Image above: the Magna Carta
My headline for this book review derives from chapter 17 in volume 1, written by Robert Crowcroft (Univ. of Edinburgh). It is one of 42 chapters in this magisterial 2-volume work on the history of the constitution of the United Kingdom.
These books are edited by Peter Cane (Christ’s College, Cambridge) and H. Kumarasingham (Univ. of Edinburgh). While it is true, as they state in the Introduction, that this “is the only book-length constitutional history of Britain to have been published for more than fifty years,” I note that the fine book by Goldwin Smith (Wayne University), A Constitutional and Legal History of England (1955), is not mentioned at all.
So why does Crowcroft call the constitution a child of conflict? “It owes much to violence – real, feared and rhetorical. Upheaval, turmoil, and plot was the norm throughout much of British history and shaped the rules under which these islands were governed.” Anyone expecting a stuffy old text on constitutional history should be disabused at once. While it spans 1,136 pages (incl. index), this is a lively examination of all aspects of how the constitution developed over a thousand plus years. Crowcroft also quotes Walter Bagehot, whose 1867 book The English Constitution is the touchstone for any study of the subject. The Constitution, Baghehot wrote, possessed a “Gothic grandeur.” In this, it is much like the Parliament building itself; these two books have as their animating principle a study of Parliament’s development through the centuries.
Volume 1 comprises chapters that take a thematic approach, such as ‘The People and the Constitution,’ ‘The Executive and the Administration,’ ‘Locality, Regionality and Centrality,’ and ‘The Constitution of Rights.’ Volume 2 is arranged chronologically . The first chapter is on Anglo-Saxon England (450-1066), with subsequent chapters focused on a particular century. It concludes with overview chapters on how each of the constituent parts (Wales, Ireland and Scotland) have fared over the centuries, with final chapters on how the UK constitution affected the Empire and particularly the so-called ‘settler Dominions: Canada, Australia, and New Zealand. Thus, by employing both volumes, anyone interested in a particular topic will be able to gain both a grand view of issues of concern and a time-sensitive analysis as well. As the books are written by so many scholars, one may often find different views on offer. No review can cover all 42 chapters, but here I will offer an overview of several.
Many will wonder exactly where the UK Constitution is. Can one go to see it, like the American Constitution on display in Washington DC? No, because it doesn’t really exist; not as a single document on paper, anyway. The best explanation for why this is so can be found deep in Volume 2 in a chapter by Vernon Bogdanor (King’s College, London). There are two inter-connected reasons, he states. “The first is conceptual, the principle of the sovereignty of Parliament. The second is Britain’s long evolutionary history.” On the second point, he makes an assertion that most readers will find astonishing: “She seems never to have begun as a nation.” Britain never had a “constitutional moment” that required a written document, such as both India and Italy in 1947. “Not since Roman times has she been a colony, and she has not altered her fundamental regime since the Restoration of the monarchy in 1660.”
Those looking for a literary ‘soundbite’ are in luck. Bogdanor offers this: “Until the twenty-first century, the British constitution could have been summarised in just eight words – whatever the Queen in Parliament enacts is law.” But that won’t do anymore. Looking to the future, Bogdanor speculates that “Brexit (in 2016) could prove [to be] that break in continuity which would herald a British constitutional moment…Brexit has exposed the fact that the constitution is interpreted differently in the four parts of the United Kingdom.” (See my photo at end of this review)
Aside from dipping this tentative toe into the future, the books are quite grounded in the past and present. For those not satisfied with the disturbing concept of a ‘virtual constitution,’ there is a very tangible lifeline: Magna Carta (lead photo). Yes, a real document from the year 1215, which is widely regarded as the bedrock of English (and American) liberty, but the attribution must be treated cautiously. Frederic William Maitland, (1850-1906), the father of English legal history, “rejected the idea that people in the medieval period used the word ‘liberty’ or thought of ‘sovereignty’ in the same way as those in more modern eras might.” As Bogdanor writes in Vol. 1, “The principle of the sovereignty of the people” was exemplified by the Brexit referendum. Does sovereignty reside with Parliament, or the people?
Peter Cane’s analysis is a sober assessment of the power of Magna Carta then and now: “Even though Magna Carta still inspires some, it is, to all intents and purposes, a spent political and legal force.” It was addressed to “free men of our kingdom” and given royal assent by a very reluctant King John in 1215. “Even though Pope Innocent III initially encouraged the King to accede to the rebel’s demands, he annulled the charter only two months after it was issued.” The wily pope was not so ‘innocent’ after all. But only a year later King John died, and a new version of the charter was issued on behalf of the nine-year-old King Henry III. “As Parliament became more representative and assumed a stronger institutional identity, it [Magna Carta] took the place of the barons and prelates as the champion of royal restraint. The charter played a significant symbolic role in this process.”
Magna Carta is extensively studied by George Garnett (Univ. of Oxford) in Volume 2. He writes that in the security clause of Magna Carta, “John was made to provide that barons should ‘choose any twenty-five barons of the realm they wish’ to enforce observation of peace and liberties granted to them by the king…The Twenty-Five was a self-perpetuating institution ordained by royal charter, not just a concatenation of individuals. The mechanism was innovatory.” This put England on a clear path to a monarchy restrained by law, quite different to the absolute monarchy France developed into.
