When the English fought against the Stuart Kings in the seventeenth century, they did it in the name of the "ancient constitution", which the Stuarts were allegedly disregarding. Under some versions of the "ancient constitution" the early Kings had been appointed by contract or treaty between themselves and the people, so this was clearly mythical nonsense - King William I, in particular, obtained his title by armed invasion. But there was a grain of truth - the English had always been a particularly stroppy lot to rule over, and their spokespeople - first the Barons, later the Parliament - had repeatedly bluffed, blackmailed or otherwise coerced their Kings into signing documents that amounted to contracts not to rule too harshly, and to honour what we would now call the rule of law. [The English would like to think the drive to preserve their freedoms is in their genes, but maybe the fact that they lived on an island had something to do with it. If you are surrounded by other kingdoms it can be dangerous to spend a lot of time arguing with your King, but if the powerful neighbours have to sail their army across the sea to take advantage of your quarrels, you have more scope for quarrelling and general stroppiness.]
The earliest of these "contracts" between King and people was the famous Magna Carta (Great Charter), signed (under threat of death or banishment) by King John in 1215. In this he promised:
We have granted moreover to all free men of our kingdom for us and our heirs forever all the liberties written below, to be had and holden by themselves and their heirs from us and our heirs...and then there followed a great list of remedies for specific grievances, most of which are thoroughly out of date now, but including the famous promise (clause 39 in the original, clause* 29 in the 1297 re-enactment) that no freeman should be "taken or imprisoned" or have various other terrible things happen, except "by lawful judgment of his peers, or by the law of the land."
Despite the fact that John had promised on behalf of "us and our heirs forever", the Kings were quite stroppy people too, and kept testing the limits of their power - as Maitland says, "it was one thing to get the charter, another to get it observed". So the English kept finding it necessary to get further promises from the King of the day that their rights would be honoured. Magna Carta was reissued by Henry III in 1216 (with several clauses omitted), 1217, and 1225. The latter version was regarded in later centuries as the first "Act of Parliament", but Parliament at that time was just an assembly of barons. Something more like the modern Parliament dates from 1295, when Edward I summoned two knights from each county, two burgesses from each borough, and two citizens from each town, as well as "the earls, barons and other principal men", to "a consultation and meeting" which became known afterwards as the Model Parliament (the link includes the text of the summonses, in modernised English). Two years later, the 1225 version was re-issued with the authority of the new Parliament behind it, and that is what you find as the first Act in the old "Statutes at Large" reprint of the Acts of the English Parliament - the 1297 reissue of the 1225 version. [Most of the "history of liberty" sites, like constitution.org or the Avalon Project, however, will give you the 1215, Bad King John, version. I have found photos of the 1225 version on the Web, but, so far, not the text.]
Giving the Charter the authority of an Act of Parliament did not make the Kings automatically honour it, so the Parliament kept submitting Bills to the King in which he was asked to renew the promise. [Acts in those days were not always intended to make new law - an "Act" could be a device by which the Parliament insisted that the King put his signature to a promise to uphold the existing law, functioning as a pact between the ruler and the ruled.] Coke, the seventeenth-century judge and author, listed 32 confirmations of the Charter, from 1268 till 1417 (if you have access to a copy of the Statutes at Large you can find them listed as a footnote to the 1225/97 Charter and then trace them all through the next couple of volumes). Many of these were no more than a promise "that the Great Charter and the Charter of the Forest be firmly kept, holden, used and executed in all Points", but some made further statements about the limits on the King's arbitrary power.
These included three significant Acts in the time of King Edward III. In his reign there was prolonged squabbling over the conduct of criminal trials by the Privy Council without a jury, so Acts were passed in 1351 in which the King promised that "none shall be imprisoned nor put out of his freehold... unless it be by the law of the land", and in 1354 in which the promise was:
that no man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of law.[This is the source of a key phrase in the United States Bill of Rights.] The Act of 1368 added a claim to unrepealability: the Charter would be kept in all points, "and if any statute be made to the contrary, that shall be holden for none."
