John Milton on Popular Sovereignty and Individual Liberty
Introduction
When one thinks of lofty constitutional scholars, the name of the poet John Milton seldom comes to mind. Yet Milton’s writings are perhaps the loftiest of them all. His writing may not have centred upon the minutia and mechanics of English constitutional practice, but his thoughts have left an indelible mark upon the development of the English constitution. His major works, including Paradise Lost,[1] The Tenure of Kings and Magistrates,[2] and Areopagitica,[3] capture the turbulence of the English Civil Wars as well as the English Republican State during the Interregnum.
The English constitution was radically altered during this period and this legacy is still felt today, albeit largely unobserved. From 1642-1660 the English Constitution was practically in abeyance.[4] Yet the interregnum period that filled the hole played a seismic role in how the future constitution developed. The period of the English Commonwealth was an attempt to fight the current of English history and sail upstream seeing attempts to codify a constitution. Thus, The Instrument of Government (1653)[5] formed the first attempt at the codification of the relationship between the three branches of government and between government and the populace in English legal history. Had these constitutional innovations persisted the document itself would have been sovereign, rather than the King/Queen in parliament as it is today. Ultimately the English Commonwealth did not endure, and the crown was restored through Charles II in 1660.
In this dissertation I will establish Milton as a legal thinker, looking at both his poetry and prose writing. I will show how Milton’s work grapples with the concepts of popular sovereignty and individual liberty investigating what he has to say both for the readers of his time and readers of today. It is vital to note how his radicalism was received and fitted into the broader legal and political landscape of his day. I will then move to examine Milton’s influence and contribution to English constitutional jurisprudence through the 18th, 19th and 20th century. Choosing key legal and philosophical thinkers from each century showing how Milton’s writing influenced them explicitly where possible but more pertinently where his ideas continue to percolate in their writings. Finally, I will demonstrate the extent to which we can see the concept of Miltonic individual liberty and popular sovereignty at play in our modern constitution through the constitutional reforms and agenda of the New Labour government of the early 21st century. In order to achieve this I will use a combination of primary and secondary source material, as well as relevant archival materials that have been made available. This dissertation aims to be an original piece of research, interdisciplinary in nature, that will draw on the efforts of legal academics and practitioners, literary critics, historians and philosophers across a four-hundred year time frame with the ultimate aim of demonstrating the lasting legacy and influence of John Milton’s writings on English constitutional thinking/theory.
Milton in His Time
There were many factors preceding the English civil wars, central among them was religious denomination between Catholic and Protestant. This factional divide was either the emanation and/or justification for the plurality of views around ‘popular sovereignty’ and ‘individual liberty’. Another perennial faultline in English history, taxation, was also at play. Often taxation is viewed through the lens of individual liberty as well as the sovereignty of the individual or body from where taxes are raised. Charles sought to raise taxes for war, but parliament was unwilling to pass a hike in tax. In consultation with his Attorney General William Noy, Charles orchestrated a way to levy ‘ship money’ beyond the traditional base of port towns.[6]
This new method of revenue gathering was perceived as wholly unconstitutional. The threat to liberty and the flagrant waste of money on ill-advised military adventures hardened parliamentary opinion against Charles. The king seemed to be augmenting his wealth at the expense of freedom.[7]Parliament challenged the constitutional validity of the taxes and the judge, unsurprisingly, found in favour of the King. In reaction to this Milton wrote, ‘Grant him this, and the Parliament hath no more freedom if it snapped in his noose, which when he pleased to draw together with one twitch of with Negative, shall throttle a whole nation.’[8] Lawyer and parliamentarian John Pym believed that Charles’s policies in Church and state were the result of a Catholic conspiracy to subvert the religion and liberties of England.[9]
The attempts at taxation came in conjunction with Charles’s leading prelate William Laud’s attempts to re-traditionalise the church, seeing him advocate for opulent services, with sacraments, choirs and organ music as well as candles and gold and silver communion tables.[10] This cut directly against the puritanism of parliament. Charles’s marriage to French Catholic, Henrietta Maria as well as the make-up of his courtiers who, although not Catholic, were ‘apishly Romanising’ deeply concerned parliament.[11] Parliament sought to purge Catholics and those with catholic sympathies from the King and Queen’s court and specifically wanted ‘to appoint a well-affected person to teach the Prince of Wales matters of religion and liberty so there wouldn't be a repeat of his father's antics’.[12]
All of this came to a head with the passing of Pym’s ‘The Grand Remonstrance’[13] a document that outlined all of parliament's grievances with the King. This document became a manifesto for constitutional revolution and the possibility of armed revolt.[14] It is clear from this brief summation that Milton was living in a time of large-scale change. He concerned himself with matters of the court and had a deep and nuanced perspective to contribute to the national conversation around liberty and sovereignty and presented them in a forthright manner that nearly saw him executed.
In his most famed piece of writing, ‘Paradise Lost,’ Milton champions the idea of ‘individual liberty’. Rich in allegorical content this poem articulates the Miltonic view of personal freedom written to the backdrop of a spirit of revolution and an overbearing and almost all-powerful monarch. When looking to The Tenure of Kings and Magistrates, we see Milton’s impassioned defence of the regicide. It is in this political tract that the full display of his constitutional vision is on display. He wrestles with republicanism and how we are to understand what is meant by ‘popular sovereignty’. While in literary terms Milton is best known for Paradise Lost, it is The Tenure that cements him as a fearsome political and legal thinker around popular sovereignty and republicanism. An examination of extracts from Milton’s writings will illuminate his conceptualisation of both ‘individual liberty’ and ‘popular sovereignty’, looking at how these two central concepts of English jurisprudence bleed into one another and, are an ever-present feature and concern of constitutional scholars and lawmakers right the way up to modernity.
Milton is often appreciated for his contribution to free expression in England and beyond, particularly the United States.[15]Areopagitica, referred to by Dr John Rogers as “one of the English language's most powerful and rousing expression of the freedom of the press”[16] is a foundational text in constitutional development of freedom of speech. However, the importance of Milton in these other regards remains largely unobserved. In showing the importance of Milton not only as a literary giant but as a legal and philosophical one this piece will show how the legacy of John Milton is felt in our own time while seeking to provide a nuanced account of how his ideas were first developed in the backdrop of a uniquely turbulent time in English history.
Chapter 1
“All human conflict is ultimately theological”[17]
- Cardinal Henry Manning
Popular Sovereignty
Milton’s most important, constitutionally influential, and reputation building work is The Tenure of Kings and Magistrates.[18] This work cemented Milton as a key republican thinker and advanced the notion of popular sovereignty. Milton’s advocacy of republican governance stems from his belief in popular sovereignty as an expression of individual liberty. Milton’s main constitutional positions bleed into one another. Popular sovereignty incubates individual liberty, individual liberty affirms popular sovereignty.
Milton acknowledges this in his opening salvo to the piece, he also questions the English laity whom he says ‘generally give up their understanding’ to have ‘blind affection’ which subjects them to the ‘double tyranny of custom’. Tyranny is the operative word when Milton writes about the monarchy. It is very difficult to discern if Milton’s ire is for Charles I as a man or Charles I as a king. Once again, as so often with Milton, there are caveats to his positions “Milton does not dogmatically argue against kingship itself, leaving the constitutional question, of whether the office of the king is to be abolished or not, more or less open.”[19] Instead, he presents a justification for the removal of a monarch who has become tyrannical and absolute, presiding with a complete dereliction of duty. His heir Charles II is seen to be a moral bankrupt and unfit to rule himself. It is for this reason that Milton opposes the Monarchy at this time, but had the heir been of more benevolent character his position may have been different.
Milton seeks a cessation of tyranny and justifies a radical form of popular sovereignty to bring about this end. Yale Professor John Rodgers comments, “Milton wrote that it was the duty, not just the right, but the duty of a nation to rise up and dethrone, through execution, an unjust although legitimate King.”[20] While England of the time had a parliamentary system, it was a glorified advisory committee, and very much beholden to the whim of the monarch. The interregnum period, albeit unsuccessful, was the catalyst for modern constitutional monarchy.
Although Milton doesn't explicitly advocate for what would become constitutional monarchy, we do see the kindling for this style of governance. For example, he writes, “If I make a voluntary covenant, as with a man to do him good, and he prove afterward a monster to me, I should conceive a disobligment”.[21] In isolated analysis of this line, we see that this ’disobligment’ Milton speaks of could provide a number of remedies for the problem of a tyrannical monarch, yet later Milton goes on to invoke natural law as his chosen remedy writing, “They tell us that the law of nature justifies any man to defend himself, even against the king in person.”[22] While initially this may seem a crude and intellectually weak suggestion, Milton here is precise in his language choice. The ’they’ he is speaking of here is the episcopal church, who would advocate that man in his state of nature and according to the natural law has the right of self-preservation and is laced with the implication that ’they’ are not living in accordance with what they profess.
He writes with universal language when referencing the body-politic of England (primarily Presbyterians) creating a moral divide between the Episcopalians and courtiers, and the common Englishman. Milton comments “[how much right] hath the king of England to govern us tyrannically”.[23] In questioning the legitimacy of the King, Milton is implicitly advocating for a people governed by their consent, through a representative, who can be recalled at any time.
In customary Miltonic fashion the Tenure directs much of its ire towards the clergy, whom Milton largely holds in contempt. He refers to the Presbyterian clergy as “Ministers of Mammon instead of Christ”[24] who are deceiving through malice or cowardice the Presbyterian congregations who the Tenure was written to persuade. The fusion of church and state in England saw the established clergy work hand in glove to control and curtail the legislative agenda of parliament.
