Early prerogative and administrative power: a response to Paul Craig.
What does English experience imply about American constitutional law? My book, Is Administrative Law Unlawful?, argues that federal administrative power generally is unconstitutional. (1) In supporting this conclusion, the book observes that eighteenth-century Americans adopted their constitutions not only with their eyes on the future, but also looking over their shoulder at the past--especially the English past. This much should not be controversial. There remain, however, all sorts of questions about how to understand the English history and its relevance for early Americans.
In opposition to my claims about American law, Paul Craig lobs three critiques from across the pond. (2) His two main arguments concern the English history of prerogative and administrative power--though in addition, he makes a conceptual point about the distinction between legislative and judicial power. It will be seen that Craig's account repeatedly misunderstands the history and even the conceptual framework.
Nonetheless, his article usefully draws attention to some important issues. This is therefore a good occasion not simply to respond, but more broadly to explore three important questions about early prerogative and administrative power. First, how can one distinguish absolute prerogative power and administrative power in seventeenth- and eighteenth-century England? Second, how did the English resolve the tensions between their inherited types of administrative power and their constitutional principles? Third, how did Americans resolve the tensions between their inherited types of administrative power and their constitutional principles?
The initial question matters because my argument against administrative power assumes a link between administrative power and the absolute prerogative--in that both were types of extralegal power. The other questions are significant because my argument assumes that the English and Americans could develop constitutional ideals against extralegal power even while retaining some local administrative instances of it. This Article is an opportunity to elaborate these points.
Organization.--This Article is organized around Craig's three criticisms. (I) In challenging my thesis that federal administrative power revives a version of prerogative power, he argues that these types of power are crucially different because the prerogative was independent of statute. But his statute-free vision of prerogative power is grossly incorrect, and it therefore cannot distinguish prerogative and administrative power. His argument also is unresponsive. My thesis is that administrative power revives the extralegal character of the absolute prerogative--in other words, that both sorts of power have bound subjects through extralegal edicts--and this extralegal power remains a problem regardless of statutory authorization and limits.
(II) Against my thesis that the English constitution developed in response to extralegal power, Craig points to the existence of seventeenth- and eighteenth-century English "administrative" power. My book also points to this power. Craig, however, relies on its mere existence to suggest that the English constitution did not repudiate extralegal power. This is utterly mistaken. The English constitution clearly included general ideals against extralegal power, even though (as my book observes) the English did not apply them systematically--especially not to localized administrative power. And although the English thus had to live with conflicts between constitutional ideals and localized practices, Americans in the U.S. Constitution largely avoided such tensions.
(III) Against my argument about extralegal power, Craig notes that the distinction between legislative and judicial power can break down at the edges. His observation is not unreasonable. But it is irrelevant, as my argument about extralegal power does not depend on this distinction.
Craig's critiques are thus simply mistaken, and in their place, very different conclusions emerge. In both England and America, many constitutional principles developed in response to the danger of extralegal power, as exemplified by the absolute prerogative. Although the English did not directly apply these principles to their inherited and mostly localized administrative power, Americans in the U.S. Constitution pursued their constitutional principles more systematically.
Broader Significance.--All of this is important because the English history is a foundation for understanding American constitutions, not least the U.S. Constitution. In much contemporary American scholarship, it is said that administrative power is a modern development, which was unknown to early Americans, and therefore could not have been barred by American constitutions. (3) Early Americans, however, were very interested in the English experience with the absolute prerogative. The English Crown had used its absolute prerogative to bind subjects extralegally. By this I do not mean that the Crown acted unlawfully or without legal authorization. Rather, the point is that, with its absolute prerogative, the Crown imposed legal obligation not merely through the acts of the legislature and the courts, but through other edicts. (4) Being aware of this threat and the English constitutional responses to it, Americans drafted their constitutions to prevent the recurrence of extralegal power, and they did this most systematically in the U.S. Constitution.
Of course, just because part of the royal prerogative bound subjects extralegally does not mean that all prerogative power was condemned as unconstitutional. Many parts of the prerogative, such as the appointment of officers and the pardoning of offenders, did not impose legal obligation and thus tended to be considered, on both sides of the Atlantic, relatively unproblematic aspects of executive power. (5) The extralegal aspects of the prerogative, however, could be distinguished from executive power and provoked profound constitutional objections.
Not merely a matter of "originalism" or any other mode of interpretation, the point is that extralegal power was one of the central dangers that the U.S. Constitution was designed to defeat. Extralegal power, most notorious from the English absolute prerogative, was a key target of the Constitution, and until one recognizes this, one cannot understand the Constitution. More broadly, once one recognizes this history, one can begin to reconsider what administrative power really is. Rather than a uniquely modern approach to modern circumstances, administrative power is merely the most recent manifestation of the recurring danger of extralegal power--the danger that government will be tempted to evade ruling through the law and instead rule through other mechanisms.
Postscript.--Last but not least, this Article ends with a Postscript. Craig already has responded to this Article, and the Postscript observes how he thereby digs himself in even deeper.
To be sure, some of the prerogative existed independent of statute, and this independent aspect of the prerogative has been much romanticized. Much of the prerogative, however, depended on statutory authorization, and much of it was limited by statute. Accordingly, Craig's generalization that the prerogative was unauthorized and unlimited by statute is nonsense, and it cannot distinguish prerogative and administrative power.
A. Prerogative Independent of Statute?
Craig's claim of a statute-free prerogative is simply wrong as a matter of history. Of course, the king seemed to hold some of his prerogatives independently of any statute. But was this generally true?
The monarch pursued his prerogative most systematically in his prerogative courts, notably the Star Chamber and the High Commission, both of which acted at least partly on statutory authority. The Star Chamber's jurisdiction to try offenders extended only to misdemeanors, and a portion of this jurisdiction was authorized by the 1487 statute entitled: An Act Giving the Court of Starchamber Authority to Punish Divers Misdemeanors. (10) As for the High Commission, it rested on authorization in the 1559 Act of Uniformity. (11) It therefore is simply incorrect to generalize that the king's prerogative was "independent" in the sense that it was unauthorized by statute.
Statutory limitations became even more vigorous in the next century--as evident from the 1624 Statute of Monopolies, the 1628 Petition of Right, the 1641 abolition of the Star Chamber and the High Commission, the 1679 Habeas Corpus Act, the 1689 Declaration of Rights, and the 1701 Act of Settlement. (18) If anything became clear in the seventeenth century, it was that Parliament, rather than the Crown, had absolute power and that the king's prerogative was thus entirely subject to law, including statute.
Of course--as already noted and as will be elaborated in Part I.C--the king enjoyed some prerogatives independently of statute. But Craig's suggestion that, in the seventeenth and eighteenth centuries, a lack of statutory authorization and limits generally distinguished prerogative power from administrative power is grossly mistaken.
His account of prerogative power is not only historically wrong, it is also intellectually unresponsive. In claiming that prerogative power was independent of statute--that is, both unauthorized and unlimited by it--Craig thinks he is distinguishing this power from administrative power. But if (as seen above) much prerogative power was authorized and limited by statute, and if almost all administrative power is authorized and limited by statute, then the difference is not very clear--at least not from Craig's argument about independence from statute. And, regardless, none of his argument responds to the problem that more clearly connects the binding absolute prerogative and administrative power, namely the attempt to bind subjects through extralegal edicts.
When Craig misinterprets my "extralegal" to mean sometimes unauthorized, he is confusing prerogative authority with prerogative paths of power. Both came at least notionally through the king and thus were called "prerogative"; but this is not to say they were the same. The king's prerogative authority could sometimes be exercised in the courts, as in cases of habeas corpus, but his prerogative avenues of power came through his prerogative courts--notably the Star Chamber and the High Commission--whose edicts were extralegal means of imposing legal obligation. (25) There thus were at least two dangerous traits of prerogative power: that some of it had an authority independent of statutes and thus unlimited by them, and that much of it was imposed not merely through the law and its courts, but through other mechanisms.
When this pair of dangers is recognized, Craig's argument about the one becomes less obviously responsive to my argument about the other. Even if he were correct that prerogative power generally was unauthorized and unlimited by statute, and even if he were correct that administrative power is entirely authorized and limited by statute, would this really resolve the danger arising from the prerogative's extralegal pathways? The English did not think so, for they developed their constitutional ideals in response to both dangers in the prerogative. Nor did early Americans think so, for in the U.S. Constitution, they even more systematically addressed both dangers. My book discusses both but focuses on extralegal power, as that is the problem that was most pervasive in prerogative power and remains pervasive in administrative power. (26) Accordingly, if an account of prerogative power is to be responsive, it must be more than historically accurate; it also must address the dangers of, and constitutional obstacles to, extralegal power.
C. Why So Many Errors?
How did Craig come to be so confused about all of this--about both the history and the responsiveness of his argument? Why so many errors?
Craig seems to be misled in part by his tendency to think about prerogative power in terms of the king's personal authority. In his words, prerogative power was power exercised "by the King for himself." (27) This is a romantic thought, and it sometimes was even true (for example, as to pardons). But in most instances, a monarch exercised his prerogative power though prerogative commissions and other bodies, where administrators acted for him. Although the power of such bodies was justified in terms of the king's personal prerogative, the real question--as today--was about their power. Not even James I, therefore, thought he personally exercised all of the prerogative. As he explained, he depended on the members of his prerogative tribunals, who were "his shadows and ministers." (28) It undoubtedly is good entertainment, whether in Shakespearian plays or Hollywood movies, to imagine that kings always acted personally in their prerogative power, but it is bad history.
