The Historian's Part in a Changing World
Annual address of the president of the American Historical Association, delivered in Providence, Rhode Island, December 1936. Published in the American Historical Review 42:2 (January 1937): 207-24.
Books by C.H. McIlwain
Probably never never since this Association was founded have men and women of our profession been asking themselves as earnestly and as anxiously as they are asking now, the old question, so often asked before, whether we, as historians, have anything practical to offer to our own country and to the world in times of crisis like the present, and if we have, how we can make our particular contribution most effectively.
Each one's answer to these pressing questions must be his own personal answer, based on his own individual experience, if it is to be anything vital to him or any practical help to others. But if this is true, each one must also see that his answer can never be more than a tentative one. He must realize how very narrow the range of his vision must be; how infinitely small a part of the whole varied experience of our race, which is history, can be mastered in one short span of life or even in many. All history should be a lesson in humility to us historians, but there is no more striking lesson than the present world crisis, in many of its most important aspects wholly unpredicted, if not unpredictable, even at the opening of this twentieth century.
To one in a boat at sea the horizon seems to recede into infinity on every side, but if he is a seaman, he knows he is only looking over the brim into nothingness.
In a troubled time like our own, in thinking of our inherited institutions and ideas, one sometimes feels as old Thomas Fuller did in 1655 on the completion of his Church History of Britain, when, as he says in his preface, "An ingenious Gentleman some months since in Jest-earnest advised me to make hast with my History, for fear (saith he) lest the Church of England be ended before the History thereof."
In this period of perplexity, we naturally wonder what service history can render in solving the problems of our country and of the world. We are asking ourselves how we, as historians, can do our part and what that part may be. No words seem more aptly to express this mood or to make clear our own present doubts and fears and hopes than the moving preface of an English pamphleteer of 1643 who signed himself "An Earnest desirer of his Countrie's Peace":
When a Patient lies sicke under the destroying paroxismes of a Fever, every stander-by will be telling his Medicine, though he be no Physitian: O then let no Sonne of this State account it presumption in me, for putting in my judgement, and speaking that which I conceive might, if not remove, yet mitigate this fatall distemperature of our common Mother: at another time perhaps it might be censurable, but in this exigence laudable.
For whether we like to admit it or not, we know we are to a large degree the creatures of habit, and the makers of history are no exception; they always have been and always will be guided in their actions rightly or wrongly by what they conceive to be the results of past experience, by the "lessons of history"; at least they will attempt to justify these actions or to secure popular assent to them by an appeal to the past. "It is these lessons of history that we want", I once heard it said by an eminent professor of pedagogy, and we do want them; but I was glad it was pedagogy and not history he professed, for he added that it was only the lessons, not the history, that we needed. In the schools, two or three weeks, he thought, would be enough for the history itself. This certainly is "to make haste with our history", and perhaps it is this very widespread unthinking haste of today that best indicates the most helpful contribution we can make as students of history. Some "lessons of history" we know will always be drawn, some "lessons of history" will always be acted on. Our part is to see that these really are the lessons of history.
It is not as easy a part as it might seem at first sight. Especially in times like this we are in a hurry lest the institutions we study "be ended before the History thereof". We are anxious--too anxious--to find a short cut.
In this connection we are often told that each generation will rewrite its history of the past. Even if it does not wholly reconstruct this past, it will make its own choice of the parts to be noted, and these parts will be precisely those which are uppermost at the time when the history is written. One scarcely needs to be told that this is so, but some have told us more. They have not only admitted the fact that this is done. They have said it ought to be done. At times they have implied, if they have not actually said, that what is out-of-date now ought to be eliminated from history. Others have put it a little differently, perhaps a little less crudely. It is humanly impossible, they say, even to approximate in our words the complex of innumerable facts and forces that made the life of any part of the past. The historian at most can make only a selection, and a woefully inadequate one at the best. This is too true, though one might question whether it is any more true of some parts of the past than of the actual present.
But again these defeatists, for they are defeatists, would tell us more. Because it can never be done perfectly, it should not be attempted at all. At times they seem even to make a merit of our obvious, but unfortunate, defects. Why not admit that all our histories are after all little better than fiction, little more than impressionistic pictures? And isn't it better so? The writing of history, they tell us, is only an "act of faith". One convincing proof of the inadequacy of this phrase of an eminent predecessor on this rostrum is the tale of his own distinguished contributions to history.
