Anglosphere

Jim Bennett corrects a would-be critic.

Update: Someone who does get it: Mr. Barone.

Update 2: John O’Sullivan comments.

Also: I was unfair to characterize Mead as a “would-be critic” or intellectual borrower. He makes his own case, which overlaps Bennett’s but is independent of it, a point that O’Sullivan takes pains to make.

From an American standpoint, what is most relevant about the medieval period is the experience of England, since this was the proximate source of our ideas and institutions. English and continental politics of the Middle Ages had much in common, but differed sharply at the outset of the modern era. On the continent, far from advancing the cause of freedom, the Renaissance ideas of kingship and related institutional changes almost destroyed it. In France and Spain, the chiefly German “Holy Roman Empire” and the city-states of Italy, neopagan concepts of absolute authority came to the forefront, denying the medieval view that there were, or should be, limits on the secular power. In England alone, the struggle would produce the opposite verdict.

We are used to thinking of England as the home of representative government; less familiar is the idea that England enjoyed free institutions at the on-set of the modern era because it had retained them from the preceding era. While Renaissance notions were triumphing on the continent, the English experienced, in Maitland’s phrase “a marvelous resuscitation of the medieval law.” That they did so was in large measure … the doing of the church, which in Britain produced a remarkable series of statesman/clerics — from Becket and John of Salisbury in the reign of Henry II to Langton, Grosseteste and Bracton in the century to follow. The doctrine that they imprinted on English constitutional theory was that “the King is under God — and under the law,” and not entitled to rule by personal edict. This was the essence of Christian teaching about the state and it became the guiding precept of England’s common lawyers.

M. Stanton Evans, The Theme is Freedom

Cross-posted at Albion’s Seedling

I have a post on this topic over on Albion’s Seedling. It is in part a response to Mr. Rummel’s earlier post here. One commenter thinks I have sullied Canada’s honor. Check it out.

Constitutional history in the Anglosphere is a unity, and an ancient unity:

… there is an absolute continuity between medieval and modern constitutionalism. When President Nixon got into his helicopter and left the White House lawn and his office, he did so because he was afraid he would be impeached. Impeachment in the American constitution does not bear an accidental or trivial relationship to that which brought down Michael de la Pole, earl of Suffolk, chancellor of England in 1386. It was the same procedure and the descent can be traced without any shadow of doubt.

James Campbell, The Anglo-Saxon State.

F.W. Maitland noted as long ago as 1888 that impeachment in England had effectively died out. He noted that there had been only one impeachment in the 19th Century, and that back in 1805. The English procedure was akin to that provided in the U.S. Constitution. The House of Commons initiated an action against one of the king’s officers, who was then tried by the full House of Lords, sitting as a court. Unlike impeachment under the U.S. Constitution, which expressly restricts the penalty to removal from office, the English impeachment allowed any penalty the Lords saw fit to impose, including death. As we saw in the Clinton impeachment, the U.S. Senate acted in the unusual capacity of a court, as provided for by the Constitution, a vestige of its origins as an analog of the House of Lords, as the Founders intended.

Maitland noted that:

It seems highly improbable that recourse will again be had to this ancient weapon unless we had a time of revolution before us. If a statesman has really committed a crime then he can be tried like any other criminal: if he has been guilty of some misdoing not a crime, it seems far better that it should go unpunished than that new law should be invented for the occasion, and that by a tribunal of politicians and partisans; for such misdoings disgrace and loss of office are now-a-days sufficient punishments. Lastly a modern House of Commons will hardly be brought to admit that in order to control the king’s advisers it needs the aid of the House of Peers. However, there the old weapon is – an accusation by the commons of England at the bar of the House of Lords.

(Maitland, The Constitutional History of England.) I do not believe there has been any other impeachment in Britain since. So, this “old weapon” has most likely fallen into permanent desuetude. I suppose there is the remote prospect that an appointed House of Lords might be considered a more appropriate venue for an impeachment than a hereditary one, making a reappearance of this practice theoretically possible. Of course, if Britain were to go to an elective House of Lords, any power of impeachment would probably be expressly provided for by the enabling statute or written Constitution, whichever was employed. Retention of the right to summarily impose the death penalty on erring officers of the Crown is unlikely to be provided for, if the current soft-hearted attitudes continue to prevail. Not that there is anything wrong with that.

Our written American Constitution has allowed us to retain more of these ancient vestiges than the English one, curiously enough. The Second Amendment is a good example. The provision in the Bill of Rights of 1689 which it was based on holds that those “…subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law” — is now a dead letter. There is no way for a provision to “drop out” of the U.S. Constitution, short of amendment. A court may say that a provision is obsolete, but a later court may find a use for anything which is still there. “Young” America has a more “Ancient” Constitution than “Old” England, and has retained more of its freedom as a result.

(Cross-posted on Albion’s Seedling.)

Regarding Lex’s entry on the roots of English exceptionalism, here is the Roman historian Tacitus on one of the peculiar habits of the Germanic barbarians:

Affairs of smaller moment the chiefs determine: about matters of
higher consequence the whole nation deliberates; yet in such sort,
that whatever depends upon the pleasure and decision of the people, is
examined and discussed by the chiefs. Where no accident or emergency
intervenes, they assemble upon stated days…
From their extensive liberty this evil and default flows, that they
meet not at once, nor as men commanded and afraid to disobey; so that
often the second day, nay often the third, is consumed through the
slowness of the members in assembling. They sit down as they list,
promiscuously, like a crowd, and all armed. It is by the Priests that
silence is enjoined, and with the power of correction the Priests are
then invested. Then the King or Chief is heard, as are others, each
according to his precedence in age, or in nobility, or in warlike
renown, or in eloquence; and the influence of every speaker proceeds
rather from his ability to persuade than from any authority to
command. If the proposition displease, they reject it by an
inarticulate murmur: if it be pleasing, they brandish their javelins.
The most honourable manner of signifying their assent, is to express
their applause by the sound of their arms.

Leaving aside the tone of disdain, is it such a great distance between this ancient tribal council and a New England town meeting? Open discussions are held, motions made, and voice votes taken. We tend not to go armed to Town Meeting, though, unless property tax rates are on the agenda.