Fundamental Law in English Constitutional History

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FUNDAMENTAL LAW IN ENGLISH CONSTITUTIONAL HISTORY

FUNDAMENTAL LAW IN ENGLISH CONSTITUTIONAL HISTORY

J. W. GOUGH FELLOW OF ORIEL COLLEGE, OXFORD

OXFORD AT THE CLARENDON PRESS

Oxford University Press, Amen House, London E.C.4 GLASGOW

NEW YORK

TORONTO

BOMBAY

CALCUTTA

MADRAS

CAPE TOWN

IBADAN

MELBOURNE

WELLINGTON

KARACHI KUALA LUMPUR NAIROBI

ACCRA

FIRST PUBLISHED I955 REPRINTED LITHOGRAPHICALLY IN GREAT BRITAIN AT THE UNIVERSITY PRESS, OXFORD FROM CORRECTED SHEETS OF THE FIRST IMPRESSION I961

ONULP

PREFACE What first interested me in the subject of this book was the difference I noticed, in their attitude towards it, between English and American writers. English constitutional and legal historians nowadays are generally inclined to belittle the idea of fundamentals, and to suggest that it arose in the past from a misunderstanding of the true character of English law and the true omnipotence of the legislature. They emphasize the impossibility of attaching any precise meaning to the fundamental laws or fundamental rights which used to be invoked in England, and are therefore inclined to dismiss them as errors and confusions which we have outgrown. American writers, on the other hand, treat the notion of fundamental law with more respect, and some have thought that in its appearances in seventeenth-century England they could discern anticipations of the principles of the American constitution. This leads to an interpretation of our history contrasting markedly with what is usually accepted on this side of the Atlantic. Which of these interpretations is correct, or the more correct? I suspected that it was incautious to read so precise a meaning into these early appeals to fundamental law; on the other hand it was evident, from the frequency and earnestness with which our ancestors appealed to it, that it formed an important part of their conception of the constitution. It seemed reasonable, in the absence of evidence to the contrary, to presume that they knew what they were talking about, and understood how the constitution worked in their day; and the fact that the legal sovereignty of parliament, which characterizes the modern English constitution, excludes fundamentals, is not in itself an adequate reason for maintaining that there can have been no place for fundamentals in the constitution of three hundred years ago. I decided therefore to try and find out for myself what our ancestors meant when they wrote and talked about fundamental law. For this purpose I took a number of samples from political writings and speeches (completeness, or anything approaching it, was obviously out of the question), and attempted to analyse them and sort them out. I did not expect that any one precise meaning would emerge, but I found I could distinguish a number of more or less connected mean¬ ings, some of them vague, but others more precise, and adding up to a conception of the constitution which, while not so rigid and definite

PREFACE

VI

as the constitution of the United States, was clear enough not to deserve dismissal as an illusion. The seventeenth century was the heyday of fundamental law in this country, and occupies the greater part of this book. The phrase does not seem to have been used before this, but the ideas it stood for were much older, and I was impelled therefore to begin by sketching the origins of the subject in the later Middle Ages and the sixteenth cen¬ tury. At the end I was interested to trace the survival of relics of the old ideas into the eighteenth and even the nineteenth centuries. I sum¬ marized some of my conclusions in an article (a kind of ‘trailer’ for this book) in the second number (June 1953) of the new journal

Political Studies. J. W.G. ORIEL COLLEGE, OXFORD

3f July 1954 The reprinting of this book affords an opportunity to make some minor alterations and corrections in the text, and to add a Postscript dealing with certain aspects of the subject which seemed to need some further discussion. J. W. G. ORIEL COLLEGE,

13 February 1961

OXFORD

CONTENTS Chapter I.

INTRODUCTORY

James II and others accused of violating the fundamental laws— Meaning of fundamental law today—Uncertainty of its meaning in the seventeenth century—American and English historians—Pro¬ fessor Mcllwain’s High Court of Parliament—Holdsworth’s criticisms —Difference of outlook of historians and lawyers—Smith on the powers of Parliament—Holt’s judgements.

Chapter II.

ANTECEDENTS

Gardiner on the first use of the phrase ‘fundamental law’—Professor Mcllwain’s view of the early English constitution—Law-making in the Middle Ages—Magna Carta—St. Germain’s Doctor and Student and the place of reason in law—The interpretation of statutes in the sixteenth century—Plowden and the equity of statutes—Presumption that government and law existed to maintain right and justice—Pre¬ sumption in favour of liberty and property—Church and State—The Law of God—Development of legislation—Reluctance of the courts to face this—Wimbish v. Taillebois—Bacon’s views.

Chapter III.

SIR EDWARD COKE

Coke in Bonham’s case—Professors Plucknett and Thorne on this judgement—Other judgements by Coke and Hobart—Ellesmere on Coke—Coke on Magna Carta, Common Law, and the powers of Parliament—Coke on the attainder of Thomas Cromwell—Jurisdic¬ tion and Legislation—Calvin’s case and the Law of Nature—The case of Non Obstante.

Chapter IV.

THE CLAIMS OF JAMES I

English monarchy a mixed monarchy—Royal prerogative and the aims of Parliament—The rule of law—James I’s theory of funda¬ mental law—The rights of property—Miss M. A. Judson’s account of the issues at stake—Gardiner’s version of Coke’s political aims— Restraints on parliamentary action in the early seventeenth century —The campaign for the Petition of Right.

Chapter V.

CHARLES I AND PARLIAMENT

Search for historical precedents—Alternative interpretations of the constitution—Conflict of rights between the King and his subjects— Hampden’s case—The King also could appeal to fundamental law— Aims of the Long Parliament—Expansion of parliamentary claims.

viii

CONTENTS

Chapter VI. PARLIAMENTARY SOVEREIGNTY

80

Sovereignty implied in Parliament’s claim to approve of ministers and control the militia—Yet Parliament still spoke of fundamental laws and regarded itself as a court of judicature—Inconsistency between its words and its actions-—Parker’s statement of the powers of Parlia¬ ment—Controversy about fundamentals between Feme and Herle— Hunton and the theory of mixed government—Twysden’s account of the constitution.

Chapter VII. PARLIAMENT’S CLAIMS RESISTED

98

Prynne and the sovereignty of Parliament—Salus populi—Touching the Fundamental Laws—Goodwin and the law of nature—Judge Jenkins resists the claims of Parliament—Cleveland—Opposition to the policy of the Long Parliament—Lilburne and the Levellers oppose parliamentary sovereignty—Demand for a written constitution—The Agitators in the army and the Putney debates.

Chapter VIII. THE INTERREGNUM

117

The rift in the army—-Filmer and Hobbes enunciate the doctrine of sovereignty—More publications by the Levellers and by Prynne— Oliver Cromwell’s belief in fundamentals—Streater’s case—Debate about Naylor—Ideas of Vane, Baxter, and Harrington—Richard Cromwell’s Parliament—Pamphlets and discussions after his fall— Milton’s defence of republicanism—-The Restoration.

Chapter IX. AFTER THE RESTORATION

140

Fundamental laws after the Restoration—Clarendon and other critics of Hobbes—Inseparable Prerogatives—Feudal Tenures, Foreign Affairs, Hereditary Succession—The Exclusion Bill—Filmer’s Patriarcha and replies to it—Penn’s analysis of fundamentals—Funda¬ mental Law the True Security—Professions by James II and the Duke of Monmouth.

Chapter X. THE REVOLUTION OF 1688

160

Fundamental Law and the Revolution of 1688—Debates in the Convention—Political pamphlets—The Original Contract and the Coronation-Oath—Fundamental Law in Locke’s political theory— Halifax’s criticism of fundamentals—Hale and Petyt—Some writers still uncertain about the nature and powers of Parliament.

Chapter XI. THE EIGHTEENTH CENTURY The Kentish Petition—Defoe resists the Commons’ claims—The Law and Custom of Parliament—Ashby v. White—Fundamental clauses in Acts of Parliament—The Septennial Act—Bolingbroke’s theory of the constitution—Survival of traditional ideas and phrases—Blackstone combines respect for natural law with the doctrine of parlia¬ mentary sovereignty.

174

CONTENTS Chapter XII.

THE LAST OF FUNDAMENTAL LAW

IX

192

Fundamental Law in the American Revolution—Views of Chatham and Camden—Irish claims to independence supported by Granville Sharp—His belief in fundamentals—Other survivals of the idea— George III and Catholic Emancipation—Judges in the nineteenth century reject pleas based on fundamental law—Anstey’s attack on Blackstone—Presumptions of common law today—Socialist objec¬ tions to the individualist bias of the law—Parliamentary procedure and the rights of minorities—Law and morality. POSTSCRIPT

214

Written constitutions and Fundamental Law—The Queen’s Title— Sovereignty and the Commonwealth—The sovereignty of parlia¬ ment a purely legal principle—The ultimate fundamental law. NOTES

224

BIBLIOGRAPHY

232

INDEX

235

LIST OF ABBREVIATIONS A.C. A. -G.

= Appeal Cases = Attorney-General

B. and C. = Barnewall and Cresswell, Reports B. M.

= British Museum

C. J. C. P.

= Commons’ Journals = Common Pleas

Cl. and F. = Clark and Finnelly, Reports Co. Rep.

= Coke’s Reports

D. N.B.

= Dictionary of National Biography

E. E.T.S.

= Early English Text Society

E.H.R. H.E.L.

= English Historical Review = History of English Law

Inst.

= Institutes

K. B.

= King’s Bench

L. Q.R.

= Law Quarterly Review

L.R.

= Law Reports

L.CJ.

— Lord Chief Justice

L.J.

= Lords’ Journals

Mod.

= Modern Reports

N.S. S. A.

= New Series = South African Reports

ST.

= State Trials

T. L.R.

= Times Law Reports

CHAPTER I

INTRODUCTORY King James II, so the Commons resolved on 28 January 1689, had been guilty of two main offences before he ‘withdrew himself out of the kingdom’ and ‘abdicated the government’. One was ‘having endeavoured to subvert the constitution of the kingdom, by breaking the original contract between king and people’; the second was ‘by the advice of Jesuits and other wicked persons, having violated the fundamental laws’.1 Neither of these charges was a novelty, and there was in fact an old-established connexion between them. Radical and Whfggish politicians in the seventeenth century had long been accus¬ tomed to think of constitutional safeguards against despotism as embodied in some form or other of contract, and (apart from the phrase about the Jesuits and other wicked persons, which no doubt was felt to be specially appropriate to the circumstances of King James’s reign) it had long been a commonplace to frame accusations of unconstitutional activity in terms of designs upon the fundamental laws. It was ‘notorious’, the Commons had declared in January 1649, that ‘Charles Stuart, the now King of England, . . . had a wicked design totally to subvert the ancient and fundamental laws and liber¬ ties of this nation, and in their place to introduce an arbitrary and tyrannical government.’2 Eight years earlier, Strafford’s attainder had been drawn up in almost identical terms,3 and so also (to name only a couple of instances) had been the charges against Lord Keeper Finch and Sir George Ratcliff, who was accused of traitorously conspiring and confederating with the earl of Strafford.4 As we shall see in due course, the fundamental laws were continually being referred to in the seventeenth century, above all during the troubled period of the reign of Charles I and the Interregnum. References to fundamental laws were still common after the Restoration. The impeachment of Lord Chief Justice Scroggs,5 for example (who, the charge against him ran, had ‘traitorously and wickedly endeavoured to subvert the 1 The Debate at Large {1690), p. 3. 2 Act erecting a High Court of Justice for the King’s trial, 6 Jan. 1649, in S. R. Gardiner, Const. Docts. of the Puritan Revolution, p. 357. 3 Ibid., p. 156. 4 Parly. Hist. ii. 694, 698. 5 5 Jan. 1681; Parly. Hist. iv. 1274. 5725

B

2

INTRODUCTORY

fundamental laws and the established religion and government of this kingdom; and instead thereof to introduce popery and an arbitrary and tyrannical government against law’), reminds us of the feverish atmosphere of the Popish Plot, and anticipated the phraseology of the Commons’ resolution in condemnation of James II. What were these fundamental laws, which were invoked so freely in the seventeenth century? Nowadays fundamental law has a precise meaning as a technical term in political science. It is applied to some framework of government, such as the Constitution of the United States, or to provisions like the ‘entrenched clauses’ in the South African constitution, which safeguard bilingualism and certain native rights, and have recently become a topic of controversy. In this sense a law is fundamental when it cannot be altered or repealed by ordinary legislative procedure. It is generally associated with the principle of judicial review, by which a supreme court has the last word in cases where the validity of legislative enactments is challenged, and can pronounce whether they are or are not in conformity with the funda¬ mental provisions of the constitution. In Great Britain today it is a commonplace, on which all lawyers (and politicians) are agreed, that parliament is a sovereign legislature, and that there is therefore no such thing as fundamental law in this sense in the modern British constitution. How was it, then, that two or three centuries ago, every¬ one (or almost everyone) wrote and spoke as if fundamental law were one of its most prominent features? Were they all mistaken? Or did fundamental law then mean something different from what it has come to mean to the modern political scientist? Or if it meant the same, how did it disappear from the constitution? When we examine them more closely, we shall see that it is impos¬ sible to pin seventeenth-century writers down to any one meaning, and that the phrase was in fact very vague and ill-defined. There were indeed a few who were sceptical about the existence of fundamental laws at all,1 and when, as happened occasionally, fundamental laws formed a focal point of dispute, we sometimes find pamphleteers and others attempting a reasoned explanation and defence of them; but the majority of writers and speakers seem to have taken their existence for granted, and to have treated their meaning as so obvious and familiar as to present no problems. It would therefore be rash simply to assume at the outset that to seventeenth-century politicians fundamental law necessarily conveyed 1 See Note A, p. 224.

INTRODUCTORY

3

the modern implications of judicial review and a non-sovereign legis¬ lature. More than rash, it would be uhhistorical, for although the modern doctrine of legislative sovereignty was enunciated in the seventeenth century,1 its meaning was slow to find acceptance, and many who did not accept it did not so much deliberately reject it as fail to understand it, no doubt because it was unfamiliar and seemed an alien element that would not fit in with the traditional furniture of their minds. The English parliament in the seventeenth century will not necessarily fit into the clear-cut divisions of modern termino¬ logy, and if it was not sovereign in the modern sense it does not there¬ fore follow automatically, in spite of all that was said and written about the fundamental laws, that its powers were limited and its enactments liable to be set aside by judicial review. This is a subject which in recent years has received more attention from American than from English writers. English writers, whether historians or lawyers, have tended to be unsympathetic towards the notion of fundamental law: an attitude which may be associated with that ‘Whig interpretation of history’ to which Professor Butterfield has drawn our attention, and which, regarding the constitutional struggles of the seventeenth century as interesting because they were an important stage in the evolution of the parliamentary government of the nineteenth century, is predisposed to belittle elements, like fundamental law, which no longer have a place in the British constitu¬ tion, and which, if they had been developed, would have hampered the establishment of parliamentary sovereignty. Americans, on the other hand, approach the English seventeenth century with a different bias. They are familiar with the principle of a limited legislature, and disposed to regard the idea of fundamental law, embodied in the American Constitution, as one of the most precious safeguards of political liberty. Elence, so far from belittling or seeking to explain away the references to fundamental law with which they meet in studying the seventeenth century, they are apt to greet them with enthusiasm, sometimes misplaced, as forerunners of their own con¬ stitutional principles. Professor C. H. Mcllwain is, I suppose, the most distinguished, and in this country the best known, of the historians who have approached English history in this way from a distinctively American angle rather than from that suggested by English political experience. In 1 By Hobbes, to take the best-known example; but also, as we shall see, by a number of others, with varying degrees of clarity.

4

INTRODUCTORY

The High Court of Parliament and its Supremacy, published in 1910, he expounded at length, and supported with an impressive array of quotations from contemporary sources, an interpretation of English constitutional history which, though challenged at various points, has undoubtedly had a profound influence on historians on both sides of the Atlantic. In numerous subsequent writings, while he has modified to a certain extent some of the views put forward in his earlier work (it is perhaps significant that there has never been a second edition of The High Court of Parliament), Professor Mcllwain has returned again and again to discuss various aspects or corollaries of his central theme, and to re-emphasize the political lessons to be learnt from them. In The High Court of Parliament1 we shall find perhaps the clearest and most consistent theory of what fundamental law meant in English history. As the title of his book implied, Professor Mcllwain was chiefly concerned to demonstrate that in the Middle Ages (and much later) the English parliament was not primarily a legislature, or law¬ making body, as it is today, but a court. He also maintained that common law was fundamental law, Magna Carta having been an important embodiment of it, and that statutes were affirmations of common law, and could not alter or ‘make’ law. It was the presence of this fundamental law in the constitution which ensured that the English monarchy should be a limited monarchy, and even parliament itself ‘in its unintended development from the King’s Council into the representative law-making agent of the state, was significant largely because in time it became the guardian of this great idea’.2 In course of time, indeed, parliament came to acquire its modern characteristic of legislative sovereignty, but according to Professor Mcllwain it was not till de facto sovereignty was forced on the Long Parliament by the circumstances in which it found itself at the outbreak of the Civil War that it openly assumed its modern role,3 and even after that many years were to elapse before the doctrine of legislative sovereignty was 1 Esp. chap, ii (pp. 42-100), entitled ‘The Fundamental Law’, and chap, iii (pp. 190-246), entitled ‘Parliament as a Court’, but the whole book is relevant and important in this connexion. 2 Op. cit., p. 56. 3 Ibid., p. 103. This is one of the points where Professor Mcllwain has since retracted the extreme views put forward in The High Court of Parliament. In Constitutionalism Ancient and Modern (2nd edn.), pp. 170-80, he comes round to the view of Jenks, with whom he at first disagreed, that the crucial steps towards legislative sovereignty were taken by the Reformation Parliament of Henry VIII’s reign.

INTRODUCTORY

5

fully understood and accepted. In the earlier half of the seventeenth century, although parliament had indeed been legislating for many years, it was not ‘the unlimited legislature of more modern times’.1 In his development of this thesis Professor Mcllwain was at many points retreading an already familiar road. Before the end of the nineteenth century Edward Jenks had elaborated the view that in the early Middle Ages law was supreme, was declared rather than made, and was essentially ‘the law of a court’.2 About the same time another well-known scholar, J. Neville Figgis,3 had written eloquently of the peculiar reverence which was paid to the common law, and had drawn attention to Coke’s attempt to give to common law a fundamental character which implicitly excluded the possibility of any sovereign power in the state.4 Pursuing these lines of thought. Professor Mcllwain made a notable contribution to our understanding of the early history of our institutions.5 But even if his version of their origins was illuminating (and this has been questioned), was he right in his interpretation of the era of the Stuarts? Of two possible anachronisms, it is probably less misleading to be old-fashioned, and to interpret a period in terms of ideas appropriate to the preceding age, than to read back into a period ideas which really only became current later on. In this respect The High Court of Parliament was a valuable corrective of the Whig historians, but it is probable that its author went too far in this direction, and overstated some of his points. Sir William Holdsworth was notable among critics who held this view, and he reiterated his denial that there was any fundamental law in England in the sense of a law that limited the competence of parliament. What English lawyers believed in, he insisted, was the supremacy of a law which 1 The High Court of Parliament, p. 131. 2 Law and Politics in the Middle Ages (1898), pp. 24, 25, 63. 3 The Divine Right of Kings (first published in 1896). 4 Op. cit. (2nd edn., 1914), pp. 228-32. Earlier still, Maitland had taken a similar line. It was Professor Jenks who, in an article that attracted much atten¬ tion at the time (‘The Myth of Magna Carta’, in 4 Independent Review, pp. 260-73), had been the first to explode the long-held idea, to which Stubbs had lent support, of the ‘popular’ character of Magna Carta, and had gone so far as to say that the ‘myth’ of Magna Carta was invented by Coke. This was a witty exaggeration, but it had a substratum of truth. 5 In this connexion the contribution of another American historian should not be forgotten: G. B. Adams, ‘The Origin of the English Constitution’, in 13 Amer. Hist. Review, 229-45, where emphasis was laid on the feudal charac¬ ter of Magna Carta, and at the same time it was pointed out that, though only a beginning, Magna Carta constituted ‘the first inclination of the constitution towards a limited monarchy’. Cf. also G. B. Adams’s book with the same title (Yale, 1912).

INTRODUCTORY

6

parliament could change.1 I think he was right; but this is not the whole story. As far as the seventeenth century is concerned, this divergence of opinion between two eminent scholars turns finally on the degree of importance to be ascribed to certain crucial cases, discussion of which must be postponed for the present. But it is difficult, here, to resist the temptation to see reflected in this dispute, in the first place the nationality, and in the second the professions, of the two protagonists. Mention has already been made of the predisposition of American writers to be interested in the notion of fundamental law; and it is by no means impossible that some of them have been guilty of their own ‘Whig interpretation’, in turning some of the remarks of Coke and other seventeenth-century lawyers into anticipations of modern American constitutional doctrines. On the other hand, the lawyer’s, or at any rate the English lawyer’s, professional training tends to predispose him to look at the past from an unhistorical standpoint.2 In the English lawyer’s view, a judge who applies a law to a fresh case elucidates what was always, potentially as it were, the law on that particular matter. One interpretation of the law may have been accepted for years, and then suddenly be reversed by a decision in a fresh case in a higher court, whereupon the new decision holds the field and the old interpretation is discarded as erroneous. Again, when a statute, let us say, has been applied over a long period of years, in changing circumstances, to a succession of cases, and has thus accumulated round it a whole nexus of judge-made law, the historian and the lawyer will look at the original statute in a different light. The historian will want to know what the statute meant to the generation which enacted it, apart from the ways in which subsequent judges have adapted their interpretations of it to fresh circumstances. For the lawyer, on the other hand, these successive interpretations reveal the true meaning of the law.3 Not only, therefore, does the Holdwortti, Hrstory of English Law, ii (3rd edn.), 441 ff.; iv. 183

.r

s-

ff.-

turv’ in nr 7 °f; LT 3nd RePresentatlve Assemblies in the Sixteenth CenLal]pp. 40 ff

^ PP’ 1_31; S°UrCes and Lite™ture of English

ZSh’S admission (H.E.L. ii. 444) that while the modern lawyer has no difficulty in keeping apart law and morals’ (as contrasted with a

sTmtd7mu7vTntrhlStfSman' believedof insovereignty’. natural law)’ he ‘has’ PerhaPS> some difficulty in thinking away\h° his notions P p..ip o

VaS ,

judges, of course, is to ascertain what a statute really means

he° «l" ;S**“•>*■and in a sense i, L,2rnalk (or true) meaning of a statute as if it were something knowable

INTRODUCTORY

7

lawyer’s business, unlike the historian’s, lie not so much with what the statute originally meant as with what it means now, but he will be inclined, unless he is careful, to imagine that the statute always, at any rate potentially, meant what it has since come to be interpreted to mean. I would not press this point too far, and of course the careful legal historian is fully aware of the need to be on his guard against the risk of this particular type of anachronism. A good deal of legal history, where the law or the procedure under discussion is plainly obsolete, presents no such risk. The trouble arises over crucial pas¬ sages which are capable of alternative interpretations, and it is here that professional bias may predispose a lawyer in favour of one rather than another. Take, for example. Sir Thomas Smith’s famous account (in his De Republica Anglorum) of the powers of parliament in the reign of Queen Elizabeth I. The most high and absolute power of the realm of England consisteth in the Parliament. . . . The Parliament abrogateth old laws, maketh new, giveth order for things past and for things hereafter to be followed, changeth rights and possessions of private men, legitimateth bastards, establisheth forms of religion, altereth weights and measures, giveth forms of succession to the crown, . . . appointeth subsidies, tailles, taxes and impositions, .... And to be short, all that ever the people of Rome might do, either in centuriatis comitiis or tributis, the same may be done

.1

by the Parliament of England

At first glance this undoubtedly reads like a statement of parliamen¬ tary sovereignty, and it was so taken, for example, by Maitland and by Pollock, who equated it with the doctrines of Bodin and Hobbes. An alternative interpretation, however, was put forward by Mr. L. Alston in the Introduction to his edition of the De Republica Anglorum. He pointed out that to Smith parliament was essentially a court. He does not cut apart the legislative, judicial and executive functions and endeavour to assign each to a particular element in the constitution. Rather, he tends to blur together the first two, and while of course clearly understanding the great practical difference between statutes and the sentences of lower courts, to treat them as being ... members of the same group. Both are the offspring of ‘courts’. or discoverable apart from the interpretation of it in the courts. All the same, it is notorious that legal interpretations have led to acts of parliament coming to mean something quite different from what they were originally intended to mean. 1 Sir T. Smith, De Republica Anglorum (1583; ed. L. Alston), pp. 48-49. The passage quoted is in Prothero, Statutes and Const. Docts., p. 178.

8

introductory

When Smith calls parliament ‘absolute’ he means not subject to appeal’, and he is by no means bringing up for consideration the question of sovereignty in the modern sense, or making statements which have any direct bearing on the great controversy of the next century. . . . The contrast upon which Smith’s attention is focussed is not the contrast between the powers of the Prince and of the Parliament, but between the powers of Parliament and of those other courts which he describes in later chapters, and describes without any feeling of essential difference between them and this highest court. He is still, in this respect, under the influence of

.1

traditional theory

Here we have the historian’s corrective to the lawyer’s predisposi¬ tion to interpret a sixteenth-century writer in terms of the legislative sovereignty with which he is familiar in the modern parliament. It is possible, no doubt, to go too far in the other direction, and overlook the fact that if Smith thought of parliament as a court, it was a very different court from any other. For, as Smith went on to say, parlia¬ ment ‘representeth and hath the power of the whole realm, both the head and the body. For every Englishman is intended to be there present, either in person or by procuration and attorney . . . , from the prince (be he king or queen) to the lowest person of England. And the consent of the parliament is taken to be every man’s consent.’2 It was this representative character which, even in the Middle Ages, marked the High Court of Parliament off from all other courts in the land, and was the root from which sprang its legislative capacity, and its ultimate attainment of sovereignty. In recent years the tendency has been to stress once more the unique authority of medieval and Tudor parlia¬ ments, as distinct from their purely judicial capacity,3 and Professor Chrimes has restated the importance of the notion of the three estates of the realm (which Pollard earlier had ridiculed as a foreign idea inapplicable to the English parliament),4 which, alongside and fused with its character as a high court, contributed to the unique authority of parliament as a legislative body.5 To discuss this subject further would take us too far, but let us observe the attitude Holdsworth adopted. While agreeing that Smith

1

De Republica Anglorum (ed. Alston), Introd., pp. xxviii, xxxiii. Loc. cit. See also G. L. Mosse, ‘Change and Continuity in the Tudor Con¬ stitution’, in 22 Speculum, pp. 18-28, for a comparison of the views of Smith and the Lancastrian Fortescue. * See below, pp. 14 ff. A. F. Pollard, The Evolution of Parliament, c. iv. S. B. Chrimes, English Constitutional Ideas in the Fifteenth Century, pp. 76 ff. ’ J

2

4

INTRODUCTORY

9

and other sixteenth-century writers like Lambard and Crompton spoke of parliament as a court, and that lawyers occasionally referred to an act of parliament as a ‘judgement of the Parliament’, he pro¬ ceeded to minimize the importance to be attached to such references, and to emphasize rather the rapid development of parliament’s non¬ judicial functions.1 This is an issue which can only be decided, if at all, by examining these crucial references, to Holdsworth occasional and insignificant, but to Mcllwain numerous and important. As a final illustration of this divergence between the English and the American approach to the question of fundamental law in the seventeenth century, let us glance at some typical comments on a judgement of Chief Justice Holt’s in the case City of London v. Wood (1701). This was an action brought in the Mayor’s court, in pursuance of an act of Common Council made in the reign of Charles II, to recover £400 from Wood as a forfeiture for refusing to serve as sheriff. In the Mayor’s court judgement was given against Wood, but on his appealing. Holt CJ. and two Barons of the Exchequer held that the action had been in error. Holt’s judgement is long and involved, but his main conclusions are clear enough. He agreed that Wood was guilty of a wrong in not obeying the act of Common Council, for it is a law in London; and every by-law is a law, and as obligatory to all persons bound by it, that is, within its jurisdiction, as any act of parliament, only with this difference, that a by-law is liable to have its validity brought in question, but an act of parliament is not; but when a by-law is once adjudged to be a good and reasonable by-law, it is to all intents as bind¬ ing to those it extends to as an act of parliament can be.

After considering some other points, he dismissed an objection that the by-law should be overruled on the ground that it inflicted a penalty which benefited its makers. Great communities, like the city of Lon¬ don, must ‘have a legislative power entrusted to them for their better government’, and it followed as a necessary consequence that they must have a power to inflict penalties for the enforcement of their by-laws. English law required the penalties so inflicted to be pecuniary, not corporal, and it was not unreasonable that such penalties should go ‘to the use of the body politic’. The real objection Holt saw was that the action had been brought in the names of the mayor and commonalty in a court held before the mayor and aldermen, for this conflicted with the legal principle that the same person should not be party and judge in the same cause. 1 H.E.L. iv. 183 ff.

10

INTRODUCTORY

And what my Lord Coke says in Dr. Bonham’s Case ... is far from any extravagancy, for it is a very reasonable and true saying. That if an act of parliament should ordain that the same person should be party and judge, or which is the same thing, judge in his own cause, it would be a void act of parliament; for it is impossible that one should be judge and party . . . ; and an act of parliament can do no wrong, though it may do several things that look pretty odd; for it may discharge one from his allegiance to the government he lives under, and restore him to the state of nature: but it cannot make one who lives under a government judge and party. An act of parliament may not make adultery lawful, that is, it cannot make it lawful for A to lie with the wife of B: but it may make the wife of A to be the wife of B, and dissolve her marriage with A.1

Holt’s concluding remarks are certainly not what we should expect to hear from the lips of a modem high court judge, nor do they make any obvious contribution to the decision of the case before him; further, their phraseology (e.g. the reference to the state of nature) reflects an eighteenth- rather than a twentieth-century point of view. But it is going a long way to declare, as Sir Carleton Allen does, that ‘the whole judgement, as reported, is so confused that it is impossible to believe that it represents what a great judge really said’.2 No doubt what seemed impossibly inconsistent to Sir Carleton was the fact that Holt, after apparently recognizing the sovereign authoritativeness of an act of parliament, proceeded to quote with approval Coke’s opinion in Bonham’s case.3 His reasoning is somewhat on these lines. The principle stated in Bonham’s case is not accepted by lawyers today. Holt was a great lawyer, and so can be presumed to have reasoned as a great lawyer would reason today. Therefore, Holt cannot have said what he has been reported as saying. Now it is true that Holt himself elsewhere complained that the Modern Reports were confused, but there appears to be no evidence, apart from a presumption that Holt cannot have used the words attributed to him, that the report in this case, and this part of the report in particular, was inaccurate. Nor was this an isolated case, for on another occasion, R. v. Earl of Banbury, Holt was reported as saying (‘gratuitously and nonsensically’, accord¬ ing to Sir Carleton Allen) that the judges’ daily business was to ‘con' 12 Mod., 669 ff.; 678, 686, 688. blanSiAllen’ Law !he Makins (5th edn.), p. 427 note. He therefore blames the inaccuracy of the reports in Modern. have

been

the princiPle which has generally been understood to

Professor Thorne; s^e below

^ ^ ^ ^ challenSed by

INTRODUCTORY

11

strue and expound acts of parliament, and adjudge them to be void’.1 Sir Carleton therefore presumed that here too Holt must have been misreported, and, he added, ‘no importance can be attached to these dicta’.2 But to reason on these lines is to make large and unwarrantable assumptions, and it is more historical to consider whether the true explanation of Holt’s remarks may not be that the older view of the relations between the courts and acts of parliament, which Coke had expounded, had not yet been entirely superseded. The truth indeed seems to have been, as Professor Plucknett remarked, that Holt was perplexed by the questions involved, and wavered in his judgement between the older and the more modern view.3 We are not yet in a position to decide between these views our¬ selves, but we can at any rate try to avoid the lawyer’s bias which is predisposed to dismiss what seems incompatible with modern legal opinion as ‘unimportant dicta’ or the like, referring contemptuously, for example, to Coke’s ‘confident opinions’,4 his ‘oracular and dog¬ matic utterances’,5 his ‘loose talk’, ‘scattered dicta', or ‘isolated state¬ ments’, when he ‘allowed himself to be carried away’.6 Even if we do not find in the end that we can go all the way with Professor Mcllwain, we shall not go wrong if we agree with him that the frequency with which such statements occur, ‘and the reputation of them who made them’, preclude us from such facile dismissal of them. ‘Instead of being occasional, captious,7 or inexplicable’, Professor Mcllwain concluded, ‘these cases represent the continuance of ideas prevalent and common in medieval times not only in England but in all Christendom’.8 1 Skinner, 527. 2 Allen, loc. cit. 3 T. F. T. Plucknett, ‘Bonham’s Case and Judicial Review’, in 40 Harvard Law Review, pp. 54, 55. Cf. Sir F. Pollock, ‘A Plea for Historical Interpreta¬ tion’, in 39 L.Q.R., p. 165, where he admits that the omnipotence of parlia¬ ment was not the orthodox theory of English law, if orthodox at all, even in Holt’s time. 4 F. Pollock, The Expansion of the Common Law, p. 122. 5 J. W. Allen, English Political Thought, 1603-1660, i. 31. 6 W. S. Holdsworth, H.E.L. iv. 186; Sources and Lit. of Engl. Law, p. 42. 7 See Note B, p. 224. 8 C. H. Mcllwain, The High Court of Parliament, p. 271. Additional Note (1961). In E.H.R. lxxv (1960), pp. 410-25, Mr. R. W. K. Hinton argues, against Alston and Mcllwain, that Smith believed in the sovereignty of parliament, and that the idea of fundamental law did not become current till the seven¬ teenth century. Tudor parliaments legislated with full authority, and Smith knew this, but I doubt if they were thought of as sovereign in the modern sense. It was assumed that they would not violate justice and equity, even though they could. Cf. pp. 22, 29, n. 3, 41, and 45, below.

CHAPTER II ANTECEDENTS

S. R. Gardiner expressed the strange opinion that the phrase ‘the

fundamental laws’, ‘which was soon to become so familiar, seems to have started into life among those courtiers of the queen who were calling for a Parliament to force on the king a French alliance’. This was in 1635, at the time of the dispute about ship money, the second writ for which was said to be contrary to the fundamental laws. ‘It mattered little’, Gardiner commented, ‘that no one could point out what those fundamental laws were, any more than their ancestors could have pointed out precisely what were the laws of Edward or Edgar, the renewal of which they claimed. . . . Not in statute or pre¬ cedent,’ he concluded, grandly, if somewhat vaguely, ‘not even in the Great Charter itself, but in the imperishable vitality of the nation, lay the fundamental laws of England.’1 There is no need to look in such an odd corner for the origins of the phrase which played so ubiquitous a part in the constitutional disputes of the seventeenth century. The phrase itself was current at the beginning of the reign of James I, and the ideas it stood for were far older, taking us back to the very roots of our political institutions. But we do not yet know, at any rate with any clarity, what it stood for in the seventeenth century. We only know clearly what it means as a technical term today; we are not yet certain, although a number of writers seem to have assumed this without question, whether the phrase had this same meaning in the seventeenth century, and we may suspect that, even if it had, it lacked clear definition, and may well have had a number of other more or less vague meanings besides. Nevertheless, to avoid losing our way in this wilderness, our safest course will be to cling fast, as long as we can, to the known meaning, and see how far it can lead us. If we find, in the course of our journey, S R. Gardiner, History of England, 1603-1642, viii. 84, 85. Gardiner quoled a newsletter from Salvetti, the Tuscan Resident in England, ascribing the phrase to the Puritans, and thought the writer would call the queen’s f™ilrHCrS EV is name. In the seventeenth century the phrase most commonly n is not fundamental law’ but ‘the fundamental laws’ in the plural. But the nf a S° 0 not. I think, with any important difference “"'"S’ nndamental rights’ and ‘fundamental government’ are also Guin m o n.

ANTECEDENTS

13

that it fails us as a guide, we shall have to take fresh bearings; but at any rate it will take us some distance, and we shall not wander aim¬ lessly from the start. We shall enjoy the further advantage that this path has already been well trodden and marked out before us by previous travellers. In the defined modern sense, fundamental law is closely associated with a number of related terms, such as sovereignty, legislation, judi¬ cial review, and so forth. We should obviously be guilty of unhistorical errors, even worse than those we noticed in the last chapter, if we looked in the Middle Ages for fundamental law in its modern sense and with its modern associations and correlations. But although we shall not expect to find in a medieval state either a sovereign or a non-sovereign legislature as these are understood today, it is still possible that we may discern there various elements whose relation¬ ships will be recognizably similar to those involved in the existence of fundamental law. The development of these elements undoubtedly could have led to the appearance of a genuine and definite funda¬ mental law, and one of the questions we shall have to decide is whether it actually did so. Professor Mcllwain summed up his main conclusions about the characteristics of our early institutions under five main headings, all of which were the consequences of his basic hypothesis that England after the Norman Conquest was a feudal state, and that therefore its central assembly was a feudal assembly.1 These characteristics, he considered, were: 1. There was no legislation, in the sense Of actual making of new law. The purpose of such legislation as occurred was either to confirm existing law or to provide remedies for abuses which had grown up in violation of customary rules. 2. The law which existed and was thus declared was a body of custom which came to be thought of as fundamental, in the senSe that rules or orders inconsistent with it were void. 3. There was no distinction between separate ‘departments’ of government, and correspondingly no clear differentiation, as there is today, between legislative, administrative, and judicial activities. 4. Parliament, which participated in the general and undifferen¬ tiated functions of government, both ‘legislated’ and ‘adjudicated’, but these activities were not clearly distinguished from each other. Rather, they were fused together, and neither was conceived of or 1 The High Court of Parliament, pp. vii, viii.

14

ANTECEDENTS

practised apart. Parliament was called and thought of as a court—the highest court in the realm, but still, a court—and rightly, for in fact the judicial aspect of its activities was for a long time relatively much more important than the legislative. 5. Acts of parliament were thus analogous to judgements in the lower courts, and this affected the attitude of the judges towards them. Today an act of parliament is an order, made by an omnipotent ex¬ ternal legislature, which the courts have to apply without question. But medieval judges were prepared to question and even set aside statutes with a freedom impossible to a modern court. There is no need for us to traverse again the whole of the field thus worked over by Professor Mcllwain. We can confine ourselves to those sections of it which closely concern the subject of fundamental law—the nature of law in the Middle Ages, and the question whether it could be changed, or new law made. Now it is, of course, easy to think of well-known passages and sayings (Nolumus leges Angliae mutare, or Bracton’s Rex non debet esse sub homine sed sub Deo et sub lege), which emphasize the superiority and unchanging character of early law, and Professor Mcllwain has also adduced a massive body of less hackneyed evidence in support of his theory.1 Since he wrote, however. Professor Plucknett has undoubtedly done much to undermine the solidity of Professor Mcllwain’s case. Instead of the picture of common law as a body of unchanging custom which statutes could only declare, we are told to think of it as ‘a living and changing organism, deriving its binding force from the fact that king and people willingly accepted it, until such time as they should change it’. We must remember too that change was easy and might be effected in very informal ways.2 So far from being immemorial and immutable, custom could be established, and changed, comparatively quickly: in ten or twenty years a custom was of long standing; in forty years it was ‘age-old’.1 Some medieval kings indeed were weak, but there was no juridical difficulty in the way of a strong king who wanted to lay a rule on his subjects. Legislation, in the sense of making new law, so a“6mg unheard °f and impossible, undoubtedly took place, an t e ear Books mention constantly ‘novel ley’ in contrast to the common law. Contemporaries were fully aware of what was going

;n939)Kern (tr-sB- Chrimes)>Kin^ .F.T. Plucknett, Legislation of Edward /, p. 15 3 Longaeva: ibid., p. 6.

ANTECEDENTS

15

on; they ‘frankly faced the fact that special law—“novel law”—was being “made” and that it “defeated” the common law’.1 Nor were acts of parliament the only effective method of legislation; ordinances and provisions and proclamations2 were also available as occasion might require. As against all this, of course, it remains true that in the Middle Ages there was no Austinian theory of sovereignty, but equally I think we must admit that there cannot have been a clear-cut theory of fundamental law. At the same time we must remember that the alleged absence of legislation in the Middle Ages was not an essential condi¬ tion of fundamental law. The absence and impossibility of legislation might be one way to ensure the existence of fundamental law, but fundamental law can and does quite well co-exist with legislative activity. In its normal modern form, in fact, fundamental law implies only the operation of restrictions on legislation, not its non-existence. This brings us to the question of Magna Carta, which has often been thought of as especially sacrosanct, and, in the seventeenth century at any rate, as specifically fundamental. We are not concerned here with such controversial topics as the correct interpretation of per legem terrae, or any other of the Charter’s celebrated phrases, nor with the question exactly how and when an originally feudal docu¬ ment came to be regarded as a guarantee of popular liberties.3 What is significant for us is that, irrespective of its original purpose, this was the value of it to later generations. But was it, then, a fundamental law? In this connexion special importance has been attached to the confirmation of the Charter in 1369. In the parliament of that year it was ‘assented and accorded that the Great Charter and the Charter of the Forest be holden and kept in all points; and if any Statute be made to the contrary, that shall be holden for none’.4 This has been taken to be an attempt by a parliament to tie the hands of its successors (we shall see further attempts of the same kind later), and Professor Mcllwain saw in it clear proof that Magna Carta was intended to be 1 T. F. T. Plucknett, Statutes and their Interpretation in the First Half of the Fourteenth Century, p. 28. On the other hand Professor Chrimes warns us that the term ‘novel ley’ is not in itself evidence of the making of new law, for ‘law’ and ‘statute’ often meant the same thing, and ‘novel ley’ may only mean a new statute (S. B. Chrimes, English Constitutional Ideas in the Fifteenth Century, p. 251). 2 Professor Plucknett disagrees with Professor Mcllwain (and Coke) in distinguishing between ordinances and statutes, and believes that in the four¬ teenth century statutes, ordinances and provisions were identical, none of these words being a technical term with any special meaning (op. cit., p. 32). 3 See Note C, p. 224. 4 42 Ed. Ill, c. 1.

16

ANTECEDENTS

‘a fixed and unalterable law’.1 On the other hand, this statute of 42 Edward III may only have meant that statutes previously passed (if any) that were contrary to Magna Carta were to be nullified, without any question of trying to restrict the capacity of future parliaments.2 Professor Plucknett has shown that in practice, at any rate in the fourteenth century, lawyers did not treat the Charter as unalterable fundamental law, and though it was confirmed in general terms, con¬ siderable portions of it had long been repealed by previous enact¬ ments, and these repeals were regarded as valid. After all, if Magna Carta were truly fundamental law, why was it necessary to confirm it so frequently? The reason for this ‘theoretical sanctity and practical insecurity’ no doubt lies, as Miss Thompson (quoting Maitland) suggests, in the ‘perennial medieval problem of law enforcement’;3 yet, even if the Charter were not strictly fundamental, the effect of these repeated confirmations, all recorded in the Statute Book (Coke reckoned thirty-two confirmations, but Miss Thompson raises the total to forty-four), must undoubtedly have been to impress on later generations the conviction that Magna Carta was no ordinary statute but of special permanence and importance.4 In fact, parliament was constantly seeking to buttress and increase the binding force of the Charter by legislative enactments, notably by a group of six statutes which were repeatedly cited in the seventeenth century as its essential supporters and accompaniments. And this reinforces the point Holdsworth made against Professor Mcllwain’s contention that Magna Carta represented fundamental common law; that Magna Carta, though in form declaratory, was after all enacted law, and that much 1 The High Court of Parliament, p. 59. Cf. also his essay ‘Magna Carta and Common Law’, in Magna Carta Commemoration Essays (ed. H. E. Malden, 1917), pp. 122-79, reprinted in Constitutionalism and the Changing World, pp. 127-77, where he repeated his view that common law was ‘in a very real sense a fundamental law’. 2 This is suggested by the wording of the petition leading to the statute of 42 Ed. Ill, which ‘not content simply to assume that statutes contrary to the charters be holden for none” . . . asks that such statutes be examined and . . . actually repealed. It was dangerous to leave on the statute roll acts which . . . contravened the charters, and might well be enforced by the judges’ (F. Thomp¬ son, ‘Parliamentary Confirmations of the Great Charter’, in 38 American Hist. Review, p. 670). This interpretation is also borne out by Coke himself (2 Inst., Proeme), for after quoting the statute he comments: ‘By which words all former [my italics] statutes made against either of those Charters are now repealed.’ F. Thompson, Magna Carta, p. 14. Cf. also her article in the American Historical Review referred to above, p 664 4 Op. cit., p. 19.

ANTECEDENTS

17

of the common law itself was founded on the legislation of Norman and Angevin kings.1 If, then, common law, and even Magna Carta itself, turn out on investigation not to have been strictly speaking fundamental, it may yet be suggested that in medieval England, as in every other land in western Europe, at any rate the law of God and the law of nature possessed this character. There is no need to multiply quotations from medieval (and later) authorities on the subject of the overriding sanc¬ tity of natural law, which in theory at any rate was superior to all positive law.2 But how far positive law was in practice set aside when it conflicted with natural law is another question. Fortescue among others3 stressed the superiority of the law of God and of nature, but according to Professor Chrimes it is very doubtful if judges in the fourteenth or fifteenth centuries ever actually nullified a statute on the ground of its repugnance to such higher law. Judges occasionally nullified statutes in the fourteenth century, but always for more techni¬ cal reasons, and the one and only clear case of a statute being declared void by the courts in the fifteenth century was based on no such general theory.4 This was the case of Rous v. the Abbot, otherwise known as Annuity 41 (it was one of the cases cited as precedents by Coke in Bonham’s case), where the Statute of Carlisle, which laid down regulations for the custody of monastic seals, was set aside by the court on rather quibbling grounds as impossible to carry out.5 We gather from Christopher St. Germain, author of the Dialogues in English between a Doctor of Divinity and a Student in the Laws of England,6 that the concept of reason took the place of the law of nature among English lawyers in his day. ‘It is not used among them 1 H.E.L. ii (3rd edn.), p. 441, n. 1; Sources and Literature of English Law, p. 42; ‘Central Courts of Law and Representative Assemblies in the Sixteenth Century’, in 12 Columbia Law Review, p. 20. 2 See, for example, O. Gierke (tr. F. W. Maitland), Political Theories of the Middle Age (Cambridge, 1900), pp. 74 ff., and F. Kern (tr. S. B. Chrimes), Kingship and Law in the Middle Ages, pp. 71 ff. 3 De Laudibus Legum Angliae, ed. and trans. by S. B. Chrimes. 4 S. B. Chrimes, English Constitutional Ideas in the Fifteenth Century, 5 N. Statham, Abridgement of the Year Books, under title Annuity, Pasch. xxvii H VI. Cf. below, p. 33. Lord Cromwell’s Case (20 Eliz.), 4 Co. Rep. 13a, an action for slander under the act De Scandalis Magnatum, is a sixteenthcentury case where an act was declared to be ‘against law and reason and there¬ fore void’, but here it was resolved that the act was a private act; and we have yet to determine what Coke meant by declaring an act void. 6 Published in 1523, and commonly called Doctor and Student. I quote the edition of 1569. 5725

c

18

ANTECEDENTS

that be learned in the laws of England’, we read, to reason what thing is commanded or prohibited by the law of nature, and what not, but all the reasoning is under this manner, as when anything is grounded upon the law of nature, they say that reason will that such a thing be done, and if it be prohibited by the law of nature, they say it is against reason or that reason will not suffer it to be done’.1 To this law of reason St. Germain ascribes high authority. It ought to be kept as well among Jews and Gentiles as among Christian men. . . . And it is written in the heart of every man, teaching him what is to be done and what is to be fled. And because it is written in the heart, therefore it may not be put away, . . . and therefore against this law, prescription, statute nor custom may not prevail. And if any be brought against it, they be no prescriptions, statutes, nor customs, but things void and against justice.2

St. Germain enumerates six ‘grounds’ of the law of England, and this law of reason is the first. The law of God comes second, third being ‘divers general customs of old time used through all the realm. . He puts fourth ‘divers principles that be called in the law maxims, the which have always been taken for law in this realm’. What these are, he adds, ‘shall alway be determined by the judges...’. Fifth come local customs, and sixth and last ‘divers statutes made by our sovereign Lord the King and his progenitors, and by the lords spiritual and temporal and the commons in divers parliaments, in such cases where the law of reason, the law of God, customs, maxims ne other grounds of law seemed not to be sufficient to punish evil men and to reward good men’.3 St. Germain’s remarks about the place of reason in English law—a place which undoubtedly sounds as if he meant it to be fundamental —may guide us to the solution of our problem. Sir Frederick Pollock alludes to the important part played to this day by the concept of reason in English law, and points out, for example, that much of the modem law on the subject of negligence still rests on the idea of what steps a reasonable man would take in particular circumstances.4 Though the whole common law was not fundamental in the sense of 1 Doctor and Student, f. 8 recto. It is not true that English lawyers never reasoned in terms of natural law. Cf. Sharington v. Strotton below, p. 21. Cf. also the manumission of a villein in 1574 (in Prothero, Statutes and Const. Docts., p. 173), where God is said to have created men free by nature, but later the jus gentium introduced serfdom. 2 Ibid., f. 4 recto. 3 Ibid., ff. 7 verso to 21 verso. 4 F. Pollock, The Expansion of the Common Law, pp. 107 ff., 123 ff.

ANTECEDENTS

19

being unalterable by statute, yet it was thought of as containing, or as built on, certain abiding principles. Consequently there were always certain presumptions and rules of interpretation in favour of common law, which even today have not entirely lost their effectiveness. Thus the existing common law, though not unchangeable, was assumed to remain unchanged by statute unless the statute were so worded as to indicate an express intention in the legislature to change it. In other words, statutes in derogation of common law, like penal statutes and statutes in derogation of common right, were interpreted ‘strictly’ rather than ‘benevolently’.1 Pursuant to this principle, only a negative statute abrogated or superseded common law (or repealed a previous statute in the affirmative): a statute in the affirmative, without any negative expressed or implied, was construed as operating parallel with and not contrary to the existing law.2 Ultimately such principles held good because of the presumption that parliament itself must be inspired by principles of reason and justice, and that the real intention of the legislature would be best secured if an act of parliament were construed in the light of such principles.3 This led to the development of the doctrine that the courts should be guided by what came to be known as the ‘equity’ of a statute, which was sometimes to lead to a disregard for the actual text of acts of parliament to an extent that no court would allow itself today. A well-known example of this is in Fulmerston v. Steward, at the beginning of the reign of Mary Tudor, a case of trespass involving the interpretation of the statute for the dissolution of the greater monas¬ teries, 31 Henry VIII, c. 13. In his judgement Bromley J. declared: ‘It is most reasonable to expound the words which seem contrary to reason according to good reason and equity. And so the judges who were our predecessors have sometimes expounded the words quite contrary to the text, and have sometimes taken things by equity con¬ trary to the text, in order to make them agree with reason and equity.’ He gave several instances of statutes so treated by medieval judges: on one occasion, for example, the judges 1 See Note D, p. 224. 2 S. B. Chrimes, English Constitutional Ideas in the Fifteenth Century, pp. 255-9; cf. 1 Plowden, 112 {Townsend’s Case, 1 & 2 Philip and Mary). 3 Cf. Hill v. Grange (3 & 4 Philip and Mary), 1 Plowden, 175, where the judge refused to construe a statute in a way he considered ‘would be great injustice, which is not to be presumed in a Parliament’. Cf. also Earl of Leicester v. Hey don (13 Eliz.), ibid., p. 398, where it was assumed that ‘the Legislature always have truth and justice before their eyes’.

20

ANTECEDENTS

expounded the text which is general to be but particular, which exposi¬ tion is contrary to the text, because the text is contrary to reason, for that so small a tenure a man should pay so great a charge, and therefore they took it that the intent of the maker of the statute could not be according to the letter. . . . And so reason shall guide the exposition of the words of statutes, and the equity of them. And if the words of statutes shall be construed contrary to the text, and things shall be taken by the equity of statutes in other manner than the principal provision of the statute is, and all this in order to make them agreeable with reason,

the judge concluded that similar methods of construction could be adopted in the case before him.1 Plowden’s Reports contain numerous other cases of the Tudor period exhibiting similar freedom on the part of the judges in the interpretation and application of statutes. In Partridge v. Strange and Croker a literal interpretation of the statute 32 Henry VIII, c. 9 (Of Pretended Titles) was rejected in favour of an interpretation ‘by equity, inasmuch as it is made in suppression of vice and great mis¬ chiefs, notwithstanding it be penal against the offenders’. Thus ‘to say that the intent of the statute was to restrain such leases would be too hard an exposition and contrary to all reason and equity’, and ‘the words shall be construed most favourably to satisfy the intent of the makers’. As Montague C.J. put it: This statute was made in affirmance of the common law, and not in alteration of it, and all that the statute hath done is, it has added a greater penalty to that which was contrary to the common law before. . . . For to construe the statute that he, who is in possession, shall not make a lease . . . except he had been in possession . . . for a year before, would be a hard law, and contrary to all reason and equity: and such an exposition of the statute was never intended by the makers of it. . . . And that which law and reason allows shall be taken to be in force against the words of statutes.

He then gave examples of interpreting the statute Articuli super Cartas and the Statute of Westminster II, in which ‘they would not expound the statute contrary to what the common law and common reason allowed, notwithstanding the words were against it’. ‘It seems to me , he added, that the words ought to receive such a construction as shall not clash with common reason.’2 Another case some years later, in Elizabeth’s reign, in which it was decided that the natural affection of a father for his heir was a sufficient 1 Plowden, 109. See Note E, p. 225.

2 6 & 7 Ed. VI, 1 Piowden, 82.

ANTECEDENTS

21

consideration to raise (i.e. establish) a ‘use’ in land, is interesting on account of the prominent part played in the judgement by the con¬ cept of nature and natural law. After quoting Aristotle, the judge remarked that if the philosophers have searched so deeply for the law of nature, and in their laws which they have devised and written for the government of the people have commanded us to follow nature, and have taken nature to be one of the foundations whereupon all laws are built,... we ought not to think that the founders of our law were remiss in searching after the law of nature, or that they were ignorant of it. Nor have we any reason, from the laws which they have made, to conceive so low an opinion of them, for their laws argue to the contrary, and shew that they who made them were men of the greatest and most profound judgement, and acquainted as well with the law of nature as with the law of reason and the law of God also. For there is nothing in our law contrary to nature or reason or the law of God, but our law is agreeable to them all.1

Professor Plucknett has shown that at first the chief difference between common law and statute was that the statute was a written text, and that though this ‘produced in the fulness of time a revolution in our legal system, for it gave us a new and a very different source of law’, the change was slow and much of it did not take place till later. For some time acts of parliament had not acquired the precise charac¬ teristics inseparable later from the conception of a statute, and they continued to be regarded ‘in much the same way as other documents and modes of legal change ...; in essence they were merely modifica¬ tions of the elastic web of the customary common law’. Later, statutes became ‘a very special sort of law, studied in a special way and manifestly different from the common law’. They ‘ceased to be a mere detail and must henceforward be regarded as something external to it’,2 and minute attention was thenceforward paid to the exact word¬ ing of their text. The cases just quoted from Plowden show that by the Tudor period the judges, while recognizing that statutes were quite different from common law, were not yet bound by the rules of exact literal interpretation, but felt themselves entitled to use considerable latitude and discretion in the application of statutes. They used this discretion in the interest of what were regarded as overriding (or fundamental) principles or maxims of reason or equity;3 but this falls 1 Sharington v. Strotton (7 & 8 Eliz.), 1 Plowden, 303 ff. See Note F, p. 225. 2 T. F. T. Plucknett, Legislation of Edward /, pp. 13, 14. 3 Cf. F. Bacon, A Brief Discourse upon the Commission of Bridewell, in

ANTECEDENTS

22

a good way short of setting acts of parliament entirely aside as uncon¬ stitutional and so null and void, and so differs in principle from the modern practice of judicial review. The Supreme Court of the United States, for example, does not (or at any rate is not supposed to) review acts of congress in the light of general principles, whether of reason or equity, but in relation to the terms of the Constitution, which itself, with its amendments, is a piece of written and enacted law. In medieval (and Tudor) England, on the other hand, parliament, and for that matter every other authority, however exalted, from the king downwards, was conceived of as being under the obligation to respect certain general principles of reason or nature: ultimately, moral principles, or the will of God. But—and this at bottom is the reason why no medieval authority or legislature can strictly be called sovereign in the modern Austinian (or Hobbesian) sense—these principles were not thought of as purely or merely moral principles, and so distinct from legal ones. This can be put in another way by saying that law and politics were not then, as now, thought of as separate from ethics and religion, and governed chiefly, if not en¬ tirely, by considerations of utility, or convenience, or gain, or power. To the medieval thinker, as the whole of creation was subject to God’s will, the state and law were essentially organs of right and justice, and justice was an absolute quality, not something relative merely to the law in force in a particular place. Without justice, as St. Augustine had said, what were kingdoms but great robberies? In spite of the effective attainment by parliament of legislative sovereignty, we shall find this fusion of law and ethics (or religion) all through the seven¬ teenth century, and much of the eighteenth too; it is this which explains why Locke, for instance, felt it necessary to work a justifica¬ tion of rebellion into a treatise of civil government. Nowadays we sometimes commend resistance movements against tyranny, but we do not regard such commendation as bearing on the purely legal authority of an existing government, which is a question not of morals but of effective and established power. But in the Middle Ages, and afterwards into the sixteenth and seventeenth centuries, law' and morals were fused together: hence the recognition by the courts that certain wrongs were not mala quia prohibita but mala in se.1 i a V•

u ’

d the fu

ViL 509: ‘The Maxims are the foundaand Perfect conclusions of reason ’

resisfancew^rern" yAgeS> aS FritZ Kern has shown’ the right of Caltl is a well kno8 35 ?art«°f the law itself; the famous § 61 of Magna Carta is a well-known example of its incorporation in a legal document

ANTECEDENTS

23

It was not only moral principles, or principles of reason in the abstract, that the courts treated with such jealous regard. Translated into practice, these principles meant that the liberties and rights of the subject, notably the rights of property and of personal freedom, were ordained for men by the will of God, so that, indeed, justice and equity consisted mainly in upholding them. There was a presumption that the law would protect these, and that no statute could be intended to damage them. (Kings indeed might have had evil designs on them, but one of the chief purposes of charters had been to check such designs.) These principles perhaps may be called fundamental, not so much because they could not legally be assailed as because it was assumed that no legal authority would wish to assail them. Another question closely connected with the moral aspect of government was the relationship of church and state. Until at the Reformation the secular power laid rough hands on the church (and this action, revolutionary as it was, was a startling and convincing proof of what parliamentary legislation could then achieve) church and state occupied separate spheres, and although the church had sometimes ventured to dictate to the state, the state generally admitted the superiority within its own sphere of the church, and was content with a condominium of regnum and sacerdotium. No act of parlia¬ ment could make a man a parson,1 it was said, and this in its way was undoubtedly a limitation on the scope of the legislative power. Would it be straining the term to say that this immunity of the spirituality from secular control, and its enjoyment of its own law and its own courts, was a kind of fundamental law? It was at any rate conceived to rest on a ‘higher law’, indeed on the law of God. When, therefore, St. Germain, in Henry VIII’s reign, declared that ‘it is holden by them that be learned in the law of this realm that the parliament hath an absolute power as to the possession of all temporal things within this realm, in whose hands soever they be, spiritual or temporal, to take them from one man and give them to another without any cause or consideration’. Sir Thomas More indignantly denied it. ‘By what right men may take away from any man, spiritual or temporal, against his will, the land that is already lawfully his own, that thing this pacifier [St. Germain] telleth us not yet.’2 More thus added the fundamental 1 S. B. Chrimes, English Constitutional Ideas in the Fifteenth Century, p. 292; A. von Mehren, ‘The Judicial Conception of Legislation in Tudor England’, in Interpretations of Modern Legal Philosophies, ed. P. Sayre, p. 754. 2 The Apology of Sir Thos. More, Kt. (1533), ed. A. I..Taft, E.E.T.S. 180

24

ANTECEDENTS

right of property to the church’s claim to independence, but it was for the latter’s sake that he ultimately became a martyr when he refused to acknowledge the royal supremacy. At this point we may pause a moment to consider a suggestion put forward by Mr. K. W. M. Pickthorn. It was still natural in Henry VII’s time, he thinks, for men to think of Law as supreme, above the state or any of its authorities—a matter of knowledge rather than will; and he argues that most parliamentary legislation did not purport to alter or institute general rules, or Law with a capital L. Much of it consisted of administrative instructions, or was ‘designed for the enforcement of what no one doubted to be already law (right, jus)—by fortifying or adapting procedure, by increasing penalties, by directing police administration’, and so on.1 Now this has been remarked of later periods also. Maitland pointed out that in the eighteenth century there was little real legislation in the sense of laying down general rules, and that though the statute book was bulky it was mainly filled by enactments dealing with particular or private affairs.2 It was only after the Reform Bill of 1832, he suggested, that parliament really began to legislate with great vigour, and overhauled the whole law of the country. But at the same time it gave up trying to govern the country, that is, to say what commons should be enclosed, which roads widened: instead, it began to lay down general rules on all these matters and entrusted their execution to officials and government departments.3 Even later than this, as Sir Courtenay Ilbert pointed out, nine-tenths of the statute book continued to be concerned with administration rather than legal principles, and although parliament has intervened from time to time ‘when the development of commonlaw rules has failed to keep pace with changes in social and economic conditions’, to bring them ‘into conformity with the national will and (1930), p. 86. St. Germain’s Treatise concerning the Division between the Spiritualty and Temporally (1532) is printed in an Appendix, the passage quoted being on p. 228. 1 K- W. M. Pickthorn, Early Tudor Government, i. 135, 144 ff. He discusses a number of Henry VII’s statutes in detail in this light. 2 Cf. also A. von Mehren, op. cit., p. 757, surveying later Tudor legislation from this angle. Elizabethan statutes, for example, were largely concerned with administrative regulations about trade, poor relief, enclosures, control of recusants, and so on, and it is significant that the Act of Supremacy (following Henry VIII s model) purported to be not an innovation but a restoration of ancient rights. F. W. Maitland, Constitutional History of England, pp. 382 ff. He seems to have forgotten that parliament was very much concerned at this time with saying what railways should be built.

ANTECEDENTS

25

national requirements’, the greater part of the leading rules that make up the law of contract or tort were still common law.1 Nevertheless, it would be unsafe to argue from this that Tudor parliaments could not legislate, and Mr. Pickthorn admits that on occasion their legislation went close to the heart of what, if anything, one might have thought would have been inviolable—the individual’s right of property, and even that most ‘real’ of all kinds of property, property in land.2 Like such medieval statutes as Mortmain, De Donis Conditionalibus, and Quia Emptores, a number of famous Tudor statutes made great changes in the conditions on which land could be held or alienated. The Statutes of Uses (1536), for example, and of Wills (1540) were a direct and deliberate interference with vested property rights. The legislation by which the Reformation was effected, though some of it was not without precedent, was an equally striking proof that the king in parliament had no respect for traditional legal relationships.3 Yet the interesting case of Wimbish v. Taillebois (1 Edward VI)4 shows that though in practice the courts gave effect to such legislation, they would not, or at any rate did not, overtly face the fact of parlia¬ mentary violation of the sanctity of private rights. The Statute of Uses was intended to restore to the Crown the feudal dues which were being evaded by means of a growing practice which was in some respects a forerunner of the trusteeship of modern times.5 An owner in effect made over the occupation and enjoyment of land to someone else, unknown to the common law, in the eyes of which the land con¬ tinued to belong to the legal owner. The Statute of Uses laid down that henceforward the beneficiary of the use, or cestui que use, who effectively enjoyed the land, should be treated as the legal owner, and so be liable for dues to the Crown. Chief Justice Montague interpreted this as follows: 1 Sir C. Ilbert, Legislative Methods and Forms, p. 6. Cf. C. K. Allen, Law in the Making (5th edn.), pp. 289 ff. 2 Pickthorn, op. cit., p. 165. 3 Professor Mcllwain thinks that the act of 1536, transferring to the king the lands of the lesser monasteries, was quite unprecedented, and to most contem¬ poraries more revolutionary even than the Statute of Uses (56 Harvard Law Review (1942), p. 148). 4 1 Plowden, 59. Although several commentators have discussed this case it is so instructive that I cannot omit further discussion of it. See E. T. Lampson, ‘Some New Light on the Growth of Parliamentary Sovereignty’, in 35 American Pol. Science Review, pp. 952 ff.; A. von Mehren, op. cit., p. 752, C. H. Mcllwain, Constitutionalism Ancient and Modern (2nd edn.), p. 116. 5 Cf. J. Hurstfield, ‘The Revival of Feudalism in Tudor England’, in 37 History, N.s. (1952), pp. 131 ff.

26

ANTECEDENTS

When the statute of 27 H. 8 was made, it gave the land to them that had the use. And, sir, the Parliament (which is nothing but a court)1 may not be adjudged the donor. For what the Parliament did was only a convey¬ ance of the land from one to another, and a conveyance by Parliament does not make the Parliament donor; but it seems to me that the feoffees to uses2 shall be the donors, for when a gift is made by Parliament, every person in the realm is privy to it, and assents to it, but yet the thing shall pass from him that has the most right and authority to give it. ... So here it shall be said the gift of the feoffees by Parliament, and the assent and confirmation of all others. For if it should be adjudged the gift of any other, then the Parliament would do a wrong to the feoffees in taking a thing away from them, and making another the donor of it. . .. And here the land is by act of Parliament removed from the owners, that is to say the feoffees, to the cestuy que use, and the statute would do wrong if it should not adjudge them the donors, for they have the greatest authority to give it, and the [?act of] Parliament is only a conveyance, and therefore it shall be adjudged the gift of the feoffees by Parliament. . . .

