Foundations of Anglo-American Constitutionalism; An Application of Critical Constitutional Theory(Ward, 1998;author, 1957;1960)
As the life of the Virgin Queen, Elizabeth I, drew to a close everyone was concerned that there was no direct Tudor heir to the throne. Crowns descended according to feudal traditions of dynastic inheritance; there was no "constitution" providing for succession in the absence of a direct heir. The Stuart King James VI of Scotland was widely acknowledged as Elizabeths most probable successor but during her decline storms of plots and counter plots arose and subsided, including Essexs aborted coup. Elizabeth's most powerful counselor was Robert Cecil, Lord Burlegh; later Earl of Salisbury, who was the leader of the power elite around the queen. At first he had been hostile to the choice of James but as the queens death grew near he become an active supporter of James and the two exchanged cordial conspiratorial messages. Upon Elizabeths death Cecil and the new men of power arranged James immediate recognition as king. Everybody knew this background and also knew that James was beholden to Cecil and his clique for the crown. James continued Cecil, his little beagle, as his chief counselor but also immediately appointed a large number of new council members to build his own clique. Cecil was quickly promoted to Earl of Salisbury. He became very rich but his health was impaired by the increased workload James placed upon him. He was overworked and often sick as his death approached.
Francis Bacons father, Nicholas was also one of the new men of power. He had been Elizabeths Lord Keeper and was head of the Chancery but never became Lord Chancellor. When Francis was a child he was well liked by the Queen and often given the run of her council chambers; "my little Lord Keeper(Gundry, 1946), she called him. However Bacons father died before Elizabeth and Francis fortunes suffered under Cecils expanded influence. Francis, a barrister, lived, studied and taught at Gray's Inn, and among other things proposed that Elizabeth finance a large scale task-force project to "codify" English law(Hogan et al,1983; author,1983) - codify using his own new empiricist logic machine(Works-a, VII, 60) (Hookes description), not the model of Roman and Civil Law codification; Elizabeth declined. Francis at this time was in the House of Commons and a well respected "parliament man".
James never understood the English Parliament nor the growing power of the newly rich gentry in Commons. He was a demanding but whimsical and fitfully inattentive sovereign. He traveled constantly and conducted large hunting parties across private properties. This increased the work load on Cecil and also the drain on the treasury. James was a fascinating anachronism. He was a productive writer. While king of Scotland he had written two books on kingship. The Trew Law of Free Monarchies(King James I, 1616) was essentially a divine right of kings tract, showing he was out of touch with the informal parliamentary developments in England. Basilikon Doron(King James VI, 1944) was better received in England. It had been written for his young son and was more of a manual for managing royal power(Willson, 1956). In England during the early Stuart days, many issues and conflicts touching crown and Commons were still up in the air and there was no regularized way of resolving them. Bacons early judgment of James was prophetic: Methought his Majesty rather asked counsel of the time past than of the time to come.(Willson, 1956, 167) James argued that his union of the two crowns automatically unified the two nations and he described the government of England as the extension of his personal patrimony:
I am the husband and all the whole isle is my lawful wife; I am the head and it is my body; I am the shepherd and it is my flock. I hope therefore than no man will think that I, a Christian King under the Gospel, should be a polygamist and husband to two wives...(Willson, 1956 251)
Commons was not persuaded. It passed the Canons of 1606"(Kenyon, 1966), which denounced the doctrine (later associated with Hobbes) that government first derived when men ran up and down in woods and fields, as wild creatures, resting themselves in caves and dens, and acknowledging no superiority one over another, until they were taught by experience the necessity of government.... "The Canons, next anticipating Locke, went on to state that any well established new government, begun by rebellion, is subject to Gods authority " and a claim to the contrary is not a valid reason for its overthrow. James declined to authorize the cannons. They were not published until 1689 when, according to J.P. Kenyon, they were used by divines like William Sherlock to justify their support for William III(Kenyon, 1966)."
Another paradox of the times was the contrasting forms of innovation and tradition by the two great rivals, Edward Coke and Francis Bacon. While Coke was in Commons he was a political activist and innovator. From Speaker of the Commons he became Chief Justice of Common Pleas. Coke has been called the father of the common law for his effective promotion of Common Pleas and for his extensive archival reports and commentaries(Coquillette, 1992). Later in life when back in Commons, he led the impeachment of Bacon and was author of the Petition of Right (1628). A distinction must be made between Coke's innovative political activism and Bacon's innovative jurisprudence. It was Coke's activism, not his jurisprudence that prefigured the future. Lawrence Stone quoted Cokes maxim, hold all innovations and new ways suspicious but then, adds Stone, he plunged back into the self-appointed task of making radical political notions respectable by dressing them up in garbled medieval precedents.(Stone, 1965).
