that chuse them, and the people who chuse the Chusers; since so new a power will undoubtedly intoxicate persons who were not born to it, and beget not onely Divisions among them as equals, but in them contempt of Us as become an equall to them, and Insolence and Injustice towards Our people,

as now

so

much

their inferiors,

which

will

be the more

grievous unto them, as suffering from those who were so lately of a neerer degree to themselves, and being to have redresse onely from those that placed them, and fearing they may be inclined to preserve what they have made, both out of kindenesse and policie; since all great changes are extreamly inconvenient, and almost infallibly beget yet greater Changes, which beget yet greater Inconveniencies.

Since as great an one in the Church must follow this of the Kingdom; 264

PROPOSITIONS

OF

BOTH

HOUSES

OF

PARLIAMENT’

Since the second Estate would in all probability follow the Fate of the first, and by some of the same turbulent spirits Jealousies would be

soon raised against them, and the like Propositions for reconciliation of Differences would be then sent to them, as they now have joyned to send to Us, till (all Power being vested in the House of Commons, and

their with some time

number making them incapable of transacting Affairs of State the necessary Secrecie and expedition; those being retrusted to close Committee) at last the Common people (who in the mean must be flattered, and to whom Licence must be given in all their

wilde humours, how contrary soever to established Law, or their own

reall Good) discover this Arcanum Imperit, That all this was done by them, but not for them, grow weary of Journey-work, and set up for

themselves, call Parity and Independence, Liberty; devour that Estate which had devoured the rest; Destroy all Rights and Proprieties, all

distinctions of Families and Merit; And by this means this splendid and excellently distinguished form of Government end in a dark equall Chaos of Confusion, and the long Line of Our many noble Ancestors in a Jack Cade, or a Wat Tyler. For all these Reasons to all these demands Our Answer is, Nolumus

Leges Angliae mutari. . . .

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Serving to instruct those that have made the

Protestation concerning the power and priviledges of Parliament; taken out of his Majesties An-

swer to the 19 Propositions. Question. How many Simple kinds are there of Civill Government of States, and Common-wealths? Answer. There are three kinds of Government among men; Absolute Monarchy, Aristocracy, and Democracy, page, 17. Qu. 2. Are there any of these Simple Formes perfect? Ans. All these have their particular Conveniences and Inconveniences, page 17. Observ. 1. Experience hath taught men everywhere to acknowledge this, and accordingly there never was long (if at all) continued any of these Forms exactly Simple; though some have more seemed such then others. Also in all mixtures there is commonly some one of these Forms more conspicuous then the rest, from whence such a particular Government hath its denomination. Q. 3. Is the State of England governed by any one of these kinds simply? A. The Experience and Wisdom of your Ancestors hath moulded this [Government] out of a mixture of these, page 18. Q. 4. What kind of government then is that of the State of England?

A*® Regulated Monarchy, page 18. Observ.

1. If this Government

be a mixture

of all these, and a

Regulated Monarchy; then it is a fond thing with us to talk of an Absolute Monarchy, and what an Absolute Monarch is, or may doe.

And it is only the language of Flattery that holds such Discourses. 2. It need not be counted a Solecisme (as some would perswade us) to speak of Free Subjects in a Monarchy, such a Monarchy as ours is. 3. If this Government be a mixture of all three, then the House of

Commons, the Representative Body of the People, must needs be allowed a share in Government (some at least) which yet is denyed, page 19.

269 S*

APPENDIX

II

4. If this Government be a mixture, then is not the Government according to these Lawes, Solely Trusted to the King, as seems to be

affirmed, page 18.

5. If the Government be Regulated, why do men tell us that the King is above all Law? for it is by Lawes that he is Regulated. 6. If the King bee Regulated by the Law, then is the King Accountable to the Law, and not to God only, as men would make us beleeve. 7. If the Monarchy or Regall Authority it selfe bee Regulated, then whatsoever is done by the King, undeniably without and beyond the limits of that Regulation, is not Regall Authority. And therefore 8. To resist the Notorious Transgressions of that Regulation, is no

resisting of Regall Authority. And 9. It is so farre from being a Resisting of the Ordinance of God, that it is not so much as Resisting the Ordinance of man. Q. 5. By whom was this government framed in this sort? or who is to be accounted the Immediate Efficient of the Constitution thereof? A. The Experience and Wisdom of your Ancestors hath so moulded this, page 18. Observ.

1. If our Ancestors were the moulders of this Government,

then the King hath not his power, Solely, or Immediately, by Divine

Right. 2. Much lesse hath he his Power or Authority by Right of Conquest. 3. But the Immediate Originall of it was from the People. And if so, Then— 4. In questioned cases, the King is to Produce his Grant (for he hath no more then what was granted) and not the People to shew a Reservation; For all is presumed to be Reserved, which cannot be proved to be granted away. Q. 6. Is this Regulated and mixt Monarchy, as good as an Absolute Monarchy, or better, or worse? A. This

Excellent

Constitution

of this Kingdom,

(the Ancient,

Equall, Happy, Well-poysed, and never enough Commended Constitution of the Government of this Kingdom, page 17.) hath made this Nation so many years both famous and Happy, and to a great Degree of Envy, page 20. Q. 7. How comes it to passe that this Constitution is so Excellent? A. The Experience and Wisdom of your Ancestors hath so moulded this, out of a mixture of these, as to give to this Kingdom (as farre as Humane Prudence can provide) the Conveniences of all three, without the Inconvenience of any one, page 18. Observ. 1. Then those that would place in the King, an Absolute and Arbitrary Power to do what he List, are Destructive to the Nations Happinesse, and Enemies to the Kingdom. 2. If this Mixture cause this happinesse, then it is not the Greatnesse 270

“A POLITICAL

CATECHISM’

of the Kings Power over his People, but the Restraint of that Power that hath made this Kingdom famous and Happy; for other Kings have Power as large, but not so much restrained; which Largenesse of their

Power hath Raised those Kings indeed, (but not their Kingdoms) to a great degree of Envy. 3. Hence

we discern, that it is Possible for Kings to envy their

Peoples Happinesse, because the largenesse of the Peoples Happinesse depends much upon the Restraint of the Kings Exorbitant Power. 4, If this Mixture and well-Poised Constitution have raised this Kingdom to so Great a Degree of Envy, no marvell if Jesuiticall Councells be Active to overthrow this Happy Constitution. Q. 8. What is the Conveniency or Good of Monarchy? A. The

Uniting of a Nation under one Head, to Resist Invasion

from abroad, and Insurrection at home, page 18. Obs. 1. What Pernicious Councellours are they then to a Monarch that advise him to being in from abroad German Horse, or an Irish Army, or a Fleet of Danes to invade this Kingdom; or to imploy Dun-

keirk Ships to seaze upon his Merchants, which 1s so formally contrary to the proper Good or End of Monarchy it self?

2. Or are they better or worse that Advise him to Authorize, or even permit any in his Name to Plunder, Rob, Spoil, Imprison any of his Subjects, whom they have found peaceably in their houses, or at work in the Fields, and have not disobeyed any Legall Command of his? Q. 9. What is the Il of Absolute Monarchy? or the Inconvenience to which it is Lyable? A. The Ill of Absolute Monarchy, is Tyranny, page 18.