Styles change in history as they do in women's garments, but sometimes the latter revert too. When some of us were youngsters we were taught to look up to the aims and aspirations of Leopold von Ranke as a guide. Now this is all changed. We find ourselves as professed historians engulfed in the general wave of pessimism, economic, political, and intellectual, which has been sweeping over the world since the Great War. Because we now know we can never achieve the full objectivity which Ranke preached, we are told that we should never make an effort to do so. Let us rest content with the subjective. It is all we can ever reach, all that can have any truth or value for us. Objective truth is a chimera. History is only an "act of faith". This intellectual weariness is no new thing in the world. Plato spent his life in combating it among the Sophists. Today the world is again in a sophistic mood--I am using the word, of course, without any modern sinister meaning. There is a general distrust of reason. Behaviorists would have us believe that blind animal instinct alone determines human destiny, and fervid nationalists are setting up the menace of a particular tribal culture against the historical verdicts of universal human reason. Such subjectivism usually ends in a complete skepticism. As Gorgias said in the Socratic dialogue, even if there were an objective truth, we could never recognize it. History is a vain quest. Let us frankly admit that we are only drawing imaginary portraits and vistas that never were on sea or land. No doubt it is a good thing thus to know our own limitations. In the past, without question, we have known too many things that were not so, and we shall never know more than a little of what is so. Some distrust of ourselves is not a bad thing. As one result, we shall probably be spared some further excursions into prophecy under the name of the "philosophy of history".
But with all due deference to the considerations just recited, the historian is after all faced with the brutal fact that some things did actually happen in the past, and that some record of these happenings sometimes survives. And if these things happened, they had definite historical causes and results of which we often have some account remaining, even if incomplete.
How, in common sense, dare anyone say that we can know absolutely nothing positive about these past transactions, even if we cannot know all, even if we can know but little? And why should we be content merely to tint our picture with the colors that suit the changing taste of our own time? I am impressed by the sober words of the late Professor Tout in the opening part of his great work on English medieval administrative institutions. They seem to reflect more of the general aims and purposes of Ranke than of some later ones. "We investigate the past," he says, "not to deduce practical political lessons, but to find out what really happened."
We may not agree unreservedly with the first half of this sentence, but what serious historian can question the second? And if we investigate the past "to find out what really happened", knowing all the time that we can never truly find out anything whatsoever, why should we waste our time? Why not turn at once to historical romance? Too much of our written history even now is actually historical romance, and there may be a danger that much more will be. Biography seems to be turning that way, and already there are more than hints in certain parts of the world that all past history must be rewritten for a present purpose. In these days of propaganda, propagandist history is not likely to be neglected. Just let me give you a short extract from one interesting older example of it.
The author, John Aylmer, later bishop of London, is particularly bitter against the French--the date of the book, 1559, is significant--and asks "Are they Giaunts, are they conquerours, or monarks of the world? No good Englishe men they be effeminate Frenchmen: Stoute in bragge, but nothing in dede. . . . They be your slaves and tributaries." They are in fear of the English, he says, "and it is no marvaile, for we have thorow Gods help ever had the better of them. . . . When durst these meacockes mete us in the field? or if they did: went they not weepynge awaye? . . . We have a fewe hunting termes and pedlars French in the lousye lawe, brought in by the Normanes, yet remayning: But the language and customes bee Englyshe and Saxonyshe." "We live in paradise. England is the paradise and not Italy, as commonly they call it." And here in the margin the author has added, "God is English"!
You laugh, but how much more fantastic is this than some things written or taught or promoted in our own time? If such is the rewriting of one's history for his own generation--or his own nation--then some of us may prefer, with Professor Tout, to stick to the more humdrum task of trying "to find out what really happened", even if we know in advance that we can never find it all out. And few serious students of the history of English institutions, I think, would venture to deny that this more patient method in Professor Tout's own hands has actually resulted in a truly measurable increase in our positive knowledge of "what really happened".
There is, of course, a sense in which each generation not only does, but undoubtedly should, rewrite past history for itself. For example, no one could deny that our modern concern in the material things of life--whether that itself be good or bad--has led to an appreciation of their importance in the past, fuller and probably more just than the views of some of the older historians. But when this leads, as it sometimes does, to a treatment of some past periods on the assumption that these same material or economic factors must have been just as prominent then as they are now in the political or intellectual development of the time--when this is done, we get in the name of history a distortion in place of an interpretation.
