*Translated by Manuel Calzada, Editor, E Law, School of Law, Murdoch University
[1] Published after his death since Bracton died in 1268, according to Samuel E Thorne's 'Introduction' to the bi-lingual Latin/English edition to On the Laws and Customs of England, translated with notes and revisions by S.E Thorne and published in association with Selden Society, The Belknap Press, Harvard University Press, Cambridge, Massachusetts, 1968, 4 Viol. Vol., 1. P.XL. Thorne's edition is based in the Latin edition of George E. Woodbine Bracton, De Legibus et Consuetudinibus Angliae, New Haven; Yale University Press, London: Humphrey Mildford, Oxford University Press (OUP), 1915, 4 vol.
[2] Charles Howard McIllwain, Cosntitucionalismo antiguo y moderno, Centro de Estudios Constitucionales (CEC), Madrid, 1991, p.91.
[3] McIllwain, op cit. Pp.101-109
[4] F.W. Maitland, The Constitutional History of England (1908), edited by H.A.L. Fisher, Cambridge University Press (CUP), 1968, pp 54-92; Walter Ullmann, Principios de Gobierno y Politica en la Edad Media, Revista de Occidente, Madrid, 1971, pp. 174-176 and McIllwain, op. Cit. Pp. 106-107
[5] F.W. Mailtand, The Constitutional History of England (1908), op cit. P.15.
[6] "The substantial characteristic of the Magna Carta was that of its character as a pact between the king and the barons, strengthened by the promise of the former. It was a pact that could only be conceived within a feudal scheme 1/4" Walter Ullmann, op. cit. P.170. "The Magna Carta - the author added - sealed the future of the English Monarchy" ib. p.173.
[7] On the Laws and Customs of England, bilingual edition cited from Samuel E. Thorne, vol.II, p.33. Trans.: " the king must not be under man but under God and under the Law, because law makes the King"
[8] Alessandro Passerin D'Entréves, La Noción del Estado, Centro de Estudios Universitarios, Madrid, 1970, p.103. Regarding the Medieval concept of law see also the classical work of Otto Von Gierke, Die publicistischen Lehren des Mittelalters (1881), to which Passerin himself refers. This work was recently translated into Spanish under the not to accurate title of Teorías politicas de la Edad Media [Political Theories of the Middle Ages]"Estudio Preliminar' by Benigno Pendás, "Introduction" by F.W. Maitland, Spanish Translation by Piedad García-Escudero, Centro de Estudios Constitucionales (CEC) Madrid, 1995. A commentary on this work can be found in Politica y Derecho en la Edad Media [Politics and Law in the Middle Ages] by Joaquín Varela Suanzes, "Revista Española de Derecho Constitucionales", no 49, January-April, Madrid, 1997, pp. 335-351. See also Los Dos Cuerpos del Rey. Un estudio de Teología Política Medieval [The two embodiments of the king. A study in Medieval Political Theology], Ernest H. Kantorowicz, Alianza Universidad, 1985, pp.114.
[9] Regarding the medieval concept of law, in addition to the aforementioned works, see also the first volume of the classic work by R.W. & A.J. Carlyle, A History of Medieval Political Theory in the West, Blackwood & Sons, Edinburgh, 1903, or, more accessible and summarised (in Spanish) the book by A.J. Carlyle La libertad politica. Historia de su concepto en la Edad Media y los tiempos modernos, FCE, México, Madrid, Buenos Aires, pp.23.
[10] Regarding the origins of these three bodies - the Curia Regis, Parliament, and the Concilium Regis, see Maitland in The Constitutional History of England, op.cit. pp.54-105.
[11] Sir John Fortescue (1395-1477), De laudibus Legum Angliae, written circa 1470 and translated into English as A Prasie of the Laws of England, Chapters IX & XVIII. Also The Governance of England, written between 1471 and 1476, chapters I to III. Both works in the very recent and accessible edition by Shelley Lockwood, Sir John Fortescue, On the Laws and Governance of England, Cambridge texts in the history of political thought, CUP, 1997.
[12] Macillwain, op. cit. P.111.
[13] Sir Ernest Barker recalled the exemplary value of the Spanish Cortes: "whomsoever attempts to know the origins of the institution of Parliament in Europe must not forget the early Spanish contribution and to keep in mind that the Spanish precedents have been acknowledged by some historians as one of the elements that contributed to the development of the English parliament during the 13th Century. The Parliamentary System of Government, in Essays of Government, Oxford University Press, 1965, p.59. Regarding the origins of the several European Parliaments see also the Proceedings of the Conference on this subject held in León (Spain), September 1988 and published in 1990 by the Cortes de Castilla y León, entitled "Las Cortes de Castilla y León 1188-1988, Valladolid, 2 Vol.
[14] O.Hood Phillips, Constitutional and Administrative Law, Sweets & Maxwell, London, 7th ed, 1987. This manual, although centred on current law, contains an interesting historical exposition concerning parliamentary Sovereignty in pp. 40-58
[15] Regarding the institutional development during the Tudors, see G.R. Elton, The Tudor Constitution Documents and Documentary, CUP, 2nd ed., 1986.
[16] In addition to being Kings of England and head of the Anglican Church, the Tudors were also Kings of Wales, as they had been since the Statutum Walliae of 1284, although the union with the Crown of England did not take place for all effects until the Act of Union of 1533.
[17] Geoffrey Marshall and Graeme C. Moodie argue that even in these paragraphs, Smith identified Parliament with the representation of the nation. See Some Problems of the Constitution, Hutchinson University Library, London, 5th ed., 1971, p.15
[18] Sir Thomas Smith, De Republica Anglorum. A Discourse on the Commonwealth of England, Book II, chapter 1, L Alston (ed), with an introduction by FW Maitland, CUP, 1906, pp. 48-49
[19] Richard Hooker, Of the Laws of Ecclesiastical Politie, Book VIII, ch. 6, Arthur Stephen Mcgrade, CUP, 1989, p 192. The date when Hooker wrote this book is in dispute. Raymond Aaron Houk, in the p. VII of his Introduction to Hooker's Ecclesiastical Politie: Book VIII Columbia University Press, New York, 1931) argues that the book was completed in 1593, a claim he repeats again in p.91 of his "Historical References". But in his Introduction, Mcgrade, unwilling to commit himself to an exact date, restricts himself to say that Hooker must have left this Book VIII ready to print, but that it wasn't published for the first time until 1648, several years after his death. Ib, p.XIV
[20] Of the Laws of Ecclesiastical Politie. Book VIII, ch.6. A recent and clear exposition of Hooker's Constitutional thinking can be found in Howell A. Lloyd, Constitutionalism, in The Cambridge History of Political Thought, 1450-1700, edited by J.H. Burns, CUP, 1991, pp.279-283. See also Paulette Carrive, Richard Hooker, Théologie et Politique, in La Pensée Politique Anglaise de Hooker a Hume, Presses Universitaires de France, París, 1994, pp. 3-31. Other less relevant authors during Elizabethan England , such as Merbury, Haywood and Craig, also defended parliamentary Sovereignty, as J.W. Allen recalls in A History of Political Thought in the 16th Century, London, 1941, pp. 247.