A number of points are worth noticing in this judgement. In the first place, it does not admit that an act of parliament could take property from one person and hand it over to another. Property was implicitly sacrosanct, so that lawfully it could only change hands by the volition of the owner; so, the transference here is called a gift. It could not be the gift of parliament, for the land was not parliament’s to give. It must therefore be given by the owner. How did the owner come to give it? Now, taxation in the Middle Ages had likewise been regarded as the free gift of individuals, but by means of the fiction that consent could be given by representatives, the levying of taxation by parliament had been made to square with the rights of individual property-owners. Montague now borrowed this fiction and applied it to the Statute of Uses, thereby making it appear that parliament, acting in a purely judicial instead of a legislative capacity, had merely organized and registered a series of voluntary private conveyances of property by the owners. Another point of interest is the judge’s allu¬ sion to parliament doing a wrong to the feoffees. Here again he does not admit that whatever the parliamentary majority thought fit to enact was ‘right’ as far as the law was concerned; he assumes that parliament cannot have intended to violate the rights of ownership. • ‘ Not,e this Phrase. As late as the time of Chudleigh’s Case (1589-95) two

irjMEa sss: r,he legal

ANTECEDENTS

27

Yet, strained and unnatural though Montague’s interpretation seems to us, there was obviously no question of the court trying to set aside the Statute of Uses, or pronounce it void for contradicting common law or ‘reason’. It marked in fact an important step towards the attain¬ ment and acceptance of full legislative sovereignty.1 In this connexion it may be significant that in Brooke’s Abridgement, which was com¬ piled in 1573, we find the distinction between statutes which affirm the common law and statutes which create new law, whereas in Fitzherbert’s Abridgement, which dates from before the Reformation Parliament, this distinction does not appear.2 Henceforward, at any rate, this distinction was regularly made, and it is worth noting that Coke repeated it without question: indeed he stressed the importance, in order to understand the purport of a statute, of knowing what the common law was before the statute was made, as this would show whether it was ‘introductory of a new law, or affirmatory of the old’, and was thus ‘the very lock and key to set open the windows of the statute’.3 How, then, does Professor Mcllwain’s theory stand in the light of what we have seen? I think we must, in the first place, dismiss the notion that law was only declared and not made. This may have been true of the early Middle Ages, but in the later Middle Ages, or in Tudor times, it was certainly no longer so. It remains true that parlia¬ ment often, perhaps generally, continued to be thought of as primarily a court, and this may have impeded the recognition of the fact that it was at the same time becoming more and more of a legislature. We must remember, however, that while this uifdifferentiated fusion of judicial and legislative functions made possible such strained inter¬ pretations of the law as that in Wimbish v. Taillebois, it was through the very fact that parliament was the highest court in the realm that it achieved legislative sovereignty. For this reason its acts were not subject to judicial review in the modern sense, even though the lower courts might sometimes seem to play fast and loose with them, whereas the American congress, while indubitably a legislature (and as fully representative of the people as the English parliament: much more so, indeed, at its inception), is not sovereign precisely because it 1 See Note G, p. 225. 2 Cf. C. H. Mcllwain in 56 Harvard Law Review, p. 149, A. von Mehren, op. cit., p. 757. On the other hand Professor Chrimes has pointed out that there are cases in the Year Books which show conclusively that already in the fifteenth century this distinction was recognized by the courts {Eng. Const. Ideas in the 15th cent., p. 254). 3 2 Inst., p. 308.

28

ANTECEDENTS

is not and never has been a court. Acts of parliament, however, as Pollard pointed out, have always been ‘due process of law’.1 How far was this realized by the sixteenth century? Mr. Pickthorn thought that one of the most striking characteristics of the legislation of that period, as compared with that of today, was its unconscious¬ ness,2 and it certainly seems to be true that a great deal of the activity that we should call legislative was then described, however awkwardly, in judicial terms, and while here and there a clear-sighted writer or speaker discerned some at least of the implications of legislative sovereignty, there was no general appreciation or acceptance of them. Francis Bacon was one of those who perceived that (whatever the status of common law) no acts of parliament themselves could be fundamental. Henry VIPs Treason Act of 1495 provided that if any¬ one should assist the king for the time being he should not afterwards be impeached or attainted for so doing, and that if such attainder were made it should be ‘utterly void’.3 ‘The spirit of this’. Bacon com¬ mented, was ‘wonderful pious and noble’, but he was fully aware that ‘the force and obligation’ of it was in itself illusory ... (by a precedent act of Parliament to bind or frustrate a future). For a supreme and absolute power cannot conclude itself, neither can that which is in nature revocable be fixed; no more than if a man should appoint or declare by his will that if he made any later will it should be void. And for the case of the act of Parliament, there is a notable precedent of it in King Henry the Eighth’s time; who doubting he might die in the minority of his son, procured an act to pass, That no statute made during the minority of a King should bind him or his successors, except it were confirmed by the King under his great seal at his full age. But the first act that passed in King Edward the Sixth’s time was an act of repeal of that former act; at which time nevertheless the King was minor. But things that do not bind [he concluded shrewdly] may satisfy for a time.4

Professor Mcllwain thought that ‘even Bacon’ agreed with Coke that Magna Carta was unalterable, and pointed out that he cited the confirmation of it in 42 Edward III,5 but it seems doubtful if this interpretation is sound. Bacon’s references to Magna Carta and its confirmation occur in his Brief Discourse upon the Commission of 1 See Note H, p. 225. * K. W. M. Pickthorn, Early Tudor Govt. i. 141. 1922VnHfiVIL C' 1; printed in J- R- Tanner’ Tudor Const. Docts. (Cambridge, > r M rt • rj.. 4 See Note I, p. 226 C. H. Mcllwain, The High Court of Parliament, p. 64.

ANTECEDENTS

29

Bridewell,1 and the opinion he gave there was certainly to the effect that a royal charter which it was proposed to issue to Bridewell would be illegal because repugnant to the famous 29th chapter of Magna Carta, which declared that ‘no free man shall be taken or imprisoned’, &c. But while thus holding that the royal prerogative could not violate the provisions of Magna Carta, it is clear from the later part of his argument that he considered that parliament was fully able to autho¬ rize action contrary to the old law of the land. The same point appears also in his argument in Chudleigh’s Case, where, he reminded the judges, ‘your authority over the laws and statutes of this realm is not such as the Papists affirm the Church to have over the Scriptures, to make them a shipman’s hose2 or nose of wax; but such as we say the Church has over them, soil, to expound them faithfully and apply them properly’. All his sympathy was with the rule of law and the protection of ancient interests, but he clearly realized that no legal barrier could withstand the omnipotence of parliament. I think and hope [he declared] that I shall never see such a time, and my sight is too dim and my prospect too short to foresee it; but such foreseeing men may likewise foresee this with the rest,—that if force prevail above lawful regiment, how easy it will be to procure an act of Parliament to pass according to the humour and bent of the State, to sweep away all these perpetuities which are already slandered and dis¬ credited.3

This was indeed a longsighted view of what was later to be called the tyranny of the majority. 1 In Works, vii. 512. 2 i.e. a sailor’s wide trousers; hence, figuratively, ‘a statement of wide application that can be turned to fit any case’ (O.E.D.). 3 Works, vii. 623, 633. Contrast the view of Peter Wentworth, quoted by J. E. Neale, Elizabeth I and her Parliaments, 1584-1601 (1957), p. 262. Accord¬ ing to Wentworth ‘Parliament is most sacred, most ample and large, and hath prerogatives and pre-eminences far above any court whatsoever which is estab¬ lished by God under the heavens’. Yet its authority ‘is straitly stinted and de¬ fined with the limits and meres of justice and equity’. In other words, as Sir John Neale puts it, ‘Parliament was not sovereign, according to modern Austinian ideas. It had a sphere of power within which it was “absolute”, in the sense that there was no superior authority to overrule it, but within that sphere it operated subject to the fundamental principles of God’s law and natural law—principles, that is to say, of justice and equity.’ These ideas (which resemble those of Bodin, cf. below, p. 53) survived long after Eliza¬ bethan times. In the seventeenth century, Montrose was one of many who, while professing a belief in sovereignty, yet thought of it as limited ‘by the laws of God, the laws of nations, and the fundamental laws of the country’ (J. Buchan, Montrose, c. v.).

CHAPTER III

SIR EDWARD COKE In the first parliament of James I’s reign the speaker told the king that ‘the Laws, whereby the Ark of this government hath been ever steered, are of three kinds: the first, the Common Law, grounded or drawn from the Law of God, the Law of Reason, and the Law of Nature, not mutable; the second, the positive Law, founded, changed and altered by and through the Occasions and Policies of Times; the third, Customs and Usages, practised and allowed with Time’s appro¬ bations, without known beginnings’.1 In view of all the law-making and law-changing legislation we have seen, can the speaker have meant by this that he took common law to be fundamental—outside and above the reach of positive law? We have seen a good deal of evidence that in the fifteenth and sixteenth centuries the judges would presume that law was always in conformity with rational principles, and would construe statutes accordingly, but this falls short of recognizing a body of unalterable fundamental law. I think we must agree that up to that date there was no body of law, not even Magna Carta, to which these epithets could properly be applied.2 Shall we find evidence that such a body of fundamental law came to be recognized in the seventeenth century?3 The answer to this question turns largely on how we interpret the work of Sir Edward Coke. According to Professor Mcllwain, Coke carried to its logical conclu¬ sion the development of a fundamental law whose history stretched back into the Middle Ages. Professor Plucknett thought that there was no such fundamental law for him to develop, but that he tried to 1 7 July 1604: C.J. i. 254a; Parly. Hist. i. 1046. Magna Carta, indeed, had by now been long neglected and forgotten, and the practice of confirming it in successive parliaments had fallen into disuse. Miss Thompson points out that this was due not so much to the rise of Tudor despotism as to the obsolescence of many of its provisions and the fact that others^ had been ‘superseded by detailed statutes of much greater practical value. (38 Amer. Hist. Review, p. 671). When in 1628 it was proposed to revive Magna Carta Sir Benjamin Rudyerd declared: ‘I shall be very glad to see that old decrepid law Magna Charta which hath been kept so long, and lien edrid as it were, I shall be glad to see it walk abroad again with new vigour and lustre....’ (Rushworth, i. 552; Parly. Hist. ii. 355.) Or, if it failed to secure recognition as fundamental, was there a body of law in existence for which claims to recognition as such could be made?

SIR EDWARD COKE

31

create one by putting his own (ultimately unjustifiable) interpretations on the legal traditions he inherited.1 One of the earliest of Coke’s pronouncements was his judgement in the celebrated case of Dr. Thomas Bonham. This has been analysed so often that one hesitates to add still further to the discussion of it, but as it is one of the most important and crucial elements in the situation we have under review, to do so is unavoidable. The case was an action for wrongful imprisonment brought by Dr. Bonham against the president and censors of the College of Physicians. The college was authorized by letters patent from Henry VIII to levy a fine of 100 shillings a month (half to the king, half to the president of the college) on anyone practising physic in the city of London without having been admitted to do so by the college. These letters patent were con¬ firmed by statute, 14 & 15 Henry VIII, c. 5, the powers so conferred being subsequently confirmed and enlarged by a statute of Queen Mary. Dr. Bonham practised in the city without having been admitted by the college, and in 1606 he was summoned to appear before the president and censors, found ‘insufficient’ to practise, and forbidden to do so. He nevertheless continued to practise for a month or more, and was then fined 100 shillings and enjoined, on pain of imprison¬ ment, not to continue practising until found sufficient and admitted. He still continued to' practise, and was later summoned again to appear before the authorities of the college. On his failure to appear he was ordered to pay a fine of £10, arrested, and delivered into cus¬ tody. He subsequently appeared before the president and censors but refused to obey them, pleading that he was not insufficient to practise physic, for he had taken the degree of Doctor of Physic in the Univer¬ sity of Cambridge, and he maintained that the act of Henry VIII con¬ firming the powers of the college excepted graduates of Oxford and Cambridge from its control. Coke found for Dr. Bonham, and in the course of his judgement he uttered these much quoted words: ‘And it appears in our books that in many cases the common law will controul acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parlia¬ ment is against common right and reason, or repugnant, or impossible 1 T. F. T. Plucknett, ‘Bonham’s Case and Judicial Review’, in 40 Harvard Law Review, pp. 30 ff. Coke felt the necessity of ‘curbing the rising arrogance’ of both Crown and Parliament, and the solution he found was in the idea of a fundamental law which limited both indifferently. Professor Plucknett thinks Coke was mistaken in the belief that this idea could be substantiated by medieval precedents, but disclaims any imputation against his bona fides.

32

SIR EDWARD COKE

to be performed, the common law will controul it, and adjudge such act to be void.’1 Many of the commentators on Dr. Bonham’s case have seen in these famous remarks evidence that Coke believed (or at any rate was asserting) that common law was fundamental, in the sense that acts of parliament incompatible with it were invalid and could be set aside by the courts, and Sir Frederick Pollock felt ‘pretty sure’ that this un-English doctrine came from Coke’s study of the canonists.2 A number of American writers, lawyers and historians, have judged Coke more sympathetically, because they have seen in his attitude an important and interesting forerunner of the principle of judicial review, which (the theory runs), though rejected in England, came to fulfilment in the United States.3 English lawyers, on the other hand, while accepting this interpretation of Coke’s intention, have treated his efforts as an ill-judged excursus from the main current of English legal development, which fortunately came to nothing and left it to flow, majestic and unimpeded, to its predestined end in the modern doctrine of legislative sovereignty. These critics (and some Americans too) have therefore treated Coke’s remarks as dicta, un¬ called for and not essential to the case he was trying.4 Whatever our conclusion as to Coke’s belief in fundamental law, Professor Thorne has shown decisively that this latter interpretation of Coke’s celebrated remarks is not justified.5 He points out that Coke adduced five reasons for giving judgement for the plaintiff, in the fourth of which he drew attention to the fact that the president and 1 8 Co. Rep. 117b—118b. 2 F. Pollock, The Expansion of the Common Law, p. 122. Cf. Brinton Coxe, An Essay on Judicial Power and Unconstitutional Legislation, pp. 173 ff.; Roscoe Pound, ‘Common Law and Legislation’, in 21 Harvard Law Review, pp. 390 ff.; E. S. Corwin, ‘The Establishment of Judicial Review’, in 9 Michigan Law Review, pp. 104 ff.; E. S. Corwin, The Doctrine of Judicial Review, p. 69; E. S. Corwin, ‘The “Higher Law” Background of American Constitutional Law’, in 42 Harvard Law Review, pp. 367 ff.; C. F. Mullett, ‘Coke and the American Revolution’, in 12 Economica, pp. 457 ff.; C^F. Mullett, Fundamental Law and the American Revolution, pp. 44 ff. Cf. F. Pollock, The Expansion of the Common Law, p. 122; W. Holds441’ *V’ 18^’ v' 475; Sources and Literature of English Law, p. , The Influence of Coke in the Development of English Law’, in Essays 'flF8? ?istory (ed' P- Vinogradoff), p. 305; C. K. Allen, Law in the Making r ;6 j‘ Lord Campbell, Lives of the Chief Justices of mg an ( 849), 1. 290, even said that Coke’s ‘foolish doctrine’ was ‘alleged to have been laid down extra-judicially’, though he admitted that he had often statutes’ ^UOtec* m Par^ament against the binding obligation of obnoxious 3 S. E. Thorne, ‘The Constitution and the Courts’, in 54 L.Q.R., pp. 543 ff.

SIR EDWARD COKE

33

censors of the college were to receive half the fines they imposed, and so, having a direct pecuniary interest, were not only judges but parties in any case that came before them. It was an established maxim of the common law that no man could be judge in his own case, and Pro¬ fessor Thorne’s view, therefore, is that Coke’s famous statement was not a mere obiter dictum but an integral part of a series of arguments showing that, on a proper construction of the letters patent and of the statute confirming them, the College of Physicians did not possess the powers it claimed. Coke cited five cases as precedents to support his opinion. (1) In Thomas Tregor’s case, involving the Statute of Westminster II, c. 38, and Articuli super Cartas, c. 9, ‘Herle saith, some statutes are made against law and right, which those who made them perceiving, would not put them in execution’. (2) The Statute of Westminster II, c. 21, laid down the conditions on which an heir could obtain a writ of cessavit,x but in the case known as Cessavit 42, in the year 33 Edward III, ‘because it would be against common right and reason, the com¬ mon law adjudges the said act of parliament as to that point void’. (3) The Statute of Carlisle, 35 Edward I, enacted that in Cistercian and Augustinian abbeys their common seal should be in the keeping of the prior (who was under the abbot) ‘and four others of the most grave of the house’, and that any deed sealed with a seal not so kept should be void. The sealing of documents was to be done by the abbot, and in a case in the year 27 Henry VI1 2 the court held that this statute was void, since it was ‘impertinent to be observed’;3 for when the seal was in their keeping the abbot could not seal anything with it, and when it was in the abbot’s hands it was ipso facto out of their keeping. (4) The statute 1 Edward VI, c. 14, gave chantries to the king, saving to the donor, &c., all such rents, services, &c., ‘and the common law controuls it and adjudges it void as to services, for it would be against common right and reason that the king should hold of any or do service to any of his subjects’.4 (5) An act of parliament conferred on a man the right to have cognizance of all manner of pleas arising within his manor of Dale, ‘yet he shall have no plea to which himself is a party, for as hath been said, iniquum est aliquem suae rei esse judicem'. * Doubts have been expressed whether the Year Book cases which 1 For particulars of this writ, see T. F. T. Plucknett, Legislation of Edward I, pp. 90-92. 2 Annuity 41, see above, p. 17. 3 i.e. impossible to put into effect. 4 Stroud's Case, 16 & 17 Eliz. 5725

D

34

SIR EDWARD COKE

Coke cited really supported his contention, and after analysing them in detail Professor Plucknett’s conclusions were1 that only one {Ces¬ savit 42) was strongly in favour, Annuity 41 (the case about the seal) was doubtful, and the others valueless. In Tregor’s case Coke seriously misquoted the Year Book, and interpolated words im¬ porting a notion of ‘higher right’ which the judge (Herle) did not entertain.2 In the Cessavit case the court ‘did undoubtedly disregard the plain meaning of an act of parliament’, but Coke again inserted the words ‘because it would be against common right and reason’, thus adding ‘an explanation and a theory all his own’. Similarly ‘Coke’s dogma of a controlling common law’ never appears in the reports of the cases about chantry lands. In spite of these points, however, is it necessary to ascribe to Coke the belief in, or the attempt to construct, this theory of a fundamental common law which empowered the courts to nullify statutes? Now, support for such an interpretation of Coke’s view may be found, as for example in a work published in 1627 by Sir Henry Finch, serjeant-atlaw, entitled Law, or a Discourse thereof. Here the opening chapters are devoted to ‘The Law of Nature’, ‘The Law of Reason’, &c., so that it is not until chapter six that he reaches ‘laws positive’. All other laws are said to ‘receive their light’ from the law of reason, ‘and hereupon are grounded . . . divers rules of reason, that everywhere go for un¬ doubted oracles ...: yea, such is their singular and incomparable use, that as Lords paramount they rule and overrule the grounds them¬ selves. And rather than any of these ... should fail, the very maxims and principles of the positive law will yield, as to a higher and more perfect law.’3 Therefore, he continues, positive laws directly contrary to the law of reason ‘loose their force and are no laws at all. ... It is truly said, and all men must agree, that laws indeed repugnant to the law of reason are as well void as those that cross the law of nature.’4 It must be remembered, however, that this was an academic treatise which, while it indicates the atmosphere in which lawyers were edu¬ cated in the seventeenth century, does not carry the authority of a judgement actually delivered in the courts. A final answer to the question as to what Coke really meant cannot 1 40 Harvard Law Review, pp. 35 ff., 44. 2 See Note J, p. 226. Law, or a Discourse Thereof, pp. 5, 6. The word ‘paramount’ is interesting here, for we shall meet it later in the sense of a genuine fundamental law. Cf. below, p. 112. 4 Ibid., pp. 75,76.

SIR EDWARD COKE

35

be given until we have examined his other sayings and writings, but it is worth noting here and now that his argument in Bonham’s case is capable of a much less sweeping explanation, which can also be applied to treatises like Finch’s. Sir Carleton Allen concluded that Coke misunderstood Tregor’s case, and that ‘all his remaining ex¬ amples are cases merely of strict interpretation which seem to have produced a result other than that intended by the legislator’, but none of them can be considered as in any way supporting a general doctrine that the courts have any power to ‘adjudge an act to be void’.1 Holdsworth similarly considered that these cases amounted only to ‘deci¬ sions that the courts will... interpret statutes stricti juris .. . that is, so as to give them a meaning in accordance with established principle, and they cannot give any effect to them if they are meaningless. These’, he adds, ‘are principles of interpretation which would be accepted at the present day.’2 We can agree, but not with the inference that Coke has thus been proved to have failed in his purpose. It is more reason¬ able to suppose that this was exactly what he meant himself. Ad¬ mittedly his phraseology was wide, but it is not necessary to suppose that he meant to claim for the courts general powers to declare statutes void on the ground of conflict with higher law. When he said that the common law would ‘control’ an act of parliament he meant that the courts would interpret it in such a way as not to conflict with those same accepted principles of reason and justice which, as we saw in the last chapter, were presumed to underlie all law.3 Similarly, when he spoke of adjudging an act to be void, he did not mean that the court could declare it to have been beyond the power of parlia¬ ment to enact, but that the court would construe it strictly, if this were necessary in order to bring it into conformity with these recognized principles, either disregarding such part of it as affected the case being tried, or ruling that the case lay outside the scope of the statute, and that the statute was therefore inapplicable.4 This interpretation is supported by Coke’s comment on a case 1 C. K. Allen, Law in the Making (5th edn.), p. 426. 2 H.E.L. ii. 443. Substantially the same comment was made over a hundred years ago by Lord Campbell (Lives of the Chief Justices of England, i. 290): Stroud’s case ‘rests on an implied exception, and his other authorities resolve themselves into a question of construction, without countenancing the preten¬ sion that judges may repeal an act of parliament.’ 3 Cf. C. K. Allen, Law in the Making (5th edn.), pp. 434-67. 4 Cf. R. A. MacKay, ‘Coke—Parliamentary Sovereignty or the Supremacy of the Law?’ in 22 Michigan Law Review, pp. 223 ff., 230, an article which anticipated Professor Thorne’s conclusions at several points.

36

SIR EDWARD COKE

involving the chapter in Magna Carta which required that the assizes of Novel Disseisin and Mort d’Ancestor should not be held except in the counties of the parties concerned. When a man was disseised of the Marcher Lordship of Gower in Wales the writ was directed to the sheriff of Gloucester, although Gower was not in that county, ‘and the reason is notable, for the Lord Marcher, though he had jura regalia, yet could he not do justice in his own case, and if he should not have remedy in this case by the king’s writ out of the Chancery in England he should have right and no remedy by Law for the wrong done unto him, which the Law will not suffer, and therefore this case of necessity is by construction excepted out of the statute’. More pointed comment on Bonham’s case is hardly needed. The statute in question here was Magna Carta itself, but in this exceptional case even Magna Carta was disobeyed in the name of two ‘fundamental’ principles of justice—that a man could not be judge in his own case, and that the law must provide a remedy for wrong done.1 There has been some doubt about what Coke meant by ‘repugnant’. Professor Plucknett thought it hardly amounted to more than ‘dis¬ tasteful to the court’,2 but we must surely take it more seriously than that. In its usual English sense as a term of law it means inconsistent or incompatible, and is a relative term, involving something else to be repugnant to—possibly common law here, or the presumptions of common law. Professor Thorne quotes some passages from a con¬ temporary treatise on statutory interpretation, among the Ellesmere papers in the Huntington Library, in which repugnancy means selfcontradiction, and suggests that Coke used the word in Bonham’s case in an analogous sense—that though not technically repugnant, Coke may have seen an affinity between a statute making a man judge in his own case and a self-contradictory statute, and so concluded that the case of Dr. Bonham fell within the range of the medieval examples he quoted as precedents for disregarding the provisions of an act 1 2 Inst., p. 25. The same meaning, I think, can be attributed to Chief Baron Fleming’s well-known argument in Bate’s case (1606), where, distinguishing the king s ordinary from his ‘absolute’ power, he explained that the former was ‘for the profit of particular subjects, for the execution of civil justice, the determining of meum\ and was called in England common law; ‘and these laws cannot be changed without parliament; and although that their form and course may be changed and interrupted, yet they can never be changed in su stance (Prothero, Const. Docts., p. 341). In effect, the courts would always interpret acts of parliament subject to these unvarying fundamental presump¬ tions inherent in the common law. r r 2 40 Harvard Law Review, p. 342.

SIR EDWARD COKE

37

of parliament.1 His judgement in the case of Rowles v. Mason, delivered shortly after (and with reference to) Dr. Bonham’s case, suggests that by repugnant he meant something comparable if not equivalent to ‘unreasonable’,2 and the same interpretation is suggested by the word ‘absurd’, which occurs in the version of Dr. Bonham’s case given in Brownlow. Here Coke is reported as pointing out that if officials of the College of Physicians are allowed to pocket their share of the fine, according to the statute, ‘they shall be judges in propria causa, and shall be summoners, sheriffs, judges and parties also, which is absurd; for if the king grant to one by his Letters Patent under the Great Seal that he may hold plea, although he be party, and if the king doth not appoint another judge than the grantee which is party, the grant is void, though that it be confirmed by parliament’.3 Coke may in this way have extended somewhat the scope of the dis¬ cretion which judges then normally allowed themselves in the inter¬ pretation of statutes, but it seems more likely that his reasoning was based on precedent than that it represents an endeavour to establish a theory of fundamental law overriding the powers both of Crown and Parliament. As Professor Thorne has pointed out, this helps to explain Coke’s refusal, when threatened with dismissal, to acknowledge any substantial error in his writings, and his repetition of the offending passage in Bonham’s case word for word in reply to the questions put to him by the king. It also throws light on what Lord Ellesmere meant by the qualifying adjective ‘direct’ in the implied criticism of Coke which evidently underlay his injunctions to Sir Henry Montague when the latter was sworn as Chief Justice of the King’s Bench in place of Coke, who had been dismissed. ‘He challenged not power for the Judges of this Court to correct all misdemeanours as well extrajudicial as judicial, nor to have power to judge Statutes and Acts of Parliament void, if they conceived them to be against common right and reason; but left the King and the Parlia1 54 L.Q.R., p. 549. Judge Jenkins used the word repugnant in the sense of self-contradictory: cf. below, p. 105. 2 2 Brownlow, 198: ‘If there be repugnancy in statute or unreasonableness in custom, the common law disallows and rejects it, as it appears by Dr. Bonham’s case.’ By common law here he cannot have meant a body of fundamental law unalterable by statute, for a few lines above he says that ‘statute law . . . corrects, abridges, and explains the common law’. 3 2 Brownlow, 265. The same medieval precedents follow as in Coke’s own Reports, and it is worth noticing that the Statute of Carlisle (in the case Annuity 41, about the custody of the seal), which was ‘impertinent to be observed’, was said to be ‘adjudged void and repugnant’.

38

SIR EDWARD COKE

ment to judge what was common right and reason. I speak not of impossibilities or direct repugnances.’1 Similar doubts were expressed by Lord Ellesmere in the earl of Oxford’s case, where he quoted Coke’s arguments in Bonham’s case, remarking that ‘it seemeth, by the Lord Coke’s Report... that statutes are not so sacred as that the equity of them may not be examined’. ‘And yet’, he continued, ‘our books are that the Acts and Statutes of Parliament ought to be re¬ versed by Parliament (only) and not otherwise, and, upon that reason, the Lord Chancellors . . . have enjoined the stay thereof.’2 It would appear, then, that in Ellesmere’s opinion Coke had unduly widened the judge’s powers of disregarding the wording of statutes. Yet even he could not deny that while only parliament could actually reverse statutes, the judges nevertheless had considerable powers, for he con¬ tinued: ‘And the Judges themselves do play the Chancellors’ parts upon statutes, making construction of them according to equity,-vary¬ ing from the rules and grounds of law, and enlarging them pro bono publico, against the letter and intent of the makers, whereof our books have many hundreds of cases.’3 Ellesmere later made out that Coke had treated statutes with un¬ warrantable contempt and in defiance of his brother judges.4 It is true that in Bonham’s case Coke seems to have been alone in his opinion, the other three judges having delivered judgements against Bonham, but Coke’s view was later supported by Chief Justice Hobart. This appears in the case of Day v. Savadge, where the point at issue was similar to that in Bonham’s case. Day brought an action against Savadge for removing a bag of nutmegs imported by Day at a wharf called Queenhithe. Savadge pleaded that the Mayor and Corporation of London owned the wharf and were entitled to charge wharfage on goods loaded there, that he was appointed by them as collector, and that he had seized the nutmegs because Day had refused to pay. Day said that as a freeman of London he was by custom exempt from pay¬ ing wharfage, but Savadge denied the existence of such a custom and 1 Moore (K. B.), 828 (my italics). 13 James I: White and Tudor, Leading Cases in Equity (9th edn., 1928), P- 4619' . , 3 Ibid., p. 620. And for novelty in Dr. Bonham’s Case the Chief Justice having no pre¬ cedent for him, but many judgements against him, yet doth he strike in sunder the bars of government of the College of Physicians; and without any pausing on the matter frustrate the patent of King Henry VIII whereby the College was erected, and tramples upon the Act of Parliament. . . whereby that patent was confirmed, blowing them both away as vain and of no value . . .’ (footnote to 8 Co. Rep. 118a).

SIR EDWARD COKE

39

declared that it was the practice, whenever any custom of the city was in dispute, for the mayor and aldermen, even if they were interested parties, to certify the truth about it to the justices, and that this prac¬ tice had been confirmed by an act of parliament of 7 Richard II. Objection was taken to this procedure, and the court agreed that the existence of the alleged custom should be decided not by certificate from the mayor and aldermen but by a jury. Three reasons were given for this decision, the third being that ‘it was against right and justice and against natural equity to allow them their certificate, wherein they are to try and judge their own cause’. The confirmation of this procedure by statute made no difference, ‘because even an Act of Parliament, made against natural equity, so as to make a man judge in his own case, is void in itself, for jura naturae sunt immutabilia, and they are leges leguni’.1 The concluding reference to the unchangeable¬ ness of the laws of nature may suggest a belief in a theory of funda¬ mental law, but it is not really necessary to attribute to Hobart, any more than to Coke himself, more than a respect for those principles of reason and justice by which, as we have seen, it was generally recognized that the judges should be guided in their task of interpret¬ ing and applying the law. This appears clearly in another case decided by Hobart, which turned on the proper construction to be placed on two statutes of Henry VIIFs reign, making entails forfeitable for treason. Alternative interpretations were possible, and in the course of his judgement Hobart declared that if asked ‘by what Rule the Judges guided themselves in this diverse exposition of the selfsame word and sentence’, his answer was ‘by that Liberty and Authority that Judges have over Laws, especially over statute laws, according to Reason and best convenience, to mould them to the truest and best use’.2 Although we can thus find various examples of the judges claiming considerable latitude in their interpretation of statutes, there is nothing in these cases to support a theory that parliament lacked the power, if it chose, to use statutes to alter common law.3 This latitude 1 Hobart, 85-87. 2 Lord Sheffield v. Ratcliffe (Hobart, 346). 3 Holdsworth continually insisted, as against Professor Mcllwain, that when people in the seventeenth century talked about fundamental rights or laws they meant the rights which the existing law gave them, and that the supremacy of law in England meant the supremacy of a law which parliament could change {H.E.L. ii. 441, iv. 187). With this we can agree, but so, I think, could Coke himself. What Coke would not have understood, however, was Holdsworth’s affection for the doctrine of sovereignty.

40

SIR EDWARD COKE

was not unlimited, and Coke possibly went too far, but after all the real gravamen against him was not so much legal as political. Later generations, particularly in America, taking the form of words he used out of their context, were to read them in a new light, but I think we should agree with Professor Thorne’s conclusion that he believed himself to be covered by precedents, and that he was not really appealing to any ‘fundamental, higher, or natural law’. He was not propounding a theory of unconstitutional legislation, but only one of strict statutory interpretation.1 Apart from these judgements it is possible to find other passages in Coke’s writings which lend colour to the theory that he believed in the existence of a body of fundamental law. Take, for example, some of his references to Magna Carta, which, he explained, ‘is called the Great Charter in respect of the great weightiness and weighty great¬ ness of the matter contained in it in few words, being the foundation of all the fundamental laws of this realm, and therefore it may truly be said of it that it is magnum in parvo. . . . This statute is but a confirmation or restitution of the common law.’2 Later he said that Magna Carta ‘was for the most part declaratory of the principall grounds of the fundamental laws of England’; but he also declared that ‘the highest and most binding laws are the statutes which are established by Parliament’.3 This suggests not that common law or Magna Carta were unalterable higher law; if anything was funda¬ mental it was what is called ‘the reason of the common law’—those principles of justice which the common law and its maxims were supposed to embody, and Magna Carta to declare and confirm. Even these, however, it was not so much impossible as inadvisable for parliament to set aside; occasionally parliament had done so, and evil results had followed. Thus he explains that per legem terrae in Magna Carta meant by the law of the land, or due process of law, which he equated with due process of the common law. ‘Against this ancient and fundamental law, and in the face thereof’, he continues, ‘I finde 54 L.Q.R., pp. 550, 552. Cf. M. A. Judson, The Crisis of the Constitution, pp. 100 ff. ' Co. Litt. 81. Cf. Coke’s admonition to the Lords in 1628: ‘My lords, your noble ancestors, whose places you hold, were parties to Magna Charta, so called for weight and substance, for otherwise, many statutes are greater in bulk; as Alexander, a little man, called magnus for courage. And you, my lords the bishops, said he, are commanded fulminare, to thunder out your anathemas against all infringers of Magna Charta.... And all worthy judges that deserved their places have ever had Magna Charta in great estimation’ (Parly. Hist. 11‘ 327)>

3 2 Inst., Proeme.

SIR EDWARD COKE

41

an Act of Parliament made (11 Henry VII, c. 3), that as well Justices of Assize as Justices of Peace . . . should have full power ... to hear and determine all offences, ... by colour of which Act, shaking this fundamental law, it is not credible what horrible oppressions and exactions . . . were committed by Sir Richard Empson, knight, and Edmund Dudley.’ In Henry VIII’s reign, however, this objectionable act was repealed. ‘So dangerous a thing it is’. Coke comments, ‘to shake or alter any of the rules or fundamental points of the Common Law, which in truth are the main pillars and supporters of the fabric of the commonwealth’; and he concludes that this was ‘a good caveat to Parliaments to leave all causes to be measured by the golden and straight mete-wand of the law, and not to the incertain and crooked cord of discretion’.1 Here the meaning is plain enough: what he calls fundamental is not the whole common law, but its rules and ‘fundamental points’, or (to use more modern phraseology) the basic principles of the con¬ stitution. Parliament had the power to undermine these, if it chose; but while it was always to be hoped that parliament would not so choose, there was no higher law actually to prevent parliament from doing so.2 A similar view was expressed by Sir John Davys in the Pre¬ face Dedicatory to his Le Premier report des cases et matters en ley (1628). After explaining that the common law of England ‘is nothing else but the common custom of the realm,... and this customary law is the most perfect and most excellent and without comparison the best to make and preserve a commonwealth’, he declares that ‘coming nearest to the law of nature, which is the root and touchstone of all good laws’, it ‘doth far excel our . . . Statutes or Acts of Parliament; which is manifest in this, that when our Parliaments have altered or changed any fundamental points of the Common Law, those altera¬ tions have been found by experience to be so inconvenient for the Commonwealth as that the Common law hath in effect been restored again, in the same points, by other Acts of Parliament in succeeding ages’.3 This brings us to the famous passage where Coke describes the ‘power and jurisdiction of the Parliament, for the making of laws, in proceeding by Bill’, which is ‘so transcendent and absolute as it cannot be confined either for causes or persons within any bounds’.4 This has been taken (like the passage from Smith’s De Republica Anglorum 1 2 Inst., pp. 50, 51, 74. Similar comments are repeated in 4 Inst., p. 41. 2 See Note K, p. 226. 3 Pp- 3, 4. 4 4 Inst., pp. 25 ff.

SIR EDWARD COKE

42

quoted in my first chapter) to be a statement of the legislative sove¬ reignty, or at any rate of the legislative supremacy, of parliament, and much has been written to explain, or excuse, or blame the supposed inconsistency between this and Coke’s earlier advocacy of the theory of fundamental law. Thus Holdsworth credits him with ‘the mind of an advocate’, so that he often allowed himself to be carried away by the argument which he was urging at the moment.1 Or it is explained that while he sat on the Bench he hoped to curb the pretensions of both king and parliament by fundamental law, but that after his dismissal he came to sympathize and finally identify himself with the aspirations of parliament in its contest with the king. Therefore, when he came to write his Institutes he was prepared to magnify the powers of parliament, although as a judge he had tried to curtail them. I think that even though we cannot accept Professor Mcllwain’s version of Coke’s belief in fundamental law, we must agree with him that Coke was not thinking of parliament as a legislature in the modern sense, but as a court, and that the supremacy he ascribed to it arose out of its being the supreme court.2 This may have been even in Coke’s own day an old-fashioned view of parliament, but I do not see how one can deny that he held it. Not only, as Professor Mcllwain points out, is parliament called ‘the High and most honourable Court of Parliament’, but Coke’s description of it is followed by similar descriptions of other courts, and the whole book is headed ‘The Juris¬ diction of Courts . Furthermore, the examples he gives of what an act of parliament can do (make daughters and heirs-apparent inherit during the lifetime of their ancestors, adjudge infants or minors of full age, naturalize aliens, &c.) are not at all what we should select as typical instances of legislation, but are much more akin to the private bills which, though now regarded as legislative, are to this day subject to a procedure which still bears unmistakable marks of its judicial origin-3 To Coke parliament had the last word not because of its legis¬ lative sovereignty, whether acknowledged or unacknowledged, but 1 H.E.L. iv. 186, 187. t.

3 13 9°: R^p- 64’where he agrees that both Houses of Parliament had

custom, w 3eiCrminu and d6dde Upon their own privileges, orders, and determine H .h DOt^n “sed foretime that the justices did in any wise 3™e e Privilege of this h.gh Court of Parliament; for it is so high and kwJ Cf also p 43Cn

examfned^&c61 f°r

1

*

make laWS; and that that is law il may make n°

^ biU heard at the Bar °f the House’ Besses

SIR EDWARD COKE

43

because as the highest court there was no appeal against its supreme authority.1 This attitude to parliament, admitting its supremacy, but at the same time thinking of this as an essentially judicial rather than legis¬ lative supremacy, is nowhere clearer than in Coke’s comments on the attainder of Thomas Cromwell. To us attainder seems a legislative process (and already came to be so thought of during the seventeenth century),2 but to Coke it was judicial, and he evidently felt that it should be carried out judicially. Albeit I finde an attainder by Parliament of a subject of High Treason being committed to the Tower, and forth-comming to be heard, and yet never called to answer in any of the Houses of Parliament, although I question not the power of the Parliament, for without question the attainder standeth of force in law: yet this I say of the manner of the pro¬ ceeding, Auferat oblivio, si potest; si non, utcunque silentium tegat: for the more high and absolute the jurisdiction of the Court is, the more just and honourable it ought to be in the proceeding, and to give example of justice to inferiour Courts.

He goes on to narrate how Henry VIII had demanded of the judges whether a man might be attainted of high treason by parliament with¬ out being heard, although ‘forthcoming’ (i.e. available). The judges answered, that it was a dangerous question, and that the High Court of Parliament ought to give examples to inferiour Courts for proceeding according to justice, and no inferiour Court could do the like; and they thought that the High Court of Parliament would never do it. But being by the expresse commandement of the King, and pressed by the said Earle to give a direct answer: they said, that if he be attainted by Parliament, it could not come in question afterwards, whether he were called or not called to answer. And albeit their opinion was according to law, yet might they have made a better answer, for by the Statutes of Mag. Cart. cap. 29, 5 E. 3 cap. 9, and 28 E. 3 cap. 5, No man ought to be condemned without answer &c., which they might have certified, but facta tenent multa, quae fieri prohibentur\ the Act of Attainder being passed by Parliament did bind as they resolved.3 1 Cf. the Apology of the Commons, 20 June 1604: No court ‘ought to enter into competency either for dignity or authority with this high court of Parlia¬ ment, which with your Majesty’s royal assent gives laws to other courts, but from other courts receives neither laws nor orders’. It was because it was the highest court, ‘whose power being above the law is not founded on the com¬ mon law’, that parliament claimed to be the sole judge of its own privileges (Prothero, Const. Docts., pp. 288, 290). 2 Cf. below, p. 132. 3 4 Inst., pp. 37, 38.

44

SIR EDWARD COKE

Farther on Coke explained clearly, with several examples, that a parliament cannot tie the hands of its successors, showing that he grasped as fully as Bacon this aspect of what we should call legislative sovereignty, but again he thought of it as evidence of what transcen¬ dent power and authority the Court of Parliament hath’.1 2 There is no essential variance here from the passage in the first book of the Institutes1 where he tells us that the common law ‘is the most general and ancient Law of the Realm’, and that it ‘appeareth in the Statute of Magna Charta and other ancient statutes (which for the most part are affirmations of Common Law)’. ‘The Common Law’, he here tells us, ‘hath no controller in any part of it but the High Court of Parlia¬ ment, and if it be not abrogated or altered by Parliament it remains still.’ At first sight the word ‘control’ seems to have a different mean¬ ing here from its meaning in Bonham’s case, for we should call this an instance of legislative, that of judicial action; but the very fact that Coke uses the same word is, I think, additional evidence that he thought of both as judicial. It is, of course, true that Coke and a number of others in the seven¬ teenth century exalted the common law, and indeed sometimes referred to it as fundamental or identified it with the law of nature.3 This was notably so in Calvin’s case, which established the legal rights of Scotsmen in England and of Englishmen in Scotland after the accession of James I to the throne of England. Here Coke is reported a's saying that although a statute of Edward III by express words removed a man attainted from the king’s protection, ‘yet this extendeth only to his legal protection,... for the Parliament could not take away that protection which the law of nature giveth unto him; and therefore, notwithstanding that statute the king may protect and pardon him’.4 On the face of it this looks like a theory that the law of nature was a fundamental law, and constituted a limit to parliament’s legislative 1 4 Inst., pp. 42, 43. He explains that ‘though divers Parliaments have attempted to bar, restrain, suspend, qualify or make void subsequent Parlia¬ ments, yet could they never effect it, for the latter Parliament hath ever power to abrogate, suspend, qualify, explain or make void the former in the whole or any part thereof, notwithstanding any words of restraint, prohibition or penalty in the former’. To us, as to Dicey, for a legislature to have this capacity seems clear proof of its sovereignty, but it is significant that Coke explained it not in this way but in purely judicial terms: ‘for it is a maxim in the law of the Parlia¬ ment quod leges posteriores priores contrarias abrogant.’ 2 Co. Litt. 115b. 3 Cf. James I’s remarks, below, p. 53. 4 7 Co. Rep. 14.

SIR EDWARD COKE

45

capacity. But again we must be sure of what we mean by this. There was a sense in which it was true that in the seventeenth century the legislative capacity of parliament, or of any other authority, was limited—limited by what we should call moral rights and obligations, for, as has been remarked above, such rights and obligations were not differentiated, as they would be today, from legal rights and obliga¬ tions. Holdsworth himself half admitted this when he agreed that medieval lawyers, while recognizing that ‘Parliament was the supreme law-making authority in the state, would have denied that this was equivalent to asserting its legislative omnipotence—the law of the state made by Parliament was only one among many kinds of law. They would have denied, for instance, the competence of Parliament to pass a law which contravened those fundamental moral rules which seemed to be a part of that law of nature which natural reason teaches all mankind.’1 Extend, as I think we must, belief in natural law from medieval lawyers to lawyers of the sixteenth and seventeenth centuries, and there is little reason for stigmatizing as ‘loose talk’ Coke’s remarks in Calvin’s case about the impossibility of a provision of natural law being altered even by parliament.2 Actually, the circumstances of Calvin’s case were unusual. When James VI of Scotland became James I of England he was anxious for a complete union of the two kingdoms, but he could not get parliament to pass an act to effect this, and Calvin’s case was in fact a collusive action, brought for the express purpose of obtaining by judicial decision what could not be effected by legislation. Apart from this, we need not read more into Coke’s opinion than a willingness, in this case as in others, to adopt a strict interpretation of the law. We can find support for this in Bacon s speech on Calvin’s behalf in the course of the same case. After declar¬ ing that ‘the law favoureth three things, life, liberty and dower’, be¬ cause ‘our law is grounded upon the law of nature, and these three things do flow from the law of nature’. Bacon proceeded to argue that by the law of nature all men in the world are naturalized one towards another; they are all made of one lump of earth, of one breath of God.... It was civil and national laws that brought in these words and differences of ‘civis’ and ‘exterus’, alien and native. And therefore because they tend to abridge the law of nature, the law favoureth not them, but takes them strictly. ... So ... all national laws whatsoever are to be taken strictly 1 See Note L, p. 226. 2 See Note M, p. 227.

46

SIR EDWARD COKE

and hardly in any point wherein they abridge and derogate from the law of nature.1 * * * * &

Nobody has accused Bacon of believing that the legislative powers of parliament were subject to judicial review in the interest of funda¬ mental or natural law, nor is there good reason to attribute such a belief to Coke either. It would, in fact, be an anachronism, for, as has already been said, it implies a distinction between and a separation of the functions of legislation and jurisdiction which was not clearly drawn till later. It is possible to see in the opinion expressed by Coke in the case of Non Obstante a recognition of the principle that the royal prerogative was something ‘fundamental’, of which the king could not be deprived by statute. No act [according to Coke] can bind the king from any prerogative which is sole and inseparable to his person, but that he may dispense with it by a non obstante; as a sovereign power to command any of his subjects to serve him for the public weal; and this solely and inseparably is an¬ nexed to his person; and this royal power cannot be restrained by any act of Parliament, neither in thesi nor in hypothesi, but that the king by his royal prerogative may dispense with it.

Coke then cites the statute of 23 Henry VI, c. 8, enacting that all patents to hold office as sheriff for a term of years or for life should be void, and that the king should not have the power to dispense from this act by non obstante, and further that anyone accepting or occupy¬ ing the office of sheriff by virtue of such a patent should be perpetually disabled from being sheriff. Yet in the second year of Henry VII’s reign all the justices resolved that in spite of this act the king ‘by his royal sovereign power of commanding’ might issue letters patent to serve as sheriff for any length of time. The same principle. Coke added, applied to the royal prerogative of pardon. An act of parlia¬ ment seeking to make void the king’s pardon and to restrain him from 1 2 S.T. 594, 595. In the same trial Lord Ellesmere said that ‘the Common Law of England is grounded upon the law of God, and extends itself to the original law of nature and the universal law of nations’ (ibid., p. 670). Bacon shared this widely felt reverence for ‘the common laws of England’, telling the Duke of Buckingham that ‘if they be rightly administered, they are the best, the equallest in the world between the Prince and People.... In the Laws we have a native interest, it is our Birth-right and our Inheritance, and I think the whole Kingdom will always continue that mind which once the two Houses of Parlia¬ ment publicly professed, Nolumus Legem Angliae mutare' (J. Spedding, Letters & Life of Bacon (1872), vi. 18).

SIR EDWARD COKE

47

dispensing with the act by non obstante would not bind the king or invalidate his dispensation.1 The case of the sheriff was often quoted in the years after the Restoration, when the dispensing power became a subject of political controversy, and we shall see that Tory opinion then endeavoured to build up the principle of divine hereditary right into something like a fundamental law, with which they challenged the Whig doctrines that the succession to the throne and the powers of the king generally were subject to parliamentary control. This, however, was a later development. Coke was concerned only to establish a legal axiom about the royal prerogative, which was analogous in this respect to the legislative capacity of parliament: a clause in an act of parliament purporting to prevent the king from exercising his dispensing power was as ineffective as a clause in an act purporting to prevent a future parliament from repealing it. This same point was also noticed by Sir George More in the course of the famous debate in the House of Commons about monopolies in 1601. It had been proposed to draw up a bill on this subject, but More, among other speakers, opposed this. ‘We know the power of her Majesty cannot be restrained by any Act;’ he said, ‘why therefore should we talk thus? Admit we should make this statute with a non obstante, yet the Queen may grant a patent with a non obstante to cross this non obstante.’’ It would be wiser and more dignified, he thought, to proceed by petition rather than by bill.2 The doctrine of the ‘inseparable prerogatives’ of the Crown, which was widely accepted by lawyers in the seventeenth century, undoubtedly involved a restriction of the legislative capacity of parliament, and we shall meet it in the guise of a fundamental law. But this was not until it had become the slogan of a political party. 1 12 Co. Rep. 18.

2 Prothero, Const. Docts., p. 113.

CHAPTER IV

THE CLAIMS OF JAMES I We have been arguing that what judges like Coke and Hobart had maintained in their judgements was not a judicial power to nullify parliamentary legislation on the ground of its conflict with funda¬ mental law. What they claimed was, in effect, the right, or indeed the duty, of the courts, in interpreting or applying statutes, to preserve inviolate the ‘reason of the common law’—those principles of natural justice which the common law was generally held to embody. Even if Coke exaggerated the extent of this right to a degree that was incom¬ patible with the generally acknowledged powers of parliament, there was nevertheless an important distinction in principle. The right of judicial nullification, or judicial review, implies a separation of powers and a definitely non-sovereign legislature, whereas to Coke the ques¬ tion of whether the legislature was sovereign or non-sovereign did not occur, and indeed did not arise. Smith, and Coke himself, described the powers of parliament as though they recognized its sovereignty, but this is a deceptive appearance, for in fact, in spite of what has been said to the contrary, I think it remains true that they thought of parliament as essentially a high court. Nobody conceived of sovereignty in the modern sense in the early seventeenth century.1 Nobody doubted that the English monarchy was a ‘mixed monarchy’, and not autocratic—a dominium politicum et regale, as Fortescue had said. The king had prerogatives (and there might be disputes as to what they were), but nobody, not even James himself, believed that they amounted to sovereignty, making him a despotic ruler, ‘Turk-like’.2 And certainly there was no question as yet of parliament 1 It is true that the political theory of Bodin had become widely known in England before the end of the sixteenth century, and emphasis has been laid on the importance of his influence. Cf. G. L. Mosse, The Struggle for Sovereignty in England, p. 32. But this may be exaggerated, and Professor Mcllwain has stressed the significant differences between Bodin’s theory and the theory of sovereignty enunciated by Hobbes (cf. Constitutionalism and the Changing World, pp. 53 ff.; and his 'Sovereignty in the Present World’ in 35 History, N.s., pp. 6 ff.). 2 Cf. Sir Walter Raleigh’s description, in the preface to his History of the World (1614), of Philip II of Spain, who ‘attempted to make himself not only an absolute monarch over them [sc. the Netherlands], like unto the kings and

THE CLAIMS OF JAMES I

49

claiming or even dreaming of sovereignty. Parliament stood up for its privileges, championing various ‘rights’ and ‘liberties’, resisting attempts by the king to magnify his prerogative in ways that threatened to encroach on the liberties and privileges of his subjects in general, and of parliament in particular. But the question of sovereignty did not arise, and even if it had arisen, it would not have been an issue between parliament and the courts. The issue which developed in the seventeenth century was between parliament1 and the king, and in this the courts and parliament were allies. There were, indeed, ‘crown lawyers’ and judges whom the parliamentarians accused of subser¬ vience to the king: Coke was perhaps exceptional in resisting the king so boldly. Still, even if there were divisions in the legal profession, the Commons undoubtedly owed much of their vigour and effectiveness to their lawyer members, and though we may occasionally find lawyers who declared that the law was an old and trusty servant of the king’s,2 parliamentarians generally did not doubt that the law was on their side in their resistance to royal pretensions. Another point to notice is that the litigation in Bonham’s case, or Rowles v. Mason, or Day v. Savadge, in which the claim for the ‘control’ of statutes by common law was asserted, had nothing to do with the great constitutional questions of the age. They were entirely private disputes, and fundamental law was not mentioned in them. Coke and his colleagues certainly talked of fundamental law (though not in court), and there was indeed a connexion between this idea and their judicial decisions, but it was only a connexion, not an identity. Indeed there could not be an identity, for fundamental law in the seventeenth century was an ill-defined term which covered a wide field, and could not be identified with any one thing. The only sure way to discover what fundamental law meant is to examine and try to classify a representative selection of the different senses and cir¬ cumstances in which it was used. The modern technical meaning turns out to be a misleading guide to the seventeenth century, and we shall sovereigns of England and France, but Turk-like, to tread under his feet all their national and fundamental laws, privileges and ancient rights’. Note the difference between absolute and arbitrary power. A Hobbesian sovereign had the latter. 1 I am aware that I am using this word loosely here: that strictly speaking the legislative sovereign is (and was) not parliament but the king in parliament, and also that parliament properly included the king. But it would be pedantic and highly inconvenient not to speak of the central constitutional struggle of the seventeenth century as a struggle between king and parliament. 2 Sir R. Berkeley in Hampden’s case: Gardiner, Const. Docts., pp. 121-2. 5725

E

THE CLAIMS OF JAMES I

50

have to dismiss it, at any rate for the time being. Amid the variety of meanings we may hope to find some measure of agreement, and we may then establish more firmly the nature of the link with the modem meaning of the term. A further difficulty to be encountered, apart from the varied con¬ tent of the laws which different writers and speakers in the seventeenth century called fundamental, lies in the fact that they often referred in similar terms simply to the laws, or the law, without any adjective, and it is impossible to assert positively that to call a law fundamental implied any intrinsic difference from a law not specifically so called.1 We have already referred to medieval ideas of the supremacy of law, descending from and blending into the persistent Augustinian political theory of the paramount claims of justice, which is not the creature or command of governments, but which governments exist to maintain, and by which governments should be guided and controlled. This came in modern times to be adapted to the emergence of parlia¬ mentary sovereignty, and when Dicey wrote his Law of the Con¬ stitution the rule of law, while no check on the legislature, was still effective as a check on the abuses of executive power, because it meant that nobody’s claim to authority would be recognized unless he could show legal backing for it. But the necessary backing could readily be conferred by parliament, and modern trends in the methods and forms of legislation, and the increasing control of parliament by the cabinet, have produced a situation in which the old phrase retains little more than formal validity. We still pray, in the National Anthem, that the queen may ‘defend our laws’, but we do not really think that the voluminous and all-pervading contents of our modern statute book need to be defended. Who is likely to attack them, unless perhaps it be a foreign enemy? They are unassailable, except in parliament where they were made. The petition is, in fact, of a piece with Nolumus leges Angliae mutare, and other old tags, which implied a relatively static framework of society, in which the rule of law was a guarantee of permanent vested rights. Nowadays vested interests have become, in the eyes of many voters, an abuse to be abolished, or at any rate to be rather ashamed of. What the verse amounted to was a hope that the monarch would not be a tyrant but rule constitutionally. The laws that were worth mentioning in the National Anthem were the laws which gave England its cherished character of being ‘a free country’ the laws in virtue of which the monarchy was limited and not

1

Cf. M. A. Judson, The Crisis of the Constitution, p. 56.

THE CLAIMS OF JAMES I

51

arbitrary, and subjects enjoyed their rights and liberties. Except that the line would not scan, the queen might equally well have been asked to defend our fundamental laws.1 The word constitution was not used in its modern sense in the seventeenth century,2 but we shall find that on many occasions when fundamental laws were referred to they meant what for us would generally be summed up by that word. Besides this we shall find that fundamental law, or its associated term fundamental right, was also used with more specific meanings, and a survey of these will reveal the elements of which the constitution was then thought to be composed. In what is actually the earliest occurrence that I have been able to trace, the word ‘fundamental’ is used in this general sense of the basis of the constitution. This is in the Epistle Dedicatory to Bacon’s Maxims of the Law, dated 1596, where the author remarks that ‘King Edward I,... after he had in his younger years given himself satisfac¬ tion in the glory of arms, . . . bent himself to endow his state with sundry notable and fundamental laws, upon which the government ever since hath principally rested’.3 Examples of this general kind of use could be multiplied almost indefinitely: as good as any, from a generation later, is in the Speaker’s address to the king in Charles I’s first parliament, when he remarked that ‘your imperial diadem shines brighter in that it is inamel’d and compast with a bewtiful border of the ancient and fundamentall lawes of this kingdom, which as synewes hould the bodie of the common wealth together’.4 We generally think of James I as an upholder of royal power on the basis of his belief in the divine right of kings, and of his Trew Law of Free Monarchies, which was written before he came to the English throne, as a manifesto proclaiming his absolutist political creed. Yet for all his pretensions to royal power and wisdom James meant, in his own way, to be a constitutional ruler, and we shall find in his writings and speeches frequent references to fundamental law, and the advan¬ tages of government according to law. Nevertheless it remains true 1 Cf. Samuel Daniel, A Panegyric Congratulatory delivered to the King's Most Excellent Majesty (1603), stanza 30: Thou wilt not alter the foundation Thy ancestors have laide of this estate, Nor grieve thy Land with innovation. Nor take from us more than thou wilt collate. 2 Cf. C. H. Mcllwain, Constitutionalism Ancient and Modern (2nd edn.), p. 154. 3 Works (ed. Spedding, Ellis, and Heath), vii. 314. 4 Sir J. Eliot, Negotium Posterorum (ed. A. B. Grosart, 1881), i. 50.

52

THE CLAIMS OF JAMES I

that James laid more emphasis on the power of the king than on the liberties of his subjects, and fundamental law accordingly meant to him not so much the law which restricted as the law which amply supported the monarchy and kept subjects in their place. Thus he alludes to ‘the allegiance that the lieges owe to their native king, out of the fundamental and civil lawe\ and goes on to declare that ‘accord¬ ing to these fundamental laws ... we daily see that in the Parliament (which is nothing else but the head court of the king and his vassals) the laws are but craved by his subjects, and only made by him at their rogation, and with their advice: For albeit the King make daily statutes and ordinances . . . without any advice of Parliament or estates; yet it lies in the power of no Parliament to make any kind of law or statute without his sceptre be to it, for giving it the force of a law.’1 If these were the ideas with which James came to England it is not surprising that he soon ran into difficulties over such questions as parliamentary privilege or his right to legislate by proclamation. The power claimed for his sceptre,2 to turn a bill into an act, was indeed formally true, and true in more than a formal sense, for the royal assent to legislation had not yet become automatic. But it had only been a half-truth in the English parliament ever since the practice had become established, in the reign of Henry VI, of proceeding to legis¬ lation by bill instead of by petition. This development was significantly marked by a change in the formula, when to the clause: ‘Be it enacted by the king’s most excellent majesty, by and with the advice and con¬ sent of the Lords and Commons, were added the words ‘and by authority of the same’.3 We shall find that in the crisis of Charles I’s reign royalists were able to refer to fundamental law as effectively as the parliamentarians, but in James’s reign such references by the king were only calculated to stimulate his English subjects to insist that fundamental law meant something quite different. James soon became aware of this, and found occasion to correct his subjects in a speech at Whitehall on 31 March 1607. He did so, he assured his audience, ‘not

1 James I, The Trew Law of Free Monarchies in Pol. Works (ed. C. H Mcllwain) p. 61. Cf. p. 62: ‘It is evident by the rolls of our Chancery (which contain our eldest and fundamental laws) that the king is Dominus omnium bonorum and Dominus directus totius Dominij, the whole subjects being but his vassals ’ He claimed it in England as well as in Scotland, for he repeated his idea that laws were ‘properly made by the King only, but at the rogation of the people , in the course of a speech at Whitehall in 1609 (Works p 309) Cf Holdsworth, HE.L. ii. 440; also S. B. Chrimes, Eng. Const, 'ideas in the Fifteenth Cent., p. 126.

THE CLAIMS OF JAMES I

53

. . . out of mine own conceit, but as it was delivered unto me by the best lawyers of Scotland’. In Scotland fundamental laws meant ‘only those laws whereby confusion is avoided, and their King’s descent maintained, and the heritage of the succession and Monarchy . . . : not meaning it, as you do, of their common law, for they have none but that which is called Ius Regis'.1 James’s idea of his status reminds us of Bodin’s political theory, according to which the monarch was legibus solutus, and could legis¬ late freely on all subjects except those covered by fundamental laws like the Salic law in France, which governed the succession to the throne. The legislative capacity of Bodin’s monarch was also limited by his duty to respect the laws of God and of nature. On this point, however, Bodin’s theory, though stated explicitly, was in no way peculiar to him, for it was implicitly if not explicitly accepted by practically every political writer until the time of Hobbes (and by many long after Hobbes too) that the completely arbitrary ruler was a tyrant. Conformity with natural law was one of the recognized marks of the virtuous or constitutional ruler, and James himself, who disclaimed any ambition for tyranny, not only believed in funda¬ mental law but also referred to another familiar feature of contem¬ porary political theory—the contract between king and people, which he apparently identified with his coronation oath. The king, he said, bound himself ‘by a double oath to the observation of the fundamental laws of his kingdom: Tacitly as by being a king, and so bound to protect as well the people as the laws of his kingdom; and expressly by his oath at his coronation: so as every just king in a settled king¬ dom is bound to observe that paction made to his people by his laws, in framing his government agreeable thereunto according to that paction which God made with Noe after the deluge.’2 It is interesting to find the king thus adopting apparently without disapproval the 1 Works, p. 300. He went on to explain that Scotland had laws regulating tenures, &c., and statute laws, but no common law, for James V brought the civil law (i.e. Roman law) from France (p. 301). In The Trew Law of Free Monarchies (ibid., p. 69) he had referred to ‘his succession, established by the old fundamental laws of the kingdom’. 2 Works, p. 309. Cf. The Trew Law (ibid., p. 55): ‘And this oath in the Coronation is the clearest civil and fundamental law, whereby the King s office is properly defined.’ The king’s coronation oath was used as an objection to the union of England and Scotland, but Bp. Thornborough (in a tract supporting the proposed union) argued that the fact that the king swore to maintain ancient and fundamental laws did not necessarily mean that if cir¬ cumstances required it he might not change the title, provided the substance was preserved (J. Thornborough, A Discourse plainly proving ... (1604), p. 20).

54

THE CLAIMS OF JAMES I

theory that his coronation oath constituted an original contract, and so anticipating one of the central arguments which was used eighty years later to turn his grandson off the throne. We shall later find a number of other examples of the association, if not the identification, of the fundamental law with the original contract. James I soon came to retract some of the strictures on the common law (so conveniently unknown in Scotland) implied in his denial that this was what was meant by fundamental law. In his speech at White¬ hall on 21 March 1609 he declared that while he thought highly of civil law, he did not mean to prefer it to common law. In fact, if he had to choose a new law for England, he would prefer common law above all others, placing it not only above any other national law but ‘even before the very judicial law of Moses’. The chief drawback he saw in common law was that it ‘hath not a settled text in all cases, being chiefly grounded either upon old customs or else upon the reports and cases of judges’, so that conflicting reports and precedents might lead to uncertainty. The really important considerations were that ‘if fundamental laws of any kingdom should be altered, who should discern what is meum and tuum, or how should a king govern?’1 This reference to the right of private property is significant. English¬ men did not need Locke to tell them that the chief reason why civil government was established was to protect property. The sanctity of property was (and indeed still is, however much weakened by modern legislation and attacked by modern political theory) one of the cardinal principles of English common law. Whatever rights were fundamental, we may be sure they included the right of property.2 At the same time it was recognized that if subjects enjoyed rights by fundamental law, they also had duties. Such rights and duties were reciprocal, as between a king and his people; this indeed was the constitutional fact which the contract theory was a way of expressing. The point was well put by Sir Julius Caesar in the debate on the pro¬ posal for the Great Contract in 1610:3 ‘It will not be denied that as the

1

See Note N, p. 227.

nn2£fffHTuM- R°bertson> Aspects of the Rise of Economic Individualism, PP-84,ff- ,The author 1S cntlcal of Max Weber’s views and holds that economic individualism has nothing to do with the protestant ethic, but was entirely secular, and in England was rooted in the presuppositions of the common lawY Peedless

payment ^

t0 say>

was n°t a social contract, but a proposal (which fell

C°mmUtm8 the king’s feudal dues int° a fixed annual money

THE CLAIMS OF JAMES I

55

king oweth the people defence and justice, so the people are to furnish all the king’s necessities and to serve him with their bodies and goods in time of war; and that is the law fundamentall of this kingdom, and is most just and agreeable to the law of God and nature.’1 A similar point was summed up in a sentence of Seneca’s which was a favourite quotation about this time; ‘Ad reges potestas omnium pertinet, ad singulos proprietas.’2 It is just here, as it seems to me, that American have got closer than English historians to the heart of the matter at stake in the English constitution in the seventeenth century. English writers tend to regard the struggle which culminated in the Civil War and the execution of the king as essentially a contest for sovereignty. They not only explain the course of events as arising from the division of power between king and parliament (this, of course, is obviously true), but also emphasize the importance of the lack of a properly understood and acknowledged doctrine of undivided sovereignty. Even the re¬ action in recent years against the ‘Whig interpretation’ of our history has not resulted in greater enlightenment in this respect, for the Tory view which enlarges on the virtues of Charles I, sympathizes with Strafford, and emphasizes the narrow-mindedness and obstructionism of the Puritans, has still not disentangled itself from the belief that the struggle to possess undivided power was the key to the whole business. Nor does the Marxist-economic interpretation throw light on the constitutional framework, even if it explains the motives for the stresses that developed within it. Americans, on the other hand, not prepossessed in favour of indivisible sovereignty, and accustomed rather to think of a balanced constitution as normal and desirable, have seen more clearly that while a contest for power undoubtedly took place, the emergence of undivided sovereignty was an accidental rather than an intentional result of it. The victory of the parliamentary side in the Civil War certainly left a single power in possession of the field, and though this soon fell apart and led to further disputes and political experiments, the ultimate result of the king’s defeat, clinched finally by the Revolution of 1688, was the unquestioned acknow¬ ledgement of the sovereignty of the modern parliament. Yet in the seventeenth century most Englishmen believed in and wanted to 1 Parly. Debates in 1610 (ed. Gardiner, Camden Soc., 1862), App., p. 173. The scheme was opposed because ‘in the judgement of the greatest lawyers of this kingdom, this contract will make a strange and deep alteration in the fundamental laws of this estate’ (ibid., p. 178). 2 Abp. Abbot’s Narrative (1627), in Rushworth, i. 443. (Seneca, de Beneficiis, vn. iv. 2).

56

THE CLAIMS OF JAMES I

preserve division. In spite of their experiences (or rather because they hated Cromwell’s dictatorship) they even tried to preserve it after the Restoration, but events were too strong for them. At the opening of the seventeenth century lawyers and politicians alike still thought of government in semi-feudal terms as a network of private rights, regulated and adjusted by law, which was largely a matter of tradition and custom, though reinforced by statute. On the one hand, the king had his prerogative—his potestas, his ‘absolute’ power, as Chief Baron Fleming called it in Bate’s case, which ‘is most properly named policy and government’.1 Over against this, subjects had their rights, notably their right of property, not only in the narrower sense of their lands and their goods and chattels, but (in the wider sense in which Locke and others used the word) their lives and liberties as well. Miss Margaret Judson, in an illuminating discussion of this whole subject, points out that besides the right of property strictly so called the subject had other important rights, notably his rights in his ‘craftsmanship and skill’. She points out that it was a rule of common law that beasts of the plough, being essential for a man’s livelihood, could not be distrained, and she gives a number of quota¬ tions showing that rights like these were regarded as fundamental—as inseparable from the ordinary man, because essential for his existence and necessary for the work which it was God’s will that he should do, just as certain prerogatives were inseparable from the king because without them the king would lack authority to rule, which was God’s mission for him.2 This balanced constitution, in which the law held the royal prerogatives poised against the rights of the subject, was taken for granted in quiet times. References to fundamental laws thicken in the seventeenth century just because the balance then threatened to break down, and it was the side which was on the defensive—the Commons, who feared that the king had aims of overbalancing them—which first had occasion to make claims on behalf of these fundamental rights. S. R. Gardiner visualized the situation that faced the country at the beginning of the seventeenth century as a choice between the ideas of Coke and Bacon. Coke, he thought, wanted to make the judges the final arbiters on any questions in dispute; but this would never do, for such questions might involve the welfare of the whole people, and the judges lacked the statesmanship to deal with them. In Bacon’s view it

1 2

Prothero, Const. Docts., p. 341. M. A. Judson, The Crisis of the Constitution, pp. 34-37.