When kept within proper limits, this general kind of revision has, it is true, resulted in a very great enrichment of our history; but it is a mistake to think of it as the only kind; indeed, it is the principal contention of this paper that the most valuable of the newer interpretations of that history are now to be found in a quarter not only different from this, but almost directly opposite to it. The most serious defects in our existing histories of past institutions--the kind of histories with which I am most familiar--lie, not in any undue suppression of modern modes of thought and action, but rather in their untimely intrusion. Thus the chief advances made in the recent study of these institutional developments have come from a recognition of such defects. And I venture to predict with some confidence that any further improvement we may ever be able to make over our predecessors in this study in the years to come, any firm building we may succeed in erecting on the foundations they have laid, is likely to be in large part the result of a still clearer recognition of these defects and of a still further application to history of the canon which Sir Edward Coke once laid down for law: contemporanea expositio fortissima est.
Infractions of this rule naturally come oftener in some kinds of history than in others and are far more frequent for certain periods. For contemporary or recent history the danger is slight, for there familiarity with present-day conditions forms the necessary basis of all accurate historical judgments; and even in ancient history the faults are likely to be of a very different kind. You will notice that most of the illustrations of our retrogressive modernism come from the institutional development of the Middle Ages and after. This is the period from which we can trace our own familiar institutions in a continuous development. It is the stage of growth immediately behind us, in which were laid the foundations on which our social and political fabric still stands. Thus it is just because these institutions are so peculiarly our own and yet during their earlier growth so fundamentally different in character from what they have now become, that the temptation is so great to slur over the historical stages in their evolution. Probably for no other period is it so necessary or so difficult to observe in our thinking and writing the caution of Maitland when he says, "We shall have to think away distinctions which seem to us as clear as the sunshine; we must think ourselves back into a twilight. This we must do, not in a haphazard fashion, but of set purpose, knowing what we are doing."
Actual changes like this in our attitude toward particular historical problems have, however, not as a rule come about wholesale, or from any "set purpose". They have usually come piecemeal because someone has been steeping himself in the thought and motives of some past epoch by extensive and careful reading of the records or writings of the time, and one day wakes up to find--usually to his utter amazement--that this thought or these motives and institutions are not at all the ones he has been reading about all these years in the standard modern books. Then he gets to work. If I may be pardoned a personal allusion, I can never forget the shock--it was really consternation rather than mere surprise--when I suddenly realized that men like Lambarde or Fitzherbert in Elizabeth's time, when they spoke of a parliament, were thinking of something in many ways very different from what I had learned. It is a little shocking to find the actual makers or the contemporary recorders of the past saying or doing or thinking something entirely different from the thing we have always had in mind, or, what is worse, have even been teaching to others as history.
But such shocks do not commonly arise out of the consciousness that our received notions of earlier historical developments fail to square with modern conditions. On the contrary, nine times out of ten it is just because these notions are too modern that the historian finally discovers that they do not fit the actual facts, that they furnish no explanation at all, or an obviously inadequate or even a distorted explanation of past movements and actions.
To see if this is true or not, it might be profitable to look at a few specific instances of revisions made in recent years in the field of our own earlier institutions which historical scholars have accepted generally as improvements. It is most interesting to compare, for example, the older traditional conception of these institutions in England just after the Conquest with the one now prevailing. The former is concisely stated in Freeman's Growth of the English Constitution, first published in 1872, and still survives in some of our textbooks; the latter is brilliantly set forth in Professor Stenton's First Century of English Feudalism, which appeared in 1932. To Freeman, apparently nearly as much as to Bishop Aylmer in the sixteenth century, all "the language and customes bee Englyshe and Saxonyshe". The words of our greatest modern master in this field are strikingly different. They were written by F. W. Maitland in 1895, or just before. He admits, as everyone must, that the Conqueror could not and did not "sweep away English law and put Norman law in its stead", nor ever intended to do so; but he sees, nevertheless, "one indelible mark" which the Conquest "has stamped forever on the whole body of our law". He continues:
It would be hardly too much to say, that at the present day almost all our words that have a definite legal import are in a certain sense French words. . . . Earl was not displaced by count, sheriff was not displaced by viscount; our King, our Queen, our lords, our knights of the shire are English; our aldermen are English if our mayors are French; but our parliament and its statutes, our privy council and its ordinances, our peers, our barons, the commons of the realm, the sovereign, the state, the nation, the people are French; our citizens are French and our burgesses more French than English. . . . In the province of justice and police with its fines, its gaols and its prisons, its constables, its arrests, we must, now that outlawry is a thing of the past, go as far as the gallows if we would find an English institution.