Despite all these promises, the Kings kept testing the extent of their power. Trials without jury by the Privy Council (sitting, in later centuries, in the Star Chamber) were not finally abolished until 1641, but by about 1300 some limits on the King's power were established (or perhaps even here we should say that claims that there were limits had become well-established, but that the Kings did not always agree):
At the same time as the lords and Parliaments were struggling with the King, the courts were starting to play a small part by using the writ of habeas corpus to order the release of wrongly-imprisoned people. Now there is a lot of romantic nonsense written about habeas corpus. You can find sites on the Web that say that access to the writ was guaranteed by Magna Carta, and even judges, when they write of habeas corpus, tend to start with rhetorical flourishes like "the origins of the great writ are lost in the mists of time. It is even older than Magna Carta." In fact, one article of Magna Carta (art 36 of the original, art 26 of the confirmation in 1297) did promise that a certain writ referred to as inquisitionem de vita vel de membris (inquisition of life or of member) would be "granted freely and not denied". This writ may have served part of the same purpose as habeas corpus did later, but it was not habeas corpus and, despite the "guarantee" in the Great Charter, its use died out in the following century or two.
Writs that included the words habeas corpus ("have the body" - ie, bring or produce the person) were in use about the time of Magna Carta, but they were not the "great writ". These were, first, writs that commanded a sheriff to bring the person of a defendant or a juror before the court on a certain date - ie, they were issued, like modern summonses, to ensure that court proceedings would not be aborted. Then in the late fourteenth and fifteenth centuries the superior courts began to use habeas corpus to take cases over from jurisdiction of the lower courts, or from other superior courts - ie, to use it as a weapon in their jurisdictional disputes.
Mixed in with these cases, however, there are cases where it seems that the courts were truly defending people from being wrongly accused and imprisoned - as William Duker says*, in their jurisdictional battles the courts were making "unintentional progress". I have read a number of articles which date this use of the writ from the time of Henry VII (1485-1509), but it seems to be going on in some of the cases found by Duker in the late fourteenth century (a century earlier). However, it certainly becomes more important in Tudor times, as discussed below.
*"The English Origins of the Writ of Habeas Corpus" (1978) 5 NYULR 983; see also his A Constitutional History of Habeas Corpus (1980).
The Tudors may have had greater central power and a more efficient bureaucracy, but they had learned the lessons of earlier times and were careful to rule with the cooperation of Parliament - indeed, Henry VIII's use of Parliament as an ally in his fights with the Pope helped to confirm Parliament's central place in the constitutional scheme of things. The conflicts in these years were not between King or Queen and Parliament, but between Catholics and Protestants. Henry VIII established the Church of England as independent of the Pope but not really what a European would recognise as Protestant, but Edward VI, in his short reign, made it much more doctrinally Protestant. He was succeeded by Mary, a Catholic who burned many Protestants at the stake, but she in turn was succeeded by Elizebeth I, who fought off the invasion of the Spanish Armada and burned a few Catholics. All of this helped to set the idea in the minds of the Protestant English that Protestantism equated to traditional English liberties and Catholicism to autocratic government, repression and foreign domination - an equation that had consequences in the next century.
Quite apart from religious persecution, and despite the greater peace with Parliament, the Tudors had not become tolerant of opposition - for daring to oppose a King's, Queen's or Minister's policy, you could still be thrown in the Tower and accused of treason. This is where habeas corpus began to play a greater role. Whatever the doubts about its earlier use (see above), by the time of Elizabeth I, the writ was clearly being used to release persons illegally imprisoned by the inferior courts or by minor officials. However, the courts, being appointed and dismissable by her Majesty, were understandably nervous about upholding individual liberties against the authority of the Monarch or her Council - so for a while they compromised by holding that a prisoner might be released if imprisoned without good cause by command of one or two Privy Councillors, but not if imprisoned by command of her Majesty or the full Council. Another favourite trick of the powerful was to have someone arrested and sent to a prison outside of the realm, where the courts had no jurisdiction - a practice with modern echoes in the US forces' practice of holding suspects at Guantanamo, Cuba.
