Michael Mendle, Sovereignty and the Separation of Powers on the Eve of the English Civil War
MGH: We have such a great community of subscribers! Professor Mendle kindly sent me his recent chapter in response to my post on England last weekend. I see two other Social Science Files subscribers (Yuri Pines and Glenn Burgess) have chapters in this book which is now on my must-read list for later this year (i.e. later in my History).
Dear Professor Heller,
I attach a piece on the separation of powers on the eve of the ECW. It's very brief and you may find it of use to develop or restate your argument in your recent post on the same.
Cordially,
Michael Mendle
Michael Mendle
Professor Emeritus of History
University of Alabama
The fountain and efficient cause [of political power] is the people . . . the king, though he be singulis major [greater than anyone], yet he is universis minor [less than the whole], for if the people be the true efficient cause of power, it is a rule in nature quicquid efficit tale, est magis tale [the cause is greater than the effect].
I come now to those seven doctrines, and positions, which the king by way of recapitulation lays open as so offensive—And they run thus:
1. That the parliament has an absolute indisputable power of declaring law, so that all the right of the King and people, depends upon their pleasure. It has been answered, that this power must rest in them, or in the king, or in some inferiour court, or else all suits must be endless, and it can nowhere rest more safely then in parliament.
2. That parliaments are bound to no precedents. Statutes are not binding to them. Why then should precedents? Yet there is no obligation stronger then the justice and honour of a parliament.
3. That they are parliaments, and may judge of public necessity without the king, and dispose of anything. They may not desert the king, but being deserted by the king, when the kingdom is in distress, they may judge of that distress, and relieve it, and are to be accounted by the virtue of representation, as the whole body of the State. …
5. That the sovereign power resides in both houses of parliament, the king having no negative voice. This power is not claimed as ordinary, nor to any purpose, but to save the kingdom from ruin, and in case where the king is so seduced, as that he prefers dangerous men, and prosecutes his loyal subjects.1
There being three kinds of government amongst men, absolute monarchy, aristocracy and democracy . . . [t]he 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 human prudence can provide) the conveniencies of all three, without the inconveniencies of any one, as long as the balance hangs
even between the three estates, and they run jointly on in their proper channel . . . .
In this kingdom the laws are jointly made by a king, by a House of Peers, and by a House of Commons chosen by the people . . . . The government according to these laws is trusted to the king, power of treaties of war and peace, of making Peers, of choosing officers and councilors for State, judges for law, commanders for forts and castles . . . are placed in the king . . . the House of Commons (an excellent conserver of liberty, but never intended for any share in government, or the choosing of them that should govern) is solely entrusted with the first propositions concerning the levies 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 the Lords being trusted with a judicatory power, are an excellent screen and bank between the prince and people.
[Agreeing to the Nineteen Propositions] would be a total subversion of the fundamental laws, and that excellent constitution of this kingdom [and would bring on a cascade of disasters, ultimately leading the “common people” to] set up for themselves, call parity and independence, liberty; devour that estate [viz., the House of Commons] which had devoured the rest; destroy all rights and proprieties, all distinctions of families and merit; and . . . end in a dark equal chaos of confusion . . . Our answer is, Nolumus leges Angliae mutari [We do not wish the law of England changed] 2
In England, the “War of the Three Kingdoms” (1642–51) was a civil war. While religious differences supplied much of the energy, the core issues leading to armed conflict were political and constitutional. These were hashed out in early and mid-1642 in the so-called war of words—exchanges between the writers for the Houses of Parliament (and, indeed, largely the writers in and for the House of Commons) and those writing in the name of King Charles. Ostensibly negotiating positions, these very public pronouncements simultaneously exacerbated the conflict and clarified the issues. Along with official pronouncements, both sides had their less official scribblers, whose efforts grew more numerous as the actual conflict superseded the war of words.