The date of the final conquest of French over English in the corms Maitland significantly puts rather in 1166 than 1066, at the time of Henry II's Assize of Clarendon instead of the Battle of Hastings, and he goes on to warn us that this fundamental change in language must be the index of much more. These may be only terms of law, but they touch life in all its phases. For "Language", he says, "is no mere instrument which we can control at will; it controls us. It is not a small thing that a law-book produced in the England of the thirteenth century will look very like some statement of a French coutume and utterly unlike the Sachsenspiegel." When we pass from these more general matters to specific events of this period, the difference appears even more marked between the old interpretation and the new. Let us take the famous Salisbury oath of 1086, which brings up "perhaps the obscurest question in Anglo-Norman history", as Professor Stenton says. Speaking of it in his Norman Conquest, Freeman attacks certain "ingenious writers", because--to quote his own words--"they have picked out, as the act by which a Feudal System was introduced in England, the very act by which William's far-seeing wisdom took care that no Feudal System ever should grow up in England". These "ingenious writers" are chiefly lawyers, and in speaking of them Freeman says he is tempted to refer to St. Luke, XI, 52, which, by the way, reads as follows: "Woe unto you Lawyers: for ye have taken away the key of knowledge: ye entered not in yourselves, and them that were entering in, ye hindered." Following the Peterborough Chronicle, Freeman seems also to accept its statement that some 60,000 freemen took that oath in that unique "Gemót of Salisbury", which destroyed feudalism forever in England.
To Professor Stenton, on the other hand, the same transaction appears simply as an application on a large scale of the normal and widely extended feudal institution of liege homage, and he says "its authority was in accordance with the strictest feudal principles". Furthermore, in his view it was not all the freemen who took the oath at Salisbury, nor even the mere knights, but only "the leading mesne tenants, men with military resources of their own, and the personal influence which birth and experience gave. . . . And the social custom of the time regarded such men as barons 'whosesoever men they were'." Such a feudal and aristocratic interpretation is a far cry from Freeman's glowing Germanic democracy.
Another important institution of the same period furnishing a similar illustration of the change in historical treatment is the county court and the membership of that court under the Norman kings. Even Bishop Stubbs seemed to regard attendance at the court as a privilege or honor so much cherished in twelfth century England that King Henry I found it necessary in a writ which still survives to restore the frequency and regularity of its meetings after a period of interruption. A more recent view is somewhat different. Attendance at these courts was no honor that members prized or communities sought for. Instead, this attendance was a nuisance to those members and a burden of service upon those communities which should not be exacted any oftener than precedent warranted. The well-known writ of Henry I for holding the county and hundred courts, it is thought, is not then, as Stubbs and his predecessors assumed, an order for the holding of these courts oftener than before; it is a command that they should meet less often. The amount of suit at court shall not be increased for the local communities; as the contemporary author of the so-called Laws of Henry I puts it, they are not "to be worried further by any wearisome burdens" (nec ullis ultra fatigationibus agitari). The grievance redressed here is not too little representation, but too much. Like changes have taken place in our modern accounts of the nature of the central assembly, the Great Council or Magnum Concilium. It is now usually thought of as essentially a meeting of tenants-in-chief in response to a royal summons to acquit their lands of a strictly feudal obligation, the obligation of counsel. This has diverged pretty far from Freeman's conception of a great national assembly at whose meetings "the whole people had an acknowledged right to attend". What was formerly considered a national privilege turns to be only a feudal burden.
Such revisions of Anglo-Norman history all tend in one direction, and they may be considered sound or unsound, but no one can deny that they are momentous. They amount to a fundamental change in our notion of the whole of the social and political institutions in operation in that important period. They modify our ideas respecting almost every side of men's life at the time.
