INTRODUCTION

Bentham did not see the need for a constituent assembly to produce a document that would constrain the legislature. He thought Parliament should be omnipotent, as the English Parliament was already at his time (the last time the Monarch had refused to sign a bill was in 1707) and as the House of Commons would become in 1911. There are, however, strong arguments for placing constitutional constraints on the legislature. In the previous chapter I cited Paine’s observation that only a written constitution could have prevented the Parliament from adopting the Septennial Act. Earlier, the lack of any such document had enabled the Long Parliament to maintain itself in existence for two decades.

We must ask, however, why a written constitution would have prevented Parliament from extending its tenure indefinitely. In a speech justifying what is arguably the first written constitution in the modern sense of the term, the 1653 Instrument of Government, Cromwell argued that a “single person,” such as the Lord Protector (himself), was needed. His argument (with Carlyle’s editorial comments in parentheses) identifies with precision the need both for a constitution and for a mechanism to enforce it: