Mcilwain, Charles H.
Mcilwain, Charles H.
Charles Howard Mcllwain, political scientist and historian, was born in Saltsburg, Pennsylvania, in 1871. He received a B.A. degree from Princeton in 1894. Three years later he was admitted to the Pennsylvania bar, but shortly thereafter he accepted a post as teacher of Latin and history in a private school. His knowledge and interest in the fields of Latin, history, and law, which later found expression in his writings on English constitutional development and ancient and medieval political thought, were sharpened and refined during his study for the doctorate at Harvard from 1901 to 1903. In 1911 Mcllwain was appointed assistant professor of history and government at Harvard and was promoted to a full professorship only five years later, which was quite extraordinary at the time. In 1927 he was named Eaton professor of the science of government, and he held this chair until his retirement in 1946. During an active teaching career which spanned almost half a century, he lectured at numerous universities, including Oxford. In 1936 he was elected president of the American Historical Association.
Mcllwain was profoundly disturbed by the divorce of political science and history. The disciplines were brought together, especially at Harvard, through the force and originality of Mcllwain’s scholarship. The dominance of political theory, and its historical orientation, in the Harvard department of government is in large measure a legacy from Mcllwain. His influence was strongly felt by scholars of his own day—Edward Corwin and George Sabine, to name but two—and the work of more re-cent theorists, such as Louis Hartz and Leonard Levy, reflects the continuing impact of Mcllwain’s approach to the study of political thought.
Historical roots of judicial activism . Avoiding the pitfall of reading the present into the past, Mcllwain justly prided himself on his ability to interpret medieval writers such as Henry de Braeton and John Fortescue in terms of their own thinking and experience. His insight into juristic thought in England during the Middle Ages greatly contributed not only to a general understanding of the period but also to a clarification of political concepts such as constitutionalism and sovereignty. The unique and phenomenal discretionary power enjoyed by the American judiciary cannot be explained in the absence of an understanding of its historical roots in English jurisprudence. Addressing himself to this problem, Mcllwain argued in The High Court of Parliament (1910) that medi eval English courts exercised similar powers. He hammered home the point that medieval judicial activism was due to a fusion, not a division, of governmental powers. It is therefore a misconception to regard the High Court of Parliament as a court of justice which, in addition to its judicial function, exercised legislative powers. The distinction between legislation and adjudication was simply not recognized, thereby allowing the lower courts, as well as Parliament, to exercise both types of powers.
The fusion of powers in governmental institutions spawned not only judicial activism but also what might well be considered its natural outgrowth, judicial review. It is only within the context of Mcllwain’s interpretation of the character of governmental powers in seventeenth-century England that Sir Edward Coke’s famous statement tha “in many cases the common law will controul acts of Parliament” ([1610] 1826, p. 375) is reconcilable with his earlier declarations that Parliament’s power is absolute (in [1644] 1817, pp. 28-36). The apparent paradox vanishes when one realizes that Coke was not invoking judicial authority against legislative sovereignty, but holding that common law, as higher law, is binding upon the ordinary courts and the High Court of Parliament alike.
Constitutionalism . The crux of Mcllwain’s concern was the true meaning of constitutionalism. Throughout his writings he championed the principles of medieval constitutionalism, perhaps most effectively in a thin volume which has become a classic, Constitutionalism: Ancient and Modern (1940). He defined constitutional government as government limited by law. It embodies the basic distinction, so clearly drawn by Bracton, between gubernaculum and jurisdictio, between discretion and law. The same concept was echoed by Coke in his famous Case of Proclamations. “It is a grand prerogative of the King,” Coke declared, “to make proclamation. .. [yet] the King hath no prerogative but that which the law of the land allows him” ([1656] 1826, p. 299). In a word, within the bounds of higher law, the king is supreme. Bodin, too, developed views of sovereignty that recognized both the absolute power of the sovereign to make ordinary laws and the limitation of the sovereign by fundamental law; Mcllwain therefore regarded Bodin as a constitutionalist [seeBodin.]
Against this concept, Mcllwain critically posed the more modern view of constitutionalism, that is, that constitutional government must be founded upon a division of powers which effectively restrains governmental action. This view—which is, in Mcllwain’s opinion, historically unsound—obscures the distinction between control and limitation. Constitutional government must be strengthened to survive in the modern world, not enfeebled by checks and balances which dissipate its powers and render it ineffectual. While Mcllwain believed that responsible and effective constitutional government necessitates the removal of balances, he emphasized that the limits beyond which no government can legally go must be strengthened. In a vein strikingly similar to the legal absolutists’ position in the United States today, Mcllwain declared, “I frankly want to rely on the earlier, the sounder, yes the medieval principle, that there are some individual rights that even a people’s government can never touch” (1917–1937, p. 263). He placed complete reliance upon the judiciary to hold the line.
Viewed from a functional approach, Mcllwain’s juristic concept of constitutionalism is subject to major criticism. Intent upon demonstrating that the medieval idea of supreme, limited government embodied the true principle of constitutionalism, Mcllwain was little concerned with the problem of the power relations necessary actually to limit government. Clearly, a balance of power within government may hamper governmental responsibility and effectiveness; however, it appears to be equally true that government cannot be effectively limited if it does not reflect a division of power among groups and classes within the community. Indeed, during the Middle Ages constitutionalism was actually operative only in those periods when the king was restrained by the power of the ecclesiastical authorities and the feudal landowners.
Convinced of the merits of the medieval distinction between control and limitation of government, Mcllwain was naturally critical of the doctrine of separation of powers and the doctrine of checks and balances, both of which clearly violate this distinction. His argument would have been on firmer ground if he had not ignored the important question of whether government can be effectively limited in the absence of institutionalized controls.
Peter Bachrach
[For the historical context of Mcllwain’s work, seeConstitutions AND Constitutionalism; and the biography ofCoke.]
WORKS BY MC ILWAIN
1910 The High Court of Parliament and Its Supremacy: An Historical Essay on the Boundaries Between Legislation and Adjudication in England. New Haven: Yale Univ. Press.
(1917–1937) 1939 Constitutionalism and the Changing World: Collected Papers. Cambridge Univ. Press.
1918 Introduction. In James I, King of England, The Political Works of James I. Cambridge, Mass.: Harvard Univ. Press.
1923 The American Revolution: A Constitutional Interpretation. New York: Macmillan. → A paperback edition was published in 1958 by Cornell University Press.
(1932) 1959 The Growth of Political Thought in the West, From the Greeks to the End of the Middle Ages. New York: Macmillan.
(1940) 1947 Constitutionalism: Ancient and Modern. Rev. ed. Ithaca, N.Y.: Cornell Univ. Press. → A paper-back edition was published in 1958.
SUPPLEMENTARY BIBLIOGRAPHY
Coke, Edward (1610) 1826 Dr. Bonham’s Case. Volume 4, part 8, pages 355–383 in Great Britain, Courts, The Reports of Sir Edward Coke. London: Butterworth.
Coke, Edward (1644) 1817 The Fourth Part of the Institutes of the Laws of England Concerning the Jurisdiction of the Courts.... London: Clarke. → Published posthumously.
Coke, Edward (1656) 1826 Proclamations. Volume 6, part 12, pages 297–299 in Great Britain, Courts, The Reports of Sir Edward Coke. London: Butterworth. → Published posthumously.