Francis Bacon flourished on the Chancery side. He represented the king's positions to the Commons and won much for him. He is sometimes described as a conventional, Renaissance court conservative(Martin, 1992) but that assessment is wrong(Coquillette, 1992). Bacon's litigation innovations were structural and theoretical rather than political and tactical. Bacon transformed common law litigation, the law of evidence, and equity law; and he fostered the paradigm shift that led to the modern scientific revolution(author, 1999). His basic work in law was to lay the groundwork for the modern case method of using the court rulings of judges, not as concrete expressions of the Common law but for finding the implicit unwritten law that theoretically must lie behind them. Using that approach led him to unearth the unwritten Double Majesty"(Wormuth, 1949; author, 1975) constitution of king and law that characterized British government in the transitional times of the Stuarts. Sir Edward Coke, Chief Justice of Common Pleas, was Bacon's rival in law and romance; later his nemesis in power politics. The future of politics belonged to Coke; the future of constitutionalism belonged to Bacon. John Donne was right; all coherence gone. Cognitive dissonance reigned.
The Exchequer Chamber figured large as Commons-Crown disputes increased; not as a court but in lieu of a court with jurisdiction for resolving proto-constitutional conflicts(Hallam, 1846). A dispute between James and the Commons arose early over an election to Commons. James opposed the election and demanded a conference about it in the Exchequer Chamber with the King and council. Bacon, not yet Attorney-General, represented the Commons. Neither king nor Commons won. Bacon negotiated a new election as a compromise solution. That Exchequer Chamber conference model was again adopted as the conflict over James struggle to promote the union of England and Scotland came to a head.
Bacon was now Attorney-General and represented the crown. The Commons rejected the claim that James holding both crowns unified the two realms. James appointed a Commission on the Union of England and Scotland, naming Bacon to represent England. Commons declined to approve the report and again denied the automatic naturalization to the Scottish post-nati. These post-nati were children born in Scotland after James VI of Scotland had become James I of England, uniting both crowns in his own person. Next James had a suit brought in the name of Robert Colvill, (Robert Calvin). He was a post-natus born in Edinburgh in 1605, the second year of the reign of James I and the year that Sir Edward Coke became Chief Justice of the Common Pleas.
The Case of the Post-nati was ready for trial in 1608 but no one courts jurisdiction was appropriate to hear the case. The prior "negotiation" conference model was again adopted. All the high judges of all the high courts were adjourned to the Exchequer Chamber to hear the case. This meant that Bacon represented the king as Attorney-General and addressed his pleading to all the nations elite judges convened in the Exchequer Chamber. The dispute involved the deepest and most sensitive aspects of the new post-Tudor British government. The gravest problems concerning the boundaries between king and Commons, law and prerogative were at issue. It was a power-charged atmosphere. Everybody knew that James was attempting to achieve through an inter-governmental negotiation in Exchequer what had been denied him in Parliament(Stubbs, 1895). Commons was resentful. The ad hoc assembly of England's fourteen high justices that was convened to hear Calvins Case(Works-b, XIV 189; Coquillette, 192)was not a supreme court; rather a collection of independent judges. Justice Coke, first among equals, presided at but did not rule for the assembly of judges. At the end of the case the judges issued rulings in their own courts. Justice Coke pronounced Bacon's brief to be excellent; a paradox compounded later when Calvin's Case became the leading precedent for the two contrasting constitutionalisms that later emerged: the unwritten British monarchial and the written American republican.
There were no directly appropriate precedents, for or against the suit for young Calvin. The brief by Attorney-General Francis Bacon for The Case of the Post-nati was intricate and almost metaphysical rather than technically legal. It was designed to determine the effect of the union of the two crowns on the constitution of England. But there was no constitution under which to assess the effects on property law, allegiance and citizenship when the Stuart, James VI of Scotland succeeded Elizabeth I, unifying the two crowns as James I of England. It was a little like the Prime Minister of Canada becoming President of the United States. The question was, what new changes were produced when one king held both crowns? The subjects of both realms owed allegiance to the same man, but did those allegiances mingle somehow from one crown to the other and magically work a mystical relationship between themselves. If so, what was it? Scholars have explained that England's Tudor kings possessed two kinds of prerogatives: the Royal Prerogative Absolute and the Royal Prerogative Ordinary(Wormuth, 1939). The first concerned the kings executive, chartering, war-making and imperial powers. In the second the king maintained and abided by the common law. Things were different in Scotland; its law was founded in the Roman Law. Its kings wore a different crown.
