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Democracy and the rule of law 

Synopsis

Some reflections on the rule of law and its interaction with the democratic principle

Introduction                                                                                    
Historical development of the rule of law and the democratic principle in England                                                    
The rise of Parliament and the Crown – the royal prerogative            
Statutes and ordinances –statutes and the common law                          
Crown, Parliament and the common law at the end of the middle ages  
The sixteenth and seventeenth centuries – Parliament, the divine right of Kings and the prerogative                                         
The prerogative and Parliament                                                              
The revolution settlement, the Bill of Rights and the meaning of the supremacy of Parliament                                  
The revolution settlement, the supremacy of parliament and their relation to the rule of law                                   
The rise of the democratic principle                                                        
Summary—at the end of the English revolution                                      
Protection of rights and its compatibility with the democratic principle – France and America                            
Protection of Rights and the judicial power – France – the separation of powers doctrine                                                        
Protection of rights in the United States – judicial review                     
The American Bill of Rights – judicial review – the problem of justiciability                                                       
        
Epilogue – recent history                                                                  
     

Separatists and Levellers  
 
                                                        

The History of the Bar and the rule of law                                         

 

The common law concept of a fair trial                                              

 

The reign of law and the reign of terror – effect upon the fair trial in Elizabethan England    

                                                

Footnotes



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Synopsis


Some reflections on the rule of law and its interaction with the democratic principle, the major essay in this collection, examines the way in which rule of law both aids the democratic principle and comes into conflict with it. The rule of law subjects the instruments of power in the state – police and military – to law. It aids the democratic principle by regulating the allocation of power between executive and legislature and importantly controls by law the electoral process and the transfer of authority to a successful opposition. But the rule of law also protects individual rights and minorities and here it may be in conflict with the majority. The essay describes how the rule of law was first in the field, originating in medieval England, and then how parliament secured power and the democratic principle was articulated by Locke during the ‘Glorious Revolution’. Finally, it turns to more recent times and the endeavours in modern democracies to reconcile the two principles.It is in this connection that the separation of powers and judicial review are examined in some detail It also looks at a modern phenomenon – the rise of the new fascist-democracies, political systems which are electoral and majoritarian but deny individual rights.  Other essays in this Collection describe the history of an independent bar and its contribution to the rule of law. The final essay, The common law concept of a fair trial, defines the elements of the concept of the fair trial and describes the history of their development.




Some reflections on the rule of law and its interaction with the democratic principle

Introduction

The rule of law serves two purposes.  It restrains the exercise of power by subjecting it to pre-existing law and it allocates power among the organs of government. 

The first function requires the government to be subject to law and thus that the organs of power which enforce the law are to be subject to it.  So the police are controlled by law in the manner of their investigation – they cannot, without warrant, enter homes, seize things or documents, demand answers to questions or use force to secure information.  Nor can they detain persons except upon objectively defensible grounds and then only for a limited time.  Prosecution must be independent and only justifiable if there is a prima facie case in law and, equally, the prosecutor should not ordinarily fail to prosecute where there is such a case.  Judges, whose decisions are subject to appeal, must conduct trials according to law, giving effect to the presumption of innocence by recognised standards of proof and applying the criminal law according to its terms to offences which exist at the time they are alleged to have occurred. 

But the rule of law not only restrains the exercise of power.  It defines the way in which it may be exercised.  The doctrine of the separation of powers, insofar as it is a legal principle and not a mere political doctrine, exemplifies this.  In a democracy it is the law which defines the relative powers of legislature and executive and restricts them to their proper spheres.  It is the law which confines the major concentration of power in the community – the military forces – so that under law they acknowledge and give effect to the primacy of the civil power. 

All the incidents of the rule of law assume the ‘law’ to be a distinct body of rules independent of executive discretion, decree, regulation or rule and also that the executive which is subject to this body of law will enforce it, even against itself, when the courts have interpreted and declared the law in an unfavourable way.  For the executive to be subject to law in this way requires, in a practical sense, that the Judges cannot be dismissed at the will of the executive and that the judicial power can supervise the legality (although not the policy or implementation) of executive action. 

The function of the rule of law – in allocating power and regulating procedures is necessary for the effective operation of the democratic principle.  For the purposes of this essay the democratic principle will be taken to require that the will of every citizen – the consent of the governed – be genuinely represented in the making of laws.  In a constitutional democracy the democratic principle requires the legislative power to go to the people.  The Legislative’s legitimacy depends upon it demonstrably representing the will of the people.  It is the rule of law which enables the question whether elections are free and fair in accordance with law to be determined and accepted.  It is the rule of law which requires recognition of the Opposition and that if the Opposition should succeed in an election, the legislative and executive power in the State will become vested in it. 

In these respects the rule of law aids the democratic principle. 

But the other function of the rule of law, that of protecting the rights of the individual does not necessarily harmonise with the democratic principle.  Indeed, potentially they are in conflict as when dissenting minorities wish to associate, to assemble peacefully or exercise their right of free speech.  Then the function of the rule of law is to protect the individual from the democratic majority – who may be ‘the damned compact majority’, of which Ibsen spoke.  The judicial power will interpose law to protect minorities or the rights of the individual from executive action and, in some democracies, from legislation which conflicts with their rights as guaranteed by law. 

Just how far it is free to do this is at the nub of the issue this essay examines. 

We do not recognise how surprising the rule of law is or, at least, how surprising it is so unquestioningly accepted.  For it means that the institutions holding the actual power in the State and in some instances legitimised by representing the majority of people, are willing to defer to the law as declared by Judges who have no actual power.  It is evident that only universal acceptance of the legitimacy of the law can explain this willing subordination. 