In fact, the prerogative power was often very bureaucratic, just as contemporary administrative power is often very personal. Notwithstanding that the Crown's propagandists spoke of the king's personal power, the Star Chamber bureaucratically commissioned expert reports, collected data, and on this basis, issued regulations in its decrees. Nowadays, admirers of the administrative state speak of its bureaucratic expertise and neutrality, but it is under the watchful control of ORIA, the White House, and the President. Evidently, the prerogative already was moving toward the bureaucratic, and the administrative now is moving toward the personal. It thus is a profound mistake to take the personal theory of prerogative power so far as to assume that this power was fundamentally different from administrative power.
Even worse, Craig seems to take Crown lawyers at their word when they exuberantly claimed that the absolute prerogative was unlimited by law, including statute. Even in their theory of absolute power, however, they backtracked, for they acknowledged that this power could be limited by law--specifically by statute--when the king, in his absolute power, chose to submit to law. In the words of the early seventeenth-century Attorney General for Ireland, Sir John Davies, "by the positive law the king himself was pleased to limit and stint his absolute power, and to tie himself to the ordinary rules of law, in common and ordinary cases." (33) This was a necessary caution, for (as noted in Part I.A) much of the king's supposedly absolute power really was limited by statute and sometimes even derived from it.
But Craig's vision of a statute-free prerogative is a perverse description of prerogative power in England, where Parliament had long been the king's high court with final and thus absolute power, where the king continually was struggling against statutory limits on his prerogative, and where even absolute power often had to be couched in law, not least in statutory authority and limits. (35) All of this was evident even prior to the English Revolution of the 1640s. And after the abolition of the Star Chamber and the High Commission in 1641, the statutory limits on prerogative power were the corner stone of English government. (36) If anything was resolved by Parliament's seventeenth-century triumph over the Crown, it was that the royal prerogative was subject to statute.
The abolition of the Star Chamber makes abundantly clear that the problem with this central prerogative tribunal was not that its power was "independent" of statute, but that it acted abusively and extralegally. Craig, however, seems determined to rewrite the history of prerogative power--even to the point of giving an imaginary account of the reasons for the abolition of the Star Chamber.
And this brings the question of prerogative to its primary contemporary significance. Although Craig seems determined not to admit as much, my book argues that a characteristic feature of both absolute prerogative power and of administrative power is that they bind extralegally--in the sense that they impose legal obligation not merely through law, but through other sorts of edicts. This was true of the High Commission, and it remains true of the Environmental Protection Agency. This extralegal power certainly is not the only problem with prerogative monarchy and the administrative state. But it is the enduring problem that runs through both the old absolute prerogative power and contemporary administrative power, and it is a problem regardless of statutory authorization and limits.
To sum up, much prerogative power had statutory authorization and limits, and such things are therefore a poor foundation for distinguishing between prerogative and administrative power. Moreover, even if prerogative power were entirely of the high-flown sort imagined by Hollywood and Craig, its alleged independence from statute would be unresponsive to the danger of extralegal power--the danger that government can create legal obligation through edicts that are not those of the legislature and the courts. This was a consistent problem with prerogative power, and it has been revived by administrative power.
The answer, in brief, is that English prerogative power provoked the development of English constitutional ideals that condemned extralegal power. In England, these ideals were deployed mostly against centralized prerogative power rather than localized versions of extralegal power. (42) And in any case, because of Parliament's absolute power, Parliament did not have to follow these ideals, and the courts had to follow Parliament. On the other side of the Atlantic, however, especially in the federal Constitution, Americans pursued the ideals against extralegal power much more systematically.
The starting point must be the evidence. Both my book and Craig's article observe the existence in seventeenth- and eighteenth-century England of what nowadays would be called administrative power. There thus is at least some agreement between us.
Craig recites more than a half-dozen different types of administrative power in seventeenth- and eighteenth-century England. He discusses local governance (overseen by justices of the peace and their sessions). (43) He explores commissions of sewers (or drainage), bankruptcy commissions, and the excise commissioners. (44) He also observes the administrative regulation of cattle distemper, occupational self-regulation (citing that by Thames watermen and the Norwich worsted traders), and the regulation by enclosure commissions and turnpike trustees. (45) If my book ignored all of this, it must be pathetically weak in its history and dead wrong in its claims about the English constitution.
But of course my book discusses most of these traditional types of Anglo-American administrative power--the majority of them, excluding only the occupational, enclosure, and turnpike regulation. (46) And my book adds important examples that Craig omits, including general warrants, writs of assistance (authorizing customs searches), and the Privy Council's adjustment of duties on American goods. (47) In other words, he and I discuss largely the same examples of seventeenth- and eighteenth-century English administrative power, and even where we do not, we are more or less on par in listing sorts that the other omits. Neither of us aims to enumerate all English administrative regulation--the point being merely to illustrate it.
He thereby gives the impression that my book argues for a libertarian past. This is exactly what my book does not argue, for it expressly avoids confusing the extent of regulation with the use of extralegal power to impose it. (55) My scholarship obviously makes no claim about a libertarian past, and it is wrong to suggest as much.
But leave aside Craig's irrelevant bulking up of his evidence and his mistaken suggestion that I am claiming a bygone libertarianism; both of us recognize the existence of administrative power in seventeenth- and eighteenth-century England. And this is not a surprise, for such power is well known.
So the real difference between Craig and me is not so much in the empirical evidence as in our conclusions about what it shows. The key question --and he is right to ask it--is whether the evidence of administrative power in England calls into doubt my central argument that Americans could draw on an English constitutional tradition that rejected extralegal power. But what do the instances of administrative power show about English constitutional ideas?
Craig interprets the existence of English administrative power as proof that the English did not reject what I call extralegal power. On this basis, he questions whether the U.S. Constitution rejected such power. As presented by him, the evidence of English administrative power seems an irrefutable problem for my constitutional arguments about England and probably also America.
But what if the argument against administrative power is not as simplistic as he assumes? The primary point about the English is not that they obliterated all extralegal power, but rather that they explored constitutional ideals that generally rejected such power. Such ideals barred at least centralized extralegal power--although there were exceptions (evident from general warrants, Privy Council duties on American goods, and the powers of excise commissioners and their officers).
As generally stated, these ideals also might seem to collide with localized extralegal power (by which I mean local and other non-centralized extra-legal power). As will be explained below, such ideals led lawyers such as Coke to frame at least local administrative power in relatively law-like ways. (56) On the whole, however, local and other non-royal administrative power persisted in practice unimpeded by high constitutional ideals. One reason was the tendency to conceptualize much localized administrative power as a matter of determinations rather than of lawmaking or judicial power. Although lawyers tended to strain the determination theory beyond what was plausible, they thereby minimized the potential for conflict with constitutional ideas. More fundamentally, it should be kept in mind that the immediate problem in the seventeenth century was the king's extralegal power, not localized extralegal power. Accordingly, notwithstanding that general constitutional ideas had been employed to defeat the king's extralegal power, there was little interest in using such ideals to eradicate the localized versions.
My book therefore concludes that the English did not apply the constitutional ideals against extralegal power as systematically as did Americans in the U.S. Constitution. (57) Put another way, whereas Craig views the existence of localized administrative power in England as proof that there was no English constitutional rejection of extralegal power, I view such instances of administrative power as limitations and exceptions--as instances in which the English turned a blind eye to their constitutional ideals that barred extralegal power.
None of this should be a surprise. The central political event of the seventeenth century was the English Revolution of the 1640s and the intellectual revolution that came with it, including constitutional ideals about limiting power. These ideals included, as elaborated in my book, ideals of rule through and under law and ideals about limiting both royal and Parliamentary (or executive and legislative) power. Partly in response to the ideal of rule through law, the English abolished the Star Chamber and other royal mechanisms for binding subjects extralegally. The English, however, dealt only with the problem in front of them. They therefore did not address Parliament's absolute power--indeed, they affirmed Parliament's absolute power by using it as a counterweight to the king's absolute power. Nor did they reject localized administrative power. Many of their constitutional principles were general, but they did not apply them systematically. Thus, many English instances of administrative power survived and developed as exceptions or limits to more general constitutional ideals that rejected extralegal power.
Of course, there were conflicting views of the English constitution and its ideals. The dominant constitutional theory, that of Parliamentary supremacy, could justify Parliament in authorizing extralegal power--a binding power imposed not merely through acts of Parliament and the courts, but through other edicts. But even many of the Englishmen who accepted Parliament's supremacy also expected Parliament to live up to other constitutional ideals--for example, about juries--that had evolved in response to extralegal prerogative power.
Taking such ideas further, English radical Whigs recalled the broad constitutional ideals of the past century and envisioned a more complete constitutional rejection of extralegal power than prevailed among most of their contemporaries. They worried, on the one hand, about the revival of royal prerogative power and, on the other, about suggestions that Parliament was absolute. The Swiss theorist DeLolme popularized some of their ideas when he wrote: "The basis of the English constitution, the capital principle on which all others depend, is that the legislative power belongs to Parliament alone; that is to say, the power of establishing laws, and of abrogating, changing, or explaining them." (60) In this way, although radical Whigs and sympathizers such as DeLolme had little to say about localized administrative power, they kept alive the constitutional ideals that could have disruptive implications for such power.
When Americans rejected Parliament and its supremacy, and when they established constitutional limits on all government power, they naturally recalled seventeenth-century English experience and the ideals that had come out of that crucible. And their guides in turning to that history and its intellectual product were legal sources such as Bacon's Abridgment, the radical Whigs, and writers like DeLolme.
