CONSTITUTIONALISM

CONSTITUTIONALISM. The modern concept of constitutionalism involves a political system of checks and balances, regulated by law and designed to protect the liberty of individuals and enable their participation in politics. A constitution may take written form, as in the American constitution of 1787, or it may consist of an assemblage of legal statutes and precedents collected over time, as in the United Kingdom. The word "constitutionalism" did not exist in early modern Europe, but most of the ideas behind it were frequently expressed. A constitution generally meant the creation of a law or statute. However, political institutions and individual liberty were long seen as the products of custom rather than deliberate lawmaking. Checks and balances were thought to be embodied in a limited monarchy or mixture of monarchy, aristocracy, and democracy. The idea of the separation of legislative, executive, and judicial powers did not become clear until the eighteenth century.

FRANCE

Claude de Seyssel's La grant monarchie de France (1519; The great monarchy of France) was representative of early French constitutional thought. Seyssel (c. 1450–1520) was a bishop and a jurist high in the counsels of Louis XII (ruled 1498–1515), and his book was intended as a guide for the next king, Francis I (ruled 1515–1547). He insisted that the king must observe what he called la police, meaning the institutional structure of the realm, which included such fundamental laws as the rules of royal succession and the inalienability of the royal domain. The king was restricted by two other "bridles" (freins), religion and justice. The clergy and the high court of the parlement were supposed to advise the king accordingly. In practice the regime of Francis I became increasingly authoritarian, and constitutional ideas were seldom voiced until the monarchy proved unable to cope with the civil and religious conflicts of the second half of the sixteenth century.

An important jurist who did not align himself with those who extolled the rights of the king was Charles Du Moulin (1500–1566). He agreed with Seyssel about the fundamental laws and demanded that the royal administration serve the cause of justice. Looking to remote Carolingian precedents, Du Moulin found supreme authority in early Frankish assemblies of the realm, and while he respected the royal authority, he saw the king's function as primarily administrative. His main interest lay in customary law, which he regarded as the result of consensual and contractual agreements. Property and private laws were distinct from public or enacted law. Du Moulin was at the center of a movement to record and standardize the multiple bodies of private customary law.

Another jurist of great distinction who stressed the importance of ancient custom was the Calvinist François Hotman (1524–1590), but, unlike Du Moulin, he placed it in the realm of public law. The radical message of his constitutional history of France, Francogallia (1573), was that French political institutions were derived from the customs of the Franks who had liberated Gaul from the Romans in the fifth century. Frankish assemblies had been the custodians of the fundamental laws and had had supreme authority over kings. The perfect and mixed constitution had long endured, but it had gradually been corrupted and ought, according to Hotman, to be restored. This message was adopted by Huguenot pamphleteers during the Wars of Religion, and it belonged more to polemical resistance theory than to objective constitutionalism.

In the late sixteenth century, concepts of the absolute sovereignty of the king were developed in opposition to doctrines of resistance. Constitutional ideas did not entirely disappear, however. They were expressed by the jurist Étienne Pasquier (1529–1615), who defended the authority of the crown while claiming the right of the so-called sovereign courts to review royal legislation. His Recherches de la France (Researches on France, published serially from 1560; first complete edition, 1621) held the parlement to be the true descendant of the Frankish assemblies and denied the role of the representative Estates-General, thought by Hotman to have inherited supreme power in the state from the Franks. Another jurist, Guy Coquille (1523–1603), presented a particularist kind of constitutionalism. Solicitor general in the duchy of Nevers, he defended and compared local rights and privileges enshrined in provincial codes of customary law. His Coutumes du pays et duché de Nivernais (1605; Customs of the region and duchy of Nivernais) and Questions et réponses sur les articles des coutumes de France (1611; Questions and answers on the articles of the customs of France) were widely respected.

SPAIN

The existence of representative assemblies (Cortes) and specified liberties (fueros) in the Iberian peninsula suggested a measure of constitutional balance, but an increasingly centralized royal bureaucracy tended to negate these institutions. For the most part constitutional thought in the sixteenth and early seventeenth centuries was general and speculative. Among such theorists were the Dominican Domingo de Soto (1495–1560) and the Jesuits Luis de Molina (1535–1600), Juan de Mariana (1536–1624), and Francisco Suárez (1548–1617). They all followed Scholastic tradition and held chairs of theology at Spanish or Portuguese universities. They were agreed that monarchical authority had originally been created by some kind of irrevocable communal contract, but only Mariana believed that this made the king the delegate of the people. While supporting royal authority, they thought that consent was needed for taxation. However, in his work De Legibus (1612; Concerning the laws) Suárez stated that the king could break the fueros in the interest of the common good. He admitted that in some states the community could reserve certain powers under the original contract and thereby create a mixed monarchy, but this was not the case with the Spanish crown. In contrast, Mariana placed greater restrictions on the king and even endorsed tyrannicide in his De Rege et Regis Institutione (1599; On the king and his education). He illustrated these limitations in his Historiae de Rebus Hispaniae (1592; Histories of the affairs of Spain).