In the discussion which follows we will  need to trace the historical development of the rule of law in England: the medieval recognition of the idea, the creation of the courts and their ultimate superiority over the Royal Prerogative.  In the case of the democratic principle we see first the establishment of Parliament as an institution, its combining with the Judges to defeat the claims of Prerogative and its ultimate supremacy at the Revolution.  Finally the idea of democracy was elaborated upon by Locke.  We need to note that within Lockean democracy was the idea of rights and thereafter there was a continuing problem of giving effect to the democratic majoritarian principle and protecting individual rights.  One method – judicial review, which involves subjecting this question to the rule of law – will preoccupy our discussion.  In France judicial review was eschewed as infringing the separation of powers doctrine.  In the United States that same doctrine was used to bolster the authority of the Judges to negative legislation contravening the Bill of Rights as interpreted by the Judges.  But this then raised a fundamental question – were the Judges in carrying out this task truly performing the judicial function?

 

Historical Development of the Rule of Law and the Democratic Principle in England

Our concern is with the interaction of two principles which legitimise the exercise or restraint of power – the consent of the governed and the rule of law.  We can only consider these principles by examining the institutions – Crown, Courts and Parliament – which embody them.  One difficulty in this is that it was only very gradually that these became sufficiently separate to embody the principles in any developed sense.  Parliament and the Courts emanated from a single source – the Crown – and even when separated were still umbilically connected to that original source.

Even today when we speak of an Act of Parliament we mean legally that it is an Act of the Queen in Parliament.  It does not become law until she has assented to it.  It is not a case of her approving a law.  It is simply not law without her assent.  She is an essential part of the legislature.

By a further development she will, in assenting, always act upon the advice of her advisers who by a related development are always members of parliament and able to command a majority in it – or in the lower House.

Each devolution of power took place gradually and only indistinctly from the previous step.  But after it had occurred something always remained at the source.  Whether devolution was to the Courts in the case of the judicial power or to Parliament in the case of the law making power, it involved in each case a subtraction of power from the King but only to the extent of the subtraction.  The residue remained as prerogative.*

But the historical difficulty we have been describing was not simply that of the evolutionary and indefinite development of separate institutions.  The principles themselves which they came to embody only developed gradually and in chronological steps which on occasions seem surprising in retrospect.  For long Parliament did not even purport to embody the democratic principle.  It was an advisory assembly to the King and only slowly was he obligated to accept its advice and even later, accept its laws.  We have to reach the 16th and 17th centuries before we can view it as a representative body in the democratic tradition and not finally until Locke was there any comprehensive statement of democratic principle itself.  Just as puzzling – because we tend to associate regal authority with absolute power – is that it was not until the 17th century we find the Crown claiming absolute authority by virtue of Divine right. 

The Crown and the medieval supremacy of law

  Historically in England it was the law – or the idea of law – which was first in the field to claim legitimacy.  Not just the Courts embodied an idea of the rule of law.  Shadowy as the concept may have been, the Crown had from the outset acknowledged the primacy of law or custom.  In England no medieval King claimed to be entitled to absolute power.  Of course a strong King often sought it and battled with the nobility to get it.  But he never claimed entitlement to it as the Stuarts were to do centuries later.

The idea of the supremacy of law was Germanic in origin.  Behind the authority of the elected tribal chief lay the fabric of custom.  We are speaking here of a very remote ancestor.  There was then no articulated notion of law and a very different meaning was attached to Kingship.  Custom at this time did not have a territorial operation.  It was the custom of the tribal or kinship group which the King might declare.  That was the extent of royal authority.  The Anglo-Saxon King was little more than a tribal chieftain.  “During the 500 years before the Conquest at least 150 ‘Kings’ reigned in different parts of England...”*

 “The old English King was not the source of law, even though it was his duty to enforce it as far as he could – which was often not very far.  Law was tribal custom, or folkright, to which the King was subordinate.”* 

Nor when feudalism followed the Conquest did the feudal Kings, Norman or Plantagenet, ever claim absolute authority.  That would have contradicted the essence of the feudal relationship.  This was a relationship of Lord to Man by which the subordinate owed homage whilst the superior was bound to afford protection.  Even the Conqueror, who insisted upon direct fealty rather than indirect homage, never challenged the feudal limitations upon Kingship. 

In the centuries following the Conquest, feudalism and communal custom were transformed into ‘national law’.  This process was not in any sense complete until the reign of Edward I (1272 – 1307).  The process was begun and completed by the Crown without it challenging at any point the supremacy of the national law which had been created.  No medieval English King was to assert the Roman principle stated by the jurist Ulpian in the third century – ‘quod principi placuit legis habet vigorem’:  that is ‘it was the law because it was the will and command of the Emperor’.*  A theory of absolute sovereignty had to await Hobbes in the 17th century.

Henry II (1154 – 1189) was chiefly instrumental in initiating the eventual dominance of the Royal Justice and in establishing a system of national law in the thirteenth and fourteenth centuries. 

In the twelfth century England was covered by ‘an intricate net-work of Local Courts’*  The Shire and Hundred Courts – the old moots – which went back before the Conquest had survived although they tended to have been taken over by feudal barons.  The feudal courts were essentially local.  Each Lord who had sufficient tenants had a right to his own Court.  The Lord’s Court was to deal with disputes between his tenants.  Such a right was an incident of feudal tenure.  As such it was hereditary. 

Such were the Local and Feudal Courts.  What of the King’s Courts at this time?  The Curia Regis or Royal Court originally advised upon all the King’s business or carried it out.  Judicial work was but one aspect.  At one level the King was like any other feudal Lord entitled to conduct a court for litigation between his own tenants in chief.  But, in addition, and in accord with the feudal theory, if a man felt he could not get justice in the Court of his immediate Lord, he could go to the Lord’s Court and so on until finally he would reach the Court of the King.  The process is not properly describable as an appeal but rather as a complaint to the King. 