Furthermore, Milton once again invokes natural law augments in his writing. Almost immediately he writes “No man who knows aught can be so stupid to deny that all men naturally were born free, being the image and resemblance of God himself, and were, by privilege above all the creatures, born to command and not to obey.”[25] This line of inquiry inevitably leads to an exegesis of power, from whom it is given, to whom it is vested in and where it is initially derived. This is a direct challenge to the doctrine of the divine right of Kings, according to which saw the monarch appointed by God and having their power flow from him down the hierarchal ladder to the bottom. Milton inverts this, and presupposes a bottom-up structure of power, writing, “the power of kings and magistrates is nothing else but what is only derivative, transferred, and committed to them in trust from the people to the common good of them all, in whom the power yet remains fundamentally”.[26]
Quentin Skinner provides some insightful comments on what Milton was trying to convey, in his essay from the London Review of Books. He notes “We lose our standing as free persons… as soon as we subject ourselves to arbitrary power, the effect of which is to reduce us to vassalage and servitude.”[27] Ultimately at every juncture we are confronted with Milton’s thesis of the state of nature, namely every man being born free and in the likeness of God. Skinner goes on to note how “Kings prefer flatterers and time-servers, whereas in republics the most creative spirits can soar unchecked by any craven anxieties.”[28] Milton saw that greater leaders, in terms of effectiveness and creativity, rise up through a republican state as they are incentivised to do so, compared to a monarchical state in which the King is surrounded by sycophants and sophists. In his analysis Skinner touches on the relationship between sovereignty and liberty.
Yet while this observation may be true in the abstract, in Milton’s own time the natural conservatism of Cromwell and the puritan leadership constrained this from becoming a reality.[29] Cromwell would go on to become a king in all but name, Lord Protector, and operate much the same as before. Through this style of administration and the subsequent restoration period the footings of modern constitutional monarchy and the inner workings of English sovereignty were set in place.
Individual Liberty
Milton is truly famed for his poetics, his greatest work, Paradise Lost, is so dense and complex that it is inexhaustible. While it is not the focus of his poem, individual liberty is a key and persistent theme throughout. It would be foolish to propose a particular reading of Paradise Lost given it is such a dense work. However, the work is laced with sublime references and inquisition into the concept of individual liberty. The poem is a deeply reflective work that covers all aspects of Milton’s intellectual interests and pushes the boundaries of his intellectual capacity. The poem while not explicitly dealing with legal issues, does inadvertently however address ‘thick legal concepts’[30] through observations and critiques of politics, philosophy, theology and the quadrivium.
The epic was composed over several decades with the bulk of the writing taking place after the restoration. It is this fact that makes the work deeply reflective, as the now blinded Milton writes in exile surveying the failed English commonwealth. Milton’s commentary on the individual through this poem is readily available and has endured across English history, speaking into contemporary society. Before looking in greater detail at what Milton has to say about this issue, it is prudent to examine the context around which this piece was written.
Two key background components are the abolition of the Court of Star Chamber as well as the Licensing Order 1643.[31] Webber notes “the royal proclamation and order of the Star Chamber – which began as the king’s privy council sitting in a judicial capacity – constituted the primary weapons in the campaign against unlicensed and unlawful printing.”[32] it is said to have constituted “the most comprehensive regulation of the press of the entire Tudor and Stuart period.”[33] During the reign of Henry VIII, Cardinal Thomas Wolsey used his position as Lord Chancellor to clamp down on schismatic publications through the Star Chambers.
Wolsey’s deep unpopularity was a contributing factor in the English reformation. While the reformation fundamentally altered religious practice in England it also revealed a plurality of Christian denominationalism. The Star chambers continued to enforce licensing laws against those who printed non-conformist documents, among others. The Habeaus Corpus Act 1640[34] saw the abolition of the Court of Star Chamber. This was a welcome change for those of a similar temperament to Milton, and facilitated a flourishing print culture, however, in a time of transformational theological understanding there was further religious schism and inter-denominational disputes.
In an effort to combat writing they saw as ‘heretical’, parliament, made up primarily of Presbyterians, passed the Licensing Order of 1643. This legislation, officially termed ‘An Ordinance for the Regulating of Printing’, enacted pre-publication censorship and was passed with no opposition and seemingly even less debate. Following the Order, the Worshipful Company of Stationers and Newspaper Makers held enforcement powers and subjected printers, publishers and retailers of banned material to searches, confiscations, seizures and other punishments.[35] In dismantling the King’s method of censorship, parliament became uneasy with the deregulation they had unleashed and sought to remedy this. In doing this however, they replaced censorship by the courtiers with censorship by parliamentarians. This censorship, while different in kind, was substantially the same
The relative freedom of a period of unlicensed printing, and then the subsequent reversion to strict policing of publications saw a swirling in the minds of the English populous who mused on the idea of individual liberty. The relative freedom of a period of unlicensed printing, and then the subsequent reversion to strict policing of publications saw a swirling in the minds of the English populous who mused on the idea of individual liberty.
Additionally, it is right to spend time examining the pertinence of Milton’s muse, the Genesis creation story. In the 1640’s when Milton began to undertake the task of writing an epic to rival all epics he started with the Arthurian myth as his muse. This was quickly deemed to be insufficient for his needs, so Milton leant his hand to writing a play on the creation account titled Adam Unparadised. This ultimately culminated in Paradise Lost. In using the Genesis story Milton implicitly probes our understanding of natural law, and how liberty applies to it, looking at it through the lens of the idyllic man and then looking at the post Edenic man. This juxtaposition of pre and post fall, and further still the ramifications of this for individual liberty are what is of concern in this instance. In Milton’s time there was a prevalence to view the state of man as binary. Man was to be either wholly righteous or wholly debased. In using the Genesis account Milton gives himself the literary ability to probe this cultural Rubicon. In Paradise Lost therefore, Milton grapples with natural law concepts as they apply to individual liberty.
While integral to the Interregnum Milton cannot be categorised as an orthodox protestant.[36] This fact becomes clear when reading Paradise Lost. At risk of being a little reductive, one aspect that categorised 17th century Protestantism was their view of the natural state of man and the extent of man’s free will, or in this case liberty. Milton subscribes to a more Thomistic understanding of liberty and free will, thereby diverging from the contemporary understanding of these terms in the Lutheran and Calvinistic traditions.
Pertinently the reader is shown their temptation and fall, yet crucially man maintains that aspect of divinity that keeps them within the grace of God and redeemable. With Milton’s Adam, like the biblical Adam being created in the Imago Dei, man's capacity for good is maintained and therefore is not wholly debased by their nature. In writing man's ability to perform and exhibit goodness while acknowledging their fallen state Milton manages to synthesise two culturally competing views of man's natural state and his liberty within the state of man.
If man is to be in the Imago Dei, even outside of Eden, man is to possess some virtuous tendency mixed with their tendency for sin. It is from this thesis that Miltonic liberty emanates. Milton's exegesis postulates that man is close to God primarily because he is endowed with such divine qualities as reason and free will.[37] God has bestowed man their ability to reason, it is from this reasoning that liberty is enacted. By restricting man's ability to reason, man's exercise of liberty cannot be exhibited to its fullest. Thomas Aquinas writes that "Man is master of his own acts by reason and will: hence free will is said to be a function of will and reason"[38] Immediately before the fall Adam says to Eve “God left free the will, for what obeys reason is free”[39] We see from this that Milton is suggesting man has both positive and negative liberty.
Paradise Lost is filled with contrasting moments of brilliant light and absolute darkness; the luminescence of heaven and the shadows of hell.[40] Man walks the garden and then falls, but more famously the poem initially centres around Satan, the war of heaven and his subsequent dwelling in hell. Satan is widely regarded as the heroic figure of the poem. He is presented as an entity confronting a tyrannical God. In his rebellion Satan famously remarks “Better to reign in Hell, than serve in Heaven”[41] Milton here writes of a tyrannical and dictatorial leader embodied in Satan who has deviated from God’s plan and ensnared man in an unnatural state of sin. One of the allegorical interpretations of the character of Satan is as a stand in for Charles II, the son of the Regicide King, who returned to the throne and restored the British monarchy. Milton at this point was in exile, having only just escaped the death penalty, and had to veil his criticism in poetics rather than write in his traditionally polemical way.
It is hard to detach the theological arguments Milton is presenting from the constitutional ones. However, given the contextual background it is right to briefly note what the prevailing yet conflicting conceptions of free will were and how these understandings of this theological doctrine influence liberty on an individual level. Without going too far into the theological weeds, there are two principal views of free will and liberty. There is the idea of a predestination, forwarded by Calvin in his Institutes of the Christian Religion that suggests God in his sovereignty controls all activity and therefore who will be saved is a predetermined affair. Then there is the converse forwarded by Jacobus Arminius that suggests God's grace is “sufficient for salvation, but not efficient for salvation.”[42] Obviously therefore, theological perspective here bleeds into their view of individual liberty. Milton is clearly in the latter camp as he has God say in the poem “I have made him just and right/ sufficient to have stood, though free to fall”[43]
Central to Paradise Lost is free will theology and the contemporary discussion thereof.[44] Milton shows the problems and pitfalls of a will too free in Satan and identifies it as a gift too good for humanity in Adam and Eve:
Such I created all th' Ethereal Powers
And Spirits, both them who stood and them who faild;
Freely they stood who stood, and fell who fell.
Not free, what proof could they have givn sincere
Of true allegiance, constant Faith or Love,[45]
What however is clear from the poem is Milton’s Arminianism, also expressed in De Doctrina Christiana. Having established the Miltonic understanding of free will, and further, through his understanding of free will, we see how he views individual liberty. Individual liberty is not addressed explicitly in the poem but more in the abstract. He examines liberty therefore in the abstract without applying it to a working model as he does in his pamphlets. This abstraction allows Milton to view individual liberty in its fullest expression. Early In Book I, Satan says "The mind is its own place, and in itself / Can make a Heaven of Hell, a Hell of Heaven."[46] Here the reader sees that liberty has two edges, we have the liberty that edifies and the liberty of licentiousness (embodied by Satan). One must make clear at this stage that Miltonic liberty is not license, but Milton does acknowledge that the morally deficient aspect of man's character is a necessary component of being able to wield liberty.
Conclusion
Writer/historian Hilarie Belloc distilled his claim further writing "that all wars and revolutions, and all decisive struggles between parties of men arise from a difference in moral and transcendental doctrine"[47] It is impossible to view English jurisprudence without looking at the religious claims of the culture and those who were tasked with making and influencing the law-making process. Constitutionally speaking the theological question of the 17th century was put to bed by the act of settlement.[48] This act ensured protestant succession to the crown of England and Ireland, with an additional act in 1707 for the Scottish crown.[49] Additionally, this act enacted provisions to disinherit Catholics from the throne as well as a bar on the sovereign marrying a Catholic which would result in disqualification from inheriting the throne.
