'Sovereignty now and then': An extended version of a piece originally written for Radio 4's Broadcasting House.
I've woken up every morning for weeks, wondering why the current debates about the sovereignty of Parliament aren't better informed by the history of the 1640s, and the deaths of 800,000 people in the Civil War. The judicial ruling on Tuesday, that Parliament’s sovereignty trumps the exercise of this mysterious thing called the royal prerogative, cannot fail to remind us of the arguments once raised between the Roundheads and the Cavaliers – Cromwell’s parliamentarians and King Charles I. Like the legal battle today, questions of prerogative concerned the rights of a discretionary power that exercised a special supremacy, usually exercised by the monarch, derived from their supposed sovereignty. The debate is fundamentally about where final political power rests, with the monarchy, prime-minister or with parliament itself.
For decades, if not centuries, young and old historians have been able to encounter the flashpoints in the story of the civil war, in collections of historical documents: key and still significant documents like the Petition of Right, (1628) where Parliament, guided by the eminent common lawyer Edward Coke, resisted the illegal and innovative prerogative impositions on property and personal freedom, by Charles I. The majority, if not all, of these sources are easily accessible in the classic collections such as The Stuart Constitution (edited by J. Kenyon, and still in paperback after many editions), and an earlier collection edited by the great British Historian Samuel Rawlinson Gardiner, - The constitutional documents of the Puritan Revolution, originally published in the 1880s by Oxford university press, and now available in open access form online. The confrontation between the law embodied in Coke, and the angry prerogative demands of the monarch claiming that he was above the law (because appointed by God), is a stark parallel with the invitation, sponsored by Gina Miller, for the Supreme Court to pass judgement on the Prime-minister’s spurious, and unfounded, claim to act upon royal prerogative alone. Such a view flew in the face of centuries of historical evidence. Any reasonably well educated historian of the Stuart crises could have predicted the outcome. Like Coke in the 1620s, Miller used the proper legal instruments to challenge the unconstitutional proposal to side-line the sovereignty of Parliament. Like Coke, her actions will be noted as an historically significant constitutional marker in decades to come.
The Petition of Right enables us to reflect upon the meaning of the recent Supreme Court judgement. Even more pertinent is the case of Ship money in the 1630s. Charles I, sought to impose an essentially medieval tax on the entire nation. He had of course dispensed with Parliament in disgust at its failure to co-operate with him. Prerogative commanded local magistrates to collect the ship money by force. Magna Carta, as Coke and others repeatedly reminded the nation, had long enshrined the illegality of the imposition of taxation without due Parliamentary consent. A wealthy Buckinghamshire gentleman and J.P., John Hampden, whose uncle, like him had resisted the king’s forced loan of the later 1620s and suffered imprisonment for his infraction, stood his ground and contested the legality of the tax which would only be legal with Parliamentary consent. Although Hampden lost the legal case by a very narrow margin, the damage to Royal Prerogative was clear. Tax refusal eventually compromised the government of the Crown.
The ignorance of this constitutional past is surprising. A mere eighteen months ago the nation, and indeed the world, was focussed upon commemorating, and celebrating, the 800th anniversary of the sealing of Magna Carta at Runnymede. Monarchy, Presidents, MPs and ordinary people fell over themselves remembering the moment of the foundation modern political, religious and social liberties. The defeat of bad King John offered opportunities not only to remember when a tyrannical monarch was compelled to acknowledge the rule of law and the freedoms of citizens, but also to explore what one former PM called the ‘Golden thread’ of liberty, which connected magna carta to modern civic freedom and the powers and authority of Parliaments and people. Constitutional freedom, the sovereignty of parliament and the legacy of liberty were core to so-called British values.
