What were the principal features of the British governmental system of the eighteenth century? What were the nature and significance of the relationships among the Crown, the two houses of Parliament, and the British courts? What is their relevance to American constitutional and political development? What important political ideas did the Framers of the United States Constitution derive from eighteenth century British governmental institutions and practices?
1. Major Characteristics of the Governmental System of Eighteenth Century Great Britain:
The English Revolution and Constitutional Settlement, while leaving the Monarch in full possession of the executive powers of government, made it clear that the Crown was bound by and had to act in accordance with the laws of the Kingdom -- laws that could be made, changed, repealed, or suspended only by Acts of Parliament, the enactment of which required the consent of both houses of Parliament as well as the assent of the Monarch. These laws of the Realm, which limited the King's authority and according to which he and his ministers had to proceed, were interpreted by judges whose independence of the Crown was protected by their tenure of office during good behavior and their removibility only upon the address of the two chambers of Parliament. The royal administration, in exercising the powers and performing the duties of office, had to respect and observe the lawful rights of Parliament and those of individual British subjects.
The Monarch could not govern alone. He had to share governing authority with a powerful and independent bicameral Parliament, its two chambers meeting regularly and frequently and its lower chamber popularly elected at relatively short intervals. The Crown could not dispense with Parliament, since the latter had control of public finance. Without the approval of the two houses of Parliament, taxes could not be levied and government funds could not be spent. Parliament made annual appropriations of public funds, including those to maintain the armed forces. Hence, Parliament had to be convened, at least once every year, if the royal government was to secure the funds necessary for its continued operation.
Most importantly, the popularly elected House of Commons had the final say regarding taxes and appropriations. In accordance with the principle of no taxation without representation, all money bills had to be initiated in the Commons. The House of Lords could not act on a money bill until it was first introduced into and passed by the Commons, and the Monarch could not act on the bill until it had been passed by both houses of Parliament. If the people's elected representatives in the House of Commons rejected a revenue or appropriations bill, neither of the two hereditary organs of government -- neither the Lords nor the Crown -- had any official voice in the matter.
In conformity with the principle of representative government, the Crown lacked the authority to enact statutes without the consent of Parliament, which meant majority approval in the popularly elected lower chamber as well as in the unelected, hereditary upper chamber. To become law, legislation proposed by the Crown had to be introduced into the two houses of Parliament, passed by majority vote in each of them, and then presented to the Monarch for his assent. The Monarch, acting on his own authority and in the absence of parliamentary approval, could neither make a new law nor repeal or modify an existing law.
The Monarch did possess one very potent formal legislative power -- the royal negative, the power of absolute veto over parliamentary legislation. However, the Monarch could exercise this power only when both chambers of Parliament passed a legislative bill to which he objected.
Although he could not make statutory law without the consent of Parliament, the Monarch did have tremendous influence over the content of parliamentary legislation presented to him for his assent. Yet, the King could not dictate to Parliament; he was in no position to demand the passage of legislation of a particular character and content. To have a significant impact on parliamentary legislation (revenue and appropriations measures as well as substantive bills), the Monarch had to function as a skillful and resourceful politician and/or appoint as royal ministers skillful and resourceful politicians on whom he could rely to effectively support and promote parliamentary passage of the statutory legislation he fasvored. The King and his ministers had to exercise legislative policy leadership through persuasion and political coalition-building, which required skillful political negotiation and bargaining and the use of a substantial amount of patronage. To gain and hold the cooperation and support of a majority in each of the two houses of Parliament, the Monarch, with the advice and assistance of his ministers, had to develop considerable skill as an authoritative allocator of resources and values -- considerable skill in the allocation of the numerous favors, grants, pensions, sinecures, appointments, and other benefits, rewards and advantages which, under the laws of the Realm, were at the Crown's disposal to distribute as he saw fit.
As the top executive authority in the government, the Monarch was in possession of a still potent royal prerogative. The power to appoint royal ministers belonged exclusively to the King, though he found it wise and expedient to appoint ministers who enjoyed the confidence of the two chambers of Parliament and who therefore could help him build and maintain in each chamber a majority coalition to support Crown-sponsored legislation. Moreover, the Monarch, in the enforcement of Acts of Parliament, had very broad discretionary decision-making authority -- broad authority that enabled the King and his ministers to fill in the details of public policy while engaged in the act of implementation, or carrying out, the general policy established by parliamentary statute. The Monarch and his ministers made and carried out more detailed policies in the process of administering the broadly stated, less detailed policies called for in Acts of Parliament. This gave the Crown substantial control over the content and direction of British national policy, especially in the areas of colonial and foreign policy. The King, with the advice and assistance of his ministers, functioned as chief administrative policy leader in the government -- performing a leadership function expected of the Monarch by Parliament, which reserved to itself the right to sit in judgement on the policies pursued by the Crown, including thr right to refuse renewed funding of the policies and to pass bills providing for alterations in existing statutes relevant to the policies in question -- bills which, of course, became law only if Parliament could persuade the Crown to give his assent to the bills.