Obs. 1. Therefore the more Absolute a Monarch is, the more prone to be a Tyrant. 2. Therefore also it is safer to Restrain the King of some Power to do us good, then to grant him too much opportunity to do us hurt; and the Danger is greater to the People in Enlarging the Kings Power, then in restraining it somewhat. Q. 10. What is the Good or Conveniency of Aristocracy? A. The good of Aristocracy is the Conjunction of Councells in the Ablest Persons of a State for publike Benefit, page 18. Obs. 1. Then surely it is for the Publike Benefit of the State, that this Conjunction of Councells in Parliament should be made use of more then once in thirteen or fourteen years; and the Law for a Trienniall Parliament (if there were not others before for the holding of a Parliament yearly) was a most necessary Law, as also that it should not be dissolved for fifty dayes. 2. It was not then Intended in the Constitution of this Government, that the King in the Greatest Matters of Importance for Publike BeneDrie

APPENDIX

II

fit, should only hear what they say, and then follow it or reject it Meerly at his owne Pleasure; for this may be as well done in an Abso-

lute Monarchy. 3. Neither is it agreeable to the Constitution of this Kingdom, to withdraw the King from affording his Presence to his Great Councell of State, that so the private Counsels of Private men may be preferred before those whom the Law and the Constitution counts the Ablest to Judge of Publike Benefit.

of the Kingdom,

Q. 11. What is the III of Aristocracy, or the Inconvenience to which it is Lyable? A. The Il of Aristocracy is Faction and Division, page 18. Obs. What shall we say then to those Private Councellors that have abused the King, by perswading him first to withdraw himself from his Parliament, and then to call away the Members of both Houses, when yet without the Consent of both Houses this Parliament cannot be Adjourned to another Place, much lesse Dissolved? Yet if all would have come away at call, had it not been Dissolved for want of Legall

Numbers Remaining? And what Greater Faction or Division can there be, then such as Divide between King and Parliament, and between the

House and their Members? Are not they most Pernicious Instruments, that make Monarchie it self, (whose end is to unite as was said before) thus far guilty of Faction and Division? Q. 12. What is the Good, or Convenience of Democracy?

A. The good of Democracy is Liberty, and the courage which Liberty begets, page 18. Obs. 1. Then the more Liberties are Encroached upon, People will be rendred Cowardly and Poor, as may be seen by comparing the Valour and Riches of this Nation

and Industry the more the plain enough in Q. Eliza-

beths dayes, with what hath been of Late Dayes.

2. The King himself, when once his Subjects by having lost their Liberties,

shall lose withall their Courages,

will prove

the greatest

Looser; for then his Kingdom will be an easie Prey to any Forrain Invader, or even to a home bred Usurper, that could gather any sudden Strength, and would Promise more Libertie.

Q. 13. What is the Ill of Democracy, or the Inconvenience to which it is Lyable? A. The Ills of Democracy nesse, page 18.

are Tumults, Violence, and Licentious-

Obs. If these be the Evils for which the Peoples Liberty ought to be

Restrained by the Mixture in this Government, then the Restraint of

the Liberty should be measured according to the Exigency of these Evils, and so much Liberty need onely be Restrained as is sufficient for the Prevention of these Evils. Q. 14. What

is the mixture of this Kingdom,

212

which gives it the

“A POLITICAL Conveniences

CATECHISM’

of all the three forementioned

without the Inconveniences A. In this Kingdom the house of Peeres, and by a All having free Votes, and Obs. 1. Whereas there

kinds of Government,

of any one. Lawes are Joyntly made by a King, by a house of Commons chosen by the people: particular priviledges, page 18. hath been great Question made by many

what is meant by the Power and Priviledges of Parliament, mentioned

in the Protestation, which hath been so generally made thorowout the Kingdom? There is no Reason to doubt but those things which the King grants afterward, to be the particular Priviledge of each House, and of both, are their certain Priviledges according to Law, and the

Constitution of the Kingdom; and to the maintaining of them everyone that hath made the Protestation is most strictly bound, without peradventure or shift. 2. That the Priviledges which the King challenges to Himself, are to be yeelded to, onely so far forth as they are consistent with the Acknowledged Priviledges of the two Houses; because the Monarchy

being Acknowledged to be a Regulated Monarchy, and the Government mixt of Aristocracy and Democracy, as well as Monarchy; it is

the Priviledges of the two Houses of Parliament that makes the mixture, and so they must Regulate and Interpret the Priviledges of the King, and not the Priviledges of the King Regulate or Interpret theirs, save onely to the maintaining still the Regall Dignitie, and the Succession according to Laws. Q. 15. What Priviledges doth the King challenge to himself? A. The Government according to these Lawes is trusted to the King: power of treaties of warre and peace, of making Peeres, of choosing Officers, and Councellors for State, Judges for Law, Commanders for

Forts and Castles; giving Commissions for raising men to make Warre abroad, or to prevent or provide against Invasions and Insurrections at home, Benefit of Confiscations, power of pardoning, and some other of like kind are placed in the King, page 18.

Obs. 1. That all these are ordinarily in the King, Experience and Custom Teaches, even those that Know not the Law by reading; but by what hath been noted before, and follows after, it is to be under-

stood only so, as not to prejudice the Priviledges of the Houses of Parliament,

specially

in cases

of Necessitie,

(of which

hereafter.)

Also— 2. It is acknowledged here, that the Government, Trusted, is to be according to the Lawes, and so all these Things are not Absolutely in the King; as for instance, Pardons, the Law denies Power of Pardoning wilfull Murther; And Benefit of some Confiscations belongs to some

Private Lords of Mannours. 3. If Government onely according to Law be trusted to the King then 273

APPENDIX

II

to Resist Notorious Illegall Violences is not to Resist the Kings Authority.

"0. 16. For what end is this Authority trusted to the King, and Placed in him? A. For our Subjects sake these rights are vested in us, page 17. The Prince may not make use of this high and perpetuall power to the hurt of those for whose good he hath it, page 19. Obs. 1. Then the Good of the Subjects is ever to be preferred before the Monarchicall Greatnesse of the King (the End is ever more considerable then the Means) Salus Populi is suprema Lex. 2. Whosoever counsels the King to any Thing against the good of his Subjects, is the Kings Enemy as well as the Common-wealths, by Attempting to turn him from that which is the end of his Authoritie. Q. 17. To what purpose especially are the priviledges of the house of Commons and the house of Peeres? A. That the Prince may not make use of this High and perpetuall power to the hurt of those for whose good he hath it: and make use of the name of publike Necessity for the gain of his private Favourites and Followers, etc., page 19.

Obs. 1. The law then supposes, that such Cases may fall out, though it then Charge the Blame upon those Favorites and Followers, and not upon the King (as we shall see by and by.) 2. We need not wonder then why Private Favorites and Followers are such Enemies to Parliaments and their Priviledges, which are on purpose to hinder their gains: Of which also more anon. 3. The two Houses are by the Law it seems, to be Trusted, when

they Declare, that the Power is made use of for the Hurt of the People; and the Name of Publike Necessitie made use of for the Gain of Private Favorites and Followers, and the like.

