Transcript for Sh 36d

Ok, now we have arrived at the moment when the Enlightenment lights the blue touch paper of Constitutionalism, and the arrival of some of the most famous of constitutions in world history – when our story must include the international angle, since Britain will be part of an international debate about constitutionalism. In Britain, the basic structure of the Constitution was now set in terms of the relationship between parliament and king; the big change we’ll talk about in this episode largely concerns the reducing involvement of the crown in executive government, but change is famously evolutionary now, rather than revolutionary; or at least, disputes moved away from the battlefield into parliament, and were resolved politically piecemeal. This presents a problem for your humble podcaster, because it means there’s a whole load of titbits which makes it hard to present a compelling story, but I hope you’ll stick with it.

With the growth of colonialism, empire and the ownership of Hanover, foreign affairs acquired a much larger part in English and British political life. Similar sort of arguments apply to law, though I have no doubt such a dismissive comment will bring a storm of protest about various critical cases; but I’d argue, weakly possibly, that much is established by now; the primacy of common law, a basic structure of justice that will last a long time, and the independence of judicial system was pretty much in place.

So what do we have for you then? Well, the modernisation of the political system is obviously one big story, and also the arrival in British politics of Radicalism. You will have become bored of me emphasising how protest was primarily conservative so far, to re-establish an often mythical past. Well now a new element enters politics, possibly powered by increasing industrialisation – genuine radicalism, the demand for a better more equitable society; and that radicalism began come from inside parliament as well as outside it. And we might even mention the word democracy in anger. Votes for women of course, and a vast amount of puff about the glories of the British constitution.

The change in the balance of power between parliament and monarch came early in 1711; the government ministers failed to win a vote in the lords to approve the treaty of Utrecht against Whig opposition; and prevailed therefore on Queen Anne to create 12 new Tory peers purely for the purpose of helping the government over the line; thus the royal prerogative had become a tool for a parliamentary party. This was an example that would be repeated when the House of lords not only cut up rough, but stepped over a line to deny the government in key parts of their policy – such as the great reform acts of 1832, and the tussles of 1911. Queen Anne was the last monarch to attend sessions of the houses of Parliament; in 1760 the Civil List appeared, the final and complete separation of the finances of the royal household from public finances; and the civil list was voted on by Parliament. Edward I’s head would have exploded at the very thought.

But nonetheless, the role of the monarch remained highly influential, well into the 20th century. George III for example, made the disastrous decision to refuse to give his assent to Catholic Emancipation at the time of the Act of Union with Ireland in 1801, resulting in the resignation of Prime Minister William Pitt who had promised it to the Irish, and Catholic emancipation was thus delayed for a further 30 years.  But that influence had less and less substance; control of patronage, for example, began to be less and less at the behest of the crown and more under the control of a post informally known as Prime Minister – the first example of which is Robert Walpole of course, in 1721. And Robert Walpole knew how to use patronage, let me tell you. The title of Prime Minister was an informal one – increasingly they held the formal post of First Lord of the Treasury – until PM became a recognised constitutional entity in 1905.

By the 1780s, it had not only become clear that the monarch’s chief minister must command a majority in parliament, but that ministers themselves needed to command such support, and that the monarch should accept the PM’s choice of minister. Gone then was a basic royal prerogative, that of choosing their ministers no matter what. Partly this came about when George III forced his pal the Tory Earl of Bute onto an unwilling commons dominated by Whigs; I understand that this is the genesis of the expression ‘putting the boot in’. And that my friends is a gag used by my history teacher at A level, one Steve Smith, nigh on 40 years ago. There is no period beyond which a good gag becomes redundant, folks, just remember that. A good gag is a friend for ever. Putting the Bute in, how we laughed, I have had to work really hard to give you the benefit of Mr Smith’s wit. Anyway, the resulting kerfuffle meant this was the last time a monarch was able to impose a minister without parliamentary support.

Now, I might point out here that I understand that a key principle of an effective democracy is the peaceful transfer of power. Despite the resistance to Bute, it’s quite clear that by the 18th century that the peaceful transfer of power was a norm of British politics. For example, after the end of the Robinocracy, the Tories recovered their political influence in the second half of the century.

In 1784 a further principle became the norm when parliament was dissolved at the request of the Prime Minister rather than at the will of the king; at the same time, the practice of impeaching the King’s ministers withered away because there was now a political solution – ministers who could not command the confidence of the house would have to resign. Impeachment still survived to a degree, as the dramatic attempts to impeach the Governor of Bengal, Warren Hastings would demonstrate in 1795.

With Charles James Fox, the celebrated and colourful whig politician, opponent and sparring partner of Pitt the Younger, another famous principle also became established. 18th century politics, which I thoroughly look forward to exploring in the fullness,  was not yet really about organised parties, but factions and coalessences individuals around issues and self interest. But under Charles James Fox, the practicalities of the role of opposition began to emerge and be recognised; that while not being in power was of course something of a drawback in politics, none the less opposition had a role to challenge and improve policies thereby. The phrase ‘his majesty’s loyal opposition’ didn’t actually get used until 1826 when an MP called John Hobhouse used it as a joke; but by then the principle had been established that it was quite possible to argue against the government’s policies and remain loyal to the monarch. All of these bit by bit changes embedded and normalised the peaceful transfer of power.