In addition to the right of the Crown to appoint his ministers and to make public policy in the process of enforcing parliamentary statutes, the royal prerogative included the Monarch's authority to (1) proclaim states of emergency, (2) command the army and navy, (3) declare war and conclude treaties, (4) exchange ambassadors and other diplomatic representatives with foreign governments, (5) provide legislatures and courts for Britain's overseas colonies, (6) appoint judges to vacancies on the British courts, (7) initiate criminal prosecutions and grant pardons to offenders, (8) bestow honors, (9) grant titles of nobility, creating new peers and thereby establishing new seats in the House of Lords, (10) appoint bishops of the Church of England, and (11) summon, prorogue, and dissolve Parliament, though the King's discretion in the exercise of this last-mentioned power was severely circumscribed by the Triennial and Septennial Acts and, in particular, by Parliament's practice of making funding of the royal government dependent upon annual appropriations and authorizing the existence and operation of a standing army for a period of time not exceeding one year. Finally, the royal prerogative, according to most constitutional lawyers, included an indefinable reserve of monarchical power that could legitimately be exercised under abnormal conditions, e.g., when the Kingdom was facing a serious national crisis which could not be dealt with by the ordinary processes of government.
The British parliamentary system, as we know it today, did not exist during the eighteenth century. The evolution of the parliamentary system, including the gradual transfer of the executive authority from the Crown to the House of Commons and its top leadership group, the Cabinet, did not become an easily recognizable trend in British constitutional and political development until the nineteenth century "Era of Democratic Reform," which involved the enactment of such statutes as the Reform Acts of 1832, 1867, and 1884. While initial steps toward the emergence of parliamentary government did occur during the eighteenth century, these steps were slight, tentative, and imperceptible to most inhabitants of Great Britain as well as to the British colonists of North America before adoption of the Declaration of Independence in 1776 and to early Americans after the adoption of the Declaration.
2. The Relevance of Eighteenth Century British Government to American Constitutional and Political Development:
The British governmental system of the 1700s, like the Elizabethan system of the 1580s and 1590s, was an important source of the political ideas which influenced and guided the Framers of the United States Constitution. Important American political ideas derived from eighteenth century British governmental institutions and practices included (1) constitutionalism and the rule of law, (2) representative government and legislative bicameralism, (3) a strong but constitutional chief executive, (4) an independent judiciary, and (5) balanced government, or checks and balances.
Constitutionalism and the Rule of Law. Partly from English/British constitutional theory and practice, the early Americans derived their strong belief in (1) government subject to and limited by law, (2) the Constitution as a body of higher law, a fundamental law superior to and taking precedence over all ordinary decisions and actions of government, (3) governmental institutions and offices proceeding in strict accordance with the Constitution and other laws of the political community, and (4) the existence of basic rights and liberties guaranteed by the Constitution to the individual members of the community, fundamental rights and liberties which the government must recognize and protect,
Representative Government and Legislative Bicameralism. Derived partly from eighteenth century British political institutions and practices was the early Americans' notion of a powerful and independent legislative assembly that (1) met regularly and frequently, (2) passed statutory legislation, (3) approved taxes and public budgets, and (4) consisted of two houses, either of which could block legislative action favored by a majority in the other and at least one of which was composed of representatives elected directly by the voters. Most importantly, this conception of a powerful, independent, and representative legislature dictated that government operate in strict accord with the principle of no taxation without representation -- the principle that taxes and appropriations could take effect as law only if they were approved by the people's elected representatives in the legislature, that, to become law, a revenue or appropriations measure must first be introduced into and passed by the popularly elected lower chamber of the legislature and then passed by the upper chamber.
The United States Congress was, in large part, modeled after the British Parliament, as it was perceived by the early Americans in general and by the Framers of the U.S. Constitution in particular.
A Strong but Constitutional Chief Executive. British political experience was a major source of the American notion of a powerful but constitutional chief executive -- the idea that the top executive authority in the government should consist of a single high office, occupied by a single person largely independent of the legislature and having (1) full authority to enforce the laws of the land and maintain domestic tranquillity, (2) substantial power in the areas of military and foreign policy, and (3) very high potential for the exercise of effective leadership in both the internal and external affairs of the country -- yet obliged to operate in accordance with and within the limits set by the Constitution.
Early American perceptions of the nature and authority of the office of Monarch in the British government during the 1700s had significant influence on the decisions and actions of the delegates at the 1787 Federal Constitutional Convention, their decisions and actions in drafting Article II -- the executive article -- of the U.S. Constitution. In designing the American Presidency, the Framers of the Federal Constitution were greatly influenced by their understanding of the British Crown and how that institution was supposed to operate under the British Constitution.