Q. 18. What are the special priviledges of the House of Commons towards this? A. The House of Commons an Excellent conserver of Liberty—is solely intrusted with the first propositions concerning the Leavies of Moneys which is the Sinnews as well of peace as of warre, etc., page 19. Obs. 1. It seems then the House of Commons is presumed to be more carefull for the Subjects Liberties, then either the King, or the

House of Peers. 2. Then it must needs be strange for any to conceive (as the Kings Declarations would Perswade) that the House of Commons would Fight against and Subvert the Libertie and Propriety of the Subject, and the Kings Favorites and Followers Fight for them, and Protect them. 3. Then no Moneys may be Levyed, neither for Peace nor Warre,

no not under Pretence of Publike Necessity, (as Ship money and 274

“A POLITICAL

CATECHISM’

Monopolies were) without the House of Commons first propound and Grant it. 4. If the House of Commons be an Excellent Conserver of Libertie,

it must Needs have some Power in some Cases to Levie Mony even without the Kings consent; or else it will be utterly unpossible to conserve Libertie at all. Of which likewise more anon. Q. 19. But if the Kings Private Favorites and Followers have actually perswaded him to any Thing against the Laws and Liberties of the Subject with what further Power and Priviledge is the House of Commons Intrusted toward the Conserving of Liberty? A. With the Impeaching of those, who for their own Ends though countenanced by any surreptitiously-gotten command of the King, have violated that Law, which he is bound

(when he knowes it) to

protect; and to the protection of which they were bound to advise him, at least not to serve him in the contrary, page 19. Obs. 1. Then it is no Excuse to any that Violate the Laws, that they serve the King in it. 2. The Law counts all Commands from the King, which are any way contrary to the Law, Surreptitiously-Gotten. 3. Then the Parliament speaks according to the Law, when they constantly lay the Blame of all violations upon the Kings Favorites and Followers, and their getting Surreptitiously Commands from him, and not upon the King himself. 4, No Command of the King is to hinder the Commons from Impeaching such as have violated the Law. 5. The King is bound not to Protect any of his Followers and Favorites against the Commons Impeachment of them; because he Knows and Affirms, that he is bound to Protect the Laws, and that this

is the Law, that the Commons are to Impeach such. Qu. 20. What is the speciall Priviledge of the House of Peers in the former Case of such Favorites and Followers of the Kings as are Impeached by the Commons? and so to decide all Matters in Questions between the King and the People.

A. The Lords being trusted with a Judicatory power are an Excellent Screen and Bank between the Prince and the people, to Assist each against any Encroachments of the other, and by just Judgments to preserve that Law which ought to be the Rule of every one of the three, page 19. Qu. 21. But have the two Houses Power to put their judgements into Execution, as well as to Impeach and Judge?

A. The Law, page Obs. 1. Followers

power of punishment is already in your hands according to 20. Then again it is no wonder that the Kings Favorites and hate Parliaments, (who not onely Hinder their Gain, but 275

APPENDIX

II

have Power to punish them) when they have violated the Laws. 2. Then the Lords (and much more the two Houses together) are supreme Judges of all matters in Difference between the King and the People, and have Power to Prevent all the Kings Encroachments upon the People, as well as the Peoples upon him. 3. Then the King is Bound not to Protect any whom the Lords upon the Impeachment of the Commons, have Judged Delinquents; For he hath granted that he is bound to Protect the Law, and that

according to Law the Power of Punishing (even of his Favourites and Followers, ’forespoken of) is in their hands, and they cannot punish them, so long as he Protects them. 4. Then the Law Allows them as the Supreme Judicatory (even that which must be a Skreen between the King and the People, and

Assist the People against the Kings Encroachments, and punish the Kings Favorites and Followers, though countenanced by Surreptitiously-Gotten Commands from the King) a Power to bring such as they have Judged, (or are to Judge) to Condign Punishment, which is granted to all Inferiour Judges in their Circuits and Jurisdictions. 5. Then if those Delinquents get the King to Protect them,

or

surreptiously get Commands of him, to Raise Arms to Shelter themselves against the Judgement of the two Houses; the two Houses have

Power by the Law to Raise not onely the Posse Comitatus of those Counties where such Delinquents are, to apprehend them, but also the Posse Regni, the Power of the whole Kingdom if need be; or else the Power of Punishment is not in their hands according to Law, and it would be safer contemning and scorning and opposing the highest Judicatory, the Parliament, then any Inferiour Court, a Judge of Assize,

or the like: and they that could get Commands to Violate the Law before, would easily get Protection against the Parliament when they are Questioned, if the Parliament had no Power to Raise Arms to suppresse them. Qu. 22. But if there be an Attempt or Danger, that the Kings Favorites and Followers go about to change this Regulated Monarchy into an Arbitrary Government, and so into a Tyrannie; is there Authoritie in the Houses sufficient according to what was fore mentioned to remedy this? A. Power Legally Placed in Both Houses is more then sufficient to Prevent and Restrain the power of Tyrannie, page 20. Obs. 1. Then at least what ever Power is Necessary to Prevent or Restrain the Power of Tyrannie is confessed to be Legally placed in

both Houses; for else there is not Power sufficient, much lesse, more

then sufficient. 2. Then it is Lawfull for the two Houses to Raise Arms to defend

themselves in case an Army be Raised against them, for else they have 276

“A POLITICAL

CATECHISM’

not Power sufficient to restrain the Power of Tyrannie: There is no Greater Attempt of Tyrannie then to Raise Arms against the Houses of Parliament, and there is no way to Restrain this Tyrannie, but by Raising Arms in their own Defence: Lesse then this cannot be sufficient.

3. If a Legall Power be placed in them, not onely to Restrain, but prevent the Power of Tyrannie, then they are the Legall Judges, when there is danger of Tyrannie; and they have Legall Power to Com-

mand their judgement to be obeyed, for Prevention as well as Restraint of Tyrannie. 4. Then it is Lawfull for them to provide for their own and the Kingdoms safetie, and they have Legall Power to command the People to this purpose; not onely when Arms are Actually Raised against them, but when they Discern, and accordingly Declare a Preparation made towards it: for if they let alone altogether the Exercise of their Power, till Arms are Actually Raised against them; they may in all likelihood finde it too late, not onely to Prevent, but even to Restrain the Power of Tyrannie. 5. Then they have Legall Power in such Times of Danger, to put into safe hands, such Forts, Ports, Magazines, Ships, and Power of the Militia, as are Intended, or likely to be Intended, to Introduce a

Tyranny; for else they cannot have Power sufficient to Prevent or Restrain the Power of Tyrannie. 6. Then they have Legall Power to Levie Moneys, Arms, Horse, Ammunitions, upon the Subjects, in such cases of Danger, even with-

out or against the Kings Consent; for it cannot be imagined that in such cases when the Kings Favourites and Followers have gotten Commands from him, to Protect them in their Delinquencies, and Attempts to Introduce Tyrannie, that ever he will consent to levies of Moneys against those Favourites and Followers of his, or to the Raising Arms against them, specially he being still in their hands, and among them, and not with his Parliament; and without such Levies of

Moneys, etc. it is not possible for the two Houses of Parliament to Prevent or Restraine sufficiently the Power of Tyrannie. 7. They that have made the Protestation, to maintain and defend the Power and Priviledges of Parliament, may see in all these Things (Acknowledged by the King, and clearly Following from his Acknowledgements) what is that Power, and what are Priviledges of Parliament, which they have so solemnly in the Presence of Almighty God Vowed, Promised and Protested to maintain, etc. 8. And finally, since the two Houses of Parliament have so often and fully Declared their Intentions in settling the Militia, securing Hull and the Magazine there, and the Navie at Sea, with the Ports and

Forts, and afterward in Raising Arms under the Command of the Earl 277

APPENDIX

II

of Essex, and last of all, Levying Moneys by voluntary Contributions and Assessements; they have onely used that Legall Power which is in

them for the Punishment of Delinquents, and for the Prevention and Restraint of the Power of Tyrannie, of all which they are the Legall Judges; and all the Subjects of this Kingdom are bound by the Laws to obey them herein, and those doubly bound

that have made

the late

Protestation.