Finally and importantly, the King’s courts exercised extensive original criminal jurisdiction.  Behind this lay the idea of King’s peace – at first confined to certain times such as the coronation or to certain places, such as the King’s Highway, but eventually covering the whole realm.  Any breach of the King’s peace was a matter for the King and thus a matter exclusively for the King’s courts.

The judicial work of the Curia Regis began to expand and become more specialised.  Henry I (1100 – 1135) commenced the practice of sending itinerant Justices to the counties.  These visits were at first mostly administrative.  The Justices would examine records, check taxes and generally inspect the local administration.  By the thirteenth century this administrative function  had ceased but the Justices continued to visit the counties in order to try cases. 

Throughout this period the King’s Courts remained in competition and rivalry with the old feudal and communal courts.  But by the thirteenth century they had all but superseded them.  Apart from the advantage of their supervisory authority over feudal courts, the Kings’ courts attracted jurisdiction specifically through two procedures:

(a) Originally criminal process was not initiated by the State.  The old appeal of felony was in the nature of a private accusation.  Such an accusation was not resolved by proof as we would understand it.  Various methods were used: the two main methods for determining guilt were compurgation and ordeal, the latter applying in graver offences.*  In addition there was trial by battle.*  In the Assize of Clarendon 1166 Henry instructed his Justices on the way in which persons were to be presented for trial.  Twelve knights or, failing knights, twelve good and lawful men in each hundred should be sworn to present for trial those persons who, by common report of the neighbourhood, had been guilty of a felony.  This method soon became more popular than that of the private accusation.  At first it related only to presentment for trial.  But in 1215 the Pope forbade priests from taking part in the Ordeal.  This prohibition applied throughout Europe.  As the presence of a priest was essential for the Ordeal the prohibition meant a new method of the trial itself had to be found.  Confronted with this problem the Justices turned to the Jury of presentment introduced by the Assize of Clarendon and in adopting it recommended that accused persons be not merely presented for trial by Jury but actually tried for the offence by it. 

This new means of trial found favour over the older methods but was only available in the Kings’ Courts.  This was so not only in criminal matters.  For instance, the Jury became available in the Kings’ Courts in the case of disputes over land. 

(b) The King’s Courts had one other immense advantage and this was the Royal Writ procedure which Henry had introduced.  A writ was a command by the King to the defendant to appear in court to answer a claim.  The writs were issued by the Clerk in Chancery.  The clerks originally devised certain forms of action and no writ would be issued unless the claim fell within a designated form of action.  These forms of action which could only be pursued in the King’s Courts extended the range of possible claims particularly in the case of land.  In fact Henry II had decreed that no man need answer for his freehold without a royal writ against him. 

In this way the King’s courts gradually subdued the local jurisdictions of the feudal and communal courts.  In time the royal courts were separated from the Curia Regis and each was given a specialised jurisdiction.  The Court of Exchequer was the first: then the Court of Common Pleas which dealt with disputes between subject and subject, and, finally, the King’s Bench which dealt with all matters in which the King’s interests were directly involved.  The Court of Common Pleas ceased to follow the Curia Regis and the King.  Magna Carta required it to sit in a fixed place, Westminster.  The King’s Bench continued to follow the King but eventually separated itself from any executive functions. 

And so by the end of the thirteenth century “the King’s courts have been fast becoming the only judicial tribunals of any great importance... the local courts were being starved... of his own free will the small freeholder passed by his Lord’s court and the county court on his way to the Great Hall.  He could there obtain a stronger and better commodity than any that was to be had elsewhere.  A justice which, as men reckoned in those days, was swift and masterful; he could there force his adversary to submit to a verdict instead of finding that his claim was met by some antique oath with oath-helpers.  The voice of the nation, or what made itself heard as such, no longer, as in 1215, demanded protection for the seignorial courts... it is the King’s business to provide a remedy for every wrong...”.* 

The law which the King’s Courts applied was now the law of England.  ‘Royal justice had made the law national’ although it is still somewhat anachronistic to speak of the law in terms of the nation state. 

To recapitulate and summarise the reasons for this:

·          Royal Writs and the new Forms of Action issued by the clerks of Chancery and given effect by the Judges were available throughout the land but only in the King’s Courts. 

·          National custom had become ‘law’.  “The custom of the King’s Court is the custom of England and becomes the common law...”*  Custom became legally obligatory not just because it was custom – a state of fact – but because it was recognised by the Judges as law.  It would not be recognised if it were in conflict with the common law.*  Custom, as Coke was to say, had become part of the ‘common law’.*  That is, it had to conform with the judge-made law through the still evolving doctrine of precedent.

            Purely local custom was still given legal effect if proved as fact.  But the conditions of proof were stringent.  The custom must be proved to have existed from time immemorial which was fixed as the first year of the reign of Richard I, 1189, by analogy with the period of limitation specified in the Statute of Westminster, 1275, for the levying of Writs of Right.  “On the whole, the local variations from the general law of the land are of no great moment.  We can no longer mark off the Danelaw from Mercia and Wessex; we hear of little that is strange from Cornwall and from Cumberland.  The quiet central power has greatly subdued all things unto itself.  It has encountered no resistance.  No English County ever rebels for the maintenance of its customary law.* *

·          Development of the common law into a systematic body of law independent of custom and royal decree: The English doctrine of precedent was still undeveloped and had not attained its final, imperative effect.  Nor did it do so for centuries.  But the process had begun.  Bracton, the great thirteenth century writer referred to 500 cases in his work.  The Year Books, which were records of cases, began in the latter part of fourteenth century and continued until 1545.  By 1469, as Allen has said, Judges accepted stare decisis “not just as part of the forensic routine but were building a kind of philosophy upon it”.*  In the twelfth and thirteenth centuries attempts were made by writers to classify and systematise English law.  Glanvil, Richard I’s Justiciar, who died at Acre (1190) whilst on the Crusade, and Henry Bracton, were the authors of legal works.  Bracton’s de Legibus, published in 1258, was of immeasurable importance historically. 