[21] Plato, Las Leyes [The Laws} book III; from the bilingual (Spanish-Greek) edition of IEP, Madrid, 1960, translation, notes and prologue by José Manuel Pabón and Manuel Fernández Galiano, Vol. 2; Aristotle, Politica, Books III, ch. 6-8, IV, ch. 4-12 and VI; from the bilingual (Spanish-Greek) edition from CEC, Madrid, 1983, translated by Julián Marías and María Araujo, Introduction by Julían Marías; St Thomas Aquinas, De Regimine Principum, Book I, ch. VI; from the Latin version by Marietti, Turín, reprinted 1971. Another version of this last work is the Spanish edition by Tecnos titled La Monarquía [The Monarchy], Madrid, 3rd ed., 1995, Prologue, translation and notes by Laureano Robles and Angel Chueca.
[22] Sir John Fortescue, The Governance of England, op cit, ch. 2 &3.; Sir Thomas Smith, De Republica Anglorum, op. cit. Book I, ch. 6 and Book II, ch. I; Richard Hooker, Of the Lawes of Ecclesiastical Politie, op. cit., Book VIII, ch 3 to 6.
[23] For Bodin, in effect, "la premiére marque du prince souverain c'est la puissance de donner loi á tous en général et a á chacun en particulier, qui est incommunicable aux sujets .. sous cette meme puissance de donner et casser la loi sont compris tous les autres droits et marques de souveraineté 1/4. Comme décerner la guerre ou faire la paix ; connaitre en dernier ressort des jugements de tous magistrats; instituer et destituer les plus grands officiers; imposer ou exempter les sujets de charges et subsides; octroyer graces et dispenses contre la riguer des lois; hausser o baisser le titre, valeur et pied des monnais 1/4" Jean Bodin, Les Six Livres de la Republique, Book I, Ch II. From Fayard's edition, Corpus des Ouvres de Philosophie en Langue Francaise. Fayard, París, 1986, 6 volumes.
[24] Jean Bodin, Les Six Livres de la Republique, Book II, ch I to VII.
[25] W. Ullmann expands on this in Principios de Gobierno y Politica en la Edad media [Principles of Government and Politics during the Middle Ages] Alianza Universidad, 1985, pp. 171, 207.
[26] In the words of García Pelayo " while in most continental countries the concentration of power was in the hands of the monarch, in England it was in the Parliament. The difference is primarily symbolic , but no in terms of quality of power; just like the continental monarch [s], parliament became supreme, not linked to prior Law but superior to it; in the same way in which in the continent maintained Parliaments or the General States, at times nominally, but remaining subordinate to the monarch, in the same way but the other way around, in England the monarch remained but finally subordinate to the parliament, to the extent of being able of defining the prerogative as the remnant of power that the Parliament left the king1/4 What remains clear is that in England they had the same phenomenon of power concentration as in continental States; that is, the phenomenon of sovereignty, notwithstanding that there is another real object", Manuel García Pelayo, Derecho Constitucional Comparado, Alianza Universidad, Madrid, 1984, pp. 250-251, translation by Manuel Calzada.
[27] J.P. Kenyon, The Stuart Constitution, 1603-1688, Documents and Commentary, CUP, 2nd ed., 1986, p.11.
[28] G.P. Gooch, Political Thought in England: from Bacon to Halifax, OUP, London, 1955, reprinted by AMS Press, New York, 1977, pp. 13-22. In respect of the English political and constitutional debate during the times of the Stuarts, see also J.W. Allen, English political Thought, 1603-1660, London, 1983, Vol. 2, as well as the study by Conal Condren, The Language of Politics in Seventeenth Century England, St. Martin's Press, New York, 1994.
[29] John A. Pocock, La riconstruzione di un imperio. Sovranitá britannica e federalismo americano, Piero Lacaita Editore, Manduria, Bari, Roma, 1996, p.16
[30] Mauro Capelletti, Alcuni precedenti storici del controllo giudiziario delle leggi, in Giuseppe Maranini (ed), La Giustizia Constituzionale, Vallecchi Editori, Florencia, p.23.
[31] Edward S. Corwin, The "Higher Law" background of American Constitutional Law, II, "Harvard Law review" No 3 (1929), pp. 366-380, and by the same author the first part of the same article in No 2 of the same Journal (1928); Mauro Capelletti, Alcuni precedenti storici del controllo giudiziario delle leggi, op. cit. pp. 119-120. Regarding this book see my own extensive commentary Constitución y ley en los origenes del Estado Liberal, [Constitution and Law in the origins of the Liberal State] Revista Española de Derecho Constitucional, no 45, 1995, pp. 347-365.
[32] G.P. Gooch, Political Thought in England, op.cit. p. 44, see also, in general, pp. 41-49. As summarised by García Pelayo, " Coke's doctrine represents the reactionary thesis of historical law against the king's progressive thesis, and later, of the parliamentary party; that is, that in which the Law responds to a rationalised plan. It was contrary to cement sovereignty in any institution that wasn't the judiciary1/4." [translation by Manuel Calzada] Derecho Constitucional Comparado, op.cit., p..262. O.Hood Phillips recalls, nevertheless that Coke's obiter dicta in Bonham was contrary to those he held in Institutes; and added: as Law Officer, Coke defended the regal prerogative , as a Judge the supremacy of the Common Law (that he equipped with reason) and as parliamentarian the sovereignty of Parliament. Constitutional and Administrative Law, op. cit., p.48.
[33] Ibid p. 17. These theses were expounded by the same author in a very interesting earlier book, The Ancient Constitution abd the Feudal law, Cambridge, 1957, re-edited in 1987.
[34] Glenn Burgess, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1600-1642, Macmillan, London, 1992, ch. 1 and 2.
[35] C.H. Macilwain, The High Court of Parliament and its Supremacy, 1912, p. 390. Prynne, in Sovereign Power of Parliaments and Kingdoms, published in 1643, tried to show that the basis of the Constitution rested in Parliament and not in the person of the King. Geoffrey Marshall, Parliamentary Sovereignty and the Commonwealth, OUP, 1957, p. 48.
[36] His text can be found in The Constitutional Documents of the Puritan Revolution, 1625-1660, selected and edited by Samuel Rawson Gardiner, 3rd revised edition, OUP, reprinted 1968, 249-254.
[37] J.G. A. Pocock, La riconstruzione di un impero 1/4op cit. pp. 24 and 25 as well as the commentary on that passage that Cesare Pinelli makes in that same book (pp.117-8) where he recalled the influence of that conception of government or mixed monarchy on Blackstone. Regarding the debate on sovereignty and the mixed monarchy, see also Corinne C. Weston and Janelle R. Greenberg, Subjects and Sovereigns, the Great Debate over Sovereignty in Stuart England, Cambridge, 1981; Michael J. Meedle, Dangerous Positions: Mixed Government, estates, and the Answer to the XIX Propositions, Alabama, 1985. M.J.C. Vile understood, differing from Pocock, that the English conception of the State as a mixture of monarchy, aristocracy and emocracy, emboided in the King, the Lords and the Commons, was already present in Fortescue and Smith. See M.J.C. Vile, Constitutionalism and the Separation of Powers, OUP, Oxford, 1967 p.37.
[38] Johann P. Sommerville, Introduction to Filmer, Patriarca and other writings, CUP, Oxford, 1991, pp. XV-XVIII, XXXII to XXXIV. The complete title of this work was Patriarcha. The naturall power of Kinges defended against the Unnatural Liberty of the People.
[39] Ibid, pp. 131-171
[40] Thomas Hobbes, Leviathan or The Matter, Forme and Power of a Common-Wealth Ecclesiastical and Civil, London, 1651. First part, ch. XV in fine. Penguin Books Edition , London, 1984, with an Introduction by C.B. Mapherson.