Here the prior question again arises: Did Tudor England possess a constitution? Does use of the term constitution import an anachronistic impression of organizational coherence? The usage has been quite common since the 19th century. Todays scholars, following the lead of Hallam(Hallam, 1846), refer to the Stuart Constitution"(Kenyon, 1966). It would be more appropriate to use the term kingship - the changing forms of pre-modern kingship. At this time 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 contemporaries used that term. 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(Hallam, 1846) He was more accurate when he called the Court of Exchequer an intermediate tribunal between the Kings Bench and Parliament(Hallam, 1846)
In retrospect we can see that Calvins Case, in Bacons 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 Bacons time. Ages before, there had been the Constitutions of Clarendon (1164) but they were agreements, within the Roman law meaning of that term. Bacons brief in Calvins Case was the meme, the institutional genome - the mimeme replicator, to invoke Richard Dawkins (Dawkins, 1976) - 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 Calvins Case (Works-c, XV, 222) but Spedding, though he copiously indexed Bacons writings, failed to note it. Speddings first index is at the end of volume X; the second at the end of volume XV. They are thorough, copious and reliable yet neither the term constitution nor any of its derivatives is found in either index (Works-d, X; XV).
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 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 Clarendons 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 (Kantorowicz, 1957).
Gierke has provided the most discriminating analysis of
non-constitutional medieval government, whose regimes he described as
exhibiting Natural Law 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."(Gierke, 1957)
Prior common law rulings by judges were of little substantive relevance to Calvins Case, and the ordinary way of treating them was of no help. Coke upon Littleton 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 (Schuyler, 1929." Finding the unwritten law behind the rulings of judges was highly unreliable until after Bacon perfected a law-finding method. His brief in Calvins Case demonstrated his new method ,(author, 1975; 1999).
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 Calvins 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 meaning. Rather, he turned Natural Law on its head, as he was already doing with Platonic Form in his scientific writings (author, 1999). This requires a clarification: was Bacon an anachronistic medievalist here, or was he a prescient modernist? Two of todays greatest Bacon scholars maintain the former. Their work is superb (Levak, 1992). I shall try to put the case for Bacons 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; next he mapped it; 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 Calvins Case is called double majesty by Gierke (Gierke, 1957)." Further confirmation is provided by Kantorowitcz's studies of the king's two bodies (Kantorowicz, 1957), in McIlwain's king/law dualism of Crown and Parliament (Mclwain,1940). Most persuasive is Bacon's chart 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 theory 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.
Bacons diagnosis in Calvins 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"(Workes, XV 196). 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(Works-f VII, 107), which is,
First, to explain or induce, [investigation]
Then, to confute, or answer objections, [eliminative exceptions]
And lastly, to prove, or confirm (Works-g, VII, 195). [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 Bacons assistant, and Locke, and Madison and Wilson. Here is Gierkes 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"(Gierke, 1957).
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 (Works-h, V II, 197)." All varieties of allegiance are "natural and more ancient than law(Works-i, VII, 200)."
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 nature is more worthy than them both."
This approach has been called feudal and medieval by Levack (Levak, 158) and Coquillette (Coquillette, 158). Just the contrary; Bacon uses a natural law approach to lay down 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." (Works-j XV 202). - 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(Works-k loc. cit.)". 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(Works-l, 227)." 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 Bacons arguments, and to Locke.
Theories of kingship for a thousand years had been based on the kings two bodies(Kantorowicz, 1957)" The royal prerogative itself was dualistic: a royal prerogative absolute and a royal prerogative ordinary(Wormuth, 1939;McIlwain, 1940)." 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 kings two bodies. The result Bacon produces is a new dualistic natural law proto-constitution of Englands 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 Calvins 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 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 laws 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(Works-m, XV 157-167). Isnt it true, he asked the judges, that
...the law favoureth three things, life, liberty, and dower? 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.
Bacons conclusion is that "[T]he law of England must favor naturalization as a branch of the law of nature..."Works-n, 226)
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. Englands proto-constitution is dualistic.