·          The final factor in the flowering of the common law into an independent body of law were the Judges themselves.  They had ceased to be administrators or ecclesiastics.  They were men learned in the law and would come to be appointed from the Bar.*  This is explained more fully in my later essay, The History of the Bar and the Rule of Law.

Bracton defined the English medieval conception of the King’s relationship to the law.  “But the King himself ought not to be subject to men, but subject to God and the law.  For the law makes the King let the King therefore attribute to the law what the law attributes to him, namely dominion and power, for there is no King where will and not law rules.”*

The King remained with feudal privileges and feudal restraints.  The King still retained the Royal Prerogative which thereafter was the legal source of royal power.  The Prerogative had two aspects.  The King was feudal Lord and also Head of State.  As feudal Lord in whom all land was ultimately vested the King had plenary rights.  Additionally, he had certain rights, powers and privileges over and above these by virtue of his position as Head of State.  Like other Lords, the King could not be sued in his own Courts.  There was thus no court in which he could be sued and so whilst Bracton could say the King was beneath the law there was, by virtue of his prerogative, no practical way the law could be enforced against him.  Because of this anomaly or contradiction, a special remedy was devised in the fourteenth century, the Petition of Right.  In form it was a petition only but a claim that the King had committed a wrong was referred to Commissioners who would determine the facts and if any question of law arose would refer that issue to the Courts which the King would graciously allow to determine the issue as between himself and his subjects.

There were also feudal restraints upon the King.  Where a King flagrantly disregarded the law it was legitimate to depose him altogether as happened to Edward II (1307) and Richard II (1377).  Under feudal theory, the vassal had the right to defy the Lord who failed to meet his obligations arising from the status relationship of services between them and the right to resist a lawless monarch was no different.  “The King was guardian of the national custom whose claim to obedience was nullified if he failed to fulfil his trust.”*  By its nature however, this was an irregular event resulting from rebellion.  It occurred only when the State was in crisis.  To modify this kind of difficulty Magna Carta appointed a committee of 25 Nobles to levy distraint upon King John in the event of his disobedience of its terms.

The Rise of Parliament and the Crown – the Royal Prerogative

The Anglo-Saxon Kings promulgated laws with the counsel and consent of a national assembly known as the Witanagemote.  The feudal Kings which followed also held a great council comprising their immediate vassals.  Some at least of the Norman and Plantagenet laws were passed with the counsel and consent of such an Assembly.  There was nothing mandatory about this but there was a developing practice that laws emanating from the King would be published with the counsel and consent of the National Assembly. 

We have little idea of the constitution of these National Assemblies until the Great Charter (1215).  The twelfth clause provided that no scrutage or aid shall be imposed save by the common counsel of the realm (to which there were three exceptions not material to this study).  The fourteenth clause provided that, “for the purpose of having the common counsel of the realm we will caused to be summonsed by our sheriffs and bailiffs all those who hold of us in chief”.  This Assembly was still a feudal Assembly extending beyond the great nobles but only to tenants in chief. 

In addition to the National Assembly there was the Curia Regis which advised the King on day to day administration.  The Curia Regis sought information from the Shires for administrative purposes.  This would be provided to it by four lawful knights representing each Shire.  Sometimes, in addition to information, they provided advice.  When, in 1265, Simon de Montfort sought wider political support in his struggle against the King he drew upon this practice and summonsed, in the King’s name, two knights from each Shire and burghers from the various boroughs to meet with his nobles as part of a great Assembly.  It was not a Parliament but it was the first time knights of the Shire and burghers had simultaneously attended a meeting of this sort.

This was taken up by Edward I (1272-1307).  The first Parliament in anything like a  modern sense was convened by Edward in 1295.  It comprised the three estates and thus included the Commons.  This Parliament did not of course reflect, let alone embody, the democratic principle but broadening the representation of advisors in this way formed a precedent for the future.  Henceforth, it was accepted that the sovereign power of the realm was vested in a King and a Parliament after this model. 

Statutes and Ordinances – Statutes and the Common Law

In the 14th century it became accepted that the King could not revoke or alter statutes.  In 1322 a statute was passed which declared that the laws of the kingdom should be made by Parliament.*  It was not though suggested that this took away the concurrent power which the King possessed by virtue of the royal prerogative to make laws.  That this power existed was acknowledged long after the model Parliament of 1295.  What was left undefined was the relationship between these laws, which were described as ordinances, and statutes made by Parliament.*  This led to disputes with Richard II and his Council.  We find in 1389 the Commons praying that the Council would not make ordinances contrary to statute and the common law.  The relationship between statutes and ordinances was not finally settled at this time but from the downfall of Richard II the primacy of statutes was generally accepted.  At the end of the fourteenth century Sir John Fortescue who had been Chief Justice of the Kings Bench felt able to write that, “nor does the King of England, by himself or by his Ministers, impose tallages, subsidies or any other burdens whatever on his subjects, nor change their laws, nor make new ones without the concession or assent of his whole realm expressed in Parliament.”*  But Sir John’s statement did not go unchallenged in later centuries.