[41] Ibid, First part, Book 1, ch. XXVI
[42] See two articles by Norberto Bobbio, Legge naturale e legge civile nella filosofia politica de Hobbes and Hobbes e il giusnaturismo, both in his book Da Hobbes a Marx, Morano editore, 2nd edition, 1971, pp. 11-74. M. Cattaneo, in his book Il positivismo giuridico inglese. Hobbes, Bentham, Austin (Milán, 1962), considers Hobbes as "the first representative of English positivism"., p.46.
[43] Thomas Hobbes, Leviathan op. cit. Second Part, chapter XXIX. In addition to the three works mentioned, a fourth book by Hobbes should be taken into account: A Dialogue Between a Philosopher and a student of the common law of England written around 1666 and which criticises some of the doctrines that Edward Coke had argued during the reigns of Jacob I and Charles I regarding the role of the common law within the English juridical system. Spanish version by Miguel Angel Rodilla, Tecnos, Madrid, 1992.
[44] Regarding Sidney's political thought, particular that outlined in Discourses concerning Government, see G.P. Gooch, Political Thought in England, Bacon to Halifax, op.cit. pp. 126-132, see also Pauletter Carrive, La vie et la pensée politique d'Algernon Sidney in La Pensée Politique Anglaise de Hooker a Hume, op. cit. pp.248-268.
[45] It is advisable not to forget that, nevertheless, together with the re-establishment of the Parliamentary Sovereignty, the 1688 revolutionaries attempted to guarantee the unity of the State and of the Anglican Church. Jacob II was an impediment for both given that his absolutist tendencies were as obvious as his Catholic sympathies. See also J.G.A. Pocock in La ricostruzione de un imperio .. op.cit., pp. 39-44 concerning these two paradigms of the 1688 revolution.
[46] The text of the 1689 Bill of Rights can be found in W.C. Costin and J. Steven Watson, The Law and Working of the Constitution. Documents. Adam and Charles Black, London, 2nd ed., 1961, Vol. 2 1660-1914, Vol. 1 , pp. 67-74. For a Spanish translation of the declaration see Joaquín Varela Suanzes, "Textos basicos de la Historia Constitucional Comparada" CEC, Madrid, 1998, pp. 18-25.
[47] See J. Steven Watson, op cit., Vol. 1, pp. 79-80 for the text of the Act.
[48] Ibid, Vol. 1, pp. 92-96.
[49] Peter Laslett, The English Revolution and Locke's Two Treatises of Government, initially published in the Cambridge Historical Journal, Vol. 12, no. 1, pp. 40-55 and reproduced in John Locke. Critical Assessments, edited by Richard Ashcraft, Routledge, London & New York, 1991, Vol. 1, pp. 32-50. See also the recent article by J.R. Milton, Dating Locke's Second Treatise in History of Political Thought, Vol. XVI, no. 3, Autumn, 1995, pp. 356-7.
[50] C.B. Macpherson recalls than when Hobbes describes the State of Nature he is thinking of disorganised civil society, that is, bourgeois society without State, Teoria politica del individualismo posesivo, Fontanella, Barcelona, 1970, pp. 28.
[51] In respect Locke's gnoseology in An Essay concerning Human Understanding, see J. L. Mackie Problems from Locke, Clarendon Press, Oxford, 1976. See also the work of Shadia B. Drury, Douglass Odegard and Sterling P. Lamprecht in Vols II and IV of John Locke, Critical Assessments, edited by Richard Ashcreft, Routledge, London & New York, 1991. George Sabine synthesises Locke's incongruence when he points out that his political philosophy as a whole present the anomaly of a generally empirical thought theory , together with a scientific theory and a rationalist process. Historia de la Teoría Politica, FCE, México-Madrid-Buenos Aires, 1981, p. 391.
[52] An Essay concerning the True Original Extent and End of Civil Government, chapter XIV, para. 159, Everyman's Library. John Locke, Two Treatises of Government, London, 1986, with an Introduction by W.S. Carpenter.
[53] Regarding the concept of Government by the consent of the governed, a key to Locke's political philosophy, see Jules Steinberg, Locke, Rousseau and the Idea of Consent. An Inquiry into the Liberal-Democratic Theory of Political Obligation. Greenwood Press, Westport, Connecticut, London, England, 1940, ch. 3 "Locke and the idea of consent" , pp. 53-79.
[54] Ibid, ch. IX, paras 123 and 124.
[55] An Essay Concerning the True Original Extent and End of Civil Government, ed. Cit. ch. I, II, and VII-XIV. In respect of the relationship between Hobbes and Locke, see ch. 7 of John Dunn's well known work The Political Thought of John Locke. An Historical Account of the Argument of the "Two Treatises of Government". CUP, 1969, pp. 77.
[56] Sir Frederick Pollock, Locke's Theory of the State, in John Locke, Critical Assessments, op.cit. Vol. III, p.8.
[57] M.J.C. Vile, Constitutionalism and the Separation of Powers, OUP, Oxford, 1967, ch. 2 & 3, pp. 55-57.
[58] An Essay concerning the True original Extent and End of Civil Government, ed. cit. ch. IX, Paras 128,129,130.
[59] Ibid, ch. IX, paras 124, 125 and 126.
[60] M.J.C. Vile, Constitutionalism 1/4 op. cit. p. 59.
[61] Nicola Matteucci, while outlining Locke's doctrine regarding the division of powers, recalls that from the English Middle Ages "the judicial instance was represented by the King - with the judges that depended on him - and by the Parliament, which was the Supreme Tribunal" Organizzacione del potere e libertá. Storia del constituzionalismo moderno. UTET, Turín, 1988, p. 104.
[62] An essay concerning the True Original Extent and End of Civil Government, ed. cit. ch. XIV, para 159.
[63] Ibid, ch. XII, para. 143.
[64] Ibid, ch. XII, para. 144.
[65] Ibid, ch. VII, paras. 90 & 91.
[66] George Macaulay Trevelyan, Historia Politica de Inglaterra [English Political History]. Fondo de Cultura Económica, México, 2nd ed. 1984, p.284. According to this excellent - although of a somewhat insufferable nationalism - the Long Parliament did not only stop the English monarchy from becoming absolutist as others were common in Europe at the time, it also made a great experiment in the direct government of the country and of the Empire through the House of Commons.
[67] Ibid, Ch XII, para 143.
[68] As recalled by M.J.C. Vile in the book already cited, p.60. Regarding Locke's doctrine of the division of powers see pp. 58-67.
[69] An essay concerning the True Original Extent and End of Civil Government ed. cit, ch. XII, para. 147.
[70] Ibid, ch. XIII, paras 151, 155.
[71] Ibid, ch. XIII, paras 154
[72] Ibid, ch. XIII, paras 156
[73] Ibid, ch. XIII, paras 151. It should also be taken into account that in chapter XIV Locke granted the monarch wide prerogative powers, such as that of taking appropriate measures whilst the legislature was unable to meet. Para. 159. See also M.J.C. Vile, op. cit. p.65
[74] Ibid, ch. XIII, paras 143.
[75] Alessandro Passerin D'Entreves, La Noción del Estado. Centro de Estudios Universitarios, Madrid, 1970, p. 138, and generally Chapter 7, part 2. "Estado mixto y division de poder' .