GERMANY

Complex as were the institutions of Castile and the more contractual arrangements in Aragón, Catalonia, and Valencia, they were simplicity itself when compared with the tortuous organization of the German empire. Tensions between the emperor and the seven electoral princes, together with disputes between the non-electoral princes and the free cities, who formed the other two houses of the representative diet, were complicated by local leagues, administrative circles, and a double system of justice. During the conflicts of the Reformation some arguments were made in terms of constitutional law, but no theorist was able to rationalize the constitution of the empire as a coherent whole. In the seventeenth century various jurists tried to adapt the definition of sovereignty offered by Jean Bodin (1530–1596) to Germany, but this produced more heat than light. The only persuasive solution was advanced by Samuel Pufendorf (1632–1694), who was a professor of law at Heidelberg and later at Lund before becoming court historiographer at Stockholm and then at Berlin. Law and history complemented each other in a mind that adjusted political taxonomy to change over time. His De Jure Naturae et Gentium (1672; Law of nature and of nations) was comparable to the celebrated work of an earlier Dutch jurist and historian, Hugo Grotius (1583–1645), De Jure Belli ac Pacis (1625; On the law of war and peace). Law and history were combined in Pufendorf's De Statu Imperii Germanici (1667; On the constitution of the German empire). There he combined the concept of a federal state, similar to the constitution of the Netherlands, with a distinction between regular and irregular forms of government. The empire "constituted itself from a regular form of monarchy and an irregular form of state, which is no longer a limited monarchy, whatever appearance of such it may have, but nor is it a federation of several states, since it represents something between the two." Pufendorf preferred monarchy and abhorred radical resistance theory, but he approved of the English Revolution of 1688.

ENGLAND

The settlement after the Revolution of 1688 was the culmination of political conflict and constitutional speculation. The main issues had been the relationship between the monarch and the other two components of Parliament, the Lords and the Commons, together with a peculiarly English concept of the common law as the controlling element in the constitution. England was usually seen as a mixed or tempered monarchy that allowed the ruler a special prerogative but gave supreme authority to the king in Parliament. On the one hand Parliament's function was regarded as the making of positive law; on the other it was viewed as a high court that found and declared ancient customary law.

In the fifteenth century Sir John Fortescue (c. 1394–c. 1476), chief justice of the common law court, the King's Bench, declared in his De Laudibus Legum Angliae (first printed 1537; Praises of the laws of England) that statutes were made by the will of the king with the assent of the realm represented in Parliament, and that England was governed by a participatory and regal system (dominium politicum et regale), in contrast with the pure monarchy (politicum regale) in France. With the assumption of royal power over the church by the Tudors during the Reformation the idea of legislative sovereignty in a nation-state came near to realization. Sir Thomas Smith (1513–1577), a jurist, diplomat, and secretary of state, declared in De Republica Anglorum (1583; On the commonwealth of the English) that Parliament was "the most high and absolute power in the realm." At the same time Smith was a vigorous defender of the royal extra-parliamentary prerogative.

With the advent of the first two Stuart kings (James I, ruled 1603–1625; Charles I, ruled 1625–1649) the crown adopted the theory of the divine right of kings and asserted royal authority over Parliament. At the same time the common lawyers claimed the supremacy of immemorial customary law. Their leader was Sir Edward Coke (1552–1634), who, after his dismissal as chief justice of the King's Bench in 1616, became a member of the Commons and a defender of parliamentary privilege. As a judge he was even prepared to disallow a statute if, in his view, it contravened common law. After governing without Parliament for eleven years, Charles I gradually yielded ground and agreed to such measures as the attainder and execution of his first minister and the abolition of the conciliar courts established under the Tudors as rivals of the common law courts.

Just before the outbreak of civil war in 1642, Parliament presented the king with nineteen propositions further restricting his rule. In reply moderate advisers of the king made the tactical error of admitting that the constitution was indeed a mixed one, and that the Lords and Commons held coordinate, instead of subordinate, power with the crown. For its part Parliament did not try to depose the king at this point but tried to attract moderate opinion by asserting a difference between the office and person of the king and its right to exercise the former while he remained under the influence of socalled "malignants." After the civil wars Charles I was tried and executed. England became a republic while a series of constitutional experiments were attempted under the aegis of the parliamentary general, Oliver Cromwell (1599–1658). There were even some radical proposals, never implemented, to create manhood suffrage and annual parliaments.