The relationship of statutes to the common law requires some preliminary elucidation of what we mean or, more precisely, what was then meant by a statute.  Today we think of a statute as a formal law made by the Queen in Parliament.  That was not how it was first thought of.  Indeed, royal commands generally were not originally thought of as making new law.  Fundamentally, the king was not doing anything more or anything different from the old Anglo-Saxon king in authoritatively declaring custom.  We thus have some difficulty in characterising twelfth and thirteenth century statutes.  The Assizes of the twelfth century “seem to be regarded as part of the unenacted ancient law”.*  And it was only from Magna Carta (1215) and the Statute of Merton (1236) that statutes came to be distinguished from other royal commands.  Only more gradually was this ‘royal’ legislation looked upon as distinct from the common law and as capable of superseding it.  In part this was because the common law itself appeared to be declaratory and was not recognised as distinct from custom.  It was also because of the institutional fusion of the Courts with Royal administration.  Thus in the thirteenth and fourteenth centuries judges could take an independent line with statutes even refusing to apply them.*  On some occasions they put their own construction on the statute contradicting the words used because they thought they knew the intent of the Statute especially when they had taken part in drafting it. 

During Edward I’s reign petitions were addressed to the Commons to intercede with the King asking him to procure changes in the law.  In his reign there were a series of statutes that forced a clearer definition of the relationship with the common law beginning in 1275 with the Statute of Westminster I; followed by the Statute De Donus Conditionalibus (1285); the Statute of Quia Emptores (1290); and the Statute of Westminster II (1285).  The Statute of Quia Emptores granted at the urgent demand of the Barons was probably the first Statute to change a rule of the common law expressly.* 

The main statute to influence and curb the common law was the Statute of Westminster II (1285).  Formerly an official of the Crown determined whether writs should be issued.  The importance of this writ issuing power was that it conferred authority to create new forms of action and therefore new rights as well as new remedies.  “Men had learned the power to invent new remedies is a power to create new rights and duties, and it is no longer to be suffered that the Chancellor and judges should wield this power.”* 

The Statute of Westminster II forbade this, stating that the only new writs which might be issued were those which could be issued “in consimili casu”, “in a similar case”.  This limited the writ making power substantially.  Restraint of the King’s writ-making power had been a central objective of Parliament and the enactment of the Statute of Westminster II marked one of Parliament’s first victories against the Crown.  The power had been basic to the common law in its formative stages.*

From Edward I’s reign, the judges began to interpret statutes more strictly.  They began to recognise that statutes emanated from a separate but authoritative source external to themselves.  Moreover legislation was created corporately.  It did not come from a King or other individual.  The courts were forced to look at the objective words of the Statute and not to what may have been intended. 

But at no point was it ever questioned that it was for the judges and only the judges who were to construe the meaning of statutes.  Theoretically it would have been possible for Parliament to have insisted upon having authority over the meaning of its own statutes.  This never happened and it proved fundamental to the English conception of the rule of law.  Even after the Revolution Settlement of 1688 had established the supremacy of Parliament it was this power of interpretation which enabled the judges to retain an independent authority.  As Alan Harding perceptively pointed out in his A Social History of English Law* “The chief restraint upon statute was not a political but a logical one; not rival forms of legislation, but the fact statutes had to be interpreted by Judges, the most detailed statutes can talk in abstract terms about classes of situation.”  But it was the judges who had to determine the application of the Statute. 

One other important consideration in the relationship of statutes to the common law was that Parliament simply left private law to the common law.  As Maitland pointed out*  “For ages after Edward’s day King and Parliament left the private law and civic procedure, criminal law and criminal procedure, pretty much to themselves.  Piles of Statutes are heaped up – Parliament attempts to regulate all trades and professions, to settle what dresses men might wear, what food they may eat – ordain that they must be buried in wool, but we may turn page after page of the Statute book of any century from the fourteenth to the eighteenth, both inclusive, without finding any change of note made in the law of property or the law of contract or the law about thefts or murders, or the law as to how property may be recovered or contracts may be enforced, ...”

Crown, Parliament and the common law at the end of the Middle Ages

  At the end of the Middle Ages certain things had become clear in the relationship between Crown and Parliament.  Development of Parliament ‘into a representative assembly in a positive sense in the thirteenth and fourteenth centuries’ had been ‘an extraordinary phenomenon’.*  The King could not impose a direct tax except with the assent of Parliament.  The assent of Parliament was required for every new law.  Nor could the King repeal a statute made by Parliament.*  A Parliament needed to include the Commons – representatives from the freeholders of each county, the Burgesses of many towns and of smaller places. 

Nevertheless the King’s powers remained considerable even within the area of law making.  It was for him to summon or prorogue Parliament.  He could suspend its sessions.  He could effectively influence its membership by determining whether boroughs could send elected representatives to the Commons and whilst parliament could alone enact statutes the King’s assent was necessary if they were to become law. 

Similarly, the King’s relationship with the law had become tolerably clear.  He appointed the judges of the Royal Courts.  They had ceased to be ecclesiastics and by 1300 a Bar had been established from which Edward I began to appoint professional Judges.  The appointment of Judges did not prevent the King from sitting although he did so decreasingly.  But the Judges, if they had thought about it at all, would probably have said they were delegates of the King.  Nevertheless, neither they nor the King when sitting, would have contemplated applying anything other than the law of the land.

There was thus no real tension at the end of the Middle Ages about the legitimacy of power – who should exercise it and how it was to be exercised.  Stated simply, power was vested in the King or in persons appointed by the King but that power had to be exercised according to Law.  No King, with the exception of Richard II, would claim absolute power or that the law was simply what he said it was.  For making and acting upon such a claim Richard II was deposed.  Magna Carta does not derogate from this.  It exemplifies it for it was enforcing the law, as an admitted principle, against the King. 