Then in 1591, apparently in response to a question by some members of the Council, all the common-law judges and barons met to consider the matter. In their resolution, although they complained of many grave abuses, they first appeared to surrender by resolving that they would not release anyone committed to gaol by her Majesty, the Privy Council, or even "any one or two" of the Council members. But then they insisted that even in this range of cases it was not sufficient answer to the writ for the gaoler to say "imprisoned by order of Lord So-and-so", but that the prisoner ought always to be delivered to the court for an open hearing. Anderson's report* of the resolution then concludes "after which time there did follow more quietness then before in the causes before mentioned". Perhaps we can infer from this that the judges' insistence on open proceedings caused the Councillors to be less ready to throw those who annoyed them into gaol, or to exile them beyond the realm, than they had previously been, but I have not found confirmation of this in any articles by those who have done detailed research into Elizabethan times.
[* 1 Anderson 297; 123 English Reports 482]
Charles I was overthrown in a civil war (the Civil War, or the Great Rebellion, in English history) and executed in 1649, and England became a republic ("the Commonwealth"), led by Oliver Cromwell till he died in 1658. Charles II was restored to the throne in 1660, but tensions persisted and in 1688 a committee of politicians invited James II's Protestant daughter Mary and her husband, William of Orange, to take over the throne and James fled into exile. As no blood had been spilt in the takeover, the winners (who always get naming rights over historical events!) named it the "Glorious Revolution". These years of tension, war and revolution produced more important laws and legal rulings, which finally made it clear that the executive government's powers were limited by law.
During James I's reign the only war was a "legal war". When the King tried to resume the exercise of some powers that his predecessors had effectively abandoned, the common-law judges, led by Coke CJ, held that those powers had long since ceased to be exercisable by the monarch. In Prohibitions del Roy (1607), the judges reminded the King that he could not hear and determine legal disputes himself, and in the Case of Proclamations (1611) that he could not make laws by proclamation, without the consent of both Lords and Commons. [Coke (pronounced "Cook", so we're told) reported these debates (hardly cases, in the modern sense of the word) in the series of Law Reports that he published himself.] James finally lost patience with Coke and dismissed him from office - Kings still had that power, for the time being.
Charles I managed to buy some time against the rising discontent by signing another famous "treaty" with the Parliament - the Petition of Right (1628), another of those documents in the form of an Act of Parliament that is really rather more like a treaty (and drafted by Coke, who was now in Parliament). Parliament asked the King to recognise limits on his power (see clause X in particular if you click on the link), and the King signed "Soit droit fait comme est desire" - Let it be made law as is desired. He also assented to the act abolishing the Star Chamber, also known as the Habeas Corpus Act 1641 because it included a section in which he half-promised, at least, that the power of the courts to issue the writ of habeas corpus would not be suspended, and that it could be issued even in cases of imprisonment by His Majesty or the Privy Council. But then he bullied the remaining judges into upholding his power to levy "ship money" (a tax, imposed without consent of Parliament) in R v Hampden (1637), kept breaking his promises, barged into the House of Commons to try to arrest 5 members, tried to raise an army to enforce his will, lost a civil war, escaped and made an alliance with the Scots and lost a second phase of the war, kept on demonstrating that his promises meant nothing, and was hanged for treason against his own people - see the Act setting up a special court to try him, the charge against him and the warrant for his execution.)