That the Reader may the better discern how the Answers here applied do agree with the words of his Majesties Answer to the 19 Propositions, I have here transcribed so much of it as concerns this particular. Page 17. We call God to witnesse, that as for our Subjects sake these Rights are vested in Us, so for their sakes (as well as for our own) we are resolved not to quit them nor to subvert (though in a parliamentary way) the ancient, equall, happy well-poysed, and neverenough-commended Constitution of the government of this kingdom. There being three kinds of government amongst men, Absolute Monarchy, Aristocracy, and Democracy, and all these having their particular conveniences and inconveniences. Page 18. The experience and wisdom of your Ancestors hath so moulded this out of a mixture of these, as to give to this Kingdom (as farre as humane prudence can provide) the conveniences of all three, without the inconveniences of any one, as long as the Ballance hangs even between the three Estates, and they run joyntly on in their proper channell (begetting Verdure and Fertility in the meadows on both sides) and the over-flowing of either on either side raise no Deluge or Inundation. The Ill of Absolute Monarchy is Tyranny, The Ill of Aristocracy is Faction and Division, The Ils of Democracy are Tumults, Violence, and Licentiousnesse: The good of Monarchy is the

Uniting a Nation under one Head, to Resist Invasion from abroad, and Insurrection at home: The good of Aristocracy is the conjunction of Councell in the Ablest persons of a State for the publike benefit: The good of Democracy is Liberty, and the courage and industry which Liberty begets. In this Kingdom the Laws are jointly made by a King, by a house of Peeres, and by a house of Commons chosen by the people, all having free Votes and particular priviledges. The government according to these Laws is trusted to the King, power of Treaties of war and peace, of making Peeres, of chusing Officers and Counsellours for State, Judges for Law, Commanders

for Forts and Castles, giving Comis-

sions for raising men to make war abroad, or to prevent and provide against Invasions or Insurrections at home, benefit of Confiscations,

278

“A POLITICAL

CATECHISM’

power of pardoning, and some more of the like kinde are placed in the King.—Again, Page 19. that the Prince may not make use of this high and perpetuall power to the hurt of those for whose good he hath it, and make use of the name of publike Necessity for the gain of his private Favorites and Followers to the detriment of his people; the house of Commons (an excellent Conserver of Liberty, but never intended for any share in Government, or the chusing of them that should govern) is solely intrusted with the first Propositions concerning the Leavies of moneys (which is the sinews as well of peace as warre, )and the impeaching of those who for their own ends, though countenanced by any surreptitiously-gotten command of the King, have violated that Law, which he is bound (when he knows it) to protect, and to the protection of which they were bound to advise him, at least not to serve him to the contrary: and the Lords being trusted with a Judicatory power, are an excellent screen and bank between the

Prince and people, to assist each against any Incroachments of the other, and by just judgements to preserve that Law which ought to be the Rule of every one of the three.— Page 20. Since therefore the Power Legally placed in both Houses is more then sufficient to prevent and restrain the power of Tyrannie: —since this would be a totall Subversion of the Fundamentall Laws, and that excellent Constitution of this Kingdom, which hath made this

Nation so many years both Famous and Happy to a great degree of envy; since to the power of punishing (which is already in your hands according to Law) if—since the encroaching of one of these Estates upon the power of the other is unhappy in the effects both to them and all the rest.— Page 22. Our answer is, Nolumus Leges Angliae mutart. But this We promise, that We will be as carefull of preserving the Lawes in what is supposed to concern wholly our Subjects, as in what most concerns Our self: For indeed We professe to believe that the preservation of every Law concerns Us, those of Obedience being not Secure,

when those of protection are Violated.

FINIS.

279

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——A

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With an annexed State of Additional

295

INDEX

Acherley, Roger, 6, 122 amalgamation scheme, 55, 58, 60

Glorious Revolution, 113-14, 115— 16, 115 n5?; commented on in the late

Answer to the Nineteen Propositions. See Appendix I; historical importance

seventeenth and early eighteenth cen-

of the Answer, 5-6; comparative neglect by modern historians, 6—7; contents discussed, 5, 24-6; prepared

elaborate theories of mixed government in the eighteenth century, 123;

by constitutional Royalists, 26-8; Sir John Colepeper’s debt to Poly-

99-100; gives encouragement to the idea of popular sovereignty, 28 n%4,

turies, 121-2;

bius, 26; receives wide publicity in the name of Charles I, 5, 32, 32 n43,

33; the two Houses seek to prevent

indirectly a basis for the

and the use of the word Constitution,

38-9,

109,

mentioned

109 n43, 115-16,

116 n58;

74 n42, 86, 89, 92-93 n12,

115 n®?, 180. See also the theory of

publicity, 33; ‘errors’ in the Answer, 27-8, 28 n*4 27n*4, 31 n*1, 41; the

mixed

two Houses allegedly abandon claim

tion

to control the royal councillors, 28—9, 28 n%6; too late to prevent war, 29; may have fostered war, 30-1, 30 n®®,

Catechism,

government,

the

theory

of

mixed monarchy, Charles I’s definiof the

three

estates,

Treatise

Political

of Monarchie,

Narrative and Reasons, Sacheverell Committee, Somers Committee

41; encourages rise of the theory of

Aquinas, Thomas, 11

mixed government, 23, 26; source of

Aristotle, 1, 10, 14, 15, 17 n18, 21, 24 Atterbury, Francis, 142 Aylmer, John, 13, 14, 16-18, 22-3

the theory of mixed monarchy that appeared in 1642, 29-30, 31; Charles

I’s definition

of the three

estates, 30-1; discussed in the House

of Commons

of the Long

Parlia-

Bagehot, Walter, 129, 254 Barlow, Joel, 206

appointed to

Baxter, Richard, interprets a key point

reply to the preamble, 33; relationship to constitutional theory during

in the Answer to the Nineteen Propositions, 25 n®?; reports spread of

the civil-war period, 3443, 44-5, 51-3; and the Political Catechism, 37-40, 41, 106, 112; recalled during

Leveller sentiment in the army, 53; denies that republicanism was part of

ment, 33; a committee

the Interregnum by Bulstrode Whitelocke, 63-4, by Lord Saye and Sele, 65-6, by Richard Baxter, 73-4, by Sir Francis Nethersole, 32-3; at the

Restoration by Robert Sheringham, 82, and by Sir Henry Vane, 83-5;

invoked by the Shaftesbury Whigs during the Danby impeachment and the

Exclusion

Crisis,

92-111;

University, 111-13; familiar to the authors of the Bill of Rights, 113-23;

in

the

literature

of

74n"; Hampden,

friendship 97-8,

with 108,

Richard with

the

Somers family, 119; repeats word Constitution, 99; unpopularity of his Holy Commonwealth after the Restoration, 107-8; invokes Answer during the Exclusion Crisis, 108-9; may have attacked tenet of the Political

and

the Judgment and Decree of Oxford current

the ‘Good Old Cause,’ 73; relies on the Answer to refute Vane, 73-4, 84; answered by Marchamont Needham,

the

297

Catechism,

109,

109 n4?;

and

The

Judgment and Decree of the University of Oxford, 112

INDEX 32, 33, 37, 38, 40, 41, 42, 44, 45, 47, 49, 56, 57, 58, 59, 60, 61, 66, 71, 73, 80, 82, 86, 89, 97, 98, 99, 100, 106, 108, 110; 110n*,s113 ia litos 116, 118) 119 121 s07 231 Charles II, 6, 31, 80, 81, 82, 83, 86, 89, 90-1, 93-5, 98, 99, 101, 102, 105, 106; 107,108; 109 112 elGy 117; 122

Baynes, Captain, 74, 75-6 Bellamie, John, 51—2, 99

Bentham, Jeremy, principle of utility, 182, 232-3; a ‘mixed’ democrat, 219,

220; an ‘unmixed’ democrat, 217; leader of the Philosophic Radicals, 218, 232; conversion to pure democracy, 233-4; on mixed government,

234-6, 238, 240; on the House of Lords, 236-7; influence, 230-1, 241-2: mentioned, 183, 246, 256, 257. See also Benthamites (also

known as Philosophic Utilitarians ) Benthamites, 218, 240-1, 252-3

231,

Radicals 234,

Chartism, 192, 203-4, 231, 240 Chatham, William Pitt, Earl of, 88, 148 Clarendon, Edward Hyde, Earl of,

History of the Rebellion 6, 86; and the

or

Answer tions,

238-40,

mittee Blackstone, Sir William, elaboration of the theory of mixed government, 123, 126-8; view of the House of Lords, 127, 137; mentioned, 2, 87, 130, 182, 186, 138, 189, 142, 218,

adviser

2297, 235, 250, 251, 254

St.

