Francis Bacon's brief in Calvin's Case was the "meme," the institutional genome - the mimeme replicator, of constitutionalism for both England and America

  Harvey Wheeler

(1)Based on papers delivered at a conference at Birkbeck College in 2001
and at a Conference at Marlbourg Academy in 2002.

_____________

There are several books on The Tudor Constitution and the Stuart Constitution but those titles beg the question: did Tudor and Stuart England possess a "constitution"? Does the term constitution import an anachronistic impression of organizational coherence? The usage has been quite common since the 19th century. Today's scholars, following the lead of Hallam(2), refer to the "Stuart Constitution". It would be more appropriate to use the term "kingship" - the changing forms of pre-modern kingship. For those times the term "constitution" conveys an erroneous sense of an all encompassing container when that is exactly what was absent. "Constitution:" is an academic institutional projection. No 17th century contemporaries used that term in our sense. It is an unintended residue of Whig Historicism; of reading history backward rather than forward, as the sainted Maitland cautioned against. Hallam, for example, described a 1607 decision of the Court of Exchequer as threatening "the entire overthrow of our Constitution.(3)" He was more accurate when he called the Court of Exchequer "an intermediate tribunal between the King's Bench and Parliament." (4)

In retrospect we can see that Calvin's Case,(1608) in Bacon's hands, was a search for a constitution before there was such a thing. That is its importance. It shows how constitutional law might have been applied, had there been such a thing. The term "constitution" was unknown in Bacon's time. Ages before, there had been the "Constitutions of Clarendon" (1164) but they were agreements, within the Roman law meaning of that term. Bacon's brief in Calvin's Case was the "meme," the institutional genome - the mimeme replicator, to invoke Richard Dawkins (5) - of constitutionalism for both England and America, but not until the 18th century.

Bacon used the term constitution only once, and that in the civil law sense. He referred to a "law or constitution" of ancient Rome. This occurred in Calvin's Case (6)but Spedding, though he throughly indexed Bacon's writings, failed to note it. Spedding's first index is at the end of volume X; the second at the end of volume XV. They are intensive, copious and reliable yet neither the term constitution nor any of its derivatives is found in either index.(7)

The OED defines "constitution", the verb, as the act of initiating or making and lists one Latin use by Littre in the 12th century and a 1582 New Testament reference to "before the constitution of the world." It goes on to say that in 1592 [a man named] West wrote of "the constitution or making of an obligation"; and that Hobbes, in the Leviathan wrote, "before the constitution of sovereign power all men had the right to all things." In 1620 however Hall referred to "the constitution of the commonwealth of Israel," and by 1647 Clarendon's use is close to the modern meaning. "Constitutional" - referring to government not physiology, first appears in Blackstone in 1765; "Constitutionalism" dates from no earlier than Southey in 1832.

Non-constitutional states were the rule in medieval times. Kantorowicz has described the medieval history of states in terms of the two bodies of the king.(8) Gierke has provided the most discriminating analysis of non- constitutional medieval government, whose regimes he described as exhibiting Natural Law [Scholastic] conceptions of "double majesty:"

"...a separate personality of the Ruler, distinct from that of the People, was generally recognized as the "Subject" of the rights of government....The dualism of the two personalities - that of the Ruler and that of the People - was an obvious survival from the medieval State, with its system of Estates confronting the King; but it was in marked contradiction to the unitary tendency of the modern State." (9)

Prior common law rulings by judges were of little substantive relevance to conflicts like that in Calvin's Case. The ordinary way of treating them was of no help. Coke upon Littleton(10) is a perfect example of imprecision in the use of prior rulings. "Maitland remarks that it is always difficult to pin Coke to a theory. It is sometimes impossible to pin him to a fact.(11)" Finding the unwritten law behind the rulings of judges was highly unreliable until after Bacon perfected a law-finding method. His brief in Calvin's Case demonstrated his new method.(12)

Lacking either law or a constitution, Bacon, as if reading from Gierke, called upon a substitute: The Law of Nature. It was not easy to pull off.

One could not simply say 'the Law of Nature solves the problem.' On the contrary, Natural Law, in the later constitution-founding sense of Hobbes and Locke, did not exist either; Bacon was its inventor. There are more references to natural law and the grounding of political relationships on nature and natural origins in Calvin's Case than in any other case of the time. The Natural Law of the scholastics and the Schoolmen did of course exist. Bacon did not use it in their theological meaning. Rather, he turned Natural Law on its head, as he was already doing with Platonic Form (13) in his scientific writings. This requires a clarification: was Bacon an anachronistic medievalist here, or was he a prescient modernist? Two of today's greatest Bacon scholars maintain the former. Their work is superb.(14) I shall try to put the case for Bacon's Natural Law differently.

Bacon's approach was diagnostic rather than antiquarian. He treated all knowledge the way Raleigh did the New World : first he explored it; then he mapped it; next he converted it to his own needs; finally he anointed it under his own imprimatur. Bacon elevated Britain's pervasive paradoxes into a dualistic model. He found a similar dualism everywhere he looked : religion, the state, society, philosophy and logic. He based his major treatises on a dualistic structure. It can be traced through his writings on law, politics and finally, as the fact/value rubric he bequeathed to British scientific empiricism.