THE CLAIMS OF JAMES I

57

was essential that the power of final decision should not rest in the judges’ hands. According to Gardiner, the modern solution of the problem, made possible by the victory of the parliamentary side, is that while the judges declare what the constitution is at any given time, parliament can alter it at any time. It is thus possible, without sacrificing the independence of the judges, to exercise control over their decisions, reversing them when necessary by act of parliament. This solution, however, was not open to Bacon, for as long as king and Commons were in conflict there was no chance of legislation deciding the parts they were to play in the constitution. Bacon, there¬ fore, refusing to acknowledge the rising claims of the Commons, had no alternative but to advocate the policy of putting full powers into the hands of the Crown.1 This view can certainly be made to fit the facts, but its underlying assumption is the necessity of sovereignty—somebody must have full powers. Filmer and Hobbes supported this assumption, but the weight of seventeenth-century constitutional opinion was against them, and most people still believed in the traditional idea of mixed or limited monarchy. What grounds are there (apart from the theory, which we have seen reason to doubt, that he believed that common law was fundamental in the modern technical sense) for thinking that Coke wanted to make the judges supreme arbiters, above parliament as well as the king? He undoubtedly believed that the ancient laws, from Magna Carta onwards (whether his history was right or wrong is irrelevant), were the essential and ‘fundamental’ guarantees of the rights and liberties of Englishmen, but he had no reason to think that parliament wanted arbitrary power and would threaten to subvert them. Indeed it never entered into anybody’s head that such a thing could happen. If anybody threatened the liberties of the subject it was certainly not parliament but the king and his supporters.2 To Coke parliament was the highest of all courts of justice, and it would not occur to him to question its capacity. His judgement in Bonham’s case, however we interpret it, is quite irrelevant in this connexion. If anything, he would think of parliament and the judges as allies rather than rivals, and when the Commons felt impelled to resist the king’s 1 S. R. Gardiner, History of England, 1603-1642, iii. 3. 2 Common lawyers might have added the prerogative courts, and especially the Court of High Commission. Many Puritan members of parliament would have agreed with them in hating the latter, but the Star Chamber did not get into bad odour until later, and Coke himself, like Elizabethan writers, had nothing against it.

58

THE CLAIMS OF JAMES I

claims, he had no hesitation in supporting their campaign whole¬ heartedly. The campaign which ended in the king’s assent to the Petition of Right was not a campaign for parliamentary sovereignty or anything like it. Its purpose was to secure a fresh definition and acknowledgement by the king of the ancient traditional ‘fundamental’ rights of Englishmen—to restore the constitution, which had become unbalanced, to its traditional poise. After their experience of the decisions in cases such as those of Bate, Darnel, and Hampden, and after Coke’s dismissal by the king, the Commons had some grounds (but they probably exaggerated them) for fearing that the judges, who held their appointments ‘during the king’s good pleasure’, were subservient to the royal will, and began an agitation for their independence—the terms of their appoint¬ ment were to be changed to ‘during good behaviour’. Again, there was no thought that independent judges would be rivals of parlia¬ ment, nor for that matter that parliament should be rivals of the judges. The whole point, as parliament saw it, was to prevent the possibility of bribing or intimidating the judges into being supporters of royal encroachments, and to restore them to their proper place in the constitutional equipoise. Let us turn now to the opening rounds in the struggle, and see in what guises the appeal to fundamental law played a part in them. The first of these was in 1610, when the House of Commons voiced a series of grievances, secular and religious, and held a famous debate on the subject of the king s claim to levy impositions without parliamentary consent. Various speakers referred to the absolute power of the king, but agreed that its sphere was limited by the law. He could not change the law, or make laws without the assent of parliament, and in the last resort the common law (which ‘Mr. Solicitor said was tried reason, the quintessence of reason’) was the deciding factor. Nor could he levy an imposition, for it ‘doth charge the person of the subject, who was free by the law and by Magna Charta’.1 This parlia¬ ment was notable also for a speech by Whitelocke, in which he re¬ ferred to the ‘rights of sovereignty, jura majestatis', that exist in every commonwealth, and evidently realized quite clearly that in England they belonged to the king in parliament.2 ‘In acts of Parliament’, as he pointed out, \ . . the act and power is the King’s, but with the assent of the Lords and Commons, which maketh it the most sovereign and

1 2

Hobart, in Parly. Debates in 1610, pp. 89, 90, 119. Most of the speech is printed in Prothero, Const. Docts., pp. 351, 352.

THE CLAIMS OF JAMES I

59

supreme power above all and controllable by none.’ Thus the king in parliament could levy impositions, make laws, and perform various other functions, of which he gave examples. He saw also that the sovereignty of the king in parliament meant that the power of the king out of parliament, ‘as he is sole and singular’, was inferior. There were limits to what he could do; in particular he could not levy impositions without the consent of parliament. This would be ‘against the natural frame and constitution of the policy of this kingdom, which is jus publicum regni, and so subverteth the fundamental law of the king¬ dom, and induceth a new form of state and government’. As he re¬ peated a few lines later, ‘if he alone out of parliament may impose, he altereth the law of England in one of these two fundamental points. He must either take his subjects’ goods from them without the assent of the party, which is against the law, or else he must give his own letters patent the force of a law, which is also against the law.’1 It is interesting to notice that to Whitelocke the sovereignty of the king in parliament was not incompatible with fundamental law. He evidently thought of fundamental law as the constitution itself, which decided the location of sovereignty. He did not consider the question of the possibility of using the sovereign power to alter the constitution; yet not many years were to pass before this became a vital issue. He thought of the constitution as ‘natural’, and an important part of it was the law which guaranteed the fundamental right by which sub¬ jects possessed their property. ‘That the King of England cannot take his subjects’ goods without their consent’, he concluded, ‘it need not be proved more than a principle. It is jus indigenae, an old homeborn right, declared to be law by divers statutes of the realm.’2 Whitelocke seems to have been alone3 in realizing even as fully as he did the implications of sovereignty, for his speech does not seem to have 1 S.T. ii. 483, where the speech is wrongly ascribed to Yelverton. Cf. the sermon preached by Thomas Scott (The Highways of God and the King (1623), p. 86): The ‘King’s highway’ was ‘his revealed will in the Laws of the Land, which although his absolute will do not constitute (as God’s will doth) yet his consent confirms them as the Parliament propounds them. In the Parliament then (which is the whole State representative) these high ways are made; and the fundamental customs of our State make every Freeholder a way maker in this case, not binding any man before he hath bound himself by the knights and burgesses who are his spokesmen. 2 s.T. ii. 384. In 1628 Pym declared that the principle that taxation required the consent of parliament was ‘the ancient and fundamental law . Cf. p. 70, n. 2, below. 3 Or almost alone, for Bacon, as we have seen, had already grasped the point. So also, a little later, did Sir John Eliot. See Note O, p. 227.

60

THE CLAIMS OF JAMES I

attracted particular attention at the time, and may well not have been understood. Varying only slightly, yet significantly, from Whitelocke’s speech was a speech made by Hobart. He too declared that ‘in all sovereign1 states there are certain jura majestatis, that do design where summum imperium is in the state’. But (if correctly reported) he did not realize that the legislative power was supreme and distinct from all others. He thought of all powers as executive, giving as examples of this summum imperium ‘war and peace, making of laws, coin, indemnizing, creation of magistrates, calling or dissolving of parlia¬ ments, pardoning of offenders, imposing’. In a democracy the people would have these powers, in a monarchy the king. England having a mixed government or limited monarchy (so evidently ran his un¬ spoken premiss), the question was ‘which of these is in the King? Let no man marvel that the King hath in some cases absolute power, as in war and such like. But he cannot make laws without assent of Parliament. This I know by the constant acknowledgment of the common law and statutes throughout all ages.’2 Here Hobart’s general argument was very similar to Whitelocke’s, but he just missed White¬ locke’s point about sovereignty, and in this way was more typical of his age.3 Various things were questioned or condemned in the course of James I’s reign on the ground of being contrary to the fundamental laws. For example, in the preamble to the act restricting monopolies4 it was stated that the king’s declaration that grants of monopoly and dispensations were contrary to the laws was ‘truly consonant and agreeable to the ancient and fundamental laws of this your realm’. Miss Judson quotes5 passages from manuscript parliamentary diaries of this period, showing that it was argued on several occasions that bills ought to be rejected because they conflicted with fundamental laws. Such were a bill involving a change in procedure regarding freehold land, and a bill ‘to avoid trial by battle’. Another bill pro1 i.e. independent. 2 He then gives examples {Parly. Debates in 1610, p. 90). 3 It is true that the petition to the king drawn up by the House of Commons on 7 July 1610 declared that ‘the policy and constitution of this your kingdom appropriates unto the Kings of this realm, with the assent of the Parliament, as well the sovereign power of making laws (my italics) as that of taxing or imposing upon the subjects’ goods or merchandises, wherein they have justly such a propriety as may not without their consent be altered or changed’. But sovereign was (and still is) a word often used very loosely. 4 21 & 22 Ja. I, c. 3: Prothero, Const. Docts., p. 275. 5 M. A. Judson, op. cit., p. 91.

THE CLAIMS OF JAMES I

61

posing legal reform was rejected on its third reading for the same reason. Objection was also taken to a bill about petty larceny, because ‘it alters the fundamental law, which is that no man shall be tried upon felony before indictment by the country’.1 These were arguments against bills in debate, and do not necessarily imply that once passed as acts they could be set aside for repugnancy to fundamental law. Miss Judson’s conclusion, after examining a number of law cases of the early seventeenth century, is that while legal opinion was ‘moving towards’ an acceptance of acts of parliament as final and binding on the courts, statutes were still applied in such a way as to maintain established principles of right and justice. She finds that statutes were ‘frequently, not just occasionally’, examined in relation to such funda¬ mentals in the constitution as the king’s prerogative, the subject’s rights of property, and fundamental principles of the common law, such as the rule at stake in Bonham’s case, that a man could not be judge in his own cause. The illustrations Miss Judson gives confirm the conclusion we reached in the last chapter, that the courts would interpret statutes strictly when questions like these were affected. We may now pass on to the important crisis in 1628 which resulted from the imprisonment of the five knights after their refusal to con¬ tribute to the forced loan, and their failure to obtain release on bail, and which culminated in the Petition of Right. The fundamental right of property was again at stake, but the Commons felt that other ‘main and fundamental points of law’ besides this were ‘neglected and broken’,2 notably the right of personal liberty. There had been a few allusions to Magna Carta before this,3 but this was the occasion when it became the focus of the debate, and its famous clause nullus liber homo, &c., was expounded by Coke to mean that no free man should be imprisoned except by ‘due process of law’. A conference was held between the Lords and the Commons ‘concerning the subject’s Liberties and Freedoms from Imprison1 Debates in the House of Commons in 1625 (ed. S. R. Gardiner, Camden Soc., 1873), p. 90. Cf. the question that arose in connexion with the impeach¬ ment of the Duke of Buckingham (1626), when reference was made to the earlier impeachment of the Earl of Bristol, to whose application to be allowed counsel the king replied ‘that this was contrary to the Fundamental Laws of this Realm; but inasmuch as it was for his benefit and prerogative, with which he may dispense, therefore out of his grace he would allow the Earl of Bristol to have his Counsel’. 2 Sir Dudley Digges: LJ. iii. 718a; S.T. iii. 83. 3 Thus Bacon mentioned it in the discussion about impositions in 1610, but without reference to its contents (S.T. ii. 398). So did Hobart (above, p. 58).

62

THE CLAIMS OF JAMES I

ments’, at which four spokesmen presented the Commons’ case—Sir Dudley Digges, Littleton, Selden, and Coke. Coke’s part was ‘to show the reasons of all that the others had said; and that all which was said was but in affirmance of the common law’. The reason for this in¬ sistence on common law is clear from the objection that was raised when Serjeant Ashley declared ‘there were divers laws of this realm’. Besides common law there were ‘the Law of the Chancery, the Eccle¬ siastical Law, the Law of the Admiralty,... the Law of the Merchants, the Martial Law, and the Law of State’. All these, he indicated, were included in the phrase per legem terrae. But this was not what the members meant by the rule of law. They at once objected: ‘That we read of no Law of State, and that none of these laws can be meant there save the Common Law, which is the principal and general law, and is always understood by way of excellency when mention is made of the law of the land generally.’1 They were, in fact, insisting on the principle of ‘the rule of law’ in much the same way as Camden L.C.J. in the famous case of Entick v. Carrington a century and a half later, when he declared that the search warrant issued by the Secretary of State was illegal, for ‘with respect to the argument from State neces¬ sity, ... the common law does not understand that kind of reasoning’.2 On the question of property the convictions of the committee were unmistakably stated by Sir Dudley Digges. It is ... an undoubted and fundamental point of this so ancient a law of England, That the Subjects have a true Property in their Goods, Lands and Possessions: The Law preserves as sacred this

Meum

and

Tuum,

which is the Nurse of Industry, and Mother of Courage; for, if no Property, no Care of Defence. Without this Meum and Tuum, there can be neither Law nor Justice in a Kingdom; for this is the proper object of both.3

The upshot of this committee’s discussions was a proposal that the king should be asked to declare (1) ‘that the good old Law, called Magna Charta, and the six statutes, conceived to be Declarations or Explanations of that Law, do still stand in Force, to all Intents and 1 S.T. iii. 153. ^e'r anc* H. Lawson, Cases in Constitutional Law (4th edn., Oxford, 1954), p. 181. ‘Law of State’ conveyed also a hint of raison d’etat, the acceptance of which as a justification for government action by modern states is one of the signs that they have discarded any obligation to the older idea of natural law. Common law was not the same thing as natural law, but both had a similar ethical ingredient. 3 L.J. iii. 718; Rushworth, i. 528.

THE CLAIMS OF JAMES I

63

Purposes’; (2) ‘That according to Magna Charta and the Statutes aforenamed, as also according to the most ancient Customs and Laws of this Land, every free subject of this realm hath a fundamental propriety in his goods, and a fundamental liberty of his person.’1 In response to this proposal the king expressed his willingness to confirm Magna Carta once more, but he declined to endorse the particular interpretation put upon it by parliament. There is no need here to repeat the whole story of the manoeuvres that followed.2 The Petition of Right, which parliament finally agreed to present to the king, was an ingenious escape from the impasse in which they were placed by the king’s refusal to meet their interpretation of Magna Carta. They thus placed on record a statement that certain specified grievances were contrary to existing laws, and by obtaining the king’s assent to it they secured that this statement should be binding on the courts in future.3 As in 1610, there was no desire to deprive the king of his legitimate prerogative; the intention was only to check unlawful abuse of power by the king, and to restore the ancient legal constitution to its proper balance. Some of the Lords, however, thought that a clause should be added explicitly safeguarding the royal prerogative. This clause was to run; ‘We humbly present this Petition to Your Majesty not only with a care of preserving our own liberties but with due regard to leave entire that Sovereign Power wherewith your Majesty is trusted for the pro¬ tection, safety and happiness of the people.’4 Immediate objections were raised in the Commons to this insertion, which are interesting because they reveal the ambiguity that then surrounded the meaning of sovereignty. Mr. Alford shot fairly close to the mark by referring to Bodin, who ‘saith that it is free from any condition; by this we shall acknowledge a regal as well as a legal power. Let us give that to the King that the law gives him and no more.’ Pym, however, confessed himself puzzled. ‘I am not able to speak to this question, he declared, I know not what it is. All our petition is for the laws of England, and this Power seems to be another distinct from the power of the law. I know how to add sovereign to his person’, he concluded, ‘but not to 1 L.J. iii. 769; Rushworth, i. 546; Parly. Hist. ii. 329. 2 See F. H. Relf, The Petition of Right, and for a correction of her inter¬ pretation of some of the proceedings, E. R. Adair, ‘The Petition of Right, in 5 History, n.s., pp. 99-103. A good brief account of the main points at stake is in H. Butterfield, The Englishman and his History (Cambridge, 1945), pp. 54_68. 3 E. R. Adair, op. cit., p. 101. 11 L.J. iii. 801f>; Rushworth, i. 562; Parly. Hist. ii. 357; S.T. iii. 193.

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THE CLAIMS OF JAMES I

his power. And we cannot leave to him a new power; also we were never possessed of it.’ Sovereignty was evidently an attribute of kingship, and there is no hint of legislative sovereignty in the modern sense. It was practically synonymous with the king’s prerogative,1 or his ‘absolute power ; but it also conveyed a vague sense of something higher, and the reference to Bodin indicates a fear that if the king were conceded ‘sovereignty’ it might be impossible to maintain that his power was contained by the law. This was evidently in Coke’s mind, who clinched the argu¬ ment in a speech that has often been quoted. This is magnum in parvo . .. and to speak plainly it will overthrow all our petition.... I know that Prerogative is part of the law, but sovereign power is no parliamentary word. In my opinion it weakens Magna Charta and all our statutes; for they are absolute, without any saving of sovereign power. . . . Take we heed what we yield unto, Magna Charta is such a Fellow, that he will have no sovereign. I wonder this sovereign was not in Magna Charta or in the confirmations of it. If we grant this, by implica¬ tion we give a sovereign power above all these laws. . . . What it means here, God only knows: it is repugnant to our Petition: ... this is a Petition of Right, grounded on Acts of Parliament. . . .

Coke must not be misunderstood to have had legislative sovereignty in mind. He was not saying that Magna Carta was a fundamental law which could not be altered or repealed, even by act of parliament.2 The point of his speech, as of all the other speeches, was turned against the king. There was no question of what parliament, or the king in parliament, could or could not do, and in spite of references to common law (and Magna Carta) the relationship of common law to statute was not an issue either. Magna Carta had in fact been confirmed by statute, and there was no question of distinguishing between them, of fearing that statute might threaten the sanctity of common law, or insisting that common law was fundamental in the sense that statutes could not touch it. None of these questions was to arise for some years to come. At this date, the appeal to fundamental law was closely connected with the pleas of various kinds (obedience to higher law—the law of nature, God’s law, God’s will, conscience, freedom of worship, personal freedom in general, and government by 1 At a subsequent conference, when the Lords tendered reasons in support of their proposed additional clause, the Lord Keeper said: ‘For the words sovereign power: as he is a king he is sovereign and must have power, and . . . the words were easier than the Prerogative.’ 2 See Note P, p. 227.

THE CLAIMS OF JAMES I

65

consent) on which a whole school of political theorists in the sixteenth and seventeenth centuries sought to justify rebellion against tyrannical or oppressive or heretical rulers. Fundamental laws fond Magna Carta itself) were valued for the protection they afforded against the arbitrary power of kings. There was no suggestion yet that the people’s repre¬ sentatives themselves, or the majority, might be tyrannical.1

1 A view widely held in England in the first half of the seventeenth century may be seen in The Laws of England, a Puritan tract among the Ellesmere MSS. now in the Huntington Library in California. According to the author of this tract, the Jewish people, whose history he traces, were entitled to and enjoyed ‘nine fundamental rights and liberties’, which he enumerates and describes. By ‘the people’ the writer evidently means not the masses but substantial householders. This view was typical of many of the Puritans of his age, as also was his belief that these rights of the ancient Hebrews still prevailed in Eng¬ land. The equivalent rights of the Englishman were: 1. The Liberty and Freedom of his person. 2. The property of his goods. 3. The property of his lands and possessions. Further, English laws are made with the consent of the people. He quotes Hooker, who had suggested that families might have lived together without ‘public regiment’; but when ‘public societies’ are formed, ‘this assent of the people unto laws hath its ground from the very frame and constitution of a commonwealth’. (Quoted in M. A. Judson, op. cit., pp. 336-8. The tract was written between 1625 and 1640.)

5725

F

CHAPTER V

CHARLES I AND PARLIAMENT At this point the reader may complain that we have been too ready to accept at its face value the parliamentary leaders’ version of their constitutional rights—that we are asking him to believe that Magna Carta really meant what Coke declared it to mean, and that there were recognized and definite limits to the king’s use of his prerogative powers: in short, that the Commons were justified in their claim to be defending against royal encroachment the ancient and traditional constitution. In reality, it may be objected, no such traditional con¬ stitution existed outside the imagination of the parliamentary leaders. Coke’s ideas about Magna Carta were largely fictitious, and he and his fellows, simply ignoring Tudor practices and precedents, went back to the age of the Lancastrians, to the fourteenth century, and even to the thirteenth, an age of which they ‘really knew next to nothing’.1 Such scepticism, however, can be carried too far, and it is equally a mistake to belittle the value of the immense researches of Coke, Selden, and others in the field of legal and constitutional history. Some of the learning they amassed and were fond of displaying may strike us as arid and pedantic, sometimes even absurd and patently mis¬ taken,2 but even making allowance for inexperience and credulity, it may very well turn out that they were not so wholly mistaken as has sometimes been supposed. Admittedly they went to history with prejudiced rather than open minds, and in search of evidence to justify their politics. Consequently, in their own minds there was little or no doubt about the matter. They were right and the king was wrong; they were defending liberty, he was aiming at tyranny. This, of course, was an exaggeration. But even if we discern, behind the parliamentary fa?ade of defensive action, the upward aggressive thrust of prosperous men bent on political power commensurate with their economic status, it does not follow that they had no case at all, or that the king deserved no blame. In reality the question was far from simple. It was neither 1 Cf. J. W. Allen, English Political Thought, 1603-1660, i. 28. 2 Cf., for example, the absurd etymology which derived the word ‘parlia¬ ment’ from parler lour ment—the place where men could ‘speak their minds’ (Gardiner, Const. Docts., p. 121).

CHARLES I AND PARLIAMENT

67

the first nor the last time in our history that constitutional changes were effected under the guise of restoring ancient and neglected rights, and this was possible because the constitution has never been static and definite, but always open to more than one interpretation. In a given crisis one interpretation and not another has gained the day, but in the succession of crises which have marked the course of our con¬ stitutional development the struggle has always been, not between a constitution on the one hand and on the other its denial or absence, but between alternative interpretations of a constitution whose exis¬ tence was not denied. This was the situation in the early seventeenth century, even if con¬ temporary exponents of alternative interpretations denied not only the validity but even the existence of a rival alternative to their own. Both sides believed in the reality of a constitution,1 and because history and prescription were of its essence, both sides were impelled to look backwards, to appeal to the past, and to appear as defenders of the historic, the unchanged, and, as they would urge, the unchangeable —the fundamental, in a word—against unlawful innovation and encroachment. In reality, of course, the constitution was neither un¬ changing nor unchangeable. But it is only if we define a constitution as necessarily meaning a written and static constitution that we can accept de Tocqueville’s celebrated dictum that the English constitu¬ tion is non-existent. In the seventeenth century neither party to the constitutional dispute denied its existence; they agreed that it was both real and ancient, but they advocated alternative interpretations, because they were apt to ignore or minimize one side of it and concen¬ trate on the side that suited their own interests. Both sides were in fact legacies of the past, and the sixteenth century had been one of the least static of all ages. The Tudor period, though notable for monarchical power, had also seen great advances in the power and prestige of parliament. It was through parliament that the church had been detached from Rome and established under state control, while at the same time parliament had developed its legislative capacity in a great series of statutes deal¬ ing with economic matters—the regulation of trade and industry, poor 1 They did not call it so, but spoke of a ‘policy’ (or polity, as we should say now), or ‘frame of government’, or ‘constitution of government’; or they spoke of ‘constitutions’ in the plural, or ‘fundamental constitutions’ (cf. Locke’s constitutions for Carolina). The meaning of all these phrases approximates to what we nowadays call ‘the constitution’. Cf. above, p. 51, and F. D. Wormuth, The Royal Prerogative, 1603-1649, pp. 47, 48.

68

CHARLES I AND PARLIAMENT

relief, and enclosures—questions of property and tenure, such as uses and wills, and such high and mighty affairs as treason and the succes¬ sion to the throne. Queen Elizabeth’s reign in particular had also seen the claim for, if not the final consolidation of, the chief privileges of parliament. But, as Miss Judson has pointed out,1 the powers of the monarchy had also grown considerably; the Tudors had not only enlarged and strengthened existing branches of their prerogative but created new ones to extend the scope and effectiveness of royal authority. Over foreign affairs, the army and navy, the coinage, and (in certain aspects, such as granting charters to new companies) over matters of trade too, the monarch was ‘absolute’, and independent of parliamentary control. This increase in royal power was accompanied by an increase in the wealth of the monarch’s subjects, or at any rate of the landowners and land-purchasing merchants who were repre¬ sented in parliament, and this conjunction was a powerful inducement for them to insist that their property was their own—that historical precedent and common law guaranteed to them a right of property as ‘absolute’ or fundamental as the powers of government claimed by the king. Thus the king’s ‘absolute’ sphere of government confronted rights of property which equally ‘absolutely’ belonged to his subjects, and both were on the increase. We can hardly help seeing in this situation a stage set for battle, of which the victory of one side over the other would be the only possible solution. What emerged from the struggle was indeed the sovereignty of parliament, but it came ultimately to control the rights of subjects no less than the prerogatives of the king. Americans, on the other hand, who have had a different political experience, and whose written constitution has even survived a civil war, can more readily envisage a different outcome, and one more in accord with seventeenth-century ideas; for in fact, even though parliament (that is, the king in parlia¬ ment) possessed sovereign powers, the meaning of such powers was imperfectly understood. Moreover, their effective exercise required king and parliament to co-operate in partnership, but under the Stuarts co-operation broke down. In the sixteenth century powerful subjects had often been content to leave large areas of government to the king provided he did not interfere unduly with their acquisition of wealth, but when James I tactlessly threatened their independence they took up the challenge.2 They went too far if they tried to make 1 M. A. Judson, The Crisis of the Constitution, pp. 81, 82. 2 They purported to be defending their ancient rights and privileges, but

CHARLES I AND PARLIAMENT

69

out that the rights of property and personal liberty were absolutely inviolable, when all they needed was to secure their inviolability against abuse by the king. But few appreciated the full implications of sovereignty, and the weight of legal tradition seemed to be on their side. The trouble lay in the fact that what they regarded as definite and beyond doubt was in reality indefinite and open to criticism. Nor were medieval precedents exclusively on their side. If the parliamen¬ tarians owed much to the researches and learning of lawyers like Coke and Selden, who revived the fame of Magna Carta and propounded the notion of a limited parliamentary monarchy, the king’s lawyers could also produce appropriate quotations from old records, and on them found the doctrine of the inseparable and indefeasible preroga¬ tives of the Crown. Richard II, for example, had declared ‘que pour riens qu’estoit fait en le dit Parlement, il ne vorroit que prejudice avendroit a luy ne a sa Corone’, and during the Wars of the Roses the judges had declined to give any opinion on the merits of the Lan¬ castrian and Yorkist titles to the throne because ‘the mater was so high and touched the Kyng’s high estate and regalie, which is above the lawe and passed their lernyng’.1 To us the Petition of Right marks a stage on the journey that was to end in the defeat of the king by parliament, but to contemporaries it must have seemed at first to have achieved little or nothing. The imprisonment of Eliot and others showed that personal liberty was as insecure as ever, and within a few years the king’s demand for ship money once more threatened the rights of property. While Charles I continued to rule without a parliament the opposition was silenced, but in Hampden’s resistance to ship money the same issues were again at stake. The arguments in his trial are of great interest, because in them the alternative interpretations of the constitution, for which the two parties contended, confronted each other openly, and the result was a deadlock. The judges decided by a majority for the king, but this was a solution that satisfied few, and to contemporary parliamen¬ tarians (and to nineteenth-century historians) the majority judges seemed like traitors, and were in fact suspected of compliance with royal pressure. Modern opinion has come to recognize in their judge¬ ments a version of the constitution as it then stood which was truer Professor Notestein has shown that in reality they, as much as the king, were making advances in directions hitherto outside their scope. Cf. his The Winning of the Initiative by the House of Commons (Brit. Academy, Raleigh Lecture, 1924). 1 Quoted in W. Holdsworth, H.E.L. ii. 445, n. 5.

70

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on the whole than the version contended for by Hampden, but it is clear that neither side could let things remain as they were. In the controversy that arose over the Five Knights’ case and cul¬ minated in the Petition of Right, the essence of the parliamentary cause had been summed up, as we saw, in the principle, held to be implicit in common law, that the subject had ‘a fundamental pro¬ priety in his goods and a fundamental liberty of his person’,1 and this principle was reconciled with the need for taxation by means of the idea of consent in parliament. We meet this notion again and again, as for example when the Commons, objecting to Charles I’s collection of tonnage and poundage although parliament had not made him the usual grant of the right to collect it, complained (unjustifiably) that his action was contrary to the Petition of Right. ‘The receiving of tonnage and poundage, and other impositions not granted by Parlia¬ ment’, they declared, was ‘a breach of the fundamental liberties of the kingdom’, because ‘there ought not any imposition to be laid on the goods of merchants . . . without common consent by Act of Parlia¬ ment’. This, they told the king, was ‘the right and inheritance’ of his subjects, ‘founded ... upon the most ancient and original constitution of this kingdom’.2 This was the line taken by Hampden’s counsel, who could not plead that ship money was wholly illegal, because the king had previously consulted the judges and had been advised by them that he was entitled to collect it in time of need, and that it was for him to decide when such need arose. Hampden’s counsel were thus thrown back on the argument that there were fundamental constitutional rules, safe¬ guarding the liberty and property of the subject by providing definite methods through which alone the king could lawfully govern. For purposes of taxation and legislation parliament was the proper method, because, as Oliver St. John put it, this was ‘fittest for the preservation of that fundamental propriety which every subject hath in his lands and goods, because each subject’s vote is included in whatsoever is there done’.3 Other counsel for Hampden did little 1 Cf. above, p. 63. Gardiner, Const. Docts., pp. 71, 73. Cf. Pym’s speech at the delivery of the charge against Dr. Manwaring ‘for printing and publishing two sermons main¬ taining doctrine tending to the subversion of the Laws and Liberties of the king¬ dom (1628). According to Pym ‘the law of England, whereby the subject was exempted from taxes and loans not granted by common consent of Parliament, was not introduced by any statute, or by any charter or sanction of princes, but was the ancient and fundamental law, issuing from the first frame and constitu¬ tion of the kingdom’ (S.T. iii. 341). 3 Gardiner, Const. Docts., p. 114.

CHARLES I AND PARLIAMENT

71

more than elaborate this basic contention, and we need not pursue in detail their efforts to apply it to the particular circumstances of the case before them. It is interesting to note in passing, however, that Sir Richard Hutton quoted Fortescue to the effect that the King of England ‘governeth his people not only by royal but by politic power, and can lay no charge upon them but by Parliament’.1 One of the most interesting statements of the reasoning which led the majority of the court to reject these arguments is the judgement of Sir Robert Berkeley, because he freely admitted the truth, as far as it went, of the defendant’s contentions, and was prepared to use the language his counsel themselves had used. To begin with, he said, ‘I will consider the policy and fundamental rules of the common law’, and he agreed that subjects ‘have in their goods a property, a peculiar interest, a meum et tuum. They have a birthright in the laws of the kingdom. No new laws can be put upon them; none of their laws can be altered or abrogated without common consent in Parliament.’ He admitted all this, he continued, ‘to avoid misapprehensions and misreports’.2 But while he thus accepted Hampden’s case, he proceeded to show that it covered only half the ground. He did not deny the existence of ‘the fundamental policy, and maxims, and rules of law for the government of this realm’, but if Hampden’s counsel imagined that this ‘fundamental policy in the creation of the frame of this king¬ dom’ meant that the king should be restrained if he tried to raise money except through parliament, he was ‘utterly mistaken herein’. Subjects indeed had rights of property, but ‘I shall go yet to a higher contemplation of the fundamental policy of our laws: which is this, that the King of mere right ought to have, and the people of mere duty are bound to yield unto the King, supply for the defence of the king¬ dom. ... I confess’, he continued, ‘that by the fundamental law of England Parliament is commune concilium regis et regni, that is the greatest, the most honourable and supreme court in the kingdom’,3 but it was not the appropriate organ for every activity of government. Berkeley described the arguments of Hampden’s counsel, in oftenquoted words, as ‘a king-yoking policy’, and declared that he ‘never heard that lex was rex but rather the reverse, for the King was lex loquens, a living, a speaking, an acting law’.4 Taken out of their con¬ text, these remarks might seem to exclude all constitutional limitations i S.T. iii. 1194. 2 Gardiner, Const. Docts., p. 115. 3 Ibid., pp. 121, 123; S.T. iii. 1099, 1101. 4 Gardiner, Const. Docts., p. 122.

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and ascribe despotic powers to the king, but if they are read in con¬ junction with the rest of the judgement it is clear that in Berkeley’s view the powers of the king were just as much constitutional as those of parliament. Englishmen were ‘subjects, not slaves’, as he put it, ‘free men, not villains’; it was their duty to make contributions for the defence of the realm, but this did not mean they could be taxed de alto et basso.1 A similar repudiation of any claim for the monarch to unconstitutional power had been made by the royalist Archbishop Harsnett in 1628: ‘Fundamental propriety and fundamental liberty is conceived to be that property and liberty which upon the first sub¬ mission to a monarchical government was allowed to the subjects of this kingdom.’ (Thus he accepted the parliamentarians’ own notion of fundamental rights, and even, it would seem, something very like an original contract.) For, he continued, ‘this kingdom, being a monarchy royal and not seigneurial, and the relation being between king and subject and not lord and slave; the subjects are free subjects having property and liberty, and not slaves or villains which have neither. Yet the subject hath his property and liberty not absolute2 but subject¬ like: that is so long as he liveth subject-like and according to the laws.’3 Berkeley was in fact only reiterating the doctrine stated by Chief Baron Fleming in Bate’s case, that the king had a twofold power, ‘absolute’ as well as ordinary. The same point was made by Heath, A.-G., in the Five Knights’ case, when he referred to the difference between ‘legal commands and that absoluta potestas that a sovereign hath. But when I call it absoluta potestas I do not mean that it is such a power as that a king may do what he pleaseth, for he hath rules to govern himself by.’4 If, then, there were constitutional rules, or fundamental laws, which guided or limited the function of the king, equally there were limita¬ tions on the capacity of parliament. Sir Humphrey Davenport asserted this in words which clearly anticipated the use which the king himself and the royalists were not long afterwards to make of the notion of fundamental law, as against the revolutionary claims of the Long Parliament. Referring to the royal prerogative to compel subjects to give aid in time of national danger, he declared that ‘if an act of par1 Gardiner, Const. Docts., p. 116. 2 This, perhaps, was the crucial point. If parliamentarians insisted, as some of them did, that their rights were strictly fundamental, this would mean a claim that they were absolute and untouchable. 3 Quoted from the State Papers Domestic by M. A. Judson, op. cit., p. 164. 4 Gardiner, Const. Docts., p. 60.

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73

liament should be made to restrain such a charge on the subjects in case of necessity, it would be Felo de se, and so void, for it would destroy that regale jusV Sir John Finch carried this argument a step farther, and in so doing revealed the weak point in it. ‘The defence of the kingdom must be at the charge of the whole kingdom in general’, he maintained. The power of laying this charge is, by the policy and fundamental laws of this kingdom, solely invested in the King. .. . Acts of Parliament may take away flowers and ornaments of the crown [he continued], but not the crown itself; they cannot bar a succession. . . . No act of parliament can bar a king of his regality, as that no lands should hold of him; or bar him of the allegiance of his subjects . . . : therefore acts of parliament to take away his royal power in the defence of his kingdom are void . . . ; they are void acts of parliament, to bind the king not to command the subjects, their persons and goods, and I say their money too: for no acts of parliament make any difference.2 But who was to decide what were ‘flowers and ornaments of the crown’ as distinct from the crown itself? Both sides seemed so sure of their ground, so sure that the laws of England ‘delight in certainty and abandon uncertainty’,3 but in reality this certainty, this clear dis¬ tinction between the flowers and ornaments and the crown itself, was just what was lacking.4 And yet both sides were right in their belief in the reality of a constitution, though both misconceived its nature, if by calling it fundamental they meant that it was unalterable, gave inviolable guarantees to the subject, or set impassable limits on the exercise of royal power. Normally, the subject enjoyed his liberty and rights of property, which were upheld by the normal processes of common law, but the king’s function was to govern and defend the realm, and for this he needed, at his discretion, a reserve of powers which if necessary might override the subjects’ ordinary rights. The king’s lawyers, we must now admit, were more realistic than the 1 S.T. iii. 1216. 2 Ibid. 1224, 1235. 3 Hakewill in the Commons in 1610: Prothero, Const. Docts., p. 344. 4 Cf. F. W. Maitland, Const. Hist, of England, p. 300. The phrase ‘flowers of the crown’ occurs frequently in the early seventeenth century, in various senses, but it more often means something valuable and important than some¬ thing expendable. Thus one of the judges at the Lent Assizes at York in 1636, in his charge to the grand jury, said ‘it was a lawful and inseparable Flower of the Crown, for the King to command not only the Maritime Counties but also those that are Inland, to find Ships for the Defence of the Kingdom . The same judge is further reported to have declared ‘That in some cases the Judges were above an Act of Parliament’ (Rushworth, ii. 364). See my article to appear in E.H.R., vol. lxxvii.

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opposition when they maintained that, whatever the normal constitu¬ tional rights of the subject might be, the king could not govern if he were not allowed to encroach on them in time of emergency. And yet, what if the king abused his powers? Of course, if the king’s powers were as much a constitutional matter as the subject’s property, the two might co-exist without conflict. So Sir William Jones argued in Hampden’s case. Admitting that ‘the fundamental laws of the king¬ dom have settled a property in the goods in the subject that, without their consent, this cannot be taken from them’, yet at the same time the power to levy ship money was a lawful prerogative of the king, and being lawful he maintained that ‘this does not trench upon the property of the subject’.1 But it was hardly possible to swallow this in an atmosphere so poisoned with mutual suspicion and mistrust as that of 1637. We must admit that Hampden might justifiably main¬ tain that since ship money was being converted by repetition into a regular tax, its levy could no longer be treated as a question of emer¬ gency powers, and that if unlimited emergency powers were once conceded to the king, all the rights and liberties of the subject would be in jeopardy. There could be only two practicable escapes from this predicament. One would have been the acceptance of a definite writ¬ ten constitution, which would leave no room for dispute about the boundary between the rights of the subject and the powers of the government. In this case fundamental law, instead of being something vague and uncertain, would have acquired authority and definition. The other, which ultimately came about, but only after bloodshed, experiment, and revolution, was to accept the principle of sovereignty, at the expense of fundamental law, but to place it in the hands of a responsible and representative parliament. In the meantime neither of these escapes was open, the second because it involved ideas which as yet were not understood, and would have been unacceptable even if they were. The first was to be tried before long, but the need for it was not yet appreciated, because each side so firmly believed in its own interpretation of the constitution that it failed to recognize that the other side was equally sincere. It was only when each side came to realize that what it believed to be so definite was actually so in¬ definite that the other side could use its own ideas and terminology against it, that the unsatisfactoriness of the existing position was fully understood. This was not till the Long Parliament had been in session for some time—not completely till after the Civil Wars. But the 1 S.T. iii. 1184.

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arguments in Hampden’s case already anticipated the positions that then came to be taken up. Hampden’s stand for the fundamental rights of property was met by the crown lawyers’ stand for the equally funda¬ mental rights of the government, rights which were so intrinsically inviolable, that even an act of parliament purporting to curtail them would be void,1 and this was the position the king and the royalists continued to maintain when the Long Parliament was making frankly revolutionary demands. . Before we leave Hampden’s case we may note one further point, and that is that one of the prosecuting counsel. Sir Edward Crawley, quoted Commines and Bodin in support of the king’s right to levy money in time of danger, remarking that these ‘wrote not according to the law of any one kingdom, but according to the law of reason’.2 Bodin’s influence in England has already been noticed,3 but here again we have a significant anticipation of future development. Before many years had passed the dispute about fundamental law was no longer to be a question of rival interpretations of a supposedly ancient and indigenous English constitution; encouraged perhaps (if en¬ couragement were needed) by the lawyers’ own identification of com¬ mon law with the law of reason, pamphleteers and politicians were soon to appeal, in the name of fundamental law, to general principles, whether of reason, or nature, or divine will, or public safety, or equality, or indeed whatever cause the writers had at heart. For a time the Commons were content to reiterate their previous contentions. When the king at last summoned the Short Parliament, all Waller asked was that the Commons should ‘give new force to the many laws which have been hitherto made for the maintaining of our rights and privileges, and endeavour to restore this nation to its fundamental and vital liberties, the property of our goods and the freedom of our persons’.4 At first the programme of the Long Parlia¬ ment was similar. A series of acts were passed5 depriving the king of those prerogative powers which were most objectionable in the eyes 1 How such acts would become or be made void Davenport and Finch did not explain, but presumably they expected the judges to pronounce them to be so. They may perhaps be credited with a genuine anticipation of the notion of judicial review. 2 S.T. iii. 1084. 3 Above, p. 48, n. 1. 4 22 Apr. 1640: S.T. iii. 1257; Rushworth, iii. 1141. 5 The validity of all the acts which had received the royal assent was never questioned, even after the Restoration, despite the arguments of Davenport and Finch that such acts would be void. It was otherwise, of course, with measures which passed both Houses (or one House only) but had not been assented to by the king.

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of the Commons, particularly such as were felt to threaten the liberty and property of the subject, or might enable the king to be financially independent of parliament. And impeachments were levelled against royal servants and ministers, Strafford and Laud notably, but others as well, including Sir Robert Berkeley, who had figured so promin¬ ently in Hampden’s case. In all these the familiar charges were re¬ peated, apparently without further reflection about their meaning. They had ‘traitorously and wickedly endeavoured to subvert the fun¬ damental laws and established government of the realm of England; and instead thereof, to introduce an arbitrary and tyrannical govern¬ ment against law’.1 The Protestation, passed on 3 May 1641, shortly before the attainder of Strafford, contained identical phraseology,2 and when, in December of the same year, the Commons drew up the long list of grievances against the king’s government known as the Grand Remonstrance, they said once more: ‘The root of all this mischief we find to be a malignant and pernicious design of subverting the funda¬ mental laws and principles of government, upon which the religion and justice of this kingdom are firmly established.’3 Such constant harping on the fundamental laws, combined with consistent refusal to explain what was meant by them, not unnaturally encouraged the king and his supporters to pursue the arguments put forward on his behalf by the prosecution in Hampden’s case. On 23 January 1641 the king, in a speech to parliament, expressed his mis¬ givings about the legislation proposed by the Long Parliament. His prerogatives were just as ‘fundamental’ as the rights claimed by par¬ liament,4 and it was on this ground that he protested against the 1 Articles of Impeachment of Sir R. Berkeley (1640), S.T. iii. 1283. Cf. above, p. 1. Falkland, who at this time had not yet become a royalist, made a violent attack on the judges. They had given the king bad advice, he declared, and were even more to blame than Strafford. Finch, the Lord Keeper, came in for special mention because he had ‘been a solicitor for an abominable judge¬ ment’ (i.e. in favour of ship money), and had ‘declared that the power of Parlia¬ ment cannot take away that power they have given to the King’ (The Journal of Sir Simonds d’Ewes (Long Parliament), ed. W. Notestein (Yale, 1923), p. 117, n. 28). In Falkland’s opinion, evidently, fundamental law limited royal power, but not the power of parliament. 2 Gardiner, Const. Docts., p. 155. 3 Ibid., p. 206. Religion appears as a new ingredient in fundamental law. Later on in the Grand Remonstrance newly made canons were said to ‘contain in them many matters contrary to the king’s prerogative, to the fundamental Ews and statutes of the realm, to the property and liberty of the subject’ (ibid., * Strafford made the same point at his trial: the royal prerogative was just as much part of the fundamental laws of the land as the property of the subject; for if the propriety of the subject, as it is, . . . be the second, undoubtedly the

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Triennial Bill, which provided machinery for the automatic sum¬ moning of a parliament at stated intervals in case the king omitted to issue the necessary writs. ‘It trenched upon the fundamental preroga¬ tives of his crown, and he could not in his honour allow it, or transfer that royal power of his into the hands of sheriffs or constables.’ He likewise tried to stand out against the ‘root and branch’ proposal to abolish episcopacy. ‘He desired reformation’, he said, ‘not altera¬ tion. They [sc. the bishops] had long continued, and were so interested and conjoined with and unto the very fundamental laws of the realm as he took himself bound to preserve them. And they had for so many years enjoyed voice and place in Parliament as they could not be dispossessed of it.’1 He made a similar answer to the Petition accom¬ panying the Grand Remonstrance, on 23 December 1641. ‘For de¬ priving of the Bishops of their votes in Parliament, we would have you consider that their right is grounded upon the fundamental law of the kingdom and constitution of Parliament.’2 Here the king was on weak ground. He might have complained that parliament was treating him harshly in taking advantage of his financial difficulties to extort from him the royal assent to legislation so distasteful, or so contrary to his conscience, but there were no valid legal grounds for distinguishing between one kind of legislation and another, and deny¬ ing the validity of a statute because it affected the composition of parliament itself, or the status of a particular class of men. If legisla¬ tion could break the church’s allegiance to Rome, dissolve abbeys, and turn the abbots out of parliament, it could do the same to bishops. Historians are generally agreed that the attempted arrest of the five members was a serious blunder on the king’s part, and did much to alienate sympathy from him and spoil a case which latterly had been much strengthened in the eyes of many by the progressively intransi¬ gent demands of the majority in the House of Commons. Legally, nevertheless, if the fundamental laws meant, as presumably they did, what was traditional and established in the constitution as distinct from radical or revolutionary innovations, the charge which was to Prerogative of the Crown is the first Table of that fundamental law’ (Rushworth, viii. 181). Pym’s speech at Strafford’s trial (ibid., pp. 661 ff.) consisted largely of a eulogy of the law, which, he said, ‘is the boundary, the measure, betwixt the king’s prerogative and the people’s liberty, . . . the safeguard, the custody of all private interest’. It was therefore wicked of Strafford to en¬ deavour to subvert the law and aim at arbitrary power. Strafford, of course, denied that his policy involved any violation of the law. 1 D’Ewes’ Journal (ed. Notestein), p. 280. 2 Gardiner, Const. Docts., p. 234.

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be preferred against them was a shrewd blow at the House on its own ground. ‘They have traitorously endeavoured to subvert the funda¬ mental laws and government of the kingdom of England’, the pro¬ posed impeachment ran, ‘to deprive the King of his regal power, and to place in subjects an arbitrary and tyrannical power over the lives, liberties and estates of His Majesty’s liege people.’1 The Commons ignored the implications of this, however, and simply declared (17 January 1642) that the king’s proceedings against the five members were ‘against the fundamental liberties of the subject and the rights of Parliament’,2 and when (if we may run ahead for the moment) seven years later they erected a ‘Court of Justice’ to try the king, the grounds they alleged repeated the standard phraseology about the fundamental laws and arbitrary government, as in the trials of Strafford and the rest of the king’s supporters. It is worth noticing, however, that the actual charge against the king was somewhat more specific. He was guilty, according to this, of a wicked design to erect and uphold in himself an unlimited and tyran¬ nical power to rule according to his will, and to overthrow the rights and liberties of the people, yea to take away and make void the foundations thereof, and of all redress and remedy of misgovernment, which by the fundamental constitutions of this kingdom were reserved on the people’s behalf in the right and power of frequent and successive Parliaments, or national meetings in Council.3

Here was something new and portentous. Fundamental law, it seems, had come to mean the claim of parliament to govern, or at any rate to check misgovernment, because it represented the nation, and the development of this claim will be the subject of our next chapter. Confronted with this demand, which, however phrased, was implicitly revolutionary, the royalists could justly say that it was they who stood for the ancient constitution, and parliament for arbitrary power. This was the king’s plea in the statement of his reasons for declining to recognize the jurisdiction of the so-called High Court of Justice. ‘How can any free born subject of England call life or anything he possesseth his own’, he asked, ‘if power without right daily make new and abrogate the old fundamental laws of the land?’ On what law did the court base its proceedings? It must be either an old or a new law: ‘if old, shew it; if new, tell what authority, grounded by the funda1 Gardiner, Const. Docts., p. 236. 2 Ibid., p. 238. 3 Ibid., p. 372. The same wording was repeated in the sentence pronounced on 27 Jan. 1649 (ibid., p. 377).

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mental laws of the land, hath made it, and when’. His enemies, he concluded, ‘have supposed my power hath totally changed the ancient government’, but the reverse was the truth, and if he had taken up arms it was only ‘to defend the fundamental laws of this kingdom’.1 Each side believed that power must be based on right, but the parlia¬ mentarians had learnt to invoke the name of the nation, or the people. The right of the people, it was argued, was a ‘natural’ right, and there¬ fore more truly fundamental than anything based merely on tradition or prescription. 1 Ibid., pp. 374, 375.

CHAPTER VI

PARLIAMENTARY SOVEREIGNTY Up to the end of 1641 the appeal to fundamental law was still osten¬ sibly defensive. Parliament charged Strafford and others of the king’s supporters with an endeavour (which they equated with treason) to subvert the fundamental laws, and to introduce instead an arbitrary and tyrannical power. The king’s supporters replied with the charge that the five members were guilty of a traitorous design to subvert the fundamental laws and to place arbitrary and tyrannical power in the hands of subjects. We might conclude, from the possibility of such a reply, that ‘fundamental laws’ was a meaningless phrase to which both sides paid lip-service, but which bore no relation to the facts, and served only to cloak the naked contest for power, which the royalists at any rate had perceived to be the real objective of the Commons. This, however, would be a hasty over-simplification of the issue. The king and the royalists had indeed become alive to the fact that the Commons’ policy amounted to a claim to exercise the royal power themselves, but the path by which the Commons approached this objective was remarkably indirect. They never claimed it openly, but all the time purported to be defending the ancient and traditional con¬ stitution. It would be a mistake, however, to conclude that they were deliberately and hypocritically concealing their real motives behind an elaborate smoke-screen. It would probably be truer, and fairer to their integrity, if less flattering to their perspicacity, to conclude that they so firmly believed in the reality of the ancient and traditional sanctity of the rights of liberty and property, which constituted the essence of what they called the fundamental laws, and were so firmly convinced that this sanctity was threatened by the king, whereas power in their own hands could never be a threat to it (for after all it was their own liberty and property for which they were concerned), that they saw nothing incongruous in continuing to speak in terms of defending the ancient constitution while in reality they were engaged in destroying it. Such an attitude is further explained by the fact that while they recognized (and universally abhorred) the idea of arbitrary power, sovereignty (though in fact it was what they were grasping and were shortly going to exercise) was unfamiliar to them, and its nature was unrecognized. Before long Filmer and Hobbes proclaimed the

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universality of the principle of sovereignty, and openly identified it with arbitrary power, but in the eyes of the Commons arbitrary power connoted essentially personal power, or tyranny. Hence they could charge the king with it, but the idea that they might be charged with it themselves was inconceivable to them. The royalists had no such preconceived ideas to blind them to the realities of the situation. The demand made by parliament in November 1641 that, in view of the rebellion in Ireland, the king would be ‘graciously pleased to employ such counsellors and ministers as shall be approved by his Parliament’,1 has often, and rightly, been held to mark a crucial point in the history of the Long Parliament. Acceptance of such a demand would have amounted to abandonment by the king of all control of policy, and it led, in conjunction with a division of opinion over eccle¬ siastical questions, to the break-up of the unanimity of the Long Par¬ liament and the formation within it of a party of royal supporters who were no longer prepared to go along with the more radical members. This demand, however, though depriving the king of the substance of power, would not have affected the structure of the governmental machine, for executive functions would still have been performed by ministers chosen and appointed by the king, although his choice was no longer to be unfettered. It was not until the majority in the Com¬ mons abandoned any further attempt at co-operation with the king, and the prospect of civil war became imminent, in the spring of 1642, that they took the further crucial step of assuming to themselves the control of the militia, which, if the traditional constitution meant any¬ thing, was obviously a royal and not a parliamentary function. How did they manage to clothe such an unmistakably revolutionary de¬ mand in the language of respect for fundamental law? The effect, though possibly not the intention, of their policy was to read a new meaning into the familiar phraseology. This phraseology was so familiar, and yet so undefined, and they may have been so convinced of the justice of their cause, that they may even have believed, uncon¬ sciously perhaps, that whatever they thought right must necessarily be constitutional and in conformity with fundamental law.2 But if the 1 Gardiner, Const. Docts., p. 200. This was repeated in the Grand Remon¬ strance, ibid., p. 231. 2 The word ‘fundamental’ was always ready to spring into their minds at this time. In a Declaration they drew up on 17 Jan. 1642, indignantly describing the proceedings when the king attempted to arrest the five members, they stig¬ matized these events as being ‘against the fundamental liberties of the subject’, as well as a breach of the privileges of parliament (Gardiner, op. cit., p. 238). 5725

G

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language of their own pronouncements appears to indicate that they were hardly aware of its implications, others were more clear-sighted and did not hesitate to write plainly. In effect the Commons claimed that the public safety (as interpreted by themselves) was an overriding consideration, and that if the king failed to take the proper steps to secure this, it fell to parliament to do so instead. Furthermore, parliament was entitled, and indeed bound, to do so because it represented the nation. Two important new ideas were hereby introduced into the field of fundamental law, salus populi1 and the sovereignty of the people. The latter might be used to justify the sovereignty of parliament; but both could also lead, and did so before long, to a plea for the necessity of fundamental or ‘higher’ law, to curb the power of parliament in the overriding interests of the people. For the time being, however, such developments were repudiated by the Commons, whose language indicates that they still thought in terms of the old theory of the constitution, even though the march of events was rapidly making it obsolete. In March 1642, when the king refused to countenance the appointment of lords lieutenant of the counties by parliament, the Houses passed an ordinance putting the control of the militia in the hands of their nominees. An ordinance was simply a bill which had not received the royal assent, but for which parliament now claimed the force of a law. A lengthy dispute followed, in which the Houses defended and the king denied the legality of their claim. We must note that what they claimed was not that parliament was the supreme legislature, and that its will must therefore prevail, but that the judgement of parliament on a point of law was ‘in the eye of the law the King’s judgement in his highest Court, though the King in his person be neither present nor assenting thereunto’. Should the king refuse to join with them, ‘the two Houses of Parliament, being the supreme Court and highest Council of the Kingdom, were enabled by their own authority to provide for the repulsing of such imminent and evident danger’.2 The king had ‘un¬ truly suggested’ that parliament was introducing a ‘new law of their own making’. On the contrary, they asserted, their action was in 1 On salus populi see below, p. 99. In the Militia Ordinance they had referred to ‘a most dangerous and desperate design upon the House of Commons’, which they ascribed to ‘the bloody counsels of Papists and other ill-affected persons’, who had already raised a rebellion in Ireland and were likely to do the same in England, backed with forces from abroad’ (Gardiner, op. cit., p. 245).

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accordance with ‘the most ancient Law of this Kingdom, even that which is fundamental and essential to the constitution and subsistence of it’. This law, which, they declared, was ‘as old as the kingdom’, provided ‘that the kingdom may not be without a means to preserve itself’. They admitted that normally power was lodged in king and parliament together, but if the king failed to do his part they now claimed that parliament could ‘supply what shall be wanting on the part of the Prince’.1 A similar political theory appears in the declara¬ tion they published two or three weeks later to counteract the procla¬ mation which the king had recently issued, forbidding his subjects to obey the Militia Ordinance. According to this, ‘notwithstanding that His Majesty hath refused to give his consent to that Ordinance’, it ‘ought to be obeyed by the fundamental laws of this kingdom’. This was because there was ‘a power in the two Houses to provide for the safety of the Parliament and peace of the kingdom’, and this being the end for which the ordinance had been made, ‘being agreeable to the scope and purposes of the law’, it could not ‘in reason be adjudged to be contrary to it’. It was the king’s proclamation, rather, which parlia¬ ment declared to be ‘void in law, and of none effect; for that, by the constitution and policy of this kingdom, the King by his proclamation cannot declare the law contrary to the judgement and resolution of any of the inferior courts of justice, much less against the High Court of Parliament’. Parliament could with some show of plausibility argue that, al¬ though the king was acknowledged to be ‘the fountain of justice and protection’, yet ‘the acts of justice and protection are not exercised in his own person .. . but by his courts and . . . ministers, who must do their duty therein, though the King in his own person should forbid them’. Thus parliament, as a high court, could ‘adjudge and determine the rights and liberties of the kingdom’, and their actions had ‘the stamp of the royal authority, although His Majesty, seduced by evil counsel, do in his own person oppose and interrupt the same’. So far, parliament might explain its claim as a logical corollary of its tradi¬ tional role as a high court. Fundamental law meant the principles supposedly inherent in the English constitution, but if, as was now the case, they were in dispute, some organ was needed with authority to interpret them conclusively. In the light of later political experience we might think that judicial review was the obvious answer to this 1 Declaration of the Long Parliament, 19 May 1642, quoted in T. C. Pease, The Leveller Movement, p. 19.

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need, but it did not seem so then. At the moment, parliament was claiming for itself the right to interpret fundamental law, in virtue of being the king’s highest court; but this was bound to mean something more than judicial review in the strict sense (that is to say, review by a court of the laws made by a separate legislature), and indeed was incompatible with it, for parliament itself had legislative functions. Constitutionally, legislation required the co-operation of the king, to give the royal assent; but if parliament could act as a high court apart from the king, and even against his personal wishes, why should it not similarly act in its legislative capacity? The logical implication of such an argument would be the doctrine of parliamentary sovereignty, but this was a conclusion that the Houses did not explicitly draw, for they did not clearly distinguish between the judicial and the legislative sides of their functions. It is doubtful if they fully realized what their claim amounted to, yet they evidently felt that their actions were not adequately covered by the idea that they were interpreting the law as a high court, for they inserted the significant admission that the High Court of Parliament was ‘not only a court of judicature . .. ; but it is likewise a council, to provide for the necessities, prevent the imminent dangers, and preserve the public peace and safety of the kingdom, and to declare the King’s pleasure in those things as are requisite there¬ unto’.1 This certainly came very near a claim to sovereignty, and as such was really incompatible with the reiterated claim to be acting in con¬ formity with fundamental law, and it is not easy to explain why the Houses so insistently denied that they really meant what was logically implied by their demands.2 It may have been deliberate prevarication, because they judged it tactically imprudent to alienate public support by an overtly revolutionary policy. But I doubt if this is the real ex¬ planation, and I am inclined to think them short-sighted rather than wilfully deceitful, unfamiliar with the territory into which they were venturing, unwilling to abandon the time-honoured principles which had guided them hitherto, and therefore unable to believe that they were no longer acting in accordance with them. However that may be, it was not long before pamphleteers and other writers made it plain that nothing less than legislative sovereignty 1 Gardiner, op. cit., pp. 255-7. 2 For an acute appraisal of the inconsistency between parliament’s demands and its explanations of them see J. W. Allen, English Political Thought, 16031660, i. 387, 395 ff.

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was the real conclusion, if not the deliberate objective, of the policy of parliament. At the same time parliament continued to employ the familiar phraseology, but as the inconsistency between its actions and the traditional constitution became more glaring, talk of fundamental law and fundamental rights, combined with claims to provide for the safety of the realm, naturally led to discussions of the fundamentals of political association in general. Henry Parker, a barrister of Lincoln’s Inn, who became secretary to the parliamentary army, was one of the most outspoken of the numerous writers who thus had recourse to first principles in their championship of the cause of the Long Parliament. Fundamental law, he declared, ‘is such a one as is couched radically in Nature herself (and so becomes the very pin of law and society) and is written and enacted irrepealably in her Magna Charta, which we are not beholden to any sublunary power for, but belongs to us as we are living and sociable creatures’.1 This was his answer to the king’s claim to be a truer interpreter of fundamental law than parliament. His dignity was erected to preserve the Commonalty, the Commonalty was not created for his service.... This directs us then to the transcendent a-xurj of all Politiques, to the Paramount Law that shall give Law to all humane Laws whatsoever, and that is Salus Populi: the Law of Preroga¬ tive itself, it is subservient to this Law. . . . Neither can the right of con¬ quest be pleaded to acquit Princes of that which is due to the People as the Authors or Ends of all power; for mere force cannot alter the course of nature, nor frustrate the tenour of Law.2 Parker’s use of the adjective ‘paramount’ instead of ‘fundamental’ may indicate his awareness that he was abandoning the traditional ideas of fundamental law in favour of a more radical and less historic concept. It was presently to be applied by the Levellers to a written constitution designed to limit the sovereignty of the legislature in the interest of the overriding rights of the people, but this was a develop¬ ment which was yet to be evolved by actual experience of the exercise by parliament of arbitrary power. Though Parker thought of the 1 H Parker, Animadversions Animadverted (1642), quoted in M. A. Judson, ‘Henry Parker and the Theory of Parliamentary Sovereignty’, in Essays in History and Political Theory in Honor of Charles Howard Mcllwain, p. 155. For a further account of Parker see also W. K. Jordan, Men of Substance (Chicago, 1942), esp. pp. 140-78. 2 H. Parker, Observations upon some of his Majesty s late Answers ana Expresses (1642), p. 3; also printed in W. Haller, Tracts on Liberty (New York, 1934), i. 169.

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people as the source of power, he did not advocate popular as distinct from parliamentary sovereignty, but was content to identify the in¬ terest of the people with the cause of parliament. He concluded, there¬ fore, quite frankly, that ‘the sovereign power resides in both Houses of Parliament, the King having no negative voice’. According to Miss Judson, Parker was the first writer in English history to advance a theory of parliamentary sovereignty;1 but his importance in this respect should not be overstressed. Parker did not think of parliament as normally sovereign. ‘This power’, he wrote, ‘is not claimed as ordi¬ nary; nor to any purpose but to save the kingdom from ruin’. It was only in the exceptional circumstances of his day, when ‘public mis¬ chiefs’ could not be prevented by normal methods of government, that ‘any extraordinary course that is for that purpose the most effectual may justly be taken and executed by the most transcendent overruling Primum Mobile of all human Laws—if the King will not join with the people, the people may without disloyalty save themselves’. This was very different from the genuine doctrine of sovereignty enunciated by Hobbes, who clearly defined law in terms of the will of the legis¬ lator, or the doctrine of Filmer, who said that government everywhere and always involved arbitrary power. Parker, on the contrary, while he ascribed to parliament ‘an absolute indisputable power,... so that all the right of the King and people depends upon their pleasure’, still thought of this as a power of ‘declaring law’. He clearly stated that ‘Parliaments are bound by no precedents. Statutes are not binding to them, why then should precedents? Yet’, he continued, ‘there is no obligation stronger than the Justice and Honour of a Parliament.’2 It would not, I think, have occurred to him to say that parliament could do no wrong because, being sovereign, its will was law; rather, he stressed its duty to do right, even if this meant ignoring traditions and precedents. The king’s supporters were quick to perceive the revolutionary implications that lay behind the Commons’ new use of traditional phraseology, and a brisk controversy developed, in which the true meaning of fundamental law formed one of the central topics of discussion. The Rev. Dr. Henry Feme, one of the king’s chaplains, remarked that ‘for proving this power of resistance, there is much speech used about Fundamentals of this government, which because 1 Op. cit., pp. 138-67.

Observations upon some of his Majesty’s late Answers and Expresses, pp. 16, 45.

PARLIAMENTARY SOVEREIGNTY

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they lie low, and unseen by vulgar eyes, being not written laws, the people are easily made to believe they are such as they (that have power to build new Laws upon them) say they are’. In reality, he con¬ tinued, the authority of the three Estates1 is required, as for the making, so for the binding Declaration of Law; and everyone that can use his reason knows that the Fundamentals must needs be such as will bear the settled government of this Land, such as are not contra¬ dictory to the written established laws’. As far as it went, this was a sound line of argument: if there were such things as fundamental laws in the English constitution, they must be consistent with known and existing statute and common law. Unfortunately, this was a doubtful hypothesis, even though it was widely assumed, and in fact, as Dr. Feme perceived clearly enough, what the Commons now meant by fundamental law was something much more radical. ‘They that plead for Power of Resistance in the People, lay the first ground work of their fundamentals thus: Power is originally in and from the People, and if when by election they have intrusted a Prince with the Power he will not discharge his trust, then it falls to the people; or, as in this kingdom, to the two Houses of Parliament (the representative body of the people) to see to it; they may re-assume the power.’2 The ideas thus described by Feme are an interesting anticipation of what were to become commonplaces of radical and Whig opinion in the ensuing years—the ultimate sovereignty of the people, elective monarchy—the original contract, in effect—and the notion of political trusteeship and the forfeiture of office by a king who misgoverned, which was to be popularized by Locke and others in connexion with the Revolution of 1688. Ideas like these were by no means new or unheard of in England. They had been freely used in the political controversies in France and Scotland in the latter part of the sixteenth century, and had figured prominently in the treatises and pamphlets of numerous writers whose works were quite well known in England, 1 Here Feme seems to be adopting the erroneous (but common) opinion that the king was one of the estates. In this passage he was insisting on the necessity of the royal assent for effective legislation, but he also recognized that ‘by a fundamental constitution’ the concurrence of both Houses in co-ordination with the king was equally necessary (Conscience Satisfied that there is no Warrant for the Arms now taken up by Subjects (1643), p. 6). 2 H. Feme, The Resolving of Conscience. I quote the second edition (Ox¬ ford, 1643), p. 10. It will be noticed that (as we saw in connexion with Parker) there was no question yet of distinguishing between the people and parliament. Parliament was just assumed to represent and so to be equivalent to the people themselves.

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at any rate among scholars and lawyers.1 Even James I had referred to his coronation oath as a ‘paction’ with his people, and in his Table Talk Selden took a low view of the power and position of kings.2 But there was a great difference between expressing such sentiments in books and actually adopting them as a guide to practical politics. To Dr. Feme the idea that power comes from the people was a wicked heresy, for, as he proceeded to explain in the rest of his treatise, the real ‘original of power’ is God. And it was absurd for parliament to propound such wide and general assumptions, which, if applicable at all, would be applicable universally, as if they were the fundamentals of English government. If ‘power was everywhere from the people at first... this will serve no more for the power of resistance in England than in France or Turkie’; in reality, Dr. Feme concluded, this kind of fundamental ‘is such an one as upon it this government cannot be built, but confusion and anarchy may readily be raised’.3 Among the writers on the other side, who defended the parliamen¬ tary contentions, two are particularly worth our attention, Charles Herle and Philip Hunton, both of whom developed the thesis that the English monarchy was ‘mixed’, and that parliament could resist a king, by force of arms if necessary, if he abused his power. Herle pointed out that Ferae himself had admitted that the co-ordination of the three estates in parliament constituted ‘the Fundamentals of this Government’, and argued that if so none of the estates could be sub¬ ordinate; all must be equal. This was scarcely more than a verbal point, but as he went on he made an interesting effort really to come to grips with the meaning of fundamental law. Ordinarily, he admitted, ‘the government, by law its rule, unto safety its end, is ... betrusted to the King’, but should the king ‘fail or refuse, either to follow the rule law, or to its end safety, his co-ordinates in this mixture of the supreme power must according to their trust supply’. To a possible objection that ‘there is no written or fundamental law for this’ he replied that a written law must be ‘superstructive and not fundamental’. Written laws, he explained, that were not laws before written, are repealable and alterable, even while the government remains the same, fundamentals cannot; a founda¬ tion must not be stirred while the building stands.. . .4 If we would know 1 See Note Q, p. 228. 2 ‘A king is a thing men have made for their own sakes, for quietness’ sake’ (Prothero, Const. Docts., p. 412). 3 The Resolving of Conscience (2nd edn.), p. 11. 4 He adds that ‘Magna Charta, where most of these fundamentals are (at

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[he continued] what is meant by those fundamental laws of this kingdom, so much jeered at in this and other pamphlets: it is that original frame of this co-ordinate government of the three Estates in Parliament, consented to and contrived by the people in its first constitution, and since in every several reign confirmed both by mutual oaths between king and people and constant custom time (as we say) out of mind, which with us amounts to a law.1 Here was an interesting attempt, based on the assumption of an original contract, renewed and confirmed in successive coronationoaths (an assumption which closely anticipates the Whig arguments in the Convention of 1689), to effect a link between the radical claims of contemporary parliamentarians and the traditional ideas of an ancient parliamentary, constitutional monarchy, which royalists themselves accepted as fundamental law. Its weakness lay in that it provided no agreed solution to the crucial problem of the hour—must all the ‘co-ordinates’ co-operate, as the royalists said (probably more truly, but uselessly now, because in fact they disagreed), or, as parlia¬ ment said (more realistically perhaps, but warrantably only on a radical, not an historical interpretation of the constitution), could par¬ liament act alone if the king ‘misused his power’? To assert, as Herle did, that they could do so ‘because’ English government was mixed, was really no answer. The real practical reason was that otherwise there would be deadlock, for which the historic theory of the consti¬ tution provided no solution. Royalists might equally well say that ‘because’ king and parliament were co-ordinates they must act to¬ gether, but this amounted to accepting deadlock instead of govern¬ ment, and there was more practical sense in the extreme royalist doctrine that kings must never be resisted, however badly they be¬ haved. Who, after all, was to decide whether a king misused his power? And, for that matter, supposing (as many were shortly to complain) parliament misused its power? The solution that was to be suggested before long was a written constitution, but unless accom¬ panied by judicial review this was just as likely to lead to deadlock. Herle’s fundamentals, however, were specifically not written laws, yet he regarded them as unalterable and unrepealable. This simply ignored the question of sovereignty; and, in the event, it was only the least) implied, was law before ’twas written, and but there collected for easier conservation and use’. 1 [C. Herle], A Fuller Answer to a Treatise written by Dr. Feme (1642), pp. 3, 8.