The official exchanges were later collected in a good-sized volume, while pamphlet wars filled many others.3 Two pieces, though, had a disproportionate influence. Henry Parker’s Observations upon some of his Majesties late Answers and Expresses stated the parliamentary case with perhaps too- exceptional candor. A little later Charles’ spokesmen, in His Majesty’s Answer to the XIX Propositions, stated the king’s case in a way that would define a constitutional crux for centuries forward.
The most common understanding of England’s constitutional arrangement came from the fifteenth-century lawyer and courtier, Sir John Fortescue. Famously, he defined England’s arrangement in (unfair) comparison to that of France. France was, he said, a dominium tantum regale—a simple monarchy. England, however, was a dominium politicum et regale, usually glossed as a “mixed” or “limited” monarchy. But what did that mean? Fortescue and others meant that in England royal power flowed through two channels. The “political” channel expressed the royal will through Parliament and the law. The subject’s life and property could only be taken or restrained through the legal process and the courts. Taxation was granted only through Parliament, and the Commons had the (theoretical) initiative about grants of money. The framing of laws through the agreement of king, Lords, and Commons, was often taken as the highest expression of the king and the kingdom’s will. The Houses of Parliament and the courts remained the king’s (viz., they did not possess an independent existence and right of action.). However, the king could not act independently of them within their spheres of competence. The “regal” or “royal” channel encompassed a substantial range of powers that were (again, in theory) exercised by the king alone. They were usually taken to include the packet of rights called the royal prerogative, and were more or less taken to mean everything we mean by foreign policy, war and peace, general executive authority, as well as the governance of the royal household and appointments to office. In those areas he could act alone, absolutely.4
For those adopting a Bodinian or Hobbesian reductionist standard of sovereignty (Who’s in charge here? Only one answer allowed!) Fortescue’s formulation was maddening. To others, it was merely confusing. Naturally, there had been skirmishes over the boundaries of the political and the regal channels. These were, in effect, potential disputes over sovereignty. Repeatedly, the Stuarts raised revenue through devices that avoided the label of “tax” by using the dominium regale (prerogative authority): import duties via the prerogative right of regulation of commerce with foreign powers; forced loans, money-saving quartering, and ship money via the royal power and duty to defend the realm. Charles used the logic of national security (“reason of state”) to override common-law restraints upon incarceration without cause. Equally, the impeachment process, albeit indirectly, reached into the royal power of appointment; the Commons chafed at restrictions upon their involvement with foreign policy. In 1628, an attempt was made— the famous Petition of Right—to find a common ground. Though the Petition was accepted, the king and his opponents held radically different understandings of what the Petition meant. The “patriots” insisted upon language that unreservedly declared the supremacy of law without any prospect of royal emergency override, while the king and his allies just as insistently attempted to insert “savings” (i.e. exceptions) for the royal prerogative. The bitterness and intractability of that dispute led to the eleven years of rule without Parliament (1629–1640).
The convening of the Long Parliament in November 1640 heralded a progressive weakening and dismantling of the apparatus of Charles’ dominium regale. Arrests, impeachment proceedings and the so-called “bridge appointments” (in which leading opposition figures were given ministerial appointments) led to a near-collapse of prerogative government. The Privy Council became more or less irrelevant, the government control of the press dissolved (with the two houses fitfully stepping into the breach). Charles progressively ceded his right to control the calling and dissolving of Parliament, allowed that ship money had been illegal, and agreed to the elimination of the Star Chamber and High Commission courts. Meanwhile, both houses took it upon themselves to intervene as they chose in church governance, in matters grand and small, in direct contravention of the royal supremacy as conventionally understood. When Charles went to Scotland in summer 1641 (with rumors flying that he had a deal on offer to the Covenanters to occupy London on his behalf), the Commons pushed its nose into the executive tent with “ordinances” not involving the king’s assent in areas hitherto understood as the domain of royal proclamations under the dominium regale.5
This was the context of Henry Parker’s two ripostes to the king’s position papers on the war of words with the Houses of Parliament.6 In fits and lurches, seldom fully appreciated at the time, the houses had been claiming as their own territory what had been earlier the realm of the dominium regale. The unmissable final straw came with the militia ordinance of March 1642, in which the two houses (after what was in practice a purge of the House of Lords, through the elimination of bishops’ seats and the intimidation of the royalist peers)7 declared that an emergency (the king’s refusal to agree with them by way of bill) required them to take control of the military might of the kingdom, a total break with the king’s control over the means of warfare.