Milton has had an underappreciated and largely unacknowledged impact on English constitutional development. As shown his republicanism wasn't as fervent as many of his contemporaries yet came from a place of true theological conviction. The Tenure, while speaking to the ideal, acknowledges practicality and relative utility of monarchy. It leaves scope for a monarchical figure and is possibly one of the earliest understandings of our modern constitutional monarchy. Furthermore, Paradise Lost speaks to the conflict between sovereignty and liberty, it is a poem that grapples with these two concepts, stretching them to their limits and fully testing and investigating them. Popular sovereignty, individual liberty, and freedom of speech are the cardinal virtues upon which the laws of England are built upon. Milton speaks to them all, and his voice reaches out to us through history with something profound to tell us.
Chapter 2
“For out of old earth comes new corn, and so from old books springs new learning.”[50]
- Geoffrey Chaucer
Introduction
Prior to the Interregnum, there was a set of established principles, both legal and political centring around the monarchy and the church. Or more accurately perhaps, the constitutional role that these two establishments have within English constitutionalism and how they hold and administer this role. During this period these claims were shaken to their foundations, morphing and germinating into the sprouting's of contemporary English constitutionalism. Milton’s poetry and prose conflicted with his contemporary's, most obviously with the orthodoxy of his age, but even within the republican circles in which he moved. Following the restoration therefore we see the legacy of all this thinking in our own constitutional monarchy, running right up to the contemporary age.
The build up to the interregnum saw Milton the polemist write argument and counter argument to the legal, political and philosophical wind of the day. Milton sets requirements for those who can enjoy freedom in its fullest writing that ‘none can love freedom heartily but good men’,[51] this is something later mirrored in the American declaration of independence.[52] From the off, Milton confers liberty with being the pursuit of the morally upright saying that ‘the rest love not freedom but licence.’[53]
Out of this statement that notes the difference between liberty and licentiousness, Milton deduces that ‘[license] never hath more scope or more indulgence than under tyrants.’[54] It is the tyranny of Charles I, as Milton sees it, that is the justification for his execution. Removing a tyrannous leader in Milton’s eyes allows ‘good men’ to fully enjoy the fruits of liberty. The Miltonic mind is seen both covertly and overtly throughout the seminal and influential English constitutional works. Using the themes of his work as outlined above, this chapter will show Milton’s hand observably at play throughout English history. Going century by century, looking at works by epoch defining jurists and scholars will show how they too are captivated by the concerns of Milton, and use his writing in their observation of and advocacy for the English constitution.
The prescience of Milton in contemporary study is understated due to the lamentable fact he is out of vogue.[55] Crucially however a full-bodied public-school education, of which all legal scholars and practitioners were party to, included if not the full corpus of Milton’s work certainly a large extent.[56] His writings are so significant that he is second only to Shakespeare, and it is for this reason that he is understudied.[57] His influence is still felt yet unseen. Burke wrote commentaries on Milton and clearly was captivated by revolutionary writing.[58] Likewise, Blackstone who although didn’t speak to Milton directly is clearly writing in and for the English cultural imagination Milton curated a century prior.
Popular Sovereignty in; The 18th Century
Edmund Burke, Reflections on the Revolution in France
The rally cry of the French revolution, Liberté, Egalité, Fraternité holds within itself ideals of individual liberty and popular sovereignty. Perhaps no international event has caused such a domestic level of self-reflection in Britian. The French revolution reignited the discussion around sovereignty, this time in a different form than in the century prior. Anglo-Irish statesman Edmund Burke unpacks how the construction of liberty is directly correlated to one's relationality to the sovereign, a relationship that is not abstract or metaphysical but rather built on the strong foundations of tradition and heraldry. Notably he writes;
From the Magna Carta to the Declaration of Right, it has been the uniform policy of our constitution to claim and assert our liberties, as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity; as an estate specially belonging to the people of this kingdom without any reference whatever to any other more general or prior right.[59]
This heraldry of rights is explicitly Miltonic. Consider this extract from Milton’s Areopagitica and note the comparable tone and affect he brings to the use of language;
Nor can we sufficiently admire the singular favor of Providence in raising up, from among our English nobility and gentry, men of such wisdom and courage as have enabled them to stem the tide of arbitrary power.[60]
Milton here is clearly speaking to the same ‘deep Englishman’ that Burke contrasts to the Frenchman. Noting the heraldry of rights the Englishman has claim over. Milton acknowledges the shaping of the English rights and the inherited changes to sovereign power. Burke notes the uniqueness of the English view of sovereignty and is correct in the fact that English sovereignty and English rights have been won through historic dealings and remain uncodified, thereby only truly existing through inheritance. Crucially what both writers share is their understanding of the Christian religion, its place in English constitutionalism, and how this metaphysic shapes one's view of sovereignty. While Burke contradicts himself when commenting that there is ‘no reference to a general or prior right’.[61] While it is true in the sense that there is no tangible, codified general right Burke writes at length at the necessity and utility of religion;
We know, and what is better, we feel inwardly, that religion is the basis of civil society and the source of all good and of all comfort... We know, and it is our pride to know, that man is by his constitution a religious animal; that atheism is against, not only our reason, but our instincts; and that it cannot prevail long[62]
Burke, speaks to the same religious condition Milton asserts is the overarching metaphysic of England. The place (namely God) where ultimate sovereignty emanates;
No man who knows ought, can be so stupid to deny that all men naturally were borne free, being the image and resemblance of God himself, and were by privilege above all the creatures, born to command and not to obey: and that they liv'd so... They agreed by common league to bind each other from mutual injury, and joyntly to defend themselves against any that gave disturbance or opposition to such agreement. Hence came Citties, Townes and Common-wealths.[63]
The two seemingly contradictory notes, that sovereignty is an inherited tradition, and that the vestment of sovereignty is abstract, are reconciled through the religiosity of both men. For Burke, as it was for Milton, sovereignty comes from God. It is entrusted to a monarch by a religious people. It could be suggested that Milton is erring towards social contract theory in this statement, but it seems evident that sovereignty for him is deeper than merely relational. The writings of Burke clearly show the difference between the Anglo and the continental perspectives of sovereignty. On the continent, sovereignty was birthed from enlightenment principles. Yet in England sovereignty was traced through a personal linage and the English expression of Christian thought.
The turbulence of the 17th and 18th century stretched the English constitution to its limit. Following the ousting of Charles I the entire polity could not withstand the factionalised and rudderless vacuum of an alien republican governance.[64] Cromwell struggled to establish legitimacy as he was not buoyed by precedent and the flummery of kingship. England is the only European nation to overturn a revolution, to revert back to the previous order. Burke was prophetic in his writings observing the danger and instability which revolution brought to both popular sovereignty and individual liberty. Since the French revolution modern France has been through nine constitutions in almost 225 years in schizophrenically different forms, Republic, Monarchy, Empire.[65]
The 19th Century
A.V. Dicey, Introduction to the Study of the Law of the Constitution
Historian Conrad Russell writes that the parliament of Milton and the Civil War period was ‘an event not an institution’.[66] For the reasons Burke established the protectorate was built upon sand, the legal footing was transient and ultimately toppled under its own weight. However, it was Victorian jurist A. V. Dicey who sought ‘to give to the amorphous common law constitutional tradition an analytical structure that allows rational inquiry into the character and value of that tradition’.[67] He wrote at length on the nature of sovereignty, supremacy of parliament and the relationship between the electorate and the monarch. For Dicey this doctrine of supremacy is the ‘keystone’ of English constitutionalism.[68]
Before unpacking how Dicey speaks to the same concerns of Milton it is pertinent to establish what Dicey understands sovereignty to be in an English context and the vestiture of sovereignty in parliament, he writes;
“The principle of parliamentary sovereignty means neither more no less than this... that parliament has, under the English constitution the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override the legislation of parliament”[69]
The supremacy of parliament only works through the fact that every Englishman is active in parliament either in person or by representation. When Dicey speaks to the supremacy of parliament he does not mean the supremacy of the commons. What is supreme is the tripartite bodies Crown, Lords, Commons. Carried through English and British history is that idea that one is bound by law because one has participated in the making of it. There was no need for the 17th century parliamentarians to take back control because they already possessed it. As Milton argues it is the King who is radical, it is the King who was not honouring his role as the crown in parliament. Subsequent English constitutional episodes were not a tearing down of the constitution as it was in France, Germany, Italy, and Spain. Groups wanted to become part of the constitution. The Suffragettes by example didn't want to tear down parliament, instead they want the right to vote and sit in parliament. The Chartist and Trade Union movements do not want to destroy the constitution, contrarily they wanted a place in the panoply of state.