John,

Proposi-

29, 32,

492;

41 n®*®; and the bishops in the House of Lords, 48, 90-1; on the restored House of Lords, 81—2; and the execution of Sir Henry Vane, 86 Cobbett, William, 1389, 218, 219, 219 né Colepeper, Sir John, becomes a leading

tions, 116-23. See also Somers Com-

Henry

Nineteen

27-8 n®4,

disputes —Thomas Hobbes on prevalence of the theory of mixed monarchy before the civil war began,

Bill of Rights, authors of familiar with the Answer to the Nineteen Proposi-

Bolingbroke,

to the 26-8,

Vis-

to Charles

I, 26; author

of

the ‘discourse on the constitution’ in

count, 88, 92

the Answer to the Nineteen Proposi-

Bramhall, John, 34

tions, 26-7, 38, 86, 120; influenced by Polybius, 26; his doctrine of the three estates, 27, 27n°4; advises

Broghill, Roger Boyle, Lord, 63, 74 Brougham,

Henry, 87 n1, 139

Charles I to accept the second Bishops’

Buller, Charles, 234, 239, 255, 256 Burdett, Sir Francis, 139, 151-2, 218, 219, 219 n4, 229-30, 233 Burgh, James, 148, 149, 156, 159

Exclusion Bill, 49 Coleridge, Samuel Taylor, 212

Burke, Edmund, views on the English

Commonwealths-men

constitution, 132—5; on the House of Lords, 123, 135-36, 137; and the American Revolution, 134, 134-5; mentioned, 87, 124, 130, 147, 148, 156, 157, 159-60, 183, 194, 201, 204, 206, 208, 222, 249 ; cabinet government after 1832, 1,

publicans),

the theory of mixed government and the theory of mixed monarchy Constitution, use of word, 99-100 Constitutional Act of 1791, 143, 160-1, 163,

166, 256

Cromwell,

207, 223 n}3,

228, 230, 240

Cartwright, Major John, 14:1, 143, 147; a ‘mixed’ democrat, 150-1, 152-3; an ‘unmixed’ democrat, 217-18, 220-30; attacks the House of Lords, 224-7; compared as a reformer to Lord Durham, 245-6; mentioned, 139, 149) 159,919)

Thomas,

219,250)

13,

14,

22, 23

| Cromwell, Henry, 74, 75

230, 249

Cartwright,

164,

Craig, Sir Thomas,

201-4,

(also Rump Re-

60, 61, 65, 67, 68, 70,

73, 74, 77, 78, 80, 81, 83, 121

953-7

Carlile, Richard,

208,

Conciliar Movement, 11—12, 18, 15 constitution, classical theory of, 1. See

Calvin, John, 12

Canning, George, 215, 219-20, 229-4,

207,

Oliver,

seeks

exclusion

of

the bishops, 48; favors the theory of mixed monarchy, 54, 60, 60 n%5, 61-2, 64, 69; and the House of Lords,

546,

58-9,

62-3,

64-70,

77-8, 81; mentioned, 47, 67, 71, 74, 77, 79, 80

Cromwell, Richard, 47, 70, 72, 74, 76,

TH

257

18-20,

Danby, Thomas

22-3 Charles I, 5, 6, 23-6, 27, 28-9, 30, 31,

298

Osborne,

Earl of, im-

peachment, 8, 93-5, 98, 101-2, 117, 122; and the Narrative and Reasons,

INDEX Danby, Thomas Osborne, Earl of—cont.

Galloway, Joseph, 161-3, 166 Garroway, William, leader in the Little Westminster Parliament of

95-7; possesses copy of Narrative and Reasons, 122; role in the Glorious Revolution, 122; and the Answer to

the

Nineteen

Propositions,

1679, 93, 99; associate of William Sacheverell, 98; member of the Sacheverell Committee, 99; refers to

123;

mentioned, 110, 116 De Lolme, John Louis, and the theory of mixed government, 123, 128-30; and the House of Lords, 124, 128-9, 133, 137; mentioned, 87, 131, 132,

the Answer to the Nineteen Propositions as the ‘King’s Constitution,’ 25, 99-100, 119; and the publication of the Narrative and Reasons, 119, 123;

appointed to the Somers Committee, 118; plays active part in framing the Bill of Rights, 119-21

136; 142, 218, 227, 250, 251

Desborough,

General John, 61, 74, 77

Digges, Dudley, 34, 37 dislike of the elective principle in the constitution 167,

168,

of the House 169-71,

172-3,

George III, 88, 185, 231, 234

of Lords,

demns ON, 957

Edwards, Thomas, 51, 99

elected House of Lords proposed, 239 Earl of, 49,

58 n®1 Exclusion

162,

mixed

government

and

the

ORE

ORO,

Cn,

PA,

SHO. eto).

‘Good Old Cause,’ 73 Green Ribbon Club, 95, 103, 111 Grey, Charles, Earl, 199, 242,

243,

944, 245, 247, 248, 249, 250, 257

Crisis,

8,

TOR

OO

Grey Ministry and the Reform Bill of

10;

119 exemptive veto proposed for the House

1832,

of Lords, 55-6, 59-60, 80

120

Lucius

Cary,

2nd

140, 218, 241, 249-51,

257

Hallam, Henry, 83, 86, 87 n1 Hampden, John, 33, 97 Hampden, Richard, second son of John Hampden, 33, 97; prominent in the Little Westminster Parliament, 93;

Falkland, Anthony Cary, 5th Viscount, Falkland,

146,

House of Lords, 209-11; and the State Trials, 213; mentioned, 183,

254, 255

Erasmus, 12, 14 Essex, Robert Devereux,

134,

Glyn, John, 33, 63, 64 Godwin, his Political Justice, 204-14; ideals of government, 208-11; con-

177-8

Disraeli, Benjamin, 255 divine right of kings, theory of, abandoned by Charles, I, 5, 26 Durham, John George Lambton, Earl of, 244, 245-8,

133,

Viscount,

becomes a leading adviser to Charles

contemporary

I, 26; an author of the Answer to the Nineteen Propositions, 26—7, 38, 86,

120; member of the Sacheverell Committee, 97, 118; responsible for

120; reproaches Hyde for failure to

the borrowing from the Answer to the Nineteen Propositions in the report of the Sacheverell Committee,

publish the Answer, 27; and Hobbes,

opinion

of him,

97,

41-2; opposes exclusion of the bishops, 48; yet finally advises acceptance of the second Bishops’

97, 119, 121; reads from the Answer to the House of Commons, 98, 119;

Exclusion Bill, 49 Ferne, Henry, and the theory of mixed government, 34-5, 82; and the

means of the Narrative and Reasons, 110, 123; his familiarity with the

Answer

to the Nineteen

Proposi-

tions, 35, 41 Fiennes, Nathaniel, 33, 63, 64, 74 Fifth Monarchy Men, 54, 61, 67, 68, 78, 81

Filmer, Sir Robert, 42, 105 Fleetwood, Lieutenant General, 61, 74, CS, Cs:

Foley, Paul, 118, 120 Fonblanque, Albany,

234,

239,

makes

widely

known

by

Answer perhaps due to his father, 33, 97, or perhaps to friendship with Richard Baxter, 97-8, 108-9; favors Exclusion Bill, 101; and the