Charles’ spokesmen had brutally pointed this out, ending their answer to a remonstrance of the two houses of May 26, 1642, with seven positions they charged the houses with holding. Parker either quoted or closely paraphrased them in the lines italicized above. He then countered them in a triumphalist assertion of the two houses’ supremacy over the king, which followed from his three conjoined propositions that the people were supreme, that the Houses of Parliament fully represented the people, and that they, without the king if need be, constituted the whole Parliament. All departures from settled practice were undertaken through the logic of the emergency, an approach that had been used by Charles in the 1620s and 1630s to govern in his own way, and that linked up closely to a wider European discourse about “reason of state.” At that time, many legal minds denied that the law was so easily dismissed. In 1642, the tables having been turned, it was Parker’s mission to declare that in an emergency of their own defining, the Houses of Parliament could do whatever they thought necessary to “save” the kingdom. Following the Bodinian line that sovereign power resided in either in one locus or another, or it did not exist, Parker agreed that “parliament” (as Parker always called the Houses of Parliament) had the ultimate power of court and legislature (viz., to “declare” law); that, moreover, law set no boundaries upon what a parliament could do or the property it could take “in public necessity.” Finally, the king’s voice in legislation could be dispensed with, as necessity dictated.
The boldness of Parker’s exposition did not bear the house’s official imprimatur. But Parker was the insider grandee Lord Saye’s nephew, and soon to be secretary to Parliament’s war-managing Committee of Safety, and he made clear the implications of the houses’ less explicit, less general formulations. When the houses offered Charles the Nineteen Propositions, amounting to a demand for Charles’ surrender of the dominium regale, Charles’ spokesmen riposted with their Answer to the XIX Propositions. Part of their response addressed the larger concerns raised by Parker, though only indirectly. The two pieces “crossed in the mail,” as it were.
The Answer was done well, but not without missteps born of haste and weariness.8 One was to prove a long-term royalist embarrassment. Probably to respond to the houses’ rejection of the king’s absolute veto of legislation, the Answer described the king, Lords, and Commons as equally necessary “estates.” But this formulation abandoned the traditional scheme (clergy, nobility, and commons) that put the “three estates” under the king, and also seemingly threw the cause of episcopacy to the wolves. Some parliamentary propagandists used this verbal slip to misread the Answer and find within it a hard doctrine of a general “co-ordination” of power in king, Lords, and Commons.
The Answer further muddied its meaning by using a key term, “government,” in two distinct ways. In the excerpt, the first usage of “government” is largely consonant with our own. “Government” here referred to the entire constitutional/ruling framework. In the subsequent usages, “government” meant something quite different, and was the core of the Answer’s message. This second sense was based on a strong medieval distinction of jurisdictio from gubernaculum. The former literally meant “law-saying,” and covered activities ranging from dispute adjudication, crime punishing, and legislation (which this same legal tradition comprehended within law-saying). The latter term comes out as “government,” meaning specifically administration and regulation (in fine, the dominium regale), but not law making, or taking of life, liberty or property, matters for the king within the dominium politicum.
Accordingly, the Answer stressed that while king, Lords, and Commons had a joint responsibility for legislation and taxation, in other respects, the power of each “estate” was restrained to its “proper channel.” In particular, the Commons had no “share in government, or the choosing of them that should govern” or control of the forts of the kingdom. In this way, the Answer responded to the Nineteen Propositions with that bugbear of Bodinian sovereignty, the separation of powers. In doing so, it condensed claims of popular sovereignty into parliamentary absolutism (which Parker did not deny), the equal and opposite of the nightmare of royal absolutism. Parliamentary absolutism equaled the collapse of the restraints and checks of the ancient constitution,9 and a likely prelude to further dissolution of all order into a “dark equal chaos of confusion.”