The evidence is complete but scholars find it hard to draw its plain implications. Collateral evidence of the deep-seated history of the dualism like that found in Calvin's Case is called "double majesty" by Gierke.(15)" Further confirmation is provided by Kantorowitcz's studies of the king's two bodies (16), and in McIlwain's king/law dualism of Crown and Parliament. (17)Most persuasive is Bacon's chart (see below) of a doubly dualistic government.

Its polarities are nowhere resolved but its consummation is described toward the end of the 17th century in the work of Justice Hale. These dualisms can be understood intellectually but not practically. Our faculties of understanding do not metabolize them well.

Sovereignty is part of our problem. Our teachers taught us out of John Austin that in order to have a state - a modern nation-state - there has to be some identifiable place way up high where ultimate legal omnicompetence rests. That's the way the world was supposed to run. Kings claimed monarchies worked that way. Forget the medieval "Two Swords" of the Pope of Rome and the Holy Roman Emperor; it didn't work. Forget Double Majesty, James Harrington was right: it was a form of gunpowder, not government.

Nation-states, facts to the contrary not withstanding, are supposed to be pyramids of authority. That's the way the early twentieth-century organization chart theory of management graphed the proper corporation. There was no such power and no such place in Bacon's England. In fact, England had almost never worked that way even though the Tudors - "Tudor Absolutism" - tried to make it appear that way; and even though the Stuarts claimed it should, by divine title, work that way. We must rethink the dogma that dualistic authority structures are impossible.

Bacon's diagnosis in Calvin's Case described three possible conditions relating to the case:

1. England and Scotland are united in law.

2. England and Scotland are united in the person of the king; one natural person is king of both.

3. Laws and parliaments of the two countries are separate.

There are three crucial topics: King, Law and Naturalization. This makes it necessary to "visit and open the foundations and fountains of reason" concerning each of the three elements.(18) To do this Bacon followed "the ancient and exact form of pleading", which was actually his own form of analysis described that same year, 1608, in Cogitata et visa(19) which is,

First, to explain or induce, [investigation]
Then, to confute, or answer objections, [eliminative exceptions]
And lastly, to prove, or confirm.(20) [tentative maxim]

They are the stages later to be developed and extended to all science in Novum Organum.

Next are some highly philosophical definitions. He even refers in passing explicitly to Aristotle and the "schoolmen." Bacon was looking for relevant naturalization precedents from both the common law and the prerogative sources. In effect, he sought a "higher law" in both realms; an implicit constitutional law relevant to the case and providing an area of correspondence applying to both domains. Bacon charged directly into philosophical and theoretical issues that were to arise again with Hobbes, once Bacon's assistant, and Locke; and in America, Madison and Wilson. Here is Gierke's analysis:

"The intellectual force which finally dissolved the medieval view of the nature of human Groups was the Law of Nature.... The Law of Nature issued in a natural-law theory of the State; and it was by developing such a theory that it affected the movement of history most powerfully. The natural-law theory of the State was a guide to all the political efforts and struggles from which the modern State proceeds.... In opposition to positive jurisprudence, which still continued to show a Conservative trend, the natural-law theory of the State was Radical to the very core of its being." (21)

Bacon, as if copying out of Gierke, wrote that the foundation of naturalization is in natural law - a special secularized natural law - not positive law. In monarchies allegiance "is grounded upon nature.(22)" All varieties of allegiance are "natural and more ancient than law."(23)

As for law:

"[T]oward the king himself the law doth a double office or operation: the first is to entitle the king, or design him.... The second is... to make the ordinary power of the king more definite or regular.... And although the king, in his person, be solutus legibus, yet his acts and grants are limited by law, and we argue them every day." "[A]s the common law is more worthy than the statute law; so the law of naure is more worthy than them both."

This approach has been called feudal and medieval by Levak (24) and Coquillette(25). Just the contrary; Bacon uses a natural law approach to laydown definitions of king, law and naturalization. We are in a rare and rarified domain of a new proto-constitutional theory of English government. Bacon begins by citing a ruling in a land title case holding that the judge,

"would never allow that Queen Elizabeth ... should be a statute Queen, but a common- law Queen."(26)

- a seldom expressed sentiment. Then Bacon goes much further into the realm of the "law of nature" and makes kingship "natural", again foreshadowing Hobbes and Locke :

"for as the common law is more worthy than the statute law; so the law of nature is more worthy than them both."(27)

Next the phenomenology of kingship gets even more interesting :

"The natural body of the king hath an operation and influence into his body politic, as well as his body politic hath upon his body natural; and therefore, that although his body politic of king of England, and his body politic of king of Scotland, be several and distinct, yet nevertheless his natural person, which is one, hath an operation upon both, and createth a privity between them."(28)

Bacon concluded that naturalization was based, not on any allegiance by the subject to a particular system of laws, or on any 'consent' given by the subject or by representatives of the populace in Parliament, but 'on the personal bond of allegiance' that existed between subject and monarch. This meant that the ante-nati would never be English subjects, but that the post-nati would automatically be English subjects without parliamentary action simply by operation of natural law. As Gierke pointed out, this is a transformation of the "feudal and medieval" leading directly to Hobbes - who had first hand knowledge of Bacon's arguments - and to Locke.