None of them, however, seems to have been prompted by any feeling that earlier historians had neglected the forces of the present in their treatment of the past. The changes noted above in our ideas about Norman England have come almost invariably from an enlarged estimate the importance of feudal relations in the life of that period; and yet, if there is one thing conspicuous by its absence in the life and thought our own time, it is feudalism. What really produced this great change, then, was no reading in of modern modes of thought or action, but a reading out. It has resulted from no attempt, conscious or unconscious, to rewrite this part of the past in our own terms, but rather from a realization, born of careful research into the records of the time, that those records actually tell a story different from the one we have hitherto accepted as history.
Turning from the twelfth to the thirteenth century, we find similar changes of emphasis or of interpretation. One of these, at least, seems to have won the assent of historical scholars generally.
In 1853 Sir Edward Creasy described the Great Charter of King John as "a solemn instrument deliberately agreed on by the King, the prelates, the great barons, the gentry, the burghers, the yeomanry, and all the freemen of the realm". Of the famous words of its thirty-ninth chapter, "except by the lawful judgment of his peers, or by the law of the land", he said, "I believe that the trial by peers here spoken of means trial by jury. The words will bear this meaning; it is certainly impossible to give them any other satisfactory meaning." The clause guarantees "full protection for property and person to every human being who breathes English air". This is a fair statement of the opinion of historians pretty generally in 1853, and no doubt it is law, for this identification of the feudal trial by peers and our trial by jury is made in many of our own state constitutions. But good law may be pretty bad history. Needless to say, no reputable historian accepts this view today, though it lives on in Fourth of July orations and no doubt will for years to come. Less generally accepted perhaps, but no less significant, is an apparent change in the attitude of historians toward the annulment of Magna Carta by Pope Innocent III. It has been usual to see in it something of a papal attack on the independence of an English church. Even as late as 1914 Mr. McKechnie could say that "the conception of an English Church that was something more than a mere branch of the church universal, began to take clearer shape", when English churchmen found that John was receiving sympathy and support from Rome. If there is any contemporary evidence that can be fairly interpreted in this sense, I do not know what it is. The reasons for the revocation given in the bull itself seem ample; they are chiefly the compulsion under which John's promises had been extorted and the surrender of royal authority which these promises involved. The first of these grounds is too obvious to need comment, the second is far more interesting constitutionally; but on either ground it is hard to avoid the conclusion that the pope could scarcely have given any other decision than he did; while the belief that Langton and John's other clerical opponents saw in it any attack on their national church looks like just another of these anachronisms we have been tracing, which it is the business of the historian to disprove.
Historians have thought and apparently still often think they find a sort of national declaration of independence of the canon law of the Universal Church in the famous declaration by the barons at Merton in 1236, Nolumus leges Angliae mutari--"We are unwilling that the laws of England be changed." This nationalistic explanation seems still to be the one generally accepted, and a good deal of eloquence has been expended on these patriotic barons. But a revisionist with contemporary evidence in mind must have his doubts. No man in England in 1236, noble or non-noble, layman or ecclesiastic, would have dreamt of challenging the church's exclusive right to define legitimacy--the particular question then at issue--or to determine it in a particular case in its own courts. The barons do not say they repudiate cannon law; they do not even say they repudiate the church's definition of legitimacy; they claim for themselves no jurisdiction over legitimacy generally; they only say that in determining a right of succession to English land, which is a proprietary right, the king's courts will follow the ancient English land law relative to succession in cases of illegitimacy in preference to any other rule. It might be added that although the Statute of Merton, of which this is one of the sections, is always printed among the Statutes of the Realm, it antedates any surviving statute roll, and how it originally got the name and authority of a statute must be considered now a question of much greater doubt, since the recent notable investigations of Messrs. Richardson and Sayles into the history of the early statutes.
Other instances of the same thing will no doubt occur to you. This same antedated nationalism that formed our traditional estimate of the Statute of Merton and inspired McKechnie's criticisms of Innocent III's revocation of Magna Carta has also suggested similar modern objections to the arbitration of St. Louis in 1264, in which he declared that the Provisions of Oxford of 1258 were void, even though enacted with Henry III's formal assent, because they were an infringement of the king's royal authority. It has not always been sufficiently noticed that this constitutional objection of St. Louis is the same that Innocent III had made against parts of Magna Carta, nor has enough weight been given to this and to other contemporary evidence for the existence at this time in England of a constitutional principle which seems to forbid even the king himself, much more any of the king's subjects, to "blemish" the rights of the crown, and renders null and void even a royal act which attempts it. If such a principle was in existence then, St. Louis decision, like Innocent III's, was probably the only one that could be justified then or now, in view of all the circumstances of the case.