Dicey goes on to note how parliament ‘intended to secure the ultimate supremacy of the electorate as the true political sovereign of the state; that the validity of constitutional maxims is subordinate and subservient to the fundamental principle of popular sovereignty.’[70] This ‘fundamental principle’ of which he writes is deeply Miltonic. As Milton writes in the Tenure, parliament has asserted popular sovereignty over the wayward King. It was not Parliament that was revolutionary in the 17th century but Charles I, his deposition was a fulfilment of the rights afforded to the English at Magna Carta, an assertion of popular sovereignty that would go on to be codified in Bill of Rights 1689.[71]
The 20th Century
Vernon Bogdanor, The British Constitution in the Twentieth Century
From the perspective of sovereignty, the 20th century brought with it much change. The British state went from the administration of Empire to political and economic malady that characterised much of the mid-century. Bogdanor notes how the Parliament Act 1911, the Representation of the People Act 1918 and the Anglo-Irish Treaty 1921 allowed ‘representative government to be identified with supremacy of the Commons.’[72] While at the start of the century the popular sovereignty wielded by parliament was almost Miltonic by the end of the century ‘the absolute sovereignty of Parliament, idealised by Blackstone and Dicey... had been much reduced.’[73]
A mixture of factors contributed to this shift in the expression of popular sovereignty, increased European integration combined with the number of, as voiced by Lord Hailsham, ‘elective dictatorships’[74] that vested greater power in the executive branch of government. This led to the assertion that ‘The absolute sovereignty of Parliament looks more and more mythical’[75] In Jackson v HM Attorney General[76] Law Lords showed their willingness to dispute a constitutional orthodoxy which ’for centuries [has] been accepted by judges ... in the operation of our constitutional system.’[77] Both Lord Steyn and Lord Hope voiced the view that ’parliamentary sovereignty was created by the common law.’[78] Lord Bingham disputed this saying that Parliamentary sovereignty is the ‘Bedrock of the British Constitution.’[79]
The increased deference to and bearing of the European Community upon British politics saw ‘authority pass increasingly to European institutions,’[80] for many this undermined parliamentary sovereignty and made the old expression of popular sovereignty through representation increasingly redundant. Combine this with the actions domestically ’the rise of the referendum, for instance in the advent of devolution, set up sources and sites of power that appeared to challenge a theory of concentration of authority in a sovereign Parliament.’[81] Reflecting on this period Richard Gordon QC observes a ‘shift in practice from parliamentary sovereignty to executive sovereignty.’[82]
However, it was precisely the doctrine of Parliamentary sovereignty that made so much change possible.[83] While it is true that both the executive and European institutions saw a growth in power and influence throughout the 20th century, parliament remained and still remains supreme. ‘From the point of view of a legislator, legally unlimited, the Constitution is perpetually a blank canvas upon which it can inscribe its will.’[84] With this in mind, the voters of Britain can, through petition in Parliament, expand or row back on any and all laws of parliament. The executive and the judiciary are subject at any point to constraints placed upon them by parliament. If the public so voted for, a parliament comprised of republicans could vote to abolish the monarchy and this would be wholly legitimate and congruent with popular Parliamentary sovereignty.
Parliamentary sovereignty endured for four hundred years following the civil war, yet the 20th century presented new challenges for the British polity. Bogdanor comments that the ‘the Constitution seems to have been refashioned in a self-conscious and deliberate way to meet knew exigencies.’[85] Increased globalisation, the desire for free trade, and an executive branch with an ever-increasing remit and powers hindered parliament’s capacity to hold the executive accountable, the complete antithesis of Milton’s parliamentary vision. Bogdanor goes on, writing ‘The last quarter of the 20th century saw the growth of judicial review as the judges came to lose confidence in Parliament's ability to control the executive.’[86] The power of the judiciary which, at the time, sat in the House of Lords was an expression of parliamentary sovereignty. One of the functions of the upper chamber is to pressure the executive who sit and set the agenda in the Commons. While the court sat in the Lords, parliamentary sovereignty was and remained supreme. The place and position of Parliamentary supremacy as the expression of popular sovereignty, originally voiced and conceived by Milton, albeit changed, weathered even the tempest of the 20th century.
Individual Liberty in; The 18th Century
William Blackstone, Commentaries on the Law’s of England
Individual liberty was at the forefront of the public consciousness in the 18th century, especially given the difficulties with the American colonies. British Jurist and legal scholar William Blackstone wrote his four volume Commentaries on the Laws of England, with volume one centring on the ‘rights of persons’.[87] His commentaries were a commercial success, but even more importantly they were one of the foundational texts of the American legal tradition and are often still quoted in American court proceedings today.[88] Blackstone articulated the comprehensive rights of Englishmen in a way none before him had done up to that point and it was these individual liberties the American statesman aimed to emulate.[89] Of crucial note for present discussion ‘before he reached the age of seven, William Blackstone had read the entire Bible, [and] all the works of Milton.’[90]
Blackstone's ‘Rights of persons’ can be summarised as “Statutory as well as common law guarantees [to] the sanctity of an Englishman's life, liberty and property.”[91] Speaking to the liberty that the common law affords the Englishman, Blackstone writes "Every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish."[92] In the character of Satan Paradise Lost tackles what happens when ‘man gives up a part of his natural liberty.’[93]
Milton’s Satan embodies what it means to be as removed as possible from a state of natural liberty. A slave to license and impulse, while Milton’s Satan appears free his attempts to upend the natural law leave him dwelling in a ‘darkness visible’[94] deep in the bowels of hell. Satan in the poem is unwilling to give up ’part of his natural liberty’ and ’conform’ so is consequently banished by God. We see that Satan fails to fulfil the criteria of Blackstone’s perennial Englishman. In book five of the poem, the archangel Raphael remarks "Not free, what proof could they have given sincere Of true allegiance, constant faith or love? Where only what they needs must do appeared, Not what they would?"[95] Here Raphael investigates what true allegiance and loyalty are. Blackstone’s commentaries look at an Englishman‘s ‘obligations‘ under the constitution. Those obligations are ’conformity to the law’ in accordance with the wider community. Raphael instructs Adam that true allegiance emerges from the heart's sincere choice rather than from external compulsion.[96]
The Petition of Right[97] which was a parliamentary declaration of the liberties of the people, assented to by King Charles I, was the first step in a raft of enhancements to the individual liberty of Englishmen. The Bill of Rights would go on to state ‘all and singular the rights and liberties asserted [are] the true, ancient and indubitable rights of the people of this Kingdom.’[98] Blackstone's Commentaries manage to synthesise Milton‘s observations around an individual liberty that is at once a ’birthright’ and an ’inheritance’ while being distinctively English. In his closing remarks Blackstone refers to French jurist Montesquieu who surmised that England is the only nation in the world where political or civil liberty is the direct end of its constitution.[99] In his closing salvo to Commentaries Blackstone ‘harmonises [his] noisiest concept, liberty.’[100] ‘The protection of THE LIBERTY OF BRITAIN’ He writes in all caps ‘is a duty which they owe to themselves, who enjoy it; to their ancestors, who transmitted it down; and to their posterity, who will claim at their hands this, the best birthright, and noblest inheritance of mankind.’[101]
When evaluating the English liberties, which he refers to as ‘our birthright’[102] Blackstone parallels Raphael stating ’for all of us have in it our choice to do everything that a good man would desire to do; And restrained from nothing. But what would be pernicious either to ourselves or our fellow citizens.’[103] True allegiance therefore is to the state, not the personhood of the King, the allegiance one swears to the King is the King as sovereign not the King as man. Milton is clear that when the King as man and the King as sovereign come int conflict the English man is bestowed in his very nature with the liberty to rescind his allegiance. Milton notes how it was Charle’s deviation from these liberties, uncodified though they may have been at the time, that ultimately cost him his life. Milton writes and describes these ‘indubitable’ rights constantly through his corpus, leaving clues to the ‘ancient liberties’ that would be explicated by future scholars. Blackstone acknowledges the early scholarship of Milton and his lasting contribution to jurisprudence in this area noting ‘there are few who have never been moved by reflecting on the growth of English Liberty, which finds splendid voice in the prose of Milton[104]
The 19th Century
John Stuart Mill, On Liberty
Milton says free speech ‘is the pretious life-blood of a master spirit.’[105] It is the cardinal individual freedom for him, specifically the freedom of the contrarian, non-conformist writer. ‘Milton celebrates the rights of the individual, and particularly of the individual author whose book, although legitimately subject to condemnation or praise after its publication, should never be the subject of preventive censorship’[106] Mill’s On liberty is also intimately concerned with freedom of opinion and of speech. Mill terms the suppression and silencing of expression a ’peculiar evil’[107] equating it to a robbery of both existing generations and posterity. Milton and Mill coalesce around the airing of unorthodox, dangerous heretical writings, be that religious heresy or socio-cultural. Mill explains why the liberty to express opinion and perhaps more pertinently the liberty to hear such speech is so conducive to a flourishing society surmising, ‘If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.’[108] This parallels Milton in Areopragitica where he writes ‘herein the [use] of bad books, that they to a discreet and judicious reader serve in many respects to discover, to confute, to forewarn, and to illustrate.’[109]
Originally expressed by Milton and reaffirmed by Mill over 200 years later, both authors write about the power of individual liberty to better society wholesale. Man’s personal freedom is intrinsically linked to how strong a given society can become, materially and culturally. Milton says liberty ‘cannot be suppressed without the fall of learning.’[110] While Mill extends this further in noting ‘it is only the cultivation of individuality which produces, or can produce, well developed human beings.’[111] The individual liberty of man allows him to become ’well developed’ and knowledgeable. In turn this allows one to participate fully in the political system.
As the epigraph from Cardinal Manning that begins Chapter One speaks of ultimate theological conflict, Mill writes of ‘the Calvinistic theory’ in similar terms to Milton. For Calvinists Mill says, ‘the one great offence of man is self-will.’[112] Both Milton and Mill’s aversion to Calvinism, the dominant Christian doctrine in England, is where their conceptions of liberty converge. They approach individual liberty from different perspectives, Milton being a non-denominational/non-conformist Christian and Mill an agnostic sceptic, yet equally their view of man as rational, and possessing a free will that places him as the author of his decision making. Mill makes shortchange of this view of man's free will and liberty calling it a ‘narrow theory of life’[113]
A sensitive subject with respect to any treatise on liberty is always the question of what limits are to be placed on the liberty that is being extolled.[114] Milton’s liberty of speech is far from absolute; while broadly calling for toleration, his toleration has hard limits. Milton’s tolerationist vision did not extend to Catholics. Catholicism could not be tolerated because of its absolutism, its perceived anti-scripturalism, and its basic incompatibility with “civill supremacies”, or national sovereignty.[115] However, Milton was quick to highlight the need for religious toleration against the Anglican orthodoxy, both Mill and Milton recognise that ‘Civil and religious liberty generally go hand in hand’[116] While this may seem somewhat contradictory, one must recognise that this non-conformist religious toleration would have been a radically liberal proposition even to the protestant Presbyterians in Parliament.