Of course, none of this was determinative of what Americans would do, but Americans inherited some ideals that cut generally against extralegal power, and they tended to apply their versions of them far more systematically than the English. As will be discussed below, Americans retained much localized administrative power in the states, and even under the U.S. Constitution, there were some complicated questions at the margins. (61) On the whole, however, in the U.S. Constitution, Americans systematically barred extralegal power, including much of the localized administrative power that the English retained.
English administrative power of the seventeenth and eighteenth centuries thus does not disprove the existence of constitutional ideals opposed to extralegal power. On the contrary, the survival of English administrative power shows how systematically Americans pursued such ideals in the U.S. Constitution.
Craig's most basic Austinian error is his use of positive measures of law to understand constitutional ideals. He repeatedly focuses on what Parliament or the courts permitted or barred, as if ideas about the English constitution can be measured by looking simply at what Parliament and the courts did. (63) He undoubtedly is correct that Parliament authorized English administrative bodies and that neither Parliament nor the courts rejected most English instances of administrative power as unlawful. Accordingly, if Parliament and the courts were the end of the matter, he would have a point.
Craig's second Austinian error is to assume the unity and consistency of law. He assumes that general English constitutional ideals and particular instances of English power corresponded so consistently that if there were particular instances of administrative power, it cannot be said that general constitutional ideals barred extralegal power--as if English law could be reduced to a single consistent thing, in which all particulars matched a uniform generality. He thus takes for granted that the instances of administrative power on the ground disprove the existence of general constitutional ideals that Americans could draw upon. But was there a single English vision of law, which was so consistently applied that one can measure the constitutional ideals merely by looking at particular instances of administrative power?
A better approach is to recognize layers of constitutional thought, including not only the decisions of Parliament and the courts, but also constitutional ideals. Even a single individual will at times have conflicting general conceptions and will often depart from them in his particular actions. These discordant tendencies are all the more evident when one is studying a nation. One therefore cannot assume that the existence of administrative practices disproves the existence of contrary constitutional ideals.
Indeed, enclosure determinations were problematic, and although Homer understood that no court would hold the determinations or the authorizing statutes void, he could observe the constitutional difficulty and seek to minimize it.
Put generally, in response to the prerogative, the English prominently developed at least some constitutional ideals that rejected extralegal power, and administrative power could be in tension with these ideals. Parliamentary supremacy offered another, more forgiving, set of constitutional ideals, but even under these ideals, administrative power could seem to violate constitutional rights. All of these contradictions, although not compatible with Austinianism, are what one would expect in England's legal system.
The key point is that, notwithstanding Craig's Austinianism, there were ideals of the English constitution that rejected extralegal power, and these ideals impressed many Americans. Indeed, American constitutions, especially the U.S. Constitution, pursued versions of such ideals more systematically than the English. On this, the evidence is abundantly clear, and the existence of English deviations takes nothing away from this conclusion.
In imagining that the existence of administrative power in England somehow negates the existence of constitutional ideals that, at least in America, would bear down on administrative power, Craig goes beyond an Austinian approach to history; he also ignores some basic historical elephants. He ignores the key political revolution in each century of Anglo-American history that he discusses: the English Revolution, the American Revolution, and the German introduction of administrative power.
Revealingly, Craig has nothing--absolutely nothing--to say about the English Revolution of the 1640s and the associated constitutional ideals. Just how far Craig goes in trying to avoid recognizing the Revolution and the associated rejection of extralegal power, at least as to the absolute prerogative, has been seen in his account of the abolition of the Star Chamber (in Part I.D). Of course, if one airbrushes away the English Revolution and the constitutional ideals that pushed back against extralegal power, then it is easy to point to local and other non-centralized administrative power to repudiate the idea that the English developed ideas that cut against extralegal power. But if one includes the English Revolution in one's vision of history, one cannot avoid seeing the rejection of extralegal power.
When Craig gets to the eighteenth century, he ignores the absolute power of Parliament and how it was rejected in the American Revolution. He repeatedly observes that Parliament authorized administrative power and that the courts accepted this, but what he does not even mention is that Parliament was widely assumed to have what Blackstone knowingly called an "absolute despotic power." (70) Nor does Craig have anything to say about the rejection of such power by many lawyers, by radical Whigs, and by Americans in the Revolution. In fact, a central point of the American Revolution was to reject Parliamentary absolutism. As Iredell recalled in North Carolina in 1786, Americans "were not ignorant of the theory of the necessity of the legislature being absolute in all cases, because it was the great ground of the British pretensions." (71) In this context, it is unremarkable that the English retained some extralegal power and that the U.S. Constitution more systematically rejected such power. In short, it needs to be understood that the English accepted administrative power under a system of absolute Parliamentary power, and that this does not discount either the existence of countervailing constitutional ideas in England or the American pursuit of such ideas during and after the American Revolution.
Topping off his indifference to the English and American Revolutions, Craig ignores the transformative role of Continental absolutist ideas. (72) Many of the seventeenth- and eighteenth-century administrative bodies that Craig treats as traditionally English (for example, commissions of sewers, bankruptcy, enclosures, and excise) followed civilian inquisitorial process rather than the common law's due process of law, and they thus can be viewed as early imports of extralegal power. (73) As Matthew Hale explained when discussing the due process required in courts of law, the civilian-style commissions proceeded by "other rule or trial than the common law." (74) This inquisitorial process was the traditional opposite of the due process of law, and the English therefore remained reluctant for a long time after the English Revolution to expand the spheres of English life that could be governed by it. Of course, as I have explained before, English "deviations from the due process of law were justified by acts of Parliament, which claimed a power not limited by constitutional rights or allocations of powers." (75) But in America, the due process and other constitutional problems with civilian-style commissions could not be so easily brushed aside.
It is serious enough that Craig fails to recognize the Continental derivation and character of much seventeenth- and eighteenth-century English administrative power; even more sobering, however, is his complete indifference to the nineteenth-century transformation of American governance on the basis of Continental, and especially German, administrative ideas. (76) At least until 1914, the founders of American administrative power tended to admit quite candidly that the Continental states had developed administrative power from the old absolute power and that it was necessary to study the administrative scholarship of the Prussians because they had perfected administrative power. (77) The Americans who took this path sometimes tried to justify what they were doing by looking back to localized English administrative practices, but it is abundantly clear that the German ideas were central--that they inspired and were used to justify much of what became American administrative power. (78) Craig, however, does not seem to recognize that the development of twentieth-century federal administrative power came largely through Prussia.
Overall, Craig's article lacks any recognition of the continuity of one of the most fundamental of legal problems. In a system of law, there is a persistent danger that rulers will be tempted to govern through other mechanisms, and this has led to a lasting tension between rule through the avenues of law (the acts of the legislature and the courts) and rule through other paths. This is why my book focuses not merely on prerogative or administrative power, but ultimately on extralegal power. The problem of extralegal power is enduring, and it is a profound mistake to ignore this reality.
Once one recognizes the continuing danger, one can look far beyond English history to see the risk for the United States. The point is not merely to understand the Constitution's rejection of extralegal power, although this is important. Even more seriously, the goal is to recognize history as a form of experience, from which one can learn about recurring human dangers and the possible solutions. But one cannot do any of this if one refuses to acknowledge the elephants.
Notwithstanding the failings of Craig's approach to the history, his article draws attention (even if clumsily) to an interesting question about the place of localized and especially local administrative power in a system whose constitutional principles generally reject extralegal power. As already noted, although the English in the mid-seventeenth century rejected their central prerogative or administrative bodies--the Star Chamber and the High Commission--they continued to have a wide range of local and non-royal administrative bodies. What was the relationship between the rejection of the central prerogative tribunals and the retention and even expansion of other administrative bodies?
When the English developed constitutional principles in response to prerogative power, they did not resolve the question of localized administrative power on a theoretical level. In most instances, however, they tempered localized administrative power to avoid its "absolute" character--here, meaning its arbitrary discretion--and in this way moved toward what would later be considered a Rechtsstaat approach.
On the whole, local and other non-centralized administrative power in England remained an exception, which was tolerable for several reasons. First, doctrine usually tempered administrative discretion and otherwise limited the exercise of binding power; second, much of local administrative power was in the hands of justices of the peace, who could at least give judicial sanction to its judicial aspects; and third, it was local and in the hands of local elites, thus preventing it from becoming an instrument of centralized tyranny.
After the stillbirth of the 1849 Frankfurt Imperial Constitution, when German liberals lost their bid to establish a strong version of the Rechtsstaat, the Prussian jurist Rudolph von Gneist celebrated English administrative self-government, dominated by landowners and exercised through justices of the peace, as a counterweight to the absolutist Prussian model. (84) Certainly, as compared to Prussian anti-constitutional absolutist doctrines, the English local model seemed a source of valuable ideals. Eighteenth-century Americans, however, began not with traditional Continental absolutism, but with a strong sense of constitutional ideals, drawn largely from the English rejection of the absolute prerogative. In America, therefore, localized administrative power was not a source of constitutional ideals but an awkward deviation from them.
To illustrate how Americans wrestled with this problem, the book recites how George Mason and his colleagues on the Alexandria County Court disagreed about a county levy. In Virginia, county courts served in an executive or administrative role when engaged in local governance, and in this role, they often imposed levies to maintain county buildings, on the theory that they were merely determining and giving notice of the duty to support county structures.
Fairfax County Court refused to impose a levy for its construction.
This illustrates that there were tensions between inherited administrative practices and American constitutional ideals.