England was becoming a ‘nation’.  Administration was becoming more complex.  The relaxed medieval relationship between the centres of power eroded.  Where power was devolved there was a gradual evolution of practice into right, on the one hand, and obligation, on the other. 

The Sixteenth and Seventeenth Centuries’ Parliament, the Divine Right of Kings and the Prerogative

Parliament claimed the exclusive authority to make laws.  But upon what ground did it make that claim?  In form its authority was derived from the King.  One is almost startled to find in the middle of the sixteenth century a new principle, the democratic principle, being stated in something like its modern form.  In De Republica Anglorum, written in 1562-6 and published in 1583, we find Sir Thomas Smith, who later became one of Elizabeth’s Secretaries of State saying:  “The most high and absolute power of the realme of England consisteth in the Parliament – for everie Englishman is intended to be there present either in person or by procuration and attornies, of what pre-eminence, stage, dignitie or quality soever he be, from the Prince (be he King or Queene) to the lowest person of England.  And the consent of Parliament is taken to be everie man’s consent.” (Italics added).

Of course such a principle was not yet universally accepted and nothing like it would be until after the civil war and the Glorious Revolution, a century or so later.  But it shows how far Parliament’s claim to the legitimate exercise of law-making power had come. 

This incipient claim to legitimacy was now confronted by a new theory of kingship: the Divine Right of Kings.  This revolutionary principle directly contradicted the medieval basis of kingship that the King was subject to law.  It admitted no independent authority in Parliament. 

Not so long after Sir Thomas Smith had written his work, James VI of Scotland, James I of England (1566-1625), published a work, Treu Law of a Free Monarchy of the Reciprock and Mutual Dutie Betwixt a Free King and his Natural Subjects.*  In it he maintained that just as it was blasphemous and highly contemptuous to dispute what God can do it was equally infamous to dispute what a King can do.  “According to this theory (the Divine Right of Kings) it is not alone the office of the King that is sacred, nor the authority exercised through it, but the person of the King is sacred owing to the fact that he is God’s specially appointed representative... Rebellion for any reason against the monarchy built upon those principles was impious and sacrilegious.*

Although new to England, this theory would seem to have been a derivation of the old Roman principle of the law as the will of the Emperor which had been passed on to the Byzantines.*  The theory swept through Europe with the rise of the Nation State.*  The doctrine of the Divine Right of Kings was first advanced specifically by Jean Bodin in the sixteenth century in his De La Republique.  The English philosopher Thomas Hobbes gave it a more sociological explanation in The Leviathan which was published during the Civil War.  The people, he said, had decided to “conferre all their power and strength upon one Man... and he that carryieth this person is called sovereigne and said to have sovereigne Power and everyone besides his subject.”*

It followed from this that judges were completely subordinate to royal authority.  This was explicitly stated by Lord Ellesmere, Lord Chancellor during James’ reign and later by Lord Bacon – in his Essay on Judicature.  Lord Ellesmere said ‘Rex est Lex loquens’.  ‘The King is the Law Speaking’.  The Judges are but delegates under the King.  In his Essay on Judicature Bacon said, “Let Judges also remember, that Salomon’s Throne was supported by lions, on both sides; let them be Lions, but yet lions under the throne; being circumspect that they doe not checke, or oppose any points of soueraigntie.”*

The theory also held a different view of the relationship of Prerogative to Parliament.  Parliament was subject to it.  Parliamentary privileges were not enjoyed as a right but by the tolerance of the Crown.*  Above the reach of Parliament stood prerogative.  The logic of the theory was set out by Finch CJ in the Ship-Money case* “No Act of Parliament can bar a King of his regality... therefore Acts of Parliament to take away his Royal power in defence of the Kingdom are void; they are void Acts of Parliament to bind the King not to command the subjects, their person and goods, and I say their money too.”

The seventeenth century constitutional struggles revolved around this claim to omnipotence by the King.  In practical terms this became a struggle between prerogative, on the one hand and, the law basing itself upon Bracton, and Parliament basing itself upon the democratic principle, on the other. 

The Prerogative and the Law

The judicial power itself had also derived from the prerogative.  In the fourteenth century the common law courts, as we have said, broke off and became separate bodies from the Curia Regis.  But this did not mean the judicial power of the King and his Council were exhausted.  The King still received complaints of wrongdoing and petitions for justice.  The King, as the fountain of justice, could always give redress to his subjects.  These petitions came to be directed to the Chancellor.  The complaint in effect was that the common law courts had unjustly denied a remedy and it would ask the Chancellor, in good conscience, to allow one.  Eventually this led to a new court, the Court of Chancery – presided over by the Chancellor.  Our modern law of Equity was the result.