Consider further Bacon's design of England's dualistic constitution 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 Bacons 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 Calvins 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 society - 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 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 (author, 1990). At the pinnacle of government is 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 (Cohen, 1985). 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 applied political science and it made up the largest part of Bacons 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 constitution. Britain was in fact a dual state. Each basic component institution was like a cell undergoing a binary fissioning process. In Bacons England the internal components, like the state at large, were unraveling. The dualistic constitution of Calvin's Case described that generalized national situation accurately.
The 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 (Friedrich, 1952). 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 Bacons invention in Calvins 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 (Holdsworth, 1914) and Plucknett (Plucknett, 1936) 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 todays 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 a the foundation for a future constitutionalism. Calvins 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 (author, 1956)." 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 described more fully in New Atlantis.
The capstone is found toward the end of the last volume of Bacon Works. It is a chart describing Bacons dualistic constitution. I suspect he drafted it in preparing to write the brief for Calvins 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.
Bacons 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 constitutional theory 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 Bacons 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 (Wheeler, 1956). Calvin's Case is the Baconian genome out of which both English and American constitutions evolved.
Britain's Constitution in 1608: Law and the King
I. A two-fold power of the law
In this respect the king is underneath the law, because his acts are 00000000 guided thereby
In this respect the king is above the law, for it may not correct him for any offense.
II. A two-fold 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.
Britain's Constitution in 1667; Government and the Prince
1. Naturalis, Patria, Potestas
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 constitution 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 constitution;
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 Filmers 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 Bacons 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 (author, 1956).
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 (Samuel, et al, 1959).
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.
I wish to acknowledge the contributions of Francis Wormuth, my teacher and mentor first at Indiana University and later at University of Utah. Fifty years ago he made the suggestion that something curious about Calvins 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 submission. His copy from the British Museum archives of Lord Hales chart was especially valuable in leading to the thesis of the present article.--Harvey Wheeler
Note: All Bacon references are to James Spedding, Robert Leslie Ellis & Douglas Denon Heath, The Works of Francis Bacon, 15 vols, Boston, Brown & Taggard (1859). To complicate matters, this edition is slightly different from the earlier London edition. Both lack important documents later published by Spedding in the Letters and Life.
W.G.C. Gundry, Francis Bacon, a map of days; A guide to his homes and haunts; The Bacon Society, London, 1946, p.. 19
John C. Hogan & Mortimer D. Schwartz, On Bacons Rules and Maximes of the Common Law Law Library Journal, vol 76 #1, 1983, pp48-77.
See Works, vol I p 234; vol VII, p 60ff.. Ellis translates dialecticae as logic and attributes a reference to Plato as if it were to Aristotle He does not translate machinas and mechanica in the sense of an analytical logic machine that Bacon meant and Hooke understood. Ellis died before completing his translations and Spedding disagrees with him in many footnotes and in a long appendix.
Cohen, I.Bernard (1985) Revolution in Science, Harvard U.P. Cambridge Mass.
Coke, Sir Edward (1826) The Reports of Sir Edward Coke, London,
Coquillette, D. R.(1992) Francis Bacon, Stanford: Stanford University Press, Pp 156 ff. The most complete analysis of Bacons law writings in print., .
Coquillette, (1992) op. cit. the best analysis of Bacons jurisprudence and the difference between his innovative empiricist approach to law-finding and Cokes juridical casuistry. Francis Bacon, Stanford University Press, Stanford,. 140, ff.
Coquillette, (1992) op. cit.. My argument is that what Coquillette calls medieval is actually Bacons attempt to base an English proto-constitution on natural law.
Coquillette, (1992) op. cit. p. 158
Dawkins, Richard (1976) , The Selfish Gene, Oxford University Press, Oxford, p. 206 ff.
Friedrich, Carl J. (1952) The Age of the Baroque, New York:
Gierke, Otto (1957 ) Natural Law and the Theory of Society 1500 to 1800, Ed and trans, Ernest Barker; Beacon Press, Beacon Hill, Boston, pp. 46-52.. See Barkers Introduction.
Gierke, (1957) op. cit. Natural Law and the Theory of Society, 1500-1800,trans and Intro by Ernest Barker, Beacon Press, Boston, 1957
Gierke, op., cit. p 35
Hallam, Op. cit.
Holdsworth, W.S. (1914) A History of English Law, 8 vols, London:
Holdsworth, op, cit. History of English Law, 8 vols, London:
James I, King; Works London, 1616
James, King (1944); The Basilikon Doron of King James VI (Scottish Text Society, 3rd series, Edinburgh,
Kantorowicz, E.H. (1957) The Kings Two Bodies: A Study of Medieval Political Theory., Princeton University Press,
Kantorowicz, E. H. (1957) The Kings Two Bodies, op. cit.
