Last week the high court ruled on the process the government needs to follow in order to trigger article 50 and initiate Britain’s exit from the European Union. In today’s blog, Dr Robin Eagles discusses the background to the 17th century precedents the judges cited in their ruling…
Last week’s judgment by the high court that Theresa May’s government was not able to use its powers under the royal prerogative to trigger article 50 made reference to a number of historical precedents. Many of those cited were of fairly recent vintage but two referred to examples from the 17th century – a period in which the fundamental relationship between crown and parliament was disputed, fought over and codified. The first referred to Sir Edward Coke and the second to the 1689 Bill of Rights.
Coke (1552-1634), the brilliant yet haughty lawyer of the reign of James I is generally acknowledged to have been the premier jurist of his day. Having been elected to the Commons for Aldeburgh in 1589, four years later he was chosen as speaker of the House of Commons and in 1594 appointed attorney general, a position he retained at the accession of the new king, James I. As such he was a leading figure in the prosecution of, among others, the 1605 Gunpowder plotters. The following year he was promoted lord chief justice of common pleas and in this new role Coke proved a champion of the common law courts, which had been coming under increasing pressure from other venues such as the church courts. Coke increasingly acquired a popular following while clashing with the crown (and others) over the extent of the common law courts’ jurisdiction. He also proved an increasingly fierce critic of the creeping tendency of James I to rely on proclamations. Thus in 1610 he insisted that not only could the king not ‘change any part of the Common law’ but that it was also beyond the competence of the crown ‘to create any offence by his Proclamation which was not an offence before without Parliament’. Three years later, Coke was removed from his office of chief justice of common pleas and shifted to that of chief justice of king’s bench. Technically this was a promotion, but in effect it was an effort to limit his field of operations and also to punish him by removing him to the less lucrative (if senior) post. Coke refused to be curbed and three years later, following continued criticisms of the king, he was removed from the bench altogether. Although he remained nominally a member of the government as a privy councillor and holder of minor household office, Coke continued his complaints and his steady drift towards the opposition. Early in Charles I’s reign he was closely identified with the passage of the Petition of Right (1628), which complained of a series of abuses carried out on the king’s authority.
Disputes over the appropriate balance within the parliamentary trinity (crown, Lords and Commons) formed much of the background to the troubled middle years of the 17th century, and continued to preoccupy politicians and jurists following the Restoration of the monarchy in 1660. In the reign of James II a particular set of circumstances – the accession of a Roman Catholic monarch reluctant to accede to regular meetings of Parliament and eager to force through an unpopular policy of relaxing the laws against Catholics – brought the situation once again into sharp relief.
By the time James fled the scene in the winter of 1688 he had already experienced several run-ins with both the courts and Parliament. Unable to convince the latter to agree to his religious policies, James resorted to his prerogative powers to dispense Catholics from the need to submit to the usual oaths that most found unable to subscribe to without compromising their faith. This was exemplified in the test case Godden v. Hales (1686), in which Sir Edward Hales a recent convert to Catholicism, was brought before the courts on information provided by his servant (acting on Hales’s orders) following Hales’s appointment as colonel of an army regiment (a post for which he ought to have been debarred as a Catholic). Having been convicted at the local assizes, Hales’s case moved up to King’s Bench, where the judges concluded in favour of the king’s right to make use of his prerogative power to dispense men like Hales from taking the oaths. While many jurists agreed with the judges’ interpretation of the king’s rights in the case, others were discontented at the turn of events – not least because of the way in which James had dismissed a number of judges deemed unsympathetic to his cause before the matter reached the courts.
Subsequent events added to suspicion of the king’s methods and of the need to do something about him. The acquittal of the Seven Bishops in the summer of 1688 proved the catalyst for a small cadre of politicians to make their move against the king, who was weakened by this setback in the courts. The resulting invasion and triumph of William of Orange offered the politicians gathered for the Convention Parliament of January 1689 the opportunity of insisting that William and Mary accede to a new ‘Bill of Rights’ setting out the relationship between monarch and people in return for the offer of the crown. Closely allied to the earlier Petition of Right, the Bill of Rights first listed the ways in which the former regime had exceeded its powers with the very first article asserting that James had done this “By assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of Parliament”. It then proceeded to set out the new contract by which monarch, Parliament, and subjects were to be governed, noting in the first article “That the pretended power of suspending laws, or the execution of laws, by regal authority, without consent of parliament, is illegal’. On 13 February 1689 the Declaration of Rights (the document from which the bill descended) was presented to William and Mary at Whitehall. Following their acceptance of it, they were proclaimed formally as the country’s new king and queen.