Similarly, of course, these considerations must affect our estimate of Simon de Montfort and his work. We may admire as much as before the nobility of his character and aims and recognize the great significance of his acts and proposals, but we are less likely now to call this nobility patriotism or to defend those acts as constitutional. In the same way, and for much the same reasons, important recent historical research into the origins of English representation has made it impossible any longer to refer to him, as the German historian Pauli did, as "The Founder the House of Commons".
What the retrospective nationalism of the older histories has done in this way for the work of Simon de Montfort, retrospective constitutionalism has done for the administration of King Edward I. He was the hero of Stubbs's great constitutional epic. Now he is regarded rather as a champion of prerogative than of constitutionalism; but to think of him thus, as a man of his own time rather than of a later time, is in no way really to detract from the nobility of his character or the true greatness of his designs. If one thing in his reign more than another might serve to illustrate our changing historical views, it is what I could now probably speak of without risk as "the Myth of the Model Parliament".
So we might go on to the revaluations of the great ordinances of 1311 and the Statute of York which repealed them and enacted what Stubbs, in his constitutional enthusiasm, regarded as the provision establishing the share of the commons in legislation. We might pass to the great ecclesiastical statutes of the middle of Edward III's reign, the statutes of Provisors and Praemunire, and Maitland's classic exposure of their nationalistic interpreters and the naïve non sequitur that they had proved the existence of an opposition to papal authority among the English clergy because they had been able to show an opposition to the clergy among the English laity.
When we reached the Tudors in a survey of this kind it might seem at last that we had come to a period in which historical revision was to take a more modern form, something possibly almost like a rewriting in terms of our own day. For so far as there has been any recent revision in the historian's conception of this epoch it has seemed to incline to a softening of the old accepted phrase "Tudor absolutism" as a characterization of the time. At last we might seem to need a little more modern constitutionalism instead of reactionary antiquarianism if we were to reach a just estimate of the period. Like most such sweeping phrases, "Tudor absolutism" does cover a multitude of sins, not only past but present. In the reign of Henry VIII, at least, there is plenty of oppression, much injustice, at times intolerable cruelty. There can be no doubt of that, but can we properly call it a despotism? Strictly, it was not. The king had great power, and at times he greatly abused what he had, but he certainly did not legally have all power: there were limits to what he could legitimately do. His mere will was not law. It is impossible to characterize the Tudor reigns as an absolutism or a despotism in any proper sense of those terms.
Bishop Aylmer has been quoted for his fantastic chauvinism, but when he could forget that, he was a remarkably keen observer, and he might be quoted again in this connection:
But to what purpose is all this? To declare that it is not in England so dangerous a matter to have a woman ruler, as men take it to be--If on the other part, the regement were such as all hanged upon the King's or quene's will, and not upon the lawes written; if she might decre and make lawes alone, without her senate; if she judged offences according to her wisdom, and not by limitation of statutes and laws; if she might dispose alone of war and peace; if, to be short, she were a mer monarch, and not a mixed ruler, you might peradventure make me fear the matter the more, and the less defend the cause.
That is a very remarkable statement of constitutionalism to be written in 1559, and there is plenty of other contemporary evidence in support of it which I cannot stop to cite. Clearly we must temper our phrase, "Tudor absolutism". But is this because it is too modern to fit the facts, or because it is not modern enough? The answer to that question depends on another--whether despotism or absolutism is itself a medieval or a modern form or ideal of government. Without doubt it is modern, not medieval. In fact, in sixteenth century England medieval constitutionalism was fighting for its life against the new, the more modern despotic tendencies, but it survived there. In sixteenth century France the same battle was going on, but the outcome was different; there modern absolutism replaced an older constitutionalism, to last till the Revolution of 1789; the "tempered monarchy" of earlier times gave way before the personal rule of the Bourbon kings. What we still chiefly need, then, even for Tudor England, if we are to comprehend it better, is a more thorough understanding not so much of its modern innovations as of its great medieval heritage.