These fundamental freedoms of our times were born in the constitutional crises of the seventeenth century: the rise of Parliament resisting the tyranny of Charles I, the brutal Civil War, the execution of Charles I, and later the deposition of James II in the name of liberty and property, were all moments we should never forget and demand we reflect on the current disputes. The turning point in British history was made by what the eminent historian Wallace Notestein, called the ‘winning of the initiative of the House of Commons’, (‘The Raleigh Lecture’, delivered at The British Academy, 1924) The turbulence of the century of revolutions was driven by MPs and brave gentlemen resisting the tyrannous actions of a monarchy bent on using prerogative to legitimise their actions. Like now, those acts of resistance turned to the law and the Judges to defend the freedoms of the people. Knowing more about what happened, and why, could cast light on the muddle of the current crisis.
A mere eighteen months ago the nation, and indeed the world, was focussed upon commemorating and celebrating the 800th anniversary of the sealing of Magna Carta at Runnymede. A moment regarded by those of all political spectra as foundational of the modern political, religious and social liberties cherished today. The anniversary offered opportunities not only to remember when a tyrannical monarch was compelled to acknowledge the rule of law and the freedoms of citizens, but also to explore what one former PM called the ‘Golden thread’ of liberty, which drew from magna carta to establish civic freedom and the powers and authority of Parliaments and people. That 800 year story was, and remains, fundamental to the constitutional history of the British isles: the rise of Parliament, the origins of the Civil War and the execution of Charles I, the deposition of James II, and the radical moments of the Putney debates, where ordinary folk discussed the rights and liberties of the poorest as well as the propertied. That tradition of the rule of law, mingled with the defence of the legitimacy of popular protest, was preserved and developed after the eighteenth century with John Wilkes’ defence against the censorious tyranny of George III, the resistance of the American revolution defending the liberties of ‘freeborn men’, the great reform movements of the nineteenth century in Parliament and in the actions of Chartists. The British Museum, curated an exceptionally successful exhibition on Magna Carta and freedom, which attracted global attention and a positive reception at home and abroad.
The idea that the ‘winning of the initiative of the House of Commons’, was until recently a fundamental theme in the constitutional history of the nation. The conviction that the rule of law was a creative product of an ‘ancient constitution’ which saw the prerogatives monarchy balanced and constrained by Parliament, was a mainstream element in modern historical narratives, until swept away by the tides of fashionable historical revision, and dismissed wholesale as ‘Whig history’. Whether Marxist or neo-liberal, such counter-narratives, which came to prominence in the 1980s as the two party-system in Westminster fractured suggested there was neither ideological conflict, nor any causal origins to the turbulence of the century of revolutions. Some simply dismissed the English revolution as a baronial revolt. However, even by the end of the 1980s, Prime-Minister Thatcher was forced by the bicentennial celebrations of 1789 in Paris, to recognise the so-called respectable British revolution of the seventeenth century in 1689, which left a legacy of a constitutional monarchy alongside a Bill of Rights. Where the French example was violent, anarchistic and terroristic, the British managed what became known as a Glorious Revolution, enshrining the rule of law and the sovereignty of Parliament.
Constitutional history is now deeply unfashionable in schools and universities, and it seems that few MPs are aware of those crises of the seventeenth century, which confirmed Parliamentary sovereignty against claims of prerogative; and that the rule of an independent judiciary ensures this state of affairs remains legitimate. As one seventeenth century voice noted in 1640 with confidence, ‘There are no remedy for many things but by a Parliament’. A casual review of chapter titles in studies of the crises of the Stuart age illuminates these themes: from Margaret Judson’s classic, but little read today study, The crisis of the Constitution (1949), chapters discussed how, ‘Englishmen believe in Parliament’, ‘Parliament defends rights, the law and the constitution’, and how ‘Englishmen love the law’.