Theories of kingship for a thousand years had been based on the king's two bodies (29). The royal prerogative itself was dualistic: a royal prerogative absolute and a royal prerogative ordinary.(30-31) These were theories of kingship derived from the historical evidence about kings and kingdoms. The distinction here is a crucial one: Bacon describes Stuart kingship as seen by the common law of England through the law of nature. This demonstrates that the common law recognizes the natural law basis of the king's two bodies. The result Bacon produces is a new dualistic natural law proto-constitution of England's monarchy. This is the dualistic structure that provided the basis for the constitutional struggles and theories of the future, in both England and America.

As a result of Calvin's Case the common law of England recognized the naturalization of Scottish subjects of the king of England. The nature of "submissions" [to authority] was said to provide a natural base for obedience and loyalty more ancient than law. The basis for monarchy was in natural law. The "double office" of monarchy, said Bacon, is that law and royal power move together and strengthen each other. Law is "sinues", sovereignty is "spirits".

The law's double office is to entitle, and to regularize. Here is the most famous statement from the case:

"Law is grounded on the law of nature and favors life, liberty and dower."

Isn't it true, he asked the judges, that :

"...the law favoureth three things, life, liberty, and dower?(32) And what is the reason of this favour? This, because our law is grounded upon the law of nature, and these three things do flow from the law of nature: preservation of life, natural; liberty, which every beast or bird seeketh and affecteth, natural; the society of man and wife, whereof dower is the reward, natural...., and doth not the self-same reason hold in the present case? For, my lords, by the law of nature all men in the world are naturalized one towards another; they were all made of one lump of earth, of one breath of God; they had the same common parents;... It was the civil and national laws that brought in these words and differences of civis and exterus, alien and native. And therefore because they tend to abridge the law of nature, the law favoureth not them, but takes them strictly.... [A]ll national laws whatsoever are to be taken strictly and hardly in any point wherein they abridge and derogate from the law of nature.... Furthermore, as the law of England must favour naturalization as a branch of the law of nature, so it appears manifestly, that it doth favour it accordingly".

Bacon's conclusion is that

"[T]he law of England must favor naturalization as a branch of the law of nature..."(33)

Note that there is nowhere in the government Bacon describes a point of legal omnicompetence; no "sovereignty." Two structures, law and kingship, exist side by side. Both derive from the law of nature. Neither is subordinate to the other. England's proto-constitution is dualistic.Consider further Bacon's design of England's dualistic government as a clue to the structure of his other theories. He was a systematic dualist.

Turn to his non-scientific writings. A chart of their organizational structures yields a set of nine dualistic diagrams. Most of his main writings have dualistic structures, and so do most of their subordinate subdivisions. Not even head topics were always monistic! Some were binary, as with a marriage.

In the state described in Bacon's Calvin's Case, ultimate sovereignty resided... nowhere. Question: What in fact resided in the place where sovereignty should have been? Again, Calvin's Case furnished the lead: "Negotiation" was his term. All the chiefs of the courts and the crown meeting in a high council, as they did for Calvin's Case. Negotiation, Bacon had written, is the only resolution possible in the politics of the irresolvable. He repeated an analog of this and extended it in his political science writings - his name for political science was "Civil Science."

Negotiation seems disappointing. It appears to us to convey such a spineless idea - like arbitration. It is outside of the idea of legal sovereignty; alien to the sovereign heliocentricism of Newtonian mechanics; inconsistent with the closed causal positivist model that early twentieth-century social science coveted. Of course, dualism is a perfectly reasonable rubric for a transitional society like Bacon's England; and come to think of it, not even Plato, reputedly the prime theorist of the closed society, was able in his most tightly closed version - The Laws - to make do without the conflict-resolving office of a Nocturnal Council.

How does Bacon's Civil Science, his applied social science work? The same in his social philosophy as in the Regency he ran when James took his royal court for an extended vacation in Scotland. The king left his new Lord Chancellor behind in charge of the realm. Bacon ruled with alacrity and elegance. Working with his "negotiation" model he convened in his Chancery the leaders of Commons and the Chief Judges. The way it worked is described in New Atlantis. (34) At the pinnacle of its government stands a super chancery serviced by a staff secretariat. It includes a high level "Statesmanship" (negotiation) council; a "Civil Science" R&D policy research agency; and a "Reconstruction" office in charge of the Salomon's House chancery of the sciences. There is also an office for improving the state of the union - curious that these terms would echo in post Civil War America.
Under "Civil Science", Negotiation has two branches: Competitive and Administrative. Administrative means managing the resolution of conflicts."Competitive" does not mean the unseen hand of Adam Smith's market mechanism, which is still far in the future. Rather it is an administrative application of the equity law process of the Chancery. "Restructuring" is today's term. In Bacon these operations applied to everything from inter-personal strife to social conflict: contained revolution, so to speak. Bacon was a precocious system-theoretic revolutionary in every field he touched. He even beat Thomas Kuhn to the theory of scientific revolutions by 375 years. The historian of this field, I. Bernard Cohen, failed to discover that Bacon was its founder.(35) In each department of culture, revolution had the same bi-polar dialectical structure. Bacon diagnosed accurately the prospects for rebellion emerging out of the religious conflicts of north England. He even toyed with the idea of sublimating that potential rebellion through a diversionary war (shades of the American presidency!), proposing an external enemy to sublimate domestic strife, but rejected that and prescribed instead a negotiation-type antidote.

