A Discussion: The 1641 Revolution
Vile, Adamson, Russell, Brenner, Goldie, Bolingbroke, Montesquieu
Follow-up to the earlier ‘Separation of Powers’:
In Constitutionalism and the Separation of Powers (1967) M.J.C. Vile acknowledged that 1641 was the watershed year for doctrine, and points out that it was — ironically — the king, Charles I, who first publicly and in writing proposed what were, in effect, some separations of powers.
Charles I made an acknowledgment of the doctrine [of mixed government] in his reply to the Nineteen Propositions of 1642. It was at the height of the theory's popularity that the attempt to make it fit the circumstances after 1641 brought forth a new and different theory, the separation of powers. [Vile p. 42]
A major problem in the reconciliation of the theory of mixed government with the doctrine of the separation of powers lay in the fact that, in its initial formulations during the Commonwealth period, the latter had been expressed in the vocabulary of the prevailing legislative-executive division of functions, whereas the theory of mixed government, which dealt principally with the agencies of government, propounded a threefold division into King, Lords, and Commons. Charles I in his Answer to the Nineteen Propositions had associated a distribution of the tasks of government between its parts, with control over the exercise of power, distinguishing also between the making of laws, and “the Government according to these laws” which was entrusted to the King. At the same time Charles had stressed the importance of the "judicatorie power" of the House of Lords. On the other hand, the development by the anti-royalists of a theory of government which was independent of the theory of mixed government had been based largely upon the two abstractly-defined functions of legislating and executing. If the ancient theory of mixed government was now to be closely associated with some form of abstract functional differentiation, then at least three functions were necessary. The gradual emergence of the judges as an independent branch of government merely complicated matters, for there was no place for them in the theory of mixed government, and they constituted a fourth agency. Nevertheless, the idea of an autonomous "judiciary power" continued to develop on the basis of the discussions of the judicial functions of Parliament, and particularly of the Lords, which had figured so large in the mid seventeenth century. It is the irony of this period, therefore, that the emergence of separate judicial and executive "powers" was not associated very closely with the establishment of the independence of the judges, formally achieved in 1701 with the Act of Settlement, but rather the judicial function came to be associated with the House of Lords as a final court of appeal and as the court in which impeachments should be tried. [Vile pp. 59-60]
By far the fullest reliable account of events in 1640-1641 is John Adamson’s The Noble Revolt (Orion/Hachette 2007). From Adamson’s book I learned that my family relation, Oliver St John, may not have been my family relation after all (an intriguing tale of ‘bastardy’ p. 155) but that he was, pleasingly, one the main strategists of the revolt.
The notes I made several years ago (roughly done, not 100% reliable) while reading Noble Revolt indicated the following radical actions took place:
January 1641, King Charles I’s reluctant acceptance that he could not legally raise money other than by methods authorized by Parliament;
February 1641, reluctant royal assent to the Triennial Act by which Parliament became a perpetual institution no longer sitting solely at the discretion of the king, and which thenceforth could be summoned by writs delivered by various state personages;
May 1641, a bill legislating that Parliament could not be dissolved without its own consent;
May 1641, reluctant acceptance by the king that his ministers and advisers could be impeached, even for treason, by Parliament;
July 1641, further curtailment of the king’s discretionary powers came with abolition by Parliament of the prerogative courts, Star Chamber and High Commission.
Well before the outbreak of civil war, the Militia Bill (possibly drafted by Oliver St John) awaited final reading in parliament (essential, of course, to the state’s monopoly of power). Other major ‘separations’ of power were in the offing. In at least two places in the book (unfortunately there is no searchable electronic version available) Adamson refers to actions amounting to a “constitutional revolution”:
What distinguished the onslaught of December 1640 … was that it was not merely a series of stop-gap measures designed to deal with the temporary problem of an aberrant king, but an assault on monarchy itself; an attempt at a constitutional revolution that would redefine permanently the place of kingship within the English polity. [Adamson Noble Revolt p. 147]
[10 February after the ‘Root and Branch’ effort] The ensuing week witnessed a diplomatic and a constitutional revolution, both peaceably attained, that seemed to inaugurate an entirely new political order: a ‘commonwealth’ in which not only the threat, but even the possibility, of regal tyranny might yet be permanently removed. [Adamson Noble Revolt p. 188]
Messier and less objective but equally indispensable is Conrad Russell’s Fall of the British Monarchies 1637-1642 (Oxford 1991). Russell seemed actually to dislike Montesquieu, an impression that is heightened by Russell’s comments in a collection of his essays titled Unrevolutionary England 1603-1642 (The Hambledon Press, 1990):
For those in whom the tendency to think in opposites has been reinforced by the influence of Montesquieu (a conspicuous offender in this respect), it is also easy to think of king and Commons as representing two different branches of government called 'executive' and 'legislative'. However, England has never had the separation of powers (and still does not). When a parliament was assembled, nothing more than a quick change of hats by some of the members was needed to produce an executive. [Conrad Unrevolutionary England p. 2]
Recent work in this field has begun to escape from the baleful influence of Montesquieu, whose insistence on the separation of powers, and on the notion that it is their proper function to provide checks and balances to each other, is alien to seventeenth-century thought in any country, and to English thought in any century. [Conrad Unrevolutionary England p. 122]
The focus of Robert Brenner’s richly documented Merchants and Revolution (Princeton 1993) is quite different but has the great virtue, in my opinion, of repeatedly referring to the events of 1641-1642 as a “constitutional revolution” and “legislative revolution”.
Was Montesquieu misled by Bolingbroke’s Remarks on the History of England (reprinted in The Works of the Late Right Honorable Henry St John, Lord Viscount Bolingbroke, Vol 2 of 8, pp. 109-426]? Mark Goldie has written that “one of Bolingbroke’s most enduring influences lay in his impact upon Montesquieu, who was his guest in England between 1729 and 1731. The famous account of the English constitution in the Spirit of the Laws purports to be descriptive, but it is grounded in Bolingbrokean prescription” (‘The English System of Liberty’ in The Cambridge History of Eighteenth Century Political Thought, 2006, p. 74).
We can imagine that since Bolingbroke published his Remarks on the History of England in 1730 he and Montesquieu — his guest — would have discussed it, in which case Bolingbroke’s influence on Montesquieu’s understanding of England’s constitution may have been historical as well as prescriptive. Though there is much to learn from the ‘Remarks’, Bolingbroke ignores the constitutional revolution of 1641, which established a framework for the Revolutionary Settlement of 1688 and legislation that followed. In the Spirit of the Laws Montesquieu gives no indication of being aware of what occurred in 1641. Would Montesquieu have modified his scientific treatise had he had knowledge of 1641’s climacteric of short-lived but literal separations of power?
Normal filing will recommence at Social Science Files in a few days once internet outages affecting my remote Blue Mountains location have been fixed. New files are prepared on DNA dating of modern human cognition, 20th century state overload, equality before the law for Artificial Intelligence, archaic primate politics, 17th century science revolutions, early modern English exceptionalism, early states, more classics (Leibniz, Weber, Comte, Luhmann, Marx, et al.), and other topics to organize thoughts about the science of societal order … so ‘stay tuned’ loyal readers.