[76] Constitutionalism 1/4 op.cit. p.64.
[77] An essay concerning the True Original Extent and End of Civil Government ed. cit., para. 132
[78] Ibid., para. 213.
[79] Ibid, ch. XIII, para. 150. Locke added that as the form of government depends on placing the supreme power, which is the legislative power, in one or another hand, the form of government of the State will depend on the manner in which the power to make laws is granted, because it is impossible to conceive that an inferior power give order to a superior one. Ibid, Ch. X, para 132.
[80] Ibid. ch. XI, XII and XIII.
[81] In Chapter II Locke had already referred to the 'judicious Locke", whose book On the Lawes of Ecclesiastical Politie he quotes with praise in paras 5 and 15 of this chapter, as well as throughout chapter XI.
[82] M.J.C. Vile, Constitutionalism .. op.cit. pp. 62-64.
[83] Nicola Matteucci, op. cit. pp.102-3
[84] An Essay concerning the True Original Extent and End of Civil Government, ed.cit. cap XI, paras 134-142, specially 142, a summary of the others.
[85] Sir Frederick Pollock, Locke's Theory of the State, op. cit. p.9.
[86] J.W. Gough, Fundamental Laws in English Constitutional History, OUP, 1955, reprint by Fred B. Rothman & Co, Colorado, USA, 1985, p.167.
[87] An Essay concerning the True Original Extent and End of Civil Government, ed.cit. cap XIII, para. 149 J.W. Gough writes that in the limits to the legislative power recognised by Locke, he perceives the influence of very ancient doctrines such as the maxim " 1/4. Salus populi". Fundamental Law 1/4 op. cit. p.168. Regarding this maxim Locke would go on to say in An Essay concerning the True Original Extent and End of Civil Government, ed. cit chapter XIII, para. 158 that .. salux populi, suprema lex is such a just and fundamental rule that whoever follows it with sincerity can not err dangerously.
[88] Regarding Locke's doctrine on the right of resistance see Julian H. Franklin, John Locke and the Theory of Sovereignty. Mixed Monarchy and the Right of Resistance, CUP, Cambridge, 1981, pp. 91-97. See also chapter 3 from Ruth W. Grant's John Locke's Liberalism, The University of Chicago press, Chicago & London, 1987.
[89] A.H. Maclean, George Lawson and John Locke in "Cambridge Historical Journal", IX, no. 1, 1947, pp 68-77, reproduced in the previously cited book John Locke. Critical Assessments, Vol. 1 pp. 110-119.
[90] John Locke and the Theory of Sovereignty .. op. cit. passim.
[91] In effect Franklin recalls that whilst the doctrine of popular sovereignty held by the monarchists during the XVI century was incompatible with the doctrine of the limited monarch as well as with that of the mixed monarchy, their profiles, on the other hand, not being altogether clear with the writers of the time, as Pocock highlighted, the constitutional theoreticians from the XVI century and early XVII century understood that the principle of popular sovereignty was incompatible with the partial independence that the king had to enjoy under a mixed or limited monarchy.
[92] Julian H. Franklin, John Locke and the Theory of Sovereignty, op. cit. pp. IX, 53, 87 and 88.
[93] Ibid., p. 89
[94] Ibid, pp. IX-X
[95] Ibid. pp. 98-99
[96] Ibid, p.100
[97] With regard to the political and constitutional life during this period see Basil Williams, The Whig Supremacy, 1714-1760 Oxford History of England, 2nd edition, revised by C.H. Stuart, OUP, 1962; R.R. Walcott Jr. English Party Politics in the Early Eighteenth Century, CUP, 1965; J.H. Plumb, The Growth of political stability in England, 1675-1725, London, 1967; W.A. Speck Tory and Whig. The Struggle in the Constituencies: 1701-1715, London, 1970; E. Neville Williams, The Eighteenth-Century Constitution, 1688-1715, OUP, 1985; Jeremy Black, Robert Walpole and the Nature of Politics in Early Eighteenth Century England, Macmillan, London, 1990.
[98] This Act established that the mandate of the Commons would last seven years - instead of three, as it had established under the Triennial Act 1694 - unless the monarch dissolved the Assembly at an earlier date. With the Septennial Act it was proposed to retard by four years elections that had they been held when they were due, could have been won by the party of the Stuarts or, as the act proclaimed "the Popish faction". This Act, affecting as it did the House of Common itself that passed the legislation, came to recognise beyond dispute that sovereignty resided in the Parliament, that is, in the King, the Lords and the Commons, and not - as their detractors argued - in the people that after all had elected the Commons for a three year term rather than for seven years. For the text of this Act see W.C. Costin and Steven Watson, The Law and Working of the Constitution op.cit. Vol. 1, pp. 126-127. See also A.V. Dicey's commentary in An Introduction .. op.cit. pp. 44-48.
[99] In respect of the political and constitutional duel between Walpole and Bolingbroke, see M.J.C. Vile, Constitutionalism and the Separation of Powers, op.cit pp. 69-75; J.H. Plumb, Sir Robert Walpole, Vol. 1, The Making of a Statement, London, 1956 and Vol. 2, The King's Minister, 1961; H.T. Dickinson, Bollingbroke, Constable, London, 1976; Isaac Kramnick, Bollingbroke and his Circle. The Politics of Nostalgia in the Age of Walpole, Cornell University Press, Ithaca and London, 1992.
[100] A recent approximation to the theory of the State and the constitutional thinking of David Hume can be found in Joaquin Varela Suanzes, Estado y Monarquia en Hume, Revista del Centro de Estudios Constitucionales, No. 22, Madrid, 1995, pp. 59-90.
[101] For example, Of the parties of Great Britain, Vol., 3, pp. 133-144 of David Hume. The Philosophical Works, edited by Thomas Hill & Thomas Hodge Grose, Vol. 4, London, 1882-1886, reprinted by Scientia Verlag Aalen, 1964. Unless otherwise indicated, from hereon all citations regarding Hume will be from this edition, pointing out volume and page. The majority of the works herein cited are brief essays under the title Essays, Moral and Political, published between 1741 and 1742, or from Political Discourses, published in 1752. A selection from both works was published between 1753 and 1754 under the title Essays and Treaties on several subjects, and in 1758 as Essays Moral, Political and Literary. This selection also included three essays, Of Natural Character, Of the Original Contract, and Of Passive Obedience - these last two of great relevance for the subject matter under discussion - that had been independently published in 1748.
[102] Of passive obedience, Vol. 3, pp. 460-1
[103] Hume had written that the simple name of the king deserve little respect and that to speak of him as God's representative on earth or to give any of those pompous sounding titles that in earlier times impressed the people would be laughable . Whether the British Government inclines more to Absolute Monarchy or to a Republic. Vol. 3, p.125.
[104] Regarding Hume influence in British thought during his century see the classic work of Leslie Stephen, History of English Thought in the Eighteenth Century, London, 1881, Vol.1, pp. 309 and Vol. 2, pp.179.
[105] F.A. Hayek insists in this in The Legal and Political Philosophy of David Hume, Vol. III from Collected Works of F.A. Hayek, The University of Chicago, 1991, pp. 101-118, where he highlights a little known facet of Hume: as a jurist or, more precisely, as legal scholar.
[106] Two books that can be read from Volumes 2 and 4 of the aforementioned work cited in note 101, David Hume, The Philosophical Works.