Actual revolutionary violence was a political (negotiation) failure. A proper government, run according to the principles of Civil Science in Bacon's philosophical writings, would have a built-in Reconstruction feature. His Civil Science was what we would call an applied political science and it made up the largest part of Bacon's social philosophy. In New Atlantis he put it under "Salomon's House," the super chancery that ran everything, and included special departments for institutionalized problem-solving and innovation- generation. Bacon's proto-constitutionalism had change and transformation built into its foundations.

That is the way his brief in Calvin's Case interpreted England's Double Majesty government. Britain was in fact a dual state. Each basic component institution was like a cell undergoing a binary fissioning process. In Bacon's England the internal components, like the state at large, were unravelling. The dualistic government of Calvin's Case described that generalized national situation accurately.

The main form of governmental transition is the dual state. The idea of the baroque brings home to us this understanding. Carl Friedrich's Age of the Baroque (36) appeals immediately. Baroque popularly means style but style is a container that lends identity to diversity. Everywhere the baroque style composed what was vanishing with what was emerging. The baroque expressed well the contained polarities that characterized the stylized dualism of the leading institutions of Stuart Britain: a baroque natural law crown of unity cresting a coat of many arms:

The Baroque form of government as the Institutionalization of Revolution? Revolution? Yes; but if revolution is institutionalized what is it? Transition? Evolution? "punctuated equilibrium"? Darwinian mutation?

What is political selection as distinguished from natural selection? Have there been any prior models? What about today? Is it the way the common law process generates new rules to deal with new situations? That was Bacon's invention in Calvin's Case.

No other state form could have survived for the century or so between the fissionable Crown of Elizabeth I and the institutionalized government fissioning process inaugurated with the Parliament of William & Mary. We know it as the celebrated British device of separating Parliament into the Government Of The Day and The Opposition so issues can be split into their dialectical components. When an issue cannot be resolved in Parliament it is a "crisis." If negotiation by the "crown in parliament" fails, the conflict is - used to be - taken to "the country" for resolution. But a century was required to convert Bacon's dualistic model into a dialectics of politics. James Harrington writing after Bacon's death, proved right. The dual state of "Calvin's Case" could turn into a form of dynamite rather than government and in fact it soon did explode into the Civil Wars. The Glorious Revolution restored not only a monarchy but also an institutionalized form of the Bensalem of New Atlantis. Whig constitutionalism was Baconian Civil Science designed to transform a bi-polar split in Parliament into a government reconstruction process.

Compare again Bacon with Sir Edward Coke, known popularly as the father of the common law but its leading historians, Holdsworth(37) and Plucknett(38) gave Bacon primacy, especially for inventing the modern law-finding process. Recall that Charles Darwin was an avowed Baconian; compare his description of biological selection with the way today's common law generates new rulings to deal with new facts. Darwin's selection model generates new species the way the common law selects and combines precedents to produce new rules of law. It is the same way in principle that the Baconian model converted a government gridlock into the foundation for a future constitutionalism. Calvin's Case stated that the crown colonies related to the king's imperial crown as the British Parliament did to the king's British (common law) crown, and as did Scotland to the king's Scottish (Roman Law) crown. The completed "Union of the Crowns" took several more decades to accomplish.

Modern constitutionalism, in its embryonic stages, rested on a system of dual sovereignty. This is the basis for the most important of the extended constitutional effects of Calvin's Case. No wonder Bacon writing a legal brief as Attorney-General encased England's power maelstrom in a political Exchequer reactor chamber - a fitting metaphor for the double majesty he described.

But how can the settled common law and a power maelstrom live together? This was Bacon's second constitutional innovation. My analysis of it is in "The Constitutional Ideas of Francis Bacon.(39)" Unnoticed, England had evolved a new crown that Bacon called the "corporation of the crown;" a collective and collaborative thing different from any other corporation in the realm. It had emerged in meeting the necessities for holding together both state and empire.

It would later make possible the crown-in-Parliament. It was pioneered functionally by Bacon himself in his many negotiation sessions in the Exchequer Chamber, as regent, and is described more fully in New Atlantis.

