The civil war and the Glorious Revolution

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After Elizabeth I died in 1603, the Tudor dynasty was ended and the Stuarts (Catholic dynasty started by James I) began to rule.

  • The Stuarts believed in the 'divine right of kings' - ie, the God ordained that the King is supreme, and is thus 'above the law'. This plunged England into civil war.
  • The civil war seen as a 3 way dispute by the lawyers. The Parliament, the King and the common law were all vying for ultimate power.
  • Eventually, Charles I lost the struggle and was executed in 1649.
  • The civil war and the ideas that rose up during it led to constitutional change in England and development of lots of ideas that influenced the colonies like Australia.

This article is a topic within the subject Introducing Law & Justice.

Contents

Required Reading

Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 87-110 (Chapter 5).

The king versus the common law

[1] In 1598 (before he was King of England), James I wrote The Trew Law of Free Monarchies, setting out the divine right of Kings.

  • He was supported in this idea by the attorney-general, Francis Bacon.
    • Bacon argued that that according to natural law, only absolute monarchy could avoid 'confusion and dissolution'. This theory was based on the natural law theory that law is based on reason and the will of the Crown.
    • According to Bacon, the King could govern by prerogative alone – parliamentary powers allowed only by tolerance of the King – he could dismiss or convene Parliament as he saw fit.
    • The power not to be dismissed without its consent was what Parliament really wanted – and only force through the civil war gave them that.
  • James I: “Kings are justly called Gods, for that they exercise a manner or resemblance of Divine power upon earth; for if you consider the Attributes to God, you shall see how they agree in the person of a King... [kings have] their wills at that time served by law.”
  • The disputes also had a religious component, as James I and Charles I were both Catholic rulers of a Protestant nation; the English feared they would reintroduce Catholicism.
  • Note: supporters of the King's view were called Royalists, or Absolutists (since the King sought absolute power).

Their main opponent was Sir Edward Coke (pronounced 'cook'). Coke was a massive political and judicial figure - during his life, he served as Chief Justice of the Common Pleas, Chief Justice of the King's Bench, and Speaker of the House of Commons.

J P Sommerville, Politics and Ideaology in England, 1603-1640

[2] Lawyers claimed the common law was the best of all legal systems. While formally they recognised the existence of laws superior like the law of nature, they were really quite skeptical about it.

  • They had a tendency to reduce these higher laws to terms of such wide generality they became empty.
  • Some lawyers argued that the common law gave the King unlimited power, while others like Coke held that the law imposed rigid restrictions on the monarch.
    • 1608 – Coke offended James I by denying that the King had the ultimate right to interpret laws; he also denied that the King could stop common law proceedings with a royal writ.

Coke’s was influenced by Sir John Fortescue, who argued that the purpose of government was the protection of the persons and property of the governed.

  • This purpose was best served by a King who could not legislate or levy taxes without permission of his subjects – he argued that the King ruled as a constitutional monarch (bound by a constitution, rather than having absolute power).
  • He believed that the English system was a combination of a monarch and his people - a political and regal government.
  • He regarded Parliament as the institution through which subjects gave their consent, but with little real power.
  • Then there were people like Sir Thomas Smith, who thought that the parliament should be the ultimate power in England.

The essence of common law thinking centred around three elements, and a contradicting fourth one – the ideas of custom, the rationality of English laws, and the sacrosanctity of private property; and the absolute legislative sovereignty of parliament.

  1. Ancient custom:
    • The common law was regarded as the best system precisely because it was derived from ancient custom – the distilled knowledge of millennia of Britons. If something was done for long enough, it must be good. Note how this precluded the development of the doctrine of precedent.
    • Yet, its inherent flexibility (due to its being unwritten) made it superior to other laws. While the Civil Law was bound by an ancient code, the common law evolved with the English people.
      • So, like a “glove fitted to the hand” (Thomas Hedley) it was in a constant state of development and refinement. The wisdom of several generations bygone was distilled into it; thus, it could be changed like a “house that’s so often repaired, (none of the original material survives), which yet… is to be accounted the same still.” (Selden)
  2. Supremely Rational:
    • Because the Common Law was derived from ancient custom, it was argued that it was supremely rational.
    • Yet, it was only through 'artificial' reason of lawyers that it could be exercised (had to be acquired through training - lawyers wanted to protect their positions as interpreters of the law).
    • Yet, it still possessed an immutable rational core. So, the common law was not just custom, but rational custom.
    • Thus, the common law was a combination of reason and custom – the term used was tried reason. It was supremely rational, and had simultaneously survived the test of time.
  3. Sanctity of private property:
    • While natural law theorists held that the aim of governance was the welfare of the community as a whole, common lawyers held that it was the protection of private property.
  4. Parliament as a supreme legislative authority:
    • Parliament’s supreme legislative authority overarched all of these ideas. From the dual view of reason and custom came the ideas of the fundamental liberties of every subject – that they could not judge their own case; and that they could not be deprived of their property or bound to a new law without their consent.
    • These ideas implied the existence of a Parliament, which represented the interests of the subjects.
    • Common law lawyers gave Parliament a status of near-sovereignty. Yet, they insisted that all statute was subject to unwritten custom.
    • Thomas Hedley wrote that the parliament derived its authority from the common law, and not the other way.
    • Therefore, it could not abolish the common law without abolishing itself as an institution. However, Parliament could correct deficiencies in the common law.