Most interestingly, the story is a reminder that the resolution of the tensions was different at different levels of government. Each state had its own constitution, and therefore it is difficult to generalize. But on the whole, just as Americans applied their constitutional ideals against administrative power more systematically than the English, so the Federal Constitution was more systematic than most state constitutions. Some state constitutions (such as that of Virginia) stated principles that precluded extralegal power, without usually being understood to bar at least some local administrative power (in counties and municipalities). And other state constitutions may have resolved the question differently. The Federal Constitution, however, repudiated all extralegal power, with only a few complications at the edges.
Thus, in both England and America, there was some tolerance for local and perhaps some other localized administrative power. But federalism allowed Americans in the U.S. Constitution to establish strong principles against extralegal power, without the sort of tension between constitutional principles and localized administrative practices that was evident in states such as Virginia. The U.S. Constitution, in other words, barred extralegal power more systematically than the states. And this was part of a more general layering of extralegal power, in which it was tolerated to some extent locally in the states, much less commonly at the state level, and hardly at all nationally.
This discussion must close by noting that Craig's article can be considered in the context of the long-standing attempts to legitimize administrative power by harking back to seventeenth- and eighteenth-century English "administrative" power. (91) The effect of such efforts is to suggest continuity and constitutionality and to push aside concerns about the revival of extralegal power. There are, however, serious problems with placing much emphasis on traditional English administrative power for purposes of understanding contemporary administrative American power.
One problem is the very word "administrative." In emphasizing traditional English administrative power, and thereby dismissing the significance of the absolute prerogative, Craig's argument has immediate plausibility because he talks in terms of English "administrative power." (92) If there really was something called "administrative power" in the seventeenth and eighteenth centuries, this clearly would seem to be the antecedent of contemporary administrative power. Case closed.
But the array of powers Craig discusses under the rubric of "administrative" was not a unitary thing in the seventeenth and eighteenth centuries. Some of it (for example, the excise) was centralized; some (for instance, bankruptcy) was dispersed among temporary commissions formed by private persons; and most was local, primarily in the hands of justices of the peace. Moreover, none of it was ordinarily called "administrative." (93) This label is a later anachronism, which unifies diverse areas of law and makes them seem analogous to contemporary administrative power. Accordingly, when Craig speaks of English "administrative" power, he gives disparate practices a conceptual unity and a breadth of constitutional significance that cannot be assumed.
A second problem with the suggestion of historical administrative legitimacy is one of descent or genealogy. Although American government slowly drifted toward administrative power over the course of the nineteenth century, it accelerated its move in this direction, and even embraced centralized administrative power, only after Americans studied German absolutist theory. (94) Constitutional law had defeated the absolute prerogative in England and more completely in America, especially in the U.S. Constitution, but absolute power survived on the Continent, where it flourished. (95) The Prussians in the seventeenth and eighteenth centuries most systematically set out to convert the old monarchical power of the king into the bureaucratic power of the state, and in the nineteenth century, Prussian academics became the leading theorists of administrative power. (96) They made no secret of its absolutist heritage and its anti-constitutional character. (97) On the contrary, they boasted of this, and it therefore is all the more revealing that American progressives in the late nineteenth century flocked to Germany to study administrative law --even under the influence of men such as Heinrich von Treitschke (the idealist of the Machtstaat). (98) The American advocates of administrative power, before 1914, clearly recognized its foundations in Continental absolutism as transmitted through German theory. (99) In short, American administrative power not only revived the absolute power of monarchs but actually was directly descended from it.
This Continental derivation of much American administrative power, moreover, is why it is called "administrative." The Germans called it Verwaltungsgesetz, which is a mouthful for Americans, but the French, in replacing the monarch's power with the state's bureaucratic power, called it administratif, and this is what stuck. (100) It thus becomes evident that the name actually confirms the significance of prerogative power, not the traditional and mostly local power that Craig calls "administrative."
The third and most serious problem with looking back to seventeenth-and eighteenth-century English "administrative power" is the difference in substance. The power to which Craig alludes was mostly local or at least localized, not centralized. It was mostly in the hands of local and mercantile elites rather than members of the knowledge class. Although it thus could have serious costs, not least for those outside the elites, it avoided the danger of placing much power in the hands of persons who, as a class, tended to idealize what could be accomplished through central government power and who tended to feel dependent on its wealth. And to all of this must be added a structural distinction. Because the power to which Craig recurs was mostly local, or at least decentralized, and because in America it was largely under the oversight of the states (or Congress when acting in localities in place of the states), such power as it traditionally existed is a poor foundation for understanding the structural dangers of such power as it currently is exercised by the federal or other central governments.
For all of these reasons, when scholarship (such as Craig's) legitimizes current administrative power by harking back to the localized administrative power of the eighteenth century, there is reason for caution. Whatever the merits of such work, it cannot displace the need for understanding how prerogative power spurred fears of extralegal governance and how such fears shaped the U.S. Constitution.
Craig undoubtedly is correct in thinking that an argument rejecting administrative power under the U.S. Constitution must discuss seventeenth- and eighteenth-century English administrative powers. And that is what my book does. Our differences about traditional English administrative powers are therefore not so much in the evidence as in how to interpret it.
For purposes of accurate interpretation, one cannot rely on Austinian methodology to understand England's unwritten constitution, one cannot shut one's eyes to the revolutions of the seventeenth through nineteenth centuries, one cannot ignore the different approaches to localized and centralized extralegal power, and one cannot place much weight on a retrospective label such as "administrative power." When one avoids these and similar errors, one can better understand English constitutional ideals and how they appealed to Americans. And one thereby can understand the distinctively American results.
It would be gratifying to stop at this point. In addition to his historical confusion, however, Craig questions my argument against extralegal power by muddling up an important conceptual point. He suggests that my critique of extralegal power crucially depends on the distinction between legislative and judicial power. Well, not really.
Certainly, the distinction between legislative and judicial power can be complicated, but this distinction is not very significant for my book, because its argument condemns all extralegal power, regardless of whether it is legislative or judicial. (103) Of course, the distinction matters for purposes of allocating power between the legislature and the judiciary, but it makes no substantial difference for condemning the extralegal power of executive or independent agencies.
In attempting to write from the shores of eighteenth-century England, Craig misstates both the history and its significance. Nonetheless, his critique valuably raises some important questions, and I am grateful to him for the opportunity to address them.
His Arguments. Craig's arguments are mistaken about the facts of prerogative power and about the English and American constitutional responses to both prerogative and administrative power. He thereby fails to understand why such things might matter for American constitutional law.
I. Prerogative. Against my thesis about the administrative revival of prerogative power, Craig claims that prerogative power was independent of statute and thus different from administrative power. Some prerogative power undoubtedly was independent of statutory authorization and limits, but (as by now should be clear) this is not to say that prerogative power generally was unauthorized and unlimited by statute. Craig's argument about statutory independence therefore does not distinguish prerogative and administrative power. Nor is it even responsive, for my thesis is that administrative power revives the extralegal character of the absolute prerogative. Thus, even if he were right, it would not refute the reality that extralegal power is what once pervaded absolute prerogative power, what now pervades administrative power, and what thus has been revived.
II. Administrative. Against my argument that the English constitution developed in response to extralegal power, Craig points to the existence of seventeenth- and eighteenth-century English administrative power. There certainly was much local and otherwise non-royal extralegal power in seventeenth-and eighteenth-century England--what in retrospect can be called "administrative" power--but it does not disprove that there was an English foundation for the American constitutional rejection of extralegal power. Under England's customary constitution, the law is not merely what Parliament and the courts do, and one therefore must also consider constitutional ideals. Of course, there was disagreement about the constitution, and the dominant ideals favored absolute Parliamentary power, but at the same time, Parliament was widely expected to conform to more limiting constitutional ideals, which had developed in response to extralegal prerogative power. Thus, notwithstanding the existence of administrative power in England, Americans had much to learn from the English constitution. That constitution was not, to be sure, what Austin would acknowledge as law, but nineteenth-century positivism is a poor guide for understanding eighteenth-century history.
III. Legislative v. Judicial. The distinction between legislative and judicial power is very important for understanding how to allocate power between the legislature and the courts. It is a mistake, however, to assume that one needs a refined understanding of this distinction for purposes of the constitutional objection to extralegal power. If all power to bind extralegally is unconstitutional, one can argue against such power without worrying about whether, in any particular instance, it is legislative or judicial.
The Underlying Questions. Notwithstanding these problems with Craig's critique, it usefully draws attention to some critical questions about early administrative power.
How can one distinguish absolute prerogative power and administrative power in seventeenth- and eighteenth-century England? Not, evidently, by suggesting that the one was without the statutory authorization and limits characteristic of the other, for much prerogative power had statutory foundations and limits. Nor can one distinguish the two by considering the one personal and the other bureaucratic, for although this was true in high theory, it was not true in lower-level theory or in fact. Instead, the difference lies along different lines. The absolute prerogative power and traditional English administrative power both involved forms of extralegal power, but the one was centralized and the other localized.
How did the English resolve the tensions between their inherited types of administrative power and their constitutional principles? When the English struggled against the absolute prerogative--that is, against centralized extralegal power--they developed general constitutional ideals, which were in tension with not only the centralized extralegal power, but also the local and other non-royal versions of it. The English in the seventeenth and eighteenth centuries, however, employed these ideals mainly against the centralized extralegal power that worried them. Of course, the localized extralegal power could be abused, and the English in the seventeenth century developed doctrines that limited its conflict with their constitutional ideals, but the localized extralegal power did not pose a threat of centralized political tyranny and therefore did not provoke a direct constitutional response.
