Much of the recent storm surrounding the appointment of Brett Kavanaugh as a judge in the United States Supreme Court was generated by allegations of sexual misconduct in his earlier life. However, the political partisanship which marked the investigation into Kavanaugh’s record pointed to a deeper issue, the alarm among Democrats that President Trump had nominated a conservative lawyer with a reputation for challenging liberal values. Kavanaugh’s eventual confirmation shifted the balance on the Supreme Court decisively in a conservative direction, paving the way for potential challenges to existing US law on issues from abortion to climate change, and conceivably pitting the Court against the House of Representatives, which is now once again under Democrat control.
It is tempting to think that such a situation could not develop in Britain, where the judiciary is generally seen as politically impartial, and judges frequently state that the appropriate place for addressing controversial policy decisions is Parliament. However, the current situation in the States is in certain respects similar to England under the early Stuarts, where judges were handpicked by the monarch, and were expected to back him over controversial policies opposed by the House of Commons. Although the judges themselves maintained that their primary role was to interpret law, rather than to change it, the ongoing debate about the correct balance between the royal prerogative (the Crown’s right to unfettered action) and the liberties of the subject ensured that complete neutrality was rarely possible. During the first half of the 17th century, the judiciary thus found itself walking a tightrope between the displeasure of the monarch and the wrath of the Commons, either of which could be career-ending.
One early example of these dilemmas was Calvin’s Case in 1608, which established the principle that all Scots born since James VI of Scotland became James I of England were automatically naturalized south of the border, and entitled to own property there. This issue had been actively promoted by James in Parliament in 1604 and 1606-7, but firmly opposed by the Commons on both occasions. Ultimately this particular verdict went unchallenged. However, when the Crown’s finances were at stake the judges found themselves in a more difficult position. Both James and Charles I were permanently short of money, and never managed to secure parliamentary taxation on the scale that they required. Consequently, they did all they could to exploit their prerogative rights to increase their revenues from other sources, such as customs revenues and occasional, emergency levies. This did not suit Parliament, which knew that its power to grant taxation was its principal bargaining counter in obtaining the redress of grievances. The first major battle commenced in 1606, with Bates’s Case, in which the Exchequer Court upheld the king’s prerogative power to impose supplementary duties on foreign imports. Unsuccessful attempts by the House of Commons to reverse this development helped to wreck parliamentary sessions in both 1610 and 1614, though the judges themselves emerged unscathed.
More controversial still was Charles I’s arbitrary taxation in the 1620s and 1630s. After failing to secure a grant of parliamentary taxes in 1626 to fund his foreign wars, the king decided to boost his coffers through a supposedly voluntary collection, the so-called ‘Forced Loan’. Anxious to avoid resistance to this levy, Charles demanded that his senior judges formally affirm the Loan’s legality. When they unexpectedly demurred, the king tried to intimidate them by sacking the lord chief justice, Sir Ranulphe Crewe.
Despite this, the remaining judges gave the Loan only qualified backing. Similarly, in the famous Five Knights’ Case of 1627, the judges rejected a bail application from a group of men imprisoned by the Crown for refusing to pay the Loan, but declined to make a formal ruling that would have strengthened the king’s powers of arbitrary arrest. Nevertheless, this show of relative judicial independence was shortlived. In 1629 the Exchequer Court firmly backed the Crown’s right to collect the customs duties of tunnage and poundage, in the face of fierce opposition from the House of Commons. Again, in 1636 and 1637 – well into the 11-year period when Parliament was not summoned – Charles was able to obtain legal opinions from his senior judges in support of ship money, which he was controversially levying from inland counties in peacetime. When the collection of ship money was challenged in a 1638 test case by John Hampden, several senior judges, including the current lord chief justice, Sir John Bramston, and the chief baron of the Exchequer, Sir Humphrey Davenport, found in Hampden’s favour on a technicality, but only once it was clear that the majority verdict would go in the king’s favour.
In general, then, the early Stuart judiciary proved a mostly reliable, if occasionally reluctant, ally of the Crown. Those few judges who became actively obstructive were removed from office – Sir Edward Coke in 1616, Sir John Walter in 1629 – and this served to keep the rest in line. Consequently, when the Long Parliament began attacking the key defenders of the Caroline regime in 1640, the judges were among the House of Commons’ earliest targets. Many of those who had publicly backed ship money were impeached, including Bramston and Davenport. As rival political camps began to form on the eve of the civil wars, token gestures of impartiality no longer offered any protection.
J.S. Hart, The Rule of Law, 1603-1660: Crowns, Courts and Judges (2003)
C.W. Brooks, Law, Politics and Society in Early Modern England (2008)
An additional biography of John Hampden is being prepared for publication by the House of Commons 1640-1660 section.