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emergence and acceptance of parliamentary sovereignty which ulti¬ mately solved the potential deadlock implied in the notion of a government of fundamentally ‘co-ordinate’ elements. In this respect Parker, though less in accord with the historic tradition of the English constitution, was more clear-sighted than Herle. Professor Mcllwain has made us familiar with Philip Hunton’s political theory,1 so that there is no need here to discuss it in detail. Monarchy in general, Hunton argues, can be either absolute or limited, elective or successive, simple or mixed.2 For a monarch to be limited his power must be bounded ‘ab externo, not from the free determina¬ tion of his own will’, and ‘the sole means hereof is the consent and fundamental contract of a Nation of men’, so that the king’s power ‘can be no more nor other than is conveyed ... by such contract of subjection’.3 Similarly, in the case both of an hereditary and of an elective monarchy, there must be a ‘fundamental constitution’ em¬ bodying the rules by which the succession or the election to the throne is regulated.4 He proceeds to explain that it is not necessary that every limited monarchy should be mixed, but every mixed monarchy is limited, mixture implying that power is not concentrated in the sole hands of the monarch but shared by him with other organs of govern¬ ment (as in England the functions of government are shared between king, parliament, and the courts of law), and it is ‘the fundamental constitution of the state’ that regulates this division of powers and functions.5 Hunton proceeds to argue that ‘the sovereignty of our king is radically and fundamentally limited’6 in ‘five particulars’. First, the king’s ‘nomothetical’ power is limited, for he cannot make a law except with the concurrence of parliament. Secondly, in exercising his government (i.e. his executive functions) ‘there is confinement to the fundamental common laws and to the superstructive statute laws’.7 1 C. H. Mcllwain, ‘A Forgotten Worthy, Philip Hunton and the Sovereignty of the King in Parliament’, in 1 Politico (1934-5), pp. 243-73; reprinted in Constitutionalism and the Changing World, pp. 196-230. 2 Hunton’s work, A Treatise of Monarchy, first published in 1643, is in two parts: (1) concerning monarchy in general; (2) concerning monarchy in Eng¬ land. It contains frequent references to and arguments against Feme, who wrote a reply to it, and was answered by Hunton in A Vindication of the Treatise of Monarchy (1644). Hunton’s Treatise was twice reprinted in 1689, and Professor Mcllwain has pointed out the close resemblance between his theory and that of Locke. 3 P. Hunton, A Treatise of Monarchy, p. 12. 4 Ibid., p. 19. 3 Ibid., pp. 26, 27. 6 Ibid., pp. 31 ff. 7 We need not interpret this as evidence that common law was regarded as a body of law unalterable and unrepealable by any legislative process. It need

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Thirdly, justice must be administered through the recognized chan¬ nels; fourthly, the king cannot leave his crown to whom he pleases, for his successor is designated by fundamental law; lastly, there are limits to his power of levying taxes and impositions. Not only is the English monarchy thus ‘fundamentally limited’; there is also ‘a fundamental mixture’ in the English constitution, and on this Hunton bases an argument that the Lords and Commons may oppose and resist the will of the monarch if he exceeds his legal powers: ‘they should betray the very trust reposed in them by the fundamentals of the kingdom if they should not’, for such were the terms of the ‘public compact’ by which the king was set up.1 Hunton realized that the crucial question in such a political theory was where the legal power lay of finally judging, in case of dispute, whether parliament should take up arms against the king. ‘To demand which estate may challenge this power of final determination of funda¬ mental controversies arising betwixt them is to demand which of them shall be absolute.’2 Constitutional government would thus be en¬ dangered, and so the only answer he could give was that ‘if the non¬ decision be tolerable, it must remain undecided, while the principle of legal decision is thus divided,. .. and then every person must aid that part which in his best reason and judgement stands for the public good’.3 The treatise concludes with suggestions for reconciliation, which, it must be admitted, were unlikely to be heeded now that civil war had actually broken out. It is not surprising that Filmer de¬ nounced Hunton’s theory as equivalent to anarchy, and a critic may also object (as the Tories did when the Whigs argued on the same lines in 1689) that to identify fundamental law with a supposed original contract was to enter the realm of fiction. In spite of this, a number of the points Hunton made regarding the implications of limited or mixed monarchy were incontrovertible, and the picture he drew of the English constitution as he saw it in his own day was remarkably life¬ like. After all, the English monarchy undoubtedly was limited and mixed, there was no definite legal authority to decide disputes arising within the constituent elements of the government, and, in an age which had not yet recognized the principle of sovereignty (and its implication that whatever organ possessed sovereignty could legally imply no more than belief in the fundamental character of the principles in¬ herent in common law (e.g. the sanctity of private property and personal liberty) as discussed above, pp. 23, 54, 62. 1 Ibid., pp. 44, 45. 2 Ibid., p. 69. 3 Ibid., p. 73.

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alter the constitution itself), the structure of government could plaus¬ ibly be called fundamental. It was indeed important that something should be accepted and preserved as such, for what else could save the country in the struggle for mastery that now threatened? Hobbes’s and Filmer’s answer was to be sovereign power, for mixed monarchy meant anarchy and could mean nothing else; but acceptance of their conclusion would mean abandoning hope of liberty and constitutional government. Feme and Herle maintained their controversy in a succession of pamphlets, which need not detain us much longer, for their arguments degenerated, as such arguments were apt to do, into mere verbal quibbling. On the whole. Feme probably got the better of his ad¬ versary,1 for he was historically on firm ground when he remarked that Herle’s fundamentals, such as ‘a contrivement of the people when they made the first king, a reservation of power to supply upon the king’s refusal, and the like’, were merely ‘the airy conceptions of his own phancy. ... It is a known and written law’, he continued, ‘that declares the king supreme head of the body politique, also that de¬ clares him the only supreme governor in this realm; can the funda¬ mentals as this man lays them bear this superstructure, or rather consist with this fundamental thus openly declared and laid in law? So it is a known fundamental that the making of laws is in three estates ... and that it is in the king’s power to dissolve the court; can this’, he asked, ‘consist with the fundamentals of this man’s laying?’ If it were agreed by both sides, as apparently it was, that the ‘co¬ ordination’ of the three estates was a fundamental, Feme concluded, then the king’s position was as much fundamental as that of the Lords and Commons, and he could convict Herle out of his own mouth: ‘the king is not to be stirred out of his place so long as the government stands’, for Herle himself had stated that ‘foundations are not to be stirred as long as the building stands’.2 Such debating points, however cogent as indications that metaphors must not be taken literally, were of little practical effect, and J. W. Allen remarked that royalist critics of the parliamentary cause ‘were too easily content merely to point out the revolutionary character of 1 Or rather, his adversaries, for in A Reply unto Several Treatises pleading for the Arms now taken up by Subjects in the pretended Defence of Religion and Liberty (Oxford, 1643) he first replied to Hunton’s Treatise of Monarchy and secondly to Herle’s Reply (itself an answer to another pamphlet written against his Fuller Answer). 2 H. Feme, Conscience Satisfied, pp. 24, 26.

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the changes proposed by Parliament’, and failed ‘to meet the assertion implied in the attitude of the Parliamentarians, that what was needed was a radical change in the law of the constitution’.1 Short of abandon¬ ing his position, however (and incidentally changing his whole charac¬ ter), and accepting parliament’s conception of the restricted role to be played by the king, it is not easy to see what more effective attitude Charles I or his apologists could have adopted. They might, with Hobbes, have denied the validity of the whole concept of fundamental law, but Hobbes’s theories pleased nobody in the seventeenth century, and, after all, the Royalists (and their Tory successors, as Professor Feiling has pointed out2) had no more affection than the Parliamen¬ tarians for despotism, or autocratic monarchy. They agreed that the king should govern according to law, but the crux of the matter was that it was precisely over the interpretation of this law that the two sides had fallen apart and come to blows. In the end, Feme was im¬ pelled to adopt a position which approached that of the absolutists, with its corollary of non-resistance, for in effect he denied the par¬ liamentarian theory that English government was either mixed or limited; and while he admitted that the king could not ‘alter the frame of government or change the laws without the consent of the other estates in Parliament’, he thought it better to endure even the arbitrary and illegal acts of a monarch than to seek a remedy against them by civil war.3 These were very proper sentiments in a king’s chaplain, but they were unlikely to commend themselves to large numbers of his fellowsubjects, and it is interesting to compare with them the reasoned account of the constitution set forth by a moderate royalist lawyer. Sir Roger Twysden.4 Fie approves of monarchical government, but it should be ‘so tempered with democratical as however the greater part remains in one’—a mixed monarchy in fact, ‘yet it is with such a 1 J. W. Allen, English Political Thought, 1603-1660, i. 507. 2 K. G. Feiling, A History of the Tory Party, p. 32. 3 H. Feme, A Reply, p. 39. A genuinely limited or mixed monarchy, he added, does not ‘imply a forcible constraining power in subjects (as he [sc. Hunton] supposeth)... but only a legal restraining power,... and then it must be express in the constitution of the government, and in the covenant twixt the monarch and the people’. In maintaining that in the English constitution no such legal power was ‘express’ he was, of course, perfectly correct. 4 Certaine Considerations upon the Government of England (Camden Soc., 1849). Twysden had refused to pay ship money and was a member of the Short Parliament, but he became alienated from parliament and was subsequently imprisoned as a delinquent and had his estates confiscated.

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mixture as cannot extinguish the other’. It can then hardly fall into tyranny, yet it avoids the ills of popular government.1 After an histori¬ cal discussion of the meaning of the words ‘sovereign’, which evidence from medieval documents shows was used of the head of any institu¬ tion (for instance, the abbot of a monastery, who was addressed in a letter as ‘Right Reverend Sovereign and Lord’), and ‘supreme’, which could have many meanings, including that of the ‘majesty’ of a king, he quotes Bodin to the effect that no earthly power can be sovereign in the sense of absolutely arbitrary, ‘all kings being subject to the laws of God, nature, etc., and the several constitutions of the kingdom; as the French of the Salique law, the English that we call the law of the land, or the common law, the which are annexed and united to the crowns of England and France, as conditions with which they are received’.2 It is thus absurd to argue that if a king is ‘supreme’, his power must be unlimited, or to say that no people, ancient or modern, was ever governed by a limited or mixed monarchy. On the contrary, ‘all the Christian princes in Europe are more or less limited and mixed’. This is true of the emperor in Germany, and ‘of the French there is no question that it is limited according to the Salique law, and that in the government there is a mixture both of the king and of the princes of the blood; and yet the monarch there hath ever been esteemed more absolute than the English’. The Spanish monarchy (as Mariana showed) was also limited, and Aristotle had recommended ‘limiting kings by law’.3 From these general considerations the author passes to a sketch of English history, as a demonstration of his thesis that our monarchy has always been constitutional and limited.4 He stresses the impor¬ tance of Magna Carta, which since its confirmation by Henry III ‘was never doubted to be law; and in that it doth contain in effect no other than the ancient customs of the kingdom ... I may call it the founda¬ tion of our common law’.5 It is true that ‘William I came in by the sword, and his line have since enjoyed it hereditarily, yet they hold the crown after the same manner elective kings do, that is, have been so regulated by the laws and constitutions of the kingdom as such as are ‘ Op- Cit, p. 8. 2 Ibid., pp. 16, 17. 3 Ibid., pp. 18, 19. In this connexion he makes an interesting comment on Coke’s use of mstory, remarking that ‘the truth is, the law delivered by an historian is much differing from that comes from a lawyer, as declaring not only the fact, but the policy, reason, and matter of state in it, where the other resolves only how ’^,?t,00,c^. Wlt^ t^ie ^aw> and upon what point in that it was adjudged’ (p. 23) With this cf. pp. 6, 7, above. ^ 5 lblJd p 82.

3 It is worth noticing, however, that, not quite consistently, he seems to have thought that the capacity of parliament itself was limited in this respect. Though the parliament have very ample authority in making laws’, he remarked, ‘yet not so in interpreting of them made, that being left to the judges: and therefore the two Houses cannot question any man for his free¬ hold’ (p. 174). J

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By the fundamental law of this kingdom, by the general law of all nations, and the unanimous consent of all rational men in the world, written in every man’s heart with the pen of a diamond in capital letters, and a character so legible that he that runs may read, viz. That when any man is intrusted with the sword for the protection and preservation of the people, if this man shall employ it to their destruction, which was put into his hand for their safety, by the law of the land he becomes an enemy to that people and deserves the most exemplary and severe punishment that can be invented. And this is the first necessary fundamental law of every kingdom, which by intrinsical rules of government must preserve itself.

There was no need to express the law that kings who become tyrants must die; ‘it is so naturally implied’. Similarly we do not use to make laws for the preservation of nature; that a man should eat and drink, and buy himself clothes, and enjoy natural com¬ forts. . . . And as we are to defend ourselves naturally, without any written law, from hunger and cold, so from outward violence. Therefore, if a King would destroy a people, it is absurd and ridiculous to ask by what law he is to die. And this Law of Nature is the Law of God, written in the fleshly tables of men’s hearts; that . . . hath a prerogative right of power before any positive law whatsoever; and this law of nature is an undubitable legislative authority of itself, that hath a suspensive power over all human laws. . . . And by the law of England any act or agreement against the laws of God or nature is a mere nullity.1

These were indeed wide claims, and obviously might prove to be as damaging to parliament itself as to the king. For if fundamental law meant ‘that which is connatural with every man, and innate in his judgement and reason’,2 anyone’s interpretation of it might be as good as anyone else’s. Even before the end of the first Civil War, parliament was beginning to be criticized from the left as well as from the right, and in the general welter of theories and political experiments in the Interregnum fundamental law appeared in a variety of guises. 1 S.T. iv. 1032.

2 Ibid., p. 1033.

Additional Note (1961).

Miss C. C. Weston has recently argued (E.H.R. lxxv (1960), pp. 426-43) that the popularity of the idea of mixed monarchy, and the discussions by Feme, Herle, Hunton, and others, arose from its having been adopted by Charles I in his Answer to the Nineteen Propositions of June 1642. Mr. Hinton (ibid. p. 410) contrasts mixed monarchy, which he regards as the seventeenthcentury form of government by consent, with government limited by law, which the seventeenth century called ‘absolute monarchy’. But the constitu¬ tion defining the distribution of power in a mixed monarchy was often described as fundamental law, and was so called in the king’s Answer to the Nineteen Propositions (Rushworth, iv. 731). 5725

H

CHAPTER VII

PARLIAMENT’S CLAIMS RESISTED experience later made him shift his ground, in the early days of the Civil War one of the most thoroughgoing exponents of the parliamentary cause was William Prynne. In The Sovereign Power of Parliaments and Kingdoms, published in 1643, he constructed a long and very learned argument, illustrated with a wealth of historical detail from Greece, Rome, Israel, Judah, and more than a dozen other European and Asiatic countries, to prove, as against those who upheld ‘a divine, legal, unlimited absolute royal prerogative in the king’, that sovereign authority rested with parliament. The power of kings, according to Prynne, was ‘but the ministerial’, for they were ‘in truth but servants to, not absolute lords over their kingdoms, in whom the sovereign legislative power and authority resides’; therefore kings had ‘no absolute negative voice in the passing of bills of common right and justice, for the public good’; they ‘must and ought, by the laws of God and man, rather condescend to their Parliaments’ and kingdoms’ just requests, in assenting to necessary and wholesome laws’.1 In later parts of the book he defended, on similar grounds, ‘the lawfulness of the Parliament’s necessary, defensive war’, and its ‘Right and Interest in ordering the militia, forts, ships, magazines and great offices of the realm’. It is of interest to note that Prynne was aware of the implications of sovereignty, and was apparently prepared to press them to their logical conclusion in a virtual republicanism, reducing the king’s share in government to a mere formality. But history was a dubious base on which to rest such a markedly unhistorical claim for parliament. Prynne himself had referred to the law of God as well as human law, but if human law in England meant either common or statute law, parliamentarians in practice came to find it impossible to appeal simultaneously to both human and divine law. We have seen that ‘reason’ had long been supposed to be implicit in common law, and it was a short step, when the actual law of the land seemed to fail them, to fall back on reason, or nature, as on some higher principle, Though

1 W. Prynne, The Sovereign Power of Parliaments and Kingdoms (1643), Preface; pp. 39, 65, 77.

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and advocate a policy of bringing actual law into conformity with their interpretation of this. Such a policy could be fortified by political theory, with its age-old tradition of the superiority of natural to posi¬ tive law, and if more encouragement were needed, plenty of writers were at hand to argue that in a national emergency, or indeed at any time, salus populi must be suprema lex. This celebrated maxim, which occurs in Cicero,1 had been quoted by Bacon in his Essay Of Judicature, but he erroneously described it as the conclusion of the Twelve Tables.2 As we have seen, the Long Parliament invoked the principle it enshrined in their Declaration of 19 May 1642,3 Henry Parker in the same year appealed to it as a ‘paramount law’ overriding all human laws, including the royal pre¬ rogative,4 and we shall meet it again frequently.5 It was as indefinite in content as fundamental law itself, with which it came to be asso¬ ciated, and was susceptible of an even wider variety of interpretations. By the latter part of the seventeenth century it had become a common¬ place, and when Locke wrote his Two Treatises of Government he laid it down as a cardinal principle that just as ‘the first and funda¬ mental positive law of all commonwealths is the establishing of the legislative power’, so ‘the first and fundamental natural law, which is to govern even the legislative itself, is the preservation of the society’.6 One of the most remarkable instances of the use of Cicero’s maxim in support of the parliamentary cause is in an anonymous pamphlet, published in 1643, entitled Touching the Fundamentall Laws, or Politique Constitution of this Kingdom. The author no longer thinks of the fundamental laws simply in terms of the Englishman’s 1 De Legibus, hi. iii. 8, where it refers to the functions of the ideal consuls: ‘ollis salus populi suprema lex esto’. 2 The same error was made by W. Fulbeck, who in his Direction or Pre¬ parative to the Study of the Law (1600; ed. T. H. Stirling, 1829) called it ‘an aphorism amongst the laws of the 12 tables’. But Fulbeck proceeded to cite Cicero in support of the principle that ‘that deserveth not the name of a law which hath no relation to the public profit’ (p. 4). This is of interest as one of the earliest references to the maxim by an English author. On salus populi cf. the note in Life and Letters of Halifax (ed. H. C. Foxcroft), ii. 494. 3 Above, p. 83. 4 Above, p. 85. 3 Indirect allusions in English are frequent, besides direct quotations in Latin. Thus Ascham thought that oaths like the coronation-oath ‘as they are matters of state and government, so they are to be interpreted according to the tacit conditions and foundations of government, of which the preservation of the community is the chiefest’ (A. Ascham, A Discourse (1648), p. 66). 6 J. Locke, Second Treatise, § 134. See also § 158, and cf. below, p. 167, and Note W, p. 230. Salus populi was a favourite quotation with Algernon Sidney, misreading esto as est.

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traditional rights of property or personal liberty. The purpose of the fundamental laws, indeed, is to secure these rights, but they are now conceived of as definitely crystallized, as it were, into a constitution or frame of government. This, however, is not a written constitution, nor is it a compact between king and people. ‘Fundamental Laws’, the author writes, ‘are not (or at least need not be) any written agreement like meare-stones1 between king and people, the king himself being a part (not party) in those Laws, and the Commonwealth not being like a corporation created by charter, but creating itself.’ The fundamental laws, he explains, are ‘a settling of the laws of nature and common equity (by common consent) in such a form of polity and government as that they may be administered amongst us with honour and safety. For the first of which therefore we are governed by a king: and for the second by a Parliament, to oversee and take order that that honourable trust that is put into the hands of the king for the dignity of the kingdom be rightly executed and not abused to the alteration of the politique constitution’. ‘Fundamental laws’, he continues, ‘are not things of capitulation between king and people as if they were foreigners and strangers one to another’, but ‘things of constitution, creating such a relation, and giving such an existence and being, by an external polity, to king and subjects, as head and members, which constitution in the very being of it is a law held forth with more evidence and written in the very heart of the Republique, far firmlyer than can be by pen and paper.’ As they are not ‘extant in writing’, the king cannot bid members of parliament ‘produce those laws that fundamentally give them their being, privileges and power’,2 any more than parliament can make a similar request to the king. Though unwritten, however, the funda¬ mental laws are none the less real, ‘for they themselves are laws, yea the most supreme and fundamental law, giving law to the laws them¬ selves’. They are, in fact, ‘the received constitution or polity’. While the writer regards parliament as a representative body, he retains the idea that it is a court. The power of parliament, however, he explains, ‘is not like the power of inferior courts, that are springs of the Parliament, . . . this court being itself fundamental and para¬ mount,3 comprehending law and equity, and being intrusted by the whole for the whole, is not therefore to be circumscribed by any other 1 i.e. boundary-stones. Touching the Fundamental Laws, pp. 3-4. 3 Note the combination of these two epithets.

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laws which have their being from it, not it from them, but only by that law which at first gave it its being, to wit, salus populi'. Salus populi in itself, however, is not fundamental law; what is fundamental in English government, as the writer conceives it, is the association of the prin¬ ciple embodied in this maxim with that of popular self-determination (as expressed through representation). Such an association is equitable and just, and in accordance with natural law.1 In reply to a possible objection that ‘this discourse seems to make our government to be founded in equity, not in law, or upon that common rule of salus populi which is alike common to all nations as well as any’, thus making no difference between the government of England and that of other countries, he repeats that ‘the fundamental laws of England are nothing but the common laws of equity and nature reduced into a particular way of policy, which policy is the ground of our title to them and interest in them. For though it is true’, he continues, ‘that Nature hath invested all nations in an equal right to the laws of nature and equity by a common bounty’, yet the ‘models’ of government differ, and some nations are less fortunate or less skilful than the English.2 Farther on, the objection is mooted that parliament is ‘guilty of exercising an arbitrary power, if their proceedings be not regulated by written laws, but by salus populi ’, but the author dismisses the idea of a parliament limited by written law as ‘both destructive and absurd’. Destructive, because parliament must have supreme and ‘uncircum¬ scribed’ power in order ‘to make laws and see them executed’ in accordance with the ‘exigency’ of salus populi, and a parliament ‘cir¬ cumscribed by written laws (which only is the property of inferior courts)’ would not be supreme. Absurd, ‘for the legislative power which gives laws is not to receive laws, saving from the nature and end of its own constitution’.3 Parliament’s action, he continues, cannot be stigmatized as arbitrary ‘when as in providing for public weal it observes not the letter of the law’. He gives several reasons for this. One is ‘the common consent that in the representative body (the Parliament) is given thereunto’, and another ‘the equitable power which is inherent in a parliament, and for publique good is to be acted above and against any particular statute or all of them’. Furthermore, if ‘the end of making that law, to wit, the publique preservation, is 1 Cf. op. cit., p. 7, where ‘the power of making laws’ is described as ‘nothing but equity reduced by common consent into policy’. 2 Ibid., p. 5. 3 Ibid., pp. 7-8.

102

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fulfilled in the breaking of it’, this is ‘lawful in a parliament that is chosen by the whole for the whole, and are themselves also of the body, though not in a king’.1 The conclusion finally is that the king has no right to a ‘negative voice’; his function is simply to assent to the laws enacted by parlia¬ ment, and ‘the issue is, whether it be fitter to trust the wisdom and integrity of our Parliament, or the will and pleasure of the King in this case of so great and publicke concernment. In a word, the King being made the fountain of justice and protection to his people by the funda¬ mental laws or constitution of this kingdom, he is therefore to give life to such acts and things as tend thereunto, which acts depend not on his pleasure’.2 One of the remarkable features of this important pamphlet is that (while it still writes of parliament as a court) it concentrates in effect on the legislative side of government, whereas one might have ex¬ pected more attention to the king’s executive functions. It is true that there is a kind of appendix on the control of the militia, but the main body of the argument is directed to asserting what amounts to the sovereignty of parliament and the reduction of the king to a merely honorific position. And while it purports to establish this parliamen¬ tary sovereignty through the historic idea of a fundamental ‘politique constitution’, it does so by the introduction of the notions of salus populi, representation, and natural law, the real effect of which is to give the old phraseology a new and revolutionary content. In fact, once the public safety, or reason, or equity, or natural law, or any abstract general principle had been accepted as an adequate excuse for what amounted to overriding or ignoring the historic legal powers of the monarchy, there was no limit to the ends for which it might be invoked. At the outbreak of the Civil War it provided a rallying ground for leaders of the parliamentary side when they took up arms against the king, and when the war was over, the successive acts of violence by which power came to be concentrated in the hands of a revolutionary minority found similar justification. One of the most prominent of the radical divines who came to the fore at this time was John Goodwin. He defended Pride’s Purge, by which the army got rid of its opponents in the Long Parliament, but it is interesting to notice that Goodwin tried to make out that in justi¬ fying a coup d’etat he was supported by ‘higher’ law, if not by the law 1 Touching the Fundamental Laws, pp. 8-9. 2 Ibid., pp. 10-11.

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103

as ordinarily understood. (It is worth noticing, incidentally, that he too spoke of parliament as a court.) If we estimate the lawfulness of that judicature [sc. parliament] by the conformity of their elections thereto to the laws of the land [he pleaded], the investiture of the army into that judicature ... is conforme unto a law of far greater authority than any one, yea than all the laws of the land put together; I mean, the law of nature, necessity; and of love to their country and nation: which being the law of God himself written in the fleshly tables of men’s hearts, hath an authoritative jurisdiction over all human laws and constitutions whatsoever. ... Yea, the truth is [he continued] that the law of necessity, by which the Army were constituted judges of those parliamentary delinquents we speak of, cannot (in pro¬ priety of speech) be denied to be one of the laws of the land, being the law of nature, and consequently the law of all lands and nations what¬ soever.1

He then proceeded to quote St. Thomas Aquinas and other authorities, in a rather casuistical defence of the right (or duty) of overriding ordinary laws in cases of necessity,2 and boldly asserted that ‘the laws of nature and common equity are the foundations of all laws (truly and properly so called), and whatsoever venditateth itself under the name or notion of a law, being built beside this foundation, wanteth the essence and true nature of a law, and so can be but equivocally such’.3 This was special pleading with a vengeance, and if it was typical of radical opinion in army circles, there would be parliamentarians as well as royalists who would protest at such abuse of the principle of legality in the interest of a violent faction. On the royalist side some of the most reasoned arguments for the case that the king and his supporters now stood for law and order, and the established, historic constitution, as against revolutionary innovation, came from the pen of the Welsh judge David Jenkins, whom the Long Parliament im¬ prisoned in the Tower. In Lex Terrae; or Laws of the Land (1647)4 he adopted, as we might expect, a markedly conservative tone, maintain¬ ing that not only judicial decisions but acts of parliament too were ‘but declarations of the common law and custom of the realm touch¬ ing royal government; and this law of royal government is a law 1 J. Goodwin, Right and Might Well Met (1648), pp. 15, 16. 2 Ibid., p. 22. 3 Ibid., p. 34. Goodwin’s pamphlet is also quoted in A. S. P. Woodhouse, Puritanism and Liberty, pp. 216, 219. 4 In Somers Tracts (ed. W. Scott), v. 98 ff.

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fundamental!’. It was fundamental, he proceeded to explain, because the kingdom had been governed by a royal sovereign from the earliest times of which there were historical records. The king’s powers were a matter of usage; and he quoted Plowden in support of the view that it was common usage that made ‘the common law of the land’, and that ‘usage so practised makes therein a fundamental law’.1 After a summary of the history of the monarchy from the time of the Norman Conquest, he singled out for adverse comment the act of the Long Parliament excluding the bishops from the House of Lords. ‘The fundamental law of the kingdom approves of them’, he declared, be¬ cause the bishops have sat in parliament from its earliest days, and ‘there have been bishops here ever since we were Christians’.2 Jenkins evidently did not approve (but I think he clearly grasped) the idea of legislative sovereignty, which the Long Parliament had by now begun to put into practice, for he expressly attacked Prynne’s thesis ‘that the parliament is above Magna Charta, and that the parlia¬ ment hath power over Magna Charta to repeal the same when there is cause’.3 As against the idea of sovereignty he strenuously upheld the idea of fundamental law, and in a form that approached more closely than hitherto the modern legal doctrine in which it is a definite alter¬ native to legislative sovereignty. This emerges clearly from his Dis¬ course touching the Inconveniences of a long-continued Parliament, published in the same year,4 in which he declared that ‘When an act of parliament is against common right or reason, or repugnant, or impossible to be performed, the common law shall control it, and adjudge this act to be void: they are the words of the law.’ They are, of course, the words of Coke’s famous judgement in Dr. Bonham’s case,5 and thence too came the opinion, which Jenkins also quoted, 1 Somers Tracts, v. 99. He also maintained that ‘by all our law books, and the fundamental constitution of the land, regal power is hereditary and not elective’(p. 112). 2 Ibid., p. 106. On these grounds ‘Smectymnuus’ took issue with Scultetus, who had opposed the abolition of episcopacy. Smectymnuus argued that ‘Laws are repealable, the Parliament having a nomotheticall power’, to which Scul¬ tetus replied that fundamental laws ‘are not subject to alteration upon personal abuses . Even if some bishops had abused their positions, the right course, he argued, was to remove the abuses rather than tamper with the constitution. But, Smectymnuus asked in reply, ‘how fitly is episcopal government made a piece of the fundamental laws of the kingdom?’ (Smectymnuus, Vindication of the Answer to the Humble Remonstrance (1641), p. 59, in reply to D. Abrahamus Scultetus, A Defence of the Humble Remonstrance (1641), p 46) 3 Somers Tracts, v. 113, 114. « 1647; ibid., pp. 123 ff.' 5 Above, p. 31. rr

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that ‘an act of parliament, that a man shall be judge in his own cause, is a void act’. Jenkins proceeded to argue that it was against common right and common reason for a parliament to be perpetual; it was also impossible, because a parliament would necessarily be dissolved at the death of the king; and it was repugnant, because ‘that which is but for a time cannot be affirmed to have continuance for ever’. Jenkins’s arguments from the Tower had little or no practical effect. When the Long Parliament cut off Charles I’s head they paid no heed to the common-law rule that parliament was automatically dissolved on the demise of the Crown.1 Nevertheless, his formulation of them is worth our attention, for it was now (and not when Coke himself pro¬ nounced it) that the judgement in Dr. Bonham’s case made its first appearance as a matter of public, political, and constitutional impor¬ tance. And the reason why it thus emerged at this time from the relative insignificance of private litigation is that it was only now that the doctrine of the legislative sovereignty of parliament had revealed the full enormity of its potentialities, and thus evoked a reformulation of conservative legal doctrine in a shape adapted to oppose it on its own ground. In Coke’s own time neither side in the nascent political contest had fully hardened its claims, for both believed, or at any rate professed to believe, in the existence of a traditional though undefined historical constitution. In its older form this was now proving in¬ adequate as a defence against the radical claims of parliament to sovereignty, and the traditional notions of fundamental law needed definition, or re-definition, in order to be in a position to challenge it. Among others who attacked the Rump and its actions on these lines was the cavalier poet John Cleveland. He quoted Coke and Hobart on the rights of the king as ‘sovereign governor. Lord supreme above all’, and on the duty of parliament, while ‘always full of honour’, to ‘steer by that which is Law and Custom of Parliament’. This meant that there were definite limits to what parliament could do. In particular, he maintained, the statute concerning ecclesiastical jurisdiction was ‘but declaratory of the common law’, and ‘if .. . the Parliament shall enact . . . against natural equity, as to constitute a man judge in his own case, such a statute is void in itself, and shall be controlled by the common law’.2 He went on to extol the law, by which ‘not only the 1 Jenkins, of course, was perfectly correct as to the law on this point, which remained in force until it was changed by acts of parliament in the eighteenth and nineteenth centuries. 1 J. Cleveland, Majestas Intemerata (1649), pp. 19-21, 38-40.

106

PARLIAMENT’S CLAIMS RESISTED

King’s authority but the People’s security of lands, livings and privi¬ leges . . . are preserved and maintained’, and to lament the fact that ‘the Magna Charta,... whose excellent temper, like a noble Cement, laid, as it were, the foundation of the Laws and politic constitutions of this kingdom; being by some books [he quotes various passages from Coke’s Institutes] reputed so sacred, that no new law can infringe it, is torn by the same lawless Anarchy.. .’d Such a plea, however, was of dubious validity at the best of times, and obviously ineffective as a check on the triumphant sovereignty of parliament—a sovereignty so triumphant, in fact, that it defeated all efforts (short of Cromwell’s use of force) to check it, or, after the Inter¬ regnum, to restore a replica of the traditional balanced constitution. It was possibly in unconscious recognition of the weakness of his case on strictly legal grounds, or possibly because the revolutionaries them¬ selves were appealing, over the head of the law, to ‘higher’ principles, that Cleveland brought in God and Nature to reinforce his argument. Even so he tried to clothe them in the garments of everyday legality, and quoted Calvin’s case to the effect that ‘the law of nature is part of the law of England’.1 2 Such a generalization from a very special case carried little conviction in itself, but he proceeded to urge that ‘as God and Nature is one to all, so the Law of God and Nature is one to all, and by this Law of Nature is the faith and obedience of the subject due unto his sovereign. . . . The very Law of Nature never was nor could be altered or changed: it is certainly therefore true that laws natural are immutable, and faith and obedience due by those laws cannot be changed or taken away’.3 Nature, however, was a dangerous weapon for a royalist to use, for, as we shall see, it was apt to work more effectively on the opposite side. It had already been appealed to by Samuel Rutherford, replying to the query of an imaginary royalist, ‘Who ... shall be judge betwixt the king and the people, when the people allege that the king is a tyrant?’ He answered: ‘There is a court of necessity, no less than a court of justice: and the fundamental laws must then speak, and it is with the people in this extremity as if they had no ruler. ... As the scriptures in all fundamentals are clear and expone themselves,’ he continued, ‘... so all laws of men in their fundamentals, which are the law of nature and of nations, are clear.’ In other words, the people 1 J. Cleveland, op. cit., pp. 102, 111. 2 Ibid., p. 94. 3 Ibid., p. 95.

PARLIAMENT’S CLAIMS RESISTED

107

had reverted to a state of nature, and were free to erect a fresh govern¬ ment to suit themselves.1 One ‘William Ball, of Barkham, Esquire’ composed The Power of Kings Discussed: or an Examen of the Fundamental Constitution of the Free-born People of England, in Answer to the Several Tenets of Mr. David Jenkins.2 The contents of the pamphlet are of no special interest, but it is worth noticing that while he challenged the royalist cause, declaring that ‘in England salus populi, not majestas imperii, is the chief object and end of government’, he did not interpret this as giving parliament carte blanche. On the contrary, he maintained that the parliament cannot . . . deliver over the free people of England to a foreign government, or to laws imposed by foreigners . . . ; nor can the parliament . . . deprive the free people of England of their innate rights of electing knights, citizens and burgesses for parliament. In these things, and things of the nature of these, tending to the fundamental rights and laws of the people, the parliament cannot nor ought not any way to violate the people or nation.3

The policy of the Long Parliament, in fact, was arousing hostility among the supporters of popular rights as well as on the royalist side, and they could not assume without question, as Parker had done,4 that parliamentary sovereignty would be a satisfactory solution for all their problems. One of the first to have misgivings about the trend of events was John Lilburne, whose England’s Birth-right Justified appeared in 1645.5 In the ensuing years he issued a constant stream of pamphlets, only a few of which can be noticed here, and became famous as the most persistent and undaunted champion of the liberties of the people. The stand he made, first against the Long Parliament, and later against Cromwell, gave inspiration to the whole political programme of the Leveller movement. On the title-page of England’s Birth-right Justified he referred to ‘divers queries, observations and grievances of the People, declaring this Parliament’s present proceedings to be directly contrary to those fundamental Principles whereby their actions at first were justifiable against the King’. At present, however, it was the policy rather than the powers of parliament that he questioned, for while he pleaded that 1 S. Rutherford, Lex Rex (1644), § xxiv, quoted in A. S. P. Woodhouse, Puritanism and Liberty, p. 210. 1 1649; printed in Somers Tracts (ed. W. Scott), v. 132 ff. 3 Ibid., p. 139. 4 Above, p. 86. 3 Reproduced in W. Haller, Tracts on Liberty (New York, 1934), iii. 257 ff.

108

PARLIAMENT’S CLAIMS RESISTED

laws should be executed ‘according to their equity and reason’,1 with¬ out which even ‘the legal and mixt Monarchy is the greatest Tyranny’,2 he did not deny (indeed, he said, ‘it is confessed by all rational men’) ‘that the Parliament hath a power to annul a law and to make a new law, and to declare a law’. The point he insisted on was that known laws in force and unrepealed by them are a Rule (so long as they so remain) for all the Commons of England whereby to walk. . . . And though by their legislative power they have authority to make new laws, yet no freeman of England is to take notice (or can he) of what they intend till they declare it, neither can they, as is conceived, justly punish any man for walking closely to the known and declared law, though it cross some pretended privilege of theirs, remaining only in their own breasts-Yea, take away the declared, unrepealed Law, and then where is Meum and Tuum, and Liberty and Property?3

Members of parliament were bound by the existing laws as much as ordinary people. God intended no man to be lawless, and he did not believe that ‘the Commonwealth, when they chose the Parliament, gave them a lawless unlimited power, and at their pleasure to walk contrary to their own laws and ordinances before they have repealed them’.4 Other prominent Levellers complained in similar terms, and were evidently on the verge of denying the omnicompetence of parliament in the name of an inviolable, fundamental law. According to William Walwyn, ‘Most Parliament men are to learn what is the just power of a Parliament, what the Parliament may do, and what the Parliament (itself) may not do.’ Many people were ignorant on this point, even ‘very good men’, for they affirm that a Parliament, being once chosen, have power over all our lives, estates and liberties, to dispose of them at their pleasure whether for our good or hurt. All’s one (say they) we have trusted them, and they are bound by no rules, nor bounded by any limits, but whatsoever they shall ordain, binds all the people, it’s past all dispute, they are accountable to none, they are above Magna Charta and all laws whatsoever, and there is no pleading of anything against them.

Parliamentary sovereignty, it seems, did not lack advocates but it was not yet an incontrovertible dogma, for, Walwyn continued, ‘others 1 Cf.

above, p. 19.

2

* Ibid., p. 261. Cf. with this Clarke’s remarks in the Putney debates,’ below, ‘

'

4 John Lilburne, op. cit., p. 264.

PARLIAMENT’S CLAIMS RESISTED

109

there are (as good, wise and judicious men) who affirm that a parlia¬ mentary authority is a power intrusted by the people (that chose them) for their good, safety and freedom; and therefore that a Parliament cannot justly do anything to make the people less safe or free than they found them’. He went on to refer to the inadequacy of Magna Carta as a safeguard (what England really needed was a new charter, founded not on precedents but on reason and equity), but he repeated his conviction that ‘the parliament ought to preserve you in the free¬ dom and liberties contained in Magna Charta at the least’.1 Walwyn’s use of words like ‘just’ and ‘right’ suggests that, as was so common in the seventeenth century, the limits he envisaged to the powers of parliament were as much a question of ethics as of law strictly so called in a modern sense. Ethics and law, in fact, found a union in the concept of natural law,2 and this was confirmed by the metaphor of trusteeship, which was in constant use at this time as a safeguard of constitutional rule against tyranny or arbitrary power. Thus another Leveller, Richard Overton, in a pamphlet addressed to the members of the House of Commons, bade them remember that this was only a power of trust (which is ever revokable, and cannot be otherwise) and to be imployed to no other end than our own well-being. Nor did we choose you to continue our trusts longer than the known established constitution of this common-wealth will justly permit, and that could be but for one year at the most: for by our law a Parliament is to be called once every year, and oftener (if need be), as ye well know. We are your Principals, and you our Agents; it is a truth which you cannot but acknowledge. For if you or any other shall assume or exercise any power that is not derived from our trust and choice thereunto, that power is no less than usurpation and an oppression.3

The refusal of the Long Parliament to agree to its own dissolution, which ultimately provoked the wrath of Oliver Cromwell, and the demand for annual, or at any rate biennial parliaments, which figured in a number of the paper constitutional schemes of this period, partly no doubt, because of the Long Parliament’s obstinate clinging to power, are well-known features of the history of the years following the conclusion of the Civil War. Overton, however, was drawing a 1 W. Walwyn, England’s Lamentable Slavery (1645), in Haller, op. cit. iii. 311 ff. The passages quoted above are on pp. 313-15. Cf. D. M. Wolfe, Leveller Manifestoes of the Puritan Revolution (New York, 1944), p. 6. 2 Cf. above, pp. 22, 45. 3 R. Overton, A Remonstrance of Many Thousand Citizens (1646), in Haller, op. cit. iii. 353 ff.; also quoted in D. M. Wolfe, op. cit., p. 124.

no

PARLIAMENT’S CLAIMS RESISTED

long bow when he claimed that annual parliaments were a provision of the existing law. In fact, he showed little affection for the laws of England, which, he declared, ‘are unworthy a free people, and deserve from first to last to be considered, and seriously debated, and reduced to agreement with common equity and right reason, which ought to be the form and life of every government’. Lawyers like Coke used to argue that English law as it stood was the embodiment of reason, but Overton wanted something more radical.1 He even sneered at ‘Magna Charta itself, being but a beggarly thing, containing many marks of intolerable bondage; and the laws that have been made since by par¬ liaments have in very many particulars made our government much more oppressive and intolerable’.2 Lilburne, however, continued to pin his faith to historic legal rights, as embodied especially in Magna Carta and the Petition of Right, rather than appeal over the head of existing political institutions to abstract principles of nature, reason, or public safety.3 The People’s Prerogative and Privileges asserted and vindicated (against all Tyranny whatsoever) by Law and Reason, which he compiled (while still ‘pre¬ rogative prisoner in the Tower of London’) in 1647, he described as ‘a collection of the Marrow and Soul of Magna Charta and of all the most principal statutes made ever since to this present year’.4 Two years later (1649), when he published The Legal Fundamental Liber¬ ties of the People of England, he accused the Rump of being more tyrannical than the late king, but the keynote of his theme was still the saving quality of English rather than natural law. After reminding members of their oaths ‘to maintain the fundamental laws of the land and the liberties of the people’, he remarked that ‘the Law Books do shew that a Parliament (which in its own institution is excellent good Physick, but never was intended, nor safely can be used for Diet, because it is unlimited and arbitrary) was called and held sometimes twice a year before the Conquest’. The idea that the government of Anglo-Saxon England had been free and parliamentary was a widespread illusion among seventeenth1 See Note R, p. 228. 2 See Note S, p. 228. Yet in Londons Liberties in Chains Discovered (1646) he declared that the Fundamental Law of the Land is the perfection of reason, consisting of lawful and reasonable customs, received and approved by the people. . . . But [he added] only such as are agreeable to the Law Eternall and Naturall’ (quoted in D. M. Wolfe, op. cit., p. 12). 4 Lilburne’s authorship of this pamphlet has been questioned: see F. Thomp¬ son, Magna Carta, p. 370. 4

PARLIAMENT’S CLAIMS RESISTED

111

century radical politicians, and Lilburne’s history was no worse than that of his contemporaries when he went on to refer to the ‘mutual compact’ which ‘the Bastard Norman Conqueror’ made ‘with the people or their representatives over whom he was to rule’.1 What may interest us particularly is that Lilburne then proceeded to follow Jenkins in quoting Coke’s judgement in Bonham’s case (together with Hobart and other authorities) in support of the view that not only ‘Reason and Nature itself’ but the law of England set limits to the capacity of parliament.2 Thus Royalist and Leveller agreed in erecting Coke’s famous words into a doctrine of fundamental law, to confront the assumption of arbitrary power by the Long Parliament. Parlia¬ ment, of course, did not lack defenders, and it was indeed easy to point out flaws and vaguenesses in the whole idea of fundamentals. A Presbyterian writer, for example, John Bellamy, who had charged the Independents with attributing supreme power to the Commons and thereby threatening to overthrow the ancient constitution of King, Lords, and Commons, was answered by an Independent pamphleteer, John Price, who openly supported the claim of the Commons to supremacy. What mean you by fundamental? [he asked]. You say the King, Lords and Commons are the three Estates, of which the fundamental constitu¬ tion of this kingdom is made up, are there three fundamentals? I confess I have not understood so much: I ever thought there had been but one, and that I took to be the Commons.. .. First, because I ever thought that the Commons made the King, and the King made the Lords, and so the Commons were the prime foundation.3

It was rather quibbling, thus to ignore the well-known, if admittedly rather vague, tradition of an historic English constitution, and, import¬ ing a controversial political theory of the popular origin of power, to graft on to it a definition of fundamentals based on the etymology of the word. The moral, however, was clear. If the meaning of the word fundamental was uncertain, and the political doctrine it connoted could be challenged, the only sure method of safeguarding civil and 1 See Note T, p. 229. 2 ‘ When an Act of Parliament is against common right or reason, or repug¬ nant, or impossible to be performed or kept, the common law shall control it and adjudge this Act to be void', they are the words of the law (J. Lilburne, Legal Fundamental Liberties (2nd edn.), p. 55). Again like Jenkins, Lilburne

argued that the act perpetuating the Long Parliament fell under this principle. 3 John Price, The City-Remonstrance Remonstrated (1646), quoted in T. C. Pease, The Leveller Movement, p. 124.

112

PARLIAMENT’S CLAIMS RESISTED

religious liberty was to use a new word and, abandoning the merely historic and prescriptive, make a fresh start with a definite written constitution, whose meaning should be unmistakable. Though all their efforts in the end proved abortive, it was on these lines that members of Cromwell’s army made their most notable contribution to English constitutional history. At first, these views were put forward by the ‘Agitators’, who represented the Levelling ideas prevalent in certain regiments in the summer and autumn of 1647, but in course of time the council of officers came round to a similar plan. The Levellers believed in parlia¬ mentary institutions, but experience had taught them that parliaments must be controlled: in particular, clear provision must be made for periodical elections at fixed intervals. This was essential to the people’s freedom; ‘without it they are slaves, the nature of the legislative power being arbitrary’. This was one of the outstanding points in the mani¬ festo called The Case of the Army Truly Stated, issued by the Agi¬ tators (it appears that John Wildman was the chief author) in October 1647. ‘Parliaments rightly constituted’, we read, ‘are the foundation of the hopes of right and freedom to the people’, but ‘the people have been prevented of parliaments, though many positive laws have been made for a constant succession of parliaments’. Therefore, it must ‘be positively and resolvedly insisted upon, that a law paramount be made, enacting it to be unalterable by Parliaments} that the people shall of course meet without warrants or writs once in every two years upon an appointed day in their respective counties, for the election of their representers in Parliament’.1 2 It may surprise us that the authors of this manifesto, if they knew that the nature of legislative power was to be arbitrary, should have thought a mere enactment sufficient to protect ‘a law paramount’ from alteration. Bacon knew better than this, but so for that matter did the 1 My italics. 2 D. M. Wolfe, Leveller Manifestoes, pp. 211, 212; also quoted in A. S. P. Woodhouse, Puritanism and Liberty, p. 433. Though in the Putney debates the Agitators found themselves at loggerheads with Ireton, they had in fact borrowed several of their points from him. A Representation of the Army (14 June 1647), which was drawn up by Ireton, referred to the House of Com¬ mons as being entrusted on the people’s behalf ... in that great and supreme power of the commonwealth (viz. the legislative power, with the power of final judgements) which, being in its nature so arbitrary, and in a manner unlimited unless in point of time, is most unfit and dangerous ... to be fixed in the persons of the same men during life or their own pleasure’ (quoted in A S P Woodhouse, op. cit., p. 406).

PARLIAMENT’S CLAIMS RESISTED

113

Levellers themselves, for in the Letter to the Freeborn People of Eng¬ land, which forms the conclusion of the first Agreement of the People,’ they stated that ‘if any shall inquire why we should desire to join in an Agreement with the people, to declare these to be our native rights, and not rather petition Parliament for them, the reason is evident. No Act of Parliament is, or can be, unalterable, and so cannot be sufficient security to save you or us harmless from what another Parliament may determine if it should be corrupted.’ The Agreement of the People, therefore, premising that the power of parliaments is inferior to the power of the people, from which it is derived, contains a list of matters specifically reserved, which parliament was to be incapable of touching. Though not actually so called, this was in effect a list of fundamental rights,1 2 and though its contents and arrangement varied somewhat in successive issues of the Agreement, the inclusion of such a list, with the implication that parliament was to be, pro tanto, a non¬ sovereign legislature, was a constant and distinctive feature of all these constitutional programmes.3 The Case of the Army Truly Stated, with the first Agreement of the People, formed the background to the celebrated debates in the coun¬ cil of the army in Putney parish church in October and November 1647.4 A deep cleavage was at once revealed between the radical and democratic aspirations of Leveller opinion, and the relatively con¬ servative views of the higher officers, notably of their ablest spokes¬ man, Ireton. Both sides in this dispute made frequent references to fundamental laws or fundamental rights, but they differed markedly in the meaning they attached to these phrases. To Ireton, who in¬ herited the parliamentary traditions of the pre-Leveller age, funda¬ mental connoted essentially what was historic and prescriptive. This, to his mind, was the guarantee of the security of private property, and he was alarmed by the equalitarianism of the Levellers, who demanded manhood suffrage in the name of natural law. Ireton regarded the safeguarding of property as one of the primary objects of government, and he therefore insisted on the retention of the historic principle that 1 Printed in D. M. Wolfe, op. cit., p. 230; A. S. P. Woodhouse, op. cit., p. 446. 2 They were claimed as ‘native rights’, which did not mean the ‘natural rights’ of men in general, but the historic, legal rights of Englishmen. Cf. below, pp. 123 ff. 3 For further particulars of the contents of the series of Agreements of the People see my ‘Historical Revision’ in 15 History, N.s. (1931), pp. 334 ff. 4 Clarke Papers (Camden Soc., 1891), i. 226 ff.; A. S. P. Woodhouse, op. cit., pp. 1 ff. 5725 I

114

PARLIAMENT’S CLAIMS RESISTED

the franchise should be confined to property-owners.1 As against this the Leveller Colonel Rainborough could find ‘no difference between gentlemen and poor men’, either ‘in the Law of Nature, nor in the Law of Nations’, and proclaimed his belief that ‘the foundation of all law lies in the people’.2 To Ireton, on the other hand, the law of nature was ‘no foundation for any man to enjoy anything’.3 Ireton more than once referred to the demand, which had been voiced in The Case of the Army Truly Stated, for ‘a law paramount’. He reiterated his adherence to ‘the most original, the most funda¬ mental civil constitution of this kingdom ... which is, above all, that constitution by which I have any property’, and, he asked, ‘if you will take away that and set up, as a thing paramount, whatever a man may claim by the law of nature’, what would become of property?4 ‘I think’, he added, ‘we ought to keep to that [sc. the existing constitu¬ tion], both because it is a civil constitution—it is the most funda¬ mental constitution we have—and [because] there is so much justice and reason and prudence [in it].’5 His final appeal was for security. Let us have above all, he urged, ‘a regard to safety—safety to our persons, safety to our estates, safety to our liberty. Let’s have that as the law paramount, and then let us regard [the] positive constitution as far as it can stand with safety to these.’6 Translated as safety first, however, salus populi was not an inspiring motto, and it was particu¬ larly unlikely to appeal to the radical-minded rank and file of Crom¬ well’s army when it so obviously meant safety for their higher officers and for property-owners in general. The ordinary private soldier, indeed, especially if he embraced Levelling opinions, might well feel that there was no security for him at all. This was the theme of the manifesto England’s Freedom, Souldiers’ Rights, issued on 14 December 1647, as an outcome of the abortive mutiny at Corkbush Field, which Cromwell had quelled by a show of force, a trooper named Arnold being shot. It complained of the treatment of one of the mutineers, William Thompson,7 who 1 Cf. A. S. P. Woodhouse, op. cit., p. 54, where Ireton refers to ‘what was originally the constitution of this kingdom, . . . that which is most radical and fundamental, and which if you take away, there is no man hath any land, any goods or any civil interest’. The principle that only property-owners were to be electors was ‘the most fundamental constitution of this kingdom, and that which if you do not allow, you allow none at all’. Cf. pp. 55, 57, 58. 2 Ibid., p. 56. 3 Ibid., p. 71. 4 Ibid., p. 60. Ibid., p. 70. 6 Ibid., p. 121. His brother James was shot in Burford churchyard after the Leveller rising in May 1649. William himself was also shot not long afterwards.

PARLIAMENT’S CLAIMS RESISTED

115

had been imprisoned and tried by martial law, as arbitrary tyranny, contrary to the Petition of Right, and ‘an absolute destruction of the very fundamental laws of England’. Cromwell and his officers, in fact, were behaving as unjustifiably as ‘the Parliament itself, which ‘neither by Act nor Ordinance can justly or warrantably destroy the funda¬ mental liberties and principles of the common law of England, it being a maxim in law and reason both, that all such Acts and Ordinances are ipso facto null and void in law, and bind not at all, but ought to be resisted and stood against to the death’.1 This was all very well as an appeal to bold spirits, but as a constitutional programme it was muddled, ignoring the fact that (however ‘unjust’ they might be) there were no legal means of nullifying acts of parliament. In this respect those who planned a written constitution were more clear-sighted. The Putney debates were inconclusive, and neither side succeeded in convincing the other. They only revealed the fact that a further rift had opened in the body politic. The clash between royalists and par¬ liamentarians had been followed by a dispute, within the parlia¬ mentary side, between the Houses themselves and their army, and now the army itself was in danger of being split in two. And all these sections had their own interpretation of what was fundamental. The point at issue within the army itself was clearly stated in the course of the debates by Captain Clarke, who professed his belief that the law of nature was ‘the ground of all constitutions. Yet really proper¬ ties are the foundation of constitutions’, he continued, ‘and not con¬ stitutions of property. For if so be there were no constitutions, yet the Law of Nature does give a principle for every man to have a property of what he has, or may have, which is not another man’s. This natural right of property is the ground of meum and tuum.’’2 This was a significant remark, and indeed the whole discussion reveals why it was that the Levellers could no longer be satisfied with the cause in which the parliamentary leaders had resisted Charles I in the Civil War. To men like Coke, or even Hampden, the fundamental rights of liberty and property were rooted in the common law and the his¬ toric constitution, but by now not only was parliament threatening to 1 Quoted in D. M. Wolfe, op. cit., pp. 249, 254. 2 Woodhouse, p. 75. Leveller speakers scored a point against Ireton when they argued that the rights of property were recognized by the law of God ( = the law of nature), because the eighth commandment forbade stealing. Ireton must be wrong, therefore, in thinking that property depended entirely on the retention of the historic constitution, and that its abolition would neces¬ sarily spell anarchy.

116

PARLIAMENT’S CLAIMS RESISTED

become more arbitrary than the king, but the attitude of officers like Ireton made it clear that common-law rights meant only the rights of the well-to-do. If it was a question of fundamentals, or foundations, the Levellers reflected, there was something more fundamental than the common law, which after all proved useless to them. Belief in a natural right of property need not necessarily involve democratic equalitarianism, as Locke’s political philosophy was later to show, but they were closely associated in the minds of the Levellers of the mid-seventeenth century, who can thus be regarded as pioneers in the revolutionary tradition.

CHAPTER VIII

THE INTERREGNUM After the establishment of the Commonwealth, left-wing thinkers

in the army and among the Levellers, still dissatisfied, continued to base their policy on the concept of natural law. Though patched up in the crisis of 1648, when the king and the Presbyterians had come to terms and the second Civil War had been fought, the rift in the army reopened. The manifesto entitled The Hunting of the Foxes from Triplow-Heath to Newmarket by Five Small Beagles (probably from the pen of Richard Overton) urged resistance against the ‘grandees’ (i.e. Cromwell and Ireton and the higher officers), who were accused of violating ‘the law of nature and nations’ by betraying the cause for which the army had fought. It was ‘upon these fundamentals of Nature and Reason’, according to this pamphlet, that the Netherlands had resisted the king of Spain, that the Scots had risen up in arms and invaded England, and that parliament itself had taken arms against the king. Even the Frondeurs in France were cited as combatants in the same cause.1 While the Levellers and others thus stood for their own version of fundamental law, Filmer and Hobbes were reiterating and elaborating the doctrine of absolute and unlimited sovereignty. We have already seen that a number of writers recognized the ‘arbitrariness’ of the legislative power of parliament, but they generally regarded this as a reason for keeping it in check. Filmer and Hobbes sounded a new note in not only accepting but even welcoming and encouraging legis¬ lative sovereignty. Filmer, it is true, advocated the sovereignty of an hereditary monarch, and Hobbes, while finding room in his doctrine 1 The Hunting of the Foxes (1649), in Somers Tracts, vi. 47. We may note, on the next page, another reference to the phrase ‘a law paramount’, in a criti¬ cism of The Heads of the Proposals (a constitutional scheme drawn up by Ireton, and sponsored by the officers, in the summer of 1647, before the issue of the Levellers’ Agreement of the People). It proposed to retain the monarchy, though with strictly limited powers, but to Overton this seemed ‘Regal Tyranny, seating the whole power and authority of this Nation fundamentally in the King’s will, making the same supreme, or a law paramount, to all determina¬ tions of Parliament’. This was a highly prejudiced view of what in fact had been a reasonable and moderate scheme, though it never stood a chance of finding acceptance.

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THE INTERREGNUM

for the sovereignty of an assembly, made it clear that he really pre¬ ferred monarchy to any other form of government. Their arguments about sovereignty, however, were applicable in principle to any legis¬ lature, but while the sovereignty of parliament was an established fact that had come to stay, many years were still to elapse before it was generally recognized and accepted as an element in English juris¬ prudence. In The Freeholder’s Grand Inquest (1648) Filmer threw doubts on the still current notion that parliament was a court, and emphasized rather its legislative power. According to Filmer, its judicial charac¬ ter ‘must be understood properly of the King sitting in the House of Peers in person; and but improperly of the Lords without him’. He then argued that even if parliament were a court, it still must have arbitrary power, because ‘every supreme court must have the supreme power, and the supreme power is always arbitrary; for that is arbitrary which hath no superior on earth to control it. The last appeal in all government must still be to an arbitrary power, or else appeals will be in infinitum, never at an end.’ This was half but not the whole truth, for a supreme court might quite well decide appeals in accordance with a fundamental law, in the interpretation of which it would indeed have the last word; but (however much judges might ‘make’ law) this was not equivalent to an overt power to amend or repeal the law. Filmer, however, made an abrupt transition from jurisdiction to legis¬ lation, remarking in the next sentence: ‘The legislative power is an arbitrary power, for they are termini convertibiles’, adding that ‘the main question in these days is, where this power legislative remains or is placed.’ He had no doubt of the answer: ‘We shall find the power of making laws rests solely in the King.’1 He never tired of reiterating his conviction of the inevitability and universality of sovereign power, and of the futility of imagining that it could be limited in any way. We do but flatter ourselves [he wrote] if we hope to be governed with¬ out an arbitrary power. No: we mistake; the question is not, whether there shall be an arbitrary power, but the only point is, who shall have that arbitrary power, whether one man or many? There never was, nor ever can be any people governed without a power of making laws, and every power of making laws must be arbitrary: for to make a law accord¬ ing to law is contradictio in adjecto.2 1 Printed in Patriarcha and other Works (ed. P. Laslett. Oxford, 1949), p. 157. 2 The Anarchy of a Limited or Mixed Monarchy (1648), ibid., p. 277. This

THE INTERREGNUM

119

This was again only half a truth, for subordinate legislatures can quite well make by-laws ‘according to law’, and all the laws made by a non¬ sovereign legislature, subject to fundamental law, partake in this respect of the nature of by-laws. Filmer, however, went on to call in question the whole notion of fundamental law. He was in a strong position when he pointed out the difficulty of stating exactly what the fundamental laws were, and he could challenge anyone who believed that ‘the common laws are the foundation, and the statute laws are superstructive’, to say that ‘there is any one branch or part of the common law, but that it may be taken away by an Act of Parliament: for many points of the common law (de facto) have, and (de jure) any point may be taken away. How can that be called fundamental’, he asked, ‘which hath and may be removed, and yet the statute laws stand firm and stable? It is contrary to the nature of a fundamental, for the building to stand when the foundation is taken away.’1 Com¬ mon law, he continued, ‘is generally acknowledged to be nothing else but common usage and custom, which by length of time only obtains authority’; also, ‘being unwritten, doubtful and difficult’, it ‘cannot but be an uncertain rule to govern by; which is against the nature of a rule, which is and ought to be certain’. He then tried to make out that if only common law was fundamental, ‘Magna Charta is excluded from being a fundamental law’ (this he evidently thought a potent argumentum ad hominem), and that if fundamental laws were the only constitutional checks, this would preclude ‘all other statutes from being limitations to monarchy’. He wound up by citing ‘the great modern politician Bodin’ in support of sovereignty as ‘an absolute power, not subject to any law’.2 These themes constantly recur in Filmer’s works. Replying to Milton’s apologia for the actions of the Long Parliament, he pointed out that ‘all sorts of popular government that can be invented cannot be one minute without an arbitrary power freed from all human laws’, because every government was necessarily like that. This being so, ‘what reason can be given why a royal government should not have the like freedom? If it be tyranny for one man to govern arbitrarily, why should it not be far greater tyranny for a multitude of men to tract was a rather belated reply to Hunton’s Treatise of Monarchy (cf. above, pp. 90 ff.). 1 Ibid., p. 297. The last point seems to be borrowed from Herle (above, p. 88). 2 Ibid., p. 304. He also quoted Bodin in The Necessity of the Absolute Power of All Kings (1648), ibid., p. 320.

120

THE INTERREGNUM

govern without being accountable or bound by laws?’ This was what the Levellers were asking, but Filmer concluded that it was impossible ‘for any government at all to be in the world without an arbitrary power: it is not power except it be arbitrary: a legislative power can¬ not be without being absolved from human laws’.1 Hobbes’s doctrine of sovereignty, and his definition of law as essentially a command, expressing the sovereign will of a political superior, are so well known that we need not dwell on them here. As a consequence, his attitude to the idea of fundamental law was essen¬ tially akin to Filmer’s, and he adhered to it to the end of his long life. ‘None can make a law’, he wrote in one of his latest works, ‘but he that hath the legislative power’, and he disputed Coke’s view that the common law was the embodiment of reason ‘fined and refined by an infinite number of grave and learned men’. Nobody is ‘born with the use of reason, yet all men may grow up to it as well as lawyers; and when they have applied their reason to the laws .. . may be as fit and capable of judicature as Sir Edward Coke himself, who whether he had more or less use of reason, was not thereby a judge, but because the King made him so’. English law, he concluded, was made not so much by a succession of judges as by a succession of kings.2 There is a characteristic passage in Leviathan where Hobbes, professing his inability to understand the meaning of fundamental law, propounded a new definition: ‘a fundamental law in every com¬ monwealth is that which being taken away, the commonwealth faileth and is utterly destroyed’.3 He adhered to the same line in Behemoth, another work of his old age, in which he set down his reflections on the history of the troubled years through which he had lived. This work, which is in the form of a dialogue, twice refers to the funda¬ mental laws. ‘B. What are those laws that are called fundamental? For I understand not how one law can be more fundamental than another, except only that law of nature that binds us all to obey him, whoever he be, whom lawfully and for our own safety we have pro¬ mised to obey; nor any other fundamental law to a king, but salus populi, the safety and well-being of his people.’ 1 Observations concerning the Original of Government: upon Mr. Milton against Salmasius (1652), ibid., p. 254. Filmer’s longest and most famous work, Patriarcha, though not published till 1680, was actually the first he wrote. It contained the same basic doctrine, particular aspects of which he then ela¬ borated in the shorter tracts cited above. T. Hobbes, Dialogue of the Common Law, in English Works (ed. W. Molesworth), vi. 14, 15. 3 Leviathan, c. 26. Cf. Note A, p. 224.

THE INTERREGNUM

121

This was apropos of the attainder of Strafford, and ‘A.’ replies that ‘This Parliament, in the use of their words, when they accused any man, never regarded the signification of them, but the weight they had to aggravate their accusation to the ignorant multitude’. ‘B.’ then asks what they meant by arbitrary government, and is told in reply that ‘the true meaning of the Parliament was, that not the King, but they themselves, should have the arbitrary government, not only of Eng¬ land, but of Ireland, and as it appeared by the event, of Scotland also’.1 Equally caustic was Hobbes’s comment on the Rump’s ‘public declaration, that they were fully resolved to maintain the fundamental laws of the nation, as to the preservation of the lives, liberties, and proprieties of the people’. This meant ‘nothing but to abuse the people. For the only fundamental law in every commonwealth, is to obey the laws from time to time, which he shall make to whom the people have given the supreme power. How likely then are they to uphold the fundamental laws, that had murdered him who was by themselves so often acknowledged for their lawful sovereign?’2 In spite of his solicitude for monarchy, and for Charles I in par¬ ticular, Hobbes found no more favour with the royalists than with the parliamentarians. His doctrine that the monarch’s powers were the outcome, not of divine hereditary right, but of a contract between his subjects, or else of successful acquisition by conquest, led to his being accused of supporting the usurper Cromwell, and a number of political treatises and pamphlets were published with the express purpose of refuting him. The criticisms they contained were often captious and superficial, and only served to reveal the failure of their authors to grasp the real significance of Hobbes’s meaning. They generally reiterated what we may call the orthodox theory of a balanced constitution and monarchy limited by law, in spite of the fact that, quite apart from Hobbes’s theories, it had in fact broken down. The Rev. George Lawson, for example, simply thought that Hobbes’s professed inability to understand the distinction between fundamental and other laws ‘doth argue his ignorance in Politicks’, and proceeded to repeat the now familiar commonplaces. Fundamental laws in every state are those which concern the constitu¬ tion; not fundamental, such as are made immediately to regulate the administration. The former are such as cannot be altered without taking asunder and disjointing the very frame and form of government; the latter may be altered, and yet the essential frame may stand. The former 1 English Works, vi. 248, 249.