The 20th Century
Friedrich Hayek, The Constitution of Liberty
Hayek as a thinker is predominately associated with economic theory, his work is chosen therefore to reflect the shift towards globalisation and economic liberalism that took place following the war years. This being said, his writings on liberal theory broadly have much to offer this discussion. Early in his writing Hayek acknowledges the contribution to liberal thought of Milton stating, ‘The classical argument for tolerance formulated by John Milton... restated by John Stuart Mill.’[117]
Interestingly Hayek critiques the Liberal thought leaders, who often weighted freedom of speech greater than other individual freedoms, writing ‘To extol the value of intellectual liberty at the expense of the value of the liberty of doing things would be like treating the crowning part of an edifice as the whole’.[118] Hayek is suggesting that there should not be one aspect of liberty that trumps the greater whole. He suggests that the liberty to engage in an activity, specifically referencing business and the free market, is at parity with the ability to speak, write and research without restriction. He goes on; ‘we so often forget today that intellectual freedom rests on a much wider foundation of freedom and cannot exist without it’.[119] Hayek’s assessment is that the legal apparatus operating as an enforcer preserves and protects hard fought individual liberties. What this view misses, however, is the difference between English and continental understandings of law and liberty. This view of individual liberty is more continental in nature, a system conventionally operating on prohibitive assumption. Whereas the English tradition operates on the permissive assumption, one assumes they can do x or y until the law explicitly prohibits it. This at its core is English liberty. Hayek forwards the necessity of codification of individual liberty using the law commenting ‘It is often not recognized that general and equal laws provide the most effective protection against infringement of individual liberty.’[120]
The post-war consensus that emerged following armistice in the 20th century saw a desire for greater European integration. Along with this integration came the development of the European Convention on Human Rights (ECHR), an international treaty Britain became a signatory of in 1951. The ECHR emerged from the United Nations 1948 Universal Declaration of Human Rights (UDHR) that immediately followed WWII. This was done with the aim of assuring the individual and civil liberties of all member states and their constituents.[121] Tony Smythe comments that the UDHR encapsulated a standard of rights far more coherently than an abstract tradition of liberty ambiguously outlined in the British constitution.[122] Yet these emerging rights were seldom actualised, Moores notes how ’through the 1950s the idea that an individual might be able to petition the European Court seemed unfeasible.’[123]
However, this codification of individual liberty in this way has been a momentous event. Liberty of speech was assessed to be so vital, so fundamental an individual liberty, it is included in the preamble to the UDHR and is in Article 5 of the ECHR, this is an explicit acknowledgement of the Miltonic observation almost four hundred years prior that liberty of speech and conscience is the stream from which all rivers of liberty flow. Moreover, it increasingly became apparent that these emerging 20th century rights may be used for government scrutiny,[124] a method to enforce popular sovereignty of a Miltonic vision. These liberal innovations can be traced back to, as Hayek himself writes, one of the ‘founders of liberal political thought, Milton.’[125]
Conclusion
The subsequent three centuries that have passed since the English Civil War, Interregnum and Restoration have seen drastic constitutional change. This chapter has aimed to prove Milton’s enduring influence upon English constitutional development. His writings, explicitly and at times more implicitly, are direct contributors to the generation of legal/philosophical thought in the areas of popular sovereignty and individual liberty. Milton’s writings, his intellectual capacity and radical spirit have demonstrably contributed far more than even he could have perceived or hoped for. Constitutional reforms have been brought about through a piecemeal process that continues to this day. The differing nature of the uncodified British constitution compared to the far more common codified constitutions are that, in being uncodified, the constitution is a flowing river. To codify a constitution is to create a stagnant body of water. We see in the American context the struggle to amend the constitution, to get water to run uphill, yet in the British context, as this chapter seeks to demonstrate, the constitutional river can, in part, be traced back to a distinctly Miltonic source.
Chapter 3
“Milton thou shouldst be living at this hour: England hath need of thee!”[126]
- William Wordsworth
Introduction
This Chapter will examine how the ideas and concepts underpinning Milton’s writing influenced the constitutional reforms of the New Labour government in the early 21st century. It will look at the changing role and position of the Prime Minister, noting the ramifications upon sovereignty this has had, then move through three of the seminal statutory reforms showing clearly how popular sovereignty and individual liberty were at the forefront of these changes. Crucially, this chapter will situate Milton, or more accurately the Miltonic ideas around these legal/political concepts as large contributors to their development. As seen so far, Milton’s writing has been influential upon English law throughout history, his radical ideas for transformation of liberty and sovereignty as will be elucidated are contained within the New Labour reforms.
Primus Inter Pares
The conventional understanding of the office of the Prime Minster is that they operate primus inter pares (first among equals). Victorian journalist Walter Bagehot elucidated the workings of cabinet and the relationship between the Prime Minister, the cabinet and the monarch noting the historic nature of this remit of power.[127] Yet as the 20th century progressed the extent to which this remained true was brought into question. Members of Parliament John Mackintosh and Richard Crossman wrote about this change in the mid to late 20th century. In his book The British Cabinet Mackintosh comments upon the ‘diminishing role of the cabinet’[128] in policy direction and the ‘tendency towards centralisation’[129] of the party and party apparatchiks around one individual. Equally Crossman observes the ‘presidentialisation’ of the office in his introduction to an updated version of Bagehot's The English Constitution.[130] This monumentally challenges the nature of sovereignty in Britian, tacitly undermining the monarch and elevating the Prime Minister to a pseudo-monarchical, pseudo-presidential position.
In the 1982 Falkland’s Victory Parade, it was Thatcher, not the Queen who received the salute from the troops. This departure from precedent is far from trivial and was so culturally poignant that it has been dramatised recently in Netflix’s The Crown series.[131] Receiving the salute is the embodiment of allegiance, the true head of state is the one who receives the salute and in whom sovereignty is vested. In America and France for example this is the president. The tensions between the Prime Minister and the Queen were so public and overt that they posed a very real threat to the position of the sovereign and where sovereignty was/is vested. Irrespective of who the Prime Minister is, their role embodies the representation of the people, this challenge to the Queen and analogous challenges show the Prime Minister flexing a popular sovereignty directly flowing from a Miltonic vein.
The relationship between the Monarch and the Prime Minster can often be strained, yet a straining of relationships is not the same as a direct challenge over sovereignty. Margaret Thatcher often presented such a challenge however. Her headstrong and forthright approach to leadership, backed by a sovereignty vested in electoral legitimacy and public mandate, afforded her the political capital to challenge the Queen in this way. Throughout her premiership, particularly during the Falkland’s war, Thatcher adopted a presidential style of administration.[132] She, as Blair would come to be, was enamoured with America and notably had a great friendship with President Reagan. The influence of Reagan personally as well as the American system upon her cannot be understated and facilitated the beginning of a departure from British cabinet governance in favour of the alien, American presidential style.
None exemplified this presidential air more acutely than Tony Blair. His actions both domestically and abroad served to reinforce this presidential approach. At home Blair took to centralising the Cabinet Office co-ordinating all ministerial activity through a centralised base overseen with attentive eye by his Chief-of-staff Jonathan Powell and press Secretary Alistair Campbell.[133] Developing the Downing Street Delivery Unit to synergise all the respective arms of government.[134] One observer noted that 'all the power of the British state has drained into the small office in downing Street... When the government is in difficulty it is the PM who stakes his personal authority on the matter.' [135] Blair used his 179-seat majority in 1997 to fulfil his substantial domestic policy agenda with an overriding nonchalance and assurity that rivalled the absolute monarchy of old. Blair’s monarchical attitude towards his position in parliament is borne out in his voting statistics, as the Guardian reported at the time, Blair had the worst voting record of all 20 cabinet ministers at just 5% in 2000.[136] Going on to comment this fact ‘shows that the prime minister is indifferent about the workings of parliament.’[137]
During his premiership Blair was often criticised for his closeness to American president George Bush. He embraced the foreign policy remit of the American president and sought to spearhead this area of administration in a way not usually seen in a Prime Minister,[138] operating with the aura of a head of state and emulating the statehood with which the Presidency of America is imbibed with. Blair’s American sympathies, and affinity with the presidential system come from a latent Republican spirit, directly impacted and influenced by the founding fathers of America.[139] As expounded previously, the founding fathers were deeply moved by the writings of Milton, how he views popular sovereignty and individual liberty. By proxy therefore, in adopting a presidential aesthetic, Blair’s actions as Prime Minister, both tacit and explicit, altered the position of popular sovereignty in Britian unlike any other in the previous four hundred years. Professor Rhodes notes how, after Blair, ‘parliamentary sovereignty and the Westminster constitution live on as emblems of a past age.’[140]
New Labour, New Danger
Under the title of A Modern Democracy Labour’s 1992 manifesto said: ‘Central to Labour’s purpose in government is our commitment to radical constitutional reform.’[141] Constitutionally speaking, no movement has had a more radical impact since the civil war than the New Labour period. The Blair government used a raft of statutory instruments to change the workings of both parliament and the constitution. Specifically, the Constitutional Reform Act 2005[142] (CRA), House of Lords Act 1999[143] (HLA), and the Human Rights Act 1998[144] (HRA). These three pieces of legislation have had an enduring impact upon the relationship between the concepts of popular sovereignty and individual liberty, and more profoundly the relationship between these two concepts and the British subjects.
An internal Labour Party policy document titled - A New Agenda for Democracy: Labour’s Proposals for Constitutional Reform,[145] notes how the reforming aims of the New Labour movement sought to embolden popular sovereignty and individual liberty in tandem, stating;
‘Our aim is to create a revitalised democracy which protects the fundamental rights of the citizen from the abuse of power, which proposes the substantial devolution of central government authority, and which insists that the legitimacy of government rests on its being both open and accountable to the people it serves’[146]
Described as ‘the high point of Labour’s constitutional ambitions’[147] it purported a ‘commitment to pluralism and to an explicit system of checks and balances.’[148] This extract can be read as a modernised and more refined refraction of the ambitions of the Interregnum period and the aims of the parliamentarians during the civil war.
Lords Reform
While Paradise Lost deals with Milton’s view of popular sovereignty writ large, it is his more minor tracts and pamphlets that explicitly place designs on reform to the organs of government. Asserting the aims of Paradise Lost Irish theologian/philosopher John Toland opines the ‘chief design of paradise lost was to display the different Effects of Liberty and Tyranny’[149] yet it is in the early prose, Of Reformation and The Reason of Church-Government, for example that one finds a template of reforms applicable to Parliament’s upper chamber that was so intimately ingratiated with the established churches of England.
