An essay in nine easy tablets
Some years ago, I wrote a book called ‘The Common Law, A History’. I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law. That in my view is worse than sad. This essay is not a précis of that book. It is an introduction written for the general reader. People at large should have an interest in the history that underlies and underwrites our way of life. It also represents the bare minimum of what law students should be taught. The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy. I will publish the essay by nine consecutive posts on this website. I hope you get some of the enjoyment in reading it that I got in writing it.
The constitution is fixed
The barons had left the doctrine of Divine Right as a fiction at Runnymede, and Henry VIII had brought the church inside the government. But the first of the Stuarts, James I, taught his son the old fable that the king reigned supreme – subject only to God. That was a mistake, but it led to a series of events that established the basis of the English constitution – the supremacy of parliament, or, as the French might prefer, the people. England saw a regicide, civil war, a deposition (which of course the English denied), and Dutch troops patrolling the streets of London – after an invasion that was nearly bloodless because the English had asked for it. So, if you have to spill blood to found a nation, the English had done so.
It was as if Charles I had a kind of death wish. You can see it in the genius of Alec Guinness in the film Cromwell. His mortal stubbornness led him to error after error. He may never have recovered from the time he went in person to parliament to arrest his principal opponents – while his bravoes cocked their pistols and uttered dark threats outside. In the name of God, man, you just don’t do things like that. It was like a regal preview of the recent assault on the Capitol in Washington.
But Charles was killed because having started a war and lost it, he could not be trusted – and he was too powerful to be left alive. In that, he resembles his favourite, the Earl of Strafford – although in and of himself, Strafford was a far more imposing man. His defence showed just how potent he was. England had ducked a bullet.
So, there was a kind of dictatorship under Cromwell, but the people got restive when the Puritans started shutting down pubs. The English were not ready for a republic, and they coolly called the Stuarts back in the form of Charles II. And after the regicides had been dealt with, things went quickly back to where they had been. The agonies of twenty years were just parked in another room.
Charles II was amiable enough. He could spend his time siring bastards, a past-time recently revived by a ruler of England (although the Stuarts were hardly into BYO booze parties), but even he could not be trusted. He did a deal with the French called the Treaty of Dover. But there was a secret side deal. In return for French money, the king would convert to Rome. This was within one lifetime of the defeat of the Armada and Guy Fawkes. Can you think of a ranker act by any ruler anywhere? The Catholic – Protestant divide is dead as a dodo now, but back then it festered as a cancer that threatened human life.
James II came to the throne on notice that his Catholicism was a real problem. The Commons had sought to bar him more than once. He had a text book case of conflict of interests. He was bound to protect the English church of which he was the head. But the church of which he was a member taught that only those of that faith had the warranty of eternal life (and the keeper of the keys resided in Rome).
Well, James set about resolving that issue in a way that was almost manic. He pressed every button he could to arouse a Tory squire, an Anglican bishop, an Oxford graduate, or a gentleman of the City. The better people got together and asked William of Orange to come over with a Dutch army. James gave up – he threw his Seal into the Thames, and fled to France.
William then had to negotiate the terms of his engagement with his new subjects and his wife (a daughter of the sometime king). He got more and more frustrated. He had been sold a pup. The English were dreadfully hard to deal with. In commenting on the House that succeeded the Stuarts, Sir Jack Plumb said that the Hanoverians came to England with real trepidation. Their future subjects were widely reputed in Europe to be ‘shifty,’ and most of the aristocracy had ‘dabbled in treason.’ Plumb was spot on.
A young barrister named Somers, who was obviously super bright, was briefed to draw up the terms of settlement. It is a thing of beauty that would be called the Bill of Rights. Then the home team put on a most elaborate form of ceremony that resembled a very high-end wedding. ‘Your Majesties promise to do this, and we the people promise to do that….’
This took place under the Reubens painting in the Banqueting Hall. That was a nice touch. That was the room through which Charles I had walked through on his way to the block. Someone would remark that James II took off after touching that crick in the neck at the top of his spine. Perhaps someone showed him the shed where they kept the axe.
The Bill of Rights is now the foundation of the constitution. Article 4 restates the law in the Petition of Right that only the parliament can raise revenue. The executive cannot levy taxes. That part of the English constitution has not been seriously threatened or questioned since. It is the constitutional predicate of the supremacy of parliament, since they who control the money control the power.
There are, of course, provisions dealing with the dispensing and suspending powers, the treatment of the bishops, irregular courts, and fixing juries. Excessive bail and cruel and unusual punishments were outlawed. There would be no more mutilation or putting people in the stocks, or other ‘feudal’ reprisals, or any unlimited imprisonment. You see all these in the U S Amendments to their constitution.
More importantly, the privileges of parliament were locked in: ‘The freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament’. The king’s writs do not run to what is said in parliament. Nor do any arrest powers of the king. This is fundamental and indispensable to a parliamentary democracy. And it would be unthinkable in any dictatorship.
What did the English do about enforcing this arrangement? The people had the right to bear arms – at least those who were Protestant. The king needed express permission from parliament to have a standing army – something left anathema by Strafford and Cromwell. ‘We can be armed but you can’t. Guess who wins if we fall out.’
We have been focussing on central government. Most people never got any closer than the local justice of the peace. In truth, the gentry and the militia governed England back then. The government at the top gathered in London, but it was carried out, if necessary by force, in the shires and in the counties. Sir Jack Plumb said: ‘The Bill of Rights had its sanctions clauses – there was to be no standing army and Protestant gentlemen were to be allowed arms; the right of rebellion is implicit.’ We might blush at the notion ‘right of rebellion’, which has a Gallic air to it, but it was a fact of life established over 600 years that if the crown behaved badly enough, the reaction might be terminal, if not lethal. (Plumb may have had in mind the concept of the common law that the aggrieved party to a contract has the right to accept the conduct of a guilty party as the repudiation of a contract, so bringing it to an end.)
And that we were told was so under the old feudal compact – if the lord broke his word, the vassal was discharged from his obligation of loyalty. Well, that at least is what the law said.
Plumb had also said that: ‘…the power of the 17th century gentry was sanctioned by violence’ and that ‘by 1688, violence in politics was an Englishman’s birth-right’. And that, too, was from the ‘mouth of England’.
By and large, the English are polite, at least at the top. But when it comes to who runs the place, they can turn very cold. Lord Denning was a brilliant lawyer, a decisive judge, and a peaceable Anglican. But when it came to freedom under the English crown, we see bare steel. ‘Concede, if you wish, that, as an ideology, communism has much to be said for it: nevertheless, the danger in a totalitarian system is that those in control of the State will, sooner or later, come to identify their own interests, or the interests of their own party, with those of the State: and when that happens the freedom of the individual has to give way to the interests of the persons in power. We have had all that out time and again in our long history: and we know the answer. It is that the executive government must never be allowed more power than is absolutely necessary. They must always be made subject to the law; and there must be judges in the land who are ‘no respecters of persons and stand between the subject and any encroachment on his liberty by the executive.’ We taught the kings that from Runnymede to the scaffold at Whitehall: and we have not had any serious trouble about it since.’
And so, with their constitution in place, the English could settle in for a century of somnolent corruption, while losing one empire and starting another – including a most unpromising slammer in Botany Bay. All by accident – of course.
History – law and constitution – Stuarts – rule of law.