While Magna Carta was a critically important document, it was actually the codification of precedents that were centuries in the making, going back before William I had conquered Anglo-Saxon England in 1066. “With Magna Carta,” writes Garnett, “was accomplished in an official royal document the turning of the law of Edward the Confessor (King from 1042-1066) and Henry I (King from 1100-1135) into a means not of legitimating the king and his laws, but of binding him by those laws. Continuity with pre-Conquest England was no longer being asserted by the king.” Magna Carta, concludes Garnett, “treated the kingdom for the first time as a collective entity analogous to those (such as shires) that had not only survived 1066 but had been fundamental to the Conquest’s implementation.”
While on the subject of the pre-Conquest period, I found the opening chapter of Vol 2 to be quite fascinating. Simon Keynes (Univ. of Cambridge) notes that Aethelbald, king of the Mercians, was the first to be styled “king of Britain.” That was in the year 736. “The first recorded coronation of an Anglo-Saxon king” was in 787, when Ecgfrith was crowned, but not by the Archbishop of Canterbury. Church politics was alive and well in the 8th century! As the result of a synod prompted by the visit to England in 786 of legates from Pope Hadrian I, “Lichfield was elevated to archiepiscopal status, significantly reducing Canterbury’s own authority.” Hygeberth, first archbishop of Lichfield, crowned Ecgfrith. The date of 787 is not given by Keynes, but the downgrading of Lichfield in 803 is given. Canterbury “resumed its full authority,” which has continued to the present day. The role of religion in the constitution is covered by two chapters in Volume 1.
The only king given the epithet “The Great” is Alfred, who died in 899. He was the first king of all the Anglo-Saxons, and is usually thus regarded as the first King of England (although it was his grandson who was the first to be called king “of the English” in 925). The life of Alfred the Great resonated through the centuries: when George III became king in 1760, “he was seen as one who might be encouraged to follow Alfred’s example,” and in fact George closely studied Alfred, who sought “to promote literacy, education and learning” in the 9th century. When Alfred’s son Edward was crowned, it set the precedent for all future coronations, most recently that of King Charles III in 2023. As in the year 900, when Edward had his coronation, “the king was invested with the regalia: ring, sword, crown, sceptre, and rod.” A continuity of 1,123 years, unsurpassed in European history.
All this has led even eminent historians to mythologise the past. The jurist “Sir Edward Coke’s creative and instructive use of constitutional history are among the most famous in British history and hugely influential on the development of the constitution.” Along with Bagehot, he is one of the three most-cited historians in these volumes (the other being Albert Dicey (1835-1922)). Coke (1552-1634) wrote
The Laws of England are of much more antiquity, than they are reported to be,
and more than any of the constitutions or laws Imperial of the Roman Emperors.
This chapter by Kumarasingham concludes that “The constitutional history of Britain is one that shows a symbiotic relationship between law, convention and political behaviour.” One ‘amusing’ aspect of this comes from an anecdote of Queen Victoria. “Victoria’s solution for avoiding undesirable advice” from her Prime Ministers (notably Gladstone) was simple. As Kumarasingham writes “The Sovereign simply told her Prime Minister ‘she did not wish to receive advice.’” Perhaps this is where the adage that ‘Queen Victoria was not amused’ derives from! (although this aside is not in the book).
Along with monarchy, Parliament is the key to understanding how the constitution and the position of Prime Minister developed. “Constitutional history would be redundant without the analysis of power even though for much of British history statute and law barely recognised the reality of the political executive,” writes Kumarasingham. A stark example is Horace Walpole, “who effectively functioned as the first prime minister from 1721.” In a masterpiece of hiding behind the mask of power, Walpole said “I unequivocally deny that I am prime minister.” But of course, he was, although “he only functioned at the King’s pleasure.” It was certainly true in the 18th century that the PM served at the monarch’s pleasure (Queen Anne attended 64 Cabinet meetings between June 1710 and June 1711 alone), but since then power has shifted. In her 70-year reign, Queen Elizabeth II only attended a Cabinet meeting once: as a ceremonial event to mark her Diamond Jubilee in 2012. It was first time a monarch had been to a meeting of the Cabinet in 100 years. (This unique event is not included in the book under review).