Milton’s constitutional agenda advocates for what he terms a ’Grand Council’, composed of life members and appointed by ’well affected people’ in the event of vacancy.[150] He was deeply taken with Roman models of governance, particularly the Senate. This formed the basis of his view of Commonwealth government. He critiques the Lord's writing ‘I doubt not but all ingenuous and knowing men will easily agree with me, that a free Commonwealth without single person or house of lords is by far the best government, if it can be had.’[151] Milton is quite clear in his assessment here, that the Lords must be removed. His critique is one of sovereignty, Milton’s issue seems to be that sovereignty should be ‘not transferred, but delegated only.’[152] The House of Lords in being un-elected and unaccountable possess a transferal of sovereignty rather than a delegation. However, Milton goes on to propose a solution to this issue writing that the Grand Council ‘must elect, as they have already out of their own number and others, a Council of State.’[153] This is a proto-appointment process.
Notably Milton, along with other Puritans and Independents, sought to abolish bishops and other associated episcopal trappings.[154] By proxy therefore this is advocating for wholesale Lords reform, as the relationship between church and state in this time was far greater than contemporary society. Bishops sat in the House of Lords in Milton’s time, and they still do today as Lords Spiritual, however in his time, they commanded much greater power and influence. The link between 17th century church governance and governance of society corporately is undeniable. By advocating for reform of church governance Milton is actively seeking reform to the makeup of the house of Lords.
Compare this to the raft of New Labour reforms as set out in their 1997 manifesto. For Blair et al, it was not the Lords Spiritual that needed reform but the Lords Temporal. The manifesto asserts, ‘The rights of the hereditary peers to sit and vote in the House of Lords will be ended by statute’[155] with the ultimate aim that ‘over time... life peers [will] more accurately reflect the proportion of votes cast at the previous general election’[156] Contemporarily speaking this has seen the removal of all but 92 hereditary peers, who are elected from within their own numbers. The rest of the Upper Chamber is comprised of life peers who are appointed on recommendation of the Prime Minister. In the view of some, this has consequently ‘enhance[d] the legitimacy of the Upper House sufficiently to encourage them to make increasing use of their powers’[157]
The chief similarity between the HLA and the Miltonic second chamber is the recognition of the need to ensure the supremacy of the Commons. Peter Raina notes that ‘a fully directly elected second chamber would inevitably have a significant impact on the relationship between the two Houses.’[158] In having an appointments procedure, with life office terms we see this delegation of sovereignty that Milton speaks to.
Referring once again to Cardinal Manning, one cannot separate the theological conflict of the 17th century and the spirit of reform in Milton's writings. So, while Milton’s reforms to the Lords are materially different in nature to the New Labour platform, they share the same sentimental tone. Both Milton and New Labour sought to expand the political franchise by enhancing the popular sovereignty of the British peoples, they saw, for different reasons, that a re-ordering of the organs of state would bring about this agenda.
Supreme Court
In his later political tracts Milton asserts his view of the courts in England. ‘Milton advocates for a decentralised model of legal authority’[159] rather than a travelling court. Milton was not the first to forward such a proposal, pamphleteer James Freize in his piece A Moderate Inspection into the Corruption of the Practique Part of the Common Law proposes ’Judges in every Province, County, Hondred, Wapentake, and Town corporate’[160] to be situated within their community. Milton takes this proposal and builds upon it making clear and detailed arguments for local courts in Proposals of Certaine Expedients asserting ’The administration of Civill Justice may be in the City or chief towne of every county without appeal.’[161] This intra-Jurisdictional parity made it so that no one may have ‘more equal justice’[162] by the jurisdiction hopping that was common in early modern litigation.
When Milton writes ‘without appeal’ he was seeking to quell the groundswell of appellate hearings that plagued the 17th century courts. Chambers assesses that there was a high degree of duplication of judicial effort, that Chancery and Star Chamber spent time hearing cases from other judicatures.[163] Yet Milton does not dismiss right to appeal entirely, aware of this he goes on to make provision for ‘a common judicature, as there is here in the capital city.’[164] In short, this is the Miltonic basis of a Supreme Court.
The remit of the 2009 Supreme Court as elucidated by Andrew McDonald and Robert Hazell is as follows:
‘The court will take on the jurisdiction of the Appellate Committee of the House of Lords and it will acquire the Judicial Committee of the Privy Council’s role... Judges who are Law Lords at the time of the court’s creation will automatically become the first Supreme Court Justices and they will cease to participate in the Lords until their retirement from the court.’[165]
Taking these aims of the CRA Milton’s influence can clearly be felt. Not only did Milton envisage a root and branch restricting of the English judiciary, but in many ways spoke of a Supreme Court of the United Kingdom, operating largely in the same way as the modern Supreme Court four hundred or so years before its conception. Like the CRA, Milton’s judicial reforms have a well-defined appointments procedure, clear legal remit and scope, and robust mechanisms for assurance of transparency and oversight. The 2009 Supreme Court, was designed to enhance popular sovereignty through judicial authority and uphold the individual liberty of the citizenry through judicial reasoning, as was the desire of Milton’s proposals.
Hazell and McDonald go on to note how ‘[The Supreme Court] will take fewer private law cases than the Law Lords and to focus harder on issues of constitutional importance.’[166] This again is congruent with Milton’s vision for the central, highest court in the land. Alison Chapman clarifies what Milton means when he writes the courts will ’administer Civil Justice’[167] stating ’given comments in later treaties, it seems more likely Milton means that the [local] court will handle only civil cases’[168] operating on the assumption that Milton thinks crimes and public law matters above a certain threshold ’should be heard by common law courts at the assizes or at Westminster.’[169]
Chapman notes the internal contradiction between Milton’s constitutional and judicial plans.[170] This contradiction is the same one the New Labour reform created when establishing the Supreme Court. Dicey writes ‘There is no power which, under the English constitution, can come into rivalry with the legislative sovereignty of parliament.’[171] Yet we see in practice, as Milton alludes to, how the Supreme Court, sitting outside of parliament, has a tangential sovereignty of itself, this sovereignty is an ’interpretive sovereignty’ and so while it does undermine the Diceyan principles of Parliamentary Sovereignty it is compatible with the broader thrust of the English constitution as parliament can legislate around a decision, the recent Rwanda Bill for example.[172]
Human Rights
The HRA, passed in 1998 and implemented from 2000, codified individual liberties. Milton famously quipped, ‘Liberty dos not give way to license’[173] in doing so acknowledging where the rights of one individual end and another's begin. Liberty as ‘absent of restraint’ is described as ‘negative liberty’, following Isaiah Berlin's distinction between negative and positive liberty.[174] This is something which the HRA sought to reconcile, not only does it regulate activity between individuals but equally requires government, the public and private sectors to uphold the individual liberties set out in the Act.
In attempting to define the constitution of a right Geoffrey Marshall forwards an understanding of a right thusly: ‘A right may be thought be thought of as a rather special sort of proprietary article’[175] This is perhaps the most accurate way of synthesising Milton with the HRA. Viewing the rights, as set out in the HRA, as something to be owned and possessed is exactly how Milton writes in respect of an Englishman’s rights. Rights and the individual liberty exhibited through them are not abstract concepts but possessions, immaterial in nature, yet are a form of property belonging to the subject. In exercising their individual rights, a person ‘who may at his option demand the execution of the duty or waive it’[176] clearly possesses something that has the characteristics of property. This is certainly what the HRA sought to embody, being a series of codified rights that a Briton can appeal to on a domestic and pan-European scale.
‘A right, it would be safe to say, is obviously a form of entitlement arising out of moral, social, political or legal rules.’[177] With this statement from Marshall in mind it is safe to assume that the particulars of the HRA deviate significantly from what Milton himself would have advocated for. By contemporary standards Milton would be no liberal hero, yet in his day his forwarding of toleration and free speech firmly places him as a pioneer of liberal thought. While society has changed drastically since Milton’s own time the ability of an Englishman to appeal to an inheritance of rights, now codified, has not changed.
The period of Milton’s writing and Milton’s writing itself sits at a turning point in history. Citing the work of Quentin Skinner, Professor A.C.Grayling notes how this ‘single moment in the history of political thought… introduces a distinction between liberty and power.’[178] Milton and his contemporaries voiced the conflict between individual liberty and political sovereignty four hundred years ago, the HRA sought to collate this, expressing the relationships between individuals and between individuals and the government.
In ending with some analysis of the HRA we see how this Act bookends the Miltonic understanding of both individual liberty and popular sovereignty. We see how these two political, social, (religious even) legal concepts bleed into one another. The HRA gave citizens recourse to their rights ‘and it did so without challenging the doctrine of parliamentary sovereignty: judges are empowered to declare statutes incompatible with the Act, but not to strike those laws down.’[179] In doing so ‘The HRA bowed to Diceyan tradition’[180] that storied tradition of popular, parliamentary sovereignty.
Conclusion
Pre-eminent Miltonist Nigel Smith observes that the law often appears mimetically in literature as ‘part of the architecture of plays or poems'[181] going further and saying the literature of Interregnum period ‘is literally a plea in the name of a desired legal practice.’[182] John Milton is certainly the embodiment of Smith’s observation. Milton’s writings are inexhaustible, particularly his poetics, they deal with themes and concepts that span the entire breadth of the human experience. He is a deeply socio-legal/philosophical poet and as a political writer he is deeply poetic. He manages to convey his vision for English society in a way that is engaging, inquisitive and moving, embedding it within the ‘architecture’ of his works.
This dissertation has sought to prove the enduring influence and legacy of John Milton’s works on constitutional development and theory, beginning with providing a contextual background for Milton’s writing and an examination of this vital period of English history for the development of the constitution as it operates today. By providing a close reading and commentary of some of Milton’s most famous writing two areas of note, popular sovereignty and individual liberty emerge. Chapter one situates these two concepts within Milton’s own time, seeking to show where he fits as an authority on these matters and acknowledging the radicalism of not only his socio-political views, but his theological and legal positions also. Milton’s hand has been at work throughout British/English history and chapter two attempts to plot this course of Miltonic influence across the centuries. His conception of popular sovereignty and individual liberty germinated in the minds of Burke, Blackstone, et al, being refined by each thinker referenced to suit and meet the needs of the time in which they lived. Famed Yale professor Harold Bloom coined the term ‘Anxiety of Influence’[183] in which he suggested authors (or in this case legal thinkers) struggle to overcome the anxiety posed by the influence of their literary antecedents.[184] In applying a version of this literary model to jurisprudence, chapter two demonstrates the previously unrecognised influence of John Milton as a contributor to constitutional development. Finally, the third chapter has sought to present a case that puts Milton’s ideas as a key contributor to the radical constitutional change ushered in by Tony Blair and the New Labour government. His understanding of popular sovereignty and individual liberty have been shown to have had an enduring impact and influence upon the law, and with this fact in mind chapter three serves to demonstrate Milton’s legacy and radical platform in a tangible, visible and prescient way.