An Independent Judiciary. The British court system, as affected by the Act of Settlement of 1701, was an important source of the American concept of judicial independence. Derived partly from British political experience is the American idea of an independent system of courts in which the judges (1) are appointed by the chief executive to serve during good behavior, not during his pleasure, (2) can be removed from office only on grounds of criminal activity or other misconduct and only by means of extraordinary action by both houses of the legislature, and (3) are therefore answerable neither to the chief executve nor to the legislature for their decisions interpreting and applying the law in cases and controversies coming before them. In Britain's 1701 Act of Settlement and in Article III of the U.S. Constitution, the provisions granting judges security of tenure and making them subject to removal only for misconduct and only by extraordinary action of both chambers of the legislature were designed to free the administration of justice from the influence and constraints of partisan politics and to maker the law the sole arbiter of issues before the courts. Judges and juries were to function as independent arbiters between government and the individual citizen or subject, basing their decisions on standards of law and evidence and rendering those decisions without fear of retaliation on the part of the executive and legislative organs of government. Administration of justice by the courts was to be fair and impartial and was not to be the mere instrument of the chief executive or of the majority in the legislature.
Balanced Government. According to early American perceptions, the traditional English system of balanced government was restored by the Constitutional Settlement of 1689-1701 and operated in Great Britain throughout the eighteenth century. The traditional English/British governmental system, as perceived by the early Americans, was characterized by a constitutional division and balance of political power among the three principal legislative organs of government -- the Crown, the House of Commons, and the House of Lords. While the Monarch lacked the authority to make law by royal edict (i.e., proclaim law in the absence of a legislative bill passed by the two houses of Parliament), Parliament could not make a law over the objection of the Monarch. For a bill to become a statute, it had to receive the consent of the Crown as well as that of each chamber of Parliament. Each of the three organs of government -- King, Commons, and Lords --had the power of absolute veto over proposed parliamentary legislation. A majority in either the House of Commons or the House of Lords could prevent Parliament from passing a bill; and the King, through exercise of the royal negative (the executive veto), could prevent a bill passed by both chambers of Parliament from becoming a statute. The constitutional relationship among Crown, Commons and Lords, as seen by the early Americans, enabled the Crown and the two houses of Parliament to check and restrain each other and prevent any one of the three organs from completely dominating the entire governmental system.
Early American perceptions notwithstanding, eighteenth century British governmental institutions and practices were slowly moving away from balanced government toward a system in which one single power center, the Commons majority and its leadership, dominated the executive and legislative institutions and processes of government. The royal negative was last exercised by the Crown in 1707, during the reign of Queen Anne, and, as a consequence of its disuse over a long period time, the constitutional power of the Monarch to block enactment of parliamentary legislation ceased to exist. In 1714, after the accession of Britain's first Havoverian Monarch (German-speaking, non-English-speaking George I), the Cabinet and office of Prime Minister began to evolve, and the gradual and, as yet, imperceptible movement toward the parliamentary system was in progress, becoming highly perceptible during the Era of Democratic Reform in the nineteenth century,
Early American perceptions of the governmental system of eighteenth century Great Britain were influenced and shaped by three main factors -- (1) the Americans' familiarity with and understanding of the Elizabethan system that operated in England during the late sixteenth century, (2) the various attempts of the colonists to adapt the Elizabethan system to the problems of governance in the frontier societies of British North America, and (3) the political theory articulated by Charles Louis de Secondat, Baron de Montesquieu, in his book, The Spirit of the Laws, published in 1748. Baron Montesquieu, Frenchman, constitutionalist and eighteenth century political philosopher, admired the British governmental system, seeing as the principal features of that system (1) a constitutional division and balance of political authority among the Crown and the two chambers of Parliament and (2) a constitutional separation of powers among the legislative, executive, and judicial branches of government. While Montesquieu's perception of an institutional separation of powers among legislature, executive, and judiciary was not in accord with the reality of British governance, he really did see balanced government in the British system, though he failed to realize that the latter feature of the system was steadily eroding -- a cognitive failure which he shared with the early Americans and most eighteenth century Britons.
The Framers of the U.S. Constitution were familiar with Montesquieu's The Spirit of the Laws, and his analysis therein of the eighteenth century British constitutional system had a decisive impact on the Framers' political values and beliefs. The constitutional relationship among Crown, Commons, and Lords in the British governmental system, as perceived by the early Americans and as described and interpreted by Montesquieu, was a major source of the American Founders' idea of a system of checks and balances enabling the chief executive and two houses of the legislature to check and restrain each other -- a system of divided and balanced political authority whereby the principal legislative organs of the U.S. national government, President, Senate and House of Representatives, could oppose, counteract, and counterbalance one another, forcing each to remain within the constitutional limits of its authority and thereby preventing it from encroaching on or usurping the authority of the others, upsetting the balance of power in the governmental system, and exercising unchecked political power.
Considering the reality, as distinguished from early American perceptions, of British political practice during the 1700s, it can
be seen that the Americans were embracing the principle of balanced government and incorporating it into their constitutional
system at a time when the British had already begun their gradual abandonment of the principle in favor of government
dominated by one house of the legislature.