The influence of the House of Lords would also gradually decreased like the Monarch’s, but again it’s a slow process; until well into the 19th century Ministers would continue to be drawn from the Lords, until the centre of politics became so decidedly in the House of Commons, that the practicalities of party management simply made it impossible. In the 18th century incidentally, the Lords could still initiate legislation.

As far as the Union was concerned, no concerted opposition to the union appeared in Wales; nor effectively in Ireland though there was clearly discontent and a demand for change; Ireland’s status was in many ways constitutionally inferior to many North American colonies, badly commercially disadvantaged by the British parliament, and despite demands only very limited reform came their way. This would yield, of course, bitter fruit.

In Scotland the situation was somewhat different, with the survival of Jacobitism, and the resulting rebellions of the 15 and the 45. Of course these are highly romanticised and politicised events, particularly in the suppression following the failure of the 45 rebellion. Whig historians tried to downplay Jacobinism as isolated events, but it’s pretty clear that this not true, that Jacobitism was a political force in Scotland for over 70 years which drew substantial support. But it’s also true to say that Scotland was very divided in its views; the drivers of support for Jacobitism were complex and varied and brought together a wide range of political dissent; from demands for social justice t a desire to end the Union, something of course with which the Stuart pretenders themselves did not agree with. Equally there was substantial support for the Hanoverians, especially south of the Tay. A majority maybe, sat on the fence, but eventually Jacobitism died out.

The 18th century also saw fundamental changes in the justice system. There is quite categorically, or in my humble opinion, nothing as satisfying as a good courtroom drama for passing a few hours on the Telly. And when we watch such stuff, there are a couple of things we are all well accustomed to, one of which is the sight of adversarial barristers entering the lists and fighting it out. Well you might be shocked to hear that this was not the norm before the later 18th century; in fact a ruling in the time of Edward I no less had established a rule of no counsel for defendants – on the basis that they would thus be arguing against the crown, which would never do of course. So lawyers were restricted to advising clients on how to plead and what process to follow, or advising the courts. That this came to an end was due not to statute law, and in fact we are going to hear about crucial changes we are all thoroughly used to which came about specifically because of the flexibility of the English legal system – and because of the genius of three lawyers of Scottish origin – William Murray, Lord Mansfield; Thomas Erskine; and William Garrow who would probably claim to be English, given that he was born in the glens and wilds of Middlesex, but whose father was Scottish, so you know, stretching a point to make a point.

William Garrow then doesn’t seem to have been a natural firebrand, but he was a lawyer and speaker of some genius. His constant interventions in the judge driven courts built on a principle of Common law, of equality of arms; the idea that the defendant should have the same means to defend against an accusation – simple fairness if you like. Garrow’s interventions transformed practice into an analysis and testing of the prosecutor’s evidence, something now that of course we take as absolutely fundamental to the practice of law.

At the same time by the way, just to give a bit of context, fears of revolution and crime, and a lack of a police force had driven penalties for crimes to extremes; by the end of the 18th century, Britain had more capital offences than any other country; you could be executed for stealing a horse; it was to be known as the Bloody Code.

The Bloody Code had an unintended knock on effect, until the governments of Robert Peel and others began to impose some humanity on the laws themselves, repealing 278 statutes in the early 19th century. The problem was that juries were very unwilling to convict when penalties were so harsh; and judges sought to find ways to mitigate the severity of the law with them. And so emerged the formula of ‘beyond reasonable doubt’ does that ring a bell? The first written evidence comes from one of our Scots, Lord Mansfield in 1781 advising a jury that they should err on the favourable side if they had doubts. And finally, back to William Garrow; in 1791 he told a jury that ‘every man is presumed to be innocent until proven guilty’. Actually Garrow was fibbing at the time by suggesting this was the existing rule; it is remarkable how much constitutional and legal change has come about on the basis of a confidently asserted fib. There’s a life lesson there, not sure what it is. But with the arrival of advocates in court, the testing of evidence and the constant restatement of the presumption of innocence, it duly became so.

British liberties, then, were not simply the function of a written Bill of Rights, or statute law. They were the result of a constant working out of problems and changes in attitudes in the light of practical experience. Although statute law often followed along latter, to pour cement around the feet of accepted practice; so for example, the right for defendants to be represented became law in 1836, but was built on previously established tradition and accepted practice.

The other thing we should talk about are the famous cases Lord Mansfield was involved in concerning slavery. Now until becoming a bit more aware by reading various black history books, I had always assumed that slavery was illegal in England and indeed in Britain. And indeed slavery was most definitely not a substantial part of British society, and most would have firmly believed that slavery was indeed illegal on British soil. But two things do emerge; firstly, there exist transactions and images which strongly suggest that human beings were in fact sometimes bought and sold here; and that in the houses of the mighty were sometimes black servants whose status is most uncertain. And then when some specific cases came up, it became painfully obvious that there was no clear and definitive law.

