Tristram Hunt: The Supreme Court is a perfectly English idea
[Tristram Hunt is a British historian, broadcaster and newspaper columnist.]
A walk along the law lords corridor in the Palace of Westminster this summer was a sorry affair, with the bustle gone, the offices gutted and the empty rooms eyed up by envious peers. But to step across Parliament Square and enter the new Supreme Court, set amid the sand-blasted stone of the former Middlesex Guildhall, was to sense the anticipation of power. Here all was new and sleek with thick coatings of legal, black leather. Grandiloquent quotations and wispy crests lined the glass walls, bizarrely offset by a gaudy carpet design by Sir Peter Blake.
To its critics, the new Supreme Court — which officially opens today — marks a further, wretched Americanisation of the British constitution. With Downing Street run like the White House and a move to put senators in the House of Lords, the Supreme Court looks like another West Wing transfer. If not quite matching the grandeur of the Washington original, our Supreme Court now has its own building, a cadre of powerful justices and the air of an institution gung-ho to take on the Government.
But it would be a terrible misreading of history to regard the new court as a foreign import. For it marks the welcome return of an idea that first emerged in Britain in the mid-18th century: the separation of powers. And it was the Americans who stole the idea from us, thanks to the writings of an inquisitive French philosopher.
In 1729, Charles-Louis de Secondat, Baron de Montesquieu, arrived in England. By then, he was well into his Grand Tour, studying the political systems of Italy, Germany and the Netherlands. But he was most interested in England since it was here, as Voltaire had suggested, liberty was at its fullest. And Montesquieu was not disappointed. “England is at present the country in the world where there is the greatest freedom,” he wrote in his Pensées.
Seeking to understand the foundations of such freedoms, Montesquieu threw himself into British public life. He sat through interminable debates in Parliament between Robert Walpole and his foes, mingled at the court of George II, was elected a Fellow of the Royal Society, and declared himself amazed at both the stupidity of the English aristocracy and their childish love of practical jokes (one of which involved Montesquieu, at a country house party, falling through a false floor into a bath of cold water).
But what really impressed Montesquieu was English freedom. In contrast to the fearful royal absolutism of Louis XV’s France, the English enjoyed the right to worship, trade and speak their minds. And this was the direct product, Montesquieu thought, of the English constitution’s separation of powers. It was an idea he was led to appreciate by Viscount Bolingbroke, the Tory philosopher-politician. An opponent of Walpole, Bolingbroke had long accused the King and his ministers of undermining Parliament by buying off MPs. “In a constitution like ours, the safety of the whole depends upon the balance of the parts, and the balance of the parts on their mutual independency on each other.”
This, Montesquieu concurred, was the key to liberty. Since “every man invested with power is apt to abuse it ... to prevent this abuse, it is necessary, from the very nature of things, powers should be a check to power”. And since the 1688 Glorious Revolution, the English had achieved this by dividing up the executive, legislative and judicial function between the monarchy, Parliament and a legal system based on trial by jury and an independent judiciary. In theory at least, the King didn’t control Parliament, and judges didn’t write their own laws. While there would be areas of overlap between the three powers, if any two were vested in the same body (as in the French monarchy) then liberty was at an end.
These thoughts were put together in Montesquieu’s masterwork, The Spirit of the Laws, published anonymously in 1748 and quickly acclaimed not just in Europe but across the Atlantic. Indeed, it was the revolutionary generation of Madison, Hamilton, Jefferson and Washington who most publicly expressed their debt to “the celebrated Montesquieu” and the US Constitution followed his prescription...
Read entire article at Times (UK)
A walk along the law lords corridor in the Palace of Westminster this summer was a sorry affair, with the bustle gone, the offices gutted and the empty rooms eyed up by envious peers. But to step across Parliament Square and enter the new Supreme Court, set amid the sand-blasted stone of the former Middlesex Guildhall, was to sense the anticipation of power. Here all was new and sleek with thick coatings of legal, black leather. Grandiloquent quotations and wispy crests lined the glass walls, bizarrely offset by a gaudy carpet design by Sir Peter Blake.
To its critics, the new Supreme Court — which officially opens today — marks a further, wretched Americanisation of the British constitution. With Downing Street run like the White House and a move to put senators in the House of Lords, the Supreme Court looks like another West Wing transfer. If not quite matching the grandeur of the Washington original, our Supreme Court now has its own building, a cadre of powerful justices and the air of an institution gung-ho to take on the Government.
But it would be a terrible misreading of history to regard the new court as a foreign import. For it marks the welcome return of an idea that first emerged in Britain in the mid-18th century: the separation of powers. And it was the Americans who stole the idea from us, thanks to the writings of an inquisitive French philosopher.
In 1729, Charles-Louis de Secondat, Baron de Montesquieu, arrived in England. By then, he was well into his Grand Tour, studying the political systems of Italy, Germany and the Netherlands. But he was most interested in England since it was here, as Voltaire had suggested, liberty was at its fullest. And Montesquieu was not disappointed. “England is at present the country in the world where there is the greatest freedom,” he wrote in his Pensées.
Seeking to understand the foundations of such freedoms, Montesquieu threw himself into British public life. He sat through interminable debates in Parliament between Robert Walpole and his foes, mingled at the court of George II, was elected a Fellow of the Royal Society, and declared himself amazed at both the stupidity of the English aristocracy and their childish love of practical jokes (one of which involved Montesquieu, at a country house party, falling through a false floor into a bath of cold water).
But what really impressed Montesquieu was English freedom. In contrast to the fearful royal absolutism of Louis XV’s France, the English enjoyed the right to worship, trade and speak their minds. And this was the direct product, Montesquieu thought, of the English constitution’s separation of powers. It was an idea he was led to appreciate by Viscount Bolingbroke, the Tory philosopher-politician. An opponent of Walpole, Bolingbroke had long accused the King and his ministers of undermining Parliament by buying off MPs. “In a constitution like ours, the safety of the whole depends upon the balance of the parts, and the balance of the parts on their mutual independency on each other.”
This, Montesquieu concurred, was the key to liberty. Since “every man invested with power is apt to abuse it ... to prevent this abuse, it is necessary, from the very nature of things, powers should be a check to power”. And since the 1688 Glorious Revolution, the English had achieved this by dividing up the executive, legislative and judicial function between the monarchy, Parliament and a legal system based on trial by jury and an independent judiciary. In theory at least, the King didn’t control Parliament, and judges didn’t write their own laws. While there would be areas of overlap between the three powers, if any two were vested in the same body (as in the French monarchy) then liberty was at an end.
These thoughts were put together in Montesquieu’s masterwork, The Spirit of the Laws, published anonymously in 1748 and quickly acclaimed not just in Europe but across the Atlantic. Indeed, it was the revolutionary generation of Madison, Hamilton, Jefferson and Washington who most publicly expressed their debt to “the celebrated Montesquieu” and the US Constitution followed his prescription...