Milton’s voice has been an ever-present contributor to English constitutional theory in the areas of sovereignty and liberty. McDonald and Hazell forward the proposition that ‘Constitutional conventions have rarely emerged from theoretical textbooks: they are commonly a by-product of party politics’[185] Chapter one speaks to the factional/denominational politics of the Stuart era before the conventional party structure emerged. However, the hard-won constitutional conventions of this period fell along strict religious, political lines. Additionally, chapter three shows how the specific agenda of party-political movement facilitated the broadest scope of constitutional reforms since that period under the house of Stuart.
With this being said however, this statement misses the prescience of ‘theoretical textbooks.’ As the epigraph from Chaucer that opens chapter two notes the power and utility of ‘old books’ to ‘spring new learning’ is grossly neglected by an over fascination with party agenda. England, Britain is a historically shaped state, sovereignty and freedom are grounded in history. The contributions of ‘textbook’ theorists, of authors, polemicists and poets in the development of constitutional convention cannot be understated. John Milton is one of these contributors. The relationship between literature and law as an area of academic study principally began in the 1970’s with the work of James Boyd Wright.[186] This dissertation therefore seeks to broaden this subsect of academic scholarship, recognising John Milton and his works in a way not commonly recognised, in an effort to attach his legacy to particular aspects of English constitutional development.
Table of Cases
Jackson v HM Attorney General [2005] UKHL 56
Table of Legislation
Act of Settlement 1701
Anglo-Irish Treaty 1921
Act of Union 1707
Bill of Rights 1689
Constitutional Reform Act 2005
Habeaus Corpus Act 1640
House of Lords Act 1999
Human Rights Act 1998
Licensing Order 1643
Parliament Act 1911
Petition of Right 1628
Representation of the People Act 1918
Safety of Rwanda (Asylum and Immigration) Act 2024
The Grand Remonstrance 1641
The Instrument of Government 1653
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Footnotes
[1] John Milton, ‘Paradise Lost’ in Stephen Orgel and Jonathan Goldberg (eds), John Milton: The Major Works (first published 1667, OUP 2008) 355-618
[2] John Milton, ‘The Tenure of Kings and Magistrates’ in Stephen Orgel and Jonathan Goldberg (eds), John Milton: The Major Works (first published 1649, OUP 2008) 273-307
[3] John Milton, ‘Areopagitica’ in Stephen Orgel and Jonathan Goldberg (eds), John Milton: The Major Works (first published 1649, OUP 2008) 236 - 272
[4] Dudley Julius Medley, English Constitutional History (1894, B.H Blackwell) 282
[5] The Instrument of Government 1653
[6] John Morrill, ‘The Causes and course of the British Civil Wars’ in N. H. Keeble (eds), The Cambridge Companion to Writing of the English Revolution (Cambridge University Press, 2001) 16
[7] David Starkey, Crown and Country (2010, Harper Press) 332
[8] Milton (n3), Tenure of Kings and Magistrates, 286
[9] Starkey (n8) 335
[10] Starkey (n8) 333
[11] Morrill (n7) 16
[12] Starkey (n8) 336
[13] The Grand Remonstrance 1641
[14] Starkey (n8) 337
[15] John S. Tanner and Justin Collings, How Adams and Jefferson Read Milton and Milton Read Them (2006) 40(3) Milton Quarterly <https://www.jstor.org/stable/24465010> accessed 14 May 2024
[16] John Rogers, The Matter of Revolution (Cambridge University Press, 1996)
[17] Hilaire Belloc, The Cruise of the "Nona" (First published 1925, Harmondsworth: Penguin, 1958) 48
[18] Milton, Tenure of Kings and Magistrates (n3)
[19] Go Togashi, ’Milton and the Presbyterian Opposition, 1649–1650: The Engagement Controversy and The Tenure of Kings and Magistrates, Second Edition (1649)’, (2005) 39(2) Milton Quarterly
59 – 81 <https://www.jstor.org/stable/24462046> accessed 14 May 2024
[20] John Rogers, English 220 ’Milton, Power, and the Power of Milton.’ (Lecture at Yale University, 2008) <https://www.youtube.com/watch?v=pf91LApkCpU> accessed 14 May 2024
[21] Milton, Tenure of Kings and Magistrates (n3) 293
[22] ibid, 305
[23] ibid
[24] ibid, 299
[25] ibid, 277
[26] ibid, 279
[27] Quentin Skinner, ’What does it mean to be a free person?’ (2008) 30(10) London Review of Books <https://www.lrb.co.uk/the-paper/v30/n10/quentin-skinner/what-does-it-mean-to-be-a-free-person> accessed 14 May 2024
[28] ibid
[29] Medley (n5) 288
[30] Albert Venn Dicey, Introduction to the study of the Law of the Constitution (first published 1885, Macmillan 1924 8th edn)
[31] Licensing Order 1643
[32] H. Weber, Paper Bullets: Print and Kingship under Charles II (Lexington / KY, 1996), no.40, 151
[33] Cyndia Susan Clegg, ‘Censorship and the Courts of Star Chamber and High Commission in England to 1640’ (2005) 3(1) Journal of Modern European History <https://www.jstor.org/stable/26265808> accessed 14 May 2024
[34] Habeaus Corpus Act 1640
[35] Statute Law Committee, ’Acts and Ordinances of the Interregnum‘ C. H. Firth and R. S. Rait (eds) (London, 1911, HM Stationary Office) Volume 1, 184-86
[36] Youngwhoe Koo, ‘Idea of Natural Law in Milton’s Comus and Paradise Lost’, (DPhil Dissertation, University of North Texas, 1998) <https://digital.library.unt.edu/ark:/67531/metadc277958/m2/1/high_res_d/1002659256-Koo.pdf> accessed 14 May 2024
[37] Martin Dzelzanis, ’Conquest and Slavery in Milton’s History of Britain’ in Nigel Smith and Nicholas McDowell (eds), The Oxford Handbook of Milton (Oxford University Press, 2009) 414
[38] Thomas Aquinas, Selected Philosophical Writings, Timothy McDermott (eds) (First published, 1273, Oxford University Press, 1993) 171 - 183
[39] Milton, Paradise Lost (n2) Book IX, lines 351 - 352
[40] David Loewenstein, ’Radical Puritan Politics and Satan’s Revolution in Paradise Lost’ (Cambridge University Press, 2001) 204
[41] Milton, Paradise Lost (n2) Book I, line 263
[42] Fr Gregory Pine O.P, The Gift of Free Will (Pints with Aquinas, November 2023) <https://www.youtube.com/watch?v=t39wu1squ3o> accessed 31 May 2024
[43] Milton, Paradise Lost (n2) Book III, line 99
[44] Nigel Smith, ‘Paradise Lost from Civil War to Restoration‘ in N. H. Keeble (eds), The Cambridge Companion to Writing of the English Revolution (Cambridge University Press, 2001) 257
[45] Milton, Paradise Lost (n2) Book III, line 100- 105
[46] Milton, Paradise Lost (n2) Book I, lines 254-255
[47] Hilaire Belloc, The Cruise of the "Nona" (1925). Harmondsworth: Penguin, 1958, 48
[48] Act of Settlement 1701
[49] Act of Union 1707
[50] Geoffrey Chaucer, Parliament of Fowls in David Lawson (eds) The Norton Chaucer (W. W. Norton & Company, 2019)
[51] Milton, Tenure of Kings and Magistrates (n3) 273
[52] Thomas Jefferson, ’The Declaration of Independence’ in The Constitution, The Declaration of Independence and The articles of Confederation (first published 1776, A&D Publishing, 2008) 55 - 60
[53] Milton, Tenure of Kings and Magistrates (n3) 273
[54] Ibid, 274
[55] Harold Bloom, Bloom’s Modern Critical Views: John Milton (Chelsea House Publishers, 2004)
[56] Ken Jones, Education in Britain: 1944 to the Present (Polity Press, 2002)
[57] Benjamin Ramm, ‘Why you should re-read Paradise Lost’ (BBC Culture, 19th April 2017) <https://www.bbc.com/culture/article/20170419-why-paradise-lost-is-one-of-the-worlds-most-important-poems> accessed 27 May 2024
[58] Edmund Burke, A Philosophical Enquiry into the Origin of Our Ideas of the Sublime and Beautiful (First Published 1781, Oxford University Press 2015)
[59] Edmund Burke, Reflections on the Revolution in France, Frank Turner (eds) (First published 1790, Yale University Press 2003) 27
[60] Milton, Areopagitica (n4)
[61] Burke, (n60)
[62] Burke (n60)
[63] Milton, Tenure of Kings and Magistrates (n3)
[64] Blair Worden, The English Civil Wars: 1640 – 1660 (Weidenfeld & Nicolson, 2009)
[65] Denis Baranger ‘French Constitutional Law’ in Roger Masterman and Robert Schutze (eds) The Cambridge Companion to Comparative Constitutional Law (Cambridge University Law, 2019) 93 - 94
[66] Conrad Russel, The Origins of the English Civil War (1st edn, Macmillan Press, 1973) 12
[67] Dicey (n30)
[68] Dicey (n30) 68
[69] Dicey (n30) 38
[70] Dicey (n30) 432
[71] Bill of Rights 1689
[72] Vernon Bogdanor, The British Constitution in the Twentieth Century (Oxford University Press, 2003) 690
[73] David Butler, ’The Changing Constitution in Context’ in Matt Qvortrup The British Constitution: Continuity and Change (Hart, 2013) 10