And how did Americans resolve the tensions between their inherited types of administrative power and their constitutional principles? Different states had different constitutions, and it therefore is difficult to go into detail about the state solutions. At least in some states, such as Virginia, there were tensions between inherited local administrative power and the state's constitutional generalities. In the U.S. Constitution, however, Americans barred almost all extralegal power, even if with some complicated questions at the margins.
Overall, Craig's errors notwithstanding, many English and American constitutional principles developed in response to the danger of extralegal power, as manifested in the absolute prerogative. Although the English did not use these principles against their inherited and mostly localized administrative power, Americans in the U.S. Constitution pursued their constitutional principles more systematically.
All of this is regrettable, for it cuts short the possibility of a useful debate. This brief Postscript therefore does not bother to reiterate my inadequately answered arguments, or to answer each of his misstatements and other mistakes. Instead, it merely suggests the nature of his mode of argument.
The notion of extralegal power is ancient and not very complicated. And it is useful for understanding both prerogative and administrative power. Nonetheless, Craig persists in misconceiving and misstating what I mean by "extralegal." This leads him far astray.
Much of Craig's second critique runs into trouble by confusing "extra-legal" with "unlawful." It is not unreasonable for Craig, if he wishes, to think that "extralegal" means unlawful, but that is no excuse for attributing such a view to me.
My argument repeatedly distinguishes between what is extralegal and unlawful. For example, it observes that in the seventeenth century, many commentators viewed prerogative power as unlawful but not most localized administrative power. (111) Similarly, it notes that although the U.S. Constitution generally bars extralegal acts, this cannot be said of all state constitutions. (112) Even under the U.S. Constitution, I argue, there is room for local extralegal power where Congress is regulating localities such as territories and the District of Columbia. Clearly, therefore, my argument is not that extralegal means unlawful.
Craig, however, creates an easy target by repeatedly portraying my argument as one in which extralegal necessarily implies unlawful. He thereby accomplishes nothing but to set up forty pages of misplaced criticism.
When attacking an argument, however, it is helpful to understand the ways in which it can make sense. Indeed, if an opposing argument seems nonsensical, this usually is a valuable warning that one should pause to consider whether one is missing something.
Nonetheless, Craig is emphatic: "There is no sense in which [administrative] power, or its exercise, is extralegal, irregular, or extraordinary; and there is no sense in which the decisions thus made should or could be regarded as directives that bind subjects other than through law." Really?
His underlying confusion becomes apparent from his explanation that the things my argument calls "extralegal" have never been "so regarded by the courts." (119) This is revealing. On his mistaken assumption that I think "extralegal" necessarily means unlawful, he reasons that because administrative power has been upheld by courts, my view that it is extralegal makes "no sense." It thus becomes apparent that, when he says there is "no sense in which [administrative] power... is extralegal, irregular, or extraordinary," he is failing to consider the sense in which my work uses the terms. But Craig just cannot see that.
Indeed, Richard Tuck recognizes not only the centrality of extralegal power in England but also its Continental and especially German foundations. When writing about Charles I's attempt to raise an army, Tuck explains that because "Parliament, like the German estates, was unwilling to provide new legal guidelines" on raising an army, "the king, like the German princes, had to plead necessity, and to claim that the extra-legal use of his prerogative was justified by virtue of his general duty to protect the realm." (123) This extralegal aspect of the prerogative is what Craig initially denied. Unable to maintain that position, he now declares it nonsensical as to administrative power.
Why does the application of such ideas to administrative power lead Craig to emit a noncompute message? The answer (as already suggested) comes from his initial error in confusing extralegal with unlawful. When one mistakenly assumes that extralegal necessarily means unlawful, much can seem puzzling.
My argument is that the U.S. Constitution generally bars administrative power, and in this context, explains that administrative power revives the extralegal character of the prerogative power. Craig, however, does not accept what I argued or even what he argued. He misstates my arguments--sometimes giving them a breadth that they do not have, and sometimes simply ignoring that I made them. Topping it off, he denies that he said what he earlier clearly said and uses this to accuse me of misstating his views!
Craig repeatedly denounces me for arguing that English administrative power generally was and is unconstitutional. But that is not my argument, and Craig's repeated suggestion to the contrary is deeply misleading.
To be sure, my argument describes seventeenth- and eighteenth-century English administrative power as extralegal. But as now should be abundantly clear, the point is not that English administrative power was or is unconstitutional. On the contrary, my argument is that some English constitutional principles were broad enough to be in tension with administrative power in England, but that such principles were not typically applied to administrative power. The tension was avoided partly with a strained conceptualization of administrative acts as mere determinations, partly with doctrines designed to tame administrative discretion, and more generally by treating such acts as limits or exceptions. (124) It therefore is simply false to suggest that, in my argument, English administrative power generally was or is unconstitutional.
And this should be unsurprising, for my goal is to understand American administrative power. The English argument is merely about the development of constitutional principles that would matter for Americans, not about the legal implications in England. In fact, my argument is not even generally about American administrative power but rather is restricted to the unconstitutionality of federal administrative power under the U.S. Constitution.
As so often, he goes off on the wrong track because of his initial mistake in imposing his own meaning on "extralegal," claiming that I thereby denote or imply what is unlawful. As seen above, however, that is not my meaning, and by disregarding what I mean, he creates an imaginary version of my argument that is so broad as to be untenable.
Craig repeats his claim that my argument "elides prerogative and administrative power." (127) Of course, I don't adopt his distinction, according to which prerogative was independent of statute and administrative power was not, for that is contrary to the evidence (as noted in Part I of Early Prerogative and Administrative Power and Part II.C of this Postscript). But I do distinguish prerogative and administrative power as different types of extralegal power--the one centralized, and the other localized. (128) Therefore, when he repeatedly suggests that I do not distinguish the two, he again is misstating my views.
It will be recalled that Craig distinguishes prerogative and administrative power by claiming that whereas the former was "independent of statute," the latter was authorized and limited by statute. In fact, however, as shown by Part I of my Early Prerogative and Administrative Power, his distinction is utterly mistaken, for the prerogative often was authorized and limited by statute. Now, rather than concede that he was in error when saying that the prerogative was independent of statute, Craig claims he never said what he seems to have said and accuses me of misstating his views. Really? Let's unpack the question, so the reader can judge.
First, as to statutory authorization, he now protests that when saying the prerogative was "a species of executive power that exists independent of statute," he did not mean it was unauthorized by statute but rather merely that the prerogative was independent within its admitted boundaries--"What I said was that the prerogative entails a ground of lawful authority in English law that exists independently of statute, in the sense that the executive can lawfully act within the bounds of an admitted prerogative even though there is no legislative authority for the action." (129) But of course this is not what he said. Indeed, he expressly said the opposite. When discussing the "relationship between the prerogative and statute," he concluded that "almost all administration was based on statute, not the prerogative." (130) Having said this about prerogative, why is he now saying he never said or even meant this?
determined by the courts. . . .
A "constraint" presumably is a limit, and whereas one kind "concerned the prerogative, which is a species of executive power that exists independent of statute," the other kind "concerned statute." This sure sounds like a contrast between a power that is not "constrained" or limited by statute and one that is so constrained.
Perhaps I should thank Craig for his backhanded concession that prerogative and administrative power cannot be distinguished on his theory of a prerogative "independent of statute." But a concession that denies what he plainly said, and falsely accuses me of misstating his views, does not provoke a sense of gratitude.
Craig sticks to his guns in claiming that my argument fails adequately to distinguish legislative and judicial power and that this is crucial to my argument. As noted in Part II, however, the distinction is not really relevant for purposes of my constitutional argument against federal administrative power.
He defends his critique by saying that it was "not directed at the divide between legislative and judicial acts," but rather was "directed at the meaning that Hamburger ascribed to each of these terms." (133) This, however, misses the point. Leaving aside the merits of my distinction between legislative and judicial acts, the problem with Craig's objection is that the distinction does not matter for my constitutional argument.
My argument is that, under the U.S. Constitution, binding edicts, other than those of Congress or the courts, are generally unlawful. Accordingly, although the distinction between legislative and judicial power is useful for allocating authority among the branches, it is entirely unnecessary for recognizing the unlawfulness of an administrative act. For example, when an agency purports to create any legal obligation, it is acting unconstitutionally, and to reach this conclusion, one need not decide whether the agency's act was legislative or judicial. Craig's elaborate thoughts on the distinction are therefore entirely misplaced.
He, however, insists that the distinction is "crucial for Hamburger's project." (134) For example, he says that the definition of judicial power is "seminal" because it "signifies the boundary between what is lawful and unlawful." (135) No, not in my argument.
Some English constitutional ideals cut against extralegal power, and Americans found these ideals relevant to their circumstances. But Craig, in his initial critique, dismisses all of this because of what he called the "constitutional realities" of statutes and court decisions. In viewing these "realities" as dispositive about the English constitution, he did not even acknowledge that Parliamentary sovereignty left the courts no choice but to accept what Parliament did; nor did he recognize that England's unwritten constitution inevitably included many ideals that could not be given effect by the courts.
In short, Craig's mistaken assumption that extralegal means unlawful leads him to rely heavily on what he admits are "positivist sources," and he thereby sweepingly brushes aside as trivial most of the English constitutional ideals and traditions that cut against unlimited Parliamentary power. (141) He thereby misunderstands English constitutional history, especially the constitutional ideals that appealed to so many Americans.
Last but not least, it unfortunately is necessary to mention the tone of Craig's piece. The sense of contempt is palpable, and it is given force by repeated ad hominems.
Readers familiar with me and my scholarship can judge for themselves the merits of these statements. What matters here is that ad hominems have no place in academic debate. They are distractions from the substantive questions and are downright silly coming from a scholar who repeatedly and dogmatically misstates my arguments.