But there were other prerogative courts.  The Court of Star Chamber appears to have been split off from the King’s Council so as to handle judicial as distinct from executive business.  In 1487 a statute enabled Henry VII to appoint a number of persons belonging to the Privy Council to hear prescribed offences.  For some time before this the King’s Council had been exercising a penal jurisdiction freed from the procedures of the common law courts.  This was now formalised by the Act.  The Court of Star Chamber first made its appearance following that enactment.  Its criminal jurisdiction was extensive but was concerned mainly with riots and breaches of the peace.  Other criminal offences which it created were bribery, conspiracy, attempts and forgery.  These offences all emanated from the Star Chamber.  As such it made a notable contribution to our criminal law but it became notorious for its inquisitorial methods and extremely harsh sentences.  The other prerogative court which came into contest with the common law courts was the Court of High Commission.  It was an ecclesiastical tribunal which was established to uphold the Act of Supremacy and the Act of Uniformity in proceedings against recusants and non-conformists.*  The Commission had been established by an Act of 1557.  Appointed to it were bishops and Privy Councillors.  It disciplined the clergy and punished certain lay offences as had fallen within the jurisdiction of the old ecclesiastical courts which, before the reformation, had been responsible to the church and ultimately to the Pope.  In those days the distinction between the ecclesiastical and the secular was far from clear-cut because so much fell within the governance of the church – marriage, divorce, baptism, wills as also such offences as perjury and defamation.  In James’ reign the Commission became a Court.  Like other prerogative courts it employed the ex officio oath.  In effect the ex officio oath compelled a person questioned to answer on oath.  It was used in Chancery and in the Star Chamber and in those courts did little harm as the defendant was shown a bill of charges.  Indeed the cheapness and speed of this procedure made it relatively popular as against the more complex accusatorial process before a jury available at common law.  But it was a very different matter when, as was often the case before the Court of High Commission, the question concerned not facts but matters of opinion, religion, heresy and a person’s private belief.

During 1607 the Commons in Parliament sought a joint  opinion from Coke and the Chief Justice of the King’s Bench on the legality of the oath ‘ex officio’. 

Coke in his opinion replied, “no man ecclesiastical or temporal shall be examined upon the secret thoughts of his heart and of his secret opinions.  And the defendant must have, as in the Star Chamber, and Chancery, the bill (of charges) delivered unto him, or otherwise he need not answer to it.  Laymen, for the most part are not lettered, wherefore they may easily be inveigled and entrapped and principally in heresy and errors of faith.”

During 1608 prohibitions directed against Court of High Commission seeking to prohibit ex officio oaths and other matters flowed from the Court of Common Pleas.  The writ of prohibition was an ancient means by which a court prevented its jurisdiction from being usurped by another court or authority.  It was a preventative remedy applied to prevent the challenged proceedings from being concluded.  It had been the traditional remedy available against ecclesiastical courts when they strayed too far into lay matters.

Archbishop Bancroft who presided over the Court of High Commission became alarmed at the number of prohibitions issuing from the Court of Common Pleas.  He approached the King. 

In those days meetings of the Privy Council took place on a Sunday mornings.  On Sunday November the 13th James convened a meeting of judges and ecclesiastics, which took place at Whitehall.

There then followed the dramatic encounter between Coke and the King who each personified the conflict between the Crown and the rule of law.

The course of discussion as recorded by Coke and others, was as follows:-

Coke told the King that, “ecclesiastical courts had undoubted authority to proceed, so long as no temporal matters were involved.  But let a temporal issue enter into the case, and it must be transferred to the common law courts even in causes of a clearly ecclesiastical nature.”  The King broke in and said, that “common law Judges were like Papists who put their own interpretation upon scripture and demand that it be received, unquestioned.” 

Somebody at the meeting (it is not recorded who) brought up the King’s own powers saying that “in cases where there is not express authority in law, the King may himself decide it in his Royal person; the Judges are but delegates of the King, and the King may take what causes he shall please from the determination of Judges and may determine them himself.”  At this point Archbishop Bancroft intervened in support of this, to say that “this was clear in divinity, that such authority belongs to the King by the Word of God in the scripture.” 

Coke responded to this saying that “that the King in his own person cannot adjudge any case, either criminal – as treason, felony or betwixt party and party; but this ought to be determined and adjudged in some court of justice, according to the law and custom of England... The sovereign may sit in Star Chamber – and this appears in our books – but only to consult with the Judges and not to judge.”

The King interrupted to tell Coke that “he spoke foolishly”.  “Himself, the King, as supreme head of justice would defend to the death his prerogative of calling Judges before him to decide disputes of jurisdiction.  Moreover he would ever protect the common law.”  “The common law”, Coke interjected “protecteth the King”.  “A traitorous speech” James shouted.  “The King protecteth the King.  The King maketh Judges and Bishops.  If the Judges interpret the laws themselves and suffer none else to interpret, they may easily make, of the laws, shipmen’s hose.” 

At this point James shook his fist.  As Coke recorded it: “then the King said that he thought that the law was founded upon Reason and that he and others had Reason as well as the Judges.  To which it was answered by me, that true it was that God had endowed his Majesty with excellent science and great endowments of nature.  But his Majesty was not learned in the laws of his realme of England; and causes which concern the life, or inheritance, or goods or fortunes of his subjects are not to be decided by natural reason but by artificial reason and the judgement of law, which requires long study and experience before that a man can attain to the cognizance of it; and that the law was the golden metwand and measure to try causes of the subjects, which protected his Majesty in safety and peace: with which the King was greatly offended, and said that then he should be under the law, which was treason to affirm (as he said).  To which I said, that Bracton sayeth, quod rex non debet esse, sed sub deo et lege – that the King should not be under man, but under God and the law.”

A great scene ensued.  One description of it was that, “His Majesty fell into high indignation as the like was never knowne in him, looking and speaking fiercely with bended fist:” “the Lord Coke perceaving fell flat on all fower: humbly beseeching his Majestie to take compassion on him and to pardon him if he thought zeale had gone beyond his dutie and allegiance.”  This is very likely to be true.  It was that or a cell in the Tower.  At all events it seems that Robert Cecil, a kinsman of Coke’s and a favourite of James, intervened.  The altercation seems though to have made little difference.  Next day James left to go deer hunting.  On the same day a new prohibition went out to the High Commission from the Court of Common Pleas under Coke’s seal. *

The Star Chamber was abolished by the Long Parliament in 1641 and the Court of High Commission was abolished by statute in the same year and declared illegal by the Bill of Rights. 