When the Civil War started in 1642 another parallel war broke out - a "propaganda war" or "pamphlet war" in which, for the first time, some writers dared to suggest that the people were sovereign and that the powers of all governing bodies - executives and parliaments - should be limited. The pamphlet war continued through the Commonwealth period, but Cromwell was as little inclined to accept limits on his power as any of the Stuarts had been. These theories and their eventual effects will be discussed in the next Chapter.
Though the Stuarts were invited back to the throne in 1660, the legal and pamphlet wars continued. The pamphlet war will be considered in the next Chapter. As to the legal war, though Charles II ruled without parliament for a long time, he did eventually assent to another Habeas Corpus Act* in 1679, which closed the loophole under which the courts had been able to refuse to issue the writ in the court vacations (quite long vacations, during which the prisoner languished in gaol), and made both judges and gaolers subject to heavy penalties for failing to issue the writ or ignoring it once issued. Though the writ itself is of common-law origin, it really only acquired its status as the "great writ" with the passage of this Act.
[*As to the passage of this Act, the story goes that in the House of Lords there were not enough Lords voting in favour so the teller for the ayes, Lord Grey, counted a particularly fat Lord as the equivalent of ten, simply, at first, as a joke. However, the teller for the nays, Lord Norris, who is described as "a man subject to vapours" (which could mean anything from being a bit vague to suffering from deep bouts of depression) appeared not to have noticed, so Lord Grey persisted with the miscount and the Bill was declared to have been passed!]
Then the climax of the legal war comes with the "deal" by which William and Mary took over the throne. It was made clear to them before they were declared King and Queen that, once on the throne, they were expected to consent to a statutory declaration of the principles limiting their power. The committee drafting the list of principles divided them into two lists, one "declaratory of ancient rights" and the other "introductory of new laws". Ironically, the Whigs who had opposed the previous King were not so keen to have the powers of their newly-chosen rulers limited too much, so the enactment of the second list was postponed for a while - but the first list was enacted into law. We now know it as the Bill of Rights 1688 (though it was adopted as the Declaration of Rights in February 1689 (which was in 1688 in the old reckoning) and finally enacted as a regular law in October 1689). It provides:
["Art. 1"] That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;[The "article" numbers were not in the Bill as enacted, but it has become usual to refer to the separate articles in this way.]
["Art. 2"] That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;
["Art. 3"] That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;
["Art. 4"] That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;
["Art. 5"] That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;
["Art. 6"] That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;
["Art. 7"] That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;
["Art. 8"] That election of members of Parliament ought to be free;
["Art. 9"] That 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;
["Art. 10"] That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
["Art. 11"] That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;
["Art. 12"] That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;
["Art. 13"] And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.
At the end, instead of the usual simple expression of assent "le roi le veult", it is declared:
All which their Majesties are contented and pleased shall be declared, enacted and established by authority of this present Parliament, and shall stand, remain and be the law of this realm for ever; and the same are by their said Majesties, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in Parliament assembled and by the authority of the same, declared, enacted and established accordingly.
Another symbolic fact about the accession of William and Mary is that once again the occupancy of the throne was decided by Parliament. Having invited this married couple to save them from James, the politicians then had to work out whether one or the other would rule - William was male, but Mary was the direct descendant of the previous King. In the end they resolved, by vote, to offer them the throne jointly - again we see that in moments of crisis the monarchy does not pass by the rules of heredity, but becomes temporarily elective!
Then in 1701 when William was anxious for Parliament to pass the Act of Settlement (aimed at maintaining a Protestant succession to the throne) the members of Parliament took the opportunity to include many of the provisions that had been postponed in the debate over the Bill of Rights because they would be "introductory of new laws". So the Act not only contained specific and general provisions about the succession - specifically that Anne would succeed William and if she left no issue she would be succeeded by the descendants of Sophia of Hanover (a granddaughter of James I), and generally that the sovereign could not be a Catholic or marry one - but also some sections that amount to a "Part Two" of the Bill of Rights. The two most important are:
That no person who has an office, or place of profit, under the King, or receives a pension from the Crown, shall be capable of serving as a member of the House of Commons.That... Judges Commissions be made quamdui se bene gesserint [for so long as he/she conducts himself/herself well], and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them.