[107] David Parker insists in this respect in Philosophy and Ideology in Hume's Political Thought, Clarendon Press, Oxford, 1981, p.2
[108] According to Hume, man, having been born within the heart of a family, was by necessity compelled to maintain a social life by natural inclination and custom. See Of the Origin of Government Vol. 3, p.113.
[109] Regarding Hume's conception of Convention, a key concept of his political thought, see André-Louis Leroy, David Hume, Presses Universitaires de France, París, 1953, ch. XVI, reprinted by Arno Press, new York, 1979, pp. 225-240.
[110] Treatise of Human Nature: Of the rules which determine property ch.III, part II, Book III, Vol. II, pp. 273. Regarding the 'rules of justice', another fundamental concept of his theory of Law and the State, see José Martinez de Pisón, Justicia y Orden Político en Hume, CEC, Madrid, 1992, pp. 280-295.
[111] Of the Origin of Government, Vol. 3, p.113.
[112] Regarding the reflections of these two authors concerning the social contract see Ernest Baker in The Theory of the Social Contract in Locke, Rousseau and Hume in Essays on Government, OUP, 1965, pp. 86-119.
[113] Of the Original Contract, Vol. 3, pp. 447 & 450
[114] Of the Original Contract, Vol. 3, pp. 447 & 450
[115] Ibid. Vol. 3, pp. 455-6
[116] Of the Original Contract, Vol. 3, p. 455.
[117] Of the Original Contract, Vol. 2, pp. 300-304 and Of The First principles of Government Vol. 3, pp. 109-117. The word Government meaning 'State'.
[118] A Treatise of Human Nature, Vol. 2, p.328.
[119] Frederick G. Whelan, Time, revolution and prescriptive Right in Hume's Theory of Government, Utilitas, Vol. 7, no. 1, May 1995, pp. 98-107.
[120] A Treatise of Human Nature, Vol. 2, Book III, part II, ch. X, p. 325
[121] Of Passive Obedience, Vol. 3, pp. 462-3.
[122] Of Passive Obedience, Vol. 3, p. 120.
[123] In this respect see my previously cited article, Estado y Monopolio en Hume, pp. 80-90.
[124] On the Independence of Parliament, Vol. 3, p.120.
[125] Ibid. pp. 120-121. As a notation Hume added that 'with this influence of the Crown, in my opinion justified, I only refer to that born from the positions and honours that the monarch may grant. In respect to the practice of private bribery, it can be equipped to the practice of using spies, hardly justifiable in a good minister and infamous in a bad one1/4"
[126] Of Civil Liberty, Vol. 3, p.161. To Hume, the law was a source of total security and happiness, as he wrote in his essay Of the Rise and Progress of the Arts and Sciences, Vol. 3, p.185.
[127] On the Independence of Parliament, Vol. 3, p.116.
[128] Of the Origin of Government, Vol. 2, p. 300.
[129] From the 1814 edition in 4 Volumes, corrected by Varela Suanzes, printed at the revived Apollo press. All Blacktone's citations will be made from the first volume of this edition, with a warning whether from the Introduction or from the First Book. With the former I will cite the section and with the latter the chapter and the page.
[130] In addition to the eight editions published during the lifetime of the author, David Lieberman recalls that between 1783 and 1849, Blackstone's 'Commentaries' were edited fifteen times. Towards the middle of the 19th century, the work was revised in depth by H.J. Stephen and from that revision it continued to be published during the 20th century. David Lieberman, The Province of Legislation determined. Legal Theory in 18th Century Britain, CUP, 1989, pp. 31-2. See also, Sir William Holdsworth, Some Makers of English Law, CUP, 1938, pp. 238 and 266.
[131] Editorial Introduction to Bracton's Note Book, Vol. 3, London, 1887, apud D. Lieberman, op.cit. p. 31.
[132] Commentaries, Introduction, II., p.67. Equally, pp.64 and 68.
[133] Ibid, 1. I, ch. VII. P.246.
[134] Ibid. 1, I. Ch. VI, p.242. Regarding the decisive influence of Montesquieu on Blackstone see F.T.H. Fletcher, Montesquieu and English Politics (1750-1800), 1939, re-edited by Edward Arnold & Co., London, undated, pp. 107-151.
[135] Ibid, 1, I. Ch. VI, p.247.
[136] Ibid. 1, I, ch, VI, pp. 242-4
[137] Ibid., 1, I. Ch. VII, p. 253
[138] Ibid. 1, I. Ch. VII, p. 258-9. Regarding the right of resistance in Blackstone, see E. Barker, op. cit. p. 146.
[139] Ibid., 1,I. C.II, p.174.
[140] Ibid. 1, I., ch. III, p.223. Commenting on this paragraph, Stanley Katz wrote that Blacktone, as corresponding to a Whig historian, was an optimist, but as a political and realist conservative, he was conscious that a generalised acceptance of the right to revolution (although attractive in principle) could imply a continuous invitation to anarchy. With the aim of minimising the right to revolt, Blackstone had to justify the confidence in the existing institutions of government. Stanley Katz Introduction to the First Book of William Blacktone's Commentaries on the Laws of England . A Facsimile of the first edition of 1765-1769, The University of Chicago Press, Vol. 1, pp. X-XI.
[[141] Commentaries, I. I. Ch. II, p.182
[142] Ibid. I. I. Ch. II, p.171
[143] Ibid., I. I, ch. II, p.172
[144] Ibid., Introduction, II, p.72
[145] John V. Jezierski, Parliament or People: James Wilson and Blackstone on the nature and location of Sovereignty, in Journal of the History of Ideas, XXXII, 1971, pp. 96-106.
[146] Commentaries, I. I. Ch. II, pp. 166 and 173.
[147] The seven initial chapters of the first book of his 'Commentaries', especially pp. 142-144, 160-168 and 252. See also M.J.C. Vile, Constitutionalism and the Separation of Powers, op. cit. pp. 102-105.
[148] Commentaries, Introduction, II, p.71. See also, pp.=69-72 and I. I, ch. II, pp. 166-167.
[149] Ibid. I. I, ch. II, p.160.
[150] Ibid. Introduction, II, p. 67. Blackstone added that it was an essential requisite in order to be able to speak about law that it be made by the sovereign, that is, by the legislative power (Ibid. . P.67). In pp. 69 and 72 he insists in identifying sovereignty with the faculty of creating laws.
[151] Ibid. I. I, ch. II, p. 173.
[152] Ibid. I. I, ch. II, p. 173. See also p. 198.
[153] Ibid. I. I, ch. II, p. 198.
[154] Ibid. , Introduction, II, p. 62.
[155] Ibid. I. I, ch. I, p. 139.
[156] Ibid.
[157] Ibid., I. I, ch. I, p. 144.
[158] Sir Ernest Barker, Blackstone on the British Constitution, in Essays on Government, OUP, 2nd ed., 1965, p. 129. See also pp. 135 and 136 note 2. Regarding Blackstone's jus-naturalism see also Michael Lobban, Blackstone and the Science of Law, in The Historical Journal, 30, 2, 1987, p. 312 and D. Lieberman, op. cit., pp. 37-38.
[159] Sir Ernest Baker, Blackstone on the British Constitution, op. cit. p. 136.
[160] See D. Lieberman, op. cit. pp. 40-49.
[161] Ibid., I. I, ch. I, p. 142.