Eventually, the judiciary (led by Coke in 'Dr. Bonham's Case') intended to give judges definitive power to interpret and even strike out statutes made by parliament (judicial review). This idea was short-lived and eventually failed. It failed for two reasons:

  1. The common law forbade legislation without consent of subject – but if the judges were supreme interpreters of the law, then by interpreting they might change it – and so legislate without the subject’s consent.
  2. Secondly – judges are appointed by the government, and thus are usually under political pressure.

Dr. Bonham's case

In Thomas Bonham v College of Physicians (Dr. Bonham’s Case), Coke tried to assert the right of the judges to strike down laws which are ‘repugnant’ to the common law.

  • Facts: the plaintiff, Bonham, brought a case of false imprisonment against the College of Physicians. He had a degree, and, upon seeking a licence, was denied. He continued practising, and was subsequently fined and imprisoned. The College argued that they have the power to decide who can practice (and imprison those who disobey) because of a Charter given by the King.
  • Coke CJ: The common law has the power to adjudge Acts of Parliament to be void if they are against common right and reason. Considering Bonham had a degree and he was practising safely, it would be absurd to fine Bonham for practising. The plaintiff wins.

The implication of this case meant that the common law was above parliament. However, this part of the decision was overturned shortly afterwards, and judicial review never eventuated in England.

The common law and the royal prerogative

[3] The Stuarts and their supporters believed the king’s power derived from God as author of nature, and that natural law prescribed there be a sovereign in every commonwealth.

  • Under this, the King possessed extra-legal rights (the royal prerogative) - ie, he could rule outside or even against the known law. Legal power cannot be defined or circumscribed by lawyers.

The lawyers, on the other hand, believed the King had no extra legal powers, and that the King’s prerogative was only those rights he possessed at law (which were given to him by common law). The most dangerous prerogative was that the King was granted emergency powers at times of crisis (during which he could pretty much rule as he pleased, openly disregard law etc).

  • This could be abused, especially given that he could define/declare war.
  • To prevent this, lawyers insisted it was the law that decided what wars were.

According to the lawyers, the common law was (under God) the ultimate arbiter of justice in England. Except in Parliament, the King could never abrogate the common law, and nor could he waive anyone else’s obligation to obey. He possessed a prerogative to dispense from statute but not common law.Through rejecting the idea that royal power arose by consent, Coke and his colleagues imposed stringent limitations upon the King’s authority:

  • Allegiance to the King bound the subject only to obey the law, not the King’s extra-legal commands.
  • While the King was the 'only supreme governor', he was below God and the law, rather than any man.

Other prerogatives include:

  • Right to choose the design of coins.
  • 'The King can do no wrong' - King cannot be prosecuted (although people acting on his orders can).
  • King's power to veto legislation.

King, parliament, and common law

[4] As mentioned above, one of the royal prerogatives was the power to override statutes of parliament (intended to fix defective statutes because parliament convened irregularly). Whilst this was tolerated in the time of the Tudors, people worried it would be abused under the Stuarts.

  • The Tudors understood this prerogative as a power defined by the law. The Stuarts saw this prerogative as the rights bestowed by God.
  • Coke: common law was determiner of all these things.

The question naturally arose, who decides on what the common law was? And given that the King appointed judges, could the king judge matters or direct the judges? This question was the topic of the prolific case, Prohibitions del Roy (Case of Prohibitions)[5]:

  • “the King in his own person cannot adjudge any case…this ought it be determined and adjudged in some Court of Justice[6]
  • Cases are not determined by natural reason but artificial reason, which is achieved through much study of the law and experience as a judge. In other words, the King is not qualified to determine the law.