Both of these were intended to reduce executive power even further. The first was intended to reduce the sovereign's power to influence the vote of members of parliament - though the section of the Commonwealth Constitution derived from it has the silly consequence that a state-school teacher has to resign the job before even nominating for a seat in Parliament, while a private-school teacher has no such inconvenience. The point of the second clause was to give the judges freedom from pressure by the executive - although the executive would still appoint the judges and might hope for the judges to repay the favour by being "executive-minded" judges, once a judge was appointed the executive would have no way of exercising control over him (or, centuries later, her). Indeed once they were appointed they had more to fear, in theory, from Parliament - though the power of dismissal has been used very sparingly.
[This indirect and pragmatic way of maintaining judicial independence is typically English. By contrast, the European Convention on Human Rights directly specifies the principle; people are entitled to a fair trial by "an independent and impartial tribunal". The English assume the principle, and specify a mechanism (and then sometimes push the principle to the backs of their minds - the Act only applies to the higher courts, and magistrates and Circuit Court judges have a much weaker guarantee of tenure). But see Starrs v Procurator Fiscal for the way the European principle is now starting to have an influence in Britain.]
Of course, the executive did not suddenly and totally accept that they were governed by the law immediately after 1688. In the 1760s, the government was much annoyed by the publication of critical pamphlets that they saw as seditious (just as some recalcitrant governments still think that any criticism is seditious), so one of the Ministers issued "general warrants" to the "Kings Messengers" (a kind of early police force), authorising the Messengers to enter premises and seize (among other things) any papers they found there. In Entick v Carrington (1765), the judges of the Court of Common Pleas - now secure in their tenure under the Act of Settlement - held that there was no legal authority for the issuing of such warrants, and that therefore the King's Messengers had committed trespass when they seized Entick's goods. The judgment has been generally accepted also as the main authority for a much more general proposition, though it is not quite spelled out in so many words in the court's reasons - that the executive government cannot do anything coercive to a "subject" (a citizen, in more modern language) unless it is specifically authorised by law. [See the extract (on a Canadian University web site), and note especially the line, about 60% of the way through the file, where Lord Camden says "If it is law, it will be found in our books. If it is not to be found there, it is not law."]
It is probably from about this date onwards that we can say that all the historic claims as to limits on executive power - until then really only one side of a vigorous propaganda debate - were definitely solidified into l-a-w, law. The claims of those who believed in the "ancient constitution" had been made to come true, even if they had not really been true anciently.
The Entick v Carrington principle, and nearly all of the Bill of Rights, are still law in England and in Australia and America (as to the "nearly", see Chapter 4). In particular, Kings, Queens, American Presidents and their Ministers or Cabinet Secretaries know - or ought to know! - that they cannot suspend or dispense with the laws, investigate heresy, raise taxes, spend money or try to raise an army without the authority of an Act of Parliament or Congress - and if they forget they are reminded by the law courts. The limits on executive power as they operate today in Australia will be discussed in Chapter 13.
[Article 4 also has an important effect on who can be a Minister - the Ministers as a group have to have enough support to get an "appropriation" act passed by the Parliament, or they cannot lawfully spend money, and then government simply cannot work. And, at least partly because of that control of the Ministry by Parliament, real executive power is now exercised (subject to law, as we have seen) by the group of Ministers, not by the King or Queen. For more detail on these two effects of the Glorious Revolution, see Chapter 5.]
Though the English technique was always to create specific remedies against specific problems as they arose, after the long struggle was over theorists realised that the system constructed piece by piece, specific remedy by specific remedy, embodied two grand principles - the rule of law and the separation of powers.