Along with a stubborn attachment to the established church, this doctrine formed the grounds of Charles’ resistance to the two houses. Charles had claimed the two houses had committed the same absolutist misdeeds of which he had been accused, and while he had been rehabilitated through reform legislation and personnel changes, his reckless opponents had done far worse. His opponents rejected the argument as a false moral equivalence; his supporters embraced it as welcome polemical high ground.
The immediate context aside, however, the issues lingered on, as new contingencies redefined them. Parker, pamphleteer of the moment and scribbler on behalf of political insiders, restated and expanded key ideas in his most theoretical tract, Jus Populi (1644). He showed considerable familiarity with Jean Bodin and some with Hugo Grotius, while trying to ground popular sovereignty in a historical and conceptual separation of the political from the familial. But Parker did little to firm up his heady, facile identification of popular and parliamentary sovereignty. The identification could not survive the self-interest and self-dealing of the “new class” of perpetual politicians of the Long Parliament.10 Accordingly, the “reserves” of the famous first Agreement of the People of the army radicals of 1647 cordoned off those things that even an otherwise omnicompetent Parliament could not do: force religion, impress men, and modify the foundational commitment to a soldiers’ indemnity. Leveller writers joined Royalists in tracing the Long Parliament’s transgressions to its seizure of executive and judicial power. Later, in 1654, the most powerful justification for the Instrument of Government echoed the Answer’s claims of ancestral wisdom for the separation of legislative and executive power.11
Another enduring constitutional conundrum for the English has been the relationship of two profoundly central constructs of national political identity—the sovereignty of Parliament and the primacy of the common law. Were they ultimately at odds or could an accommodation be found? Could jurisdictio be separated into legislation and jurisprudence? One answer was to use the separation of powers to preserve, though also to tame, the populist beast within republican thought. In this way, the separation of powers became the widest bridge linking the republican- populist and constitutionalist-liberal traditions. That it should be so closely tied to an otherwise obscure royalist salvo in an interminable but mostly forgotten war of words, is an irony both to ponder and savor.
Footnotes
Henry Parker, Observations upon some of his Majesties late Answers and Expresses (London, 1642), 2, 45.
Charles I, “Answer to the XIX Propositions,” in An Exact Collection of All Remonstrances, comp. Edward Husbands (London, 1643), 320–2. Emphasis of “government” and “governed” added.
The single volume is Husbands, as cited above; the many pamphlets were most fulsomely collected in George Thomason’s collection, now incorporated into EEBO.
Sir John Fortescue, On the Laws and Governance of England, ed. Shelley Lockwood (Cambridge: Cambridge University Press, 1997).
On the first ordinances, see Michael Mendle, “The Great Council of Parliament and the First Ordinances: The Constitutional Theory of the Civil War,” Journal of British Studies 31, no. 2 (1992): 133–62.
Parker’s celebrated Observations was preceded by the less noticed Some Few Observations. For the details, see Michael Mendle, Henry Parker and the English Civil War: The Political Thought of the Public’s “Privado” (Cambridge: Cambridge University Press, 1995), 82–8, 192.
The most recent treatment is David Como, Radical Parliamentarians and the English Civil War (Oxford: Oxford University Press, 2018), 107–22. See also Michael Mendle, Dangerous Positions: Mixed Government, the Estates of the Realm, and the Answer to the XIX Propositions (University, AL: University of Alabama Press, 1985), 165–70.
Mendle, Dangerous Positions, ch. 1, 8.
The locus classicus of this notion remains J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century, 2nd ed. (Cambridge: Cambridge University Press, 1987 [1957]).
I am using the term in the spirit of Milovan Djilas, The New Class: An Analysis of the Communist System (New York: Praeger, 1957).
On these writings, see Michael Mendle, “The Royalist Origins of the Separation of Powers” in Royalists and Royalism in the English Civil Wars, ed. Jason McElligott and David L. Smith (Cambridge: Cambridge University Press, 2007), 182–5.
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