2 Ibid. vi. 361.

122

THE INTERREGNUM

are the foundation of the state; the latter are but superstructions. The former determine the sovereign who he is, and what his power, and also define the bounds of the liberty and subjection of the subject. The Golden Bull is said to contain the fundamental laws of the German Empire; as the Salick or as some call it [the Gallick] of excluding females from suc¬ cession to the Crown, is said to be one of the fundamentals of France.1

This was all very well in theory, but in practice events had shown that the laws of the constitution were no more immune from alteration than any others. Lawson, no doubt, like many of his contemporaries, was shocked by the collapse of the historic constitution, but in effect all he did was to register a protest at its unpleasant consequences. Three years after the appearance of his reply to Hobbes he published a systematic treatise of political theory,2 in which he elaborated the same orthodox theory of a balanced constitution, resembling (in its basic principles, though not in style or method of exposition) the work of writers like Philip Hunton, or (later) John Locke. According to this theory, parliament was essentially non-sovereign: ‘A Parliament doth necessarily presuppose a form of government already agreed upon.... Therefore they cannot alter or take away the cause whereby they have their being, nor can they meddle with the fundamental laws of the constitution, which if it once cease, they cease to be a Parliament.’3 Lawson went on to consider what should happen in case the govern¬ ment were dissolved, while ‘the community yet remains united’, and concluded (in striking anticipation of the Whig version of the Revolu¬ tion of 1688) that the people might .‘make use of such an assembly as a Parliament, to alter the former government and constitute a new, but this they cannot do as a Parliament, but considered under another notion, as an immediate representative of a community, not of a commonwealth’.4 The fact was that, although it was attacked by writers like Filmer and Hobbes (and although we, looking back, may think we can discern the obvious lesson of events), contemporary Englishmen still cherished the traditional idea of a constitutional rule of law. Through1 G. Lawson, An Examination of the Political Part of Mr. Hobbs his Levia¬ than (1657), pp. 108, 109. 2 Politico Sacra et Civilis (1660). 3 Op. cit., p. 35. On p. 94 he stated (cf. the similar remarks of Bolingbroke, below, p. 186) that a parliament can do many and great things, but some things it cannot do, for it is limited not only by the laws of God but also by the laws of the constitution. 4 Ibid. The last distinction was presumably aimed at the Rump’s recent pretensions to sovereignty.

THE INTERREGNUM

123

out the troubles of the Interregnum it never lacked its champions, in spite of the fact that, on the one hand, ambitious or bigoted men clung to or grasped at opportunities of power, and on the other, dis¬ appointed or alarmed minorities abandoned the older-fashioned faith in the saving virtues of common law and the legal rights of English¬ men, and sought refuge in more general ideas, such as the law of reason or of nature, or natural rights. References to fundamental laws, and fundamental rights or liberties, recur therefore in undiminished frequency in pamphlets, speeches, and legal arguments throughout the Interregnum. John Lilburne appears to have been the author of an anonymous pamphlet, pub¬ lished in 1653, with the title An Hue and Cry after the Fundamental Liberties of England, in which he urged his readers to ‘repair to all suspected places . . . and there to make diligent search and enquiry after a cabinet of jewels of inestimable worth and value, which hath been purchased with the blood and treasure of our ancestors . . . , heretofore called and known by the Fundamental Laws and Liberties of England: part of which laws and native rights are contained in Magna Charta and the Petition of Right’. After pointing out that par¬ liaments, ‘that are legally called to the supreme trust, may betray their trust, and so degenerate into tyrants as well as kings’, he drew atten¬ tion (evidently thinking of his own imprisonment) to ‘one special pearl belonging to the said cabinet’, which bore the famous words ‘No free man shall be taken or imprisoned ... etc.’ and (as usual in the seven¬ teenth century) he identified ‘the judgement of his peers’ with trial by a jury of twelve sworn men of the neighbourhood.1 The Fundamental Laws and Liberties of England was also the title of another pamphlet published in the same year, in the name of ‘several peaceable persons of the City of London ... commonly called Levellers’.2 It was agreed by all, they said, ‘that the people of England are a free people, the sole original of their own authority’, managing their own public affairs ‘by their own elected Parliaments or Common Councils of England’. The authors disclaimed any intention ‘to tear up these foundations, to innovate or introduce any new constitution or frame of government’; they wished only to maintain, defend, and preserve the old, ‘freed from the encroachment of king, lords and priests’. What they evidently resented was the army’s assumption of a right to turn out and set up governments. 1 See Note U, p. 229. 2 July 1653; B.M., E. 705 (5).

124

THE INTERREGNUM

The wars being over we cannot look upon ourselves as a conquered people, to receive our laws and government at the hand of a conqueror, . .. the army being raised not against the people or for the subversion of their rights, but for the maintenance of the fundamental laws and liberties.... And therefore [they continued] we cannot deem it any crime to lay claim unto the fundamental laws and liberties of our dear and native country.1

This talk of fundamentals and disclaimer of radical intentions might suggest at first that their recent experiences had reduced the Levellers to the chastened frame of mind (widespread at the time of the Restora¬ tion) which yearned only for a return to the normal sanity of the fami¬ liar and traditional constitution. As we peruse the pamphlet, however, we find that their ‘fundamentals’ covered an extensive programme of no less than twenty-eight clauses, which, beginning harmlessly enough with a repudiation of arbitrary government, went on to demand annual parliaments, elective officers and magistrates (to hold office for one year only), juries to be judges of matter of law as well as of matter of fact, no coercion in religious matters, abolition of tithes ‘or other enforced maintenance’ for the clergy, preservation of the com¬ mon rights of the poor against enclosures and encroachments, aboli¬ tion of servile tenures and copyholds, abolition of all fees or charges for legal proceedings, no imprisonment for debt, no impressment for service in the wars, officers in the militia to be chosen by popular elec¬ tion, overseas trade to be open to all, with no monopolies, patents, &c., and various other highly controversial items, a number of which were repeated from earlier programmes such as the Agreements of the People. The last two clauses demanded that all statute laws, acts and ordinances of parliament, and all corrupt customs and practices, of what antiquity soever, contrary to these Funda¬ mentals of freedom, are to be holden for naught; [and] that the Grand Councils or Parliaments of England have not power to dimmish, violate or alter any of these Fundamentals; these being the just and lawful claim, the standing, unalterable liberties of the people. ... As for the claims of Kings, Lords and priests, though they challenge great antiquity in this Nation, yet they are no other than the Fundamentals of bondage and tyranny. Prerogative and supremacy, with that of unknown, unlimited Parliament privilege, being the very moths and caterpillars of the funda¬ mental laws and liberties of the free people of England.2

After quoting the Declaration of 14 June 1647, in which the army 1 Op. cit., pp. 1, 2.

2 Ibid., pp. 3-5.

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125

had protested that they were ‘not a mere mercenary army, hired to serve any arbitrary power, but called forth ... to the defence of their own and the people’s just and fundamental rights and liberties’, the authors of the pamphlet concluded by recording their ‘amazement... that any officer or soldier . . . should now question whether there be any fundamental laws or liberties or no? Yea, and affirm that two lines of them are not to be produced'. This, it appears, had been the answer they got when they delivered a petition on behalf of ‘Lieut.Col. John Lilburne (now prisoner in Newgate, as against the funda¬ mental laws of England, so against these vows of the army) whose liberty forthwith we claim and expect; as also the liberty of all others imprisoned contrary to these or any one of these fundamentals of common right’.1 Fundamental law was evidently an idea to conjure with in the seventeenth century. Although from time to time in various quarters its meaning was challenged by sceptics (among whom now, as it would seem, were the leaders of the army), it evoked a whole nexus of historic and respected associations, central among which were the liberty and property of the ordinary man. It was a bold step of the Levellers to seize the propaganda-value of the word fundamental, which only a few years ago the Royalists had been using, and apply it to their radical programme, at the same time claiming for it the character of an inviolable written constitution (reducing parliament to a definitely non-sovereign status), which some of their predecessors had characterized by the phrase ‘a law paramount’. This pamphlet seems to mark the point of widest divagation, even for these tumul¬ tuous years, from the well-trodden path we have been tracing in its course through English history. Other writers, notably the irrepres¬ sible William Prynne, purported to keep more closely to the familiar track, but his programme too contains some surprises. In the early years of the Civil War we found him arguing for the sovereignty of parliament, but he seems to have receded somewhat from the position to which he had then advanced, and in his Seasonable, Legal Vindica¬ tion and Chronological Collection of the Good Old Fundamental Liberties, Franchises, Rights, Laws of all English Freemen (their best Inheritance, Birthright, Security, against Arbitrary, Tyrannical and Egyptian Burdens . . . , &c.) he claimed to have ‘irrefragably evinced by Parliamentary Records, Proofs, Precedents, that we have such Fundamental Liberties, Franchises .. .’.2 1 Ibid., pp. 6, 7.

2 Published in 1654.

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THE INTERREGNUM

The pamphlet opens with an unconvincing argument from analogy (‘it is an universal received principle and experimental truth . . . that no natural structure, no artificial building, no civil or ecclesiastical corporation, realm, republic, government or society of men . . . can possibly be erected, supported, established, preserved or continued . . . without foundations’); and he does not advance beyond vague generalities when he tells us that those public laws, which establish, fence, fortify the fundamental con¬ stitutions, rights, liberties, privileges of any nation, kingdom, republic (essential to their being and subsistence as a free or happy people, against the invasions, underminings, encroachments of any tyrants, usurpers, oppressors or public enemies) are usually stiled fundamental laws; and have ever been reputed so sacred, inviolable, immutable, in all ages . . . that most nations, and our English ancestors above others, have freely chosen to hazard, yea lose their estates, lives in their just defence.

This, however (which is a fair specimen of his overloaded style), was only an opening flourish. His recent political experience had evidently made Prynne, like others, realize the danger of sovereign power (when wielded by his enemies instead of his friends), and he reverted to support of the old idea of fundamental laws. Now, after all our old and new . .. bloody, costly, dangerous contest and wars, for the maintenance of our good old fundamental liberties, laws, rights, privileges [he continued] I clearly behold, with grief of heart,... a strange monstrous generation of new tyrannical state hereticks sprung up amongst us, who are grown so desperately impudent as not only to write but publicly to assert in print (in books printed by authority even in capitals in the very title page) that the free men of England have no such unalter¬ able fundamental laws and liberties left them by their forefathers . . . , that neither Magna Charta nor the Petition of Right... are fundamental or unalterable, but that the state-physicians (or rather mountebanks) of our time ... may lay them quite aside.

This shaft was evidently aimed at the Cromwellians, who, according to Prynne, ‘having now attained to such a super-transcendent autho¬ rity , believed themselves entitled to ‘lay aside all parliaments and parliamentary ways, and appoint SOMETHING ELSE, as more season¬ able and proper to us’. In spite of the degeneracy of the people nowa¬ days, who would no longer fight, as their predecessors had done, to preserve their ‘ancient hereditary fundamental charters, laws, liberties, privileges’, but acquiesced in the rule of usurpers, Prynne had resolved to compile an account of ‘these ancient hereditary liberties . . . which

THE INTERREGNUM

127

our ancestors and ourselves have always hitherto reputed funda¬ mental, unalterable, inviolable upon any pretext, and have most eagerly contended for, with the prodigal expenditure of many millions of treasure’.1 Prynne was a tireless student of historical records, and his next fifty pages are packed with example after example, from Magna Carta down to the impeachments of Strafford and Laud, and still more recent occasions, when action had been taken or declarations made in the name of, or in defence of, the fundamental laws. Thus he would prove by historical evidence ‘that the kingdom and freemen of Eng¬ land have some hereditary just rights, liberties . . . etc. . . . properly called fundamental; and likewise a fundamental government, no ways to be altered, undermined, subverted . . . etc. . .. under pain of high treason’. We have already encountered a number of these in¬ stances, and they need not detain us longer. We may turn instead to Prynne’s second chapter,2 where he proceeds to give ‘a summary of the chiefest and most considerable of the fundamental laws’. He finds no less than ten of these, among them being such principles as no taxa¬ tion without common consent given ‘in a free and lawful parliament duly summoned and elected’, no arrest or imprisonment except for ‘some just and legal cause’, no denial of bail or ‘the benefit of an Habeas Corpus’, and no outlawry, exile, or condemnation ‘to any kind of corporal punishment, loss of life or member’, except by due process of law. These are recognizable amplifications of the tradi¬ tional fundamental rights of personal liberty and property, as also is a clause protecting all freemen of England from being ‘disinherited, disseised, dispossessed or deprived of any inheritance, freehold, liberty, custom, franchise, chattel, goods whatsoever without his own gift, grant or free consent; unless it be by lawful process, trial and judgement of his peers, or special grant by act of parliament’. This last phrase is significant, for it indicates that Prynne’s funda¬ mentals were not, after all, absolutely unalterable and inviolable. In fact, he still thought of parliament as sovereign; it was Cromwell’s usurpation he detested (whereas to Cromwell and the army it was first of all the unpurged Long Parliament, and later the Rump, which seemed arbitrary and tyrannical). Prynne’s hopes remained centred, 1 Prynne, op cit., pp. 1-5. 2 Ibid., pp. 54 ff. He concludes his treatise (pp. 58-60) by citing authorities for these, in statutes and the writings of lawyers and others (e.g. Fortescue, Hakewill, Coke’s Institutes, &c.). He also refers to his own Sovereign Power of Parliaments and Kingdoms.

128

THE INTERREGNUM

in fact, on a parliamentary regime, and he included similar saving clauses (‘unless it be by special grant and act of parliament’) in other items in his list of fundamentals. Several of these, we may note, were not historical at all, but simply ad hoc objections to the policy of the Commonwealth government.1 Prynne thus sketched out a scheme of government in the hands of a parliament which he was prepared to entrust with supreme power, in the confidence, presumably, that though it had the power to impugn them by legislation, it would normally respect men’s constitutional rights.2 But in compiling his list of fundamentals he was not entirely consistent. The sixth, for example, is on a different footing, and though less historic than some of the rest, it is more of the nature of a genuine fundamental in the modem sense, in that it prescribes a condition for parliamentary government itself: That parliaments ought to be duly summoned and held for the good and safety of the kingdom every year, or every three years at least, or so often as there is just occasion. That the election of all knights, citizens and burgesses . . . ought to be free. That all members of parliament . . . ought to be present and there freely to speak and vote according to their judgements and conscience, without any overawing guards to terrify them.

Prynne did not specify how he would enforce respect for this funda¬ mental, or for his seventh, which laid down ‘That neither the king nor any of his subjects of this kingdom of England may or ought to be summoned before any foreign powers or jurisdictions’. We have moved here from the sphere of law to that of the effective viability of a government, or (from another point of view) to that of political morality—the sphere where Locke was to invoke a people’s right to revolt, against either a domestic tyrant or a foreign oppressor. 1 Thus the ninth fundamental (‘No public war by land or sea ought to be made . . . against any foreign nation, or public truce or league entered into with foreign realms or states, . . . without . . . common advice and consent in Parliament’) has an obvious bearing on contemporary foreign policy. The tenth likewise was a contribution to current political controversy: ‘That the ancient honours, manors, lands, rents, revenues, inheritances ... of the Crown of England, originally settled thereon for the ease and exemption of the people from all kinds of taxes, . . . ought not to be sold, alienated, given away or granted from it to the prejudice of the Crown and burdening of the people.’ 2 Cf. Prynne’s fifth fundamental: ‘The old received government, laws, statutes, customs, privileges, courts of justice . . . ought not to be altered, repealed, suppressed, nor any new form . .. instituted or imposed . . . but only in and by the kingdom’s free and full consent in a lawful parliament, wherein the legislative power solely resides.’

THE INTERREGNUM

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Prynne’s vagueness here about the ultimate meaning of a fundamental was perhaps typical of his age.1 Oliver Cromwell himself, though a tyrant and usurper in the eyes of Prynne and other parliamentary republicans (not to mention the Levellers), was undoubtedly a constitutionalist at heart, and believed in the reality of fundamental laws. After his installation as Protector it was reported that his council sent to the judges to consider and deliver their opinions whether the three kingdoms, by the fundamental laws of the kingdom, could be governed by the power and authority that was incident to a Protector by the laws of the land. And Mr. Hales2 and most of the rest of the judges answered that the three kingdoms could not by the fundamental laws or by the constitution of the government of the three kingdoms be governed by a less power and authority than that due to the title or person of a King or Emperor.3

Considerations of the same kind were stressed by Cromwell’s legal advisers three years later, when they and others pressed him to assume the position and title of king. This proposal fell through because of opposition from his brother officers in the army, but in the meantime the notion of fundamentals played a prominent part in a well-known passage in one of his speeches to the first parliament of his protec¬ torate. This parliament evidently regarded itself as having inherited the mantle of the Long Parliament, and assumed constituent (or sovereign) powers, questioning and proposing to amend the Instru¬ ment of Government, which in Cromwell’s eyes was the written con¬ stitution to which it owed its existence, and under whose terms it must sit. Cromwell had not the least intention of holding office on condi¬ tions dictated by a parliamentary assembly, and on 12 September 1654 he summoned the members to the Painted Chamber, and told them plainly that ‘there are some things in the Establishment that are fundamental, and some things not so, but are circumstantial’.4 Funda¬ mentals ‘may not be parted with, but will (I trust) be delivered over to posterity, as being the fruits of our blood and travail. ... In every government’, he continued, ‘there must be somewhat fundamental, somewhat like a Magna Charta, that should be standing and be 1 See Note 2B, p. 231. 2 i.e. Sir Matthew Hale. 3 Letter to the Earl of Rochester, 7 Apr. 1654, in Nicholas Papers (Camden Soc., 1892), ii. 64. 4 The Writings and Speeches of Oliver Cromwell (ed. W. C. Abbott, Harvard, 1945), iii. 458 ff.; Speech III in Carlyle’s Letters and Speeches of Oliver Cromwell (ed. S. C. Lomas, London, 1904, ii. 381 ff.). 5725

K

130

THE INTERREGNUM

unalterable.’ First among the fundamentals Cromwell put ‘the govern¬ ment by a single person and a parliament’, and second the rule ‘that parliaments should not make themselves perpetual-Of what assur¬ ance is a law to prevent so great an evil’, he asked, ‘if it lie in one and the same legislator to unlaw it again?’ Liberty of conscience in religion was the third fundamental, and ‘another which I had forgotten, is the Militia; that’s judged a fundamental, if anything be so’. Cromwell’s fundamentals were evidently intended to exclude the possibility of parliamentary sovereignty, and in that sense resembled the modern meaning of the term: they were of the nature of a written constitution, as he indicated when he said of the first of them ‘it is the esse, it is constitutive’. Liberty of conscience, however, stood on a different footing; it was fundamental because it was ‘a natural right’. What about the militia? It was obviously of cardinal importance to Cromwell that he should not allow parliament to assume control of the armed forces, but this was neither ‘constitutive’ nor a natural right; it was just a question of political realism—of power, in fact. Though a revolutionary, and at times a sectarian visionary, Cromwell as a politician was in some ways old-fashioned, and one is at a loss to decide whether in talking about fundamentals he was, in a not wholly consistent way, exhibiting his attachment to an ancient constitutional tradition, or using it as a cloak to conceal his determination not to let go the essentials of his power. That even lawyers were uncertain at this time about the position and powers of parliament is plain from the proceedings in Streater’s case (1653). John Streater was imprisoned by order of the Long Par¬ liament for publishing seditious pamphlets, and applied for a writ of habeas corpus. He cited Magna Carta, Coke, and other authorities on the liberty of the subject, and pleaded that ‘Parliaments ever made laws, but the judges of the law judged by those laws. ... My lord’, he continued, ‘the inferior must give way to the superior’, and he argued that ‘an order of Parliament’ lacked the authority of an act of parlia¬ ment, for that there are not the debates, deliberations and three times of reading of an Order of Parliament as is at the establishing an Act of Parliament’. Sir Thomas Witherington, serjeant-at-law, replying for the government, contended that ‘an Order hath force as well as an Act, and the court accepted this. Rolle L.C.J. told Streater that ‘one must be above another, and the inferior must submit to the superior’. This was just what Streater himself had said, but the judges turned it against him, remarking that ‘in all justice, an inferior court cannot

THE INTERREGNUM

131

control what the Parliament does. If the Parliament should do one thing, and we do the contrary here, things would run round. We must submit to the legislative power, for if we should free you, and they commit you again; why here would be no end’. No doubt parliament’s de facto control of the executive at this time, combined with its reduction to a single chamber, so that its ‘ordin¬ ances’ obtained the force of law, encouraged acceptance of all its actions as manifestations of its sovereign authority. But even if Rolle was up to date in recognizing parliament as essentially a legislature, that does not excuse his refusal to heed Streater’s perfectly valid and legal distinction between an order of the House and a statute.1 He simply brushed aside the suggestion that ‘the parliament hath not power to alter the laws. Why,’ he exclaimed, ‘they have the legislative power, and may alter and order in such sort as they please; they may daily. If they find anything that is fit to be reformed they may alter and reform them, and make laws new.’ Nicholas J. was of the same opinion. ‘Now what the parliament does, we cannot dispute or judge of: their laws are to bind all people; and we are to believe they had cause for what they did. And for that you say an Order should be read three times; when I was a ParliamentMan, divers acts passed with one reading. In the next place, you did distinguish between an Order and an Act of Parliament. Why, their power is a law, and we cannot dispute any such thing.’ Such a judge¬ ment might well confirm thoughtful people’s conclusion that a sove¬ reign parliament might be as great a menace to liberty as a king who had claimed to be above the law. Yet this was not the end of Streater’s case. He returned to the charge, contending, with quotations from the Doctor and Student, that statutes and ordinances contrary to reason are not statutes at all, but ‘things void in law’. A parliament, he argued, ‘cannot overrule just proceedings in or by this Court, that are accord¬ ing to law and justice: but a Parliament may overrule proceedings in this Court that have error, or are not according to law and justice. My lord’, he added, ‘we understand parliaments to be legislative powers’, and for that reason they were ‘not to be executive: it is not for law 1 For all Streater knew, Rolle remarked, the order might have been read three times. ‘But if it was but once read, we cannot call it in question, but must conceive it was on just grounds.’ Here again the argument wavers, deviating from consideration of strict legality. If Streater had been imprisoned by order of the House for contempt of its privileges, the question whether the court could release him would have been more difficult and controversial, but this was not the charge. Cf. below, p. 177.

132

THE INTERREGNUM

makers to be Justices of the Peace.’ In response to this Mr. Attorney referred for a moment, in a rather confused way, to the old idea of parliament as a court, but he quickly dropped it and reiterated the principle of legislative supremacy. ‘My Lord, for aught we know, this is a judgement in Parliament. If it be not, yet it hath the same stamp that an act hath, that is to say, parliamentary authority.’ After this extraordinary display of muddled thinking it may or may not surprise us to find that in the end Streater was discharged of his imprisonment by the court.1 Similar uncertainty about the functions and powers of parliament was revealed in the interminable debates, in the second parliament of Cromwell’s protectorate (December 1656) on what was to be done with James Naylor, the misguided fanatic who had ridden into the city of Bristol in what seemed like a blasphemous imitation of Christ’s entry into Jerusalem on Palm Sunday. The Lord Chief Justice de¬ clared that Naylor’s behaviour had been ‘against the law of God and the fundamental law of the nation’, and a member (Onslow) reminded the House that in Strafford’s case they ‘proceeded upon the legislative power’, and suggested a debate whether to proceed ‘upon the legisla¬ tive or the judicatory way’. This is an interesting recognition of the principle that a bill of attainder was essentially legislative, but several members evidently had misgivings, and expressed preference for the other alternative, to ‘make a court for the trial of Naylor, that you may keep2 your legislative power and proceed judicially’. Lord Strick¬ land was for avoiding ‘recourse to your legislative power’ except on extraordinary occasions. ‘This House is a living law’, he said, ‘but make as little use of the legislative power as you can. It is a dangerous precedent to posterity.’ The question was raised whether parliament could judge except in cases where a law already existed, but Major Beake conceived ‘the judgement of Parliament is so sovereign, that it may declare that to be an offence which never was an offence before. The Roman Senate’, he declared, ‘did the like in cases of parricide.’ This confusing suggestion was not accepted, but others thought that Naylor could be punished for blasphemy under the law of nature, or, alternatively, the law of God as set forth in Leviticus,3 which provoked Whitelock to repudiate the notion that such a law was either perpetual or applicable in England. Other dubious questions were whether the judicial powers formerly belonging to the House of Lords had been transferred to the single house of which parliament now consisted, 1 S.T.v. 366-402.

2 i.e. not use.

3 Lev. xxiv. 16.

THE INTERREGNUM

133

and whether ‘inferior courts’ could discharge Naylor by a habeas corpus. A further argument against proceeding judicially was that it would involve allowing Naylor to be heard in his own defence, a course from which the House was averse. They were so shocked by Naylor’s conduct, and it was so notorious, that all they thought neces¬ sary was to call him before them and pronounce sentence on him unheard. The Master of the Rolls and Whitelock insisted that, even if parliament did not accord Naylor a trial and a hearing, they must resolve that they ‘adjudged’ that he should suffer such and such penal¬ ties: this would tie the hands of inferior courts. Lord Strickland again disagreed, and was for avoiding mere resolutions. ‘Let us put a dif¬ ference’, he urged, ‘between Acts of Parliament and votes and resolu¬ tions. I hope it is not intended that every motion in Parliament should be of equal authority with a law, that nobody should speak against it.’1 In the end it was decided not to let Naylor speak, and to use the word ‘adjudged’, and members passed on to debate the details of the sentence the unfortunate man was to undergo. Into these we need not follow them.2 The idea of fundamental law, particularly in what we may almost call the standard form of a written or unalterable constitution, but occasionally in other guises also, kept recurring amid the numerous suggestions for political settlement that poured from the press and from the mouths of speakers during the Protectorate, and in the troubled period between the death of Oliver Cromwell and the Restoration. Sir Henry Vane, an irreconcilable republican and oppo¬ nent of Oliver’s rule, wanted a general council, or convention of faithful, honest, discerning men, chosen for that purpose by the free consent of the whole body of adherents to this cause . . . , which convention is not properly to exercise the legislative power, but only to debate freely and agree upon the particulars that, by way of fundamental constitutions, shall be laid and inviolably observed as the conditions upon which the whole body so represented doth consent to cast itself into a civil and politick incor¬ poration.3

Here the idea of a fundamental constitution is combined with that of a social or original contract. This was a not infrequent combination 1 This was an interesting implied criticism of the line taken by the judges in Streater’s case. 2 Burton’s Diary (1828 edn.), i. 30-163 passim. 3 See Note V, p. 229.

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which we have already met more than once,1 and shall meet again after the Restoration. In the period we are now considering a notable example of it is in A Holy Commonwealth, by Richard Baxter, who referred to ‘that propriety in his life and faculties, and children, and estate, and honour’, which ‘each man hath’, and ‘no rulers may un¬ justly take from him’. This, according to Baxter, was ‘secured partly by the Law of Nature, partly by other Laws or Institutions of God, and partly by the specifying fundamental Contracts of the Common¬ wealth’.2 This was indeed a broad bottom, and many writers were content to invoke only the fundamental laws, without explicit reference, at any rate, to the laws of nature or of God. What they meant by the funda¬ mental laws was still as varied as ever, but this did not impair the faith they placed in them. According to Harrington, who in this respect kept close to tradition, ‘the fundamental laws are such as state what it is that a man may call his own, that is to say Property, and what be the means whereby a man may enjoy his own, that is to say, Protec¬ tion’. There were to be fundamental laws in the ideal commonwealth of Oceana, and they were, of course, the two cardinal rules, ‘the Agrarian and the Ballot’, on which its peculiar characteristics de¬ pended, ‘the Agrarian by the balance of dominion preserving equity in the Root; and the Ballot by an equal rotation conveying it unto the branch, or exercise of soverain power’.3 More practical were some of the references to fundamentals in the parliament summoned by Richard Cromwell. Colonel White, speak¬ ing on the bill for recognizing Richard as Protector, alluded once more to ‘that supreme law, salus populi, the law fundamental’, but proceeded to declare that ‘the law is a dead letter only, the difference is in the administration’. Yet he too thought that fundamentals, if not fundamental law, were vital, and he stressed the importance above all of the control of the militia. ‘I would have you settle this fundamental’, he said, ‘and all other fundamentals before you settle any single per¬ son; else you will leave them to danger and uncertainty. ... It is dangerous to swerve from the fundamentals’, he continued. ‘Witness the Major-Generals.’4 A few days later, fundamental law made another appearance in the same parliament in a different guise. The 1 Cf., for example, Herle and Hunton (above, pp. 89-91) and, a generation before them, David Owen (Note Q, p. 218). 2 R. Baxter, A Holy Commonwealth (1659), p. 69. 3 J. Harrington, Oceana, in Works (ed. J. Toland), p. 101. 4 Burton’s Diary, iii. 116 (7 Feb. 1659).

THE INTERREGNUM

135

Commons were discussing the Upper House, restored by the Humble Petition and Advice, which Nathaniel Bacon described as ‘not so much a new constitution, as reviving of the old with taking off the exorbitances’. He evidently thought of the traditional English con¬ stitution as something permanent and indestructible, superior even to the legislative power of parliament, though this must now have seemed an old-fashioned view. The question is [he asked] whether the constitution of the Parliament of England ought to be by two Houses? I think it ought from long continuance. It hath been so for many hundred years. Long usage hath so settled it, as Acts of Parliament cannot alter it. No Act of Parlia¬ ment can take it away; nor can the single person be taken away without special authority. This Government hath been interrupted, de facto, and put out of practice, but the right cannot be taken away. The people of England have a right to the single person and the two Houses of Parlia¬ ment, and it cannot be taken away without their consent.1

Richard Cromwell’s government was soon overthrown, and in the confusion of the next few months many people grasped at funda¬ mental law, in one form or another, in the hope of preserving what they valued. We can only glance at a few samples of these. Some thought that ‘it were strange to suppose, as divers men have suggested, that we have no such government or laws; that were the greatest imputation upon your honor .... that a war should be by you com¬ menced for preserving and vindicating the fundamental laws, and divers persons of high quality executed as traitors for subverting the fundamental laws, if no such laws be and the discourse of them but chimerical’. All that was necessary was to ‘give time, and make dili¬ gent search, what the ancient and fundamental government of England is’, for people who denied the existence of the fundamental laws must ‘have either not taken pains, nor used honest diligence to find them out; or are thoughtfull of erecting an interest against those good and equal laws’.2 We may note, however, that to make sure that no mistake was made, the author of this ‘Humble Advice’ then urged his readers ‘to cast your eye upon this Rule: That no Law be esteemed such, but what is of a large and diffusive extent, good for all, and at all times good’; and to assist in the search he had ‘taken the boldness to suggest unto you an essay at a model thereof, cleared from regal and lordly usurpations’. The programme he thereupon sketched out, 1 Ibid. 357 (19 Feb. 1659). 2 England’s Safety in the Law’s Supremacy (1659), p. 9.

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THE INTERREGNUM

which resembled the kind of republicanism found earlier in the Agree¬ ments of the People, comprised seven items of what may be called constitutional law, including provisions for annual single-chamber parliaments, which were to control the militia, peace and war, and the raising and spending of money. The power of making ‘occasional laws’ was to be vested in parliament, ‘reserving to the people untouched and inviolable their fundamental laws, according to indenture at elections’. The list of eleven such laws, with which the pamphlet concludes, safeguarded personal liberty and property, freedom of conscience in religion, prohibited imprisonment for debt, and so on, but it also included such ‘constitutional’ matters as the annual popular election of officers, sheriffs, justices, &c., and the redistribution of seats in each county according to changes in population. It is also of some passing interest to observe that whereas the Levellers used to clamour against conscription or impressment, the eleventh funda¬ mental in this programme actually prescribed military training for all, for the defence of the laws against foreign enemies or insurrection at home.1 Most writers at this time, in fact, though they might pretend that the fundamental laws were known and ancient and only needed to be sought out, were really using the phrase as an advertisement for their own political programmes, which they took care to specify. The Humble Petition of Divers Well-Affected Persons, for example,2 observing ‘that God hath preserved this Nation wonderfully without example many years, since the dissolution of the old form of govern¬ ment by King, Lords and Commons; there having been no funda¬ mental Constitution of any kind duly settled, nor any certain succession provided for the Legislative Power’, laid down six ‘principles and pro¬ posals concerning the government of this nation’. The sixth of these prescribed ‘That it ought to be declared a Fundamental Order in the Constitution of this Commonwealth, that the Parliament being the supreme Legislative Power, is intended only for the exercise of all those Acts of Authority that are proper and peculiar to the Legislative Power’. Here the constitution itself, in the sense of the actual frame¬ work of government, seems to be thought of as fundamental, without restriction on the capacity of parliament to legislate within it, but it 1 England’s Safety in the Law’s Supremacy (1659), pp. 11-13. 2 ‘Delivered 6 July 1659 to the supreme authority, the Parliament of the Commonwealth of England’ (i.e. the restored Rump); printed in J. Harrington, Works (ed. Toland), pp. 541-6.

THE INTERREGNUM

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later appears that the intention was to safeguard also certain individual rights, for we find a proposal for the arrest and detention in custody of any person ‘that shall move or propose’ not only ‘the restitution of kingly government, or the introduction of any single person to be chief Magistrate of this Commonwealth’, but also ‘the alteration of that part of the fundamental order herein contained that concerns the equal freedom and protection of religious persons of different per¬ suasions’. A fair summary of the kind of programme the more radical repub¬ licans had in mind in the middle of the seventeenth century when they invoked fundamental law is given in a paper called The Leveller.1 First, they assert it as Fundamental, that the Government of England ought to be by Laws and not by Men; they say, the Laws ought to be the Protectors and Preservers, under God, of all our Persons and Estates, and that every Man may challenge that Protection as his Right. . . . The Levellers’ second Maxim or Principle about Government is that all the Laws, Levies of Monies, War and Peace, ought to be made by the People’s Deputies in Parliament....

The third fundamental was that all men were to be equally subject to the laws, while, according to the fourth, people ought to serve in arms themselves to defend their country, and not trust to mercenaries. These four maxims, the paper continued, ‘contain the sum of all the Levellers’ Doctrine about our Government in Externals,... the same Fundamentals of Government having been claimed by our Ancestors, as their right, for many hundred years’. The writer adds that he has ‘only mentioned the Fundamentals, because they claim these as their Right, and humbly submit the Circumstantials, as to the Number whereof Parliaments should consist and the Manner of their Elections and the order of their Debating and Resolving of Laws, etc., to the wisdom of the Parliaments’. With these productions of civilian republicanism we may compare the constitutional scheme drawn up by the General Council of Offi¬ cers early in December 1659, in their last desperate effort to secure an agreed republican government before the intervention of Monk paved the way to the Restoration. We read of ‘seven principles and unalter¬ able fundamentals, which the General Council of Officers of the armies of the three nations and of the fleet have agreed on, to be perpetually kept and observed in order to the conservation of this 1 Dated 1659; Harleian Miscellany (1745 edn.), iv. 515 ff. Wildman may have been the author.

138

THE INTERREGNUM

Commonwealth’. The first two were ‘That no kingship shall be exer¬ cised in these nations’, and ‘That they will not have any single person to exercise the office of chief magistrate in these nations’. Later funda¬ mentals, providing for freedom of conscience, no House of Peers, separation of the legislative and executive powers, and elections to parliament ‘by the people of this Commonwealth duly qualified’,1 were in no way unusual, but the inclusion of the third was a naive piece of effrontery: ‘That an army may be continued and maintained’, under the control of a body to be called ‘Conservators of Liberty’. Ludlow tells us he ‘adventured to give in a list of one and twenty persons’ to hold this key position.2 John Milton wrote his Ready and Easy Way to Establish a Free Commonwealth as a contribution to the rescue of republicanism from the collapse that threatened it in this disastrous year, but he was a straightforward parliamentarian, and put no faith in lists of funda¬ mentals, however precise and detailed. Parliaments, he realized, could not be ‘bound by any statute of preceding parliaments, but by the law of nature only, which is the only law of laws truly and properly to all mankind fundamental’.3 Next year he reiterated the same conviction. ‘If we must hear mooting and law lectures from the pulpit’, he re¬ marked, ‘what shame is it for a doctor of divinity not first to consider, that no law can be fundamental, but that which is grounded on the light of nature or right reason, commonly called moral law. . . . How could our forefathers bind us to any certain form of government’, he asked, ‘more than we can bind our posterity?’ Milton, in fact, had clearly grasped the fact that the principle of legislative sovereignty must be accepted. ‘The parliament is above all positive law’, he wrote, ‘whether civil or common, makes or unmakes them both; and still the latter parliament above the former, above all the former lawgivers, then certainly above all precedent laws, entailed the crown on whom it pleased; and, as a great lawyer saith, “is so transcendent and abso¬ lute, it cannot be confined, either for causes or persons, within any bounds”.’4 1 Due qualifications were not specified, but I think we may infer that the officers did not mean manhood suffrage, which had been fundamental to the Levellers. 2 E. Ludlow, Memoirs (ed. C. H. Firth, Oxford, 1894), ii. 172. The list of fundamentals, dated 13 Dec. 1659, is quoted from Mercurius Politicus in a footnote on the same page. 3 In Prose Works (Bohn’s Library, ed. J. A. St. John), ii. 111. 4 Brief Notes on Dr. Griffith’s Sermon (1660), ibid. 359-61. The ‘great lawyer’, of course, was Sir Edward Coke. Just before the passage quoted,

THE INTERREGNUM

139

In spite of all this bewildering variety, in which the fundamental laws had often been made to stand simply for the particular interests of this or that faction, the adjective’s appeal was apparently undimin¬ ished, and the Declaration of Breda itself promised ‘the restoration of King, Peers and people to their just, ancient and fundamental rights’.1 Conformably with this, the Lords resolved on 1 May 1660 that ‘according to the ancient and fundamental laws of this kingdom the government is and ought to be by King, Lords and Commons’.2 however, Milton remarked (as was perhaps appropriate in the year of the Restoration) that ‘by our fundamental laws the King is the highest power’. 1 S. R. Gardiner, Constitutional Documents of the Puritan Revolution, p. 465. 2 L.J. xi. 8.

CHAPTER IX

AFTER THE RESTORATION ‘Though this is an Absolute Monarchy’, declared Sir Orlando

Bridgman (Lord Chief Baron) at the trial of the regicides in 1660, ‘yet this is so far from infringing the people’s rights, that the people, as to their properties, liberties and lives, have as great a privilege as the king. It is not the sharing of government that is for the liberty and benefit of the people; but it is how they may have their lives, and liberties, and estates, safely secured under government.’1 The Res¬ toration was, above all, a rejection of all kinds of experimental and arbitrary government, and a return to normal constitutional practice. It was a return to the rule of law, which alone, it was felt, could guarantee to the property-owner the enjoyment of his historic rights. Respect for the law, not the admission of claims to popular sovereignty, was the special characteristic of English constitutional government, and it was in this way that the king, while ‘absolute’, was not ‘arbitrary’ or a tyrant.2 In 1660, as in 1640, fundamental still seemed the appropriate adjec¬ tive to apply to the law involved in this kind of rule. Although the Long Parliament had exercised a de facto sovereignty which paid no heed to fundamentals, and Hobbes and Filmer had emphasized the essentially arbitrary character of legislative power, the belief still prevailed, and was often voiced in traditional phraseology, that law was not simply the command of the governing authority in the state. On the first page of his handbook for magistrates Michael Dalton referred to ‘the Common Laws of this realm of England, receiving principally their grounds from the Laws of God and Nature (which Law of Nature, as it pertaineth to man, is also called the Law of Reason), and being for their antiquity those whereby this realm was 1 S.T. v. 992. 2 Cf. W. Holdsworth, H.E.L. iv. 206: the term ‘absolute’, when applied to the king, did not imply that he was under no legal restraint, but that within the sphere of royal action he had a free or absolute discretion whether to act in a particular way or not. Cf. also Heath, A.-G., in the Five Knights’ case, above, p. 72. As Mr. Mark Thomson has pointed out (Const. Hist, of England, iv. 1642-1801, p. 120), the theory of divine right itself did not imply any belief that the king was sovereign in a Hobbesian sense. The chief emphasis was on the sinfulness of rebellion.

AFTER THE RESTORATION

141

governed many hundred years before the Conquest’.1 Among other duties enjoined by the law of God, appropriately enough at this time, was the allegiance ‘every well-affected subject. . . ought to bear his sovereign’.2 This was not just the antiquated opinion of an old-fashioned lawyer. Members of parliament had the same basic convictions, as is evident from the phraseology that constantly recurs in their legislation. The Act to Preserve the King3 explicitly condemned a number of constitu¬ tional ideas and practices which had been current during the Inter¬ regnum, and laid down the conditions on which the parliamentary monarchy of the future was to be established. ‘The oath usually called the Solemn League and Covenant’, it was here declared, ‘was in itself an unlawful oath, and imposed upon the subjects of this realm against the fundamental laws and liberties of this kingdom.’ Respect for fundamental laws, however, did not mean that parliament recognized any legal limit to its legislative capacity, for another clause in the same act provided that it ‘shall not extend to deprive either of the Houses of Parliament... of their just and ancient freedom and privilege of debating any matters ... touching the repeal or alteration of any old, or preparing any new laws’. Parliament knew quite well that it could enact and make into law whatever it chose; but its laws might, nevertheless, be wrong. So, in the Act Restoring the Temporal Authority of Ecclesiastical Persons,4 by which the bishops regained their seats in the House of Lords, parliament did not pretend that the act of the Long Parliament, by which the bishops had been deprived of their seats, was invalid.5 All it said was that this act ‘made several alterations prejudicial to the constitution and ancient rights of Parliament, and contrary to the laws of the land’. We may note also that in the Declaration prescribed in the Act of Uniformity6 the Solemn League and Covenant was con¬ demned as ‘an unlawful oath and imposed upon the subjects of this realm against the known laws and liberties of this kingdom’.7 The 1 M. Dalton, The Countrey Justice (1661), p. 1. In footnotes he supports this identification of the law of the land and common law with the laws of God and reason by well-known quotations from Doctor and Student, Fortescue, Plowden, Coke, &c. 2 Ibid., p. 15. For J.P.s, he pointed out, this moral obligation was reinforced by a statutory oath. 3 13 Ch. II, St. I, c. 1 (1661). 4 13 Ch. II, St. I, c. 2 (1661). 5 Cf. the views of Judge David Jenkins, above, p. 104. 6 14 Ch. II, c. 4 (1662). 7 Compare with this the clause in the Declaration of Rights (1 Will. & Mary,

142

AFTER THE RESTORATION

fundamental laws, then, were the known laws: in other words, the historic traditional form of government by the king and the two Houses of Parliament. At the moment the prime consideration was to restore this balanced constitution, or mixed monarchy, without troubling about the exact adjustment of the capacities and functions of its component elements. Yet, of course, it was just this balance of powers within the government that had broken down before the Civil Wars, and experience was soon to show that the constitution, imagined as fundamental and secure, was in reality unstable and subject to continual development and alteration. Fundamental, how¬ ever, long remained the regular adjective for the laws constituting a form of government, as when Locke drafted for Lord Shaftesbury and his associates the ‘Fundamental Constitutions of Carolina’. Clarendon was a typical exponent of the traditional point of view as against Hobbes’s doctrine of sovereignty, which he only imperfectly understood. He rejected the notion that the sovereign is the sole legis¬ lator and is not subject to laws,1 yet even he could not go so far as to assert that there were actual legal obstacles to the omnicompetence of the legislature. His hesitant phraseology reveals the uncertainty of his position, and his recourse to the familiar metaphors of tacit covenant and trust makes it clear that the point he had at heart was really a moral one. The legislature might conceivably enact arbitrary laws, or impose inequitable taxation, but if it did so its action, though not strictly invalid legally, would be wrong, and (here is another interesting point) incompatible with the principle of representative government. Suppose a body or assembly of men were sovereign, Clarendon asks, may there not at that time of the election certain rules be prescribed (I do not say conditions) for the better exercise of that sovereign power? And by the accepting the power thus explained, doth not the sovereign . . . tacitly covenant that he will observe those rules? And if he does wilfully decline those rules, doth he not break the trust reposed in him? I do not say forfeit the trust, as if the sovereignty were at an end, but break that Sess. 2, c. 2 (1689)), where various practices were condemned as ‘utterly and directly contrary to the known Laws, Statutes and Freedom of this Realm’. James II, it will be remembered, was charged with breaking the fundamental laws. 1 Edward, Earl of Clarendon, A Brief View of the . . . Errors ... in Levia¬ than (2nd imp., Oxford, 1676), p. 119. He also upbraided Hobbes for rejecting the lawyers’ doctrine ‘that the common law hath no controuler but the Parlia¬ ment’. Clarendon thought that Hobbes should respect this doctrine, for English lawyers ought to know about English law: ibid., p. 121.

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trust, violate that justice he should observe? If the sovereign power . . . should raise an imposition ..., if they should appoint this whole imposi¬ tion to be paid only by those whose names are Thomas, . . . may not this inequality be called a violation of justice and a breach of trust, since it cannot be supposed that such an irregular authority was ever committed to any man or men by any deputation? ... It is a maxim in the law [he continues] . . . that the eldest son shall inherit, and that if three or four females are heirs, the inheritance shall be equally divided between them. Doth Mr. Hobbes believe that the word of the king1 hath the power to change this course, and to appoint that all the sons shall divide the estate, and the eldest daughter inherit alone? And must not all confusion imaginable attend such a mutation? All governments subsist and are established by firmness and constancy, and by every man’s knowing what is his right to enjoy, and what his duty to do.2

Once more we meet the principle of the sanctity of property, and the ‘fundamental’ character of the laws of inheritance. It would obviously be intolerable if kings could arbitrarily interfere with them, but presumably Clarendon would have had to admit (could he have realized that this was the real point) that parliament had the power to change them if it thought fit. Yet even a judge (Vaughan C.J.) could still declare that, just as a royal dispensation would not operate in respect of things mala in se, such as ‘murder, stealing, perjury, tres¬ pass’, so also a law which purported to legalize such actions ‘would be a void law in itself’.3 Otherwise ‘the same things, at the same time, would be both lawful and unlawful, which is impossible’, and ‘a law which a man cannot obey, nor act according to it, is void and no law: and it is impossible to obey contradictions, or act according to them’.4 Once more the contradiction, as we can see, was between legal and moral wrong. As long as these were not clearly distinguished, it was still possible to talk in terms of fundamentals, and the principle of legally unlimited sovereignty was still not fully acknowledged. A number of writers felt themselves impelled to uphold funda¬ mental law and the law of nature against the dangerous doctrines of 1 Clarendon cannot rid himself of the idea that the sovereign is the king, although on the previous page he has apparently grasped Hobbes’s principle that the sovereign law-maker might equally be an assembly. 2 Ibid., pp. 122-4. 3 Cf. Holt’s remarks about adultery in City of London v. Wood, above, p. 10. 4 Thomas v. Sorrell (1677); Vaughan, pp. 336, 337. Cf. Coke’s use of the notion of repugnancy in Bonham’s case, above, pp. 36 ff.

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Hobbes. One of these, John Whitehall, a barrister of the Inner Temple, whose Leviathan Found Out was published in 1679, declared that in maintaining that customs are not laws by virtue of prescription of time, but by con¬ stitutions of their present sovereigns . . . , Mr. Hobbes principally aimed at the supplanting of our Common Law, and thereby make the readier way to bring all men’s properties into incertainty and confusion. . . . For ’tis by the Common Law, that is, the general custom of the nation [he continued] that most men enjoy their estates . . . ; now if length of time should not justify that property, without the constitutions of the sovereign; and such constitutions could not be found, as ’tis most apparent they cannot, down goes the Common Law, and property with it, and then let the strongest take all.1 This was an absurd travesty of Hobbes, whose real aim had been to justify a government capable of securing property against the natural rapacity of strong men. Whitehall’s next point was equally wide of the mark, and even more puerile. But Mr. Hobbes in the same paragraph makes a little amends for this; for though he had given the Common Law a box on the ear to make it stagger, he hits it a clap on the other to set it upright again; for he saith that when an unwritten law shall be generally observed, and no iniquity appear in the use of it, then it can be nothing but a Law of Nature, and obliges all mankind. Well said, Mr. Hobbes, for now he makes every custom (which an unwritten law implies) unalterable by Act of Parlia¬ ment; for an Act of Parliament against the Law of Nature is void.2 Hobbes certainly meant no such thing, and Whitehall has simply misunderstood what Hobbes meant by the ‘obligation’ of a law of nature; but it is of interest to note in passing yet another assertion of the idea that in certain circumstances acts of parliament could be held to be void. Such an idea, of course, could only be operative in practice if the courts had an acknowledged power of judicial review. When Shaftesbury, committed to the Tower in 1677 by order of the House of Lords, spoke in the Court of King’s Bench in support of an applica¬ tion to be released on bail, he declared that ‘this court will and ought to adjudge an Act of Parliament null and void if it be against Magna Charta, much more may it judge an Order of the House that is put in 1 Leviathan Found Out, p. 53. He added the wild accusation that this ‘was at the time [sc. 1651, the date of the publication of Leviathan] the readiest means, and most plausible, to vest all in the army’ 2 Ibid., p. 54. 3

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execution to deprive any subject of his liberty’.1 Such a theory, how¬ ever, was becoming out of date by now, and we shall look in vain for a case where statutes were actually nullified by a judicial decision. Chief Justice Vaughan’s instances were only hypothetical: he was not confronted with an actual statute purporting to legalize murder or theft. Similarly when Holt, at the beginning of the next century, declared that if an act of parliament purported to make a man judge in his own cause it would be a void act,2 this also was only a hypo¬ thesis. Holt indeed set aside a by-law made by the Common Council . of the City of London, but he was never called upon actually to nullify an act of parliament. Even so, however, the fact that such a procedure was still conceivable is an indication of the persistent vitality of the notion of fundamental law. We saw in a previous chapter that Charles I had raised the banner of fundamental law in his last struggle against the Long Parliament’s assumption of sovereign power. Similarly in the reign of Charles II it was the extreme Tories who, in the name of the ‘inseparable’ preroga¬ tives of the Crown, made the most strenuous efforts to reanimate the theory that there were some things that parliament could not touch. These notions reached their climax in the debates about the Exclusion Bill, but there was a foretaste of them in the year of the Restoration it¬ self. The Commonwealth had swept away knight-service and the other feudal tenures, but a royalist lawyer, Fabian Philipps, protested when a bill was introduced to legalize this fait accompli. On his title-page he claimed that ‘tenures in capite and by knight-service ... according to their first institution were, and are yet, a great part of the salus populC. This was an odd use of this famous phrase; but after all (though ‘and are yet’ was absurd) he was right historically when he pointed out that their purpose had been ‘the safety and defence of the king, as well as of his people’. He then argued that the feudal tenures were upheld not only by positive law but also by the law of nations ‘and in some sorts by the law of nature’, which he described as ‘that secret and great Director under God and his Holy Spirit of all men’s actions, for their safety and self-preservation, by the rules or instinct of Right Reason, and the Beams of Divine Light and Irradiations’.3 This being so, the feudal tenures could not be ‘dissolved or taken away by any Act of Parliament’, because ‘God’s Law, and the Law 1 W. D. Christie, Life of Shaftesbury (1871), ii. App. vi, p. xcv. 2 In City of London v. Wood, above, p. 9. 3 Fabian Philipps, Tenenda non Tollenda (1660), p. 1.

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of Nature and Nations have taken care not only to preserve the Rights of Soveraignty and the means and order of government, but the rights and property of every particular subject, and do prohibit all injustice; and it is a Maxime or Aphorism undeniable that laws made against the Word of God and the Laws of Nature, or which are impossible, or contra bonos mores, right reason or natural equity will be void in themselves, be the seal or stamp of authority never so eminent’. As if this were not sufficient, he supported his thesis by an extraordinary argument, based apparently on the idea that two wrongs do not make a right. And if an Act of the Commons alone, or of the Lords alone, or of both together, cannot amount to an Act of Parliament, [and] the King himself cannot grant away his regality, or power, or means of governing, by his charter, or any act which he singly do, his concurrence with both the Lords and Commons can no more make an Act to confirm that which should not be done or granted than his own grant or charter could have done, or than if he and the House of Commons only had made an Act.

The argument concludes with quotations from Hobart and other authorities in support of the principle that ‘the superlative power of Parliaments ... is in some things so restrained, as it cannot enact things against Right Reason, or Common Right, or against the Laws of God or Nature, that a man shall be judge in his own case, as that the King shall have no subsidies whereby to defend himself and his people, that children shall not obey their parents, and the like’. The feudal tenures, he maintained, were ‘of so transcendent a nature, and so radically in the Crown and Fundamental Laws’, as to be beyond the reach of an act of parliament. They were, in fact, of a piece with that ‘care for the defence of the kingdom’ referred to by the judges in the ship-money case, ‘which belongeth inseparably to the King .... so as if any Act of Parliament should enact that he should not defend the Kingdom, or that he should have no aids from his subjects to defend the Realm, such Acts would not bind, but would be void, because they would be against all natural reason’.1 Only a diehard would thus have defended the long-obsolete feudal tenures, but even if to modern eyes the author seems blind to the capacity of the sovereign legislature, he was right in saying that the defence of the realm was entirely a matter for the king. Another topic claimed as an inseparable prerogative, over which Charles IT had several skirmishes with the House of Commons, was the conduct of 1 Fabian Philipps, op. cit., pp. 251-6.

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foreign affairs. The king had strong precedents for maintaining that foreign policy was exclusively a prerogative matter, but when the questions at issue were the third Dutch war and relations with Louis XIV, wide differences of opinion developed on party lines. A Tory writer stated the case for the royal prerogative in a pamphlet entitled The Great Question Resolved, whether a King of England can make Wars and Alliances without notifying it before to his two Houses of Parliament. After citing cases in the reigns of Edward II and Richard II, when these kings granted commissions to certain great lords ‘to manage the affairs of the Crown’, and these powers were afterwards either declared by the king in parliament to be void, or repealed by act of parliament as encroaching upon royal authority, ‘and no such commissions ordered hereafter to be granted,’ the writer proceeds: ‘And in truth those things, which the King is invested with pro bono publico, are so inseparably united to the Crown and annexed to his person, that he cannot divest himself of them or grant them to any other.... In short, the making of leagues, war and peace so peculiarly belong to the Crown that they cannot be taken away by Act of Parlia¬ ment.’1 Four years later the king was moved to protest against a renewed attempt by the Commons to intrude upon this jealously guarded sphere of the royal prerogative. Gentlemen [he told the Commons on 28 May 1677] . . .You have entrenched upon so undoubted a right of the Crown, that I am confident it will appear in no age ... that the prerogative of making peace and war hath been so dangerously invaded. You do not content yourselves with desiring me to enter into such leagues as may be for the safety of the kingdom; but you tell me what sort of leagues they must be, and with whom. . . . Should I suffer this fundamental power of making peace and war to be so far invaded (though but once) as to have the manner and circumstances of leagues prescribed to me by Parliament, it is plain, that no Prince or State would any longer believe that the Sovereignty of Eng¬ land is in the Crown. . . . Wherefore you may rest assured that no con¬ dition shall make me depart from, or lessen, so essential a part of the monarchy.2 The salient points in the debates about the proposal to exclude the duke of York by act of parliament from succeeding his brother on the throne are well summed up by Bishop Burnet. 1 Published in 1673; printed in T. Brown, Miscellanea Aulica (1702), pp. 259 ff. The passages quoted are on pp. 274, 275. 2 C.J. ix. 426.

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Those who argued for it [he writes] laid it down for a foundation that every person, who had the whole right of anything in him, had likewise the power of transferring it to him whom he pleased. So the king and parliament, being entirely possessed of the whole authority of the nation, had a power to limit the succession, and everything else relating to the nation, as they pleased. And by consequence there was no such thing as a fundamental law, by which the power of parliament was bound up: for no king and parliament in any former age had a power over the present king and parliament; otherwise the government was not entire, nor absolute.

Supporters of exclusion could also point to previous occasions when parliament had altered the succession to the throne; but this did not deter its opponents. They argued that it was unlawful in itself, and against the unalterable law of succes¬ sion (which came to be the common phrase). Monarchy was said to be by divine right: so the law could not alter what God had settled. Yet few went at first so high. Much weight was laid on the oath of allegiance, that tied us to the king’s heirs: and whoso was the heir when any man took that oath, was still the heir to him. All lawyers had great regard to funda¬ mental laws. And it was a great maxim among our lawyers, that even an act of parliament against Magna Charta was null of itself.1

A footnote records that Swift’s comment on this last remark was ‘A sottish maxim’, and Holdsworth declared that this ‘did not then and never had represented the opinion of the lawyers’.2 Burnet’s account, however, is by no means the only evidence that at any rate some lawyers undoubtedly continued to think in this way. One of the most indefatigable speakers against Exclusion was Sir Leoline Jenkins, who declared that ‘such a Bill would be against law and conscience’, and that ‘nothing less than an army’ would be needed to enforce it. Colonel Birch at once pressed home the point that the legality of the bill could not be doubted. ‘Certainly, Sir’, he declared, ‘our legislative power is unbounded, and we may offer to the lords, and so to his majesty, what bills we think good.’ There were no laws in existence that could override the laws made by the King, Lords, and Commons, and, he added, ‘as I think it cannot be against law, so neither against conscience, unless it could be made out that we ought 1 G. Burnet, History of his own Time (Oxford, 1823 edn.), ii. 203, 205. 2 W. Holdsworth, H.E.L. vi. 186. It seems clear, however, that this, like the preceding sentence, is in oratio obliqua, and records neither a fact, nor Burnet’s own opinion, but one of the arguments used by the anti-exclusionists.

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in conscience to bring in Popery’.1 Daniel Finch doubted the justice of exclusion, ‘for I never heard of any law which made an opinion in religion a cause to be dispossessed of right’.2 Sir Leoline then developed his case against the bill at greater length. He felt it was ‘contrary to natural justice, that we should proceed to condemnation, not only before conviction, but before we have heard the party, or examined any witnesses about him; I am sure, none in his defence’. To make a new law expressly to exclude the duke was ‘very severe; and contrary to the usual proceedings of this House, and the birthright of every Englishman’. Jenkins had three other points to make, of which the second was the most important.3 ‘I am of opinion’, he declared, ‘that the kings of England have their right from God alone; and that no power on earth can deprive them of it.’ Therefore he hoped the House would not ‘attempt to do anything which is so pre¬ cisely contrary, not only to the law of God, but the law of the land too. For if this bill should pass, it would change the essence of the monarchy, and make the crown elective.’ Thirdly, he urged, the bill would involve violation of the oath of allegiance. ‘Sir, I will be very cautious’, he concluded, ‘how I dispute the power of parliaments, I know the legislative power is very great, and it ought to be so. But yet I am of opinion, that parliaments cannot disinherit the heir of the crown; and that if such an act should pass, it would be invalid in itself.’4 The subsequent debate provides an instructive commentary on the doubts and hesitations that troubled many members. A few felt sure enough: Mr. John Trenchard, for example, who declared that the objections he had heard ‘have not convinced me that we want either a just cause or a legal power for the making of this bill’;5 or Colonel Titus, who had a singularly clear grasp of the principle of sovereignty. ‘Was there ever any government in this world’, he asked, ‘that had not an unlimited power lodged somewhere? Or can it be possible that any government should stand without such a power?’ The only con¬ ceivable purpose, he suggested, of denying the existence of such a power in England was to bring about the fall of the government.6 Such clarity, however, was exceptional. Various speakers answered par¬ ticular points in the anti-exclusionist argument, John Hampden, for 1 Parly. Hist. iv. 1182. 2 Ibid., p. 1188. 3 The first was that he thought it ‘contrary to the principles of our religion that we should dispossess a man of his right because he differs in point of faith’. 4 Ibid., pp. 1190-1. 5 Ibid., pp. 1214. 6 Ibid., p. 1290.

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example, who argued that there was no substance in the contention that to pass the bill without hearing the duke would be contrary to natural justice, and that there were numerous precedents for con¬ demning persons by bill. Apart from such precedents, he added, ‘to doubt the power of the legislative authority of the nation in that or any other case is to suppose such a weakness in our government, so inconsistent with the prudence of our ancestors and common reason, as cannot well be imagined’. The Tories, however, remained uncon¬ vinced. Daniel Finch, while obliged to admit, in view of the Treason Act of Queen Elizabeth’s reign,1 that acts of parliament could deal with the succession to the throne, nevertheless denied ‘that the kings of England rule by virtue of any statute law ...’; on the contrary, ‘their right is by so ancient a prescription as that it may justly be said to be from God alone; and that no power on earth can dispute it’. There¬ fore, he thought, ‘the succession of the crown is inseparably annexed to proximity of blood’, and maintained unaltered his opinion ‘that if this bill should pass into a law, it would be in itself invalid’.2 Sir Leoline Jenkins concurred. ‘For my part’, he said, ‘I think if it should pass, it would be void of itself, and of no force at all.’3 Later it was suggested that instead of attempting to exclude James altogether from the succession, a regency bill should be passed to define and limit his powers, but this proposal also came under fire. Sir Francis Winnington suggested what looks like an adaptation of Coke’s old argument about the invalidity of a ‘repugnant’ statute, for, he declared, ‘acts of parliament against common sense are void in themselves; to make a man king, and not suffer him to exercise kingly power, is a contradiction’.4 Colonel Legge summed up the Tory faith in words which reveal how far the relatively newfangled notion of the legislative sovereignty of parliament still was from being generally understood and accepted. ‘The fundamental and common law of England’, he said simply, ‘has made the duke, as heir, to come to the crown, if the king have no sons.’5 That it was, at bottom, a moral (or religious) objection that impelled the high Tories to resist the Exclusion Bill appears clearly from another passage in one of Sir Leoline Jenkins’s speeches. ‘Tis true, we are entrusted with a power to prepare laws, for to be animated by the royal assent; but all our voting cannot make things equal and just that are not so in themselves. We may call right wrong and wrong 13 Eliz. I, c. 1. 3 Ibid., p. 1289.

4 Ibid., p. 1328.

2 Parly. Hist. iv. 1214. 5 Ibid., p. 1330.

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right, but the things themselves are as unalterable as the course of the sun.’1 From this point of view, of course, there was no question of an external judicial authority upholding fundamental laws by annulling acts of parliament. The appeal lay rather to the consciences of mem¬ bers themselves, who (like all men endowed with free will) might err and commit sin, but had a duty, and were urged, to do right. Here lay the force of the metaphor of trusteeship, which was so freely used in the seventeenth century to convey this sense of the moral obligation involved in government, and in particular the responsibility of mem¬ bers of parliament to their constituents. Sir Leoline accordingly pro¬ claimed that ‘Governors qua governors and legislatures have but a trust or administration, that implies two things. 1. A limited and a derivative power. 2dly. An account.’2 He insisted, therefore, that apart from questions of law and usage, reason and equity were involved. And as this proceeding is contrary to natural justice, which requires us to mete the same measure to the Royal Family that is dealt to every one of us; so it is to the fundamental constitution of this government, which we have power indeed to preserve and maintain, but not to destroy. . . . Things that are essential to the government it is not (with submission) in our power to alter. We cannot, for instance, betray our trust by abolishing parliaments, or by setting aside the House of Lords or Commons. It is not in our power to put down monarchy, as long as there is any person that has right to the Crown; because the succession of this monarchy is as essential to our government as monarchy itself. We may with the same authority change the government into a commonwealth as pretend to alter the succession. And therefore, for my part, I think, if such an act should pass, it would be void, and of no force and obligation at all.3 Besides the debate within the walls of parliament itself, the Exclu¬ sion Bill was the occasion for the publication or republication of numerous political treatises and tracts. Notable among these was Filmer’s Patriarcha, which, though written a generation earlier, was not published until this time (1680), and itself evoked a number of other publications in reply to it. One of the first to appear in print was Patriarcha non Monarcha, by Locke’s friend James Tyrrell, which came out in 1681. His general position was that the king’s power was limited, and that its source was not divine right but the will of the people. He alludes more than once to the concept of fundamental law, 1 W. Wynne, Life of Sir Leoline Jenkins (1724), i. cii. 2 Ibid., ci. 3 Ibid., cii, ciii.

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but adds little of positive interest, nor are the points he makes against his opponent’s case particularly impressive. He argues, for instance, that it was self-contradictory to hold at the same time ‘that the succes¬ sion of the crown is a fundamental law of the government, and that a prince may be absolute, and yet not have a power to alter that as he may everything else’.1 In fact, precisely this was Bodin’s political theory. Tyrrell then goes on to inquire ‘Who made this a fundamental law at first?’ Certainly not any king alone, he answers, and arguing that if ‘it is a fundamental law because long custom hath made it so’, it must have originated in the consent of the people, he concludes with references to the antiquity and popular origin of English common law. The succession to the throne was often elective in early times, ‘so that whoever will take the pains to consult our ancient Saxon and English historians will find that there was never anciently any funda¬ mental or unalterable law of succession’.2 Parliamentary assemblies, he believed, were of equal antiquity, and it followed that parliament was fully entitled to alter the law of succession when it thought fit. It is of some interest to notice that Tyrrell alludes in the course of his discussion to the idea we met some time ago in the writings of Feme, Herle, and others, to the effect that if common law were the foundation and statutes ‘superstructive’, it could not be removed by act of parliament (yet admittedly it could be and had been), since it was contrary to nature for a building to stand if its foundations were taken away.3 Tyrrell made the sensible comment that this was ‘mere wrangling about the metaphor of a foundation and a superstructure, as if such expressions required an absolute physical truth as they do in the things from which they are taken’.4 He professed to have no place for fundamental laws in his theory of government, and for those who wished to retain the term he suggested a definition resembling that of Hobbes,5 but we must notice a significant passage which betrays the fact that he too had not divested himself of that sense of moral obligation which was one of the most important factors in the survival of the idea of fundamental law. ‘It is . . . granted’, he wrote, ‘that all laws in a limited government, but those of nature and right 1 J. Tyrrell, Patriarcha non Monarcha, p. 51. 2 Ibid., p. 227. 3 Cf. above, pp. 88, 92. Filmer also made the same point, cf. above, p. 119. 4 Patriarcha non Monarcha, p. 219. 3 For Hobbes’s definition cf. above, p. 120. Tyrrell suggested that the laws which might be called fundamental, or ‘foundations of the government’, were those which ‘being altered it would cease to be the same kind of government as it was before’ (ibid., p. 220).