Hampden Committee of the Oxford Parliament, 101-2, 118; member of the Somers Committee, 118; important role in the Convention Parliament of 1689, 119-20, 122; appointed

to

244,

Answer

the

treasury

board

after

the

Glorious Revolution, 119

QA7-8, 253

Fortescue, Sir John, 9-10, 15, 41, 83 Fox, Charles James, 143, 160, 164,

Hampden Committee Commons

of the House of

of the Oxford Parliament,

101-2, 116, 118, 119, 123

165-6, 177, 184, 215

299

INDEX Harbord, William, 118 Hardy, Thomas, 198-201, 215 Harrington, James, publishes Oceana, 70-1; doctrines, 3, 71-2, 125, 136, 137; influence, 46, 72-3, 74, 75-6, Ther tell, Mets}. GAT

Keith, George Skene, 167 Knox, John, 16-17 Knox, William, 161 Lambert, General John, 62, 78, 79, 83, 86 ide

Harrison, Major General, 61 Hayward, John, 22, 23

Lee, Sir Thomas, 93, 118, 120 Lenthall, William, 61-2, 63, 64

Hazlitt, William, 194, 204, 208, 212 Heads of the Proposals, 55, 57 Herle, Charles, 34, 35-6, 45, 45 n?, 51,

L’Estrange, Roger, 38, 104, 106—7, 109 Levellers, 45, 50-3, 54, 55, 56, 57, 59,

82 Hesilrige, Sir Arthur, 60, 67, 68, 69,74 Hobbes, Thomas, traces theory of

60, 61, 73, 78, 80, 180, 195-6, 217, 226 life peerages and the House of Lords, 174-8

mixed monarchy to the royal coun-

_Lilburne, John, 50, 51, 180

cillors, 41-2;

limitation on the power of the crown to

attributes

coming

of

the civil war to the prevalence of the theory of mixed monarchy, 41; dis-

puted by Hyde, 41 n®®

create peers. See Peerage Bill of 1719

Lisle, John, 63

Little Parliament, 60-1, 62

Hobhouse, John Cam, 214, 230 Holcroft, Thomas, 194, 205, 206, 208,

Little Westminster Parliament (First Exclusion Parliament), 93-101, 102, 103,

212

Holles,

Denzil,

Answer

familiar

with

to the Nineteen

104,

105,

108-9,

110,

116,

117-18, 119, 120, 121, 123. See also Narrative and Reasons and Sacheverell Committee Locke, John, 8, 121, 123, 186, 195 Longueville, Henry Yelverton, Vis-

the

Proposi-

tions, 33, 110, 110 n® Hone, William, 201, 212 Hotman, Francis, 12, 14 count, 168, 173 Howard, Sir Robert, praises Narrative and Reasons, 98-9, 120; amember of _ Lords, House of, role in mixed government briefly described, 1, 3-4, 91-2; the Somers Committee, 117 n°’;

active in framing the Bill of Rights,

in Charles I’s theory of the constitu-

120

tion, 25, 46; its position according

Humble Petition and Advice, imitation of

to the theory of mixed government during the Puritan Revolution,

earlier mixed government, 60, 62—70, 74-80; the ‘other House,’ 64-70, 74—

84-42, 45, 46, 51-3; exclusion of the

8; and the Answer

bishops from the House of Lords in

to the Nineteen

Propositions, 63-4; mentioned, 47, 81 Hume, David, History of England, 7;

1642, 27, 47-9; on

the

House

the Leveller attack of Lords,

50-1,

53,

recommends exclusion of the bishops and Scottish peers from the House of

55-6; abolition of the House of Lords in 1649, 57-60; efforts to pre-

Lords,

serve it, 58-60; diversity of proposals affecting it during the Puritan

91,

174,

175;

recognizes

rising strength of the House of Commons,

138;

133, 174; justifies ‘influence,’

proposals

for

reform

Revolution, 46-7, 59-60, 80-2; pro-

posed

of the

restrictions

on

membership

during the Puritan Revolution, 49, 55, 56, 59, 76; attempted revival of the House of Lords in the Petition and Advice,_G2-78; restoration in 1660, 80, 89; weakened condition at the Restoration, 81—2; return of the bishops in 1661, 89-91; hostility

House of Lords, 167, 174—5, 177, 178; mentioned, 147, 231 Hume, Joseph, 234, 238-9 Hunt, Henry, 218, 219 Hunton, Philip, 34, 36-7, 42 n58, 45, 45 4, 01, 62, LO) Mite 1leTs

Hyde, Edward. See Clarendon

towards

the

bishops

after

their

Instrument of Government, 47, 62 Ireton, Henry, 54-6, 57, 60, 61

return, 91, 91 n8, 94-5, 101, 110, 167, 174, 175, 177, 187, 239, 242-3;

James II (earlier James Duke of York),

century,

House

139,

140,

216,

87—8,

in the eighteenth 123-4,

160-1,

166;

view taken by Montesquieu, 125, 137, by Blackstone, 127, 137, by De

22 Oy LOOT LOL LOS mLOOsm llOn lias 112, 114, 115, 116, 120

Jeffrey, Francis, 250-1

of Lords

218,

Lolme,

124,

128-9,

133,

137,

by

Paley, 132, 136, 137, and by Burke,

300

INDEX Lords, House of—cont. 123, 135-6, 137; and the new form of the classical theory, 138-9,

140-1; untouched by the movement for parliamentary reform before 1789, 4-5, 142-5, 214-15, 218-20,

147-60, 220-1,

165-6, 293-4;

proposed reforms of the House of Lords by believers in mixed government, 166-78; the democratic attack on the House of Lords before 1832, Chapter V, passim, 217, 223-38, 240, 241-2; effect of the Reform Bill on the House of Lords, 241-2, 243, 251-2, 253, 254, 257; view taken by

the Grey Ministry, 244-9; Wellington presides over the transition after 1832, 254; Peel’s realistic appraisal of the powers of the House of Lords

government’ used to include ‘mixed monarchy,’ 34; the theory of mixed government becomes one of mixed monarchy after the Glorious Revolution, 92; the theory elaborated in the eighteenth century, 123-37; influ-

ence from the Restoration to the passing of the Reform Bill of 1832, Chapter IV; appearance of a new form of the theory in the late eighteenth

lenged

century,

after

the

137-41;

outbreak

chal-

of the

French Revolution, 179-241, passim;

accepted by the Grey Ministry, 218, 241, 244-9; in the debates Reform Bill, 250-1; effect

on the of the

passing of the Reform Bill, 243; accepted by the ruling classes as late

after 1832, 254-5; the new theory of

as the Reform Bill, 257; criticized after

the constitution and the Lords after 1832, 256—7_

cabinet system of government, 253-7.

House

of

undermined

218, 241-51, 1832, 251-3;

by the rise of a new

Low, Sidney, 254

See also such topics as the Answer

Ludlow, Edmund, 46, 60, 74, 77, 78

to

Machiavelli, 12, 71 Mackintosh, James, 206, 212, 213, 215 Manchester, Edward Montagu, Ear] of,

the

Nineteen

Propositions,

the

theory of mixed monarchy, and the House of Lords mixed monarchy, theory of, distinct fromthe theory of mixed government,

165-6, 218-20, 220-1, passim mixed government, theory of, tenets, 1—3; role of the House of Lords, 3-4;

8, 34; rose out of the Answer to the Nineteen Propositions, 29-30, 35-7, 39, 41, 121; characteristics, 29-41, 28 n34, 99-100; relationship to the doctrine of the three estates, 29-31, 35-7, 41; and the idea of a corporation, 30, 85, 114; and the idea of popular sovereignty, 28 n*4, 38-9, 109, 109 n48, 115-16; formulated by Parliamentarian writers, 35-41; pro-

distinct from that of mixed monarchy

tection to the King and the House of

49, 50, 57-8, 58 n*1, 65, 80, 89

Marprelate Tracts, 18, 20, 22-3 Maszimes of Mixt Monarchy, 41, 114 n°° Mill, James, 233, 234, 238, 239