Craig's original critique is so distant from the historical evidence as to be puzzling. What would lead a serious scholar--indeed, an Oxford professor--to assert that the prerogative was independent of statute; to ignore the distinction between the absolute and ordinary prerogatives; to deny that the absolute prerogative was extralegal in the sense that it evaded acts of Parliament and the courts; to deny that the English constitution developed in large part in response to this sort of threat; to disregard English constitutional ideals by emphasizing positivist "realities"; to describe seventeenth- and eighteenth-century law on the basis of nineteenth-century statutes; to argue about such law from global word searches in a database covering the period 1220 to 1867; to assert the importance of early English "administrative" power without recognizing that the English did not then understand such power as unitary or even as "administrative"; to ignore Continental civilian and German influences; and so forth. What was he thinking?
His second critique is even more puzzling. Why would a serious scholar restate his arguments without responding to the substance of most of my criticisms? What would lead him to deny that he made his own prior arguments? And why would he repeatedly misstate my arguments--in ways that ensure they are "wrong" and make "no sense"?
If this is Craig's idea of intellectual debate, include me out.
(*) Maurice and Hilda Friedman Professor of Law, Columbia Law School. Although Professor Hamburger was unable to attend the conference, he later submitted this Article. This Article originally appeared on SSRN under the title "English Experience and American Administrative Power."
(1.) PHILIP HAMBURGER, IS ADMINISTRATIVE LAW UNLAWFUL? 1 (2014) [hereinafter HAMBURGER, UNLAWFUL]. This Article modernizes the spelling and capitalization of all quotations.
(2.) Paul Craig, The Legitimacy of US Administrative Law and the Foundations of English Administrative Law: Setting the Historical Record Straight 2-4 (Univ. of Oxford Legal Research Series, Paper No. 44, 2016), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2802784 [hereinafter Craig's First Critique].
(3.) See, e.g., James Landis, The Development of the Administrative Commission: An Address Before the Swarthmore Club of Philadelphia, February 27, 1937, in ADMINISTRATIVE LAW: CASES AND COMMENTS 1, 2-3 (Walter Gellhorn ed., 1947).
(4.) For more on what I mean by "extralegal," see infra Part I.B. See generally HAMBURGER, UNLAWFUL, supra note 1, at 21-24. For a qualification, see id. at 84-85.
(5.) In saying that the nonbinding elements of prerogative power tended to be considered part of executive power and generally were thought constitutional, this Article recognizes that American constitutions could fully or partly relocate these previously royal powers from the executive to the legislature. The Virginia Constitution partly shifted the pardon power to the legislature. VA. CONST. art. V, [section] 12 (West, Westlaw through 2016 Regular Session). The U.S. Constitution relocated the power to grant letters of marque and reprisal to Congress. U.S. CONST. art. I, [section] 8, cl. 11. And tellingly, when the U.S. Constitution made treaties part of the supreme law of land and thus potentially binding, it required Senate ratification. Id. art. II, [section] 2; id. art. VI.
(6.) Craig's First Critique, supra note 2, at 3, 13.
(7.) HAMBURGER, UNLAWFUL, supra note 1, at 5-6. Note that the word "absolute" could have other meanings. For example, it could suggest "unlimited discretion up to the limits of law." Id. at 25, n.b. But that is another matter.
(8.) Craig's First Critique, supra note 2, at 13.
thus determined by the courts. . . .
Id. See also id. at 29 ("[T]he courts placed limits on the exercise of prerogative adjudication."); id. at 29-30 ("[A]lmost all administration was based on statute, not the prerogative.").
(10.) An Act Giving the Court of Starchamber Authority to Punish Divers Misdemeanors 1487, 3 Hen. 7, c. 1 (Eng.). For historians of the late fifteenth century, there is a question as to what the 1487 statute really accomplished, for the Star Chamber "probably had already been recognized as a court, and... the 1487 statute merely authorized it to address a narrow range of offenders." HAMBURGER, UNLAWFUL, supra note 1, at 135. One way or another, Parliament evidently thought that at least part of the Star Chamber's authority rested on statute.
(11.) An Acte for the Uniformitie of Common Prayoure and Dyvyne Service in the Churche, and the Administration of the Sacramentes 1559, 1 Eliz., c. 2 (Eng.).
ministers of their livings, but the court was not content with this.
contemporary extensions of administrative authority.
being condemned as extralegal instruments of extralegal power.
HAMBURGER, UNLAWFUL, supra note 1, at 135-36.
(13.) William F. Duker, The President's Power to Pardon: A Constitutional History, 18 WM. & MARY L. REV. 475, 480-97 (1977).
(15.) An Act that Proclamations Made by the King Shall be Obeyed 1539, 31 Hen. 8, c. 8 (Eng.).
(18.) An Act concerning Monopolies and Dispensations with Penal Laws, and the Forfeitures thereof 1624, 21 Jac., c. 3, [section][section] 1-2 (Eng.); The Petition Exhibited to His Majestie by the Lordes Spirituall and Temporall and Commons in this present Parliament assembled concerning divers Rightes and Liberties of the Subjectes: with the Kinges Majesties Royall Aunswere thereunto in full Parliament 1628, 3 Car., c. 1, [section] 10 (Eng.); An Act for the Regulating of the Privy Council and for Taking Away the Court Commonly called the Star Chamber 1641, 16 Car., c. 10 (Eng.); An Act for the Better Secureing the Liberty of the Subject and for Prevention of Imprisonments Beyond the Seas 1679, 31 Car. II, c. 2, [section] 1 (Eng.); An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown 1689, 1 W. & M., Sess. 2, c. 2, [section][section] 1, 2 (Eng.); An Act for the Further Limitation of the Crown and Better Securing the Rights and Liberties of the Subject, 12 & 13 Will. III, c. 2 (Eng.).
(19.) Craig's First Critique, supra note 2, at 31.
(20.) Id. (quoting HAMBURGER, UNLAWFUL, supra note 1, at 23).
(23.) Indeed, he offers no proof of this, other than the above-quoted passage in which I explain that extralegal does not mean unauthorized. Id.
(24.) As if all of this were not enough, Craig also assumes that when I speak of the extralegal acts of agencies, I am speaking of extralegal acts of legislatures. Id. at 60 ("Legislation that Hamburger would classify as embodying 'extralegal adjudication' or 'extralegal rulemaking' was not thus regarded by the courts."). My book carefully does not confuse the extralegal character of administrative acts with any such conclusion about the statutes that authorize them.
(25.) For the king's prerogative in habeas, see Philip Hamburger, Beyond Protection, 109 COLUM. L. REV. 1823, 1906-07 (2009).
legislative, judicial, and executive powers, it was consolidated.
HAMBURGER, UNLAWFUL, supra note 1, at 25.
(27.) Craig's First Critique, supra note 2, at 59.
(28.) HAMBURGER, UNLAWFUL, supra note 1, at 53.
(29.) Id. at 285-86 (quoting FRANCIS BACON, THE ELEMENTS OF THE COMMON LAWES OF ENGLAND 38 (1992)). For the difference between absolute and ordinary power, see FRANCIS OAKLEY, OMNIPOTENCE, COVENANT, & ORDER: AN EXCURSION IN THE HISTORY OF IDEAS FROM ABELARD TO LEIBNIZ 109-16 (1984).
(30.) OAKLEY, supra note 29, at 115-16.
(31.) He writes: "The existence and extent of prerogative power were thus determined by the courts." Craig's First Critique, supra note 2, at 13. See also id. at 29 ("[T]he courts placed limits on the exercise of prerogative adjudication.").
(32.) OAKLEY, supra note 29, at 115.
(33.) Id. at 109 (quoting SIR JOHN DAVIES, THE QUESTION CONCERNING IMPOSITIONS, TONNAGE, POUNDAGE 30-32 (1656)); see also id. at 109-12 (Oakley's analysis and his comment that "[t]he rhetoric of their overeager propagandists to the contrary... popes, emperors, and kings were not God").
(34.) Craig's First Critique, supra note 2, at 13.
(35.) PHILIP HAMBURGER, LAW AND JUDICIAL DUTY 242-47 (2008) (regarding Parliament's absolute power, and quoting, for example, CHRISTOPHER ST. GERMAN, A TREATISE CONCERNYINGE THE DIVISION BETWEEN THE SPIRITUALTIE AND TEMPORALTIE 24 (1532) ("[T]he Parliament hath an absolute power . . . .")).
(36.) An Act for the Regulating of the Privy Council and for Taking Away the Court Commonly called the Star Chamber 1641, 16 Car., c. 10 (Eng.); An Act for the Repeal of a Branch of a Statute Primo Elizabeth Concerning Commissioners for Causes Ecclesiastical 1641, 16 Car., c. 11 (Eng.).
(37.) An Act for the Regulating of the Privy Council and for Taking Away the Court Commonly called the Star Chamber 1641, 16 Car., c. 10 (Eng.); HAMBURGER, UNLAWFUL, supra note 1, at 138. Of course, Parliament did not live up to its ideals. For the significance of the word "ordinary," in contrast to "absolute," see OAKLEY, supra note 29, at 43, 63 (regarding the difference between exercising power regularly, through ordained law, and irregularly, outside such law); WILLIAM J. COURTENAY, CAPACITY AND VOLITION: A HISTORY OF THE DISTINCTION OF ABSOLUTE AND ORDAINED POWER 87 (Pierluigi Lubrina ed., 1990) (on the earlier history of such language).