[162] There had been attempts during the 17th century to equate the Magna Carta with the declarations of rights approved during that century, despite the fact that the Magna Carta had limited itself to guaranteeing the privileges of Estates, while the latter proclaimed the rights and liberties of all Englishmen, independently of their social background and within a very different constitutional context to that of the Middle Ages. It would not be only Blackstone that would continue with these historical extrapolations, but also a great proportion of subsequent historians, represented by Hallam, Stubbs, Gneist, Glasson and Boutmy. Reacting against these reactionary extrapolations were writers such as Petit-Dutaillis, Pollard, Pollock, Jolliffe and, above all, Maitland. See Manuel Garcia Pelayo, Derecho Constitucional Comparado, Alianza Universidad, Madrid, 1984, pp. 249-250.
[163] Commentaries, Introduction, I. P.39.
[164] Commentaries, Introduction, III, pp. 86-7.
[165] Ibid. p. 87.
[166] Stanley W. Katz, op. cit. p. VII
[167] Commentaries, Introduction, III, pp. 105-6.
[168] . Ibid. p. 106.
[169] Ibid. Introduction, III, p. 107.
[170] Ibid. p. 107. Regarding these extremes, see also D. Lieberman, op. cit. pp. 53-55.
[171] Ibid. p. 107.
[172] Ibid. p. 108. Roland Séroussi, in his recently translated book (into Spanish) Introducción al Derecho Inglés y NorteAmericano [Introduction to English and North-American Law] Ariel, Barcelona, 1998, recalls that until the last third of the 19th Century there were in England Courts of Equity " Litigants who did not agree with the decisions of the judges looked to the king for refuge and justice. The King, through the Lord Chancellor, a cleric in whom the conscience of the Crown resided, imposed justice by means of equity. Equity, based more on natural justice than in the strict letter of the law, was administered by the Lord Chancellor through equitable remedies, freely applying principles of conscience". P. 14, note 2. See also pp. 15-17.
[173] Ibid. Introduction, II, p. 81.
[174] Ibid. Introduction, II, p. 81. Regarding the concept and extent of equity in Blackstone see D. Lieberman, op. cit, pp. 71-87.
[175] Ibid. pp. 250-344
[176] Ibid. I. I. Ch. VII, p. 258.
[177] Regarding 'Royal Assent' ibid. I. I, ch. II, pp. 196-197.
[178] Ibid. I., I, ch. VII, p. 258.
[179] Ibid. I. I, ch. II, p. 166.
[180] Introduction to the study of the Law of the Constitution, op. cit. p. 7. See also E. Barker, op. cit., pp. 144-146.
[181] Book I, p. 252. It is highly significative that in chapter IX of Book I of the Commentaries, titled Of Subordinate Magistrates Blackstone does not examine the powers and duties of His Majesty's Great Officers of State such as the Lord Treasurer, not being 'the object of our laws'.(p. 344) while in this very same chapter he stops to examine other officers of public administration, without doubt much less relevant from a constitutional perspective, such as the Sheriffs, Coroners, Justices of the Peace, Constables, or Surveyors../.. (345 et al).
[182] The Principles of Moral and Political Philosophy, William Paley, M.A. Archdeacon of Carlisle, London, printed for R. Faulder, New Bond Street, MDCCLXXXV.
[183] A biography and a recompilation of the works of W. Paley in The Works of William Paley 1/4 with a life by Alexander Chalmers, 1819, 5 Volumes. New edition of Edmund Paley, 1830, 6 Volumes. A more recent biography in Martin Lowther Clarke. Paley: evidence for the man, 1974. Regarding Paley see also L. Stephen, op. cit. Vol. 1, pp. 407 et al, and Vol. 2, pp. 124 et al.
[184] Principles .. op. cit.. p. 399.
[185] Ibid. p. 414.
[186] Ibid. p. 417.
[187] Ibid. p. 414-6.
[188] Ibid. p. 417-422.
[189] Ibid. pp. 462 and 464.
[190] Op. cit. p. 427.
[191] Ibid. p. 463.
[192] Constitutionalism and the Separation of Powers, op. cit. , p. 106.
[193] For Paley's perspective in this respect see The Principles of Moral and Political Philosophy. op. cit. pp. 465-500.
[194] It should be taken into account that the full title of this book was "A Fragment on Government, being An Examination of what is delivered. On the subject of Government in general in the Introduction to Sir William Blackstone's Commentaries with a Preface in which is given a Critique on the Work at large".
[195] A Comment on the Commentaries and A Fragment on Government, edited by J. H. Burns and H.L. Hart, The Athlone Press, 1975.
[196] J.H. Burns, Bentham and Blackstone: A Lifetime's Dialectic, in Utilitas, OUP, Vol. 1 no. 1, may 1989, p22. See also Ian Doolittle, Jeremy Bentham and Blackstone's Lectures, in "The Bentham Newsletter" no. 6, May, 1982, p. 23.
[197] A Fragment on Government, CUP, 1988, with an Introduction by Ross Harrison, Preface, para. 13. See also J.H. Burns, The Writings and Speeches of Edmund Burke, edited by Paul Langford, OUP, 1981, Vol. III.
[198] The Bristol Address can be found in The Writings and Speeches of Edmund Burke, edited by Paul Langford, OUP, 1981 Vol. III.
[199] A Fragment on Government ch. IV, para. 32, as highlighted by Bentham.
[200] Thoughts on the Cause of the Present Discontents, in The Writings and Speeches of Edmund Burke, op. cit. Vol. II, pp. 241-323.
[201] A Fragment on Government, ch. 1, para. 36.
[202] Thoughts on the Cause of the Present Discontents, in The Writings and Speeches of Edmund Burke, op. cit. Vol. II, pp. 241-323. Regarding Burke's Constitutional thinking see also Michel Ganzin, La Pensée Politique de Edmund Burke, Librairie Générale de Droit et de Jurisprudence, Paris, 1972, ch. II, pp. 47-72. Regarding the political context of this work see J. Brewer, Party Ideology and Popular Politics at the Accession of George III, CUP, 1976, pp. 39-138.
[203] A Fragment on Government, op. cit. ch. III, para. 6.
[204] Sophismes Anarchiques. Examen Critique de Diverses Déclataions de Droits de l'Homme et du Citoyen, in Jeremy Bentham's 'Ouvres en 4 Tomes', translated (into French) by P.E.L. Dumont & B. Laroche. Reprinted from the 1829 edition, Bruxelles, Scientia Verlag Aalen, 1969, t. 1, pp. 546-576. The first English edition appeared in 1824 with the aforementioned title of Anarchical Fallacies, but as part of a wider work called The Book of Fallacies: from unfinished papers of Jeremy Bentham, by a friend. Peregrine Bingham, Hunt, London, 1824.
[205] Leslie Stephen, History of English Thought in the Eighteenth Century (1902), Thoemmes Antiquarian Books, Bristol, 1991, II, p. 260. For a recent perspective on the thinking of Paine see Gregory Clacy's Thomas Paine, Social and Political Thought, Unwin Hyman, Boston, 1989; particularly pp. 63 onwards,. See also the brief study by Mark Philip, Paine, OUP, 1989.
[206] From the edition by penguin Books, London, 1984, with an Introduction by Eric Foner.
[207] This work can be found in Thomas Paine, Political Writings, CUP, 1989, edited and introduced by Bruce Kuklic, pp. 1-38.
[208] Rights of Man, ed. cit. p. 143.
[209] Ibid. p. 141.
[210] Sophismes Anarchiques 1/4, ed. cit. Vol. I, pp. 556-7.