Two cases in which Lord Mansfield was involved were the Case of an enslaved African called James Somersett, and the Zhong Massacre case. Obviously these are both worth podcasts of their own, but I must be brief. In James Somersett’s case, he had been brought as a slave in the company of his master Charles Stuart to England, when he had managed to escape; Stuart tried to have him seized and returned. What Mansfield needed to decide was whether or not his existence in Britain made him free, whether you could be a slave in Britain. Mansfield was deeply aware of the vast profits Britain made from the trade in human beings, and was not above pressure from powerful vested interest; but in the end he ruled that slavery was not legal in Britain because as he ruled

It is so odious that nothing could be suffered to support it but positive law

So, the fact that there were no specific laws approving slavery, meant that no one could be a slave here. It is important to note that famous though the judgement was, it was limited to refusing to allow James Somersett to be seized here. Mansfield was still cautious about those vested interests.

Mansfield’s caution was on show again in the case of the Zhong massacre, where 130 enslaved Africans were thrown into the water in their chains to die, and then the owners tried to claim insurance for lost cargo. Just saying this is absolutely unbelievable, think of the attitudes that have to underlie such a thing. And true enough after much agonising Mansfield ruled against the slavers – but simply on the basis of faulty evidence, and he ordered a retrial, not declaring some ringing principle of humanity. None the less there was an impact and a precedent established by his ruling, and the slavers did not pick the case up again; but definitive law had to wait until the Slave Trade and Slavery itself were abolished in the next century.

Given the basic belief in Britain that, in the words of the 16th century Cartwright case ‘that England was too pure an air for a slave to breathe in’ it seems incredible that the laws of England’s early colonies should have allowed for slavery in all its horrors, both in trade and in plantations; there’s a very good site run by a chap called Liam Hogan which has the horrors of bills advertising the sale of slaves in the Caribbean – while at the same time extolling the virtues of the liberty of the British Empire; it’s difficult to understand how two brained it is possible to  be, but in practical terms how was this legally possible given the understood situation at home? The answer it turns out as you probably know, that Britain was able to hide behind the fact that each of the colonies were given freedom to make their own law through their own assemblies. So critical to the establishment of the English and British Caribbean plantations, relying on the labour of the enslaved, was the 1661 Barbados code, the first slave code in an English colony. This code spread quickly to other English colonies in the Caribbean and North America. Of course, the Assemblies were not completely independent; they were subject to a colonial council, and to the English Governor, and the law they made was supposed to be not contrary to the laws of England. The Slave Codes were therefore effectively helped by the absence of any definitive law in England against slavery, and by the acquiescence of English and then British Governors.



Next on the agenda in Britain will be the arrival of Radicalism, a new tradition of protest that did not seek to re-establish a real or imagined past – but to fundamentally change the nature of society and politics; and this will take us to start with John Wilkes. However, I am firstly going to take a bit of a detour into the wider world.

Because from the mid 18th century the mania for written Constitutions began, and it might be good to look at some of the influences floating around. We should note that we have arrived in time at the Enlightenment, which included notions of systematising and reforming government, of law and rights. Meanwhile the use of print was continuing to grow as technology improved, and literacy rates continued to improve too; one of the impacts of this was that knowledge and ideas about constitutional reform spread. They spread because all over Europe and America intellectuals and activists were interested in constitutional ideas and producing materials and ideas; but also because the creators of constitutions were eager to tell the world about what they had done. After all, I have made it a guiding personal principle, what’s the point of doing good works if nobody else sees them? There’s always a way to slip something into the conversation…don’t mean it really, but when Catherine produced her code of Instructions, the Nakaz, or Pasquale Paoli published the Corsican constitution in 1755, or the USA produced their constitution, they made darn sure they were available in print, and even took care that it was formed in such a way as to be easily communicable.

Why was this then? Well let’s start with Corsica. In 1728, Corsica was in rebellion against its imperial hegemon, the Republic of Genoa. In 1755 a man called Pasquale Paoli had become the head of the rebel executive, and in 1760, Paoli published a constitution. His preamble went like this

The general diet of the people of Corsica, legitimate masters of themselves…having reconquered their liberty, wishing to give a durable and permanence for to its government by transforming it into a constitution suited to assure the well being of the nation

Paoli has the spirit of John Lilborne in him – though coincidentally I might note, I don’t think he and honest John were acquainted – because he was appealing to a past that he wished to re-established, name their liberty which they had reconquered; which also means these are their natural rights, they are not due to some piece of paper, they are masters of themselves, that underlies their right to reconquer their liberties. Why then did Paoli write down his constitution given that apparently it was all natural law anyway?