The capstone is found toward the end of the last volume of Bacon's Works. It is a chart describing Bacon's dualistic "constitution". I suspect he drafted it in preparing to write the brief for Calvin's Case. It lays down the foundations for the different but identifying features of both British and American constitutionalism. Moreover, later there is another startlingly similar chart. It was prepared toward the end of the 17th century by Justice Hale. These two archeological finds, Bacon's and Hale's, were doubly dualistic organization charts of the structure of the British constitution.

Bacon's chart reflects the dualism that pervades Calvin's Case. A doubly dualistic diagram of the "twofold power of the law" and the "twofold power of the king." It is hidden in an obscure appendix six pages before the end of the last of the fifteen volumes of the Boston edition of the Spedding Ellis & Heath Works of Francis Bacon. The brilliantly concise chart diagrams precisely the governmental structure I'd drawn out of Calvin's Case. It is not signed and Spedding quite properly gives it qualified authenticity. The three page fragment is entitled "Cases of the King's Prerogative." It is authoritatively dated at the year of Calvin's Case, 1608. Although it is thoroughly Baconian in style and substance one cannot guarantee he wrote it. Whether or not he was the author it was certainly familiar to him. It accurately depicts what he described in Calvin's Case and stands as a certified contemporaneous organization chart of Stuart government. Thomas Hobbes would have known about it. Possibly he drew upon it later.

It was Francis Wormuth who showed me the second chart by Hale. He had copied the Hargrave MS no. 490 from the British Museum. It is Lord Hale's description of the British Constitution as of about 1670. In his "Analysis of the Crown" Hale acknowledged he'd based his theory of kingship on Bacon's jurisprudence. He was the first to write a legal analysis of the monarchial constitutionalism that was later introduced by the Glorious Revolution of 1688. Hale charted a constitutional dualism of Government and Prince with no conciliatory authority above them. Each, as in Bacon's 1608 chart, had two sub-domains but then Hale added a new level, giving each two further sub-divisions.

Hale's chart explodes in the mind like an academic super nova. It confirms to the letter the extension of the model of Calvin's Case into Locke's two contracts, later compressed by John Austin into the rubric of "political and legal sovereignty." The two charts now lie before us like the vestigial archeological remains of the successive structures of two stages in the evolution of proto-constitutionalism. Calvin's Case is the Baconian genome out of which both English and American constitutions evolved.

Bacon's chart: Britain's "Constitution" in 1608(40):

Law and the King

I. A twofold power of the law

A. Direction

In this respect the king is underneath the law, because his acts are guided thereby

B. Correction

In this respect the king is above the law, for it may not correct him or any offense.

II. A twofold power in the king

A. His absolute power, whereby he may levy forces against any nation

B. His limited power, which is declared and expressed in the laws, what he may do.

Hale's Chart:

Britain's "Constitution" in 1667;

Government and the Prince

I. Government

A. General

1. Naturalis, Patria, Potestas

2. Civilis

B. Particular

1. In reference to the Governed

2. In reference to the Prince

I. The Prince

A. The Prince's Title

1. Of Denomination

2. Of Conquest, Descent, Usurpation

B. The Prince's natural and political capacities

1. Accidental defects: absence or infancy

2. Natural defects: Concilium Ordinarium and Concilia Extraordinaria

These are "stop-frame" pictures of Britain's ur-constitution. The first picture was taken before the Civil Wars and the second picture was taken before the Glorious Revolution.

In Bacon, the government is a corporation co-owned by law and the king, separate but equal, in their own distinct departments. In Hale, the corporation is dualistic but the king has become a prince and does not seem to be a full co-owner. The departments are essentially the same but are housed in separate quarters and are not cross-linked or mutually interpenetrating. The Prince's limitations are both genetic and conciliar. The government's powers derive independently from natural and civil (shades of Locke) sources. They apply to both the people and the prince. They have no visible limits.

British constitutionalism developed out of the institutional hegemony of the corporation of the crown: the Crown-In-Parliament branch of Bacon's dualistic state; American constitutionalism developed out of the republicanization of the autonomous Imperial Crown branch of Bacon's dualism. Here is how the two different mutations occurred :

Britain : Locke translated the natural law dualism described in "Calvin's Case" into the two contracts of Two Treatises of Government. The first treatise demolished Filmer's Patriarch - the contemporary form of James' Trew Law... The second treatise then converted Bacon's corporation of the crown into the crown-in-Parliament, consolidating under it legislative and "federative" powers. Locke's federative meant the nation's common concerns; number I under Hale's Government category. It was nothing like later American federalism. Justice Hale applied Bacon's jurisprudence to the development of Britain's rule of law foundations. The Crown-in-Parliament and the responsibility of crown ministers to Parliament was the institutionalized form of Bacon's Chancery "negotiation" process, explained fully in New Atlantis. It gave British constitutionalism a significant advantage: the preservation of an institutionalized from of resistance through the "constitutional convention" previously described. It was one of the "rules of the game" of Britain's "working" constitution and required the government of the day to resign and call an election if it lost the confidence of Parliament. This built-in form of crisis resolution was regarded as the distinguishing virtue of British constitutionalism until 1931 when it failed to work for the first time.(41)