Need I cite more examples of such anachronisms as these? Because they were political liberals, St. Thomas Aquinas must now be made over into a modern Whig and Cardinal Bellarmine into a democrat; because they believed in a restricted royal prerogative, men like Sir John Eliot and Sir Matthew Hale have to be turned into preposterous parliamentary Austinians. This is about the last and the worst case of this kind of procedure. Lessons may be got in this fashion, no doubt, but they will not be the lessons of history. The quickest and the surest way of finding the present in the past, but hardly the soundest, is to put it there first.
The illustrations above have practically all been taken from the earlier history of our own constitutionalism in the mother country, but further illustrations, equally pertinent, will no doubt occur to you from historical fields other than the constitutional and from other lands than England.
But here someone may object. He may say, as Glaucon said to Socrates in Plato's Republic, that this rehearsal thus far has been all negative. If it is true that some measure of objective history can really be reached, as has been maintained, then one ought to be able to point to something positive in that history, something not completely vitiated by the fallacies we have been tracing.
It is with a good deal of hesitation that I would venture to put forward one or two general political principles that do seem to accord with the words and actions of men throughout the earlier part of our constitutional history and yet have persisted to our own time or almost to it--principles, therefore, that may possibly survive the tests by which we have ventured to discard some others. Probably the best way to suggest these principles here is in the form of a commentary on one of the texts that expresses them best. It is the well-known line of Bracton in which he says, Rex non debet esse sub homine, sed sub Deo et lege--"The king ought not to be under a man but under God and the law." It would be hard to fix on any sentence outside Scripture more quoted in our later constitutional struggles than this, but the way it has usually been quoted is rather amazing. How many times we have all seen the last part of this maxim repeated, "under God and the law"! But how often do we ever see a quotation of the first part--"non sub homine", not under a man? Yet Bracton himself put both these parts together, and he put "non sub homine" first. Some English royalists of the seventeenth century quoted the first part of Bracton's sentence and stopped there; many more on the parliamentary side repeated the last part and began with it. Practically none, to my knowledge, made use of both parts of Bracton's statement, and this is probably not surprising. It is always a favorite trick of propagandists to quote half a sentence and carefully omit the rest. But how shall we explain the fact that sober historians in later times have in this case done the same thing and kept on doing it? Why have we all gone on for ages repeating the words, "under God and the law", and as regularly omitting, "not under a man"? If we could answer those two questions satisfactorily, we might find that we had incidentally answered some others of very general historical significance and possibly even of some practical importance to the world today.
The king, Bracton says, should have no man over him, but he should have over him the law. In ignoring the former part of this statement we are no doubt assuming that it does not fit our modern conditions, that it is untrue for us. That assumption might be questioned; but historians seem to have assumed even more than this, and the present argument is addressed to historians. In virtually suppressing this first part of Bracton's explicit statement, "not under a man", we appear also to condemn him, tacitly at least, of a misunderstanding of the political conditions in his own day. We reason, I take it, somewhat as follows: Bracton has said that the king should be under the law. This can mean one thing only; namely, that others either stand over the king to impose a penalty on him if he breaks or exceeds this law, or have at least an authority, independent of him, to oppose his acts. It can mean nothing less than this; therefore, our author's assertion which contradicts it, that none should be over the king and none equal with him, must be just a slip. It cannot be coupled with the words "sub lege"; it is obviously untrue, and therefore Bracton must have been in error in making it. I have called this an assumption. It looks more like presumption. We in the twentieth century are venturing to tell the ablest English constitutionalist of the thirteenth that he is all wrong about his own country and his own times, that we know more about it than he did. Suppose, then, we should adopt the more modest alternative, at least as a temporary hypothesis, should assume that the discrepancies in Bracton may after all be more apparent than real, and should set to work seriously to examine the institutions and ideas of Bracton's time for contemporary indications as to the accuracy of his statements or the possibility of reconciling seeming contradictions in them.