This meant that the King can no longer sit as a judge in the courts. He was, however, still the 'Chief Justice' because appeals from the King's Bench went up to the Upper House of Parliament, where the King sits. There, he can reverse the decision with the approval of the other members.

Coke also made a big ruling in the Case of Proclamations[7]:

  • “the King by his proclamation of other ways cannot change any part of the common law, or statute law, or the customs of the realm…The king by his proclamation cannot create any offence that was not an offence before”
    • The King is no longer empowered to make laws without Parliament.
  • “The law of the land is divided into three parts: common law, statute law, and custom. But the King’s proclamation is none of them…the king hath no prerogative but that which the law of England allows him”.
    • The King’s power is derived from the common law and Parliament. The King is only sovereign with Parliament.

Parliament and civil war

[8] Tension escalated during James I’s reign (all of the above) but grew into violence under his successor Charles I, who attempted to reign without parliament from 1629-40, until he ran out of money.

  • He was forced to accept the Petition of Right, which restricted him from imposing taxes without the consent of parliament, as well as to ensure the king could not imprison subjects without cause, compulsorily billet soldiers with civilians, or unilaterally impose martial law.
  • Parliament won the civil war and put Charles on trial from 20-27 January 1649.
    • First time a European monarch was tried by own subjects without being deposed first.
  • King argued that as a lawful King, Parliament had no right to try him and challenged their jurisdiction.
  • He was convicted on the 27th, and executed on the 30th.

What followed was the Interregnum – England was ruled by Parliament (headed by Oliver Cromwell) for 11 years (1649-60).

  • England had its only written constitution at this time, and there was much reform that went on.
  • Parliament asserted its right to legislate on anything, and attempted to codify the law.
  • However, this method of government didn't really work, and things really deteriorated especially with the death of Cromwell.

The Restoration and the Glorious Revolution

[9] The Parliament eventually invited Charles II (successor of Charles I) back to rule in 1660 – but on the limited basis of 1641.

  • Charles ruled well but his successor James II (his brother) was a failure.
  • He aggravated both legal and tensions – he was very catholic and appointed Catholics to the Church, army, universities and royal household, and tried to use the dispensing prerogative power to allow Catholics not to take the Test Act oath which excluded them from many positions.
  • All of this (and other events) created tension which was begrudgingly tolerated because James had no Catholic heir, and 2 Protestant daughters to succeed him.
  • However, in 1688 James II finally had a son, who was instantly baptised as a Catholic.

The Child represented the continuance of Catholic rule over England and danger to the Protestant power.

  • Parliament invited Mary (James II's eldest daughter) and her husband William of Orange (ruler of Orange in the Netherlands) to assume the throne in 1688.
  • William’s accession to the throne was conditional upon his assent to the Bill of Rights (1688), which further limited the power of the monarch and effectively placed him below the Parliament and the common-law.
  • James II knew he was beaten and fled London. Thus the Glorious (bloodless) revolution.

Bill of Rights

William became king under the restrictions of the Bill of Rights. The right of suspension of legislation was declared illegal and many royal prerogatives severely trimmed, although it still included the right to choose/dismiss ministers at will, to summon/dissolve parliament at will (provided it met every three years) and complete authority over foreign affairs. In detail, the Bill of Rights:

  • Mentions problems of James II, abdication, assumption of throne by William of Orange.
  • The King must seek Parliament’s consent when suspending/dispensing laws.
  • Levying taxes without consent of Parliament is illegal.
  • The right of the subjects to petition the king(king is no longer a judge).
  • The king cannot keep a standing army in peacetime.
  • Election of MPs should be free.
  • Parliament’s mechanism should not be questioned in any court.
  • Excessive bail/fines/imprisonments/punishments are illegal.
  • Jurors ought to be freeholders.
  • Fines/forfeitures before conviction are illegal.
  • Parliament ought to be held frequently.

References

Textbook refers to Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).

  1. Textbook, pp. 88-90
  2. J P Sommerville, Politics and Ideaology in England, 1603-1640, Longman, London, 1986 in Textbook, pp. 90-7
  3. J P Sommerville, Politics and Ideaology in England, 1603-1640, Longman, London, 1986 in Textbook, pp. 98-100
  4. Textbook, pp. 102-3
  5. (1607) 12 Co Rep 63
  6. (1607) 12 Co Rep 63, 63-4
  7. (1611) 12 Co Rep 74
  8. Textbook, p. 105
  9. Textbook, pp. 106-7
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