As noted above, the Petition of Right in the later 1620s is a productive event to reflect upon meaning of the Supreme Court judgement. Even more appropriate is the case of Ship money in the 1630s. Charles I, sought to impose, in an innovative manner, an essentially medieval tax on coastal towns to be extended to the entire nation. He had of course dispensed with Parliament in disgust at the resistance evidenced in the Petition of Right. His use of prerogative, commanded local magistrates to collect the ship money by force. Magna Carta, as Coke and others repeatedly reminded the nation, had long enshrined the illegality of the imposition of taxation, without due Parliamentary consent. A wealthy Buckinghamshire gentleman and J.P., John Hampden, whose uncle, like him had resisted the king’s forced loan of the later 1620s, and suffered imprisonment for his infraction, stood his ground and contested the legality of the tax without the contribution of Parliamentary consent. Although Hampden lost the legal case by a very narrow margin, the damage to Royal Prerogative was clear, and a much more sustained period of tax refusal followed.
Henry Parker, perhaps the cleverest of Charles I’s opponents, captured Royalist arguments about the extent of prerogative, but overturned them by arguing that it belonged to Parliament, to be used to defend popular sovereignty, rather than the whims of the King. The resonances of these historical events with contemporary matters are again clear: brave individuals, like Gina Miller or Edward Coke, donning the armour of legal precedence, call for judgement on illegal acts of prerogative. Ultimately, in the seventeenth century the consequences of confrontation between the law and the judges defending the liberties of the people, and a royal prerogative determined to act above the law, led to armed military conflict, the deaths of hundreds of thousands of citizens in a brutal civil war and the execution of the monarch. Whither now?
To have claimed to act simply by the authority of prerogative in the seventeenth century, might easily have led to the scaffold. The absurdity of the contemporary popular press, and elements within the political elite, damning the Judges of the Supreme Court as ‘enemies of the people’, is ample evidence of profound historical ignorance. In the last century the constitutional history of the British Islands was a staple of both school and university education. The scholarly evidence for those histories remains in our local, personal and university libraries. The great narrative works of S.R. Gardiner, J.R. Tanner, and later Christopher Hill and Conrad Russell, although they disagreed about causality and the motivations of the crises, they shared a common understanding of the pressing significance of the period to modern politics.
Like Charles I’s opponents, the Supreme Court has argued that sovereignty belongs to Parliament. The resonances between past and present are clear: the history of English liberties has been made by brave individuals donning the armour of legal precedence, and calling for judgement on illegal acts of prerogative. Ultimately, in the seventeenth century the consequences of confrontation between the law and the judges (defending the liberties of the people) and royal prerogative determined to act above the law, led to armed military conflict, the deaths of hundreds of thousands of citizens in a brutal civil war and the execution of the monarch. Whither now?
Thankfully after the Supreme Court ruling there are, so far, no calls to arms, and no need for the Prime Minister to hide up a tree (like the young Charles II had to). But perhaps the case of Article 50 - where the sovereignty of Parliament was tested by judicial scrutiny, and once again found to be as robust as ever - could lead a few more MPs and crown servants to pick up their history books?
In the last century the constitutional history of the British Islands was a staple of both school and university education. Although historians disagreed about causality and the motivations of the crises, they shared a common understanding of the pressing significance of the period to modern politics. Contemporary MPs, and ministers, seem wilfully ill-informed. An exception is Tristram Hunt, no longer an MP, who compiled a very useful collection of the parliamentary and radical voice of the seventeenth century, The English Civil War At First Hand. Other MPs have no excuse since the Houses of Parliament hosts an excellent, informative and evenly balanced website which allows anyone to ‘Learn about the struggle for democracy as power shifted from the monarch and nobles to universal suffrage (the Reform Acts) and votes for all at 18 in 1969’. Specifically visitors to the site can, ‘ Find out more about the English Civil War, the events leading up to the execution of Charles I and the rule of Oliver Cromwell’. Understanding this historical chronology enables anyone to learn ‘about significant events in the history of democratic change’. Providing overviews, but supported by sources and historical comment, this website ought clearly to be a primary source for current MPs. Perhaps if they had bother to explore the constitutional history of the British Isles they may not have wasted time and money, disputing the sovereignty of Parliament in the first place?
 For the text of Gordon Brown’s speech see, https://www.theguardian.com/politics/2007/feb/27/immigrationpolicy.race