Mill, John Stuart, 232, 234, 239-40 Miiton, John, 78, 79, 80 ‘mixed’ democrats, 4—5, 142-5, 147-60,

after

1642,

8, 34-5,

41;

and

the

Lords

during

the

Leveller

attack,

Proposi-

45, 46, 51-3, 57; prevalence during

tions, 5, 7, 23-6, 41; in the writings of Sir John Fortescue, 9-10; in anti-

the civil-war period, 41-3, 44, 45, 45 n®, 51-3, 57, 58 n®1, 59; held by

quity, 10-11; in early modern Europe, 11-13; in Tudor England, 13-23, 27; among the Puritans of

Oliver Cromwell, 54, 60 n*5, 61-2; and the meeting at Lenthall’s house,

Answer

to the

Nineteen

early Stuart England,

20-1,

23; in

the reign of James I, 23; during the rule of Charles I, 23; associated with the English constitu-

personal

tion by Charles I in his Answer to the

Nineteen Propositions, 23-6, 44; interpreted by Henry Ferne and the Royalists,

34-5,

41;

drops

from

61-2; mixed

attempted revival of the monarchy during the Inter-

regnum, 62—78; at the Restoration, 82; invoked in the defence of Sir Henry Vane, 83, 84-5, 86 n®?; attri-

buted in the Restoration period to dissenters and Whigs by Roger L’Estrange, 107-9; popular but not ascendant in the reign of Charles II,

sight during the first Civil War, 45;

92, 97,

expounded by Robert Sheringham at

111-12; triumphs at the Glorious Revolution, 87, 92, 112-16, 114 n°; and the Sacheverell affair, 112-13,

the Restoration,

82-3;

prevalent

in

the reign of Charles II, 87-8, 91-2; mentioned in the debates on the Bill of Rights, 115; the term ‘mixed

301

100,

105,

109-10,

109 n44,

113-14. See also the theory of mixed government,

Political

Catechism,

INDEX

‘mixed’ monarchy, theory of—cont.

mon

Charles I’s definition of the three estates, use of the word Constitution Molesworth, Sir William, 234, 239,

hostility

157,

194-204,

192-3;

towards

ments,

Rights of

206, 207, 222, 230;

ideals of government,

240, 240 n§1

192-3,

192-3, 195-8;

mixed

govern-

196; rejection of the

House of Lords, 196-8; and the reform societies, 198-201, 214-15, 221; and the ‘Unstamped Press,’

Monk, General, 74, 78, 79, 80, 89

Montesquieu, praises the English constitution, 123-4, 136; and the theory of mixed government, 124-6; view of the nobility, 125, 137; mentioned, 87, 129, 189; 206,227,

Sense,

Man,

201-3;

influence on the politics of

the lower classes, 201, 203-4; and Victorian republicanism, 204; men-

250, 251

tioned, 143, 152, 157, 206, 208, 211, 919, DIAS O17) 991, 993.5 993imis? 296, 230, 240, 241, 250, 257

Musgrave, Sir Christopher, 118, 123 Nalson, John, 30

Narrative and Reasons, title givento the report of the Sacheverell Committee of the House of Commons of the Little Westminster Parliament, 95, 102; published under a variety of titles, 104n8°; outgrowth of the Danby impeachment, 94—5; borrow-

Paley, William, contributes to the spread of the theory of mixed government, 130-2; on the House of Lords, 132, 136, 137; mentioned, 87, 123, 132-3,

138, 204

pardon clause in the Revolution Settlement,

117

ings from the Answer to the Nineteen Propositions, 94, 95-7; contribution of Richard Hampden, 97-8; considered in the House of Commons, 98-9; and the idea of a constitution,

Parker, Henry, 34, 37, 40 n54, 45, 113 Parliament Act, 239, 257 Parsons, Robert, 13, 14, 21-2, 23, 42 Peel, Sir Robert, 243, 249, 251-2; on

99-100;

after 1832, 254-5 Peerage Bill of 1719, 92, 166, 167-73, Le Petition and Advice. SeeHumble Petition and Advice Philosophic Radicals. See Benthamites Pitt, William (the Younger), and

read

by William

Sacheve-

rell to a conference of the two Houses, 94, 100; debated in the House of Lords, 100-1; recalled to the Oxford Parliament, 101—2; and the Hampden Committee, 102; dissemination, 102-5, 110; inspires

the position of the House of Lords

reprinting

of the Treatise of Mon-

parliamentary reform, 148, 154, 165,

archie and

Political

201;

Catechism,

105;

on

does not refer to the theory of mixed

Canada,

monarchy,

tioned, 206

97, 111; relationship be-

tween its authorship and that of the Bill of Rights,

116-21;

a copy

in

a

new

160-1, 133,

government 164-5,

154,

176,

256; 177,

for men-

204-5,

Glorious Revolution, 122. Seealsothe

Place, Francis, 212, 229, 233, 234, 238, 240, 248 Playfair, William, 173, 177

Answer

Polexsen, Henry, 117, 120

Danby’s possession at the time of the tions,

to the Nineteen Sacheverell

Proposi-

Committee,

and

Political

Bill of Rights Naylor’s case, 62-3

See

discussed,

Appendix

37-40;

II;

author-

ship, 87, 40n54; reprinted, 37-8, 105-6, 111, 113-14; used by Vane,

Nethersole, Sir Francis, 32-3 Neville, Henry, 70, 72, 74, 75-6, 168 Nicolas, Sir Nicholas, 175-6, 177, 178 Nineteen Propositions, 5, 24, 28-9, 38,

84, 85-6; repeats phrases containing the word Constitution in Answer, 99;

well

63, 106

known

during

the

Exclusion

Crisis, 105-7, 109, 109 n48, 111; one

North, Roger, 98-4, 99-100

tenet Oxford

‘other House,’ 64-70, 74-8, 81 Overton, Richard, 50-1, 53 Oxford Parliament, 101-2, 110, 116

University,

by dissenting

Judgment

mini-

191-2;

112;

affair, 113-14;

and

the

a classic

in the history of the theory of mixed monarchy by the time of the

and

Glorious

lection 179-82,

University,

Sacheverell

Decree, 112-13

Paine, Thomas,

disliked

sters, 109; condemned and burned by

O’Connell, Daniel, 239

Oxford

Catechism.

contents

Revolution,

of tracts

113; in a col-

recommended

by

John Locke, 123; mentioned, 41, 44, 45, 51, 82, 97

Com-

302

INDEX Polybius, 10-11, 12, 14, 22, 26 Ponet, John, 13, 14, 15-16, 17, 22, 42 Popish Plot, 93, 95, 107, 110

Rutherford, Samuel, 112

popular sovereignty, idea of, and the Answer to the Nineteen Proposi-

Sacheverell, William, tionship with Lord

tions, 28 n%4, 115-16

38-9,

109,

Powle, Henry, 93, 118 Price, Richard, 148, 149,

109 n43,

156-8,

159,

183

Priestley, Joseph, 143, 179-82,

recommends the

House

towards

election of Lords,

bishops

182-5;

of bishops to 91;

in the

hostility

House

of

186-91; rejection of mixed government, 187-8, 189-90; rejection of the House of Lords, 188-90, 191; mentioned, 201, 206, 208, 212, 214, DV 221 223.940) 246.) 257i

qualifications

peers)

1675, 1638, 173,

proposed

for

Prynne, William, 28 n°6, 4.5 Putney debates, 55-6, 59-60 Pym, John, 33, 48 Chapter

V,

Somers

Levellers,

123;

Committee,

in framing the Bill of

Sacheverell affair, 113-14 Sacheverell Committee of the House of Commons of the Little Westminster