[74]The Richard Dimbleby Lecture, Lord Hailsham: Elective Dictatorship (BBC One, 14 October 1976) <https://www.bbc.co.uk/programmes/p00fr9gh> accessed 27 May 2024
[75] Matt Qvortrup, Direct Democracy (Manchester University Press, 2013)
[76] Jackson v HM Attorney General [2005] UKHL 56
[77] Tom Bingham, The Rule of Law (Allen Lane, 2010) 167
[78] Jackson v HM Attorney General [2005] UKHL 56 at [159] and [168]
[79] Bingham (n78)
[80] Butler (n74) 10
[81] Andrew Blick, ’The United Kingdom in the Twentieth Century’ in Peter Cane (eds) The Cambridge Constitutional History of the United Kingdom (Cambridge University Press, 2023) 368
[82] Richard Gordon QC, ’Constitutional Change and Parliamentary Sovereignty - The Impossible Dialectic’ in Matt Qvortrup (eds), The British Constitution: Continuity and Change (Hart, 2013) 161
[83] Blick (n82) 368
[84] ibid, 368
[85] Bogdanor (n73) 719
[86] ibid, 717
[87] William Blackstone, The Sovereignty of the Law: Selections from Blackstone’s Commentaries on the Laws of England (Gareth Jones (eds) MacMillan 1973)
[88] Wilfred Prest, Blackstone as a Barrister: Selden Society Lecture Series (Selden Society, 2011)
[89] ibid
[90] Lewis Warden, The Life of Blackstone (Michie Company, 1938) 25
[91] Blackstone (n88) 56-57
[92] ibid, 59
[93] Ibid, 59
[94] Milton, Paradise Lost (n2) book 1, line 63
[95] Milton, Paradise Lost (n2) book 5, line 860
[96] Harold Bloom, John Milton: Bloom's Modern Critical Views (Chelsea House Publishing, 2003)
[97] Petition of Right 1628
[98] Bill of Rights 1689, Chapter 2, 1 William and Mary Session 2
[99] Blackstone (n88) 64
[100] Kathryn Temple, ’Sounds Couth and Uncouth: The Poetics of Harmonic Justice in William Blackstone's Commentaries on the Laws of England’ (2016) 28(2) Law and Literature 110 <https://www.jstor.org/stable/26770797> accessed 17 May 2024
[101] Blackstone (n88) 237
[102] ibid, 63
[103] ibid, 63
[104] Warden (n91) 309
[105] Milton, Areopagitica (n4) 240
[106] Hilary Gatti, ’The Humanities as the Stronghold of Freedom: John Milton’s Areopagitica and John Stuart Mill’s On Liberty’ in Rens Bod, Jaap Maat, and Thijs Weststeijn (eds) The Making of the Humanities (Amsterdam University Press, 2013) 170
[107] John Stuart Mill, On Liberty (First published 1859, Oxford University Press, 2015) 19
[108] ibid, 19
[109] Milton, Areopagitica (n4) 246
[110] Milton, Areopagitica (n4) 249
[111] Mill (n108) 63
[112] ibid, 61
[113] ibid, 61
[114] Gatti (n107)
[115] Seth Lobis, ’Milton, Mill, and Berlin’s History of Monism and Pluralism‘ (2020) 32(4) Critical Review 507
[116] Blair Worden, God's Instruments: Political Conduct in the England of Oliver Cromwell (Oxford University Press, 2012)
[117] Friedrich Hayek, The Constitution of Liberty (Routledge & Kegan Paul, 1960) 30
[118] Ibid
[119] Ibid
[120] Ibid, 318
[121] Francesca Klug, Keir Starmer and Stuart Weir, The Three Pillars of Liberty: political Rights and Freedoms in the United Kingdom (Routledge, 1996) 5 - 7
[122] Chris Moores, Civil Liberties and Human Rights in Twentieth Century Britain (Cambridge University Press, 2017) 136
[123] ibid, 137
[124] ibid, 136
[125] Friedrich Hayek, Law, Legislation, and Liberty (Routledge & Kegan Paul, 1979) 106
[126] William Wordsworth, London 1802 in The Complete Works of William Wordsworth (Wordsworth Editions, 1994) 307
[127] Walter Bagehot, The English Constitution (First Published 1867, Oxford University Press 2009)
[128] John Mackintosh, The British Cabinet (Stevens, 1962)
[129] ibid
[130] Richard Crossman, ‘introduction’ in Walter Bagehot, The English Constitution (Fontana, 1963)
[131] Sony Pictures Television, ‘The Crown - The Queen Challenges Margaret Thatcher’ (Season 4 Episode 8 November 2023) <https://www.youtube.com/watch?v=fDKTi-jjGCc> accessed 30 May 2024
[132] H.W. Brands, Reagan: The Life (Alfred Knopf, 2015) 368-375
[133] Anthony Bevins, ‘Blair goes presidential’ The Independent (London 5 May 1997)
[134] The Strand Group, ’Tony Blair and Sir Michael Barber: ‘How to run a Government’ (King’s College London, June 2015) <https://thestrandgroup.kcl.ac.uk/event/tony-blair-and-sir-michael-barber-how-to-run-a-government/> accessed 21 May 2024
[135] Michael Foley, The British Presidency (Manchester University Press, 2000)
[136] Nicholas Watt, ’Blair is the worst among equals’ The Guardian (17 Feb 2000)
[137] ibid
[138] James Naughtie, The Accidental American: Tony Blair and the Presidency (Pan Macmillan, 2014)
[139] Steve Richards, ’Tony Blair, the closet republican’ New Statesman (7 August 2000)
[140] Rod Rhodes ’The Court Politics of the Blair Presidency‘ Papers on Parliament No. 44 (Parliament of Australia, January 2006) <https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/pops/pop44/rhodes> accessed 21 May 21024
[141] Labour manifesto, in Alan H. Wood and Roger Wood (eds), The Times Guide to the House of Commons (London: Times, 1992) 340–2
[142] Constitutional Reform Act 2005
[143] House of Lords Act 1999
[144] Human Rights Act 1998
[145] The Labour Party UK, A New Agenda for Democracy: Labour’s Proposals for Constitutional Reform (The Labour Party, 1997)
[146] ibid
[147] Peter Riddell, ‘Labour’s Conversion To Constitutional Reform’ in in Andrew McDonald (eds) Reinventing Britain: Constitutional Change under New Labour (University of California Press, 2007) 31
[148] ibid
[149] John Toland in Helen Darbishire, The Early Lives of Milton (Constable, 1932) 182
[150] Zera Frink, Classical Republicans (Wipf & Stock Publishers, 2011) 90-122
[151] ibid
[152] John Milton, The Ready and Easy Way to Establish a Free Commonwealth’ in Stephen Orgel and Jonathan Goldberg (eds), John Milton: The Major Works (first published 1660, OUP 2008) 340
[153] ibid
[154] Alison Chapman, Courts, Jurisdictions and the Law in Milton and his Contemporaries (University of Chicago Press, 2020) 24
[155] The Labour Party, New Labour: Because Britain Deserves Better (Labour Party Manifesto, 1997) <http://www.labour-party.org.uk/manifestos/1997/1997-labour-manifesto.shtml> accessed 31 May 2024
[156] ibid
[157] Kenneth MacKenzie, ‘How the Reforms Came About’ in Andrew McDonald (eds) Reinventing Britain: Constitutional Change Under New Labour (University of California Press, 2007) 120
[158] Peter Raina, House of Lords Reform: A History (Peter Lang, 2015) 321
[159] Chapman (n155) 152
[160] James Freize, A Moderate Inspection into the Corruption of the Practique Part of the Common Law (first published 1656) 3 <https://www.proquest.com/docview/2240892588/99862573?parentSessionId=AE5Oq4HfshD%2BOmAxUbaPi3Xm94rX4JPHfCcafcK8eOY%3D&pq-origsite=primo&accountid=13374&sourcetype=Books> accessed 27 May 2024
[161] John Milton, ‘Proposals of Certaine Expedients’ in Don Wolfe (eds) The Complete Prose Works of John Milton (Yale university Press, 1982)
[162] ibid
[163] Chapman (n155) 156
[164] Milton (n162)
[165] Andrew McDonald and Robert Hazell, ’What happened next: constitutional change under New Labour’ in Andrew McDonald (eds) Reinventing Britain: Constitutional Change under New Labour (University of California Press, 2007) 25
[166] ibid, 26
[166] Chapman (n155) 156
[166] Milton (n162)
[166] Andrew McDonald and Robert Hazell, ’What happened next: constitutional change under New Labour’ in Andrew McDonald (eds) Reinventing Britain: Constitutional Change under New Labour (University of California Press, 2007) 25
[166] ibid, 26
[167] Milton (n162)
[168] Chapman (n155) 156
[169] ibid 156
[170] ibid158
[171] Dicey (n30)
[172] Safety of Rwanda (Asylum and Immigration) Act 2024
[173] Milton, Areopagitica (n4) 268
[174] Isaiah Berlin, Two Concepts of Liberty (Oxford Clarendon Press, 1958) 5-9
[175] Geoffrey Marshall, ‘Rights, Options and Entitlements’ in A.W.B Simpson (eds) Oxford Essays in Jurisprudence (Oxford University Press, 1973) 228
[176] H. L. A. Hart, ‘Are There Any Natural Rights?’ (1955) The Philosophical Review 62, 2 <https://www.jstor.org/stable/2182586> accessed 31 May 2024
[177] Marshall (n176) 228
[178] A.C.Grayling, The History of Philosophy (Penguin, 2020) 210
[179] McDonald and Hazell (n166) 18
[180] Craig Parsons, ‘Britain and Europe: a tale of two constitutions’ in Andrew McDonald (eds) Reinventing Britain: Constitutional Change under New Labour (University of California Press, 2007) 185
[181] Nigel Smith, ‘Legal Agency as Literature in the English Revolution’ in Lorna Hutson (eds) The Oxford Handbook of English Law and Literature, 1500-1700 (Oxford University Press, 2017) 605
[182] ibid
[183] Harold Bloom, Anxiety of Influence: A Theory of Poetry (Oxford University Press, 1973)
[184] ibid
[185] McDonald and Hazell (n166) 23
[186] James Boyd Wright, The Legal Imagination (Chicago University Press, 1973)