It was the Great Depression. Liberal reforms were failing and a new financial crisis further discredited them. Instead of taking the issue to the country, Ramsay MacDonald, as a personal act, asked the king to approve a rightist coalition government of members MacDonald had recruited. The residual royal prerogative permitted the king to approve it as his own personal act. The ensuing debate has never been resolved satisfactorily. I called it a "conservative" crisis because it was the kind of crisis that strengthened conservatism rather than reform.(42)

My exploration in The Conservative Crisis: England's Impasse of 1931 indicated that a keystone of the operating conventions of the British "working" (as distinguished from a written) constitution had been undermined, rendering the British constitution crisis-prone. The attempted move from the Victorian negative state to the positive liberal welfare state was too fundamental a transition for established parliamentary conventions to accomplish. In both England and America it was done only through the second World War. Both countries are now dismantling much of what was done during World War II and the Cold War.

America : James Wilson translated double majesty into the dual national and State sovereignties of federalism. Republicanization of the corporation of the crown, a la James Harrington, led to the Separation of Powers. Separating law enforcing from law writing insured both and validated Separation of Powers.

When rebels make war and lose it is called a civil war; when they win it is called a revolution. The mid seventeenth-century Civil Wars produced Britain's only republican experience. America's eighteenth-century rebels drew on Calvin's Case to justify their rebellion. When they pulled off their own successful revolution, a war of independence, their theorists applied the republican doctrines of Britain's seventeenth- century Civil War theorists to republicanize the successor to the crown they had destroyed. Calvin's Case was the constitutional model they used in bifurcating sovereignty into a republican crown as central government and autonomous colonies as member states. That is how America's great contribution to political theory, federalism, was first invented. A Civil War of her own would be required to perfect that invention.

Historiography concerns the theory of writing history and of interpreting historians. The historiography of writings about the 17th century English constitution led me to develop a different approach I called "historiology", the theory of the time- sequential processes of change in and by human institutions.

Historiography: Two institutions have a common foundation. They evolve into quite different institutions. They then lead to a dispute about the source of their present differences. Each knows its present state is an authentic development. Each thinks their dispute can be resolved by reference to their common origin. Historiology: It cannot. It is not a Darwinian process. It is a cybernetic process.

This is something like the contemporary dispute over Palestine by three religions that associate it with their origins. Wars are fought over issues like this. At first glance it seems something like an argument by competing heirs of the original owner or owners. But an institution is like neither a hotel nor the land it occupies.

Human institutions differ from chattels. They are to some extent their own authors. They create institutions and then live in them. They try to set up regulative feedback controls over their trajectories through time. They are to that extent authors of their histories. Although this may seem obvious in the abstract it can create devilish difficulties in the application.

Here is the historical example: In 1770 Britain and the American colonies had both sprung from the "doubly dualistic" seventeenth century kingship described in Calvin's Case (1608). In 1688 Britain's Parliament swallowed up the crown and ratified the modified proto-constitution that resulted. Did the British Parliament automatically acquire the crown's previous authority over the American colonies?

Probably, if colonies were merely land. But colonies are societies: social institutions. Compare a Darwinian example: Assume that the giraffe and the elephant are both descended from the marriage of two kinds of rats: Gira-rat and Ele-rat. The English Gira-rat parent sends a bunch of Gira-rats to America. Later, the English Ele-rats have a civil war and conquer all the remaining English Gira-rats, making thesubservient. Did that make them boss over the American Gira-rats that had left England earlier? The English Ele-rats claimed yes. The migrated American Gira-rats said no. The American Gira-rats said that the civil war was just local English politics and did not affect them because they had their own independent Gira-rat inheritance and no English civil war could change that. It was their own birth-right. It is a silly example but it shows the twisted thinking historicism can cause.

Debates over similar issues were stirred up early in the twentieth century by C.H. McIlwain's American Revolution.(43) He claimed that the colonists had correctly interpreted British kingship (he called it "constitution") : Parliament had no right to legislate for the Americans. In effect the American Revolution had not been against British law: it was "constitutional," just as James Wilson claimed. McIlwain traced the precedents far back into medieval times when barons periodically, as at Runneymede, forced kings to live by feudal rules.

R.L. Schuyler answered shortly after with Parliament and the British Empire(44), arguing the acts of Parliament had been legitimate and citing many supporting precedents reaching back into the fourteenth-century. Many other scholars joined the search into "constitutional" origins.(45) At first I thought it would be a snap to resolve the issue. My work with Calvin Case proved conclusively that McIlwain was right; obviously.

No, not obviously. McIlwain and all students of the foundations of the American Constitution knew Wilson had cited Calvin's Case. But that was at the end of the 18th century. An historicism problem is at issue: Was a valid eighteenth century interpretation of the effects of Parliamentary supremacy a valid reading of a seventeenth century precedent? If the American Revolution had occurred in 1608 would the Wilson interpretation have been valid? No. Or rather, it would have been half right and half wrong.

Was McIlwain right? Or was Schuyler right? Does history support the American colonists?
Yes, in principle: the principle of opposition to authority in defense of the rule of law. No, not as an historical precedent. Taking the facts at face value history supports the eighteenth century Parliament that overthrew Stuart absolutism.

