A Concise History of the Common Law. Theodore F. T. Plucknett
exaggerated.2 Here we are concerned only with the more general significance of the rise of banking and public finance with the need for new legal principles to govern them, and with the great Bankers’ Case3 growing out the stop of the exchequer which settled the constitutional question of the right to bring a petition of right.
RESTORATION OF CHURCH AND PREROGATIVE
The reign of Charles II saw the re-establishment in a harsher form of the Church of England, and the short reign of James II witnessed a rapid crisis. The determination of that monarch to pursue a religious policy which was contrary to that solemnly laid down by Parliament in a long series of statutes was the immediate cause of his fall. It may have been that his project of complete toleration for Roman Catholics as well as Dissenters was intrinsically an advance upon the partisanship of the Church as represented in Parliament. But it is impossible to discuss the merits of the policy when the methods of its promotion were so drastic and so completely contrary to the spirit of contemporary institutions. James II claimed that by his prerogative he could dispense individual cases from the operation of a statute; more than that, he even endeavoured to suspend entirely the operation of certain of the religious laws. Upon this clear issue the conflict was fought out. After an ineffective show of military force James II retired to France, William III of Holland was invited by Parliament to become joint ruler with his wife, Mary II, James’s daughter, and so “the great and glorious revolution” was accomplished. The terms of the settlement were embodied in the last great constitutional documents in English history, the Bill of Rights (1689) and the Act of Settlement (1701).
THE BILL OF RIGHTS
The principal portions of the Bill of Rights4 are as follows:
“That the pretended power of suspending of laws, or the execution of laws, by regall authority, without consent of Parlyament is illegall.
“That the pretended power of dispensing with laws, or the execution of laws, by regall authoritie, as it hath beene assumed and exercised of late, is illegall.
“That the commission for erecting the late Court of Commissioners for Ecclesiasticall Causes, and all other commissions and courts of like nature, are illegall and pernicious.
“That levying money for or to the use of the Crowne by pretence of prerogative, without grant of Parlyament for longer time or in other manner than the same is or shall be granted, is illegall.
“That it is the right of the subject to petition the King, and all commitments and prosecutions for such petitioning are illegall.
“That the raising or keeping a standing army within the kingdome in time of peace, unless it be with consent of Parlyament, is against law.
“That the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law.
“That elections of members of Parlyament ought to be free.
“That the freedome of speech, and debates or proceedings in Parlyament, ought not to be impeached or questioned in any court or place out of Parlyament.
“That excessive baile ought not to be required nor excessive fines imposed; nor cruell and unusuall punishment inflicted.
“That jurors ought to be duely impannelled and returned, and jurors which passe upon men in trialls for high treason ought to be freeholders.
“That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void.
“And that for redresse of all grievances, and for the amending, strengthening, and preserveing of the lawes, Parlyament ought to be held frequently.
“And they doe claime, demand, and insist upon all and singular the premisses, as their undoubted rights and liberties; and that noe declarations, judgments, doeings or proceedings, to the prejudice of the people in any of the said premisses, ought in anywise to be drawne hereafter into consequence or example.”
THE ACT OF SETTLEMENT
After the death of Queen Mary (1694), William III ruled alone, until he in turn was succeeded by her sister, Anne (1702-1714), who was therefore the last of the reigning Stuarts; in order to secure the succession, the Act of Settlement was passed in 1701 which not only limited the descent of the Crown (in accordance with which the present royal family reigns) but also added a few constitutional provisions supplementary to those of the Bill of Rights. It required the monarch to be in communion with the Church of England, and not to leave the country without parliamentary consent—an irksome provision which was soon repealed. Membership of the Privy Council and of Parliament was limited to British subjects of British parentage. It was likewise provided “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”. This attempt to limit the Crown’s influence in Parliament was subsequently amended1 in order to permit ministers of the Crown to sit in the House of Commons by allowing them to seek re-election after their appointment to a salaried office. Such was the practice until 1926, when the need for re-election was abolished. Another chapter provided that judges should hold office during good behaviour at fixed salaries, and that they should only be removable by His Majesty upon an address of both Houses of Parliament; the complete independence of the bench was therefore permanently established.
REVOLUTIONS AND POLITICAL THEORY
The changes and chances of seventeenth-century politics had produced a great number of varying theories concerning the State and the nature of government. In the beginning of the century divine right was ranged against a parliamentarianism which looked to the middle ages for its justification. The period of the Commonwealth accustomed people to see a succession of different forms of government set up and then deliberately pulled down. The lesson was clear: the people had in their hands the power and the right to set up forms of government according to their fancy. A large number of political thinkers of different schools took up this idea, and were prepared to treat existing governments as if they had been the deliberate product of popular action. It merely remained to ascertain exactly what policy the people had proposed to pursue when they did this. We consequently find many different suggestions as to the form which this original contract, as they regarded it, received. The seventeenth century and much of the eighteenth were occupied in searching for forms of contract which should afford a reasonable justification for political society, either as it existed, or as the philosopher thought it ought to exist.
THOMAS HOBBES
Out of this welter of speculation only a few names can be mentioned here. Undoubtedly the most remarkable of them was Thomas Hobbes, whose greatest work, The Leviathan,1 appeared in 1651. Unlike almost all of his contemporaries, he entirely rejected the study of history as having any bearing on political science; instead, he pinned his faith to “geometry, which is the only science that it hath hitherto pleased God to bestow on mankind”—words which have a strangely familiar sound in these latter days. His outlook was entirely materialistic. All knowledge is derived through the senses; every idea is the result of an effect produced upon an organ of sense by the motion of an external object; felicity means success in getting what one wants. Were it not for civil government, life would consist of the ruthless competition of unmoral men for desirable things, and would be “solitary, poor, nasty, brutish and short”. It is only the tremendous power of the State which protects the natural man against himself and his fellows, and from this power are derived the ideas of justice and property—for in the pre-civil State “that only is a man’s that he can get, and for so long as he can keep it”. Where other thinkers had conceived of society as involving a contract between ruler and subject, Hobbes devised a completely different scheme. According to his view, helpless and miserable mankind made a contract, every man with another, to submit to a ruler whom they all clothed with authority to govern them. This ruler