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reason, are alterable.’1 Hobbes had shocked his contemporaries be¬ cause they thought he would not have made this material exception. It is impossible to look at more than a few samples from the great mass of political literature that flowed from the press in these years. Some writers continued to refer to the fundamental laws as if there had never been any dispute about their meaning or even their very existence. Thus Henry Nevile just by-passed the controversial issues with the assertion that ‘the people by the fundamental laws, that is by the constitution of the government of England, have entire freedom in their lives, properties and their persons, neither of which can in the least suffer, but according to the laws already made, or to be made hereafter in Parliament and duly published’.2 The expression, which occurs several times in his book, was evidently to Nevile an accepted piece of political terminology which he used without question, as, for example, in a passage dealing with events in Aragon in the time of Philip II and Antonio Perez, where he refers to ‘their Fueros and Privilegios, which are their fundamental laws’.3 He also describes the relationship between the Lords and the Commons in Parliament as ‘their co-ordination, which I am sure they have by law, and by the fundamental constitution of the government’.4 At the same time there were other writers who took pains to analyse and discuss the meaning to be attached to a phrase which by now had become so battered, by use and abuse, as to have lost any precise shape, but which they clung to because they felt it stood for something precious. First of these let us take the famous Quaker leader, William Penn. In the first chapter of his book England’s Present Interest Dis¬ covered,5 entitled ‘Of English Rights’, he tells us that every govern¬ ment in the world ‘must either stand upon will and power, or condi¬ tion and contract: the one rules by men, the other by laws’. England, above all kingdoms, had the ‘felicity to have her constitution so im¬ partially just and free that there cannot well be anything more remote from arbitrariness or more zealous of preserving the laws, by which its rights are maintained’. These laws, he proceeds, ‘are either funda¬ mental and so immutable, or mere superficial and temporary, and consequently alterable’. Superficial laws are such ‘as are suited to present occurrences and emergencies of states’, as, for example, ‘those statutes that relate to victuals, clothes, times and places of trade, etc.’ 1 Ibid., p. 219. 2 H. Nevile, Plato Redivivus (1681), p. 126. 3 Ibid., pp. 151 ff. 4 Ibid., p. 257. 5 Published in 1675; also in Works (1825 edn.), ii. 272 ff.

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He then comes to fundamental laws, and evidently thought of them in two categories, of which the first was equivalent to the general moral principles on which all human conduct in society should be regulated. The second comprised the particular legal principles that characterized English constitutionalism. By fundamental laws [he explained] I do not only understand such as immediately spring from synteresis (that eternal principle of truth and sapience, more or less disseminated through mankind), which are the corner-stones of human structure, the basis of reasonable societies, with¬ out which all would run into heaps and confusion; to wit Honeste vivere, alterum non laedere, jus suum cuique tribuere, that is, ‘To live honestly, not to hurt another, and to give everyone their right’ (excellent principles, and common to all nations), though that itself were sufficient to our present purpose; but those rights and privileges which I call English, and which are the proper birthright of Englishmen, and may be reduced to these three: First. An ownership, and undisturbed possession: that what they have is rightly theirs, and nobody else’s. 2ndly. A voting of every law that is made, whereby that ownership or propriety may be maintained. 3rdly. An influence upon, and a real share in, that judicatory power that must apply every such law; which is the ancient, necessary, and laud¬ able use of juries: if not found among the Britons, to be sure practised by the Saxons, and continued through the Normans to this very day. That these three have been the ancient and undoubted rights of English¬ men, as three great roots, under whose spacious branches the English people have been wont to shelter themselves against the storms of arbitrary government, I shall endeavour to prove.1

Penn then launches out into an extended discussion of each of these three typically English fundamental laws, first tracing the history of private ownership, in the manner common in his age, from the time of the ancient Britons, and declaring that both the Saxons and the Normans continued to uphold ‘this fundamental law of property with the appendant rights of the people’. With it he included, as ‘a second part’, ‘liberty of person. The Saxons’, he declared, ‘were so tender in the point of imprisonment, that there was little or no use made of it’, nor, he continued, ‘did the revolution from Saxon to Norman drop this privilege’. This first fundamental, he concluded, could be summed up in the Englishman’s ability to boast: ‘I am no man’s bondman, and what I possess is absolutely mine own.’2 1 Op. cit., pp. 6-7.

2 Ibid., pp. 10, 11.

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The second fundamental, according to Penn, was as ancient as the first: it was ‘no encroachment upon the kings of more modern ages, but extant long before the Great Charter made in the reign of Henry III, even as early as the Britons themselves’. We may skip the details of Penn’s fanciful history of parliamentary institutions and trial by jury, and come to the message he had for his own day. This was that the ‘free people of England’ could not ‘be justly disseised of all, or any, of these fundamentals, without their consent collectively’.1 The Englishman’s freedom, he insisted, was ‘an absolute right’, and there¬ fore ‘an unalterable, fundamental part of the government’.2 It fol¬ lowed that parliament was under an obligation to respect these fundamentals, but Penn does not seem to have thought of this as any¬ thing other than a moral obligation. ‘It can never be thought’, he writes, ‘that they entrusted any representatives with these capital privileges, farther than to use their best skill to secure and maintain them.’ True, he reinforced his contention by an allusion to the maxim of salus populi as suprema lex, and argued that ‘since the aforesaid rights are as the sinews that hold together this free body politic, it follows, that they are at least a part of the supreme law, and therefore ought to be a rule and limit to all subsequent legislation’. This, how¬ ever, was only an incidental phase in an argument largely com¬ pounded of metaphors and analogies— the estate goes before the steward; the foundation before the house; people before their representatives; and the Creator before the creature. ... Nor can there be any freedom without something be fundamental. In short, I would fain know of any man how the branches can cut up the root of the tree that bears them? How any representative, that has not only a mere trust to preserve fundamentals, but that is a representative that makes laws, by virtue of this fundamental law, viz. that the people have a power in legislation ... can have a right to remove or destroy that fundamental? The fundamental makes the people free; this free people makes a representative; can this creature unqualify its creator?3

Similarly, he continued, representatives could not ‘disseise men of their liberty and property, the first great fundamental, that is parent of this other;... nor is the third fundamental other than the necessary 1 Ibid., p. 21. 2 Thus in the late as in the early seventeenth century opposite sides in the political struggle could still confront one another—the ‘absolute’ powers of the king faced the ‘absolute’ rights of the subject. Cf. above, p. 68. 3 Ibid., p. 22.

156

AFTER THE RESTORATION

production of the two first, to intercept arbitrary designs and make power legal’. When, giving some examples, he concludes: ‘The con¬ sequence is plain; that fundamentals give rule to acts of parliament’, and promises to cite Coke, ‘an oracle of the law’, we might be tempted for a moment to interpret Penn to mean a legal limitation to the sovereignty of parliament. But I think it is clear (in spite of such remarks as ‘these fundamentals are unalterable by a representative, which were the result and agreement of English freemen collectively’)1 that he thought all the time in purely moral terms. What he quoted from Coke was not his judgement in Dr. Bonham’s case but the pas¬ sage about Empson and Dudley, which was ‘a good caveat to parlia¬ ments’ and an example of the dangerous consequences that followed neglect or alteration of fundamental law.2 And the note on which he ends the chapter is not one of legal enforcement but moral entreaty: ‘It is humbly beseeched of superiors, that it would please them to .. . remember, that in their ancient delegations, it was ... to maintain the people’s properties, according to the ancient fundamental laws of the land, and to add such statutes only, as were consistent with and pre¬ servative of those fundamental laws.’3 Members of parliament were being urged, in effect, to stand up still, as they had done of old, for ancient rights and liberties, and not to desert their historic role of opposition to the Crown. A similar message may be read in the pamphlet Fundamental Law the True Security of Sovereign Dignity and the People’s Liberty, pub¬ lished in 1683, when it looked as if a ‘second Stuart despotism’ might be in process of accomplishment. Here we find the same emphasis on the law, which at the same time ‘restrained injury and wrong’ and ‘asserted right and property, or lawful and peculiar possession of the assistances and conveniences of living’. The writer adds that ‘this was also taught to man by nature: for at the same time that the breath of life was infused into him, was also bequeathed him that light of nature, that gave him not only reason but right reason, and consequently the true grounds and foundations of law’.4 Examples from scriptural and classical history show that ‘the end of all law is in general the preser¬ vation of mankind’,5 but whereas many peoples (mostly in Asia) are governed despotically,6 the government of England is above all to be 1 Op. cit., p. 24. 2 Ibid., p. 30. Cf. above, p. 41. 3 Ibid., p. 37. 4 Fundamental Law, p. 6. 5 Ibid., p. 27. 6 Ibid., pp. 37 ff. The writer also (p. 44) comments briefly on various Euro¬ pean governments.

AFTER THE RESTORATION

157

praised, because it secures liberty and property under the protection of laws ‘made with the consent of the people themselves’.1 Our first laws we owe to our Anglo-Saxon kings, and these were collected into ‘one body’ and left by Edward the Confessor as ‘a sacred Relicque to the prejudice of his successors. And from thence our fundamental laws derive their illustrious descent.’2 After alluding to such good points in English judicial procedure as the examination of witnesses and trial by jury, by which means ‘the lives and estates of the people of this nation are in a great measure secured’,3 the writer comes to the Great Charter, and in particular to its famous clause, ‘No free man may be taken or imprisoned, etc.’, by which, he comments, ‘it is plainly to be made out that the estates and liberties of the English subjects are defended and guarded as well by the law of nature as by the law of the land: as having embodied those principles of morality which most conduce to public honesty, which is the common security’.4 He then dilates upon Coke’s exposition of this clause, and his inter¬ pretation of per legem terrae as meaning ‘by due process of law’; and, like Penn, quotes Coke’s example of the Act of 11 Henry VII, ‘made in the face of this fundamental law of Magna Charta’, the ‘oppressions and extortions’ of Empson and Dudley, and the repeal of this act in the first year of the reign of Henry VIII.5 He adds a more recent example, not given by Coke: Star Chamber likewise became oppres¬ sive in course of time and was ultimately abolished by act of parlia¬ ment as contrary to law.6 Here again, while Magna Carta is called a fundamental law, and the writer declares that all laws made contrary to Magna Carta are ‘adjudged to be void and of no effect’, we must notice that the sentence which ends thus begins by saying that ‘whether any law be unjust or no is to be decided by Magna Charta’,7 and on an earlier page the writer alludes to princes governing ‘by the fundamental laws of justice and equity’.8 There is no question here of judicial review or limiting the capacity of the legislature. The implication is that, as princes might govern unjustly and inequitably, so also acts of parliament might be (and sometimes indeed had been) inexpedient and wrong. Parliament was being urged not to abuse the powers entrusted to it by betraying Englishmen’s precious birthright. ‘The fundamental law of England is the free and open asylum for every freeborn Englishman 1 Ibid., pp. 48 ff. 4 Ibid., pp. 82-95. 7 Ibid., p. 139; my italics.

2 Ibid., pp. 63, 64. 5 Ibid., pp. 96-117.

3 Ibid., pp. 76-78. 6 Ibid., p. 121. 8 Ibid., pp. 70.

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AFTER THE RESTORATION

to repair to for the redress of grievances and oppression’;1 the duty of parliament was to preserve this historic heritage unimpaired. Thus it was only the extreme Tories who, by their doctrine of the inseparable prerogatives of the Crown, tried to impose a legal barrier to the sovereign omnicompetence of the legislature.2 Others freely employed what had long been a stock piece of political phraseology to signify their adherence to constitutional principles. Even James II, addressing the Privy Councillors on his accession, sought to dispel the notion that he was ‘a man for arbitrary power’, and declared that he would make it his endeavour ‘to preserve this government in church and state as it is now by law established.... I know’, he added, ‘... that the laws of England are sufficient to make the King as great a monarch as I can wish, and as I shall never depart from the just rights and prerogatives of the Crown, so I shall never invade any man’s property.’3 It will not surprise us, then, to find the usual hackneyed phrases recurring in the declaration read by the duke of Monmouth when he landed at Lyme Regis. He referred to himself as ‘limited and restrained by the fundamental terms of the constitution’, and declared that ‘according to the primitive frame of the government the preroga¬ tives of the Crown and the privileges of the subject were so far from jostling one another, that the rights reserved unto the people tended to make the king honourable and great’. Finally he promised that he would promote the passing into laws of measures to make it impos¬ sible for ‘any single person on the throne to deprive the subjects of their rights, or subvert the fundamental laws of the government de¬ signed for their preservation’.4 Men who called their laws, or liberty, or property-rights, funda¬ mental, implied that they were determined to defend them against some apprehended danger. In the reigns of Charles II and James II 1 Op. cit., p. 141. 2 This, as we have seen, was the contention of the opponents of the Exclu¬ sion Bill. Another form of the same doctrine was used by counsel for the defendant in the celebrated case of Godden v. Hales (1686). ‘The common law in some cases’, he argued, ‘does so very much respect the prerogative that it leaves the private interest of the subject unregarded, and the king may dig in any of his subjects’ land for saltpetre to make gunpowder... . No act of parlia¬ ment can discharge the subject from his allegiance which he owes to the king, everyone is bound by his allegiance to serve his prince when he shall be required. Therefore no act of parliament can disable any man to serve the king’ (S.T. xi. 1194). 3 Quoted in F. C. Turner, King James II (1948), p. 240. 4 Quoted in J. Ferguson, Robert Ferguson the Plotter (Edinburgh, 1887), pp. 216, 219.

AFTER THE RESTORATION

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they had no reason to fear a threat from parliament. After all, a legis¬ lature composed exclusively of property-owners was unlikely to in¬ jure the rights of property, and after the Restoration, as before the meeting of the Long Parliament, those who maintained the traditional faith in the sanctity of the Englishman’s liberty and property were generally content to rely on parliament to uphold them, for they regarded the king as the likeliest source of danger. It was only when the propertyless Levellers in the Interregnum had a brief say in the political world that there was any suggestion of legal checks on the power of the legislature, just as it has only been since the propertyless masses acquired the vote in modern times that socialist doctrines have challenged the former sanctity of the rights of property. The American revolutionists indeed devised a constitution in which the legislature was not to be sovereign, but then they had their own reasons for disapproving of the legislative claims of the English parliament.

CHAPTER X

THE REVOLUTION OF 1688 The history of the reigns of Charles II and James II may suggest that some of the more revolutionary implications that became attached to the idea of fundamental law in the Interregnum were ignored or forgotten after the Restoration, and the phrase seems to have slipped back, like the government itself, into what appears to be its normal usage, to denote the essential presuppositions of the historic con¬ stitution. The same may be said of the part played by fundamental law in the events of 1688-9. This may have been partly due to the reissue of a number of pamphlets and treatises which had first been published as contributions to the political disputes of the opening phases of the Long Parliament.1 On the other hand, no doubt, one of the reasons why they were reissued was that writers and publishers recognized some similarity between the circumstances and modes of political thought in the 1680’s and the 1640’s. Nevertheless, in spite of this appearance of a return to normal, and although the radicalism of the Levellers had disappeared from sight, there was an important shift of emphasis. Now that it was impossible to ignore the supremacy of parliament, even if the doctrine of its sovereignty was still not fully acknowledged, those who sought to impose checks on its actions could no longer appeal effectively to the sanctity of custom or com¬ mon law. They were accordingly impelled to rely either on the essen¬ tially moral obligation on the consciences of members implied in the appeal to natural law, or on the doctrine of the sovereignty of the people as the source of all lawful power. This latter, which was generally expressed in terms of the theory of contract, or of trustee¬ ship, was also efficacious against the divine right of kings, and as in the circumstances of the 1680’s the claims of divine right, associated as they were with Popery, seemed to most Englishmen the greater risk, comparatively few wished to hamper the achievement by par¬ liament of an unchallengeable ascendancy. At the same time the 1 Among numerous works so reissued were Hunton’s Treatise of Monarchy and the pamphlet Of the Fundamental Laws or Politic Constitution of this Kingdom (1643; cf. above, pp. 99 ff.), printed in State Tracts 1660-1689 (1692), ii. 22 ff.

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adherents of divine right also employed variants of the idea of funda¬ mentals (the ‘inseparable’ prerogatives of the Crown or the ‘indefeas¬ ible’ right of hereditary descent) in opposition to the pretensions of parliament. Whigs and Tories might thus use fundamentals in quite different and indeed opposite senses, and it was no doubt the realization of this that led Lord Halifax, reflective and detached from party affiliations, to formulate his trenchant criticism of the contradictions in which this time-honoured idea had become entangled.1 Many more ordinary politicians, however, kept it in constant use, apparently without a hint that its meaning might be uncertain or its validity impugned. The Debate at Large, for example, which records the discussions that took place at the Free Conference between the Lords and the Com¬ mons on the questions whether James II had ‘abdicated’ or ‘deserted’ the government, and whether the throne was or was not vacant, con¬ tains a number of such references to the fundamental laws or the fundamental constitutions of the government.2 The earl of Notting¬ ham, indeed, contributed a few reflections on the meaning of the phrase, but (if correctly reported) they were exceedingly wide and vague. ‘Every deviation from the law’, he declared, ‘is a kind of breach of the fundamental laws; for I know no law, as laws, but what are fundamental constitutions; as the laws are necessary, so far as to support the foundation.’3 At the same time he resisted the arguments of the Whigs on the grounds that ‘if every transgression, or violation of the law, by the prince’s connivance or command, were such a breach of the fundamental laws as would infer an abdication, then it were vain to call any of his ministers or officers to account for any such action’. Sir George Treby’s reply to this was that when a king only broke a law ‘in some few particular instances’ it might be enough to deal with ‘those evil ministers that were instrumental to it’, but James II had broken ‘all the fundamentals’.4 Nottingham’s final plea was that ‘as this case stands upon the foot of our ancient laws and fundamental constitution’, the Whigs should ‘consider, whether at the same time that in this way you get an established government, you do not overturn all our legal foundations’.5 Sir George Treby had pre¬ viously alluded to ‘a plain design to subvert the constitution in the 1 See below, p. 169. We must note, however, that the work containing these views was not published during Halifax’s lifetime. 2 e.g. in the Resolution of the Commons of 28 Jan. 1689, which formed the subject of debate. Cf. above, p. 1. 3 The Debate at Large {1690), p. 26. 4 Ibid., p. 27. 3 Ibid., p. 57. 5725

M

162

THE REVOLUTION OF 1688

very foundation of the legislature’,1 and we may conclude that now, as on many other occasions when writers and speakers referred to fundamentals, the etymological connexion with a foundation was present in their minds, and the historic associations with which the word was now loaded had a considerable propaganda value. It stood, in effect, for whatever they believed to be important or essential in the constitutional framework. Political writers and pamphleteers at the time of the Revolution repeated the time-honoured adjective ad nauseam, often in a similarly vague and uncritical way, which it would be tedious to reproduce here. Yet the very fact that such repetition continually occurred, although it did little to clarify what those who used the word meant, is in itself not without significance in the history of the theory and practice of the English constitution. In the polemics of this age the fundamental laws or fundamental rights were bandied about by Whigs and Tories alike, the most noticeable difference being that according to the Whigs the fundamental laws had been violated by James II, while according to the Tories and Jacobites this had been done by parliament. There were a few writers who thought it necessary, with varying degrees of care or perfunctoriness, to define what they meant by fundamental, and these are worth more atten¬ tion, even though we may find in the end that they also add nothing new. One of the more interesting tracts published on the occasion of the Revolution, for it contains a lucid analysis of all the salient points in the Whig political theory of the later seventeenth century, was entitled A Brief Justification of the Prince of Orange’s Descent into England, and came from the pen of the ‘plotter’ Ferguson. According to Fer¬ guson, ‘no government is lawful but what is founded upon compact and agreement between those chosen to govern and those who con¬ descend to be governed’, and he proceeds to combine the idea of fundamentals with the Whig doctrine of contract by identifying them. ‘The articles upon which they stipulate the one with the other become the fundamentals of the respective constitutions of nations, and to¬ gether with superadded positive laws are both the limits of the rulers’ authority and the measures of the subjects’ obedience.’2 This was not a new theory, for Herle and Hunton, among others, had made a 1 The Debate at Large (1690), p. 27. This was apropos of the writs of Quo Warranto issued to the borough corporations. 2 In State Tracts (1689), i. 136.

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similar suggestion a generation earlier,1 but it came into its own at the time of the Revolution, when it was obviously convenient and plausible, granted belief in the original contract and acceptance of the principle that the powers of government were defined and limited by a ‘fundamental’ constitution. Thus Ferguson could argue that ‘who¬ soever he be that under a pretence of being constituted sovereign does invade and subvert the fundamental laws of the society, he does thereby ipso facto annul all the legal rights he had to govern, and absolves all who were before his subjects from the legal engagements they were under of yielding him obedience’. James II had thus ‘sub¬ verted the very fundamental constitutions of the realm’,2 and the two charges laid against him3 were in fact simply alternative ways of say¬ ing the same thing. With minor variations this was probably the commonest form of Whig political theory. In The Fundamental Constitution of the English Government, proving King William and Queen Mary our Lawful and Rightful King and Queen (1690), W. Atwood led up to this same interpretation of the Revolution by an elaborate historical analysis of the development of English constitutional law. All kinds of government originated in contract, and ‘the greatest asserters of monarchy’, according to this author, admit that human laws may determine the person of the monarch, even if they cannot confer his power. (This, incidentally, was hardly true, for extreme Tories held that not only the power of kings but hereditary succession also was of divine origin.) The person of the monarch, which was the chief issue in dispute in England, was to be decided by the constitution, and he would prove that allegiance to William and Mary was lawful by both the ‘equity’ and the letter of our fundamental law, as elucidated by the constitutional practice of the kingdom. He then cites the laws of Edward the Confessor, Bracton, Fleta, the Mirror of Justices, and other authorities in proof of the existence of an original contract and of the consequences of its breach by the king, and refutes writers who said ‘there never was any pact between king and people, no funda¬ mental terms of government agreed between them’. Turning from theory to practice, he adduces a series of historical precedents from Anglo-Saxon times, the Barons’ Wars, Magna Carta and its confirma¬ tions, the treatment of Edward II and Richard II, besides examples 1 Above, pp. 88-91. Cf. also David Owen (below, Note Q) and Richard Baxter (above, p. 134). 2 Slate Tracts (1689), i. 138, 140. 3 Cf. above, p. 1.

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from the history of other nations, to prove that the English monarchy is elective, and that on the dissolution of the contract between the king and his former subjects power returns to the people. Examples of ideas and methods of argument like these could readily be multiplied. A typical specimen of an attempt to substantiate the charges against James II from the records of the past is in An Histori¬ cal Account of some Things relating to the Nature of the English Government and the Conception which our Forefathers had of it.1 An even more laborious variation of this method was undertaken by James Tyrrell (author of Patriarcha non Monarcha) in a work entitled Bibliotheca Politico, which consists of fourteen dialogues on the his¬ tory and nature of the English constitution.2 The tenth dialogue dis¬ cusses the question ‘whether a King of England can ever fall from or forfeit his royal dignity for any breach of an original contract or wilful violation of the fundamental laws of the kingdom’, and asks ‘whether King William (commonly stiled the Conqueror) did by the conquest acquire such an absolute unconditional right to the Crown of this realm, for himself and his heirs, as can never be lawfully resisted, or forfeited, for any male-administration or tyranny whatever’. Tyrrell then finds proof of the original contract in the first institution of kingly government by election, and not by hereditary succession, in the Great Council of the Anglo-Saxons, which reserved certain powers to itself, so that by these ‘original constitutions of the kingdom’ the king must have entered into a compact with the people for ‘the maintenance and observation of these fundamental rights’. Even though by the Conquest the English temporarily lost their ancient rights and privileges, they later regained them, either as a result of mixing with the Normans, or by overt restoration in the form of royal charters. Other writers apparently felt the need of a firmer anchorage than history interpreted in this manner, and sought to revive in various ways the association of fundamental law with general principles of public safety, or reason, or morality, or divine will. According to A Brief Account of the Nullity of King James’s Title? the great question to be decided was ‘whether those destructive principles and under¬ takings which he afterwards openly espoused, so much contrary to 1 In State Tracts (William III), i. 575 ff. 2 These were published at intervals from 1691 onwards. A collected edition containing the first thirteen appeared in 1694. The fourteenth dialogue was not published until 1702, and a final complete edition came out in 1718. 5 In State Tracts (1705), i. 280 ff.

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his promises, did not render him incapable of the government, accord¬ ing to the fundamental laws of the land?’ For ‘a clear account of this question’, we are told, three inquiries are necessary: (1) ‘What are the fundamental laws of this land, with reference to the power and pre¬ rogative of the king and the liberties of the people?’ (2) ‘How great is the overruling force and obligation of them?’ (3) ‘What were the avowed principles and practices of the late king?’ It soon appears, however, that the author feels obliged to probe even more deeply, and as a preliminary to tackling the first inquiry ‘we may consider in general what are the fundamental laws of all government, and thence we may descend to consider more particularly what are the funda¬ mental laws of this land’. The author had no doubts about the answer, for ‘as it is granted on all hands that government is established by the light of Nature, so there need no positive edicts or statutes to show what are the fundamental laws of it’. As ‘Nature has taught’ that every society must have some kind of government, ‘a sovereign power and a political head’, so also ‘the same natural reason has taught that all the essentials of this sovereign power, which may be called the Regalia, should therein be established; and those laws by which they are established may be called fundamental laws’. It is evident from this sentence, and still more from what follows on the subject of the ‘particular fundamental laws’ of England (which are ‘framed’ with a ‘happy temperament’), that the author does not use the word sovereign in a technical, Hobbesian sense. The first point he stresses in the English constitution is the principle in virtue of which it had often been called a mixed monarchy. ‘It has been thought reasonable'd we read, ‘that the whole legislative power should not be lodged in the hands of the king only, but the people require to be governed as becomes reasonable creatures. And herein their liberty does chiefly consist, that they can be obliged by no laws but such as themselves approve and judge most meet for the common good.’ This reasonable constitutionalism, it would appear, has divine approval, for ‘this is the prime fundamental law, that the Law of God should be owned supreme’. It followed that ‘no doctrines of religion should be imposed but such as the people may perceive, and by their representa¬ tives acknowledge, as being conformable to the Divine Law’. Other features of the English constitution were also fundamental, among them not only the principle ‘that the people should enjoy the sole 1 My italics. The implication is that the ultimate deciding factor in the make-up of the constitution is conformity with reason.

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THE REVOLUTION OF 1688

possession of their lives and estates in such manner as the law pre¬ scribes’, but parliamentary control of finance and trial by jury as well. These fundamental laws, we are assured, are ‘the prime branches of our common law’ and ‘antecedent to all statute laws’. Furthermore, ‘if we consider the great authority of these laws, the very nature of the thing requires that they should overrule all other laws, which were made only to be subservient to ’em. . . . Therefore the harmony and analogy of our constitution requires that all other laws should be construed in a sense consistent and agreeable to these laws.’ If by this the author meant only that acts of parliament in deroga¬ tion of common-law principles should be construed strictly by the courts, he was on firm ground, but actually his meaning seems to have been both wider and vaguer than this. He remarks, somewhat crypti¬ cally, that ‘it is confessed by lawyers and politicians that the Reason of State is the rule and measure of all laws’, a principle which usually connoted an intention by governments to act arbitrarily or tyranni¬ cally rather than to respect ethical principles; yet he assures us that ‘it is a maxim of our law, that the Laws of God and Nature should take place before all other laws’. He also believed that Magna Carta ‘contains . . . the principal heads of caution against such abuses as might tend to the subversion of these fundamental laws’, cited the act 42 Edward III, c. 1, as declaring ‘that all acts and statutes shall be null which are contrary to Magna Charta’, and drew the conclusion that ‘if the Members of Parliament . . . should pass any acts which might seem to tend to the enslaving of the people, such statutes shall be so far null, or they shall be construed in such a qualified sense as may be consistent with the fundamental laws’; for ‘if our fundamental laws require themselves to be observed beyond all other laws, they must need invalidate all such pleas as might be brought from any other laws’. Apart from the impossibility of nullifying acts of parliament, this was hopelessly vague as a practical test of legislation. Even if we dis¬ miss this pamphlet, however, as a piece of exaggerated partisanship, it remains true that fundamental law was still an exceedingly com¬ mon expression to denote the constitutional principles which, in spite of party differences, the great majority of Englishmen agreed and took pride in accepting as characteristic of English government. Sir William Petty, for example, discussing impediments to English greatness, and the possibility of removing them, suggested that much might be said on the question ‘whether it be an impediment that the power of making war and raising money be not in the same hand? . . . But I

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leave it’, he added, ‘to those who may more properly meddle with fundamental laws.’1 Belief in fundamental law was often associated, as by Lord Somers, who applied it to the sanctity of the coronationoath, with ‘the law of God, not to be abrogated by man’. ‘Those who flatter a king that he is above the law’, he wrote, ‘do most notoriously contradict one of the first axioms of our regal government, which is that Lex facit Regerrr, and he hath originally subjected himself to the law by his coronation-oath. This proves a king of England to be a king by law: as also that the coronation-oath is a fundamental law of this kingdom.’2 Another writer, more mundane, put human benefit above all else, and apparently thought that the will of God himself could be discerned in its light. The consideration of the public good was the supreme law by which the actions of both kings and subjects should be guided. Public good, in fact, was the fundamental law of all societies, and no law contrary to it could be valid. More than this, the public good was not only ‘the foundation of all human laws’, but of God’s laws also, for God, being perfectly happy in himself, can have had no other motive for creating man but to make him happy in this life as well as in the life to come. In practice, we gather, the public good meant the secure enjoyment of property, and judgement by known and impartial laws. It followed that as all magistrates derive their power from the people, who conferred it on them for the sake of obtaining these benefits, no magistrate has arbitrary power.3 This pamphlet, it is evident, was largely influenced by Locke, in whose political system the concept of fundamental law plays an im¬ portant part. It is true that he recognized the ‘supremacy’ of parlia¬ ment, but by this Locke did not mean its sovereignty in the Hobbesian sense. In the first place, the legislature was subject to natural law, practically as well as morally, for it ran the risk of being overthrown in a revolution if it abused its trust. This obligation Locke specifically calls fundamental: ‘The first and fundamental natural law, which is to govern even the legislative itself, is the preservation of the society, and (as far as will consist with the public good) of every person in it.’ The reason for the preservation of society was presumably the same as ‘the great end of men’s entering into society’, namely, ‘the en¬ joyment of their properties in peace and safety’. Since ‘the great 1 W. Petty, Political Arithmetic (1690), in An English Garner, ed. E. Arber, vi. 377. 2 The Judgement of Whole Kingdoms and Nations (3rd edn., 1710),pp. 14,28. 3 An Essay concerning Obedience to the Supreme Power (ascribed to M. Tindal, 1694), in State Tracts (1706), ii. 433, All-9.

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instrument and means of that’ was ‘the laws established in that society’, there followed necessarily ‘the first and fundamental positive law of all commonwealths’, viz. ‘the establishing of the legislative power’, which was to be ‘sacred and unalterable in the hands where the community have once placed it’.1 The legislature was also to be limited in other ways: it must not be ‘absolutely arbitrary over the lives and fortunes of the people’, or govern by ‘extemporary arbitrary decrees’, but ‘is bound to dispense justice, and decide the rights of the subject, by promulgated standing laws, and known authorized judges’. Further, it must not invade the rights of property, nor ‘transfer the power of making laws into any other hands: for it being but a dele¬ gated power from the people, they who have it cannot pass it over to others’. These restrictions Locke describes as ‘the bounds which the trust that is put in them by the society, and the law of God and nature, have set to the legislative power of every commonwealth’.2 In these fundamentals we recognize elements with which we are already familiar—the maxim of salus populi,3 the rights of private property, and the sanctity of the structure of the constitution. While these ideas thus long continued to be part of the mental furniture of many Englishmen, the doctrine of sovereignty was slowly making headway against them. One of those who had become con¬ vinced that this, rather than the idea of fundamental law, was the real key to the English constitution was Lord Halifax. The ‘Trimmer’, he explained, was no extremist, leaning neither to ‘monarchy, a thing that leaveth men no liberty’, nor to ‘a commonwealth, such a one as alloweth them no quiet’, but preferring ‘a wise mean between these two barbarous extremes’. Consequently ‘our Trimmer admireth our blessed constitution, in which dominion and liberty are so happily reconciled ... in a just proportion—no tympany, no unnatural swell¬ ings either of power or liberty’. He is not dazzled by ‘the most glitter¬ ing outside of unbounded authority’, which will be found to conceal ‘nothing but poor and miserable deformity within’, and therefore he ‘is a friend to parliaments, notwithstanding all their faults and ex¬ cesses’, for ‘though they at some times be troublesome to authority, yet they add the greatest strength to it under a wise administration. He believeth no government is perfect except a kind of omnipotency 1 J. Locke, Second Treatise of Civil Government, § 134. 2 Ibid., §§ 135-42. Anyone claiming to levy taxes without the consent of the people ‘invades the fundamental law of property and subverts the end of government’ (§ 140). 3 See Note W, p. 230.

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reside in it, to be exercised upon great occasion.’ Now this, the author adds, ‘cannot be attained by force alone upon the people, let it be never so great. There must be their consent too.’1 We might interpret this to mean that though sovereignty was intolerable in an autocrat, it was desirable in a government responsible, through representative institutions, to the governed. In Halifax’s time, of course, this form of our modern constitution lay yet in the future, and the powers of the monarch, and of ministers appointed by and responsible to him, were great enough for the term ‘mixed government’ or ‘a bounded monarchy’ to be still appropriate.2 Halifax’s ‘omnipotency’, in fact, seems to refer rather to powers held in reserve for emergencies than to the everyday exercise of the normal functions of government. But fundamental law in its current political senses, he thought, was only a misleading expression. Every party [he wrote]3 when they find a maxim for their turn, they presently call it a Fundamental-, they think they nail it with a peg of iron, whereas in truth they only tie it with a wisp of straw. The word soundeth so well that the impropriety of it hath been the less observed. But as weighty as the word appeareth, no feather hath been more blown about in the world than this word, Fundamental. . . . Fundamental is used as men use their friends—commend them when they have need of them, and, when they fall out, find a hundred objections to them. Fundamental is a pedestal that men set everything upon that they would not have broken. It is a nail everybody would use to fix that which is good for them; for all men would have that principle to be immovable that serves their use at the time. Fundamental is a word used by the laity as the word sacred is by the clergy, to fix everything to themselves they have a mind to keep, that nobody else may touch it.4 A true fundamental [he continues] must be like the foundation of a house; if it is undermined, the whole house falleth.

But he is more than doubtful about the whole notion of immovable fundamentals, for in reality everything changes. ‘Everything that is created is mortal, ergo all fundamentals of human creation will die.’ 1 The Character of a Trimmer, in Life and Letters of George Savile, Marquis of Halifax, ed. H. C. Foxcroft (1898), ii (Works), 287-99. 2 Halifax used these terms in his Rough Draft of a New Model at Sea, ibid. 461. 3 Political Thoughts and Reflections, ‘Of Fundamentals’, ibid. 490. 4 A note suggests that this sentence, which may have become displaced, would be appropriate at this point.

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‘The fundamentals in divinity’, like those in philosophy and astro¬ nomy, have been changed several times at various periods, and Even in morality one may more properly say there should be funda¬ mentals allowed than that there are any which in strictness can be main¬ tained. However, this is the least uncertain foundation; fundamental is less improperly applied here than anywhere else. Wise and good men will in all ages stick to some fundamentals, look upon them as sacred, and preserve an inviolable respect for them; but mankind in general [he adds] make morality a more malleable thing than it ought to be.

Halifax then mentions some examples of what are considered to be fundamentals, and shows that they are all open to exceptions. After a reference to the overriding claim of salus populi, he concludes that it is impossible to call the constitution fundamental: ‘even in this case there can be nothing fixed, but it must vary for the good of the whole. A constitution cannot make itself; somebody made it, not at once, but at several times. It is alterable; and by that draweth nearer perfection; and without suiting itself to different times and circumstances, it could not live. Its life is prolonged by changing seasonably the several parts of it at several times.’ It would appear, then, that the notion of fundamentals is so uncer¬ tain as to be useless in practice, and Halifax restates, more definitely, his preference for what amounts to the doctrine of sovereignty. The reverence that is given to a fundamental in a general unintelligible notion [he writes] would be much better applied to that supremacy or power, which is set up in every nation in differing shapes, that altereth the constitution as often as the good of the people requireth it; neither King nor people would now like just the original constitution without any varyings. I can make no other definition of a true fundamental than this, viz. that whatever a man hath a desire to do or to hinder, if he hath uncontested and irresistible power to effect it, that he will certainly do it; if he thinketh he hath that power, though he hath it not, he will certainly go about it. . . . I lay down, then, as a fundamental—first, that in every constitution there is some power which neither will nor ought to be bounded. . . . Property is not a fundamental right in one sense, because, in the begin¬ ning of the world, there was none; so that property itself was an innova¬ tion introduced by laws. ... Magna Charta would fain be made to pass for a fundamental [he adds] and Sir Edward Coke would have it that the Grand Charter was for the

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most part declaratory of the principal grounds of the fundamental laws of England. If that referreth to the Common Law, it must be made out that every¬ thing in Magna Charta is always and at all times necessary in itself to be kept, or else the denying a subsequent parliament the right of repealing any law doth by consequence deny the preceding parliament the right of making it.

There are objections to both of these alternatives, and in reality the English constitution is something quite different, involving the prin¬ ciple of sovereignty. The laws under the protection of the King govern in the ordinary administration; the extraordinary power is in Acts of Parliament, from whence there can be no appeal but to the same power at another time. To say a power is supreme, and not arbitrary, is not sense. If the Common Law is supreme, then those are so who judge what is the Common Law; and if none but the Parliament can judge so, there is an end of the controversy; there is no fundamental, for the Parliament may judge as they please—that is, they have the authority. But they may judge against right—their power is good, though their act is ill; no good man will outwardly resist the one, or inwardly approve the other. There is, then [he sums up], no other fundamental but that every supreme power must be arbitrary.

Halifax’s concluding paragraphs are of special interest for the light they throw on the way in which the sovereignty of parliament was coming to be recognized, even though the transition from the idea of it as essentially a court to the idea of it as a legislature was still incom¬ plete. Parliament can alter common law because it is the supreme court; it can judge as it pleases, and so has an authority which no other body can override. Parliament, in fact, as contemporary lawyers often said, was the dernier resort, the supreme court of appeal. No doubt the supremacy of parliament, and more particularly its legis¬ lative supremacy, was powerfully reinforced by the fact that the House of Commons was a representative assembly, and so could claim for its acts the backing of popular consent. But even in the late seventeenth century this aspect of parliament had by no means finally superseded its character as primarily as a court. So much is evident from W. Petyt’s Lex Parliament aria, published in, 1689, in which great emphasis, supported by well-known quotations from Smith and the fourth book of Coke’s Institutes, is laid on the ‘transcendent’ and ‘absolute’ power of parliament. The author recognizes (thinking, no

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doubt, of the procedure in impeachments) that ‘the House of Com¬ mons is a House of Information and Presentment, but not a House of Definitive Judgement’,1 which was the function of the House of Lords; but parliament as a whole is described as ‘a Court of very great Honour and Justice’, and the dedication of the treatise is ‘To the Most Supreme Court of the Kingdom, the Parliament of England’.2 Even more instructive in this respect is a work written some years earlier, the treatise by Sir Matthew Hale L.C.J. on The Jurisdiction of the Lords’ House of Parliament,3 at the conclusion of which he4 attacks what he calls ‘extravagant assertions’ that the House of Lords is ‘the supreme court. . . from which no appeal lies’. Hale points out that ‘the regiment of England is monarchical’, although it is true that ‘the king cannot make laws, nor impose taxes, without the advice and assent of both his houses of parliament’.5 From this he infers that the supreme court of this kingdom is neither the house of lords alone, nor the house of commons alone; no, nor both houses without the king. The high court of parliament, consisting of the king and both houses, is the supreme and only supreme court of this kingdom, from which there is no appeal. Wherever the dernier resort is, there must be the sovereignty; and so this word is constantly used and joined with it. Not only does Hale connect sovereignty with supreme judicial power; he thinks this is the source of legislative supremacy, for he continues: If this should be, that the supreme jurisdiction without appeal, the dernier resort, were to the house of lords, then is the legislative power virtually and consequentially there also; or at least that power lodged in the king and both houses were insignificant. For what if the lords will 1 W. Petyt, Lex Parliamentary, p. 66. 2 As Mr. M. A. Thomson points out (Const. Hist, of England, iv, 16421801, p. 263), the Declaration of Rights resembled the judgement of a court, as it purported to state existing law rather than to alter it. 3 Hale died in 1676. This work was still in manuscript at his death, and was not published, in fact, till 1796. 4 Op. cit., pp. 204-7. 3 With the views expressed in this treatise compare Hale’s criticism of Hobbes’s doctrine of sovereignty in Reflections . . . on Mr. Hobbes his Dia¬ logue of the Law, printed in W. S. Holdsworth, H.E.L. v. 500-13. To Hale, Hobbes’s doctrine meant that the king was an irresponsible autocrat, and he is at pains to point out, with much learning, that this was not so, but that while ‘the king is the only supreme governor of this realm, and as incident to that supreme power he hath among others these great powers of sovereignty’ (a list follows), there were legally prescribed and defined ways of exercising these powers. Other functions of government required the co-operation of parlia¬ ment, and so on.

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give judgement against an act of parliament, or declare it null and void? If they have the dernier resort, this declaration or judgement must be observed and obeyed and submitted unto irremediably; for no appeal lies from their judgement, if they be the supreme court. . . . The truth is [he concludes] it is utterly inconsistent with the frame of a government, that the supreme power of making laws should be in the king with the advice of both his houses of parliament, and judgement should be in one of the houses without the king and the other. Later he seems to imply that legislation is the determinant function, of which judicial supremacy is the consequence, for he says ‘it is not only de facto true in our government, but it is most necessary, that the supreme decisive power or jurisdiction and the dernier resort must be where the legislative power is’. In any case, irrespective of which was the cart and which the horse, the important point for Hale was that they went together: ‘The high court of parliament consisting of the king and both houses of parliament are certainly the only supreme court of this kingdom.’ The disputes between the two houses which flared up in Charles II’s reign over the well-known cases of Shirley v. Fagg and Skinner v. the East India Company arose partly because the nature and powers of parliament were still incompletely defined, and the Commons were loth to admit that the judicial functions of a supreme court of appeal lay wholly in the House of Lords alone. Another point still to be cleared up, involving the relations between parliament and the com¬ mon-law courts, was the precise status of what was called ‘the law and custom of parliament’, or lex et consuetudo parliamenti. In the eighteenth century some politicians and lawyers seemed to think that this was ‘fundamental’. We may also notice that as the legislative sovereignty of parliament was more fully recognized, at the expense of fundamental law, more faith was placed, by those (and they were many) who still believed in the virtues of a mixed or balanced consti¬ tution, on the separation of powers as the effective recipe for political liberty. This, whether in theory or practice, was scarcely newer than fundamental law itself, but it now began to be a dogma.

CHAPTER XI

THE EIGHTEENTH CENTURY When the eighteenth century opened, and still more when the

Hanoverians replaced the Stuarts on the throne, the great constitu¬ tional issue which had dominated the history of the seventeenth cen¬ tury was so far decided that we might expect the idea of fundamental law to have died a natural death. This indeed was the fate that ulti¬ mately overtook it in this country, but not for quite a long time yet. When we recall the conservatism of most people’s mental habits, and the ubiquitous appeals that had been made to fundamental law at the time of the Revolution of 1688 and afterwards, this should not sur¬ prise us. We shall find, in fact, that the old slogans were apt to be revived with almost unfailing regularity whenever political feelings were aroused by some party dispute. A few examples will suffice to show what vitality the idea of fundamental law still retained. A heated controversy arose over the affair of the Kentish Petition in 1701,1 when some Whiggish gentlemen of that county asked the House of Commons to vote supplies to enable the king to engage in a war with France. Louis XIV’s reckless policy was soon to persuade even the Tories that such a war was inevitable, but at the moment they thought otherwise. They were in a majority in the Commons, passed an angry resolution condemning the petition as ‘scandalous, insolent and sedi¬ tious’, and ordered the arrest of its promoters. Thereupon a brisk war of pamphlets broke out. In some of these the language used seems rather old-fashioned, as when the House was accused of invading ‘that fundamental liberty of our persons which by Magna Charta, and several other statutes, as well as the most ancient customs and laws of this land, we are intitul’d to’.2 Long before this, of course, Magna Carta had acquired its almost legendary fame, as the fountain-head of English constitutional liber¬ ties, which it still retains in the popular imagination (on both sides of 1 Another celebrated occasion for the repetition of old slogans was the impeachment of Dr. Sacheverell (1710). A number of speeches delivered in the course of the trial contained references to the ‘ancient fundamental con¬ stitutions’, ‘the undoubted and fundamental law of the kingdom’, &c. Cf. C. Grant Robertson, Select Statutes, Cases and Documents, pp. 425, 428, 435. 2 Jura Populi Anglicani (1701), in State Tracts (William III), iii. 267.

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the Atlantic), in spite of the efforts of historians in the present century to ‘debunk’ it. In fact, however, the issue raised by the Kentish Petition was a new one. Here was no claim to limit the powers of the king, or to deny the sovereignty of parliament as a whole, in the name of Magna Carta or any other manifestation of fundamental law. It was the House of Commons whose actions were challenged as arbitrary, and on more than one occasion in the eighteenth century its behaviour laid it open to a similar charge. It was often pointed out, by the more broadminded of contemporary lawyers and politicians as well as by subsequent historians, that the House of Commons, having won the seventeenth-century battle against the royal prerogative, proceeded in the eighteenth century to act with cynical disregard for any interests other than its own. In so doing it often tried to cover its pretensions by the claim of parliamentary privilege, which was thus potentially as serious a danger to the rule of law as ever the prerogative had been. That this was the real point at issue appears clearly in a couple of tracts composed for the occasion by Daniel Defoe. In Legion’s Memorial, addressed to the House of Commons, he put four main points: 1. That it is the undoubted right of the people of England, in case their representatives in Parliament do not proceed according to their duty and the people’s interest, to inform them of their dislike, disown their actions, and direct them to such things as they think fit.... 2. That the House of Commons, separately, and otherwise than by bill legally passed into act, have no legal power to suspend or dispense with the laws of the land, any more than the king has by his prerogative. . . . 3. That the House of Commons has no legal power to imprison any¬ one. ... 4. That if the House of Commons, in breach of the laws and liberties of the people, do betray the trust reposed in them, and act negligently, or arbitrarily and illegally, it is the undoubted right of the people of England to call them to an account for the same. .. .*

There is here no specific mention of fundamentals, but the idea was only just round the corner, and in The Original Power of the Collective Body of the People of England (a reply to a pamphlet by Sir Hum¬ phrey Mackworth vindicating the claims of the House of Commons, when, as so often happened on occasions like this, the affair developed into a quarrel between the two Houses) it came out into the open. What Defoe now maintained was not merely that there were limits to 1 Legion’s Memorial, p. 4, in Works (ed. W. Hazlitt, 1843), vol. iii.

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what the House of Commons by itself could do, but even the king in parliament, the legally omnipotent sovereign, as we should say, had a line to toe—the overriding supremacy of the people. There must be some power [he wrote] prior to the power of King, Lords and Commons, from which, as the streams from the fountain, the power of King, Lords and Commons is derived. The power vested in the three heads of our constitution is vested in them by the people of England, who were a people before there was such a thing as a constitution. There must always remain a supreme power in the original to supply, in case of the dissolution of delegated power.1

Defoe was here probably following Locke’s theory that behind and above the supremacy of the legislature lay another ‘supreme power’, that of the people, although this normally lay dormant and only took effect at a revolution. But Defoe went farther than this, and farther too than a modern political theorist could go. We often hear nowadays of the will of the people, and of a mandate from the electors, but poli¬ ticians generally treat this as authorizing and encouraging them to give legislative effect to their party programme, regardless of opposi¬ tion, in or out of parliament. There is certainly no suggestion that the legal validity of their legislation could be impugned, although of course it may be repealed if they lose the next election. But Defoe wrote as if he thought that the people as the source of political autho¬ rity deliberately held some of it back, with the result that the legislature lacked complete sovereignty. The people of England [according to Defoe] have delegated all the executive power in the King, the legislative in the King, Lords and Com¬ mons, the sovereign judicature in the Lords, the remainder is reserved in themselves, and not committed, no, not to their representatives: all powers delegated are to one great end and purpose, and no other, and that is the public good. If either or all the branches to whom this power is delegated invert the design, the end of their power, the right they have to that power ceases, and they become tyrants and usurpers of a power they have no right to.

The only alternative, he pointed out, to accepting the idea that the people are the source of all power is that ‘we must fly to the old weak refuge of a power jure divino'. Defoe’s language is not in accordance with modern usage (it will be noticed, for instance, that he calls the judicature sovereign, not the °P..cit ’ PP- 8> 9, in Works, vol. iii. The pagination of each item in this edition is separate.

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legislature),1 and we cannot be sure how clearly he distinguished be¬ tween a strictly legal limit to the capacity of the government and a moral obligation on it to govern well, or for ‘the public good’. A sentence a little later on suggests that he thought the former applied in England, for he said that ‘the genius of this nation has always appeared to tend to a monarchy, a legal, limited monarchy’.2 If this is so, we are still in the world of fundamental law, and close to the position of the numerous writers who spoke thus of salus populi. Let us look next at some points that arose out of the case of Ashby v. White and others in 1704, when Matthew Ashby, a parliamentary elector at Aylesbury, sued the mayor and certain constables of the borough for refusing his vote at an election. The House of Commons asserted that any matters concerned with parliamentary elections were outside the jurisdiction of the common-law courts and cognizable only by themselves under the law and custom of parliament. A majority of judges in the court of Queen’s Bench agreed, but the House of Lords reversed their decision and gave judgement in Ashby’s favour, whereupon there was a clash between the two houses, which was accentuated when five other Aylesbury electors who had brought similar actions were also charged by the Commons with breach of privilege and committed to Newgate, in the face of support for their case in the Lords. Sir Humphrey Mackworth, speaking on behalf of the Commons against judicial intervention by the Lords, argued that if their jurisdic¬ tion were admitted ‘the Lords will be the sole judges at last, who have votes to chuse a House of Commons’. This would be ‘directly contrary to the fundamental maxim of the law and custom of parliament, that the two houses are mutual checks to each other, and sole judges of their own privileges’. This he thought ‘an excellent constitution, and admirably well contrived for the common safety: but how’, he asked, ‘can this constitution be preserved if the Lords can punish our officers and govern our elections?’3 The decision of the majority of the judges, as delivered by Powell J. in the case of the Aylesbury electors (or Paty’s case)4 is of some interest. It was based on the idea that the law of England consisted of several branches, of which the common law was only one, and the law and custom of parliament another, quite distinct from it. This was a case wholly within the range of the lex et 1 Cf. Sir Matthew Hale, above, p. 172. 2 Op. cit., p. 10, in Works, vol. iii. 3 S.T. xiv. 764. 4 Printed in C. Grant Robertson, op. cit., p. 413. 5725

N

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consuetudo parliaments so that the common-law courts had no juris¬ diction.1 Holt L.C.J. stood out against this view, and in his dissenting judgement, which was to win him the commendation of later genera¬ tions, though at the time he formed a minority of one, upheld the unity of the law under the supremacy of the common law. It is true that the grounds upon which he based his judgement (that a parliamentary vote, being attached to the ownership of property, was a right which was equivalent to a freehold, and consequently fell under the jurisdic¬ tion of the common-law courts)2 was typical of the eighteenth century, but behind it lay the whole principle of the rule of law, which could set limits to parliamentary privilege as well as to the royal prerogative. Holt treated the law and custom of parliament in the same way in his judgement in the Court of King’s Bench in the case of the earl of Banbury, who when indicted for murder claimed as a peer to be tried by his fellow peers. He sat there, said Holt, ‘to administer justice according to the law of the land; . . . and every law which binds the subjects of this realm ought to be either the common law and usage of the realm, or act of parliament’. He even said ‘as to the law of parliament he did not know of any such law’—a somewhat sweeping statement on the face of it; but presumably he meant that he refused to recognize its binding force, as a law, in the common-law courts, for, as he said later (brushing aside Mr. Attorney’s suggestion that it was inter arcana imperii), ‘if there was any such law and custom of parliament.. ., when this comes incidently in question before them, they ought to adjudge and intermeddle with it’.3 He ruled, therefore, that ‘the Earl of Banbury cannot be outed of his dignity but by attain¬ der, or act of parliament, or judgement in a scire facias upon his patent’.4 1 This notion implied that parliament was a court which could apply its own law. Other distinct branches of law, from this point of view, were ecclesiastical law, admiralty law, and so on. There was medieval precedent for this, as when it was said that ‘it hath not been used aforetyme that the Justiceys should in eny wyse determine the Privilegge of this high Court of Parlement’ (quoted in W. S. Holdsworth, H.E.L. ii. 445, n. 5). 2 Mentioning this line of argument, Mackworth said that ‘others’ insisted on it, so implying that Holt was not alone, but Mackworth dismissed it as ‘plausible at first sight, but in reality there is nothing in it’, and Holt’s brothers on the bench evidently concurred. 3 Holt’s remark about adjudging acts of parliament void (above, p. 10), which immediately follows this sentence, was part of an argument a fortiori: the courts which could so treat acts of parliament must be able to adjudicate in matters involving the law and custom of parliament. 4 i.e. his patent of nobility. The case is reported in Skinner, p. 526.

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When, more than a century later, the question of the jurisdiction of the courts in a matter involving parliamentary privilege again came up for decision,1 it is noteworthy that all the judges accepted Holt’s point of view. The common law whose supremacy was thus vindicated was, of course, no fundamental law that parliament could not change. Any rule of the common law could be altered or overridden by legisla¬ tion, but the point was that this could only be effected by proper legis¬ lative procedure, in which a bill had to pass both houses and receive the royal assent. Neither house could achieve it single-handed by a mere resolution. One of the interesting features of Powell J.’s judge¬ ment was that he did not treat the Commons’ resolution, as we should do, as essentially legislative—as an attempt to extend the scope of parliamentary privilege, and so in effect to alter the law, by an illicit alternative to an act of parliament. The Commons were just as much a court as the Lords: ‘the Commons have also a judicature, not by the common law’, and therefore, he declared, ‘the resolution of the Com¬ mons upon breach of privileges is a judgement, and the commitment an execution of it which cannot be controlled’. This may remind us of the case, half a century before, when John Streater was imprisoned by order of the Long Parliament (which then consisted of only one house), and the court took the line that ‘an inferior court cannot control what the parliament does’. On that occasion, however, the judges did not treat the order for Sweater’s imprisonment as an execution of judge¬ ment. On the contrary, although he made the point that a mere order of parliament was not the same thing as an act, the judges refused to accept this plea, and insisted on treating the order as a manifestation of the legislative power.2 In the early eighteenth century not only were these divergent views held among the judges, but even parliament itself apparently remained unaware of, or at any rate was capable of disregarding, the implica¬ tions of its legislative sovereignty. Notorious instances of this occur in the text of the act for the Scottish Union (1707). This cited, for example, an act of the Scottish parliament, ‘intituled Act for securing of the Protestant Religion and Presbyterian Church Government’, which provided that it was ‘to be inserted in any Act ratifying the Treaty and expressly declared to be a fundamental and essential Condition of the said Treaty or Union in all times coming’.3 Similar 1 In Stockdale v. Hansard (1839). 2 Cf. above, pp. 130 ff. 3 C. Grant Robertson, op. cit., p. 165.

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phraseology is repeated more than once in the course of the act, some¬ times with additional emphasis on the proviso that the treaty was to be ‘completed between the two kingdoms without any alteration thereof or derogation thereto in any sort for ever’, so as to be ‘the sure and perpetual Foundation of a complete and entire union of the two kingdoms of Scotland and England’.1 The explanation of such language presumably lies in the peculiar circumstances of the union, which was achieved by commissioners from both sides first agreeing on the articles of a treaty, which was subsequently ratified by the parliaments of both kingdoms. In drafting the treaty both sides naturally insisted on certain conditions being regarded as essential to the union, and no doubt everyone’s intention at the time was that the arrangement should be permanent. But there is no legal reason why it should remain so, and if parliament ever wished to gratify the demands of the Scottish nationalists it could repeal or amend the act of union whenever it thought fit.2 It would hardly be too much to say, in fact, that such phraseology, however well-intentioned at the time, or even necessary to satisfy jealous in¬ terests, was legally only a pious fraud. The best commentary on its legal effectiveness is the fate of the act for the Irish union. One clause in this provided that the churches of England and Ireland should be united, and ‘the continuance and preservation of the said united church, as the established church of England and Ireland, shall be deemed and taken to be an essential and fundamental part of the union’.3 This did not save the Church of Ireland from disestablish¬ ment by act of parliament in 1869, nor did the provision that the political union of the two countries should ‘be in force and have effect for ever’4 prevent parliament debating Home Rule and eventually acknowledging the Irish Free State. In his textbook on The Law of the Constitution Dicey pointed to the enactment of the Septennial Act (1716) as proof positive that parliament was a sovereign law-making body.5 So indeed it was, but if we read some of the speeches in the debate on the Septennial Bill, 1 C. Grant Robertson, op. cit., pp. 175, 176. Cf. also the wording on p. 177 (clauses ix and xi). 2 See Note x 230. C. Grant Robertson, op. cit., p. 290. 4 Ibid., p. 292. Bacon’s comment on Henry VII’s Treason Act will be remembered (above, p. 28): ‘Things that do not bind may satisfy for a time.’ Similarly the anti-papal declaration in the Bill of Rights was to ‘stand remain and be the Law of this Realm for ever’. It was altered at the accession of George V in 1910 (ibid., pp. 137, 138). 5 A. V. Dicey, The Law of the Constitution, p. 45.

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and the protest of the dissentient peers,1 we cannot fail to be struck by the persistence, in many minds, even at this late date, of the notion of a fundamental constitution limiting the capacity of the legislature. Mr. Shippen said he could not conceive ‘by any rule of reason or law, that we, who are only representatives, can enlarge to our own advan¬ tage the authority delegated to us; or that, by virtue of that authority, we can destroy the fundamental rights of our constituents’. He knew, he continued, that ‘the notion of the radical power of the people hath been extended to a degree of extravagance and absurdity’ which he would not wish to support, but he accepted the principle that the power of the legislature was derived from the electors. ‘You have no legislative capacity’, he told his fellow-members, ‘but what you derive from them. You were chosen under the Triennial Act, and could only be chosen for three years. Our trust therefore’, he inferred, ‘is a trien¬ nial trust; and if we endeavour to continue it beyond its legal duration, from that instant we cease to be trustees of the people, and are our own electors; from that instant we act by an assumed power and erect a new constitution.’2 Shippen’s language suggests, I think, that he was making an essen¬ tially moral appeal rather than suggesting that parliament could not alter the constitution if it were so ill-minded. Mr. Snell made a speech in the same vein. He remarked that ‘the people of England have a fundamental indisputable right to appoint their representatives in Parliament, and by a law still in being, for three years and no longer ... have chosen us their representatives, in pursuance of that law; and therefore, whenever that triennial term shall expire, have a right to chuse new ones’. This right, however, was hardly a legal right enforce¬ able in the courts, for he was obliged to admit that by an election ‘the legislature is ... vested with the whole power of their electors’, so that ‘the people of England having chosen us to represent them, we are thereby empowered not only to make laws but to alter or repeal any law in being, as we shall think fit... ; and they will undoubtedly be bound thereby.3 But then,’ he added, ‘this is to be understood when the subject-matter of the laws we make is within compass of the trust 1 They maintained that ‘frequent and new parliaments are required by the fundamental constitution of the kingdom’, and considered that ‘the practice thereof for many ages ... is a sufficient evidence and proof of this constitution’ (C. Grant Robertson, op. cit., p. 202). 2 The Historical Register (1717), i. 370; Parly. Hist. vii. 317. 3 This was why Rousseau said the English people were slaves, and only free at general elections (Contrat Social, iii. c. 15).

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which the people have or may at least be supposed to delegate to us.’1 The vagueness of these concluding words implies, I think, that Snell was aware, or at any rate half aware, that the trust he referred to was no more than a political metaphor. Other speakers, however, convey the impression that they meant to insist not so much on the moral obliquity as on the actual legal invalidity of the prolongation by exist¬ ing members of their tenure of their seats. This was certainly Sir Robert Raymond’s view, though he evidently put it forward with some diffidence. ‘With great submission I speak it’, he said, ‘in my poor opinion King, Lords and Commons can no more continue a parliament beyond its natural2 duration than they can make a parlia¬ ment.’ It was true that ‘at extraordinary junctures conventions have been turned into parliaments’, but their actions had had to be con¬ firmed by subsequent legal parliaments, and he felt sure that if the Septennial Bill were passed ‘and this parliament continued more than three years, there will be an act in the succeeding parliament to con¬ firm whatever shall be done after the three years’.3 Mr. Bromley’s allusion to doubts about the validity of the statute providing that the Long Parliament could not be dissolved without its own consent4 implies that he was of the same opinion, which was also shared by Mr. Archibald Hutcheson, who explicitly repudiated the idea that parliament had full legislative powers without any restrictions or limitations. He denounced this as ‘a plain begging of the question and a very fallacious way of reasoning’, and instanced the case of a man constituting someone his attorney for a period of three years. During this term the man would be bound by his attorney’s actions, but the attorney would not be ‘enabled to add four years more to the con¬ tinuance of his power’. In spite of admitted ‘disparities’ between a power of attorney and the powers ‘given by the people to their representatives in parliament’, he thought ‘that to the purpose I intend it, the parallel will hold’. He agreed that the powers of representatives were ‘very large, but I can by no means go the length of some gentle¬ men to think them absolutely unlimited’. They might even be forfeited in case of abuse. Hutcheson left no doubt about his opinion, for he declared that although the Septennial Bill might ‘go through all the forms of an Act of Parliament, pass both Houses, and have the Royal 1 2 3 4

Hist. Register, i. 369; my italics. This seems an odd epithet, but cf. Whitelocke’s use of it, above, p. 59. Hist. Register, i. 396; Parly. Hist. vii. 339. Ibid., p. 334. The act was 16 Ch. I, c. 7.

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Assent,... it will still remain a dead letter and not obtain the force of a law’, and he professed to be ‘warranted by one of our greatest lawyers to affirm “that an act of parliament may be void of itself’”.1 After this definite assertion of the legal invalidity of the Septennial Bill, however, his language became vaguer and cloudier. It would be ‘against common sense and reason ... to be Felo de se, to destroy that constitution, or any essential part thereof, upon which our existence in our political capacity depends’.2 He also cited ‘the authority of learned divines’ and in particular the Bishop of Bangor (the celebrated Dr. Hoadly, whose political philosophy was inspired by Locke), who had ‘unanswerably made it evident that all people have natural rights, and that a free people have legal ones, which they may justly main¬ tain, and which no legislative authority whatever can deprive them of’. As further proof of his contention that the power of parliament was not unlimited he then asked what the position would be if it were proposed to re-enact some notorious acts of former reigns. Suppose ‘we should pass a law, as was done in the reign of Richard II..., that the power of both houses should be vested in twelve great lords’, or (as was done under Henry VIII) that the king’s proclamations should have the force of law, or (as in 1641) that parliament should not be dissolved without its own consent. In turbulent times the country had submitted to these laws, ‘but surely no gentleman will say’, he ex¬ claimed, \ . . should they now be re-enacted, that they would be legally in force’. Finally he produced his trump card. I will suppose one case more, which has never happened, and God forbid it ever should! That an act of parliament should pass to vest the whole legislative authority in the single person of the prince, to cloath him with an absolute dictatorial power, to extinguish for the future both houses of parliament, and all other rights and privileges of the people. ... I am sure no true Briton will ever say that such an act of parliament as this would have the least validity or force, or be any wise binding on the people.

The answer can only be, of course, that legally it would be as valid as any other act duly passed. We may recall that not many years ago 1 Ibid., pp. 348, 349. He did not mention any lawyer by name, and it seems hardly conceivable that any contemporary lawyer can have given such an opinion. He may have meant Coke, but Mr. F. D. Wormuth thinks he meant Sir Robert Raymond (The Origins of Modern Constitutionalism, p. 187 n.). 2 But with this language cf. Sir H. Davenport’s speech in Hampden’s case, above, pp. 72-73.

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Sir Stafford Cripps and the Socialist League proposed that, once a clear Labour majority had been returned, the House of Lords should immediately be abolished and just such an enabling act or Emergency Powers Act, as it was to be called, should be passed, to invest the government with plenary powers to effect ‘a rapid and complete conversion of the capitalist into a socialist system’.1 Hutcheson, however, thought his monstrous supposition ‘full proof ... that the powers given by the people to their representatives are not absolutely unlimited; nor the power of the parliament itself so omni¬ potent as some are willing to suppose them’. But he never made it clear how the power of parliament was to be effectively limited in practice. He never suggested anything like judicial review, and the ultimate sanction he had in mind was probably, as with Locke, the threat of revolution. This is borne out by his remark that if the royal enabling act he had described were passed, it ‘would, in due time, expose the authors of it to the just vengeance of an injured Nation’.2 In that case, however, questions of legality would just have been swept aside by the force of events. Arguments like Hutcheson’s failed to carry the day, as is shown by the fact that the majority voted for the Septennial Bill, but we must not conclude that its supporters accepted the modern doctrine of legislative sovereignty which was its logical implication for Dicey. They regarded it as a quite exceptional measure, though necessary to safeguard peace and order at a time when the holding of a general election would have been too risky. Thus even if in one sense it seemed to violate fundamental rights, in another sense of the word (that of salus populi) it could be justified as preserving them. One writer adduced historical and other arguments for denying ‘that the people’s choosing their representatives in parliament as appointed by the Triennial Act is ... a fundamental part of our ancient constitu¬ tion’, but this did not necessarily mean that there was no ancient or fundamental constitution. Even the admission ‘that all parliaments have equal powers’, so that ‘one parliament can suspend, annul, or repeal the acts which a former parliament has made’,3 was compatible with belief in fundamental law, if the latter were understood, as we 1 Cf. the report of the Labour Party Conference in The Times, 4 Oct. 1933, and the leading article of 2 Oct., with its comment that this would amount to the House of Commons signing its own death-warrant. 2 Parly. Hist. vii. 349, 350. Cf. A Second Letter to a Friend in Suffolk, occasioned by repealing the Triennial Act (1716; B.M., T.l 108(18)), pp. 6, 11, 15,23.

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have seen it often must have been, as implying a moral obligation to respect historic rights, or even a wholesome regard for the force of public opinion, rather than a strictly legal limitation of parliament’s legislative capacity. In this sense belief in fundamental law was by no means extinct, and was vigorously upheld by Bolingbroke. In the dedication to his Dissertation on Parties (1733) he referred to ‘the series of misfortunes, by which we were divided formerly into parties, whose contests brought even the fundamental principles of our constitution into question’.1 The constitution was a mixed constitution, for it contained elements of ‘monarchical, aristocratical and democratical power’;2 on this account frequent elections to parliament were an ‘ancient and fundamental rule of our constitution’, in order that ‘the people should have frequent opportunities of calling their representatives to account, as it were, for the discharge of the trust committed to them’.3 He there¬ fore commended those who had wanted the Cavalier Parliament to be dissolved. Some, indeed, had desired this ‘with factious views’, but ‘others, on this honest and true maxim, that a standing parliament, or the same parliament long continued, changes the very nature of the constitution in the fundamental article on which the preservation of our whole liberty depends’.4 The same considerations stirred him to unreserved condemnation of the Septennial Act. If it had been foretold to those patriots at the Revolution [he wrote] who remembered long parliaments, who still felt the smart of them, who struggled hard for annual, and obtained with much difficulty, at the end of five or six years, triennial parliaments, that a time would come, when even the term of triennial parliaments would be deemed too short, and a parliament, chosen for three years, would choose itself for four more, and entail septennial parliaments on the nation; that this would happen, and the fruits of their honest labours be lost, in little more than twenty years; and that it would be brought about, while our government con¬ tinued on the foundations they had then so newly laid: if all this had been foretold at the time I mention, it would have appeared improbable and monstrous to the friends of the Revolution.3

Bolingbroke did not pretend that the Septennial Act was impossible or invalid, for after all it had by then successfully taken effect. Never¬ theless, he proceeded to challenge Bacon’s dictum that ‘there is 1 Works (1809 edn.), iii. 4. 3 Ibid., pp. 180-1, 187.