What "won" historiologically? The principle or the precedent? Civil disobedience in defense of the rule of law? Only if it is done against kings? Or the authority of Parliament to enforce its laws against rebels?

Nota Bene: Both kinds of interpretations can support both sides to the dispute! If one reads history forward rather than backward, as Maitland cautioned, both McIlwain and Schuyler were right about the contradictory historical precedents they cited - and both were wrong! Only I did not realize this until years later, long after publishing my own - inadequate - article on the dispute; only after a total immersion in early seventeenth century history.

The same precedents that support Parliament support Colonial resistance to Parliament. What is the conclusion? Historiography cannot resolve institutional conflicts with deep historical roots. Historiology might. The reason it might?

One conclusion follows from the historiology of both the transition from the Bacon to the Hale chart of British kingship, and the McIlwain-Schuyler dispute (46): British constitutionalism came to mean the institutionalized support for civil disobedience in defense of the rule of law. This was the basis of the action of the post-Civil Wars English Parliament when it staged its Glorious Revolution. It was Glorious because it was bloodless and it was bloodless because it institutionalized civil disobedience and won. This is the kind of "revolution" the anti-Parliament colonies attempted when they claimed that their civil disobedience against Parliament was "constitutional".McIlwain's definition of constitutionalism didn't say it exactly that way and I didn't understand constitutionalism that way until years later when studying his more extended writings on constitutionalism.(47)

McIlwain had learned his Maitland well. His historiography was superb - meaning: the way he told the history of kingship as if it were the history of constitutionalism - was superb. His historiology - his theory of the way those particular humans drove their institutions toward constitutionalism - was inadequate.

He defined modern constitutionalism rather lamely as the rule of law plus democracy.(48) We have a general idea of the meaning the rule of law. What about democracy? We also have a general idea of what it means, but what is democracy in the context of being one of the two components of constitutionalism? McIlwain did not explain. He did not even point out explicitly that all his historical examples were anti-establishment uprisings in defense of the rule of law. But note: it is not possible to associate armed rebellion with constitutionalism. They are antithetical. McIlwain's examples could only mean one thing: the institutionalization of civil disobedience: providing constitutionally for popular civil disobedience.

Now we can revise the definition :

Modern Constitutionalism: Formal governmental and political processes to guarantee the rule of law and the institutionalization of civil disobedience.

What is the "institutionalization of civil disobedience?" When I first published this conclusion most scholars found it self-contradictory - a theoretical oxymoron. The corollary seemed even more perplexing: The theoretical foundation of American Judial Review is institutionalized civil disobedience. The most vivid illustration is the Martin Luther King Jr. non-violent constitutional challenges to segregation and racial discrimination. Institutionalized protections for popular movements to take charge of the historical development of institutions, democratically and in accordance with the rule of law. It's theory is explained in Bacon's Novum Organum, which is a manual of applied historiology; and its practice is described in New Atlantis. I discovered it in studying the dualistic social institutions that pervaded England's seventeenth century institutional landscape.

APPENDIX :

I wish to acknowledge the contributions of Francis Wormuth, my teacher and mentor first at Indiana University and later after he'd become Chair at the University of Utah. Fifty years ago he made the suggestion that something curious about Calvin's Case might be worth looking into. He was right and I hope that finally I have gotten it right. That search led to many findings and articles, and the book that is now under completion. His copy from the British Museum archives of Lord Hale's chart was especially valuable in leading to the thesis of the present article.-Harvey Wheeler
verulan@mindspring.com FAX 805-684-5621

Footnotes :