[211] Ibid. t. I, p. 564. As F. Rose and B. Pendás recall, Bentham had held these theses regarding the division of powers in two prior works, False Principle Division of Power and in British Parliamentary Reform, both published in 1790, where he pointed out that the principal guarantee of freedom was not rooted in the division of public power but in the control (accountability) of those who governed by those who were governed. Frederick Rosen, The origin of liberal utilitarianism: Jeremy Bentham and liberty, in Victorian Liberalism, Nineteenth Century Political Thought and Practice, Routledge, London & New York, 1990, pp. 63-4, and Benigno Pendas García, J. Bentham,: Politica y Derecho en los Origenes del Estado Constitucional, CEC, Madrid, 1988, pp. 281-288.
[212] Regarding these two stages, see J.R. Dindwiddy, "Bentham's Transition to Political Radicalism, 1809-1810" in Journal of the History of Ideas, no. XXXVI, pp. 683-700; J.H. Burns, Jeremy Bentham: From radical Enlightenment to Philosophic Radicalism, in The Bentham Newsletter, no. 8, June 1984, pp. 4-13,; See also Lea Campos Boralevi, Un Riformatore tra due Rivoluzione: Jeremy Bentham, en Modelli nella storia del pensiero politico, Saggi a cura di V.I. Comparato, Leo S. Olschki, 1989, Vol. II, pp. 117-142.
[213] As for example Stephen Conway, See Bentham and the 19th Century Revolution in Government, in Victorian Liberalism, op. cit. p. 76.
[214] The best work on the Constitutional Code is by Frederick Rosen, Jeremy Bentham and Representative Democracy. A Study of the Constitutional Code, Oxford, 1983, passim. Also of particular interest is the fifth chapter of the aforementioned book by Benigno Pendás García, J. Bentham: Politica y Derecho en los origenes del Estado Constitucional; as well as the article by Josep Maria Colomer, Teoria de la Democracia en el Utilitarismo (en torno al pensamiento politico de Bentham)., REP, no. 57, 1987.
[215] Regarding the lengthy process of this work see the Editorial Introduction to Vol. 1 to Constitutional Code, edited by F. Rosen and J.H. Burns in The Collected Works of Jeremy Bentham, OUP, 1991, pp. XI-XLV.
[216] Constitutional Code, op. cit, p. 25.
[217] Ibid. ch. V, pp.29 et al. In this way it modified in a much more democratic sense the theses that had been argued in Principles of Legislation (1802), in Plan of Parliamentary Reform (written in 1809 but published in 1817) and in Radicalism not dangerous (1820).
[218] Ch. IV and V, pp. 26-29.
[219] Ibid. ch. VI, pp. 41-42. Pendás recall in this regard that in a previous work, Of Laws in General, Bentham distinguished between the constituent power and the powers constituted when speaking of the 'originating power', exercise by the people, and the 'efficient power' held by the elected rulers, op. cit. p. 287. Bentham reiterates the subordination of the Parliament to the sovereign, that is, to the people or electoral body, in ch. VII, section 11, p. 145.
[220] Ibid. ch. IV, p. 26; Ch. V, pp. 31-2; and Ch. VI, p. 111. Pendás points out that Bentham rejected the judicial review of Unconstitutional legislation because this conflicted with the principle of the omni-competence of the legislator; accordingly, it had to be the people that would proceed to its invalidity and, if necessary, to move penal sanctions against members of the legislature that approved anti-constitutional offences., op. cit., p. 286.
[221] Constitutional Code, op. cit. ch. VIII.
[222] Ibid. Ch. IX.
[223] To this general title the following sub-title was added " being the first part of a series of lectures on Jurisprudence or the philosophy of positive law"., from the 1970 reprint by Burt Franklin, New York, 3, Volumes, with a beautiful Preface to the second edition (1861), p.1-36 by his wife, Sara Austin.
[224] The Province of Jurisprudence Determined, ed. cit, Vol. 1, pp. 249-251, see in general,, pp. 248-253. Where we can find and intelligent and detailed defence of the work of Hobbes.
[225] In respect of the relationship between Bentham and Austin, in which the wife of the latter had a great deal of involvement, see Joseph Hamburger, Trouble Lifes: John & Sarah Austin, University of Toronto Press, Toronto, 1985. See also, A.D.E.Lewis, John Austin (1790-1859), Pupil of Bentham, in "The Bentham Newsletter", march, 1979, no. 2, pp. 18-29.
[226] Regarding the term 'jurisprudence' in English Juridical Science in general and in Austin in particular, see Gustav Radbruch, Der Geist des englischen Rechts, 1958; Italian translation, Lo Spiritto del Diritto Inglese, Giuffré, Milan, 1962, pp. 49-50.
[227] Vol. 1, p. 133. In another occasion he confesses that he is not concerned with examining the respective merits or otherwise of the different forms of government. Ibid. Vol. 1, p. 247.
[228] I, p. 264.
[229] Ibid, Vol. Pp. 271-2.
[230] Ibid., Vol. 1, p. 284, See generally pp. 264-316.
[231] Ibid., Vol. 1, pp, 284, 293, 296, 303.
[232] Ibid. Vol. 1, p. 304.
[233] Ibid. Vol. 1, pp. 195-197.
[234] Ibid. Vol. 1, p. 201.
[235] Ibid. Vol. 1, p. 201.
[236] Joaquín Varela Suanzes, La Monarquia en la teoría constitucional britanica durante el primer tercio del siglo XIX, in "Revista de Estudios Politicos", no. 96, April-June 1997, pp. 9-41 Idem, Esudio Preliminar a los Dogmas de la Constitucion, John James Park, Akal-Itsmo, Madrid, 1999 (printing).
[237] Ibid. Vol. 1, pp. 207-8.
[238] Ibid. Vol. 1, p. 208.
[239] Ibid. Vol. 1, p. 209.
[240] Ibid. Vol. 1, p. 210.
[241] Ibid. Vol. 1, pp. 1-25, 118-121, and 169-170. Austin makes his the words of Hobbes; "the legislator is he, not by whose authority the law was first made, but by whose authority it continues to be law" Ibid, pp. 169-70.
[242] "Strictly speaking, customs or writings and opinions of lawyers are Law in so far as they have been recognized by judicial decisions. And no further. As we already Shawn, there can be no law without a judicial sanction, and until a custom has been adopted as Law by Courts of Justice, it is always uncertain whether it will be sustained by that sanction or not" Ibid, Vol. II, p. 236.
[243] Ibid., Vol. II, p.436.
[244] Ibid., Vol. II, p.436. See also pp. 321-378. Austin expands on the differences between the laws made by Parliament and those made by the Judges, holding different opinions from Bentham in respect of judge-made law and the inevitable matter of codification.
[245] Ibid., Vol. II, p.437.
[246] Ibid., Vol. I, p.225. Of course for Austin sovereignty was not a factual concept, sociological, but purely juridical and, therefore, formal. Something that Sir William R. Anson appears not to understand - or at least not to share - when he criticises Austin's insistence in the unitarian and indivisible character of sovereignty. The Law and Custom of the Constitution, OUP, 1922, Vol. 1., pp. 1-4.
[247] Ibid., Vol. I, p.226-229.
[248] Ibid., Vol. I, pp. 230-231 and 236-238.
[249] Ibid., Vol. I, pp.228-231.
[250] Ibid., Vol. I, p.231-2.