4 Ibid., p. 76.

2 Ibid., p. 214. 3 Ibid., pp. 188-9.

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nothing which a parliament cannot do’. He maintained, on the con¬ trary, that there was something beyond its powers. ‘A parliament cannot amend the constitution.’ ‘Why cannot?’ we may ask.1 Bolingbroke’s answer was that ‘the legislative is a supreme, and may be called, in one sense, an absolute, but in none an arbitrary power’, and he quoted Locke to the effect that it was ‘limited to the public good of the society’, and as its sole purpose was preservation it could ‘never have a right to destroy, enslave, or designedly to impoverish the subjects’. This was because ‘the obligations of the law of nature cease not in society’. And so we slide once more, almost imperceptibly, from English law to natural law, from legal limits to the obligations of conscience and the sanction of revolution. ‘Who hath the right and the means’, Bolingbroke asks, ‘to resist the supreme legislative power?’ Once more following Locke, he answers: ‘The whole nation hath the right; and a people who deserve to enjoy liberty will find the means.’ He expresses this in terms of a breach of ‘the bargain between the king and the nation, between the representative and collective body of the people’, which ‘would dissolve the constitution’. The people would then ‘return to their original, their natural right, the right of restoring the same constitution, or of making a new one’.2 We may query whether ‘right’ means anything in such circumstances. If a government is overthrown by a revolution, the intention will be to establish another government instead, but all this is outside the domain of law. If the revolution succeeds, one of its results will be the restoration of law and order. In a century dominated (as the eighteenth century was, until the rise of Benthamism) by the political theory of Locke, and by memories of the Glorious Revolution, it was only to be expected that natural law should remain an object of respect, and that echoes of the phraseology associated with it should continue to be heard. Cato’s Letters, for example, quoted the maxim Salus populi suprema lex esto as ‘a universal and everlasting maxim in government’, and declared that ‘it can never be altered in municipal statutes:3 no customs can change, no positive institutions can abrogate, no time can efface this primary law of nature and nations’. This sounds like an affirmation of funda1 Cf. Bentham’s ridicule of the idea that there were legal limits to the authority of a sovereign legislature, in A Fragment on Government (1776), c. iv, § 27. 1 Works (1809 edn.), iii. 271-2. 3 i.e. the laws of a particular country.

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mental law, but the meaning once more is that of Locke, for the writer continues: ‘The sole end of men’s entering into political societies was mutual protection and defence; and whatever power does not contribute to those purposes is not government but usurpa¬ tion.’ Punishment for treason, he continues, is justified by ‘the great principle of self-preservation, which is the first and fundamental law of nature’.1 The preface contributed by J. Fortescue-Aland to his edition of the work of his famous ancestor. Sir John Fortescue, to which he gave the title The Difference between an Absolute and Limited Monarchy (1714), is markedly influenced by Locke. Most of the laws of England, he thinks, are ‘founded on the Law of Nature’, and he makes an in¬ teresting gloss on Coke’s version of the purport of Magna Carta. He agrees that ‘Magna Charta was but a confirmation or restitution of the common law of England’, but ‘where my Lord Coke says that an Act of Parliament made against Magna Charta is void, he is not to be understood of every part of it, but it is meant only of the moral part of it, which is as immutable as Nature itself; for no Act of Parlia¬ ment can alter the nature of things, and make vertue vice, or vice vertue’.2 3 We may agree, for we need not follow Hobbes all the way when he said that law is the public conscience. But this is because nowadays the legislature does not usually attempt to interfere in the region of virtue and vice; it has too much other business on hand. All the same, it frequently makes into ‘offences’ actions in themselves neither virtuous nor vicious, just as it may legalize actions which some consciences would brand as sins. In the middle of the eighteenth century the courts on occasion still claimed for common law an inherent superiority, and the principles of reason could still be effectively invoked, even to override the pro¬ visions of a statute. In Omychund v. Barker3 the question arose whether the deposition of a witness of the ‘Gentoo’ religion, who had taken an oath in accordance with the ceremonies of his religion, was admissible as evidence, although the law of England required the oath to be taken on the Gospels. The Attorney-General, arguing in favour of admitting this evidence, cited ‘the author of the book called Doctor and Student’ in support of the principle that reason was ‘the first ground of all laws’, and submitted that as the point at issue had 1 (John Trenchard), Cato’s Letters (1720; 3rd edn., 1733), i. 66, 75. 2 Op. cit., pp. iv, xvi, xxix. 3 Chancery, M.T. 1744; 1 Atkyns, 21 ff.

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to be settled on general principles, ‘the only question is whether upon principles of reason, justice and convenience this witness ought to be admitted’. By the practice of England, and of all other Christian countries, non-Christians, including pagans, might be ‘admitted as witnesses and sworn according to their own form’. This principle should be applied to the ‘particular species of Indians’ now before the court, as it also should be in future if ‘another species of Indians’ appeared. ‘A statute’, he continued, ‘very seldom can take in all cases, therefore the common law, that works itself pure by rules drawn from the fountain of justice, is for this reason superior to an act of parlia¬ ment.’1 The Lord Chancellor (three other judges concurring) accepted this reasoning, and ruled that the Indian’s evidence should be ad¬ mitted. It would, of course, be a mistake to read too much into this decision, or to treat it as in any way a denial of the doctrine of parliamentary sovereignty, which was to be enunciated twenty years later in Blackstone’s Commentaries on the Laws of England. Blackstone indeed refers in his Introduction, as was characteristic of an eighteenthcentury treatise, to ‘the law of nature and the law of revelation’, which are the ‘two foundations’ of all human laws, the law of nature being the will of the Creator, and its first principles discoverable by ‘the due exertion of right reason’. Further, ‘if man were to live in a state of nature, unconnected with other individuals, there would be no occa¬ sion for any other laws than the law of nature and the law of God’. But in fact ‘man was formed for society’, whence arises the law of nations (i.e. international law) and municipal or civil law; and the latter he defines, much as Hobbes did, as ‘a rule of civil conduct prescribed by the supreme power in a state, prescribing what is right and prohibiting what is wrong’.2 Modern legal commentators are apt to dismiss Blackstone’s references to the law of nature as unimportant and perfunctory lip-service,3 and emphasize his insistence on the sovereign omni¬ competence of the legislature. It is in respect of the latter that modern lawyers have treated Blackstone as authoritative, but it is important not to regard him as more modern than he really was, as lawyers have also regarded Smith and Coke.4 Bentham’s criticism of 1 1 Atkyns, 32, 33. 2 W. Blackstone, Commentaries (1765), i. 40-44. 3 Cf. Sir F. Pollock, ‘A Plea for Historical Interpretation’, in 39 L.Q.R., p. 165; Sir Carleton Allen, Law in the Making (5th edn.), pp. 427, 428 and footnote. 4 Cf. above, pp. 7, 41, 42.

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Blackstone struck a different note, pointing out that the inconsisten¬ cies in the Commentaries were more than superficial.1 Certainly there are pages in the Commentaries where Blackstone gives a clear and straightforward exposition of the implications of legislative sovereignty. He quotes the well-known passage from the fourth book of Coke’s Institutes about the ‘transcendent and absolute’ power of parliament.2 He realizes that ‘acts of parliament derogatory from the power of subsequent parliaments bind not’. The legislature, he says, ‘is always of equal, always of absolute authority: it acknow¬ ledges no superior on earth, which the prior legislature must have been, if its ordinances could bind the present parliament’.3 He agrees that ‘acts of parliament that are impossible to be performed are of no validity; and if there arise out of them collaterally any absurd conse¬ quences, manifestly contrary to common sense, they are, with regard to those collateral consequences, void’. The power of the courts in such cases, however, can be overridden, for ‘if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it’. None of the examples generally quoted in support of the idea that the judges could reject an unreasonable statute really proved any such thing, ‘for that were to set the judicial power above that of the legislature, which would be subversive of all government’. The only latitude the judges had was that ‘where some collateral matter arises out of the general words, and happens to be unreasonable; then the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it’. As an example he cites Coke’s proposition that ‘if an act of parliament gives a man power to try all causes that arise within his manor of Dale; yet, if a cause should arise in which he is himself a party, the act is construed not to extend to that, because it is unreason¬ able that any man should determine his own quarrel’. Blackstone realizes, however, that even this cardinal principle of the common law is not absolutely sacrosanct. ‘If we could conceive it possible’, he con¬ tinues, ‘for the parliament to enact that he should try as well his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words as leave no doubt whether it was the intent of the legislature or no.’4 1 J. Bentham, A Fragment on Government (1776). 2 W. Blackstone, Commentaries, i. 160. 3 Ibid., p. 90.

4 Ibid., p. 91.

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Such language is indeed a clear and unmistakable statement of the modern doctrine, and Blackstone criticized ‘Mr. Locke and other theoretical writers’, who thought that the people always retained ‘a supreme power to remove or alter the legislative’. ‘However just this conclusion may be in theory’, Blackstone commented, ‘we cannot adopt it, nor argue from it, under any dispensation of government at present actually existing.’1 Other pages of the Commentaries, how¬ ever, seem much less modem. ‘The principal aim of society’, he tells us, ‘is to protect individuals in the enjoyment of those absolute rights which were vested in them by the immutable laws of nature.’2 Again, ‘political ... or civil liberty is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and ex¬ pedient for the general advantage of the public’.3 He also refers to ‘the absolute rights of every Englishman (which . . . are usually called their liberties)’, which ‘are founded on nature and reason’ and ‘coeval with our form of government,... and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger’.4 An historical recital follows, from Magna Carta and its confirmations to the Petition of Right, the Habeas Corpus Act, the Bill of Rights, and the Act of Settlement. Here, I think, we can find a clue to the inconsistency with which Blackstone was charged by Bentham. Blackstone could write of parliament as omnipotent, and yet having duties, accurately discuss the implications of the sovereignty of the legislature, and yet repeat the old theory that the British constitution embodied a mixed government, because he was still profoundly influenced by the writings of the natural-law school.5 He recognized the legal implications of legislative sovereignty, but to him, as to Locke, the legislature was under a moral obligation to protect the rights and liberties of Englishmen, and history showed that in times past it had faithfully discharged this duty. The imagina¬ tion might conceive the possibility of parliament enacting unjust laws, 1 W. Blackstone, Commentaries, i. 161. 2 Ibid., p. 124. 3 Ibid., p. 125. 4 Ibid., p. 127. The ‘three principal or primary articles: the right of personal security, the right of personal liberty, and the right of private property’ (ibid., p. 129) were the legal rights which seventeenth-century politicians had con¬ stantly claimed as fundamental. It has often been pointed out that the passage in the Commentaries which Bentham singled out for his main attack was copied almost verbatim from a translation of Burlamaqui’s treatise on Natural Law. Cf. the Introduction by W. Harrison to the edition of Bentham in Blackwell’s Political Texts, p. xxviii, n. 1. See also E. Barker, ‘Blackstone on the British Constitution’, in Essays on Government, p. 136, n. 1.

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but in actuality he obviously thought such conduct improbable. ‘The supposition of law’, at any rate, was that ‘neither the king nor either house of parliament ... is capable of doing any wrong’, so that the law itself could provide no remedy in cases of oppression. Therefore, he concluded, ‘if ever they unfortunately happen, the prudence of the times must provide new remedies upon new emergencies’. Blackstone cautiously agreed that if all the circumstances of 1688 were exactly repeated, this might be regarded as a precedent for legal action, but, short of this, ‘since both law and history are silent, it becomes us to be silent too’. He would, therefore, leave ‘to future generations, whenever necessity and the safety of the whole shall require it, the exertion of those inherent (though latent) powers of society which no climate, no time, no constitution, no contract, can ever destroy or diminish’.1 Thus in spite of the legal sovereignty of parliament, and his express disapproval of the doctrine of Locke, the old idea of natural law (and salus populi) crept back again. It was with the Benthamite principle of utility (although this itself was only natural law in a new form), accompanied by the introduction of par¬ liamentary reform, that modernity really began to make itself felt. Then at last the relics of the idea of fundamental law gave way before the realization that there was no legal obstacle to hinder the posses¬ sors of power from using it to promote their own interests.

1 W. Blackstone, Commentaries, i. 245.

CHAPTER XII

THE LAST OF FUNDAMENTAL LAW Just at the time when Blackstone, in spite of the influence of the

doctrine of natural law, was enunciating the principle of the unlimited legislative sovereignty of parliament, the practical consequences of sovereignty were raised in an acute form by the question of American taxation. American political leaders had been nurtured in the same natural-law traditions as Blackstone himself, but they drew exactly opposite conclusions as to the capacity of the British parliament. One of the most outspoken and emphatic of their spokesmen was James Otis. As early as 24 February 1761 he attacked the Writs of Assis¬ tance1 as being ‘against the fundamental principles of law’, which guaranteed the inviolable rights of private property, so that ‘a man who is quiet is as secure in his house as a prince in his castle’. He added a brief note of his reasons for this faith. ‘As to Acts of Parlia¬ ment. An Act against the Constitution is void; an Act against natural equity is void; and if an Act of Parliament should be made in the very words of this petition it would be void. The executive Courts must pass such acts into disuse.’ Here was an explicit espousal of the doc¬ trine of judicial review, and Otis based it on Coke, for he added: ‘8 Rep. 118 from Viner. Reason of the common law to control an Act of Parliament.’2 Otis followed up this speech with his pamphlet The Rights of the British Colonies Asserted and Proved (1764), in which he once more emphasized, in language echoing the words of Locke, the limitations on the power of the legislature, and the sanctity of private property, which he called ‘fundamental maxims of the British constitution’.3 1 Measures taken by the government to check smuggling. Printed in H. S. Commager, Documents of American History (5th edn., New York, 1949), p. 45. Charles Viner’s General Abridgement of Law and Equity was ‘a vast encyclopaedia of legal lore’ (D.N.B.) first published (in 23 volumes) between 1742 and 1753. Its second edition (1793) still quoted Coke in Bonhams case (xix. 513). Coke’s view that ‘an Act of Parliament against common justice or common right is void’ was also cited at home, in opposition to a proposal to insert in the Declaratory Act a clause making those who denied the right of the British parliament to legislate for the colonies liable to the penalties of praemunire. The clause was rejected (Rep. Hist. MSS. Comm., 14th. Rep. App. ix. 315 (Mr. Grey’s Parliamentary Note-Book, 3 Mar. 1766)). Printed in M. Beloff, The Debate on the American Revolution, pp. 47-69; cf. esp. pp. 66-68.

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It would be outside the scope of this book to pursue the elaboration of this theme by American speakers and writers to its culmination in the Declaration of Independence and the American Constitution itself. We must note, however, that while the issue was still undecided many eminent Englishmen accepted the American point of view and repu¬ diated the doctrine of parliamentary sovereignty. Outstanding among these was Lord Chatham, who, in a speech in the House of Lords on 26 May 1764, quoted ‘an excellent pamphlet. . . from the pen of an American gentleman’, and declared that its contents were ‘no new doctrine’, but what ‘has always been my received and unalterable opinion, . . . that this country had no right under heaven to tax America’.1 The Stamp Act was passed in spite of this protest, but it was re¬ pealed a year later, only to be followed, however, by the Declaratory Act, asserting the sovereign powers over the colonies of the British king and parliament. This legislation was the occasion of further debates in parliament, in the course of which the American point of view again received support, and it is worth noticing that one of the most determined opponents of the doctrine of sovereignty was an eminent lawyer. Lord Camden.2 In a speech in the Lords he admitted that ‘he who disputes the authority of any supreme legislature treads upon very tender ground’, but he gave it as his opinion that ‘the legis¬ lature had no right’ to pass the Stamp Act. ‘The sovereign authority, the omnipotence of the legislature, my lords’, he explained, ‘is a favourite doctrine, but there are some things they cannot do. They cannot enact anything against the divine law, and may forfeit their right. They cannot take away any man’s private property without making him a compensation.’ He saw a proof of this in the usual form of the numerous private bills that were passed every session, and added: ‘They have no right to condemn any man by bill of attainder without hearing him.’ He admitted that ‘every subject must make contribution’, but taxation was only legitimate when the people con¬ sented to it through their representatives.3 The Lord Chancellor (Lord Northington) and Lord Mansfield had no difficulty in refuting these arguments, but Lord Camden was not 1 Ibid., pp. 154, 155. 2 Formerly Pratt L.C.J. 3 Parly. Hist. xvi. 168. Other arguments used at this time in support of the thesis that there were legal limits to the capacity of parliament are summarized in Annual Register, ix. 37, 38. .Even if it were true that parliament could do anything, ‘it is not right constitutionally: for then there might be an arbitrary power in a parliament as well as in one man’. 5725

o

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THE LAST OF FUNDAMENTAL LAW

to be silenced, and when the Declaratory Bill came up for debate he denounced it as ‘illegal, absolutely illegal, contrary to the fundamental laws of nature, contrary to the fundamental laws of this constitution’, which was ‘a constitution grounded on the eternal and immutable laws of nature; a constitution whose foundation and centre is liberty’. He once more stressed the principle that ‘taxation and representation are inseparably united: God hath united them’, he declared, ‘no British parliament can separate them; to endeavour to do it is to stab our very vitals’. This was not only ‘founded on the laws of nature; it is more, it is an eternal law of nature; for whatever is a man’s own is absolutely his own; no man hath a right to take it from him without his consent, either expressed by himself or [his] representative . . A1 Such language, from a Chief Justice of England, was indeed remark¬ able, but we must remember in the first place that he was speaking in a political debate and not in a court of law; and though, on the face of them, his words are inconsistent with the doctrine of the sovereignty of parliament which Blackstone had recently enunciated, we have seen the same inconsistency in Blackstone himself. Camden, like Blackstone, was really paying his tribute to moral principles (and to the men of the eighteenth century the sanctity of private property was scarcely less than a moral principle), and appealing to his audience to reject a bill which threatened to violate them. If he expressed this in language that confused legal and moral rights, Defoe and Bolingbroke and many other eminent writers in the past had done the same, nor was he by any means the last to be guilty of this confusion. Two years later the House of Commons debated a petition from the Assembly of Pennsylvania, complaining of taxation without represen¬ tation, and when a member pointed out that the petition disputed the authority of the Declaratory Act, Alderman Beckford replied: ‘Acts of Parliament are not like the laws of the Medes and Persians: an Act of Parliament against common right is a nullity; so says Lord Coke.’ He did not press this point, however. Instead, like Burke, he stressed the inexpediency rather than the illegality of the government’s policy: ‘This petition is drawn up in modest terms. I do not dispute your power; but may you not exercise that power wantonly?’2 Camden and Chatham, however, persisted to the end in denying parliament’s right 1 Parly. Hist. xvi. 178. Later (p. 180) he quoted Locke: ‘The supreme power cannot take away from any man any part of his property without his own consent.’ 2 Sir H. Cavendish, Debates of the House of Commons 1768-1770 (cd. J. Wright), i (1841), pp. 83, 84.

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to tax the colonies. In the debate on Chatham’s motion, in 1775, to withdraw British troops from Boston, Camden once more invoked ‘the natural right of mankind and the immutable laws of justice’, which, he thought, ‘were clearly in favour of the Americans’. He observed that ‘great stress had been laid on the legislative supremacy of Great Britain; and as far as the doctrine was directed to its proper objects, it was a just one; but it was no less true in fact, that consonant to the reasonings of all the speculative writers on government1 . . . no man, either agreeable to the true principles of natural or civil liberty could be divested of any part of his property without his own consent’. Chatham ‘entirely acquiesced in the sentiments of his noble friend’, and ‘still remained, and ever should continue of opinion’, that a British subject’s property was ‘invariably inalienable, without his own consent; and that no power under heaven could touch it without that consent, either implied or expressly and directly given’. He was apparently prepared to acknowledge the legal sovereignty of parlia¬ ment in legislation, but property stood on a sacred pedestal of its own, so that it was ‘ludicrous’ to regard taxation as being ‘included in legislation. . . . They were two operations in our constitution, totally distinct and foreign to each other.’ According to Chatham the right of private property was ‘given’ by ‘God, and nature, and the constitu¬ tion’.2 The Americans took care to frame their constitution accord¬ ingly, but to us nowadays Chatham’s argument seems nothing but confusion of thought. Yet although by Chatham’s time legislative sovereignty had undeniably become the basic principle of the British constitution, it remains true that his attitude was more in accordance with traditional beliefs. The American question was not the only one in which the old tradition of fundamentals still gained a hearing. It was invoked, for example, by the dissentient minority in the Lords in their protest (2 February 1770) against acquiescing in the policy of the Commons in the affair of Wilkes and the Middlesex election. The constitutional point at stake resembled that in Ashby v. White,3 namely, whether the Commons alone could decide electoral questions, or whether such questions, like other aspects of the constitution, were subject to the 1 My italics. 2 Parly. Hist, xviii. 164, 165. 3 Above, pp. 177 ff. Actually the point in Wilkes’s case was whether the Commons’ power of expulsion included the power of declaring a member in¬ capable of re-election, but it resembled Ashby’s case in that it affected the rights of electors.

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rule of law. The dissentient peers pointed out that if the Commons’ contentions were admitted, ‘the law of the land (by which all courts of judicature, without exception, are equally bound to proceed) is at once overturned, and resolved into the will and pleasure of a majority of one House of Parliament, who, in assuming it, assume a power to overrule at pleasure the fundamental right of election which the con¬ stitution has placed in other hands, those of their constituents’.1 There was no suggestion here that a statute duly passed by parliament as a whole could not change the constitution, including the rights of electors; all that was denied was the power of the Commons alone to change it by a mere resolution. Nevertheless, the use of the word fundamental, the way in which the constitution was referred to, and the allusion to ‘all courts of judicature’ (coupled with a reference, a few lines above, to ‘the determination on the right to a seat in the House of Commons’ by ‘the jurisdiction of that House alone’), all testify to the survival of a static conception of the constitution, in which the dominant note was the preservation of fundamentals rather than the exercise of sovereignty in order to make innovations. That the Lords were thinking in terms of the past is further confirmed by their complaint that the claim of the Commons was as objectionable as ‘a suspending and dispensing power assumed and exercised by the House of Commons, against the ancient and fundamental liberties of the kingdom’.2 The Americans’ resistance to British rule encouraged the Irish also to claim independence, and their cause was championed by Granville Sharp in A Declaration of the People’s Natural Right to a Share in the Legislature, which is a Fundamental Principle of the British Con¬ stitution of State? This treatise was directed especially against the Dependency of Ireland Act (1719), by which the British parliament had asserted its ‘full power and authority to make laws and statutes of sufficient force and validity to bind the kingdom and people of Ireland’, and deprived the Irish House of Lords of its position as the 1 Printed in C. Grant Robertson, Select Statutes, Cases and Documents, p. 476. 2 Ibid., p. 478. Wilkes had been the subject of a dispute between a dissentient minority of peers and the Commons on an earlier occasion (1763), when his famous article in no. 45 of the North Briton had led to his arrest for seditious libel. The peers then alluded to ‘that great Fundamental, “That none shall be arrested in the course of prosecution for any crime under Treason and Felony’” (ibid., p. 445). This was another sort of fundamental, for it referred to a mem¬ ber of parliament’s privilege of freedom from arrest. 3 First edition, 1774. I quote the 2nd edition of 1775.

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supreme court of appeal for Ireland.1 The author also ranged widely over a series of legal and historical arguments, in which the idea of fundamentals figured prominently. He quoted Coke, for example, on a case in the reign of Elizabeth I, when all the judges in England had resolved that ‘Orurke’, an Irishman accused of treason in Ireland, could be tried in England. ‘But this doctrine’. Sharp protested, ‘not¬ withstanding the great authority with which it is here delivered, is obnoxious to a fundamental right of the subject, the Trial by a Jury of the vicinage’, and he regretted that Coke had not been ‘as much on his guard’ in his comments on this case as he had been in condemn¬ ing ‘that wicked act of parliament in the reign of King Henry VII, by which also the fundamental right of trial by juries was violated’.2 To try Irishmen in England was contrary to fundamental law, and the act purporting to authorize it was ‘an unconstitutional Act of Parliament’.3 Two Elizabethan judges and the Attorney-General had maintained that in spite of four statutes passed in the reigns of Henry VIII and Edward VI treason in Ireland could not be tried in England, and he commended ‘these worthy lawyers’, who ‘were not afraid ... to main¬ tain the weight of a legal and fundamental reason against the combined force of four express acts of parliament!’ Trial by a jury of the neighbourhood, he continued, was ‘the first and most essential law of the constitution’, guaranteed by Magna Carta. ‘No single act of parliament’ could ‘unbind or remove the limits’ thus prescribed to ‘royal oppression and prerogatives’; indeed, ‘nothing less than the same accumulated authority, by which the Charter is now established, can possibly set it aside, or any part of it.’ It was therefore obvious that cases like that of ‘Orurke’ were ‘contrary to a fundamental law in the Great Charter, and consequently ought to be HOLDEN FOR NONE’.4 Of all this, despite the emphasis of its capital letters, all we can say is that it was bad law and bad history, though Sharp was by no means alone in misinterpreting one of Magna Carta’s famous phrases to mean trial by jury. In the later part of the book he turned from law to politics, and argued that the right of conquest, on which English 1 C. Grant Robertson, op. cit., p. 205. In 1782 the Irish House of Commons resolved that this act contained ‘matters entirely irreconcilable to the funda¬ mental rights of this nation’, and that it was ‘the great and principal cause of the discontents and jealousies in this kingdom’ (ibid., p. 253). 2 Granville Sharp, op. cit., p. 177. He also referred to the similar case of Sir John Perrot (p. 181). For Coke’s remarks about Henry VII’s act cf. above, pp. 40, 41. 3 Ibid., pp. 180-3, 187. 4 Ibid., pp. 191-205.

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writers based the claim of the British parliament to legislate for Ire¬ land, did not override the natural right of the Irish to be ruled by their own legislature.1 Had Sharp been content to rest his case on the principle of national self-determination, he would have had every sympathy from modern opinion. This, however, is a matter of politics, possibly also of ethics, but not a matter of law. In the seventeenth and eighteenth centuries people thought differently, and we have seen how often writers combined or confused these spheres, and in the name of natural law or natural rights claimed legal sanction for their political aspirations or moral convictions. Granville Sharp was no exception, and he soon reverted to the necessity for restraining the power of parliament within the bounds of Reason, Justice and Natural Equity, because I find that it is too com¬ mon an error that an Act of Parliament is omnipotent, that whatever is ordained by Parliament must be law, without any exception of Right or Wrong, White or Black, Truth or Falsehood! Which, God be thanked, is very far from being true, though . . . Judge Blackstone . . . has un¬ guardedly said: ‘. . . What the Parliament doth, no authority upon earth can undo’. Against Blackstone Sharp upheld the ‘Laws of Reason, Nature, pure Morality, natural Equity and Justice; or . . . that Benevolence and Consideration which we owe, not only to our brethren and country¬ men, but also to our brethren of the universe, by the ties of Nature.’ This was very vague, and there was no suggestion of how in practice, by judicial review or otherwise, the powers of parliament were to be restrained. Perhaps this should not be expected in what, after all, was a political manifesto, not a legal treatise, and Sharp was content with declaring simply that if an act of parliament violated the ‘written laws of God’, or any of the ‘fundamental Rights and Franchises declared in the Great Charter’, or even if it were ‘contrary to Truth’, there need be ‘no authority on earth’ to undo it, ‘for it is null and void of itself, notwithstanding the united authority of the King, Lords and Commons!’2 1 Granville Sharp, op. cit., pp. 222 ff. Here Sharp was following the line taken eighty years earlier by William Molyneux, who adapted Locke’s doctrine of conquest to prove that England had no right to govern Ireland. See his The Case of Ireland’s being bound by Acts of Parliament in England stated

(Dublin, 1698). 2 Sharp, op. cit., pp. 233-7. Not only Blackstone but Coke also was in error, according to Sharp, in ascribing ‘transcendent’ and ‘absolute’ powers to parlia¬ ment. Its just bounds and limits were clearly defined, and visible to all who had ‘common sense to distinguish good from evil, right from wrong’ (p. 238).

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It was not only on behalf of the downtrodden Irish that Granville Sharp thus resuscitated the time-worn doctrine of fundamentals. In An Address to the People of England (1778) he championed the liber¬ ties of Englishmen themselves when it was proposed in parliament to suspend habeas corpus. The argument runs on familiar lines, with references to Englishmen’s right to ‘the due process of law’; such a ‘suspension of common justice and common right’ is ‘so fundamen¬ tally subversive of the British constitution of state that no authority of parliament can make it legal’. This is followed, with quotations from Fleta, Bracton, Fortescue, St. Germain, &c„ by comments on ‘the pernicious effects of a government unlimited by law’, and the need to be ‘jealous of every claim or pretension to omnipotence or unlimited power, whenever and by whomsoever it is made.... There are but too many advocates’, he added, ‘for the imaginary omni¬ potence, or unlimited power, of parliament.’1 According to Sharp, ‘the law of reason is therefore justly esteemed the first foundation of the laws of England’, and the law of reason included ‘the laws of nature’. These ‘cannot lawfully be suspended or changed by parliament, for our common law declares that they are immutable’. Therefore, an act ‘which boldly suspends at once all the ancient constitutional laws of personal protection, and leaves an innocent man without a remedy, cannot be law, being contrary to all that ought to be esteemed law’. After referring to Magna Carta, he declared that the duty of maintaining the ‘common right’ of innocent persons was ‘in a peculiar manner sacred to God, and therefore, un¬ alienable from the people, and not to be suspended by the authority of parliament’. Quotations from Scripture make it clear that (‘if we have any belief in God’s eternal law’) there is no such thing as the ‘boasted omnipotence of parliament’. On the contrary, the law of God is the ‘second foundation’ of the law of England, ‘against which the haughty omnipotence of parliament (the pope of England) has not the least authority to ordain anything’.2 ‘No plea of necessity’, he continued, could ‘justify the adoption of an unrighteous or unjust measure by any legislature on earth.’ This is a sentiment which many people would endorse today, though they might think Sharp’s reason for it old-fashioned—‘because no danger or evil whatsoever is so much to be dreaded as God’s vengeance for the failure of justice, judgement and righteousness’. But Sharp 1 An Address to the People of England, pp. 14-19. 2 Ibid., pp. 24-42.

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reiterated his belief that parliament not only should not but could not ‘subvert the legal constitution of this kingdom’. A malum in se ‘can never be made lawful’; and he invoked ‘the judges themselves’, who ‘know the foundations of our law’, in support of ‘the truths which I here assert’.1 Sharp was a generous and indefatigable philanthropist, but no modern lawyer could accept his version of the English constitution. For some years yet, however, we may still occasionally hear echoes of the old principles for which he stood out so valiantly. In spite of the doctrine of sovereignty, speakers in parliament still assumed that the constitution was something fixed, with recognizable and recognized principles, and the word fundamental itself was not yet obsolete. Thus Charles James Fox, in the debate on the regency question in 1788, referred to the Prince of Wales as ‘having been bred in those prin¬ ciples which had placed his illustrious House on the throne’, and stressed his ‘known reverence and regard for those principles as the true fundamentals of our glorious constitution’.2 Again, over forty years later, a group of peers objected to the Reform Bill of 1832 on the ground that the changes it made were not ‘founded upon the acknowledged principles of the constitution’.3 Private property was still peculiarly sacred, as is evident from the eighteenth-century pre¬ ference for indirect rather than direct taxation, and the criticisms that greeted Pitt’s introduction of an income-tax at the end of the century. On one occasion, indeed, Pitt came very near denying the power of parliament to interfere with vested property-rights, for on a motion for the reduction of ‘useless places, sinecure offices, etc.’, he spoke as follows: ‘I maintain, Sir, that sinecure offices are given in the nature of a freehold tenure. Parliament has expressly said, they will respect them as freehold property: and if, in answer to this solemn declaration, it is urged that parliament may rescind their former resolutions, I say they may, by a parity of reasoning, destroy every kind of property in the country.’ He refused ‘to dwell on . . . this kind of argument’, and concluded with an exhortation ‘not to lose sight, even for an instant, of those grand principles which lead to and are inseparable from the administration of public justice’.4 Pitt’s point, of course (we might say), was the moral obligation of a pledge, not a legal incapacity to break it, but we have found repeatedly that eighteenth-century politicians 1 An Address to the People of England, pp. 42, 46, 47, 53. 2 C. Grant Robertson, op. cit., p. 307. 3 Ibid., p. 344. 4 Parly. Hist, xxxiii. 87 (13 Mar. 1797).

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were apt to confuse them. Burke was less ambiguous, for while admit¬ ting that Englishmen ‘entertain a high opinion of the legislative autho¬ rity’, he declared: ‘We have never dreamt that parliaments had any right whatever to violate property, to overrule prescription.’1 These were not the only traces of the old theory of the constitution still in evidence at the end of the eighteenth century. Professor Mcllwain has pointed out, for instance, that although parliament had long been recognized as a legislature, the idea that it was a court still lingered, and the judicial functions of the House of Lords were not yet clearly distinguished from the functions of parliament as a whole. Consequently there was much discussion, during the protracted trial of Warren Hastings, whether or not an impeachment was terminated by a dissolution of parliament.2 It is well known that George III had a tender conscience on the subject of Catholic emancipation, and that Pitt had to resign when the king would not allow it to accompany the act for the union of Ireland with Great Britain. The possibility of Catholic emancipation had been considered five years before this, when Lord Fitzwilliam went to Ire¬ land as Lord-Lieutenant, and the correspondence that ensued between the king and the Lord Chancellor (Lord Kenyon) shows that George III at any rate was not convinced of the sovereign omnicompetence of parliament. He doubted whether he could assent to a repeal of the Acts of Supremacy and Uniformity, the Test Acts and the Bill of Rights, without ‘a breach of his Coronation Oath and of the articles of Union with Scotland’. Lord Kenyon tried to reassure the king by pointing out that although the church establishment was declared, in the Act for the Union of England and Scotland, to be ‘essential and fundamental’, and was to ‘be and continue in all times coming’, and although the king had undertaken in the coronation oath ‘to maintain the protestant re¬ formed religion established by law’, the Toleration Act and other concessions to dissenters had not been regarded as inconsistent with the king’s obligations. His advice was that ‘so long as the King’s 1 E. Burke, Reflections on the Revolution in France (1790; ed. E. J. Payne, Oxford, 1921), p. 180. He blamed the French National Assembly for repu¬ diating ‘the doctrine of prescription, which ... is part of the law of nature’. Without prescription, which he called ‘this great fundamental part of natural law’, he thought ‘no species of property is secure’ (ibid., p. 179). 2 C. H. Mcllwain, The High Court of Parliament, p. 187. For a summary of the debate on this question in parliament in 1790 see C. Runnington’s edition (the 6th, 1820) of Sir M. Hale’s History of the Common Law, pp. 55-82.

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supremacy and the main fabric of the Act of Uniformity, the doctrine, discipline and government of the Church of England, are preserved as the National Church’, concessions to Roman Catholics ‘would not militate against the Coronation Oath or the Act of Union’. He admitted, however, that it would be very risky if the Lord Chancellor were to affix the Great Seal to a bill giving the pope concurrent juris¬ diction with the king. The king was far from satisfied and wrote to Lord Kenyon again, stressing the point that the declaration against popery in the Bill of Rights was ‘expressly enacted and established “to stand and remain and be the law of the realm for ever” ’, while the Act of Union contained similar phraseology. Lord Kenyon therefore had to instruct the king more explicitly on the implications of parliamentary sovereignty. ‘It is a general maxim’, he explained, ‘that the supream power of a State cannot limit itself.’ If it chose, parliament could enact any bill, however unreasonable, and indeed ‘no statute law’ could prevent it passing a bill ‘to abolish the supremacy and the whole of the government and discipline of the Church of England, as now by law established’. After alluding to the historical reasons (such as the conduct of James II) for requiring the king to swear to maintain the protestant religion, he concluded with the cautious opinion that as the coronation oath is ‘couched in ... general terms’, this ‘does not preclude the party sworn from exercising a judgement whether that which he is bound to maintain will be essentially, or in any great degree, affected by the proposed measure’. In a note to Lord Kenyon the Attorney-General suggested that ‘the judgement of the person sworn’ might be guided in such a question by the constitutional advice he received; but George III could not relinquish the conviction that his personal conscience was involved, and the proposal had to be dropped.1 By the nineteenth century the overriding authority of statute-law had become the accepted principle in the courts,2 but it is interesting to notice, even as late as this, attempts by counsel to argue on the basis of Coke’s judgement in Bonham’s case. The judges, however, refused to accede to such pleading. In one such case, Stewart v. Lawton,3 an 1 G. T. Kenyon, Life of Lloyd, First Lord Kenyon (1873), pp. 305-20. 2 But see Parly. Hist. xxx. 1507 for a contrary opinion about the law in Scotland. On 10 Mar. 1794 a speaker in the House of Commons, referring to the trial of Muir and Palmer, said that ‘it is a singular feature in the constitu¬ tion of the law of that country that the effect and operation of statutes may be varied by usage, and that a series of judicial decisions will operate as a repeal of an Act of Parliament’. 3 1 Bingham, 374 ff. (1823).

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apprentice and his father sued his master for breach of the covenant in an indenture of apprenticeship. Defendant’s counsel objected to the indenture being read in evidence until the plaintiffs had taken the oath prescribed by section 43 of the act 8 Anne c. 9.1 At a subsequent hearing Serjeant Cross, for the plaintiffs, argued that this act was now obsolete, payment of the requisite duty being secured by the provi¬ sions of a later act. He also cited Coke’s rule in Bonham’s case, arguing that it ‘applies directly to an act like the present, which is so far repug¬ nant to common right as to require a party to be examined in his own cause’. Even if the act were still in force, it did not require the party to take the oath at the trial, or prescribe when, where, or how he was to take it. Serjeant Taddy, replying, denied that the act had fallen into desuetude, and argued that the doctrine in Bonham’s case only applied ‘where a statute requires something impossible to be done; but here the oath of the party is the chief security for ensuring to the revenue the duty upon the exact premium paid’. Park J. sympathized with the plaintiffs, and gave judgement in their favour, but he did so on tech¬ nical grounds, and refused to accept some of the wider pleas put for¬ ward on their behalf. He rejected the argument that the act in question had ceased to be in force, and though he did not directly contradict Coke, he did so implicitly. ‘Nor is there any weight’, he remarked, ‘in the objection that the plaintiff could not be examined at the trial. If an Act of Parliament requires it, a plaintiff may undoubtedly be so examined.’ This brings us to the last appearance of the ancient doctrine in an English court of law, and its final dismissal, in the case (Lee v. Bude and Torrington Junction Railway Company) now quoted in the text¬ books as a definitive statement of the overriding authority of statute.2 In 1865 the Okehampton Railway Company (as it was then called) was authorized by an act of parliament to extend its line to Bude and Great Torrington, and to change its name to the Devon and Cornwall Railway Company. In furtherance of this project two other acts of parliament were obtained, in 1867 and 1869, the latter of which in¬ corporated the subscribers to the new undertaking into a separate 1 This act levied a poundage duty on the premiums of apprenticeships, and sect. 43 required that no indenture should be admitted in evidence until the party had first made oath that the sums mentioned in the indenture as being the premium paid were really and truly the whole amount directly or indirectly given, paid, secured, or contracted for on behalf of or in respect of an apprentice. 2 L.R. 6 C.P. 576 ff. (1871).

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company, to be called the Bude and Torrington Junction Railway Company, to which it transferred all the lands acquired and works executed by the Devon and Cornwall Railway Company under the acts of 1865 and 1867, together with all powers, rights, and privileges conferred on the Devon and Cornwall company by those acts, and likewise all duties, obligations, and liabilities. In 1870 the plaintiffs, who had been employed as solicitors in promoting these acts of parlia¬ ment, obtained a judgement against the Bude and Torrington com¬ pany for £5,375 and £20 costs. As this company possessed no assets the plaintiffs then obtained, in accordance with the Companies Clauses Consolidation Act, 1845, a rule nisi for a writ of scire facias, calling on two persons, J. C. Moore Stevens and Thomas Fisher, whose names were on the register of shareholders, and whose shares were only partly paid up, to show cause why they should not meet the liability remaining in respect of their shares. In answer to this Moore Stevens and Fisher stated that in 1865, shortly after the first act of parliament had been passed, the directors of the Devon and Cornwall company had invited them, as landowners on the route of the proposed extension, to take up shares in that com¬ pany. This they had agreed to do; one took 25, the other 125 shares, and they paid a deposit of £4 a share.1 They further stated that the second act of parliament (1867) recited that the company had not raised any money under the act of 1865, but this was clearly incon¬ sistent with their having subscribed for shares. Yet, although the plaintiffs themselves were responsible for the recital in the act of 1867, their claim now rested on the fact that shares had been allotted under the act of 1865. Furthermore, the act of 1865 prescribed time-limits— three years from the date of the passing of the act for the compulsory acquisition of land, and five years for the completion of the works. In fact the company had not only never begun to build the new line; it had not even acquired any of the necessary land. Yet the act of 1869 contained no provision for extending the time-limits; and the lands and works it purported to transfer were non-existent. They further declared that they had taken no part in applying for the acts of 1867 and 1869, and had never been consulted in any way about them. They believed that the only persons interested in the existence of the Bude and Torrington company were the engineer, the present plaintiffs, and certain surveyors and local solicitors, and that the money now claimed 1 The nominal value of a share was £20, so that there remained a liability of £16 on each share.

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consisted principally if not entirely of their costs, and the expenses of the proceedings in parliament. They complained that the plaintiffs had not acted in good faith, but had heaped up costs against the com¬ pany in a fraudulent scheme to promote their own interests. Moore Stevens’s and Fisher’s case thus was that, nothing having been done under the act of 1865 in furtherance of the undertaking to which they had agreed to subscribe, and the time for exercising the powers conferred by that act having been allowed to expire, they were no longer liable as shareholders. And the acts of 1867 and 1869, of which the plaintiffs were the promoters, had been obtained by means of fraudulent recitals and representations. It would, therefore, be unjust and inequitable to allow the plaintiffs to recoup themselves in the way they sought. Under the Companies Clauses Consolidation Act the court had a discretion to grant or withhold the scire facias, and in the circumstances the court should withhold it. This statement of their case arouses our sympathy, but in his judge¬ ment Willes J. (Byles and Keating JJ. concurring) soon dashed any hopes they may have had that the court would allow acts of parlia¬ ment to be overridden by considerations of abstract justice. In reply to the plea that Moore Stevens and Fisher had known nothing of what was being done, he declared that there must have been meetings of the directors, and announcements in the newspapers, giving notice of the intention to promote these acts of parliament, so that everyone interested should have an opportunity of being heard. He declined to discuss the imputation of fraud against the plaintiffs, or the suggestion that parliament had been imposed upon. If the imputation could be sustained, proper proceedings might be taken against the plaintiffs, but the court could not deal with such a serious charge on the motion then before it. The Judge dismissed the suggestion that the company was a mere nonentity. ... That resolves itself into this, that Parliament was induced by fraudulent recitals ... to pass the Act which formed the company. I would observe, as to these Acts of Parlia¬ ment [he continued] that they are the law of the land; and we do not sit here as a court of appeal from Parliament. It was once said—I think in Hobart—that if an Act of Parliament were to create a man judge in his own case, the Court might disregard it. That dictum, however, stands as a warning rather than an authority to be followed.1 We sit here as servants of the Queen and the legislature. Are we to act as regents over what is 1 A warning to whom? To the legislature? If so, this was not what Hobart bad meant. The case in Hobart was Day v. Savadge (above, pp. 38, 39).

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done by Parliament with the consent of the Queen, Lords and Commons? I deny that any such authority exists. If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it: but, so long as it exists as a law, the courts are bound to obey it. The pro¬ ceedings here are judicial, not autocratic, which they would be if we could make laws instead of administering them. The Act of Parliament makes these persons shareholders, or it does not. If it does, there is an end of the question. . . . Having neglected to take the proper steps at the time to prevent the act from passing into a law, it is too late now to raise any objections to it.1

This judgement finally and unmistakably ruled out any possibility that the courts in England would act on the American principle of judicial review, but it does not necessarily eliminate the whole con¬ cept of fundamental law. For while (largely as a result of modern American practice) fundamental law has come to be associated with judicial review, the two are not essentially connected, as is evident from the part played by the idea of fundamental law at its hey-day in seventeenth-century England. What it stood for then, as often as not, was not judicial review but the principle that politics is subordinate to ethics, and (as a corollary) that in the last resort rebellion or revolu¬ tion may be morally justifiable. This was still its meaning when the American colonists proclaimed their independence. It was evident, however, that what served a useful purpose in an emergency was un¬ suitable for normal times, and, given a written, federal constitution, separation of powers, and a limited legislature, judicial review seemed the obvious solution of the problem. Alexander Hamilton composed a reasoned argument for treating the constitution as fundamental law and conferring on the judiciary the function of pronouncing void any acts of the legislature that conflicted with it,2 but it was not till Chief Justice Marshall delivered his famous judgement in the case of Marbury v. Madison (1803) that judicial review came to occupy its acknowledged place in American constitutional practice.3 The English constitution could never have developed on these lines,4 and Ameri¬ cans who have read back into the judgements and speeches of Coke and other English lawyers and politicians of the seventeenth century an anticipation of modern American doctrine were as erroneous, on 1 See Note Y, p. 230. 2 The Federalist, no. Ixxviii. 3 Cf. A. C. McLaughlin, The Courts, the Constitution and Parties, pp. 9, 50 ff. ^ 4 Cf. the point quoted from A. F. Pollard, above, p. 28.

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the one side, as those English writers were, on the other, who inter¬ preted Smith and Coke as exponents of legislative sovereignty.1 While judicial review, then, finds no place in the British constitu¬ tion, what are we to say of fundamental law? This brings us back to the question of definition, which, we must admit, is not much easier now, at the end of our journey, than it was when we set out.2 We can, I think, dismiss the numerous peripheral meanings that became tem¬ porarily associated with the phrase in the political welter of the mid¬ seventeenth century. What emerges as a relatively permanent and central tradition, lasting on through the eighteenth century, is the idea of a constitution, or perhaps rather we should borrow the word Pro¬ fessor Mcllwain has used, and call it ‘constitutionalism’. To him, as to most Americans, this seems precarious, if not illusory, unless it is grounded in a definite, written constitution,3 but in England the historic constitution never had this character. Professor Mcllwain, in fact, contrasts the American idea of a constitution with Bolingbroke’s description of the English constitution as ‘that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system according to which the community hath agreed to be governed’.4 Negatively, this excluded ‘arbitrary power’; positively, it connoted a ‘mixed’ government, and a system of ‘checks and balances’, thus safeguarding what was presumed to be the main pur¬ pose of government—the preservation of the rights of the individual, notably his liberty and property. How much of this survives today? Nearly a hundred years ago Bagehot told us that the idea of checks and balances was out of date;3 a hundred years before that Lord Chancellor Northington (answering Lord Camden in the debate on the Stamp Act) had asserted that ‘every government can arbitrarily impose laws on all its subjects’,6 thus endorsing the doctrine which had been indignantly repudiated when Filmer and Hobbes had propounded it a hundred years earlier still. It is an odd coincidence that, in the year (1871) when Willes J. gave the coup de grace to any lingering illusions about the force of parlia¬ mentary legislation, another lawyer (T. C. Anstey) published a spirited 1 Cf. above, pp. 7, 41, 42. 2 Cf. above, pp. 2, 12, 49. 3 Cf. C. H. Mcllwain, Constitutionalism: Ancient and Modern (2nd edn.), p. 2. He quotes Paine’s Rights of Man to the same effect. 4 Dissertation on Parties, in Works (1809 edn.), iii. 157. 3 W. Bagehot, The English Constitution (World’s Classics edn.), p. 2. 6 Parly. Hist. xvi. 170 (1766).

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(but surely belated) attack on Blackstone’s Theory of the Omnipo¬ tence of Parliament.1 He had always, he declared, regarded Blackstone’s views as hereti¬ cal. Blackstone’s only authority ‘outside himself’2 was ‘a supposed extract from Sir Matthew Hale’, which in fact was spurious. The genuine Hale was no believer in sovereignty, and in his authentic writings treated parliament not as an omnipotent legislature but as a court of judicature.3 Apart from ‘the speculations of Hobbes’ (which ‘have no weight now and were refuted as soon as broached’) none of the old authorities supports the Blackstonian view which modern lawyers swallowed so quickly. The older view, he continued, for which Milton, Sidney, and Locke had stood, was preferable, and represented the real historic English constitutional tradition. Though now rejected in England in favour of Blackstone, it had come to fulfil¬ ment in the Constitution of the United States. After appropriate quotations from Plowden, Coke, Hobart, and others, the author pro¬ ceeded to cite some more recent instances where enacted laws had not prevailed. Slavery, for example, though legalized by acts of parlia¬ ment in the West Indies, had been held to be illegal in Engand because ‘the proceedings in our courts are founded upon the law of England, and that law is again founded upon the law of nature and the re¬ vealed law of God’.4 This was all very well, but Anstey quietly ignored the fact that the enacted law in the case in question was the law enacted in Florida, and that if parliament were to legalize slavery in England the courts would have to enforce it. The cases he cited next, where in certain circumstances the courts avoided applying an act of parliament in a sense contrary to international law, are not much support to the cause of limiting the domestic omnipotence of the legislature,5 and the 1 In Juridical Society Papers, iii. 305 ff. The author, we shall not be surprised to find, was a radical, an Irish nationalist, and a Roman Catholic. 2 But this was a large exception, for Blackstone had observed, and men¬ tioned, such successful manifestations of sovereignty as the enactment of the Septennial Act. J Cf. above, p. 172 and n. 5. The spurious work was The Original Power and Jurisdiction of Parliaments, ascribed to ‘Judge Hales’. 4 T. C. Anstey, loc. cit., p. 330. The quotation is from Best J. in Forbes v. Cochrane (1824, 2 B. & C. 471). In this case slaves belonging to a British subject resident in Florida had escaped and got on board a British man-of-war on the high seas. The owner lost the action he brought against the commander of the ship, who had given them protection and refused to return them to him. 5 In Heathfield v. Chilton (1767; 4 Burrow, 2016) Lord Mansfield said that the law of nations (i.e. international law) ‘is part of the common law of

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practical upshot of the whole article is hardly commensurate with its display of historical learning. The author has to admit that prima facie ‘every Act of Parliament must be deemed to bind the obedience of every court of judicature, both according to the letter and according to the spirit of the enactment’. The only salvage from the wreck of the old doctrine is that if according to the ordinary construction of the term of any enactment it would be certainly unreasonable or unjust to enforce it, the court which is asked to do so must labour to discover some other construction, how¬ soever artificial, which is not likely to be attended with those conse¬ quences. Where no such construction is possible, and all other means of preventing the mischief have failed, the maxim ‘an Act of Parliament can do no wrong’ determines the nullity pro tanto of the enactment, and the court is bound to declare it.1

If this means more (and the concluding sentence is wide and vague) than the admitted principle that under certain conditions statutes should be construed strictly, it appears to be an invitation to the courts to indulge in ‘driving a coach and four through Acts of Parlia¬ ment’,2 or, in other words, in a kind of unregulated and capricious judicial review. One can only conclude that the article was intended as a jeu d’esprit rather than a serious contribution to practical affairs. If it is to be taken seriously, the real crux, of course, lies in the meaning of the words ‘unreasonable or unjust’. The old idea of funda¬ mentals (reinforced in the course of its history by the idea of natural law) was based on the ‘reason’ supposed to be inherent in the common law, and this meant in practice that the courts always presumed that the purpose of legislation was to preserve and defend, not to infringe or raid, the liberty and property of the individual. This individualist bias of the common law has survived, albeit in an attenuated form. A statute which is contrary to the reason of the common law [we read] or purports to take away a prerogative of the Crown, is none the less valid, but it will, so far as is possible, be applied in such a way as to leave the prerogative or the common-law rights of England. And the Act of Parliament of 7 Anne c. 12 [an act preserving the privileges of ambassadors, &c.] did not intend to alter, nor can alter the law of nations’. This has been called ‘the last echo in England of Coke’s doctrine’. In practice the courts have sometimes interpreted legislation in such a way, even by resorting to ‘strained and forced constructions’, as to avoid conflict with international law. Cf. Roscoe Pound, ‘Common Law and Legislation’, in 21 Harvard Law Review, p. 334. On the ‘fundamental’ character of inter¬ national law see also C. K. Allen, Law in the Making (5th edn.), p. 437. 1 T. C. Anstey, loc. cit., pp. 337, 338. 2 Cf. Note B, p. 224. 5725

p

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the subject intact. To this extent the reason of the common law prevails: we cannot say that Parliament cannot do any of these things, but we can still say that there is a presumption against its doing them. If it is clear from the express words of the statute, or by necessary implication, that Parliament has intended to do them, cadit quaestio.

Thus, for example, ‘an intention to take away the property of a subject without giving him a legal right to compensation for the loss of it is not to be imputed to the legislature unless that intention is expressed in unequivocal terms’.1 Socialist writers like the late Professor Laski have expressed their impatience with these individualist presumptions of English common law, based ‘not upon the collectivist and corporate habits of the twen¬ tieth century, but on the liberal-atomic principles worked out from the seventeenth century to the mid-nineteenth century’.2 Laski accused the judges of being ‘occupied in the construction of what is hardly less than a fundamental law which they use to confine the ambit of statutes within the limits of policies they happen to approve’; and ‘the whole ethos of their approach is one of hostility to the process of modem administration’.3 Since Laski wrote our experience of the proceedings in the so-called ‘people’s courts’ under totalitarian regimes is a suffi¬ cient warning of what may happen when a judicature is subordinated to the policy of a government, and we may be thankful that, if our judges are biased, they are biased in favour of the ordinary citizen. In fact, however, Laski’s tirade was grossly exaggerated, and in the meantime the supposedly conservative legal profession has shown its capacity in many ways to adjust itself to the current presuppositions (already much less individualist than those prevalent a generation ago) of the modern welfare state.4 There is less emphasis nowadays than there used to be on the rights of private property,5 but other 1 See Note Z, p. 231. 2 H. J. Laski, Parliamentary Government in England, p. 22. 3 Ibid., pp. 365, 367. Attacks in similar vein against the ‘bias’ of ‘a highly individualistic and conservative profession’, which would naturally ‘regard with some suspicion the development of a vast collectivist administrative law’, and interpret the principle of the rule of law as meaning that ‘the proper British constitution’ protected private property and did ‘not provide for economic interventionism’, had already been published by W. Ivor Jennings in 51 L.Q.R. (1935), pp. 180 ff. and in 49 Harvard Law Review (1936), pp. 426 ff. (my quota¬ tions are from p. 434). 4 Cf., for example, Sir Alfred Denning, The Changing Law (1953). 3 As long ago as 1915 Lord Haldane remarked that ‘Parliament, in what it considers higher interests than those of the individual, has so often interfered with such rights [sc. the rights of private property] ..., that it is dangerous for

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aspects of individual liberty—freedom of thought and belief, and of writing and speech, for example, and, most fundamental of all, per¬ sonal liberty and security from arbitrary arrest and imprisonment— are as important as ever they were. The recent history of Europe has made our generation less inclined than that of Bradley and Bosanquet to deify the state, and we give more recognition than, they did to the values of individual personality, and to the continuing necessity of protecting them. Yet all these liberties, in England, are admittedly at the mercy of a party majority in parliament.1 To an American writer like Professor Mcllwain, safe under the protection of a written constitution and judicial review, this seems an intolerable risk, but there is no prospect of an American kind of constitution being adopted here, and few Englishmen would welcome it if there were. Englishmen may well feel that, in spite of the American constitution, there is less liberty in the United States than in England. This may be a passing phase, but we prefer to rely on the respect which, in our experience hitherto, majori¬ ties have not failed to pay to the rights of minorities. The guarantee of these rights, in parliament, lies in the procedure of the House of Com¬ mons—its conventions and standing orders. As Professor Redlich pointed out, this procedure was ‘worked out as the procedure of an opposition’, and, he continued, it ‘acquired once for all its funda¬ mental character’.2 This was an overstatement, for it is not really fundamental in the strict sense. Redlich himself referred to the altera¬ tion of the rules of procedure in order to meet the tactics of the Irish members,3 but though he admitted that the result was to make parlia¬ ment ‘more subservient to the needs of the government’, so that ‘the time and strength of the House of Commons came more and more to be regarded as the time and strength of the government’, he thought ‘the change was slow, and . . . never so radical as to endanger the political foundations of English procedure, the ample scope left to the action of the minority’. This tendency has been carried a long way farther in recent years, and though we may still feel that governments, judges to lay much stress on what a hundred years ago would have been a presumption considerably stronger than it is today’ (Local Government Board v. Arlidge, in Keir and Lawson, op. cit., 4th edn., p. 374). 1 These liberties, of course, are not and cannot be absolutely unlimited, and in practice the government decides where the limits are to be drawn. 2 J. Redlich, Procedure of the House of Commons (1908), i. 57. He was referring, of course, to the Commons’ opposition to the Crown in times past. 3 Ibid. iii. 194.

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in spite of their powers, on the whole do not abuse them, the use sometimes made nowadays of such devices as the closure and the ‘guillotine’ is undoubtedly open to criticism. Nor can the procedural safeguards, adequate as they may be in normal times, necessarily be relied upon in a crisis. If a government thinks it necessary, a bill can be rushed through all its stages in a few hours, and the power which has whittled away the authority of the House of Lords could abolish a second chamber altogether. For that matter, it could enact that a measure should become law after one reading in the Commons. Or it could enact (and has often done so) that regulations made by a minis¬ ter should have the force of law, as if enacted in a statute. The customary forms of legislative procedure, and the constitu¬ tional principles they may be supposed to safeguard, are in the last resort no more fundamental than the contents of legislative enact¬ ments themselves. As Professor Laski remarked1 (in a soberer passage than the sentences quoted above), men are only willing to regard con¬ stitutional principles as binding ‘because they accept the ends they are intended to secure. Will they so regard them’, he asked, ‘if they are doubtful about those ends?’ And he seemed uncertain whether these principles and conventions could be relied on ‘in periods of rapid social change’.2 The last few years have seen considerable social changes, yet our constitution has stood the strain, and perhaps Pro¬ fessor Laski was unduly pessimistic. Moreover, if our parliamentary conventions were to be overborne in a time of crisis or of embittered emotions, should we be any safer with laws, even with fundamental laws and a written constitution? The attitude of the nationalist majority to the so-called entrenched clauses in the South African constitution is an object-lesson in this respect, and there is no saying what claim may not be made on behalf of the will of the people.3 If that is the ultimate master, our best hopes lie in guiding it, not in attempting to thwart or coerce it. The end of this book, however, is not the place for a further discus¬ sion of the already much-discussed questions of delegated legislation, administrative law, and the possible tyranny of the majority. Let us conclude by returning from politics to jurisprudence, and observe finally that though fundamental law, in the American sense with its corollary of judicial review, is not and never has been a part of English 1 H. J. Laski, op. cit., p. 53. 2 See Note 2A, p. 231. 3 The chief value of such devices as entrenched clauses is to prevent, or at any rate delay, such claims being acted on by a bare majority.

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law, English lawyers still freely write of the ‘fundamental principles’ of our law, or its ‘fundamental rules’, of ‘fundamental legal relation¬ ships’, ‘fundamental legal doctrine’, and so on.1 And it is important to remember that while the courts acknowledge the doctrine of legisla¬ tive sovereignty, this does not mean that, like Hobbes, or the modern school of legal positivists, they believe that justice and injustice, right and wrong, have no legal meaning except in terms of what is enacted in legislation. Sir Carleton Allen quotes the judgement of Brett J. in the case of Robinson v. Mollett (1875), which asserted the right and duty of the courts to pronounce ‘unreasonable, contrary to law and void’ a business custom that infringed a ‘fundamental principle of right and wrong’, or a custom so entirely in favour of one side in a transaction as to be ‘fundamentally unjust to the other’.2 He ascribes this language, it is true, to Brett’s ‘characteristic leaning towards wide generalization’, but the principle that in order to be valid a custom must be ‘reasonable’ still stands, and is one of the oldest ‘fundamental’ ingredients in common law. References to ‘natural justice’, though met with from time to time in our legal history, are not always favoured in the courts,3 and natural law, as law, is not an accepted element in our legal system. But no English lawyer thinks of law as wholly divorced from morality,4 and, after all, the main purpose of the whole doctrine of natural law was to insist on the ultimate depen¬ dence of law on a higher source of obligation. Though their interpreta¬ tions of it might differ, when Englishmen, throughout their history, appealed to fundamental law, they were really proclaiming the same faith. 1 C. K. Allen, Law in the Making (5th edn.), pp. 68, 108, 143, 272, 479. 2 Ibid., p. 134. 3 A striking example was in Local Government Board v. Arlidge, where the House of Lords objected to the use of the idea of natural justice by the Court of Appeal as grounds for reversing the original decision in the King’s Bench Division (cf. Keir and Lawson, op. cit., 4th edn., pp. 372-3, and p. 210, n. 5 above). But the judgement of the House of Lords in this case, which dis¬ regarded several well-established principles of common law, has itself ‘come in for a great deal of criticism’ (ibid., p. 344). 4 Cf. Sir Carleton Allen’s criticism (Law in the Making, pp. 561 ff.) of Duguit’s theory that law has nothing to do with Tight’, but is essentially nothing but ‘a social fact’, arising in response to the conditions of a particular environment. The effect of such a theory, he considers, is to make law meaning¬ less, and ‘revolt an instinct which is deep-rooted in human nature’. Cf. also A. P. d’Entreves, Natural Law (1951), pp. 64 ff., and C. G. Haines, The Revival of Natural Law Concepts, esp. cc. 11 and 12.

POSTSCRIPT (1961) This book was written with a primarily historical aim, and its con¬ cluding chapter was not intended to be a contribution to the discus¬ sions by present-day legal writers about the meaning of parliamentary sovereignty. From another point of view, however, the title of this chapter (‘The Last of Fundamental Law’), and its emphasis on the rejection of fundamental law in certain decided cases, may involve an underestimate of the importance of other aspects of the subject. Also, the antithesis suggested in earlier chapters between the British type of constitution, characterized by parliamentary sovereignty and the absence of fundamental law, and written constitutions like that of the United States, where acts of Congress are subject to judicial review, may be somewhat misleading if it is stated without qualification. For there are formal, rigid constitutions (in Belgium and France, for in¬ stance) where the legislature has restricted powers, yet the judges do not pronounce on the validity or otherwise of legislation; at the same time, judicial review has wider functions than the simple annulment of legislation contravening fundamental law. In this country, for example, in spite of the restrictive effect of many modern statutes, administrative actions and delegated legislation may still in certain circumstances be subject to some control by the courts.1 In recent years the doctrine of parliamentary sovereignty has come in for a good deal of criticism and critical analysis, and attempts have been made to revive the idea of fundamental law, in Scotland at any rate, if not in England. When our present queen adopted the title of Queen Elizabeth II, a number of patriotic Scotsmen maintained that as she was the first monarch of that name to rule over Great Britain, the numeral II was historically incorrect, and in MacCormick v. Lord Advocate2 the rector of Glasgow University and a law student sought to have the numeral set aside as being in contravention of Article I of the Act of Union. The Lord Ordinary (Lord Guthrie) dismissed the petitioners’ propositions as ‘unsound and indeed extravagant’. The numeral was part of the style and titles authorized by the Royal Titles 1 For the development of the idea that executive and administrative authori¬ ties can be controlled by the judiciary, especially through writs of certiorari and mandamus, see L. L. Jaffe and E. G. Henderson, ‘Judicial Review and the Rule of Law: Historical Origins’, in 72 L.Q.R. (1956), 345 ff., where some seventeenth-century cases about the powers of the Sewer Commissions are discussed. 2 J953 Session Cases, 396 ff.

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Act, 1953, and no Scottish court had ever held an act of parliament to be ultra vires. He referred to Dicey’s enunciation of the principle of the sovereignty of the parliament of the United Kingdom as ‘the dominant characteristic of our political institutions’, and repudiated the petitioners’ allegation that Dicey’s work was ‘an English book, based on English law’, which ‘should not be accepted in Scotland’. It had been ‘for generations accepted in the schools of law in our Scot¬ tish universities as an authoritative exposition of the constitution of the United Kingdom’. Not content with this decision, however, the petitioners reclaimed (i.e. appealed), and once more disputed Dicey’s views. If these were correct, they urged, parliament could legally enact that the Court of Session be abolished and the jurisdiction of English judges be ex¬ tended over Scotland, but this was plainly absurd. It was true that some provisions of the Act of Union had been repealed (e.g. that requiring religious qualifications for university professors), but this had been done by common consent of the community and without opposition. While Dicey’s views might be correct according to English law, they expressed no part of the constitutional law of Scotland. As regards the Royal Titles Act, the petitioners suggested that the courts were not bound to follow an act which was absurd. They could ‘reject and strike out words in a statute if they resulted in nonsense’. In effect. Article I of the Treaty of Union was a fundamental law, and the Court of Session had the same right to annul an act which conflicted with it as the South African courts had in the case of an act contravening the entrenched clauses in the South African constitution.1 The Lord President (Lord Cooper) ruled that the Royal Titles Act had no bearing on the question of the numeral, which had been adopted by the queen at her accession a year before it was enacted. But he proceeded to describe the sovereignty of parliament as ‘a dis¬ tinctively English principle which has no counterpart in Scottish law’, and asked why the parliament of the United Kingdom should be thought to have inherited all the peculiar characteristics of the English parliament but none of the Scottish parliament, ‘as if all that hap¬ pened in 1707 was that Scottish representatives were admitted to the Parliament of England’. He remarked also that some clauses in the Act of Union expressly reserved to the parliament of Great Britain the power to modify them subsequently, whereas other clauses either 1 The petitioners cited the case of Harris v. Minister of the Interior, on which cf. below, p. 220.