(38.) Craig's First Critique, supra note 2, at 30-31. In laying out his paradigms of administrative power, Craig writes about the "specific task" or the "specific statutory task" of an administrative agency. Id. at 15. For his vision of judicial review of administrative power, see id. at 6, 10-11.
(39.) Another example of Craig's rewriting of old law to match contemporary administrative doctrine can be seen in his treatment of the 1539 Act of Proclamations. Without any sixteenth-century quotations, he describes this as a statute "whereby Parliament gave an open-ended substantive regulatory power to the executive, which was not subjectmatter specific, to make rules without further recourse to Parliament, which rules would then be given the force of an Act of Parliament." Id. at 14. In thus suggesting that what "was especially constitutionally problematic was the grant of a general statutory authority," he washes away any possible constitutional implications for "subjectmatter specific" administrative rules. Id. at 13-14.
Similarly, he restates the 1610 Case of Proclamations in a way that legitimizes specialized prerogative lawmaking, saying it is "clear constitutional authority for the proposition that the prerogative that enabled the Crown to regulate some aspects of trade did not extend so as to accord it a generalized regulatory power to make rules concerning trade broadly conceived." Id. at 13. In fact, Coke stated that the king "by the laws of this realm cannot by his proclamation create anything to be an offense which not an offense before against the laws of this realm." HAMBURGER, UNLAWFUL, supra note 1, at 47. As for how the Case of Proclamations was understood by a prominent eighteenth-century legal source, see infra Part II.B and accompanying text on Matthew Bacon.
(40.) Craig's First Critique, supra note 2, at 19-27, 38-57.
(41.) Id. at 4-5 ("[W]hatsoever US courts and commentators choose to make of Philip Hamburger's thesis in the modern day they should not believe that it represents the legal and constitutional realities from England that American colonists, or the framers of the American constitution, would have been familiar with.").
(42.) For my understanding of "localized" to mean local and otherwise noncentralized, see infra Part II.B.
(43.) Craig's First Critique, supra note 2, at 10, 59.
(44.) Id. at 10, 18, 21-23, 29 (sewers); id. at 10, 35, 39-45 (bankruptcy); id. at 10, 26-27, 36, 45-51 (excise).
(45.) Id. at 20 (cattle distemper); id. at 20-21 (occupational); id. at 51-54 (enclosure); id. at 55-57 (turnpikes). Incidentally, Craig overstates the administrative character of turnpike trustees, but there is no need to pursue the point here.
(46.) HAMBURGER, UNLAWFUL, supra note 1, at 100-03, 151-54 (justices of the peace); id. at 100, 103 (licensing of alehouses); id. at 98-99, 205-06, 220 (sewers); id. at 178, 220 (bankruptcy); id. at 206-08, 220 (excise).
(47.) Id. at 183-86 (general warrants); id. at 186-90 (writs of assistance); id. at 383 (Privy Council duties).
(48.) Craig's First Critique, supra note 2, at 10 (guardians of the poor); id. at 10 (commissioners of railways); id. at 10, 14 (commissioners of tithes); id. at 10, 37 (factory inspectors).
(49.) See id. at 26, 39, 47, 49, 51, 53.
(50.) Id. at 51-54 (inclosure); id. at 56 (turnpikes); id. at 26, 47-49 (excise); id. at 23 (sewers); id. at 24-25 (poor).
(51.) Id. at 36 ("Between 1220 and 1867 there were 6,637 separate citations to certiorari, 5,563 to prohibition and 7,111 to mandamus.").
(54.) Id. at 9. See also id. at 58.
(55.) HAMBURGER, UNLAWFUL, supra note 1, at 2 ("In challenging the off-road driving, this book does not dispute the direction of substantive policy. For example, when this book objects to off-road exercises of binding power, it does not ordinarily question the policies thereby pursued by the government.").
(56.) See infra Part II.E.
(57.) HAMBURGER, UNLAWFUL, supra note 1, at 12 ("This antiprerogative stance developed initially in the English constitution, and it was pursued most systematically in the U.S. Constitution."); id. at 189 ("The response of Americans to the writs of assistance thus reveals how systematically the U.S. Constitution barred any return to administrative orders and warrants.").
(58.) 8 MATTHEW BACON, A NEW ABRIDGMENT OF THE LAW 80 (Sir Henry Gwyllim & Charles Edward Dodd eds., 1876).
subversion of the English constitution."
Parliament's legislative power, including its power of taxation.
Id. at 62 (citations omitted).
(60.) Id. at 49. Contrary to what Craig suggests, Craig's First Critique, supra note 2, at 28, it was DeLolme, not me, who "expressed the whig understanding that, after the abolition of the Star Chamber, the Crown was confined to its 'true constitutional office,' which included executing the law, but not adjudicating it." HAMBURGER, UNLAWFUL, supra note 1, at 141.
(61.) See infra Part II.E.
(62.) For Austin's positivism, see JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED (1834).
(63.) Craig's First Critique, supra note 2, at 34 ("[N]ot supported by the English jurisprudence."); id. at 53 ("There is no hint that this regulatory model was regarded as extralegal or constitutionally illegitimate by Parliament."); id. at 38 ("The grant of such power was not, however, regarded as constitutionally illegitimate by Parliament or the courts, nor was it perceived to be the exercise of extralegal authority); id. at 50 ("There is, however, no indication that the ordinary courts felt that the administrative regime for excise collection was extralegal or constitutionally suspect."); id. at 54 ("There is equally no hint that the regime in this legislation was regarded as constitutionally illegitimate by the courts."); id. at 60 ("Yet even this gives only a partial picture of how the administration was seen by the courts" and "the lack of fit between Hamburger's analysis and what the courts were actually doing.").
(64.) See generally Craig's First Critique, supra note 2. Interestingly, as noted in my book, English positivism developed from Continental, especially Prussian, administrative ideas. The Continental model of administrative power was what spurred Jeremy Bentham's interest in what became positivism, and Austin was not without his own German connections. See HAMBURGER, UNLAWFUL, supra note 1, at 445, 610-11 n.12. It therefore is rich that Craig relies on their thought to brush aside English constitutional ideals.
(65.) See, e.g., Craig's First Critique, supra note 2, at 5 (noting "constitutional realities").
(66.) HAMBURGER, UNLAWFUL, supra note 1, at 62.
(68.) See id. at 21-24.
(69.) HENRY HOMER, AN ESSAY ON THE NATURE AND METHOD OF ASCERTAINING THE SPECIFICK SHARES OF PROPRIETORS, UPON THE INCLOSURE OF COMMON FIELDS v-vi (1766).
(70.) HAMBURGER, UNLAWFUL, supra note 1, at 74 (quoting 1 WILLIAM BLACKSTONE COMMENTARIES ON THE LAWS OF ENGLAND 160 (1765).
(71.) Id. at 424 (quoting JAMES IREDELL, To the Public, in LIFE AND CORRESPONDENCE OF JAMES IREDELL 145, 146 (Griffith J. McRee ed., 1949)).
(72.) For such ideas, see id. at 441-78.
(76.) This is not the place to explore the development of modern administrative power in England, but it is worth noting that, although Craig alludes to the English establishment of boards of health in 1848, he does not recognize that they candidly were based on the German model. Craig's First Critique, supra note 2, at 9; HAMBURGER, UNLAWFUL, supra note 1, at 454.
Wilson candidly admitted the mixed blessing of this "absolute"
solutions to the American constitutional objections.
HAMBURGER, UNLAWFUL, supra note 1, at 459.
(79.) Craig's First Critique, supra note 2, at 29.
(80.) HAMBURGER, UNLAWFUL, supra note 1, at 98-99, 203-04.
(81.) Id. at 203-04. For the danger that their determinations could become a form of lawmaking, and the common response, see id. at 98-99.
(84.) Id. at 472 (regarding the Imperial Constitution); MARTIN LOUGHLIN, LEGALITY AND LOCALITY: THE ROLE OF LAW IN CENTRAL-LOCAL GOVERNMENT RELATIONS 16-17 (1996).
(85.) HAMBURGER, UNLAWFUL, supra note 1, at 100.
not revealing about federal constitutional law.
(89.) Id. at 104-07 (cross-border licensing regulations, including those regarding Indian traders and steamboats). Beyond licensing regulations in cross-border matters, Congress apparently did not authorize executive licensing regulations before 1900, other than in congressionally controlled localities. Id. at 104, 107.
(91.) Craig's First Critique, supra note 2, at 58 ("Any reader of Philip Hamburger's book cannot but come away with the strong impression of the administrative state as something dangerous and alien, forever prone to the dangers of 'extralegal rulemaking and adjudication', subverting thereby important values. This is a mistaken depiction of the modern administrative state . . . .").
(92.) See, e.g., id. at 38.
(93.) This is obvious enough to anyone even casually familiar with seventeenth-and eighteenth-century legal literature, whether printed or manuscript. And it can be confirmed with online searches. For example, in Gales's Eighteenth Century Collections Online, on the Advanced Search page, a search of "justice" and "peace" in the title and "administrative" in the entire document reveals no justice of the peace manual with the word "administrative." GALE'S EIGHTEENTH CENTURY COLLECTIONS ONLINE, http://www.gale.com/primary-sources/eighteenth-century-collections-online/(last visited Dec. 27, 2016). Similarly, on the same page, a search of "bankruptcy" or "bankrupt " or of "sewers" in the title, and "administrative" in the entire document, reveals no legal text on bankruptcy or commissions of sewers using the word "administrative." Id.
(94.) HAMBURGER, UNLAWFUL, supra note 1, at 441-78.