[251] Vol. 1, pp.237-240 and 263.
[252] Ibid., pp. XIV-XV.
[253] The content of these Conferences and the Course are found in Volumes II and III of the cited work cited with the title , in the first edition from 1861, Lectures on Jurisprudence, being the sequel to "The Province of Jurisprudence Determined", to which are added Notes and Fragments now first published from the original Manuscripts".
[254] Wilfrid E. Rumble, Nineteenth-Century Perceptions of John Austin: Utilitarianism and the Reviews of the Province of Jurisprudence Determined, in A Journal of Utilitarian Studies, Vol. 3, no 2, November, 1991, pp. 199-216.
[255] Wilfrin E. Rumble, Austin in the Classroom: Why were his Courses on Jurisprudence Unpopular?, in The Journal of Legal History, Vol. 17, April 1996, no. 1, pp. 17-40.
[256] It should be taken into account that J.S. Mill was initiated into the study of Law by Austin during the winter of 1821-1822, as he acknowledges in his autobiography, where he draws a penetrating profile of Austin, full of warmth and admiration. Autobiografía, Alianza Editorial, Madrid, 1986, pp. 83 and 91-93.
[257] From the 10th edition, MacMillan, London, 1959, with an Introduction by E.C.S. Wade, pp. XIX to CXCVIII.
[258] E.C.S.Wade and G.G. Phillips recall that in the days of Dicey it was common to speak of England as synonymous of Great Britain or the United Kingdom. E.C.S. Wade and A.W. Bradeley, Constitutional and Administrative Law, Longman, 11th edition, London, 1993, p. 69.
[259] Op. cit. p. 39.
[260] Ibid., p. 39.
[261] Ibid., pp. 39-40.
[262] Ibid., p. 40.
[263] Ibid., p. 40.
[264] Ibid., pp. 41-50. See also Geoffrey Marshall, Parliamentary Sovereignty and the Commonwealth, op. cit., p.27.
[265] Ibid., pp. 50-58.
[266] Ibid., pp. 63-64
[267] Ibid., p. 59.
[268] Walter Bagehot, The English Constitution (1867). From the edition by Fontana Press with an Introduction by Richard Crossman, London, 1993. With regard to the assessment that Walter Bagehot made of the role that Queen Victoria played in political affairs - which became known only after having access to her personal correspondence - see The Cabinet System, CUP, 3rd edition, 1961, p. 353; J.H. Hanham, The Ninieteenth Century Constitution, 1815-1914. Documents and Commentaries, CUP, 1969, p. 24; David Lindsay Keir, The Constitutional History of Great Britain Since 1485, Adams and Charles Black, 9th edition, London, 1965, p. 493.
[269] Ibid., pp. 74-75. See generally pp. 71-85. To Sir Ivor Jennings, the 'juridical sovereignty' to which Dicey refers is not absolute sovereignty. It was a mere juridical concept, a form of expression used by jurists to refer to the relationship between Parliament and the Justice Tribunals. The Law and the Constitution, University of London Press, 5th edition, 1959, pp. 149. A juridically unfounded critique of the theses of Dicey in the same volume, pp. 144-176.
[270] Ibid., p. 60.
[271] Ibid., p. 61.
[272] The XIII and last of the Second Part, pp. 406-414.
[273] Ibid., pp. 64-70.
[274] Ibid., p. 70.
[275] In respect of these extremes, see Joaquín Varela Suanzes, Constitución y Ley en los orígenes del Estado Liberal, in "Revista Española de Derecho Constitucional" no. 45, Sept-Dec, 1995, pp. 347-365.
[276] Ibid., pp 87-91. The reference by Dicey to Bryce in p. 91 Regarding the connection - not circumscribed to Great Britain, but rather valid for the great part of Constitutional Europe during the 19th century - between parliamentary sovereignty, constitutional flexibility and the impossibility of articulating a constitutional control of the laws, see Sobre la rigidez constitucional, Alessandro Pace & Joaquín Varela, in La rigidez de las constituciones escritas, "Cuadernos y Debates", no. 58, CEC, Madrid, pp. 81-114.
[277] Ibid., p. 145.
[278] Regarding this influence, that later was not limited to the doctrine of Parliamentary Sovereignty, see the long Introduction by E.C.S. Wade to the 10th edition of Introduction to the Study of the Law of the Constitution, MacMillan, London, 1959, pp. XIX to CXCVIII. See also the recent study by John F. Mceldowney, Dicey in Historical Perspective. A Review Essay, in Patrick Mcauslan and John Mceddowney, Law Legitimacy and the Constitution. See also Julia Stapleton, Dicey and his Legacy, in "History of Political Thought", Vol. XVI, no. 2, Summer 1995, pp. 234-256.
[279] Sir Ivor Jennings, The Law and the Constitution, University of London Press, 5th edition, 1959, p.144.
[280] H.L. Hart, The Concept of Law, OUP, 2nd edition, 1994, pp. 149-150.
[281] Geoffrey Marshall, Parliamentary Sovereignty and the Commonwealth, OUP, 1957, p. 1. Citing one single author of a very long possible list, O.Hood Phillips also points out that the most important characteristic of British Constitutional Law is the legislative supremacy at times referred to as "sovereignty" of the Parliament of the United Kingdom. Constitutional and Administrative Law, Sweet & Maxwell, London, 7th edition, 1987, p.25..
[282] Colin R. Mumro, Studies in Constitutional Law, Butterworths, London, 1987, p. 82. Nevertheless this writer moves away from the doctrine of sovereignty argued by Dicey, pp. 83-108.
[283] As recalled by Geoffrey Marshall in Constitutional Theory, OUP, 1980, p.43.
[284] Geoffrey Marshall in Constitutional Theory, op.cit. p. 42,. See also Sidney Kentridge, Parliamentary Supremacy and the Judiciary under a Bill of Rights: some lessons from the Commonwealth, in "Public Law", Spring, 1997, pp. 96-112.
[285] In this regard see the previously cited monograph by Geoffrey Marshall, Parliamentary Sovereignty and the Commonwealth, OUP, 1957.
[286] In this respect see Lawrence Collins, European Community Law in the United Kingdom, British manuals of Constitutional and Administrative Law, such as, for example, that of O. Hood Phillips, Sweet & Maxwell, 7th edition, London, 1987, pp. 71-82; E.C.S. Wade and A.W. Bradley, Longman, London & New York, 11th edition, 1993, pp. 90-98; H.W.R. Wade, Sovereignty: Revolution or Evolution?, in "The Law Quarterly Review" vol. 112, October 1996, London, pp. 568-575; John Eekelaar, The Death of Parliamentary Sovereignty. A Comment, in "The Law Quarterly Review", Vol. 113, April 1997, London, pp. 185-187.
[287] Regarding Scotland, see Scotland's Parliament. Fundamentals for a new Scotland Act, in "The Constitutional Unit", Faculty of Law, University College, London, 1997.
[288] Sir Stephen Sedley, The Sound of Silence: Constitutional Law without a Constitution, in "The Law Quarterly Review", Vol. 110, April 1994, London, pp. 270-291; A.W. Bradley, The Sovereignty of Parliament in perpetuity? op. cit., pp. 79-107; Colin Turpin, British Government and the Constitution, Butterworths, 3rd edition, London, 1995, pp. 20-36; Geoffrey Marshall, Parliamentary Sovereignty: the new horizons, in "Public Law", Spring, 1997, pp. 1-5.