The Constitutional Ideas of Francis Bacon

• DOI: 10.1177/106591295600900409
• Author: Harvey Wheeler
• Published date: 01 December 1956
• Date: 01 December 1956
• Subject Matter: Articles

THE CONSTITUTIONAL IDEAS OF FRANCIS BACON
HARVEY WHEELER
Washington and Lee University
URING
THE intellectual hegemony of nineteenth-century German
scholarship it was normal for scholars to attribute the origin of
~-
English constitutionalism to the folk institutions of the primitive
Germanic tribes The German idea of a national spirit which animates
history and of a real Geist or personality which pervades institutions was
supplemented by the evolutionary conception, which in the social sciences
was the result not merely of Darwinism but also of the idea of progress.
The result was the assumption that English constitutional history had been
a more-or-less continuous development from Anglo-Saxon days to the
present, with liberty broadening down from precedent to precedent. This
view not only pervaded the work of professional historians like Hallam,
Green, and Stubbs but had general currency throughout the educated world.
In the twentieth century there emerged a school of thought which
found the permanent and valuable element in this historical heritage in
the idea of law rather than the representative institutions which engrossed
the attention of nineteenth-century historians. This literature has a nos-
talgic note; it attributes the continuity of the great tradition to the notion
of an objective and organizing law, and this idea has waned as the sov-
ereignty of representative institutions has waxed. On the Continent Fritz
Kern has sung the praises of &dquo;the Good Old Law&dquo;;2 in the United States
the work of Charles Howard Mcllwain has formed the minds of several
generations of political theorists in the same pattern.3
3
1
The Germanic attribution can be found in England as early as the Civil Wars, and was
given international currency by Montesquieu. Francis D. Wormuth, Origins of Modern
Constitutionalism (New York: Harper & Bros., 1949), chap. 17. It was through the
influence of German historical and legal ideas, however, that the notion was given a
mystical and organic flavor. Sir Paul Vinogradoff, Outlines of Historical Jurisprudence
(London: Oxford University Press, 1920), I, 87-9, 124-38, 224-9, 299-320, 351-90, and
the "Additional Note" on Ficker, pp. 370-72. E. A. Freeman was the most vigorous
English proponent of an Anglo-Saxon explanation of British institutions; in America
it was a student of Bluntschli and an admirer of Freeman, Herbert Baxter Adams, who
propounded the theory that American political institutions had grown out of the germs
planted by the Teutonic tribes of northern Europe. This thesis was developed in three
articles for the first volume of Adams’ new Johns Hopkins Studies (Baltimore: Johns
Hopkins Studies in History and Political Science, 1882). See especially The Germanic
Origins of New England. E A. Freeman contributed to that volume a supporting piece
entitled An Introduction to American Institutional History. The same year saw the
American publication of Freeman’s essay, "The English People in Their Three Homes,"
in Lectures to American Audiences (Philadelphia: Porter and Coates, 1882). Valuable
background for this is found in W. S. Holt, Historical Scholarship in the United States,
1876-1901 (Baltimore: Johns Hopkins Studies in History and Political Science, 1938).
2
Kingship and Law in the Middle Ages (Oxford: Basil Blackwell, 1948), pp. 149-205.
3
The High Court of Parliament (New Haven: Yale University Press, 1910); The American
Revolution (New York: The Macmillan Co., 1923); The Growth of Political Thought
in the West (New York: The Macmillan Co., 1932); Constitutionalism Ancient and
927

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928
The idea of progress has disappeared from this theory of history, but
there is still the nineteenth-century assumption of continuity and the
Germanic assumption of the decisive significance of folkways. But another
school of thought rejects both these assumptions. Authors with a positivist
or scientific bent attribute institutions to sociological rather than spiritual or
sentimental factors, and emphasize the importance of change in institutional
history rather than continuity. Scholars as diverse in their general systems
as Karl Marx and Max Weber find a great social transformation in the
events of the seventeenth and eighteenth centuries, a rupture with the
past and a revolution in virtually all institutions.
This latter view has also its expression in the study of constitutionalism.
For Mcllwain constitutionalism means a regime ordered by objective law.
So far as this ideal survives today we are in the tradition of the Middle
Ages; and the only alternative to law is mere power. The other point of
view regards medieval ideas themselves as the expression of institutional
arrangements and of social power; it finds in the seventeenth century a
shift in social power which introduces altogether new ideas, and defines
modern constitutionalism in terms of these new ideas. It might be said
that Mcllwain regards constitutionalism as a legal conception, if &dquo;legal&dquo; is
given a strong natural-law flavor; the alternative approach is more a polit-
ical than a legal view.
The political interpretation of medieval constitutionalism was set forth
by Otto Gierke, although with much less decision than one might wish.4
He did not regard the medieval state as a monarchy defined and limited
by law; there was, indeed, no idea of the state in the Middle Ages. Society
was dualistically organized: prince and people opposed and complemented
each other. This political conception, to which Gierke gave the name of
&dquo;double majesty,&dquo; endured until Thomas Hobbes restored the unified polis
or civitas of antiquity. Georg Jellinek independently offered an analysis like
Gierke’s.5 English institutions in the Middle Ages have recently been ex-
plored from this point of view and the transformation of the political theory
of double majesty into modern constitutionalism has been examined for the
Continent by Carl J. Friedrich7 and for England by Francis D. Wormuth.’
Modern...