The first principle is certainly true in general, though lawyers in England (and the defendants) were surprised in the 1960s and 70s when the House of Lords suddenly "discovered" the crime of "conspiracy to injure public morals" in the English common law. Apart from curious cases like that, it is true that in England and Australia nobody can suddenly be gaoled, have their property seized, or otherwise be penalised, except after proper conviction for doing something known to be criminal. This is made even clearer in the States which have a Criminal Code - for example, section 5 of the Criminal Code Act (Queensland) provides
no person shall be liable to be tried or punished in Queensland as for an indictable offence except under the express provisions of the Code or some other statute law of Queensland [or old English laws which expressly apply in Queensland].
The second principle sounds good, but it is actually subject to some qualifications. It is certainly true that the individuals who work for the government are generally subject to the same laws as the rest of us - Entick v Carrington, above, is a perfect example of that (and seems to be the principal, if not the only, case that Dicey had in his mind when he wrote about the rule of law). But of course an Act can expressly give officials immunities from some laws, and in some cases rightly so - emergency vehicles can have sirens that would be illegal on ordinary cars, to take an obvious example. So officials can be above the ordinary law, but never "above the law" - they can have some very special powers, but only if these are specifically authorised by the law.
However, the government itself has some lingering special immunities. If you want to sue the government itself - ie the Commonwealth, or a State, or a particular Minister or Department - rather than a lowly public servant, there are two difficulties, which used to be enormous but are slowly diminishing:
The English did this, but it took a Frenchman to draw theoretical conclusions from it. In 1748 Montesquieu wrote The Spirit of Laws, a kind of comparative law thesis, in which he observed that if you wanted to set up a system of laws to preserve the spirit of liberty you would do as (so he claimed) the English had done, and give the rights to exercise legislative, executive and judicial power to different people. Book 5 ended with the suggestion that if we wanted to find a system that guaranteed the liberty of the subject we didn't have far to look (from France), and the title of Book 6 was "Of the Constitution of England" - but the rest of Book 6 was in fact an extremely idealised description of the English system of his time. Here Montesquieu described a state in which there was a strict separation of the three types of power - government was divided into three "branches" each exercising one of the types of power and there was no overlap of powers or personnel between them. In fact, as we will see in Chapter 5, there was a considerable overlap between the parliament and the executive in England by 1748. Another feature of this ideal state was that judges were elected annually - which is describing ancient Athens, not England!
And if Montesquieu meant to claim that the actual, rather than the ideal, English Constitution guaranteed the liberty of the subject, this was also overstated. A lot of romantic nonsense has been said about the traditional liberties of the freeborn English, by the English as well as by this French observer. In fact, plenty of English people may not have felt particularly free at the time - in particular, young lads who were "press ganged" into the Navy, married women who could not own property, and, 150 years after Montesquieu, workers who wanted to form trade unions. But one should not be too cynical either. By and large, particularly by the standards of the seventeenth century, the English had less chance of being victimised by arbitrary actions of the King, his Ministers or "Messengers" than the people of other countries. No English monarch had the absolute power claimed, and often exercised, by a King Louis or an Emperor of China, and the reason was certainly the partial separation of powers existing in England. [For more on the real virtues, and the defects, of English law regarding the protection of individual rights, see Chapter 6.]
If Montesquieu had wanted to describe this partial separation accurately he might have said this:
The drafters of the American Constitution took Montesquieu's theory very seriously, vesting legislative power in the Congress, executive power in the President (a king elected for a limited term, effectively), and judicial power in a court system with a guarantee of lifetime tenure, and added some "checks and balances" - the President can veto legislation, the legislature can vet appointments to the judiciary, and the judiciary (as we will see in the next Chapter) can declare legislation invalid. The drafters of the Commonwealth Constitution took it somewhat seriously - legislative and executive power are given separate Chapters in the Constitution but are allowed to overlap, but judicial power can only be exercised by independent judges. The exact degree to which this doctrine applies in Australia will be discussed in Chapter 14 and Chapter 15.