rule of law and restraints on power

divine right of Kings

• did not manifest in England until after 1603

• James I of England was an exponent

  • reign would be characterised by the English civil wars

english civil wars

• dispute was about where the ultimate power rested, with the king, with the parliament or with the common law

• during much of it, members of parliament and common law lawyers were on the same side

• dispute played out in courts, in parliament and on the battlefield

• monarchs ultimately lost and Charles I was executed in 1649

the King’s relationship with the common law

• James I set out the theory of the divine right of Kings

  • his attorney general argued that according to natural law, only absolute monarchy could avoid confusion

• common law lawyers disputed this, Coke was influential

• people held a range of beliefs at the time, including faith in the common law and the will of a conquering King

what power started the english civil wars

• the King could govern by his prerogative alone as he held the power to convene or dismiss parliament

what does Sommerville suggest

• lawyers believed no amount of abstract reasoning could rival the wisdom of the law

• common law was argued to be the best of all possible laws because it was an ancient custom

• held to be rational by being compatible with natural law and flexible

development of parliament

• Parliament grew alongside the courts

• most significant early parliament is thought to be the model parliament called by Edward I in 1295

  • called it because he needed funds and wanted to consult with a range of people before increasing taxes

• parliament gets its power and authority from the common law

• as the parliamentarians were forced to enter more extreme experiments in the civil war they came to abandon the claim that common laws were superior to statute

Bonham’s case (1610)

• thomas Bonham brought an action for false imprisonment against the President and censors of the college of physicians in London

  • college argued that it had power given to it by the King and parliament to observe who should practice medicine

• Bonham continued practising after he was found unable to practice

• common law prohibited a person from judging in their own cause, judges held in favour of Bonham

relationship between the King, the parliament and the common law

• the prerogative power of the King was made up of the rights of the King who governed

  • one aspect was dispensing power

  • the King could dispense with the operation of a statute or exempt someone from being subject to it

• parliament was called irregularly, so this was needed when statutes were defective

case of prohibitions (1607)

• judges had issued a writ of prohibition to the court of high commission (a court that exercised royal prerogative)

• archbishop referred the matter to the King, arguing that the King had the power to judge all cases as his power was God given

• Coke responded by renouncing the power of the King

case of proclamations (1611)

• The king, by his proclamations cannot create any offence which was not an offence before, for then he may alter the law of the land”

  • “For if he may create an offence where none is, upon that ensues fine and imprisonment”

• “The law of England is divided into three parts, common law, statute law and custom: but the king’s proclamation is none of them”

religious components of disputes about power

• English feared that a Catholic King would reintroduce catholicism over protestantism, so when James I was ruling concerns emphasised limiting his power

• Presbyterians rejected the church hierarchy, electing elders instead

the restoration

• when parliament invited charles ii back to rule in 1660, he had to accept limitations on his power

• still tensions, and the resolution was the bill of rights

  • trimmed the royal prerogative

rule of law and the glorious revolution

• rule of law is crucial in ensuring bodies don’t make oppressive laws

• much significance in the English struggle for constitutional restraint of the King’s power for the future colonies of British Empire

what restrains judges power

• peers

• having to right their judgments down

• being well learned in the law

• the audience

main features of the rule of law

• absolute supremacy or predominance of regular law as opposed to influence of arbitrary power

• equality before the law

• constitution is not the source but the consequence of rights of individuals as enforced by courts