Well, the first reason was to erase and supersede all the texts in existence that spoke of Genoa’s rights and claims; the constitutional document must completely replace and refute those previous claims, in the name of the natural and inalienable liberties of its people. Secondly, Corsica was faced with, and indeed suffering under, war and the threat of being reduced once more to Genoese subjection. Now Corsica was not a highly populated place – just 120,000 people and rather poor. So they faced something of a challenge, and particularly so, because France was not keen to have an independent Corsica and so had intervened militarily before. So, Paoli needed every single person in Corsica to pull their weight, and the constitution was designed to achieve that; because without it, he argued

What interest would they take in defending the country?

Good point Paoli; there’s not much point in getting worked up over a new race of overlords is there; but if the struggle was for themselves – well, that’s different. But there was another reason; to meet the uphill challenge Paoli needed focus; and Corsica at that time was a group of semi autonomous communes; one thinks inevitably of Denis, and his anarcho syndicalist communes. So the constitution centralised power and law significantly, to give the state more resources and power to fight for independence.

What brings all this together is the threat of war; it was this that galvanised Paoli into creating a constitution, to organise the nation into a coherent body, to create a sense of mission. Sadly, just in case you don’t know, the whole thing crashed and burned. Genoa secretly sold Corsica to France (oi, guv, want a mediterraenan island? Hein, waaah ha mais oui, D’accord), France snuck men into the citadels and then appointed a puppet governor. Paoli and his Corsicans certainly didn’t think the puppet a poppet and revolted, until France crushed them and declared them annexed in 1770. Paoli ended his life in England, where there was something of a controversy in the British government about letting all this happen. Paoli was remembered with a bust in Westminster Abbey, and in the placenames of 6 American towns would you believe. I do not know where they are, answers on a postcard.

Another leader with a desperate need to respond to the pressures of war in the 1760s was the head of the largest European Empire of the time – I speak of course of Russia. By the time the German Lutheran princess Catherine became the wife of Emperor Peter III, the idea of writing constitutional treatises and papers was an established part of Enlightenment thought, and Catherine was fiercely intelligent and well educated, as well as being reasonably ambitious – forcing her husband off the throne, and instead of taking the crown in his name, became Empress in her own right.

Catherine faced a number of problems. Firstly, her route to the throne was seriously dodgy, and she desperately needed to establish her legitimacy. Secondly, the strategic position of Russia was a challenge – Catherine was warlike, and yet Russia faced many enemies and despite her size, she was very poor. So Catherine got her pen out, and wrote the  Nakaz, the Instruction. The Nakaz followed the rule that a constitution needn’t necessarily be all about the liberties – though calling the Nakaz a constitution is maybe a stretch since it was never implemented in full. But it declared that the sovereign was absolute; Catherine was clear in her view that to marshal an empire of Russia’s size required one person in charge. None the less Catherine sought to build a sense of community and obligation to the people of the empire; a law code was to be developed and the Nakaz placed in every schoolroom. There must be an expansion of mass benefits and ‘the political embraces the whole people’ which is quite a claim. She declared that the state must provide state aid, and

‘supply all citizens with sure maintenance, food, proper clothing and a way of life not detrimental to the health of man’.

In the end, although a legislative commission met, the Nakaz faded away, and certainly nothing was done for the 50% of Russia’s population that was unfree. But Catherine published the Nakaz widely, and made sure it was sent to fellow monarchs, intellectuals and journalists across Europe. The Nakaz helped to establish Catherine’s legitimacy, and to promote a process of greater inclusion for its inhabitants; but it also declared roundly to the rest of Europe that Russia was no backward nation; it was at the forefront of Enlightenment thought. In Absolutist France, it was considered so radical, that it was banned.

I had a very interesting discussion by the way following an earlier episode on the Podcast group with Jakob, who filled me in with a load of fascinating material about Swedish constitutional development; one of the things being the importance of the Code of Kings in 1350, and also the importance of the king’s oath – I’ve always thought that surely the commitment of the monarch at their coronation must be an important aspect of constitutional arrangements. That took us then to another example on the rising enthusiasm for constitution writing; Gustav III, king of Sweden.

While we all love and admire Sweden these days for its pacification and social democracy, despite having designed that exquisite instrument of torture, IKEA, back in the 17th and 18th centuries of course it was a European state as aggressive, expansionist and imperialistic as any other. By the time of the death of the rather brilliant warrior king, Charles XII in 1721, however, Sweden was exhausted; and as one chronicler of the time put it

The Swedes being tired out, and their treasure almost exhausted, were determined to shake off the yoke of absolute sovereignty. [1]

In 1719 and 1729 then, the monarchy was forced to make concessions in new Instruments of Government which required it to share power with the Riksdag; the Riksdag, incidentally, which included a 4th estate – the peasantry. Foreign observers watching this felt a tickle at the back of their necks, and described the ‘love of democracy’ in Sweden as an ‘epidemic disease’. Democfacy was once a four letter word.

In 1772, however, Sweden’s king Gustav III topped off what was essentially a military coup with a new constitution. If you read the language it sounds like a thoroughly right-on piece of work.