Parliament, outgrowth of the Danby impeachment, report, 95-7. Reasons

94-5;

its influential

See also Narrative and

Anthony

Ashley Cooper,

Earl of, uses the royal definition of the three estates, 66 n®°, supports

67; leads

opposition to Charles II during the Little Westminster Parliament, 93-4, 95, 101; becomes Lord President of the Privy Council, 100; reads Narrative and Reasons to the House of Lords, 100; and the Second Part of

Common-

the Growth of Popery and Arbitrary Government, 104-5; gave publicity to the Answer to the Nineteen Pro-

after

the

positions before the Glorious Revo-

Restoration,

republicanism in the late eighteenth and early nineteenth centuries. See ‘unmixed’ or ‘pure’ democrats, Horace Walpole retention of the House of Lords as a Court of judicature or Court consultory, 58, 59

of the

the

the Commonwealths-men,

91-2

Review

to

Shaftesbury,

wealths-men, Wallingford House party, James Harrington, John Mil-

ton republicanism

named

21 n®5, 47, 65-6, 80

Remonstrance of the Army, 57 republicanism during the Puritan RevoSee

Propositions publicity

before the Glorious Revolution,

select senate, 46, 78, 81-2

Rapin-Thoyras, Paul de, 7, 92 n!2 Reform Bill of 1832, 1, 4, 218, 230-1, 238, 241-2, 249-51, passim

lution.

the Nineteen

Saye and Sele, William Fiennes, Lord,

Li6=7

Radical party, 147-60, passim, 217-41

political relaShaftesbury in

the Little Westminster Parliament, 93, 95; chairman of the Sacheverell Committee, 95-7, 98; intimate with William Garroway, 99; reads Narrative and Reasons to a conference of the two Houses, 100; gave Answer to

118; active Rights, 120

Lords, 158, 187; ‘mixed’ democrat, 158-9, 185-6; ‘unmixed’ democrat, 158, 185-6; ideals of government,

property

Sacheverell, Henry, 113

Constitution

Britain, 214, 214 n®°, 299 Richmond, Charles Lennox,

of Great Duke

lution, 110, 123 Shaftesbury Whigs, 93, 106, 107

Shelley, Percy Bysshe, 107—8, 213-4 Sheringham, Robert, 30, 82-3, 105 Smith, Sydney, 139, 140 Smith, Sir Thomas, 13, 14, 16, 17, 18, 2029 Smith, William,

161, 163-4,

166

Somers, John, chairman of the commit-

tee that drew up the Bill of Rights,

of,

147, 149, 153—4, 159, 173, 201 Robinson, John, 21

Roebuck, John Arthur, 234, 238, 240, 252

116; destruction of his papers,

116;

cannot be connected directly with the Answer, 118; ways in which he might have acquired familiarity, 118-19; friendship of his family with Baxter,

119

Somers Committee of the House of Commons of the Convention Parliament, takes the lead in drawing up the Bill of Rights, 116; remembers

949, 252

Russell, Lord William, 111-12

303

INDEX

Treatise of Monarchie. See Philip Hunton Treaty of Newport, 56-7

Somers Committee —cont. Danby’s case, 117; other links with the Little Westminster Parliament, 117-18, 117-18 n5’?, 120; its mem-

Treby, Sir George, 118, 120, 121 Tucker, Josiah, 2-3, 157 Tyrrell, James, 121-2

bership and that of the Sacheverell Committee, 118, 119-21, 123; and that of the Hampden Committee, 118, 123; leading members familiar with the Answer to the Nineteen Propositions, 116—23; and the Narrative and Reasons, 117—21, 122, 123 Southey, Robert, 207, 208, 212 Spelman, Sir John, 34 Starkey, Thomas, 12 State Trials of 1794, 150-1, 199-201, 212-13;

Stewart,

‘unmixed’

138-9,

216,

Vane,

repeats

218,

4-5,

240, 941-2

familiarity

with the

to the Nineteen

Proposi-

word

Constitution

in the

Answer, 99; mentioned, 60, 74, 80, 97

of Lords, 55-6, 59-60, 238, 239, 257

Wakefield,

Edward

Gibbon,

describes

the cabinet system between the Re-

Temple, Sir William, 100, 168, 173, 176 Thelwall, John, 212, 213 three estates, Charles I’s definition of, 25, 27-8, 27 n%4; a departure from the traditional view, 27, 31; impor-

form Acts, 255-7 Walker, Clement, 45

Wallingford House party, 74, 77, 78 Walpole, Horace, 148, 180 n? Walpole, Sir Robert, 88, 169, 172-3

tance in the quarrel between the King and the two Houses, 29-31; basic tenet of the theory of mixed

Walwyn, William, 52-3 Warwick, Sir Philip, 6, 43 n°? Weaver, John, 68, 74 Wellington, Duke of, 81-2,

monarchy, 29-30, 31; disliked by Royalists, 27-8, 31 n#1, 35, 43 n°;

175-6,

943, 244, 254

exploited by Parliamentarian writers,

Whalley, Colonel Edward, 61 Whitelocke, Bulstrode, and the Answer to the Nineteen Propositions, 33, 63-4, 99; and mixed monarchy, 61-2,

35-7, 41; but not by the anonymous

author of the Political Catechism, 38; the claim of coordination, 30, 35, 82,

85, 100, 109; widely adopted in the civil-war period, 31, 31 n4°, 45, 47, 51-3, 53n15, 57; also during the Interregnum, 31, 47, 60n™, 64, 66 n§8, 90n5; used in Vane’s defence, 83-5, 84n5®; involved in returning

democrats,

tions, 33, 846, 99; his Healing Question, 73, 84n*®; borrows from the Political Catechism, 84, 85-6;

suspensive veto proposed for the House

over

Sir Henry,

Answer

250-1

controversy

‘pure’

unreformed House of Commons, 145-6 ‘Unstamped Press,’ 181, 201-3, 228-9

214-15

Dugald,

or

Chapter V, 217, 223-38,

the

bishops to parliament, 43, 43 n®°, 90; Holy Commonwealth unpopular because of this usage, 107-8; much debated as a result of Danby’s case, 109-10, 110 n4®, 111; condemned by Oxford University, 111-12; the condemnation reversed, 112—13 ;triumphs with the Glorious Revolution, 31, 87, 113-14, 171; known to the

authors of the Bill of Rights, 114-15, 115 n52 Thurloe, John, 67, 74 Tooke, John Horne, 147, 149, 150-2,

63-4, 90; repeats word Constitution in the Answer, 99; mentioned, 58, 97 Whitelocke Committee of the Second Parliament of the Protectorate, 63-4: Whitgift, John, 19-20, 22-3 Widdrington, Sir Thomas, 61-2, 63, 64 Wildman, John, 55-6, 78 Wilkes, John, B19 83)

154

304

133,

149-50,

159,

Williams, David, 128, 206 Williams, Sir William, 118, 121 Wilson, John, 31, 31 n42 Winnington, Sir Francis, 93, 119 Winstanley, Gerrard, 51 n® Wolseley, Sir Charles, 63 Wooler, Thomas Jonathan, 201, 228 Wordsworth, William, 207, 208, 213 Wyvill, Christopher, 144-5, 148, 149, 154-5, 156, 157, 159, 177

Yorkshire

159, 181, 183, 208, 212, 213, 218-19

Travers, Walter, 21

128,

Association,

144, 148, 149,

ben

1965

WESTON, CORINNE COMSTOCK, ENGLISH CONSTITUTIONAL THEORY AND THE HOUSE OF LORDS,

WESTON, CORINNE COMSTOCK. ENGLISH CONSTITUTIONAL THEORY AND THE HOUSE OF LORDS.