Dicey (see photo) wrote the 1885 book Introduction to the Study of the Law of the Constitution, which has become a key plank of the constitution itself. “The three main pillars of Dicey’s constitution,” writes Cane, “were Parliamentary supremacy; the distinction between constitutional law and non-legal, conventional norms of the constitution; and the rule of law.” Dicey wrote that “Parliament has the right to make or unmake any law whatever; and, further, no person or body is recognised as having a right to override or set aside the legislation of Parliament.” The implication of this, states Cane, is that Parliament “has within its power to erode individual liberty. Dicey understood and insisted upon the role and significance of courts as a check on the exercise of power by the executive.” Joshua Getzler (Univ. of Oxford) devotes his chapter to the judiciaries, and it holds surprises. Back in 1386, Chief Justice Tresilian of the King’s Bench “sided with Richard II and gave an advisory opinion upholding the king’s objections to a commission of barons seeking to curb royal power. For this Tresilian was attainted in Parliament and executed.” In the following century, “judges set limits for the law in deciding fraught political questions,” declining to offer advice on the “legality of the Duke of York’s claim to the throne as Edward IV.” Even England’s most nearly absolute monarch, Henry VIII, “learned that his power had limits.” In the 1530s his law officers pressured Parliament and the courts “to weaken the trusts and wills that protected estates from the king’s feudal taxes.” This sparked a constitutional crisis: “the estates system was thrown into disarray, and the independence of the entire judiciary and the stability of the constitution was brought into doubt.” Henry was forced to concede.
Albert Dicey
King Charles I one century later also pushed the legal limits, but in his case it went beyond the limits. In 1637 seven judges against five ruled in the King’s favour, that he could “interpret the extent of his own military and fiscal prerogatives without challenge in court or pre-authorisation by parliament.” Parliament fought back: the seven judges were impeached “for subverting the constitution.” In the most fascinating ‘what-if’ questions posed in these books, Getzler writes “It is a tantalising question whether the cataclysm of war, regicide and dictatorship that followed would have played out differently had just two judges in 1637 found against the King in court.” Nearly 4.5% of the population died in the ensuing Civil War. By comparison, only 2% of the population of the U.S. died in the civil war of the 1860s. The English Revolution is given a full treatment in Volume 2 by Glenn Burgess (Univ. of Hull). “One story that could be told of the English constitution [note the italics] in the seventeenth century,” writes Burgess, “is of how it came to an end, though that is not how the story has generally been told.”
Despite this, Prime Minister William Pitt felt proud to state, in 1792, that “love of the constitution” was a “natural instinct” of Britons. Crowcroft writes that “To play the constitutional game was to run grave, potentially terminal risks.” That was just as true for King Charles I as it was for political parties that arose in later centuries. “The Tory party called into being during the Exclusion Crisis was destroyed just a few years later when the Tories consented to the dethronement of James II and the revolution of 1688…After the 1760s the Tories essentially ceased to exist in Parliament.” The later Tory or Conservative party, which is the official Opposition now, was an entirely different creation born in the 1820s. As we witnessed recently with the end of the Prime Ministerial careers of Johnson, May, Truss and Sunak, “Those who lost the confidence of Parliament or the public would be quickly replaced. Britian was never stuck with just one set of possible leaders.”
I have already singled out Bagehot, Dicey and Coke as a trio who helped explain and shape the constitution. But one other name stands out, the person whose “immense popularity” led to “English constitutional history becoming the popular national story.” Thomas Babington Macaulay (1800-1859) wrote his History of England between 1848 and 1861. “It was the most popular historical work of the century, selling hundreds of thousands of copies…His was a history written to be consumed: around the fireplace, the public library, or the school room.” Macaulay, writes Emily Jones (Univ. of Manchester), “provided the backbone of British national identity.” The excellence and exceptionalism of English institutions was from then on firmly embedded into the psyche of every citizen. Considering the tattered state of the American Constitution we see now, he was clearly correct, a conclusion Jones does not draw.
I would like to have seen a separate chapter on the Bill of Rights which, in 1689, marked the supremacy of Parliament by limiting the power of the monarchy. Bringing disparate mentions of it into its own chapter would serve to highlight its importance; curiously, the term “Bill of Rights” does not appear in the Index, further obscuring its centrality. Overall, however, these two volumes stand as an enduring testament to the Constitution of the United Kingdom. A superb achievement. There are many riches here I was not able to explore, even in this lengthy review. Go explore!
The books are nearly typo-free. On page 38 in Vol. 1, “during the reign of Charles II” should read “during the reign of Charles I.” On page 41 in Vol. 2, “and excerpt” should read “an excerpt.” The Index is generally excellent, but not quite comprehensive. For example, an important mention of King Alfred on page 117 in Vol. 1 is not included in his name entry.
THE CAMBRIDGE CONSTITUTIONAL HISTORY OF THE UNITED KINGDOM is by Cambridge University Press, in 2 vols. It lists for $260.
Photos:
Lead photo: The Magna Carta (originally known as the Charter of Liberties) of 1215, written in iron gall ink on parchment in medieval Latin. The document is held at the British Library and is identified as “British Library Cotton MS Augustus II.106“. Image courtesy of Wikimedia Commons.
Second photo: Walter Bagehot courtesy of Wikimedia Commons.
Third photo: An undated photograph of Dicey from the Harvard Law School Library’s Legal Portrait Collection. courtesy of Wikimedia Commons
Fourth photo: Thomas Babington Macaulay, courtesy of Wikimedia Commons.
Fifth photo: Dr Cunningham with a group of UK constitutional and law experts at a conference in London in 2016 that addressed the upcoming Brexit referendum.