Kenyon, J.P.. (1966), The Stuart Constitution; Documents and Commentary, Cambridge University Press, P. 11
Op. cit. p. 167
Kantorowicz, op. cit.
Levak, Brian,(1987) The Formation of the British State: England, Scotland and the Union 1603-1707, Oxford, 1987; Coquillette,.Daniel (1992), Francis Bacon Stanford: Stanford University Press.
Levak, op. cit., p158
McIlwain op. cit.
Martin, Julien (1992) Francis Bacon, The State and the Reform of Natural Philosophy, Cambridge: Cambridge U.P.
Samuel, Viscount (1959), "The Constitutional Crisis of 1931: A Memorandum," Western Political Quarterly, vol X#1, Note by George E.G. Catlin in the same issue. Harvey Wheeler,."Lord Samuels 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..
Schuyler, Robert Livingston, (1929) Parliament and the British Empire, New York: Columbia University Press quoted, p. 9
Stone, Lawrence (1965) The Crisis of the Aristocracy 1558-1641 Oxford, Clarendon Press, p.22
Stubbs, William (1895) Select Charters and other Illustrations of English Constitutional History from the earliest times to the Reign of Edward the First, arranged and edited by William Stubbs, 8th edition, Oxford, Clarendon Press, M.DCCC.XCV
Op. cit. p. 251
Ward, Ian, (1998), An Introduction to Critical Legal Theory, Cavendish Publishing Ltd.,London, 1998; author (1957) "The Myth of Constitutional Obsolescence in a Duocratic Party System," Ethics, vol LXVII, #2, Jan. 1957; (1960) "Constitutionalism and the Quixotic" Natural Law Forum vol 5, 1960
Willson, D.H. (1956) King James Vi and I, Henry Hold and Company, New York, quotes Bacon as praising it for being excellently written> p.166
Wormuth, Francis D. (1949) The Origins of Modern Constitutionalism, Harper, New York; Harvey Wheeler,(1975) "Constitutionalism", vol 5 of Handbook of Political Science, 5 vols. Ed F.I. Greenstein and N.W. Polsby, Reading MA, Addison-Wesley
Wormuth, Francis. D. (1939) The Royal Prerogative,
1603-1649, Ithaca, New York: Syracuse U.P.,
Wormuth, The Royal Prerogative, op. cit.,
The following are citations from Francis Bacons Works. They are cited in the text in parentheses just as below.
Works-a, VII, 60
Works-b, XIV, p.189 ff
Works-c, XV, p. 222
Works-d, vols X and XV.
Works-e, vol XV, p. 196. The opening argument is pp. 156-67
Works-f, vol VII, p. 107, ff
Works-g Vol VII, p. 195
Works-h, op. cit. p. 197
Works-i. op. cit. 200
Works-j, Vol XV, p. 202
Works-k, loc. cit.
Works-l, op. cit. p. 227
Works-m, op. cit. pp. 157-167
Works-n, op. cit .p. 222
The following are citations of writings by the author. In the text they are shown as: (author, 19XX)
Wheeler, Harvey (1983), Science out of Law Toward a Humanistic Science of Politics, ed. D.H. Nelson and R.,L. Sklar, New York, UP of America.
Wheeler, Harvey (1956), The Constitutional Ideas of Francis Bacon, Western Political Quarterly, vol IX #4 (1956)
Wheeler, Harvey (1949), Constitutional Transition... etc. PhD Dissertation. These two charts were first published together in this dissertation. The 1608 chart is from vol 15 of Bacons Works, p. 377. The 1667 chart which follows above is from Hales Analysis of the Crown and was copied by Francis Wormuth from the Hargrave MS no. 490 in the British Museum.
Wheeler, Harvey (1956) The Conservative Crisis, Englands Impasse of 1931 Public Affairs Press, Washington, D.C.
Wheeler, Harvey (1990) "Francis Bacons New Atlantis the Mould of a Lawfinding Commonwealth," ed. W.A. Sessions, Francis Bacons Legacy of Texts; "The Art of Discovery Grows with Discovery," AMS Press, New York
Wheeler, Harvey (1975; 1999) Calvins 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, "Francis Bacons Verulamium the common-law template of the modern in English science and culture," Angelaki, vol 4, #1, pp. 7-26,
Wheeler, Harvey, Francis Bacons "Verulamium", etc., op. cit., pp. 19-20
Wheeler, Harvey, "Francis Bacons Verulamium" etc.. op. cit. p 7,ff