1.Op. cit.
2.J.P. Kenyon, The Stuart Constitution, Cambridge University Press, Cambridge, 1966
3.Hallam, op.cit., p.183
4.Op. cit., p. 504. Privy Council actions are repeatedly called "illegal." p. 129
5.Richard Dawkins, The Selfish Gene, Oxford University Press, Oxford, 1976, p. 206 ff.
6.Works, vol XV, p. 222
7.Works, vols X and XV.
8.E.H. Kantorowicz, The King's Two Bodies, Princeton University Press, Princeton,1957
9.Otto Gierke, Natural Law and the Theory of Society 1500 to 1800, Ed and trans, Ernest Barker; Beacon Press, Beacon Hill, Boston,1957 (1934), pp. 46-52.. Also see Barker's Introduction.
10.Coke, The Reports of Sir Edward Coke, London, 1826,
11.Quoted in Robert Livingston Schuyler, Parliament and the British Empire, Columbia University Press, New York, 1929, p. 9
12.Harvey Wheeler, Calvin's Case and the McIlwain-Schuyler Debate," American Historical Review, vol 61. P.587; "Constitutionalism," vol 5, Handbook of Political Science, eds F.I. Greenstein and N.W. Polsby, Reading, MA, Addison-Wesley, 1975. "Francis Bacon's 'Verulamium' the commono-law template of the modern in English science and culture," Angelaki, vol 4, #1, 1999, pp. 7-26,
13.Wheeler, "Francis Bacon's 'Verulamium,' etc., op. cit., pp. 19-20
14.Levak, Brian, The Formation of the British State: England, Scotland and the Union 1603-1707, Oxford, 1987; Daniel Coquillette, Francis Bacon Stanford University Press, 1992.
15.Otto Gierke, Natural Law and the Theory of Society, 1500-1800,trans and Intro by Ernest Barker, Beacon Press, Boston, 1957
16.E.H. Kantorowicz, The King's Two Bodies: A Study of Medieval Political Theory., Princeton University Press, 1957
17.C.H. McIlwain, Constitutionalism, Ancient and Modern, Ithaca N.Y., 1940
18.Works, vol 15, p. 196. The opening argument is pp. 156-67
19.Works, vol VII, p. 107, ff
20.Works, Vol VII, p. 195
21.Gierke, op., cit. p 35
22.Works, p. 197
23.Ibid p. 200
24.Levak, op. cit., p158
25.Coquillette, op. cit. p. 158
26.Bacon, Works, Vol XV, p. 202
27.Loc cit.
28.Op. cit. p. 227
29.Kantorowicz, op. cit.
30.Wormuth, The Royal Prerogative, op. cit.,
31.McIlwain op. cit.
32.Works,XV pp. 157-167
33.Works, op. cit .p. 226
34.Harvey Wheeler, "Francis Bacon's New Atlantis the 'Mould' of a Lawfinding Commonwealth," ed. W.A. Sessions, Francis Bacon's Legacy of Texts; "The Art of Discovery Grows with Discovery," (1990) AMS Press, New York
35.I.Bernard Cohen, Revolution in Science, Harvard U.P. Cambridge Mass. (1985)
36.Carl J. Friedrich, The Age of the Baroque, New York, 1952
37.W.S. Holdsworth, A History of English Law, 8 vols, London, 1914
38.Theodore F. Plucknett, A Concise History of the Ciommon Law, Rochester, 1936
39.Harvey Wheeler, The Constitutional Ideas of Francis Bacon," Western Political Quarterly, vol IX #4 (1956)
40.These two charts were first published together in my PhD dissertation, Constitutional Transition... etc. op.cit. The 1608 chart is from vol 15 of Bacon's Works, p. 377. The 1667 chart which follows is from Hale's Analysis of the Crown and was copied by Francis Wormuth from the Hargrave MS no. 490 in the British Museum.
41.Harvey Wheeler, The Conservative Crisis, England's Impasse of 1931 Public Affairs Press, Washington, D.C. 1956
42.See Viscount Samuel, "The Constitutional Crisis of 1931: A Memorandum, Western Political Quarterly, vol X#1, (1959); "Note" by George E.G. Catlin in the same issue. Harvey Wheeler,."Lord Samuel's Memorandum: A Comment," Western Political Quarterly, XII, #1, 1959; and "Lord Templwood on "The Constitutional Crisis of 1931: A Memorandum" Lord Templwood via George Catlin. Lord Templwood was Sir Samuel Hoare, prominent in banking and the Conservative party during the 1931 crisis..
43...Charles H. McIlwain, The American Revolution, New York, 1923
44...R.L. Schuyler, Parliament and the British Empire, New York, 1929
45...In 1922 R.G. Adams had published his Political Ideas of the American Revolution. It was an analysis of eighteenth century American sources. The conclusions however were compatible with those reached independently by McIlwain. Adams developed the thesis that eighteenth century American theorists had accurately foreseen the true nature of the British Empire as a group of autonomous dominions unified only through the crown. Adams blamed the British theory of parliamentary sovereignty for having blinded them to the accuracy of the American interpretation. Sir A.B. Keith entered the dispute in 1930 with his Constitutional History of the First British Empire. It had been prepared too early to take more than passing notice of the Schuyler contribution but it supported the same position and necessarily drew on the same sources. Less directly involved in the dispute but of ancillary importance are Martin Wight's The Development of the Legislative Council (London, 1945) and an article by Burke Inlow in the October 1947 American Political Science Review,"Natural Law: a Functional Interpretation." McIlwain's essay "Federalism" in Federalism as a Democratic Process, New Brunswick, 1942, and the closing "Commentaries" by F.W. Coker and E.S. Corwin bear somewhat on the dispute. My contribution was "Calvin's Case (1608) and the McIlwain-Schuyler debate," American Historical Review, 61:587-97. I wrote that McIlwain was right but both drew on the bipolar traditions of a dualistic transitional constitution and more importantly, constitutionalism itself is intrinsically transitional: the institutionalization of the bipolarity of legal and political sovereignty. I was only partly right, as is explained in what follows
46...Harvey Wheeler, "Calvin's Case (1608) and the McIlwain-Schuyler debate," American Historical Review (1961) pp 587-97
47...C.H. McIlwain, The High Court of Parliament, (New Haven, Yale Univ Press) 1910; Constitutionalism, Ancient and Modern; Ithaca (Cornell Univ Press) 1940.
48...Constitutionalism, Ancient and Modern, op. cit.