There is no need to bring evidence to show the general acceptance of the second part of Bracton's maxim, "sub Deo et lege", either in his own time or by modern historians. It is generally admitted, though hardly sufficiently to account for all the facts of the sixteenth century. The part requiring proof is the first part, "non sub homine". Yet, what Socrates says of justice in Plato's Republic may be equally applicable here--"what we were looking for has all this while been rolling before our feet and we never saw it". For what but a constitutional doctrine like Bracton's could have led Innocent III to quash a king's charter because it contained a loss or surrender of royal right (regalis juris dispendium); what but this could have been in the mind of St. Louis in 1264 when he declared that King Henry III "should have full power in his realm and government free of control" (plenam potestatem et liberum regimen habeat in regno suo); or on what other principle can we account for parliament's repeal in 1322 of an ordinance already assented to by the king, ostensibly of his own "free will"?
There are many other evidences of the existence and the continuance of this constitutional principle of Bracton's, and one of the most interesting comes late in the fifteenth century, in the very heyday of the so-called "Lancastrian constitution" and from the greatest of Lancastrian "constitutionalists", Sir John Fortescue. In the famous and oft-quoted phrase by which he characterizes the existing English monarchy, "regimen politicum et regale", Fortescue couples together "politicum" and "regale", just as Bracton did the two like parts of his maxim; and if Bracton's two statements contradict each other, so do Fortescue's. We must, in fact, condemn practically all medieval authorities as muddleheaded if there is not justification for every part of Bracton's dictum.
The explanation of all this confusion is simple enough. We historians have been confusing two things that contemporaries were always careful to distinguish, restriction and control. They held that the king's authority was legally restricted, or bounded, or "limited" in its extent--"sub Deo et lege", a "regimen politicum", as Fortescue put it; but it does not follow that they did not, or that they should not believe that his rule was at the same time "free"--"non sub homine", in Fortescue's terms a "regimen regale", a "regimen liberum" in St. Louis'.
One part of Bracton's sentence has to do with the extent, the other with the manner of royal government. The confusion of these two is no mistake of contemporaries; it seems to be our own, and probably no similar lack of discrimination has ever caused more serious misrepresentations of history than this unfortunate failure to distinguish medieval limitation from modern control.
To the end almost of the sixteenth century English constitutional history is not fully clear without some reference to this old distinction. In 1587, in Cavendish's case, Elizabeth bowed when the judges ignored her express command to transfer an office from one man to another--the command was ultra vires; but in 1575 the intrepid Peter Wentworth had been sent to the Tower for even discussing the exercise of the queen's authority as "supreme governor"--that was an attempt at control.
Even the process by which this older notion of limitation gradually grew into something more, in the development of a real control by a representative parliament becoming more and more conscious of its power--even this, in its full historical significance, is likely to escape us if we have no appreciation of the older ideas and institutions out of which the new ones grew. The Winning of the Initiative by the House of Commons, as Professor Notestein has so aptly termed this great change, can never have much real meaning for us if we allow ourselves to forget that this initiative did, after all, have to be won.
In Bracton's line, Rex non debet esse sub homine, sed sub Deo et lege, we have apparently, at least one positive principle of lasting importance, a faithful summation of medieval politics; and in the later modification of it we might find a considerable part of the modern. Consideration of it seems to point to the fact that we must distinguish pretty carefully in our history between autocracy and despotism; it seems to indicate that the medieval king was an autocrat, was absolute in the sense of having no superior, but was anything but despotic, in that his jura regalia left off where the rights of his subjects began. He was in fact limited but not controlled.
When we look for survivals of such principles in later times, after the initiative had been won, we must substitute the modern "government" for the medieval king, but a modern historian might find some illustration of this same old principle in the solidarity of the English cabinet; and even the American historian may wonder whether our bills of rights which embody this principle may not be a surer safeguard of liberty than an overextension of checks and balances which violate it in making government innocuous only by making it ineffective, and by splitting it up do little else than render it irresponsible.
As historians, our real task is with history, not with its application; but when troubles come upon us, the question will always emerge--it will not down--whether it belongs to the historian, even if not strictly as a historian, to find in all these facts and developments, assuming them to be accurate, any lessons of value that may be practically useful. I sincerely believe that it does; but like that other "earnest desirer of his countrie's peace" already referred to, if I tried to urge any such lessons for our present troubles, I should be "telling my medicine" only as a bystander, and not as a physician. If there are any practical inferences to be drawn from this jumbled survey, therefore, I leave them for you to draw.
C. H. McIlwain was a professor of history at Harvard University. [Back to top]
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