Having saved my parent country and myself without injury to one single citizen…I have promised to govern a free people

Rah, and if you will, rah. Gustav also insisted that the Form of Government as it was called, was to be fundamental law, signed by every citizen – including himself; as fundamental law, it was to bind his successors as well as himself. Both king and people were

Bound to the law, and both of us tied together and protected by the law

This is the argument over which Charles I lost his head; but more than that, because Gustav’s Form of Government also accepted that Constitutional law was fundamental law, binding all members of the polity, limiting even the institutions of government. In truth though, while we are at it, Gustav III was thoroughly sneaky. Because the Form of Government actually increased monarchical power rather than decreasing it.  It’s all in the writing. So it’s a fascinating example of a constitution actually designed not to increase the liberties of the individual over the monarch, but to increase the power of the monarch – while using the language of constitutionalism.

Now look, all these initiatives are rather top down; but at the same time, there was a growing awareness and interest in constitutional writing at all levels; in Britain because there were already limits to monarchical power, writing and political involvement was wider and more diverse than most places. Despite the lack of a written constitution since the fall of the Protectorate, there was also increasing interest in written texts and charters. The celebrated constitutional jurist, William Blackstone followed the tradition of the civil war in emphasising and indeed wildly stretching the importance and significance of Magna Carta – it was presented as ‘the’ foundational text of Britain’s constitution. The demand for political rights also stretched much further across the social spectrum, with a growing activism in radical protest and reform.  Which brings us back to that man, John Wilkes.

Obviously, physical characteristics play no part in the history of England in its serious and earnest look at British liberties and constitution. But I find myself constrained to point out that John Wilkes, one of the first examples of a radical politician, was known as a surprisingly ugly man. And yet, he would acquire a reputation as a rake, and it was often remarked at the time that his charms managed to make people forget his ugliness, and it seems to be true. There is a fantastic political cartoon which presents Wilkes as the image of the Devil – and this appears to be not that far from the truth, facially speaking. Anyway, He has an interesting arc to his life; for two decades he was a political hell raiser making the lives of established politicians and members of the establishment absolute living hell. And yet for the last 20 years of his life he became politically rather conservative; and he always enjoyed a fully rounded social life, however furious his political life became, it never ruled him. And so Lord Mansfield, despite years of antagonism, would say of him

Mr. Wilkes was the pleasantest companion, the politest gentleman, and the best scholar he knew’.

Well there’s a lesson in that for all political types. Not quite sure what it is but, there’s definitely a pearl in this ‘ere manure heap of a podcast.

John Wilkes was not a wealthy man for much of his life, and was the son of a distiller. He was a patriotic cove, and a follower of Pitt the Elder in the 1750s, and enthusiast for the 7 years’ war. So he was livid when George III was guilty, as I have previously quipped, of putting the Bute in. so He started a radical political journal called the North Briton. The North Briton hammered government policy, and particularly George III and his peace treaty of 1763. The government was furious at such impolite opposition, and issued a general warrant for the imprisonment of 49 people; in the resulting court cases, Wilkes raised Cain. The streets echoed with crowds chanting ‘Wilkes and liberty! Liberty, No King! Damn the king. Damn the government!’. Doggerel appeared on the walls around London with slogans like ‘Venal judges and ministers combine, Wilkes and Liberty to confine’.

Now look, England was no stranger to public violence and disorder. Protests about Tax and prices and scarcity or enclosure – all these were common. But all these fell into the previous category of conservative protest – a return to the status quo ante. This was different; this was expressly political. It was expressly demanding change, demanding personal liberties. Wilkes began to be seen as a hero defending liberties – not just against the king and government, but also against parliament itself; and since Wilkes became very critical of governmental policy towards the American colonies he became something of a celebrity; though in truth his support was more about methods of government and rather than support for independence; ‘men are not converted, Sir, by the force of the bayonet at the breast’ he is reputed to have said. The establishment, already in the fugg of terror about a breakdown of public order that was more apparent than real, but of which the Bloody Code was consequence, at points lost its head; in 1763 came a Wilkinite protest at St George’s Field in Southwark, demanding the release of Wilkes who had been imprisoned for seditious libel. The crowd grew over 2 weeks, until it was estimated to be 15,000 people strong, and the authorities read the Riot Act to them.

As an aside, this now venerable act had been passed in 1714 in response to Jacobin riots and has the distinction of being Britain’s first piece of public order legislation. It laid down that if 12 or more people were involved in a ‘riotous assembly’ the act was to be read for them to disperse, and if they did not they could be arrested – and the penalty if convicted was, as befits the Bloody Code, death. This, of course, is the origin of the phrase to read the riot act to somebody, usually to children using the sitting room as an impromptu obstacle course while wearing muddy boots, that sort of thing. It was less domestic back in the day; and on this occasion, the Riot Act was read – and in the ensuing melee maybe at St George’s field 11 people were killed, and 15 injured.