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contained no such power or emphatically excluded it by declaring them to be unalterable or fundamental, and he asked how it was pos¬ sible ‘to reconcile with elementary canons of construction the adop¬ tion by the English constitutional theorists of the same attitude to these markedly different types of provisions’. Lord Cooper went on to refer to ‘the modified views expressed by Dicey in his later work entitled Thoughts on the Scottish Union', and to the criticisms of Dicey’s theories discussed in Professor Wade’s Introduction to the last edition of The Law of the Constitution. Nevertheless, while he thus gave expression to his sentiments as a Scotsman, he had to admit that he could not seriously maintain that an alleged breach of a fundamental law was ‘determinable as a jus¬ ticiable issue in the courts of either England or Scotland in the same fashion as an issue of constitutional vires would be cognizable by the Supreme Court of the United States or of South Africa or Australia’. There might perhaps, he suggested, be room for an ‘advisory opinion’ from the International Court of Justice, but on this he expressed no opinion. At any rate there was no precedent for the proposition that the domestic courts of England or Scotland had jurisdiction to decide whether a governmental act such as the one in question was or was not in accordance with the provisions of a treaty, and he therefore rejected the petition, though for different reasons from those ex¬ pressed by the Lord Ordinary. Lord Russell delivered a concurring judgement, and thus Dicey’s principle of parliamentary sovereignty would seem in the end to have received fresh confirmation.1 Professor T. B. Smith, however, maintains that the terms of union agreed upon between England and Scotland are a fundamental law, or fundamental constitution, restricting the powers of the parliament of Great Britain. ‘It is still an open question,’ he declares, ‘whether, as in the United States, the courts would have jurisdiction to hold legis¬ lation to be ultra vires, or whether, as in France (which also has a written constitution) the ordinary courts would not be entitled to exer¬ cise such jurisdiction.’ The former alternative seems difficult to sus¬ tain in the face of the decision in MacCormick's Case', but, admitting that there may be a fundamental constitution without judicial review, when Professor Smith goes on to remark that ‘this much seems clear 1 In the Irish Free State also a majority of the Supreme Court decided that there were no fundamental laws or natural rights in the constitution (Ryan’s Case: see O. Hood Phillips in 52 L.Q.R. (1936), 241-6), but one of the judges delivered a dissenting judgement.

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to Scottish lawyers at least: the British Parliament may not lawfully do certain things’,1 one may query whether ‘lawfully’ is the appro¬ priate adverb. In spite of its very different historical background, there is a legal parallel, as Dicey remarked,2 in the Irish Union of 1800, whose terms were also expressed to be perpetual and funda¬ mental, and yet they have been abolished by British legislation. The point is, however, that the Church of Ireland was disestablished and the union dissolved in accordance with the wishes of a majority of the Irish people, and similarly we may feel sure that parliament would not attempt to alter the terms of the Scottish Union without the con¬ sent of the people concerned. But this is a political, not a legal question. The fact is that MacCormick v. Lord Advocate brings out with fresh clarity a point of which Dicey himself was well aware, when he distinguished between legal and political sovereignty3 ‘If the doctrine of parliamentary sovereignty involves the attribution of unrestricted power to Parliament,’ he declared, ‘the dogma is no better than a legal fiction, and certainly is not worth the stress here laid upon it.’4 In other words, the sovereignty of parliament does not mean that parlia¬ ment is actually and politically omnipotent; it is simply a legal con¬ ception expressing the attitude which the courts adopt to acts of parliament.5 As Lord Cooper himself remarked, ‘it is of little avail to ask whether the Parliament of Great Britain “can” do this thing or that, without going on to inquire who can stop them if they do. Any person “can” repudiate his solemn engagement, but he cannot nor¬ mally do so with impunity’, and he quoted Dicey’s ‘exceedingly cyni¬ cal’ remark that ‘it would be rash of the Imperial Parliament to abolish the Scotch law courts . . . but no one can feel sure at what point Scotch resistance to such a change would become serious’.6 The point about legal sovereignty was forcefully put over a hundred years ago by Coleridge.7 ‘The omnipotence of Parliament, in the 1 T. B. Smith, ‘Some Aspects of Scottish Civil Law’, in The South African Law Journal, Ixxvii (1960), p. 54. Cf. also his article ‘The Union of 1707 as Fundamental Law’, in Public Law (1957), pp. 109, 111. 2 The Law of the Constitution, p. 65. Cf. also above, p. 180. 3 Op. cit., pp. 73 ff. 4 Op. cit., p. 71. 5 Cf. Prof. E. C. S. Wade’s Introduction to Dicey, op. cit. (10th edn.), pp. xxxv, liv, and his remark (p. lxx) that as a result of recent tendencies ‘the political supremacy of Parliament, as distinct from its legal omnicompetence, has become more and more unreal’. 6 The Law of the Constitution, p. 82. 7 S. T. Coleridge, On the Constitution of Church and State, c. xi.

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mouth of a lawyer,’ he wrote, ‘and understood exclusively of the restraints and remedies within the competence of our law-courts, is objectionable only as bombast. It is but a puffing pompous way of stating a plain matter of fact. Yet in the time preceding the Restora¬ tion even this was not universally admitted,’ he continued, and he quoted ‘the shrewd and learned author’ of The Royalist’s Defence (1648), who had argued that ‘the Parliament itself (that is, the King, the Lords, and Commons) although unanimously consenting, are not boundless, and the Judges of the Realm by the fundamental law of England have power to determine which Acts of Parliament are bind¬ ing and which void’. We have seen ourselves that this belief, as Coleridge says, ‘did not want defenders among the lawyers of elder times’, but in modern times it is equally clear that the courts have abandoned any claim to resist the will of parliament. ‘If the strutting phrase be taken . . . absolutely, and in reference, not to our courts of law exclusively, but to the nation’, Coleridge declared, ‘. . . the omni¬ potence of Parliament is an hyperbole’, which might be mischievous —presumably because an ‘omnipotent’ parliament which presumed that its power was really unlimited might be tempted to impose on the nation some rash policy which could only be checked by rebellion.1 Dicey’s recognition that the legal sovereignty of parliament was not incompatible with actual limitations on its power has been greatly reinforced in recent years by developments in the constitution of the Commonwealth. The Statute of Westminster, for example, provided (section 4) that no future act of parliament should extend to a domi¬ nion unless it was expressly declared in the act that the dominion had requested and consented to its enactment. If legislative sovereignty implies (as is generally agreed) that a subsequent parliament can modify or repeal the acts of its predecessors, this raises the question whether the Imperial parliament ‘could’ repeal the Statute of West¬ minster itself. It is obvious that an attempt to do so would result in a political crisis and the disruption of the Commonwealth, but the theoretical question has led to much discussion among constitutional lawyers.2 It would appear that Dicey himself, if confronted with this question, would have declared that parliament could surrender its 1 Coleridge went on to criticize ‘the dereliction of principle and breach of trust’ involved in the Septennial Act (op. cit., 3rd edn. (1839), pp. 103-6). 2 The question was mentioned in British Coal Corporation v. the King (1935, A.C. 500), when the Judicial Committee of the Privy Council observed that ‘the Imperial Parliament could, as a matter of abstract law, repeal or dis¬ regard s. 4 of the Statute. But that is theory and has no relation to realities’.

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powers completely,1 and Professor Wade suggests that ‘if total aliena¬ tion of sovereignty is possible, partial divesting, of which Section 4 of the Statute of Westminster is a conspicuous example, raises less diffi¬ culty’.2 This, however, is a disputable point on which the authorities have differed considerably,3 and though it is in a sense academic and remote from reality, one can understand the misgivings expressed in Ireland when the acceptance of the Statute of Westminster was under discussion in the Dail. The Free State Government was prepared to accept it as ‘an act of renunciation’ which ‘destroyed British legislative supremacy in the Commonwealth’, but Mr. Sean Lemass challenged this interpretation. He maintained that on the contrary ‘the Act has been very carefully drafted to preserve the theoretical right of the British Parliament to legislate for the whole of the British Empire’. He agreed that in practice the dominion parliaments would thence¬ forth be able to legislate without British interference, but still ‘the theoretical supremacy of the British Parliament is maintained. . . . What one British Parliament has enacted another British Parliament can repeal.’ He suggested that the British parliament should ‘pass an Act declaring our independence, such an Act as that which declared the termination of the British sovereignty over the United States of America— Mr. Law: And which it can repeal by the Deputy’s own argument. Mr. Lemass: Undoubtedly. Mr. McGilligan: Therefore, you are stuck as you are for all time.’4 There could hardly be a clearer exposition than this dialogue of the essential futility of argument about sovereignty in its purely legal aspect. It is unfortunate that the word ‘sovereign’ is at the same time both ambiguous and evocative of national pride. This point was em¬ phasized by Mr. Justice Centlivres in the course of his judgement in the celebrated and much-discussed case of Harris v. Minister of the 1 Cf. his discussion, in a long footnote on pp. 68-70 of The Law of the Constitution, of the principle that ‘the impossibility of placing a limit on the exercise of sovereignty does not. .. prohibit... the abdication of sovereignty’. 2 Introduction to Dicey, op. cit. (10th edn.), p. lxiii. 3 For a fuller discussion see H. W. R. Wade, ‘The Basis of Legal Sove¬ reignty’, in Cambridge Law Journal (1955), pp. 172 ff. See also E. C. S. Wade s Introduction to Dicey, op. cit. (10th edn.), and the authorities referred to in his footnotes and bibliography. 4 A. .B. Keith, Speeches and Documents on the British Dominions, 1918-1931, pp. 242-4. Cf. also Mr. McGilligan’s speech in reply, ibid., pp. 245 if.

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Interior (or Harris v. Donges),1 which involved the ‘fundamental’ status of the entrenched clauses in the South African constitution. He pointed out that a country (e.g. the United States) could be ‘sovereign’ (i.e. nationally independent) although Congress was not ‘sovereign’ in the sense of legally omnicompetent. Moreover, the South African par¬ liament had the legal power to repeal the entrenched clauses provided it did so by the procedure laid down in the constitution (which required a two-thirds majority in a joint session of both houses), and it could thus be regarded as possessing legislative sovereignty, although in structure and procedure it was not an exact replica of the Imperial parliament at Westminster. Another point to consider is that the procedure of the Imperial parliament itself has undergone great changes. Legislative sovereignty belongs, strictly speaking, to the king in parliament, but the royal assent has been a formality since the reign of Queen Anne, and the parliament acts of 1911 and 1949 have severely restricted the legisla¬ tive powers of the House of Lords, not to speak of the adoption in the procedure of the House of Commons of devices such as the closure. In one sense these developments do not affect the question, since the courts do not concern themselves with the process by which acts of parliament come into being:2 if an act appears on the parliament roll, the courts accept it as such and must apply it. If there is anything fundamental in the constitution, then, one may perhaps say that it is simply the principle of parliamentary sovereignty itself, by which the courts are bound, but which is not itself a product of statutory enactment.3 Its origin is in fact historical, and is bound up with the development of legislative powers by a body which was once itself 1 1952(2) S.A. 428; T.L.R. 1952(1), 1245. Part of the trouble was, of course, that the government lacked the necessary majority in the Senate to be able to repeal the entrenched clauses by the procedure laid down in the constitution, and the fact that the constitution (with its entrenched clauses) was contained in an act of the Imperial parliament was another sore point. Eventually (The Times, 10 Nov. 1956) the government achieved its purpose by increasing the size of the Senate, and the court then ruled that the entrenched clauses were not so fundamentally entrenched as to invalidate this procedure, even though it had been deliberately adopted for the purpose. 2 But in Harris v. Minister of the Interior this was one of the crucial points before the court. For another South African case suggesting that ‘at least some forms of “procedure” were within the area of scrutiny of the courts’ see G. Marshall, ‘What is Parliament?’, in 2 Political Studies (1954), pp.193 ff. 3 See H. W. R. Wade’s article in Cambridge Law Journal (1955), p. 187.

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a court—the highest court in the land, whose decisions were therefore recognized as authoritative by all inferior courts.1 In the course of his Introduction to Dicey, Professor Wade alludes to a number of constitutional assumptions which in a looser sense may be called fundamental—some of the implications of the so-called ‘rule of law’ for example—and which ultimately rest on what he calls ‘a fundamental assumption of faith in a democratic form of govern¬ ment.2 All these, however, are matters of politics and not of law, and in the legal sense it remains true that the only thing a court can do with an act of parliament is to apply it. And in doing so the courts can be rather alarmingly literal-minded, at the expense of what some people might regard as vital, if not ‘fundamental’, considerations of justice. Consider, for example, the judgement of the House of Lords in the case of Smith v. East Elloe Rural District Council,3 where a Lincolnshire householder claimed that a compulsory purchase order on her property had been made in bad faith and was therefore invalid. The respondents relied on a paragraph in the Acquisition of Land (Authorization Procedure) Act, 1946, which laid down that ‘a com¬ pulsory purchase order . . . shall not be questioned in any legal pro¬ ceedings whatsoever’. It was argued for the appellant that there was a deep-rooted principle4 that parliament ‘could not be assumed to oust the jurisdiction of the court, particularly where fraud was con¬ cerned, except by clear words’. In a dissenting judgement Lord Reid pointed out that ‘there are many cases where general words in a statute are given a limited meaning’, when to give them ‘their apparent meaning would lead to a conflict with some fundamental principle’, and a wrongdoer should not be able to ‘rely on general words to avoid the consequences of his own dishonesty’. Yet the House of Lords decided against the appellant by a majority of three to two, Viscount Simonds declaring that ‘the first of all principles of construction’ was ‘that plain words must be given their plain meaning’, and that there was no justification for limiting the scope of the paragraph. An action for damages might lie against the individual clerk to the council, of whose fraud or bad faith the appellant complained, but the validity of the order could not be questioned. Lord Morton of Henryton, who concurred, thought it ‘not inconceivable, though it does seem 1 Cf. above, pp. 27, 28, and Note H, p. 225. 2 Introduction to Dicey, op. cit. (10th edn.), p. cv. For other ‘fundamental’ assumptions cf. pp. civ, clxxxv, cxcii. 4 My italics. 3 1956, A.C. 736.

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surprising, that the Legislature should have intended to make it impossible for anyone to question in any Court the validity of a compulsory purchase order on the ground that it was made in bad faith’. This being the law, the situation resembles that created by numer¬ ous modern statutes which expressly prevent the courts from review¬ ing the decisions of administrative tribunals or officials, and the only hope of a remedy for such a situation lies in a change in the law by parliament itself. Ultimately the maintenance of right and justice must always depend (apart from the vigilance of the electorate) on respect and care for these virtues by governments and parliaments, and it is problematical how far those who proclaimed their belief in fundamentals in years gone by were appealing to parliament to do ‘right’ rather than propounding legal (as opposed to moral or prac¬ tical) obstacles to its capacity to do ‘wrong’ if it chose. The distinctions between legislative sovereignty in the technical sense and actual poli¬ tical power, and between moral, prudential, and practical limits to political power, were less clear than they have since become, and it is likely that some people had less insight than others into the realities of the position. Legislative sovereignty, we can now see, is a purely legal principle, but behind this lies the question, with which this book is chiefly con¬ cerned, of what exactly the upholders of fundamental law were anxious to maintain. It is obvious that, in the past as in the present, an appeal to fundamentals meant that the issues at stake were felt to be of vital importance, and the objects so contended for have natur¬ ally varied widely in the course of ages. In the seventeenth century it was constitutional limitations to absolute power—generally to the power of the monarchy, but sometimes also to the power of parlia¬ ment—which above all were claimed as fundamental. Later, when the privileges of established Protestantism seemed to be threatened, these too were often declared to be fundamental, and as late as 1829, when Roman Catholic emancipation was under discussion, its opponents declared that ‘the admission of Papists into Parliament is contrary to the fundamental laws of our Protestant constitution’. By these they meant such laws as the Test Acts, the Coronation Oath Act, the Bill of Rights, and so on, yet they were uncomfortably aware that parlia¬ ment, which had made these laws, could also unmake them. Some, therefore, falling back on the coronation oath, which alone, they thought, might serve as a check on the sovereignty of parliament,

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even suggested that the king might use the obsolete weapon of the royal veto to prevent emancipation taking effect.1 The ultimate fundamental law (in its political and historical, not its narrowly judicial sense) is the law which legislators who expect obe¬ dience must themselves obey—the limit which they can overstep only at the risk of offending the sense of justice of the community: in the last resort, of arousing such resistance as to threaten its social and political cohesion. Where this limit lies is a matter of political expe¬ rience, and no doubt the opponents of a government will be quicker than its supporters to accuse it of violating whatever principles are thought to be fundamental at any given time. Many of the issues that seemed fundamental and unquestionable to past generations (indivi¬ dual rights of property, for instance) have since come to take a less exalted place in the scale of social values, and it is in these issues and these changes that historians are chiefly interested. 1 See G. F. A. Best, ‘The Protestant Constitution and its Supporters, 18001829’, in Trans. Royal Hist. Soc., 5th series, 8(1958), pp. 105 If. Cf. also above, pp. 201, 202. In a thesis submitted for the degree of Ph.D. at the University of Manchester in 1959 (Some Aspects of the Theory and Practice of Religious Toleration in England, 1787-1833) Miss Ursula R. Q. Henriques has shown, with numerous quotations from contemporary writers and politicians, that ideas of this kind were also widely current in Protestant Tory circles in the eighteenth century. The Dissenters on the other hand, who wanted the repeal of the Test and Corporation Acts, found it easy to accept the full legal sovereignty of parliament.

NOTES Note A, p. 2. For example, in the course of the discussions in committee on the bill for the attainder of Strafford we read that the poet Edmund Waller ‘went to the root of the matter by asking what were the fundamenal laws’, but Serjeant Maynard simply retorted that ‘if he did not know that, he had no business to sit in the House’ (S. R. Gardiner, History of England, 1603-1642, ix. 336, quoting D’Ewes’s Diary). Though on this occasion Waller professed ignorance of the fundamental laws, it is worth noticing that only a year before he had spoken in favour of restoring to the nation ‘the fundamental and vital liberties, the propriety of our goods and the freedom of our persons’ (Rushworth, iii. 1141. Cf. p. 75). Among others who did not believe in fundamental laws—naturally enough, for they were incompatible with his doctrine of sovereignty—was Thomas Hobbes (Leviathan, c. 26, ad fin.). But even he would not abandon the phrase altogether, for after complaining that he could not understand what people meant by it, he suggested a fresh defini¬ tion of his own. Cf. p. 120. Note B, p. 11. The allusion is to a passage in Sir C. Ilbert’s Legislative Methods and Forms, where, after remarking that ‘the highest courts of justice in England have never claimed, like the parlements in France, the right to register, and for that purpose to review, the enactments of the legislature’, he nevertheless notes ‘a natural tendency on the part of the judges to place a narrow construction on enactments which appeared to them to conflict with what they have regarded as fundamental principles of common law’. Occa¬ sionally this has gone unwarrantably far, so as ‘to justify the expression of driving a coach and four through Acts of Parliament. But’, he continues, ‘the action of the courts is to be judged in the light, not of a few petulant or captious criticisms by individual judges, but by their general course of conduct; and they have as a rule loyally adhered to their function of being not critics of the legislature but interpreters of the law’ (pp. 6, 7). Note C, p. 15. On the Charter itself, see W. S. McKechnie, Magna Carta. The history of Magna Carta has been traced from the thirteenth to the seven¬ teenth century by Miss Faith Thompson in her work entitled Magna Carta. Here she suggests that while it had already come to be regarded as a docu¬ ment of special importance before the end of the fourteenth century, it first definitely emerged as a ‘liberty-document’ in the reign of Elizabeth I, as a weapon in the contest of the common lawyers against the civilians who sup¬ ported the Court of High Commission and the oath ex officio (op. cit., p. 209). Cf. her quotations (pp. 216-19) from Robert Beale and Sir James Morice, who in their opposition to the powers of the High Commission emphatically stated their belief in the limitation of monarchical powers by the rule of law. In their view Magna Carta, ‘against which I truste neither anie Common or Ecclesiasti¬ cal Lawyer will make any exception at all’ was ‘the law of laws’, something fundamental and unalterable, which no royal letters patent could touch. But they did not claim that statute could not touch it. Note D, p. 19. Cf. Harbert’s Case (26 and 27 Eliz.), 3 Co. Rep. 13b: ‘The judges and sages of the law have always expounded general statutes according to the rule of the common law, which is built on the perfection of reason’; and note U ibid.: ‘When the provision of a statute is general, it is subject to the

NOTES

225

control and order of the common law, for statutes are not presumed to make any alteration in the common law further or otherwise than the act expressly declares: therefore in all general matters the law presumes the act did not intend to make any alteration, for if the Parliament had had that design, they would have expressed it in the act.’ Cf. also Chudleigh’s Case (1589-95), 1 Co. Rep. 124a: ‘If any case be doubtful upon a statute, it is good to construe it according to the reason of the common law.’ See also Roscoe Pound, ‘Com¬ mon Law and Legislation’, in 21 Harvard Law Review, p. 386. Note E, p. 20. Cf. Stradling v. Morgan (2 Eliz.), 1 Plowden, 205, which also cites precedents ‘from which ... it appears that the sages of the law hereto¬ fore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter they have ex¬ pounded to extend but to some things, and those which generally prohibit all people from doing such an act they have interpreted to permit some people to do it, and those which include every person, in the letter they have adjudged to reach to some persons only, which expositions have always been founded upon the intent of the Legislature ..., which they have always taken according to that which is consonant to reason and good discretion’. Note F, p. 21. Cf. The Case of the Mines (9 & 10 Eliz.), 1 Plowden, 315, where the common law was said to be ‘founded upon reason’; and Nichols v. Nichols (17 & 18 Eliz.), 1 Plowden, 487, where ‘the office of judge’ was said to be ‘to expound the words of an Act of Parliament so that they may agree with equity and good conscience and do no wrong or injury to a third person. And such construction agrees with the reason of the common law, which although it allows many prerogatives to the king, yet will never suffer them to hurt others.’ In this connexion reason had a special meaning, as Coke later pointed out to James I when the king claimed that he as well as the judges possessed it. It was necessary to be learned in the law, so that ‘causes which concern the life, or inheritance, or goods or fortunes of his subjects are not to be decided by natural reason only but by the artificial reason and judgement of law, which law is an art which requires long study and experience before that a man can attain to the cognizance of it’ (Prohibitions del Roy, 12 Co. Rep. 65). Note G, p. 27. On this subject cf. the introduction by S. E. Thorne to his edition (Huntington Library, 1942) of the Discourse upon the Exposicion and Understandinge of Statutes, ascribed to Lord Ellesmere, which ‘represents perhaps the earliest attempt to deal with a difficulty that was to become in¬ creasingly sharper and more troublesome the preservation of a balance between parliamentary authority and the administration of justice (p. 11). On p. 55 he comments on the development in Plowden’s time (see above, p. 9) of the practice of interpreting statutes in the light of a controlling ‘equity’. The doctrine of ‘equity’ in connexion with statutes has long since disappeared with the complete recognition of the authority of acts of parliament, but it was useful and appropriate in the sixteenth century when this was only half acknowledged. See also C. K. Allen, Law in the Making (5th edn.), pp. 429 ff. Note H, p. 28. A. F. Pollard, The Evolution of Parliament, p. 78. Cf. H. Pope, ‘The Fundamental Law and the Power of the Courts’ in 27 Harvard Law Review, p. 46. This was not so, of course, only because parliament was a high court. It was so also because parliament was a representative assembly, through the medium of which those whose interests were to be affected by legislation were supposed to give their consent to it. Sir Thomas Smith, it will 5725

Q

226

NOTES

be remembered (above, p. 7) stated quite clearly that parliament had the power to change ‘the rights and possessions of private men’, because the consent of parliament was ‘taken to be every man’s consent’. Put in this way, Smith’s theory resembles Montague’s interpretation of the Statute of Uses, regarding the owners as parties to the statute and so voluntary ‘donors’ of their land. Out of this theory later grew (or on to it was grafted) the democratic theory of popular sovereignty, which was to become the modern justification for the absolute powers of the legislature. Note I, p. 28. F. Bacon, History of King Henry VII, in Works (ed. Spedding, Ellis, and Heath), vi. 159, 160. The same point is worked out more fully in Maxims of the Law [Works, vii. 369 ff.). According to James I (in a speech in the Star Chamber on 20 June 1616; in Political Works, ed. C. H. Mcllwain, p. 329), the truth about the powers of parliament was also realized by Lord Burghley. ‘It was a foolish querke of some judges’, the king remarked, ‘who held that the Parliament of England could not unite Scotland and England under the name of Great Britain, but that it would make an alteration of the laws, though I am since come to that knowledge, that an Act of Parliament can do greater wonders. And that wise old man the Treasurer Burghley was wont to say, He knew not what an Act of Parliament could not do in England.’ Note J, p. 34. Coke’s version was: ‘Herle saith some statutes are made against law and right, which those that made them perceiving would not put into execution’, but the words in italics were added by Coke. Coke may have been quoting from memory, but in any case the additions show that he had read his own meaning into Herle’s statement, even if he was not deliberately misquoting it. Professor Mcllwain noted that Coke apparently took Herle’s reference to ‘those that made them’ as a proof that the judges disregarded statutes, and remarked that in Herle’s time the contrast between the legislature and an external judiciary did not exist [High Court of Parliament, pp. 289, 290). But this hardly bears out his conclusion that in spite of the misquotation Coke was not so far wrong after all. Note K, p. 41. More than this, such higher law would be unnecessary, for it was not only hoped but presumed that parliament would not undermine them. And indeed what motive could parliament have, when every member was a property-owner, for interfering with the rights of property and those other private rights which (as we shall see) lay at the heart of fundamental law? Coke did not cease to think of parliament judicially after his dismissal. On 16 March 1621 he remarked: ‘Every man that sits here is a judge, and hath a voice negative and affirmative.’ Nor was he alone in this attitude to member¬ ship of the House of Commons. On 17 December Glanville divided the func¬ tions of parliament into (1) bills, (2) grievances, (3) judicature, the third being the most important, ‘for without judicature we cannot make laws, and there¬ fore we must use judicature’ (Commons Debates in 1621, ed. Notestein, Relf, and Simpson (Yale, 1935), ii. 233, 532). Note L, p. 45. H.E.L. ii. 444 (my italics). As a matter of fact the law of nature did not always mean a moral rule: it might mean only a natural impulse. In May 1621 a quarrel broke out between two M.P.s, Clement Coke and Sir Charles Morrison, in the course of which Coke struck Morrison and Morrison retaliated. Protracted investigation and debates followed, during which the following typical opinions were expressed: Sir Edward Sandys: Vim vi licet repellere, and the civil law takes not the law of nature away; and therefore we may excuse him that would have the stroke after.

NOTES

227

Sir Edward Coke: ’Tis consonant to the Law of Nature for a man to defend himself. Sackville: The law of nature teacheth to repel force with force, and no civil law can dissolve the law of nature. {Commons Debates in 1621 (ed. Notestein, Relf, and Simpson), iii. 218, 239; v. 159.) Note M, p. 45. H.E.L. iv. 186. Occasionally parliament behaved badly, in Coke’s opinion, and he cited an instance when in ‘9 Hen. IV an act of Parlia¬ ment was made, that all the Irish people [sc. in England] should depart the realm and go into Ireland before the feast of the Nativity of the Blessed Lady, upon pain of death, which was absolutely in terrorem, and was utterly against the law’ {The Case of Proclamations, 12 Co. Rep. 76). This example, in which the initiative had presumably been the king’s, is cited by Coke after the case of an act passed to allow foreigners to trade in London, the execution of which Henry IV postponed by proclamation until the next parliament. This also Coke pronounced to be ‘against law’. It should be remembered that his object in citing these examples was to buttress his argument against James I’s claim to legislate by proclamation. Note N, p. 54. Works, p. 311. In the debate on Dr. Cowell’s Interpreter (8 Mar. 1610) the king was said to have acknowledged that ‘though he did derive his title from the loins of his ancestors, yet the law did set the Crown upon his head, and he is a king by the common law of the land’ {Parly. Debates in 1610, ed. S. R. Gardiner, Camden Soc., 1862, p. 24). A few years later (20 June 1616), in a speech in the Star Chamber, he reverted to these ideas, declaring his resolve to ‘renew my promise and oath made at my coronation concerning justice, and the promise therein for maintenance of the law of the land’, for, as he proceeded to explain, by law he now meant ‘the Common Law of the Land, according to which the King governs and the people are governed’ {Works, p. 329). Officially he had had to declare that this was his aim from his first appearance in England, for the preamble to the act empowering English to treat with Scottish commissioners (1 James I, c. 2) declares that ‘his most excellent Majesty . .. hath vouchsafed to express many ways how far it is and ever shall be from his royal and sincere care and affection to the subjects of England to alter and innovate the fundamental and ancient laws, privileges and good customs of this kingdom, whereby not only his regal authority but the people’s security ... are preserved’ (Prothero, Const. Docts., p. 252). Note O, p. 59. ‘Majesty’, Eliot wrote, ‘must ever have supreme power; but no greater power can there be than to give laws to all. To them also appertains the power of abrogating laws’. He went on to point out that ‘the clause . . . that seems to make a law everlasting doth but serve to distinguish it from temporary laws, for neither this nor any other clause can deprive the successor of his due right and power which full and absolute majesty gives him’. Majesty was often used in the seventeenth century as a synonym for sovereignty: both were originally the attributes of kingship. It was probably from Bodin that Eliot learnt that sovereignty was essentially a legislative rather than an execu¬ tive power, and like Bodin he added ‘no pope nor prince can alter or take away divine law’ {De Jure Majestatis (printed 1882), i. 79, 109, 110). Note P, p. 64. Miss Judson (op. cit., p. 261) quotes the MS. Grosvenor Diary, according to which Coke’s words were ‘this fellow Magna Charta is such a fellow as will have no saving’; but this probably just telescopes two of Coke’s

228

NOTES

sentences together. The same Diary (op. cit., p. 247) reports Coke as declaring of the word fundamental (in the proposal that the king should declare that subjects had a fundamental property and a fundamental liberty): ‘a word I understand not’. This was on 26 April, but on 9 April he had talked of the Commons vindicating and recovering ‘the Body of this Fundamental Liberty .. . from Shadows’, and of the need ‘to take such further course as may secure your Lordships, and them, and all your posterity, in the enjoying of your ancient undoubted and fundamental Liberties’. He was afterwards (2 Inst., p. 51) to refer to Magna Carta, and the phrase per legem terrae, as funda¬ mental law, but now presumably he thought that the liberties of the subject would be best secured not by labelling them with an admittedly undefined word but by a definite statutory confirmation of the law. Note Q, p. 88. A good example of the way in which these ideas were im¬ ported into England from the Continent in an academic guise, only later to be adopted for practical use, is in David Owen’s Anti-Paraeus, a polemic in Latin, published in 1622, to prove that even kings who violated iura regni fundamentalia must not be resisted. The author ‘boldly asserted’, against Bellarmine and various other controversialists whom he branded as either Papists or Pres¬ byterians, that nobody on earth, whether Roman priest, Estate of the Realm, or rebellious people, had any authority against ‘Reges delinquentes, aut Iura (quae vocant) fundamentalia violantes’, and explained that by fundamental laws the ‘Puritano-Papistae’ meant ‘contractus nescio quos, seu conventiones conditionales inter Principem et Plebem in prima Regum inauguratione, iureiurando initos ac sancitos’. On the influence of continental (and especially French) thought on the adoption in England of the idea of fundamental law see F. D. Wormuth, The Royal Prerogative, 1603-1649, pp. 31 ff. Note R, p. 110. In An Appeal from the Commons to the Free People (1647) Overton definitely appealed to the principle of reason as the foundation of ‘all just laws and governments’, and declared that self-preservation was ‘a firm law and radical principle in nature, engraven in the tables of the heart by the finger of God in creation, for every living, moving thing’. Therefore it was ‘an un¬ doubted principle of reason’ for man ‘by all rational and just ways and means . . . to save, defend and deliver himself from all oppression, violence and cruelty whatsoever.... To deny it is to overturn the law of nature, yea and of religion too. . . . Salus populi est [sic] suprema lex', he concluded, ‘the safety of the people is the supreme law of all commonwealths’ (quoted in A. S. P. Woodhouse, op. cit., pp. 324-9; cf. D. M. Wolfe, op. cit., p. 159). NoteS, p. 110. Ibid., p. 365. Another well-known radical, John Wildman, also professed that he had no illusions that Magna Carta was unalterable. If he had, he declared, he would ‘never have drawn sword against the King’. But he attri¬ buted this belief to ‘the gentlemen of the long robe’, and continued: ‘If I should believe Sir Edward Coke in what he said upon the statute of 42 Edward III, I must then say that an Act of Parliament made contrary to that part of the Great Charter that was declarative of the common law, was null of itself; for he said that part of it was unalterable . . .’ (quoted in A. S. P. Woodhouse, op. cit., p. 371). Ultimately it was left to royalists to console themselves with laments over Magna Carta. Cf. the comment of Joseph Jane in a letter to Sir Edward Nicholas, Secretary of State in exile at The Hague (28 June 1655), that Magna Carta ‘hath no signification but when a king governs, as we may see, it was a pure name while the wicked parliament assumed a legislative power to control it at pleasure’ (Nicholas Papers, ii (Camden Soc., 1892), p. 355).

NOTES

229

Note T, p. 111. J. Lilburne, Legal Fundamental Liberties (2nd edn.), pp. 6,

48. Lilburne also complained that Charles I, under whose ‘irregular govern¬ ment’ he himself had ‘sufficiently ... smarted’, had ‘in the violating of the Laws of England’ broken ‘the compact betwixt him and his people’ (p. 26). Referring to his own imprisonment, he maintained that it was ‘one of the fundamental liberties of the subjects of this kingdom to be tried by juries’ (p. 73). A similar claim was made by Christopher Love when put on trial for treason in 1651. According to him, parliament had promised that ‘since the change of govern¬ ment they would never alter that way of trial: and . . . they did declare that though they thought fit to abolish the kingly office and house of lords, yet they resolved they would still retain and preserve the fundamental laws of the nation, for and concerning the preservation of the liberties, lives and estates of the people. Now, Sir, they declaring they would never alter this way of trial, and you declaring this way of trial by juries to be according to the fundamental laws of the land, I beseech you give me the reason why it is denied to me’. Later on in the trial the Lord President (Keble) declared: ‘There is no law of England but is as really and truly the law of God as any Scripture-phrase that is by consequence from the very texts of Scripture . . . and whatsoever is not con¬ sonant to Scripture in the law of England, is not the law of England’ (S.T. v. 53, 172). Note U, p. 123. An Hue and Cry, pp. 3, 4. The rest of the pamphlet dilates on his own case as an example of the violation in various ways of these funda¬ mental liberties. T. C. Pease (in The Leveller Movement, pp. 340-5) saw in the circumstances of Lilburne’s second imprisonment and trial (1652) the first emergence of the idea of judicial review. Lilburne himself stressed the impor¬ tance of trial by jury, and urged the jury ‘to weigh the comparative validity of an act of the supreme authority and the fundamental laws of the land’. From among the numerous pamphlets containing the doctrine of fundamentals Pease singled out An Additional Discourse, by Captain Norwood, who ‘saw more clearly than all other writers that the function of judging the accord of statutes with the fundamental law pertained to a jury as part of a judiciary rather than to a jury as a jury’. With this, he thought, the constitutional ideas of the Levellers ‘reached their climax’. As a matter of abstract principle this may be true, but it would be absurd to imagine that Otis and Jefferson and Chief Justice Marshall drew their inspiration from this or any other obscure Leveller pamphlet. Note V, p. 133. Sir H. Vane, A Healing Question (1655), in Somers Tracts (ed. W. Scott), vi. 312. On the previous page he explained that the fundamental constitution he had in mind would provide for ‘a supreme judicature . . . representative of the whole’, which was also to have legislative powers, a ‘standing council of state’ to handle matters of defence and foreign policy, ‘under the inspection and oversight of the supreme judicature, but of the same fundamental constitution as themselves’, while ‘that branch of sovereignty which chiefly respects the execution of laws’ was to be ‘in a distinct office from that of the legislative power (and yet subordinate to them and to the laws). It might be ‘intrusted into the hands of one single person, if need require, or in a greater number, as the legislative power should think fit’. Vane evidently thought of parliament as partly a court and partly a legislature, but apart from this it is interesting to note that his proposal involved, in a modified form, what later became a common feature of written constitutions under the name of the

separation of powers.

230

NOTES

Note W, p. 168. In § 158 Locke justified the use of the prerogative for electoral reform on the ground that ‘Salus populi suprema lex is certainly so just and fundamental a rule that he who sincerely follows it cannot dangerously err.’ Sir James Fitzjames Stephen (in Horae Sabbaticae, 2nd series, 1892, p. 155) sneered at Locke’s idea that the king had, but parliament had not, ‘the right to disfranchise Old Sarum’. According to Stephen, Locke’s ‘imaginary difficulty’ arose from the ‘arbitrary limitations’ he set on the divisions of the government. In reality, however, current political thought on this question was by no means clear. It is true that in 1673 the county palatine of Durham was enfranchised by act of parliament (25 Car. II, c. 9), and so were the principality of Wales (27 Hy. VIII, c. 26) and the palatinate of Chester (34 & 35 Hy. VIII, c. 13) in the previous century, but the creation of new boroughs had normally been a matter for the king. When Charles II enfranchised Newark by letters patent, however, there was opposition in parliament. Shaftesbury was ‘certain that parliamentary matters were never settled otherwise than by Act of Parliament’, and denied the competence of the royal prerogative, ‘because some learned in the law assure us it cannot be done but by Act of Parliament’. But he admitted that ‘others are again of a contrary opinion, as was adjudged in the case of Dungannon and Newark’, and that ‘the privilege of sending representatives to Parliament (though grounded upon a natural and fundamental right in the people) was at first immediately derived from the king’ (Observations on Elections, in Somers Tracts, viii, 398). Note X, p. 180. Mr. M. A. Thomson points out (Const. Hist, of England, iv, 1642-1801, p. 265) that a clause in the Act of Union, plainly declared to be fundamental, was violated as early as 1712, when an act of the parliament of Great Britain restored lay patronage in the Church of Scotland. Yet in the following year, when there was a debate in the House of Lords on a motion (which was defeated) for leave to bring in a bill to dissolve the Union, several speakers argued that its dissolution was impossible. The Earl of Peterborough compared it to a marriage which ‘could not be broke’, and the Lord Treasurer (Oxford) held that ‘nothing could make it void but the Power that created it*. The Union had been made ‘by two distinct Parliaments of both kingdoms’, and now ‘the Power that made it was no more in being’. Nottingham argued that ‘the same Power that was in the two Parliaments when they were separated and distinct was lodged in them now they were consolidated, and therefore if they had Power to make it, they certainly had to dissolve it’. Yet he would not admit that parliament was sovereign, for while ‘he knew not anything but what the Parliament could do’, he excepted ‘destroying the present Constitution, which he owned they had no Power to do’ (Hist, and Proceedings of the House of Lords (1742), ii. 394—7; Parly. Hist. vi. 1216-18). See also pp. 215, 216. Note Y, p. 206. An argument similar to one of the arguments put forward in this case had been dismissed nearly thirty years previously in another case concerning a private act for a railway (Edinburgh and Dalkeith Railway Co. v. Wauchope, 1842; 8 Cl. & F. 724), where the quasi-judicial character of private bill legislation had given rise to the idea that the courts would protect an individual from the operation of an act which had been intro¬ duced and passed without his being given due notice. The House of Lords declared that there was no foundation for any such idea. Once a bill had passed both Houses and received the royal assent, no court of justice could inquire into what lay behind it, or what happened while it was passing through its various stages in parliament.

NOTES

231

Note Z, p. 210. D. L. Keir and F. H. Lawson, Cases in Constitutional Law (4th edn.), pp. 8-10. The editors list a number of such presumptions, but con¬ clude with the warning that ‘in time of war the maxim salus populi suprema lex has been used to justify a benevolent interpretation of statutes to the advantage of the executive. At any rate it seems that during a time of national danger the presumption in favour of the liberty of the subject is very much weakened’ (op. cit., p. 12)—an interesting clash, incidentally, between two historic senses of fundamental law. The editors cite the case of Rex v. Halliday (1917; ibid., p. 27), a case of internment by order of the Home Secretary under powers conferred by the Defence of the Realm Act, where Lord Finlay rejected arguments ‘that general words in a statute could not take away the vested rights of the subject or alter the fundamental law of the constitution’, or ‘that a con¬ struction said to be repugnant to the constitutional traditions of this country could not be adopted’. Similarly in Ronnfeldt v. Phillips (1918; ibid., 2nd edn., p. 21) Scrutton J. said ‘that a war could not be carried on according to the principles of Magna Charta’. The government was allowed even more latitude in the war of 1939-45; and since its conclusion we have witnessed the perpetua¬ tion of what were originally enacted as wartime regulations and expedients, in order to promote the policy of the welfare state. Note 2A, p. 212. He admitted that ‘in that sense, at any rate, the safeguard¬ ing of “fundamental liberties” is an important constitutional problem’ (H. J. Laski, Parliamentary Government in England, p. 57). In this connexion cf. an article by E. Jenks, ‘The Parliament Act and the British Constitution’, in 12 Columbia Law Review, pp. 32-43. On p. 41 he refers to the preamble to the act of 1911 (stating the intention to substitute for the hereditary House of Lords a second chamber constituted on a popular basis) as an example of ‘that kind of political concordat which is, perhaps, the nearest thing in British constitu¬ tional law to the “fundamental principles” with which non-sovereign legisla¬ tures are familiar’. Though of no legal value, he thought that ‘in the peculiar atmosphere of British politics’ the ‘moral and political value’ of such ‘recitals’ was ‘bound to be great. . . . Accusations of bad faith’, he continued, ‘to which British statesmen are honorably sensitive, are certain to follow any attempt to disregard them.’ As things have turned out, he chose a bad example, for the preamble to the Parliament Act has never been acted on, but his general point was sound. Note 2B, p. 129. Under Cromwell’s protectorate Prynne reiterated his praises of the merits of a parliamentary regime, and in .1656 he published a 32-page pamphlet entitled ‘A Summary Collection of the principal Funda¬ mental Rights, Liberties, Proprieties of all English Freemen, both in their Persons, Estates, and Elections; and of the memorable Votes, Resolutions and Acts of Parliament, for their Vindication and Corroboration in the late Parlia¬ ments of 3 and 17 King Charles, collected out of their Journals and Printed Ordinances ... by Wm. Prynne, of Swainswick, Esq., a Bencher of Lincoln’s Inn.’

BIBLIOGRAPHY The idea of fundamental law was so ubiquitous and so long-lived in English history that it would be vain to attempt to compile a list of ‘primary authorities’. I give references in the footnotes to all the sources on which I have drawn in writing this book, but no list could be more than a selection of possible sources, and the making of it would be partly a matter of chance. What may be worth while is a selection of modern works in which fundamental law and associated subjects are discussed. I therefore list below those which I have found useful or interesting. Except where indi¬ cated, the place of publication of books is London. Adair, E. R. ‘The Petition of Right’ in 5 History n.s. (1920-1), pp. 99-103. Adams, G.

B. ‘The Origin of the English Constitution’ in 13 American Historical Review (1908), pp. 229-45. Allen, C. K. Law in the Making (5th edn., Oxford, 1952). Allen, J. W. English Political Thought 160S-1660 (1938), vol. i. Alston, L. Introduction to Sir Thomas Smith, De Republica Anglorum (Cambridge, 1906). Anstey, T. C. ‘Blackstone’s Theory of the Omnipotence of Parliament’ in Juridical Society Papers, iii (1871), pp. 305 ff. Barker, E. ‘Blackstone on the British Constitution’ in Essays on Government (Oxford, 1945). Bellot, H. H. L. ‘The Rule of Law’ in Quarterly Review (April 1926), pp. 346-65. Beloff, M. Introduction to The Debate on the American Revolution (1949). Benn, S. I. ‘The Uses of Sovereignty’ in 3 Pol. Studies (1955), pp. 109 ff. Best, G. F. A. ‘The Protestant Constitution and its Supporters, 1800-1829’ in Trans. Royal Hist. Soc., 5th series, 8 (1958), pp. 105 ff. Chrimes, S. B. English Constitutional Ideas in the Fifteenth Century (Cam¬ bridge, 1936). Coleridge, S. T. On the Constitution of Church and State, c. xi (3rd edn 1839). Corwin, E. S. The Doctrine of Judicial Review (Princeton, 1914). -‘The Establishment of Judicial Review’ in 9 Michigan Law Review (1910— 11), pp. 102 ff. ‘The “Higher Law” Background of American Constitutional Law’ in 42 Harvard Law Review (1928-9), pp. 365 ff. Coxe, Brinton. An Essay on Judicial Power and Unconstitutional Legislation (Philadelphia, 1893). Dicey, A. V. The Law of the Constitution (10th edn., 1959). Feiling, K. G. A History of the Tory Party 1640-1714 (Oxford, 1924). Figgis, J. N. The Divine Right of Kings (2nd edn., Cambridge, 1914). Haines, C. G. The Revival of Natural Law Concepts (Harvard, 1930). Hazeltine, H. D. Preface to Sir J. Fortescue, De Laudibus Legum Angliae (ed. and trans. S. B. Chrimes, Cambridge, 1942). Hinton, R. W. K. ‘English Constitutional Theories from Sir John Fortescue to Sir John Eliot’ in 75 E.H.R. (1960), pp. 410-25. ‘The Decline of Parliamentary Government’ in 13 Cambridge Historical Journal (1957), pp. 116-32. ‘Central Courts and Representative Assemblies’ in 12 Columbia Law Review (1912), pp. 1-31.

Holdsworth, W. S.

BIBLIOGRAPHY

233

Holdsworth, W. S. History of English Law (1903-38). -The Influence of Coke in the Development of English Law’ in Essays in Legal History (ed. P. Vinogradoff, Oxford, 1913). -Sources and Literature of English Law (Oxford, 1925). Ilbert, C. Legislative Methods and Forms (Oxford, 1901). Jenks, E. Law and Politics in the Middle Ages (1898). -‘The Myth of Magna Carta’ in 4 Independent Review (1904), pp. 260-73. --The Parliament Act and the British Constitution’ in 12 Columbia Law Review (1912), pp. 32-43. Judson, Margaret A. ‘Henry Parker and the Theory of Parliamentary Sovereignty’ in Essays in History and Political Theory in Honor of Charles Howard Mcltwain (Harvard, 1936). -The Crisis of the Constitution (Rutgers, 1949). Lampson, E. T. ‘Some New Light on the Growth of Parliamentary Sove¬ reignty: Wimbish versus Taillebois’ in 35 American Political Science Review (1941), pp. 952 ff. Laski, H. J. Parliamentary Government in England (1938). MacKay, R. A. ‘Coke—Parliamentary Sovereignty or the Supremacy of the Law?’ in 22 Michigan Law Review (1923-4), pp. 215 ff. McIlwain, C. H. The American Revolution (New York, 1923). -Constitutionalism: Ancient and Modern (2nd edn., Cornell, 1947). -Constitutionalism and the Changing World (Cambridge, 1939). -The Fundamental Law behind the Constitution of the United States’ in The Constitution Reconsidered (ed. Conyers Read, Columbia, 1938). -The High Court of Parliament and its Supremacy (Yale, 1910). -Introduction to The Political Works of James l (Harvard, 1918). -‘Sovereignty in the Present World’ in 35 History N.s. (1950), pp. 1 ff. McKechnie, W. S. Magna Carta (2nd edn., Glasgow, 1914). McLaughlin, A. C. The Courts, the Constitution and Parties (Chicago, 1912). Maitland, F. W. Constitutional History of England (Cambridge, 1908). Marshall, G. ‘What is Parliament?’ in 2 Pol. Studies (1954), pp. 193 ff. -Parliamentary Sovereignty and the Dominions (Oxford, 1957). Mehren, A. von. The Judicial Conception of Legislation in Tudor England’ in Interpretations of Modern Legal Philosophies (ed. P. Sayre, New York, 1947). Mosse, G. L. ‘Change and Continuity in the Tudor Constitution’ in 22 Speculum (1947), pp. 18-28. -The Struggle for Sovereignty in England (Michigan State College Press, 1950). Mullett, C. F. ‘Coke and the American Revolution’ in 12 Economica (1932), pp. 457 ff. -Fundamental Law and the American Revolution (Columbia, 1933). Ogilvie, C. The King’s Government and the Common Law, 1471-1641 (Oxford, 1958). Pargellis, S. The Theory of Balanced Government’ in The Constitution Reconsidered (ed. Conyers Read, Columbia, 1938). Pease, T. C. The Leveller Movement (Washington, D.C., 1916). Pickthorn, K. W. M. Early Tudor Government (Cambridge, 1934). Plucknett, T. F. T. ‘Bonham’s Case and Judicial Review’ in 40 Harvard Law Review (1926-7), pp. 30-70. -Concise History of the Common Law (2nd edn., 1936). -Legislation of Edward 1 (Oxford, 1949).

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Plucknett, T. F. T. Statutes and their Interpretation in the first half of the Fourteenth Century (Cambridge, 1922). Pococke, J. G. A. The Ancient Constitution and the Feudal Law (Cambridge,

1957). Pollard, A. F. The Evolution of Parliament (1920). -‘No Taxation without Representation’ in 3 History N.s. (1918), pp. 162-4. Pollock, F. The Expansion of the Common Law (1904). -‘History of the Law of Nature’ in Essays in the Law (1922). -‘A Plea for Historical Interpretation’ in 39 Law Quarterly Review (1923),

pp.163 ff. Pope, H. ‘The Fundamental Law and the Power of the Courts’ in 27 Harvard Law Review (1913-14), pp. 45-67. Pound, Roscoe. ‘Common Law and Legislation’ in 21 Harvard Law Review

(1908), pp. 383-407. Reed, A. W. Essay on Halifax in Social and Political Ideas.. .of the Augustan Age (ed. F. J. C. Hearnshaw, 1928). Relf, F. H. The Petition of Right (Minneapolis, 1917). Robertson, H. M. Aspects of the Rise of Economic Individualism (Cam¬

bridge, 1933). Schlatter, R. Private Property (1951). Smith, T. B. ‘The Union of 1707 as Fundamental Law’ in Public Law (1957),

pp.99 ff. Thompson, Faith. Magna Carta (Minneapolis, 1948).

-‘Parliamentary Confirmations of the Great Charter’ in 38 American Historical Review (1933), pp. 659-72. Thomson, M. A. Constitutional History of England, iv, 1642-1801 (1938). Thorne, S. E. ‘The Constitution and the Courts: a Re-Examination of the Famous Case of Dr. Bonham’ in 54 Law Quarterly Review (1938), pp. 543 ff. Also in The Constitution Reconsidered (ed. Conyers Read, Columbia, 1938). -(ed.). A Discourse upon the Exposicion and Understandinge of Statutes

(Huntington Library, 1942). The Times Literary Supplement, 24 February 1950: Article on ‘British Political

Tradition’. Wade, H. W. R. ‘The Basis of Legal Sovereignty’ in Cambridge Law Journal

(1955), pp. 172 ff. Weston, C. C. ‘The Theory of Mixed Monarchy under Charles I and after’ in 75 E.H.R. (1960), pp. 426-^3. Wheare, K. C. The Constitutional Structure of the Commonwealth (Oxford,

1960). Woodhouse, A. S. P. Puritanism and Liberty (1938). Wormuth, F. D. The Origins of Modern Constitutionalism (New York, 1949). -The Royal Prerogative 1603-1649 (Cornell, 1939).

INDEX Adams, G. B., 5 n. Agitators, 112. Agreements of the People, 113, 124, 136. Allen, C. K„ 10, 11,35,213. Allen, J. W„ 92. Alston, L., 7, 11. Anstey, T. C., 207-9. Aristotle, 21. Ascham, A., 99 n. Attainder, 43, 132. Atwood, W., 163. Bacon, F„ 28, 29, 44-46, 51, 56, 57, 59n., 61 n„ 99, 112, 180n„ 185. Bagehot, W„ 207. Ball, W„ 107. Baxter, R., 134. Beckford, Alderman W., 194. Bellamy, J., 111. Bentham, J., 188, 190. Berkeley, R., 49 n„ 71, 72, 76. Blackstone, W„ 188-92, 194,198, 208. Bodin, J., 7, 29n„ 48n., 53, 63, 64, 75, 94, 119, 152, 227. Bolingbroke, H. St. John, 1st viscount, 185, 194, 207. Bracton, H. de, 14, 199. Breda, Declaration of, 139. Brett, W. B„ 213. Bridgman, O., 140. Bristol, G. Digby, 1st earl of, 61 n. Buckingham, G. Villiers, 1st duke of, 46n., 61 n. Burghley, W. Cecil, Lord, 95, 226. Burke, E., 194, 201. Burlamaqui, J., 190n. Caesar, Sir J., 54. Camden, C. Pratt, 1st earl, 62, 193-5, 207. Cases: Annuity 41, 17, 33, 34, 37n. Ashby v. White, 177-8, 195. Bate’s Case, 36 n., 56, 58, 72. Bonham’s Case, 10, 31-38, 49, 57, 61, 104, 105, 111, 156, 202,203. British Coal Corporation v. the King, 218n. Calvin’s Case, 44-45.’

Cases (cont.)\ Cessavit 42, 33-34. Chudleigh’s Case, 26 n„ 29, 225. City of London v: Wood, 9, 143n„ 145. Darnel’s (Five Knights’) Case, 58, 70, 72, 140 n. Day v. Savadge, 38, 49. Earl of Leicester v. Heydon, 19n. Earl of Oxford’s Case, 38. Edinburgh & Dalkeith Ry. v. Wauchope, 230. Entick v. Carrington, 62. Forbes v. Cochrane, 208 n. Fulmerston v. Steward, 19. Godden v. Hales, 158n. Hampden’s Case, 49 n., 58,69-76. Harbert’s Case, 224. Harris v. Minister of the Interior, 219-20. Heathfield v. Chilton, 208 n. Hill v. Grange, 19 n. Lee v. Bude & Torrington Junction Ry., 203-6. Local Government Board v. Arlidge, 210n., 213n. Lord Cromwell’s Case, 17n. Lord Sheffield v. Ratcliffe, 39. MacCormick v. Lord Advocate, 214-17. Marbury v. Madison, 206. Mines, Case of the, 225. Nichols v. Nichols, 225. Non Obstante, Case of, 46. Partridge v. Strange and Croker,

20. Paty’s Case, 177. Proclamations, Case of, 227. Prohibitions del Roy, 225. R. v. Earl of Banbury, 10, 178. R. v. Halliday, 231. Robinson v. Mollett, 213. Ronnfeldt v. Phillips, 231. Rous v. the Abbot, see Annuity 41. Rowles v. Mason, 37, 49. Ryan’s Case, 216 n. Sharington, v. Strotton, 21. Shirley v. Fagg, 173. Skinner v. East India Co., 173. Smith v. East Elloe R.D.C., 221.

236

INDEX

Cases (cont.)\ Stewart v. Lawton, 202-3. Stockdale v. Hansard, 179. Stradling v. Morgan, 225. Streater’s Case, 130-2, 179. Stroud’s Case, 33, 35 n. Thomas v. Sorrell, 143. Townsend’s Case, 19 n. Tregor’sCase, 33, 34. Wimbish v. Taillebois, 25-27. Catholic Emancipation, 201-2, 222. Charles I, 1, 55, 69, 75-78, 93, 96, 97, 105, 145, 229. Charles II, 145-7,230. Chatham, W. Pitt, 1st earl of, 193-5. Chrimes, S. B., 8, 15n., 17. Cicero, M. T„ 99. Clarendon, E. Hyde, 1st earl of, 142. Clarke, Capt. J., 115. Cleveland, J„ 105-6. Coke, E„ 5, 6, 10, 11, 15n„ 16n„ 27, 28, 30-49, 56-58, 61-64, 66, 69, 95, 104, 105, 110-11, 115, 120, 138 n., 1$0, 156, 157, 170, 171, 187-9, 192, 194, 197, 202, 203, 206, 207, 208, 225-28. Centlivres, V. de S., 219. Coleridge, S. T„ 217-18. Commines, P. d6, 75. Cook, J„ 96. Corkbush Field, 114. Cripps, S„ 184. Crompton, R„ 9. Cromwell, O., 56, 106, 107, 109, 114, 115, 117, 121, 127, 129, 130, 133. Cromwell, R., 134. Cromwell, T„ 43. Dalton, M., 140. Davenport, H., 72, 75 n. Davys, J., 41. Declaratory Act (America), 192 n„ 193, 194. Defoe, D„ 175-6, 194. Dependency of Ireland Act (1719), 196. Dicey, A. V., 44n„ 180, 215-17. Digges, D„ 62. Dispensing Power, 47. Dudley, E.,41, 156, 157. Duguit, L., 213 n. Eliot, J„ 59 n„ 69, 227.

Ellesmere, T. Egerton, Lord, 37, 38, 46 n„ 225. Empson, R., 41, 156, 157. Entrenched Clauses, 2, 212, 215, 220. Equity of Statutes, 19-21, 225. Exclusion Bill, 145, 148-51, 158n.

Falkland, L. Cary, 2nd viscount, 76n. Ferguson, R., 162-3. Feme, H„ 86-88, 92, 97. Figgis, J. N., 5. Filmer, R„ 57, 80, 86, 91, 92, 117-20, 122, 140, 151,207. Finch, D., see Nottingham. Finch, H., 34. Finch, J., 1,73, 75n„ 76. Fitzwilliam, W. W„ 2nd earl, 201. Fleming, T., 36 n., 56, 72. Fortescue, J., 8, 48, 71, 187, 199. Fox, C. J., 200. Fulbeck, W.,99n. Fundamentals: Bishops in the House of Lords, 77, 104. Common Law, 14, 16-18, 30, 32, 34, 40, 44, 53, 64, 90, 104, 115, 119, 152, 166, 179. Constitution, 2, 3, 41, 51, 59, 71, 73, 75, 83, 88-90, 92, 93, 97, 100-2, 111, 115, 121, 122, 125, 127, 129, 133-5, 139, 142, 151, 153^4, 158, 161, 164, 165, 168, 170, 184-6, 192, 196, 197, 207, 208, 229, 231. Coronation Oath, 167. Cromwell’s list, 130. Democratic government, 221. Feudal Tenures, 145-6. Hereditary Succession, 47, 53, 73, 90, 149-52, 161. Law of Nature (or Law of God), 17, 21, 30, 34, 39, 44, 45, 53, 75, 85, 97, 98, 101, 103, 106, 111, 115, 117, 120, 134, 138, 140, 144, 146, 165, 166, 188, 191, 193, 198, 199, 208,209. Liberty, 23, 65, 69, 70, 72, 75, 80, 115, 123, 127, 134, 153-6, 158, 159, 174, 209, 211, 224, 228, 229, 231. Magna Carta, 15, 16, 28, 40, 64, 104, 106, 119, 126, 129, 144, 148, 157, 166, 170, 197, 198, 228.

INDEX Fundamentals (cont.): Monarchical government, 103, 129, 148, 151. Moral principles, 22, 45, 109, 142, 143, 150-2, 154, 155, 157, 160, 185, 187, 194,213,231. Natural Justice (or Natural Equity), 19, 22, 33, 35, 39, 40, 48, 105, 149, 213. Original Contract, 47, 48, 89, 90, 133, 162, 163, 164, 228. Parliamentary government, 78, 82. Parliamentary privilege, 196n. Parliamentary procedure, 211-12. Parliamentary sovereignty, 220. Popular power, rights, &c., 79, 82, 87, 107, 113, 135, 154, 155, 160, 176, 181,230. Presumptions of law or rules of in¬ terpretation, 19, 21, 35, 36, 39, 41,61,209. Property, 23, 26, 54, 56, 61, 62, 65, 68-70, 72, 75, 80, 96n„ 113-15, 127, 134, 143, 153-6, 158, 159, 168. 170, 193, 195, 200, 201, 20910, 224, 226, 228, 229. Protestantism, 201-2, 222. Reason or rational principles, 1822, 30, 33-35, 37, 39, 40, 45, 48, 75, 97, 98, 110n., Ill, 117, 165, 187-8, 199, 209, 213, 214-25, 228. Royal Prerogative, 46, 47, 61, 72, 73, 76, 77, 145, 147, 158n„ 161, 209. Salus Populi, 75, 82, 85, 99ff., 114, 120, 134, 145, 155, 167, 168, 170, 177, 184, 186, 191, 228, 230, 231. Trial by Jury, 123, 197, 229. Truth, 198. Various radical programmes, 124, 127, 128, 136-7. Gardiner, S. R., 12, 56, 57.; George III, 201-2. Golden Bull, 122. Goodwin, J., 102. Grand Remonstrance, 76. Great Contract, 54. Hakewill, W.,73n. Haldane, R. B., Viscount, 210n. Hale, M„ 129, 172, 208. Halifax, G. Savile, 1st marquis of, 161, 168-71.

237

Hamilton, A., 206. Hampden, J„ 69ff., 115. Hampden, J. (junior), 149. Harrington, J., 134. Harsnett, S., 72. Hastings, Warren, 201. Heads of the Proposals, 117 n. Heath, R., 72. Herle, C., 88, 89, 92, 97, 119n„ 152, 162. Herle, W„ 33, 34, 226. Hoadly, B., 183. Hobart, H., 38, 39, 48, 60, 61 n., 105, 111, 146, 205,208. Hobbes, T„ 3 n„ 7, 48 n„ 53, 57, 80, 86, 92, 93, 117, 120-2,140,142,144, 152, 153, 172n., 187, 188, 207, 208, 213,224. Holdsworth, W„ 5, 8, 9, 16, 35, 42, 45, 148. Holt, J., 9-11, 145, 178, 179. Hooker, R., 65. Hunton, P., 88, 90, 97, 122, 162. Hutcheson, A., 182, 184. Ilbert, C., 24, 224. Impositions, 58 ff. Ireton, J., 112-17. James I, 12, 45, 51-54, 68, 88, 95, 225-7. James II, 1, 158, 160-4, 202. Jefferson, T., 229. Jenkins, D„ 103-5, 111. Jenkins, L„ 148-51. Jenks, E., 4n., 5, 231. Jennings, W. I., 210n. Judicial Review, 2, 3, 13, 22, 27, 35, 40, 46, 48, 75 n„ 83, 84, 157, 206, 209,211,212, 229. Judson, M., 56, 60, 86. Kentish Petition, 174. Kenyon, Lloyd, 1st baron, 201-2. Lambarde, W., 9. Laski, H. J., 210, 212, 231. Laud, W„ 76, 127. Lawson, G., 121. Lemass, Sean, 219. Levellers, 85, 112-17, 123, 125, 136, 159, 160, 229.

238

IN DEX

Lex et Consuetudo Parliamenti, 173,

177-8. Lilburne, J., 107, 110, 112-17, 120, 123, 125, 229. Littleton, E., 62. Locke, J„ 22, 54, 56, 87, 99, 116, 122, 128, 142, 167, 176, 183, 184, 186, 187, 190-2, 208, 230. Long Parliament, 4, 72, 74, 75-85, 99, 102-5, 107, 109, 111, 119, 129, 140, 141, 145, 159, 160. Love, C., 229. Ludlow, E„ 138. McIlwain,C. H„ 3-5, 9, 11, 13-16, 27, 28, 30, 42,90, 207,211,226. Mackworth, H„ 175, 177, 178 n. Magna Carta (see also under Funda¬ mentals), 4, 5n., 12,17, 22n„ 29-30, 36, 43, 44, 57, 58. 61-66, 69, 94, 108. 109, 110,123, 127,130,155, 163,174, 175, 187, 190, 199, 224, 227, 228. Maitland, F.W., 5n„ 7, 16, 24. Mansfield, W. Murray, 1st earl of, 208 n. Marshall, J„ 206, 229. Militia Ordinance, 81-83. Milton, J„ 119, 138,208. Monasteries, Act dissolving lesser, 25 n. Monk, G., 137. Monmouth, J. Scott, duke of, 158. Montague, E„ 20, 25-27, 226. Montague, H„ 37. Montrose, James Graham, 1st mar¬ quis of, 29 n. More, G„ 47. More, T„ 23. National Anthem, 50 Naylor, J„ 132-3. Nevile, H., 153. Newark, 230. Nicholas, R„ 131. Nineteen Propositions, Answer to,97. Northington, R. Henley, 1st earl of, 193, 207. Norwood, Capt., 219. Nottingham, D. Finch, 2nd earl of, 149, 150, 161. Otis, J„ 192, 229. Overton, R„ 109, 117, 228.

Owen, D., 228. Parker, H„ 85, 86, 99, 107. Parliament Act (1911), 230, 231. Pease, T. C., 229. Penn, W„ 153-7. Petition of Right (1628), 58, 61-64. 69, 70, 110, 115, 123, 126, 190. Petty, W., 166. Petyt, W„ 171. Philipps, F., 145. Pickthorn, K. W. M„ 24, 25, 28. Pitt, W„ the younger, 200, 201. Plowden, E., 20, 208, 225. Plucknett, T. F. T., 11, 14, 15n„ 16, 30, 36. Pollard, A. F„ 8, 28. Pollock, F., 7, 18,32. Powell, J„ 177, 179. Price, J„ 111. Pride’s Purge, 102. Protestation, The, 76. Prynne, W„ 98, 104, 125-9, 231. Putney Debates, 112n., 113-15. Pym, J„ 59n„ 63, 77n. Rainborough, Col. T., 114. Ratcliffe, G., 1. Raymond, R„ 182. Redlich, J., 211. Reformation Parliament, 4n„ 27. Rights, Bill of (Declaration of), 172 n„ 201, 202. Rolle, H., 130, 131. Rousseau, J.-J., 181 n. Rudyerd, B., 30 n. Rutherford, S., 106. Sacheverell, H„ 174n. St. Augustine, 22. St. Germain, C., 17-19, 23, 199. St. John, O., 70. Salic Law, 53, 94, 122. Scroggs, W„ 1. Scultetus, D. A., 104n. Selden, J., 62, 66, 69, 88. Seneca, 55. Separation of Powers, 48, 173, 229. Septennial Act, 180-5. Shaftesbury, A. Ashley Cooper, 1st earl of, 142, 144, 230. Sharp, Granville, 196-200. Ship Money, 12, 69, 70, 74, 93 n.

INDEX Short Parliament, 75, 93 n. Sidney, A., 99 n., 208. Smectymnuus, 104n. Smith, T„ 7-8, 11 n„ 41, 48, 171, 188, 207, 225-6. Smith, T. B., 216. Solemn League and Covenant, 141. Somers, J., Lord, 167. South Africa, 2, 212. Stamp Act (America), 193, 207. Stephens, J. F„ 230. Strafford, T. Wentworth, 1st earl of, 1, 55, 76, 77 n„ 80, 121, 127, 132, 224. Strickland, W. (‘Lord’), 132, 133. Swift, J., 148.

Thomas Aquinas, St., 103. Thompson, F., 16, 224. Thorne, S. E., 32ff„ 225. Tonnage and Poundage, 70. Treason Act (1495), 28,157, 180n. Treby, G., 161. Triennial Act (1641), 77. Triennial Act (1694), 181. Twysden, R., 93-97.

239

Tyrrell, J., 151, 164. Union Act (Ireland), 180, 217. Union Act (Scotland), 179, 201, 202, 214—17, 230. U.S.A., 2, 3, 22, 32, 68, 192-5, 206, 208, 211. Uses, Statute of, 25-27. > Vane, H., 133, 229. Vaughan, J., 143, 145. Waller, E„ 75, 224. Walwyn, W„ 108. Weber, M., 54n. Wentworth, Peter, 29 n. Westminster, Statute of, 218-19. White, Col., 134. Whitehall, J., 144. Whitelock, B., 132, 133. Whitelocke, J.. 58-60. Wildman, J., 112, 228. Wilkes, J., 195. Willes, J. S., 205, 207. William III, 162, 163. Wills, Statute of, 25. Winnington, F., 150.

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