(98.) Id. at 448. Treitschke's classes were not directly on administrative law but covered its history and the underlying political theory. ANDREAS DORPALEN, HEINRICH VON TREITSCHKE 226-40 (1957). For American attendees, see id. at 240.
(99.) HAMBURGER, UNLAWFUL, supra note 1, at 450-53. Of course, after 1914, most academic defenders of administrative power ran away from its German foundations as fast as they could. James Landis, for example, brazenly declared that administrative agencies were "the product, not of dogma or of abstract theory, but of the gradual development of control by a democratic government"--even that they were an "indigenous" and "empirical growth," which "always sprung from a concern over things rather than over doctrine." Landis, supra note 3, at 2-3. Landis, however, surely knew better.
influenced lands first became recognized as "administrative" in France.
HAMBURGER, UNLAWFUL, supra note 1, at 445 (citations omitted).
(101.) Craig's First Critique, supra note 2, at 17, 28. He says that Hamburger "seeks to limit the force of his argument concerning 'extralegal rulemaking' through definition of the term legislative." Id. at 3. He adds that "Hamburger's argument also contains, as in the context of rulemaking, a qualifying dimension, in which he limits the force of his principal argument concerning 'extralegal adjudication', through definition of the term judicial." Id. at 4.
(102.) Id. at 17, 19.
long been recognized as the central feature of "administrative law,"
and it is what this book questions.
HAMBURGER, UNLAWFUL, supra note 1, at 2.
(104.) Id. at 31, 129.
(106.) Craig's First Critique, supra note 2, at 17, 28.
Incidentally, Craig also gets confused about a less significant conceptual point. He says that I apply the distinction between binding and nonbinding acts to "distinguish legislative acts from statutes empowering the issuance of regulations to lesser executive officers, the assumption being that such regulations applied merely to such lesser officers and not to the rest of the public." Id. at 12 (citing HAMBURGER, UNLAWFUL, supra note 1, at 85-86). In fact, my book makes no such assumption. On the contrary, my book expressly repudiates this and explains that it relies on the very opposite assumption: "Even as to executive officers, executive regulations or orders were not legally binding, but rather were, at most, mere conditions of employment." HAMBURGER, UNLAWFUL, supra note 1, at 87.
(107.) Paul Craig, English Foundations of US Administrative Law: Four Central Errors (Oct. 15, 2016) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2852835 [hereinafter Craig's Second Critique].
(108.) Id. at 7, 9, 15-16.
(110.) In a few places, my book suggests that extralegal power is unlawful in a philosophical sense. See, e.g., HAMBURGER, UNLAWFUL, supra note 1, at 7. Most of my book, however, argues that administrative power is unlawful in the sense of being contrary to the U.S. Constitution and thus as a matter of positive law. Similarly, when Craig says that, in my argument, "extralegal" means or implies unlawful, he clearly is talking about this as a matter of positive law (hence, his emphasis on English statutes and cases). Accordingly, in this Postscript, when I explain that he is conflating extralegal and unlawful, I also mean "unlawful" as a matter of positive law.
(111.) See supra Parts II.B & E.
(112.) See id. and accompanying citations.
(113.) See, e.g., HAMBURGER, UNLAWFUL, supra note 1, at 387 (Article I); id. at 396-97 (congressional delegation of judicial power); id. at 397-98 (judicial power and judicial delegation); id. at 427-29 (Necessary and Proper Clause); id. at 252-53 (privilege against self-incrimination); id. at 240-48 (jury rights); id. at 254-56 (due process of law).
(114.) See supra Part I.B and accompanying citations.
(116.) Craig's Second Critique, supra note 107, at 5.
6, 83, 149, 460 (1903)).
(122.) Id. at 516 n.3 (citing OAKLEY, supra note 29, at 43, 63 (regarding the power to exercise will irregularly, outside ordained law, which came to be called "absolute" power)).
(123.) RICHARD TUCK, PHILOSOPHY AND GOVERNMENT 1572-1651, at 224 (1993).
(124.) See supra Part II.B.
(125.) Craig's Second Critique, supra note 107, at 17.
(128.) See supra Part II.E and Conclusion.
(129.) Craig's Second Critique, supra note 107, at 13, 26.
theory concerning the relationship between the prerogative and statute.
based on statute, not the prerogative.
(131.) Craig's Second Critique, supra note 107, at 26.
(132.) Craig's First Critique, supra note 2, at 13.
(133.) Craig's Second Critique, supra note 107, at 29.
(136.) "Hamburger's claim that I ignored constitutional ideals is quite wrong. He complains loudly that I ignored constitutional ideals when depicting the pattern of administration and how it was viewed, concentrating solely on positivist sources in terms of what the legislature and the courts did. There is considerable confusion here. ... The reality was that the courts developed constitutional ideals that shaped this entire area of the law, and provided the principled architecture against which the administration operated." Id. at 35.
(137.) In addition to rewriting his views, he also rewrites mine, saying that I treated statutes and cases as "value-free," whereas, in fact, I merely pointed out the inadequacy of his emphasis on Parliamentary and judicial "realities." Id. at 38.
(138.) Hamburger "ignores the thousands of cases in which the courts accepted the legality of administrative determinations, according them binding force subject to judicial review, with no hint whatsoever that the administration should be conceived of as extralegal in the manner for which Hamburger contends." Id. at 40.
(140.) Incidentally, he also protests that he personally is not "not an Austinian positivist, nor indeed a Hartian positivist, nor is there anything whatsoever in the earlier article to sustain this." Id. But my argument is about the nature of his argument, not him personally.
(141.) Id. at 34, 36.
(142.) Id. at 25-26, 29.
(143.) Id. at 34-35, 37.
Symposium: A future without the administrative state? exploring the administrative state.


text:
Watch Jon Wolfe's New Music Video for 'Any Night in Texas' Now
Buddy Logan Published: April 19, 2018
Jon Wolfe returns to radio with yet another George Strait-esque powerhouse country song. This week Wolfe debuted the music video for "Any Night in Texas" which is the titled track from 2017 album that rose to Number Three on the iTunes country chart and the Top 20 on Billboard's Country albums.
Wolfe told Rolling Stone Country of the song, "'Any Night in Texas' is easily one of my favorite songs that I've written. It tells a story that takes place in a magical time in our lives. And it happens to take place in a legendary location," Wolfe says. In fact, Wolfe even worked on that ranch, Caballo Creek Ranch, at one point in his younger years. "That's what I wanted to capture. The Texas Hill Country was the perfect place for this video shoot. I had a blast filming it."
Filed Under: Any Night in Texas, George Strait, Jon Wolfe
George Strait Reads Your Bedtime Favorite, 'Never Ask a Dinosaur to Dinner'
A Look Back at George Strait's Legendary Career [PICTURES]
George Strait Has a New Album in the Works
George Strait Gifts a Mortgage-Free House to Military Family
George Strait Taps Chris Stapleton & More for Six Stadium Shows in '23
Miranda Lambert, George Strait + More Sign on for Billy Joe Shaver Tribute Album, 'Live Forever'
Randy Rogers Singin' George Strait's Smash 'The Chair' Makes it Feel Like '85
Here's Why George Strait's 'Carrying Your Love With Me' is Going Viral on TikTok

redpajama_set_name: RedPajamaCommonCrawl


Best 3-year fixed-rate mortgage with a fixed interest rate Have you set your mortgage rate for 3 years? Which is a 3 year fixed rate mortgage? Shall I fix my mortgage for 3 years? For whom is a 3-year mortgage intended? Which is a 3 year fixed rate mortgage?
One three fixed rate mortgage is just a mortgage that keeps the same interest rate for the first 3 years you have it no matter how much your lender will raise or lower its interest rates.
At the end of the first 3 years, the interest paid by you is transferred to the SVR of your creditor. Loan rates can last for little more than 2 or as much as 10 years, but on this side, we are going to look at 3 year mortgage only.
Shall I fix my mortgage for three years? When you fix your mortgage for 3 years, your montly payment will not vary for the period of your 3-year introduction period. Floating mortgage rates can raise their interest rates at any given moment, which increases the amount you need to repay your creditor.
You can be sure of this because you don't have to be concerned about interest rates soaring. But if mortgage rates fall, you'll still have to keep paying the fixed amount you arranged with your creditor! For whom is a 3-year fixed-rate mortgage intended? Put quite bluntly, three-year mortgage loans are best suited for those who would find it difficult or impractical to make their mortgage payment successfully, whose interest rates should rise over the next 3 years.
Further fixed maturities are possible, from less than 2 years up to 5 or 10 years. Longer maturities of the redemption collateral can be achieved by selecting a longer-term fixed interest rate. In addition to safety, with a longer time fixed rate, you don't have to look for a new mortgage every year and paying the charges associated with a new mortgage like you could do with a short time fixed rate mortgage like a 2 year mortgage.
In addition, if a 3-year maturity allows you to recharge your mortgage after three years, while a 5 or 10 year mortgage would require for you to service longer. Fixed-rate mortgages usually calculate a fee if you want to modify or pay back your mortgage early, thereofre that it is prudent to keep these fees in mind when you decide which longer-term fixed-rate mortgage are to be taken.
If you look at our best purchases, you will see that we have chosen the best 3 year fixed rate mortgages from different credit to value levels to give you a better view of what we have to offer. In general, the more you can invest in a deposit, the better your mortgage rate will be as you are less of a threat to the creditor.
Watch out for the charges! Sitting down, always find out how much you are going to be billed at the beginning of your mortgage and when your mortgage ends. Note that the initial interest rate for a short-term fixed-rate mortgage is lower than that for a 3-year fixed-rate mortgage, or if you select a variable-rate mortgage.