John Wilkes’ political radicalism was not just the sign of a new kind of politics; he also achieved significant gains in British liberties. In a famous court case called Entick vs Carrington, the Crown’s right to arrest those 49 supposedly libellous people was challenged; and although the crown claimed that it possessed the prerogative to imprison without trial on the grounds of state necessity, the court found against them – and another civil liberty was strengthened, the right of no imprisonment without trial. Wilkes became a member of parliament, but was continuously removed by the government – and continually and defiantly re-elected by the people; eventually the government gave way, and the principle was thereby established that parliament had the right to establish its own composition, not the crown. Although Wilkes became much more conservative in later life, he had both fought and won liberties for the individual, the right for individuals to criticise parliament and government, the rights of voters and freedom from arbitrary arrest. It’s not a bad record. One of his most famous speeches came in March 1776, and is a return to Thomas Rainsborough’s theme – surely every Man should have the vote. I stress the word man – relatively view voices are being raised for votes for Women though some are, such of course as Mary Wollenstonecraft for example. Anyway, here’s what Wilkes said in 1776

The meanest mechanic, the poorest peasant & day labourer, has important rights respecting … the value of each day’s hard labour … Some share therefore in the power of making those laws … should be reserved even to this inferior, but most useful, set of men.

I’d just like to distance myself from Wilkes’s suggestion than Mechanics are mean. Anyway, I give you, ladies and gentleman, John Wilkes. Big hand please.





Now, two seismic events encouraged and extended this new tradition of radicalism within and outwith parliament – the American revolution and the French Revolution, and two famous names appear with their arrival – those of Thomas Paine and Edmund Burke. Although the two of them are often seen in opposition, at the start they agreed about much, especially in being fiercely critical of government policy towards the American colonists; Paine described Burke as ‘a friend of mankind’. But when the French Revolution came along they fell out rather comprehensively, taking very different views, which we’ll explore a bit.

We should introduce Tom Paine rather more fundamentally though, since if written constitutional charters are what we are after, as mentioned in the first episode, Thomas Paine is yer man.

Paine came from a modest background in 1737, and had a chequered career; as a seaman and as an excise officer in Lewes, a town known less now for its political radicals and more for its green wellies and the most excellent brewery, Harvey’s, founded in 1790 as it happens, and which uses yeast in its brewing whose origin was 60 years ago. It makes an excellent pint. Anyway, there’s a revolution in France everyone, lets brew some beer.

Anyway, Paine’s experience in enforcing a tax that hit everyone the same, no matter how poor or how rich may have helped form Paine’s politics, and the British government’s increasing financial exactions to fight the world war known as the 7 years’ war convinced him that monarchies were addicted to warmongering; and he came to see that the enormous expense of warfare by sea and land was inciting anger and activism; he wrote that

The enormous expense of government has provoked people to think and by making them feel and once the veil begins to rend, it admits not of repair.

Paine was a part of the radical political clubs and debates in London and London in the 1760s and 1770s, and also joined the ranks of the charter enthusiasts

A charter has to be understood as a bond of solemn obligation which the whole enters into, to support the right of every separate part

He has less respect though for ancient charters; for Paine conservative re-assertion was not the thing, it was about change and a new direction. In 1776 he published Common Sense published in Philadelphia and selling 75,000 copies in the American colonies alone. It encouraged Americans to make a clean break with the old country and George III, and form a republic.

In later writings such as the Rights of Man, published in 1791 and 1792, Paine took his lead from his admiration of what he had seen in America in construction of their constitution, and his admiration for the revolution in France. We’ll come to France in just a moment, but first of all the enormously influential Constitution of the United States deserves a mench. The constitution in part demonstrates that the Atlantic was not so wide when it came to the flow of ideas; American leaders and thinkers were a full part of that Enlightenment conversation, For example the Swiss jurist Vattel’s book The Law of Nations was borrowed from a New York library by George Washington in 1789…and remained in his possession on his death. Raising the interesting suggestion that the American Revolution was caused not by the Tyranny of the British Parliament, but because George didn’t want to pay his library fines. Discuss! Anyway, within its pages George would have found the opinion that

The nation has the entire right to form its constitution itself, to maintain, perfect and regulate at will everything that pertains to the government without anyone being justly able to prevent it

For many abroad, the Constitution that emerged was evidence at last that countries could start afresh. Mary Wollstonecraft in a turbulent Paris in 1790 saw it as evidence that

Constitutions formed by chance and continually patched up

were not inescapable; and that systems of government could be formed afresh on the ‘basis of reason’. The new constitution was partly inspired by this hope of a new start, but also because people got to hear about it; the constitutions was printed and widely distributed, American diplomats distributed copies to local rulers and major players. The more widely distributed, the more powerful the message could be that the US now possessed a much more effective central government; that merchants should come to trade, and any potential invaders would be deterred by the nation’s coherence and organisation.

An important aspect of the Constitution was its federalism, adopted as a model for new constitutions; Bolivar for example felt that experience would be useful in South American. Thanks to one of our number, Rob, I can also report that the US constitution was felt to be a better model for the Australia, to ensure each colony would have an equal representation to overcome control by the more populous. In many ways though, the Australian form of government closely followed the Westminster system with a PM seen as the Head of Govt.

At the very next breath of course, came another seismic event; the French Revolution. Initially, the Revolution was positively received in Britain; the British and indeed some French writers like Montesquieu, had long argued that French Absolutism was tyranny and that the English mixed constitution was a model of freedom and liberty. In 1731, Montesquieu had written

There would be an end to everything, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the cases of individuals.




Montesquieu had praised the balance of powers he saw in the British constitution, and for the British the initial changes in France seemed to herald a more balanced constitution. Then came the execution of the king and the Terror; and while many radicals continued to extol the principles of the Declaration of the Rights of Man and of the Citizen whatever the political situation had brought, others rejected all of it, and saw in the revolution the antithesis of what they saw as the British liberty. Certainly the establishment panicked; and for 20-30 years government shelved planned political reforms and implemented multiple repressive acts during the Napoleonic Wars, including the temporary suspension of Habeas Corpus.

For Paine, the revolution was further grist to the mill, and inspired by the revolution and full of admiration for the achievements in American, Paine tore into his own county; the hereditary monarchy was tyranny, the bill of Rights was a ‘bill of wrongs’, the British Constitution was a mockery based on a mass of untidy precedent and property. There can be little doubt that defence of property was a principle very dear to the political classes; somewhere someone wrote that the worst offence against property was not to own any, which is jolly clever, but I can’t remember who. It must be said that Britain was not alone in this; most of the American States initially restricted voting to property owning white males, often around 6% of the population, although the franchise was quite rapidly extended to all white adult males by the 1820’s.

For Paine, the British Constitution needed to be completely remodelled – as we discussed all those eons at the top of Episode 36a, Paine’s views were that a constitution must be written, precede government not spring from it, be made by the people not government, be comprehensive and have the status of fundamental law.

Which brings us to that famous Dubliner, Edmund Burke. The name raises a slight terror in the back of my mind every time I hear it, for I was told to read his super famous Reflections on the Revolution in France for 6th Form, and never did, same as I was told to read Mein Kampf, but never did. Too many other things to do, such as footie and messing about, but the fear of discovery remains. Edmund Burke, like Orwell, is one of those folks who gained respect on all sides of the political divide; although he’s often branded as a conservative, he criticised government treatment of the American colonies, and supported Catholic emancipation for example. But Burke’s view of the role of constitutions, and many of those that follow him in the 19th century, was different to Paine’s, and if I am honest, rather more complicated. They remain very relevant, and despite the fact that Burke’s name is not on everyone’s lips any more, they lie at the heart of the current debate about the unwritten British Constitution and its modernity.

Burke thought all this flim flam about natural rights, to be no more than grand words and noble gestures. He agreed utterly that Tyranny was to be despised and that liberties were essential. But he believed in practical and tangible civil liberties, liberties that had been arrived at and implemented in a workable way. And he looked around and pointed to these things which as we have heard existed – trial by jury, freedom from arbitrary arrest and detention and so on; many of these liberties were so embedded in custom and practice that no one had to debate them any more, and no one would challenge or transgress them – because they were like breathing in and breathing out, an integral part of society; a constitution that didn’t reflect anything so tawdry as something constructed for the purpose of defining government, and indeed how could a written constitution predict all the challenges which might come its way? And once you had this document it could itself become the very instrument of tyranny – look what was going on in France. What Burke saw in the British Constitution was something that reflected something much more fundamental and powerful than a convention spewing trendy words onto a page – the spirit and temper of the people.

And what was going on in France? Well, the Declaration of the Rights of Man adopted by the National Assembly in 1789 brought a radical new element into constitution building – a healthy dollop of social revolution. Social distinctions, for example, would be based only on common utility. The 1793 constitution adopted a unicameral structure, and hobbled the executive power of the monarch, and abolished slavery.  Alarm grew as the terror proceeded, the monarch was chopped, literally. Reaction came in the form of Napoleon Bonaparte and his constitution of 1799. It contained no declaration of rights, slavery was re-imposed and power was vested in the First Consul. For the political satirist James Gillray, the process confirmed Burke’s mockery of the very idea that the state can be remodelled on paper in accordance with the latest, re-minted ideology, which he ridiculed in a satirical print of 1800, with Napoleon setting a new constitution while grinding the radical constitution under his heel.

Napoleon’s dazzling succession of military victories were accompanied by an equally dazzling succession of constitutions, imposed by the military conqueror on the countries be subjected. Napoleon’s constitution-making demonstrates that although we tend to equate the creation of Constitutions as a process of liberalisation, this is not necessarily the case. In France Napoleon’s constitution was designed to embed his own unfettered personal power; throughout Europe, his constitutions owed as much to his desire to generate soldiers for his armies as for any love of liberty. His actions generated responses. In Haiti, the republic formed by the successful rebellion of the enslaved, adopted a new authoritarian, monarchical constitution, because it felt it was needed to enable the new state to fight off the, duly forthcoming, attempts to re-impose slavery.

