Tuesday, 1 November 2011

Maitland on parliamentary sovereignty

From F.W.Maitland, The Constitutional History of England:

"We may then regard the seventeenth century as finally settling the sovereignty of England in king and parliament. But we must watch this process more in detail: and we will start with the ordaining, dispensing and suspending powers which the kings have claimed. We have seen that under James I the judges, who were no enemies to the prerogative, had held that a royal ordinance or proclamation could have but an extremely limited force — it could create no new offence — it could simply be used as a public announcement of the law, an intimation that the government was going to enforce the law. Here then the common law as declared by the judges was against the king — but practically so long as the Court of Star Chamber existed, the last word on the matter did not rest with the judges: that court would, and did, enforce proclamations. The proclamations of Charles I were far more numerous than those of his father. Prices were fixed by proclamation; houses were demolished, shops were shut in order that the new cathedral of St Paul might appear to better advantage; all persons who had houses in the country were directed to leave London. On 5 July, 1641, the act was passed which abolished the Court of Star Chamber, and with it fell the power of enforcing proclamations....

With regard to the dispensing and suspending powers.... The two powers are in theory distinct. Our law might give to the king power to dispense with statutes in favour of individuals specially named by him, and yet might well deny him the power of suspending a law so that persons in general might treat it as being non-existent. The claim to the greater power seems to have grown out of the claim to the lesser power, and the theory established at the Revolution by the Bill of Rights is that, while the suspending power had never had any legal existence, the king had lawfully enjoyed a certain, or rather, perhaps we ought to say, an uncertain power of dispensation. It was extremely difficult even for the most ardent parliamentarians to deny that a dispensing power had existed, though as to the definition of its lawful limits there was a very great uncertainty. From a very early time the king had taken on himself to dispense with statutes. In theory this power was closely connected with that power of pardoning, with which our king is still entrusted.... Also to this day the queen, by her Attorney-General, has power to stop a criminal prosecution by entering a nolle prosequi.... It should be remembered also that many of the medieval statutes imposed as punishments for offences not reaching the degree of felony, fines and forfeitures of which the king had the profit.... These things being remembered, it will not seem strange that the king should have exercised a power of dispensing with penal statutes. If any one breaks such a statute, who is wronged? The king; it is for him to prosecute, and the fines and penalties will be his.... The king might permit a man to do what would not have been unlawful but for the statute; he could not permit him to do what apart from any prohibition would be wicked; might dispense with such a statute as those which forbad the holding of land in mortmain, but not with a statute which fixed a punishment for larceny or murder.... It is only under James II that we hear much against dispensations, though the sale of them had long been a grievance. James seems to have used them with a settled purpose of practically annulling the statutes which excluded Papists from office. In this the court maintained him, and doubtless his success with dispensations set him on the project of suspending laws in a direct fashion. The line between the two powers that he claimed can be theoretically marked — the dispensation applies to this or that individual, a suspending of the statute would free all men, and yet, of course, the dispensing power might be so lavishly used that it would practically operate to suspend the laws. The Bill of Rights condemned absolutely the suspending power; its condemnation of the dispensing power was qualified....

As to the suspending power, the case of the seven bishops is the one great case. The question came but incidentally before the court. James II had issued the declaration of indulgence. By his royal prerogative (as the document runs) he declares it his royal will and pleasure that all and all manner of penal laws in matters ecclesiastical be immediately suspended. The clergy were required to read this declaration in church; the bishops petitioned, and their petition was the "seditious libel" for which they were tried. Now the one precedent which could be produced for such a declaration, was a very similar declaration published by Charles II in 1672 — a declaration of indulgence suspending the penal laws. But the commons had protested, and Charles had been compelled to acknowledge that the declaration was illegal.... At the bishops' trial the advocates make the best of their very bad case, but very bad it certainly was. Two judges charged the jury in favour of the crown, two in favour of the bishops. The two former seem to have had nothing to say for the declaration, save that the laws were the king's, and that he might do what he liked with them; the bishops, as we all know, were acquitted.... The Bill of Rights dealt with the suspending power in a very summary way. 'The pretended power of suspending of laws, or the execution of laws by regal authority, without consent of parliament, is illegal.'"