The civil wars were accompanied by a vast polemical literature supporting the royal and parliamentary causes. A more detached commentary on the constitution was written by an obscure Wiltshire clergyman, Philip Hunton (c. 1604–1682). His Treatise of Monarchy (1643) favored Parliament while treating the crown with respect. Established by a fundamental contract, the constitution of England was a mixed monarchy wherein the king controlled the executive while king, Lords, and Commons shared legislative power. In a mixed monarchy the ruler was limited by definition, but a limited monarchy need not be mixed if the contract gave authority to the crown alone but limited it by fundamental laws. Since Charles I had invaded the rights of the two houses, Parliament was acting in defense of the constitution, but there could be no superior tribunal to judge the king, else England would not be a monarchy at all. Despite its moderate tone, A Treatise of Monarchy provoked much royalist criticism and was republished during the political troubles of Charles II (ruled 1660–1685).

Under the Restoration the constitution resumed the forms it had taken before the civil wars, including some of the concessions made by Charles I. The struggle to exclude from the succession the king's Roman Catholic brother, the future James II (ruled 1685–1688), stimulated the composition of two works that were later assumed to justify the socalled Glorious Revolution of 1688: Discourses concerning Government (first published 1698) by the republican statesman Algernon Sidney (1622–1683) and Two Treatises of Government (1690) by the physician and philosopher John Locke (1632–1704). Sidney, who was well-read in the resistance literature of the French Wars of Religion, popularized the so-called "Gothic" theory of ancient European institutions, based on Hotman's idea in Fran-cogallia that the Germanic tribes invading the Roman empire had brought with them admirable constitutions. Locke based his political theory on the protection of indefeasible individual rights of life, liberty, and property enjoyed in a sociable but inconvenient state of nature. By an original contract individuals had set up a community in which the majority were empowered to set up a form of government. The outcome was rather similar to Hunton's constitutionalism, since power was divided between an executive and a shared legislature. Locke added a third element, the "federative," by which he meant power to protect the state against external enemies. The community had no right to resist the established powers, but if the government collapsed through its own divisions, society had a constituent right to set up a new regime.

The final element in early modern constitutionalism was the separation of powers doctrine, hinted at but not developed by Hunton, Locke, and others. It was defined by Charles-Louis de Secondat, baron de Montesquieu (1689–1755) in the eleventh book of his De l'esprit des lois (1748; Spirit of the laws). To complete the system of checks and balances Montesquieu added the judicial element to the legislative and executive, thus incorporating the shade of the English common law myth. He also repeated the legend of the Gothic constitution, declaring that the origin of the most satisfactory kind of government was to be found in the forests of Germany. Although seen by some as conservative and aristocratic, Montesquieu's theory was to influence the written constitutions of the American and French Revolutions.

BIBLIOGRAPHY

Primary Sources

Elton, G. R., ed. The Tudor Constitution: Documents and Commentary. 2nd ed. Cambridge, U.K., 1982.

Hotman, François. Francogallia. Edited by Ralph E. Giesey. Translated by J. H. M. Salmon. Cambridge, U.K., 1972. With commentary by the editors.

Kenyon, J. P., ed. The Stuart Constitution: Documents and Commentary. 2nd ed. Cambridge, U.K., and New York, 1986.

Locke, John. Two Treatises of Government. Edited by Peter Laslett. Cambridge, U.K., and New York, 1988. With commentary by the editor.

Montesquieu, Charles-Louis de Secondat, baron de. The Spirit of the Laws. Translated by Thomas Nugent. New York, 1949.

Seyssel, Claude de. The Monarchy of France. Translated by J. H. Hexter. Edited by Donald R. Kelley. New Haven, 1981.

Secondary Sources

Church, William Farr. Constitutional Thought in Sixteenth-Century France: A Study in the Evolution of Ideas. New York, 1941.

Dufour, Alfred. "Pufendorf." In The Cambridge History of Political Thought, 1450–1700. Edited by J. H. Burns. Cambridge, U.K., 1991.

Friedrich, Carl J. Constitutional Government and Democracy: Theory and Practice in Europe and America. Boston, 1941.

Lloyd, Howell A. "Constitutionalism." In The Cambridge History of Political Thought, 1450–1700. Edited by J. H. Burns. Cambridge, U.K., 1991.

McIlwain, Charles Howard. Constitutionalism: Ancient and Modern. Rev. ed. Ithaca, N.Y., 1958.

Pocock, J. G. A. The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century. 2nd ed. Cambridge, U.K., and New York, 1987.

Scott, Jonathan. England's Troubles: Seventeenth-Century English Political Instability in European Context. Cambridge, U.K., and New York, 2000.

Shklar, Judith N. Montesquieu. Oxford, 1987.

J. H. M. SALMON

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