Anyway though, for the moment in Britain it was Paine that copped it and Burke whose arguments won out. Despite being defended by the famous Scottish lawyer Thomas Erskine, Paine was found guilty in absentia. Thetford’s favourite son would die in 1809 in New York, an American Citizen I believe.

Paine was not alone by any means in his radicalism, and the ideas of the French Revolution and the work of political radicalism inspired radical movements up and down the country – and most particularly in Ireland, and the United Irishmen, despairing of reform under the current system and seeking to establish a new Republic. They were suppressed by the British and their leader Wolfe Tone died just before being executed. I formally apologise for giving a very complex movement just two sentences. But the point is that the United Irishmen lead to a major constitutional change in the Act of Union in 1801; whereas the 1707 Act of Union was very much a negotiated arrangement, the Act of Union with Ireland really wasn’t, given the subordinate position of the Irish Parliament. The intention of the Act was to deal with security and fear of French invasion, but also the Prime Minister of the time the Younger William Pitt genuinely saw it as a way of resolving the continuous and egregious problems of Irish Governance and to bring much needed reform. And one of those reforms on which the Union was to based was to be Catholic Emancipation; but once the Irish parliament had voted itself out of existence, and Pitt took his Catholic Emancipation Bill to the king – George III refused to agree, on the basis that it contravened his coronation oath to defend the Church of England. He is a difficult man, Farmer George, an odd mix of the likeable and infuriating. Anyway, Pitt understood exactly what ruin this meant and he and most of his ministers resigned; who knows if the Act of Union ever stood a chance of bringing peace, but it got off to a thoroughly rotten start.

Radicalism continued in the early years after Waterloo, and the demand for political reform was heightened by the economic misery following the end of the Napoleonic wars, which conflicted with the hope of good times with the end of the war. But the movement was ruthlessly repressed by the British government. I think someone somewhere described this as the English Terror, and the harsh repression of the government combined with the rise of Radicalism brought Britain as close to Revolution as she ever was after 1641, it might be claimed. The government passed the six acts in 1819; as a flavour of them, under the seditious libel laws, it was offence to publish material that might encourage people to hate the government. Action also included again the suspension of Habeas corpus – so just to be clear, this meant you could be lobbed into prison without trial.

To give you a flavour of the period and the atmosphere, let me turn to poetry, gentle listeners. I do appreciate that poetry is the last refuge of the scoundrel, but Percy Shelley does put it rather well, and this has stuck with me since school, so it must be good

An old, mad, blind, despised, and dying King;

Princes, the dregs of their dull race, who flow

Through public scorn,—mud from a muddy spring;

Rulers who neither see nor feel nor know,

But leechlike to their fainting country cling

Till they drop, blind in blood, without a blow.

There’s more, but to summarise, Perce was not a happy bunny.


Throughout the period there were a series of mass meetings, including one in 1819 in Manchester, on St Peter’s Field, drawn from Manchester and the surrounding villages. The crowd may have numbered anywhere between 30 and 50,000, everyone in their Sunday best; they were often organised by village with their banners, and included Women’s reform groups, often dressed in white. The panicked magistrates ordered the militia to disperse the peaceful crowd and arrest the orator, which they did – with sabres drawn. The unarmed crowd could not easily escape, and maybe 11 were killed and 400 wounded. The day became known as the Peterloo Massacre, named in deep irony after Waterloo.

After the massacre, Shelley got his pen out again, and wrote the Mask of Anarchy, part of which again I remember from School. Here’s one stanza:

I met Murder on the way –

He had a mask like Castlereagh –

Very smooth he looked, yet grim;

Seven blood-hounds followed him:


Rise, like lions after slumber

In unvanquishable number!

Shake your chains to earth, like dew

Which in sleep had fallen on you:

Ye are many—they are few!”[4]


Castlereagh was an Anglo Irish politician under Lord Liverpool, and despite the vicious words from Percy, a rather quietly impressive man and advocate of Catholic Emancipation. In 1822, politics all got too much for him, and he killed himself.

The following year a series of protests took place also in Scotland, demanding political reform, under the banner ‘Liberty or Death’, and once more quoting texts such as Magna Carta as documents of fundamental right. The mass movement, which included a strike of 60,000 workers, was harshly repressed; 88 were indicted for treason, though not all executed by any means, in fact some found not guilty. Many fled to Canada, where I think one of them, William MacKenzie was a leader in the Canadian rebellions of 1837-8. However, the sad truth is that the repression was effective, and the wave of Radicalism resided, leaving little but martyrs and memories for the cause, and a legacy of parliamentary radicals, whose next chance would come with Catholic Emancipation and the Great Reform Act of 1832.

[1] Colley, L The Gun, the Ship and the  Pen p85

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