The Prerogative and Parliament

  In 1539 during Henry VIII’s reign the Statute of Proclamations was enacted giving the King wide powers to legislate by Proclamation without reference to Parliament – proclamations having replaced ordinances as the description of this form of legislation.  But the Statute safeguarded the common law, Acts of Parliament and rights of property by providing these were outside the scope of Proclamations.  It also precluded the death penalty being imposed for breach of a Proclamation.  The Statute of Proclamations was repealed in 1547 but notwithstanding that, both Mary and Elizabeth continued to make Proclamations.  James I issued proclamations freely.  In 1611 Coke was consulted on the legality of Proclamations by the Council along with three other Judges who were added at his request.  Their consideration in the Case of Proclamations* led to the following propositions.

·      The King by his proclamation cannot create any offence which was not one before; for then he might alter the law of the land in a high point; for if he may create an offence where none is, upon that insues fine and imprisonment;

·        The King hath no Prerogative but what the law of the land allows him;

·        But the King for the prevention of offences may by proclamation admonish his subjects that they keep the laws and do not offend them upon punishment to be inflicted by law; the neglect of such proclamation aggravates the offence;

·        If an offence be not punishable in the Star Chamber, the prohibition of it by proclamation cannot make it so.”

So far as proclamations were concerned that was the law, but, as long as the Star Chamber existed and it was willing to enforce proclamations, nothing could be done in a practical way to prevent them and Charles I proceeded to issue more proclamations than his father.  It was only with the abolition of the Court of Star Chamber by the Long Parliament by an Act of 5 July 1641 that the power to enforce proclamations came to an end.

The Case of Proclamations was of particular importance in making clear that proclamations were not an alternative source of law-making to parliamentary enactments but were at all times subject to them.  It was of more general importance in establishing a principle that the King had no prerogative but that which the law allowed him.*

The next struggle was over taxation.  Parliament had established paramountcy over the imposition of direct taxation but both James and Charles resorted to levying indirect taxes.

At first they were successful in the courts.  In Bates Case* John Bates refused to pay a duty on imported currents imposed by the Crown on the ground that its imposition was contrary to a Statute of Edward III which prohibited indirect taxation without the consent of Parliament.  The Court of Exchequer decided in favour of the Crown.  The King could impose whatever duties pleased him for the purpose of regulating trade.  With this decision James proceeded to levy duties on a range of goods.  In 1610 Parliament passed a formal resolution the King could not levy duties without the consent of Parliament.

In the great Ship-Money Case* Charles sought to levy a tax for the purpose of supplying ships in time of national danger.  Buckinghamshire was assessed at a ship of 450 tonnes, a sum of £4,500.  The share of the tax which fell to Hampden was very small and he was a very wealthy man but he refused to pay.  The Crown conceded that the subject could not be taxed in normal circumstances without the consent of Parliament but that the King could do so in time of national emergency and the King was the sole judge of whether such an emergency existed.

The Court upheld the use of the prerogative power on this ground.  This too was effectively reversed by the Long Parliament.  The whole issue of taxation was finally and conclusively put to rest in favour of Parliament by the Bill of Rights in 1689: “that the levying of money for use by 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.”

The next retreat by prerogative in favour of Parliament concerned the dispensing power.  In the seventeenth century it was still accepted that the King was entitled to dispense with the application of statutes.  So long as there was such a power and it was undefined it was a threat to the supremacy of Parliament.  In Thomas v Sorrell* it was held that the dispensing power was an inseparable prerogative of the King enabling him to dispense with penal laws in particular cases and that the King was the sole judge of the reasons for doing so.  James II proceeded to set aside statutes very freely.  This issue too was resolved by the abolition of the power in the Bill of Rights in which it was provided “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”. 

The Revolution Settlement, the Bill of Rights and the meaning of the supremacy of Parliament

  The historical details of the revolution do not concern us.  James II fled London on 16 December 1688 dropping the Great Seal in the Thames as he did so.  This was taken by the subsequent Convention Parliament to be an abdication.  On 21 January 1689 the Convention Parliament comprising the three estates of the realm offered the Crown to William and Mary which they accepted together with the Declaration of Rights which was subsequently embodied in the Bill of Rights and enacted by the Convention Parliament.  As we have seen Parliament abolished the dispensing power of the Crown and its claim to levy taxation. 

The Revolution Settlement established the supremacy of Parliament.  Before spelling out the implications of this we should look more closely at what supremacy means.

It meant that Parliament could make or unmake any law.  The Bill of Rights, for instance, is a statute and, in point of law, could be amended or repealed by a later Parliament in the same way as any other statute.  There is thus no Act of Parliament which could not be repealed.  No Parliament can bind its successor otherwise the supremacy of succeeding Parliaments would be limited.  We must though define what is meant by Parliament.  Parliament is and always was composed of three elements: the Queen, the House of Lords and the House of Commons and each of these elements must record its assent to a Bill before it becomes an enactment.*

It followed from all this that enactments of parliament were superior to the common law.

In 1610, Coke had decided otherwise in the case of Dr Bonham and although the Revolution put an end to the authority of that case in England its underlying philosophy remained of immense constitutional importance.  Dr Thomas Bonham was alleged to have been practising medicine without a certificate from The Royal College of Physicians.  The College Censors arrested him.  Bonham brought action for false imprisonment.  The Censors relied upon their College Statute which enabled them to ‘regulate all London physicians and punish infractions with fine and imprisonment.’

But Coke noted that the Statute gave the Censors one half of any fine collected.  Accordingly they would benefit from, and have an interest in, any case in which they took action.  Coke cited the maxim of the common law that ‘no man ought to be judge in his own cause’.  He added that, “And it appears in our books that in many cases the common law will control Acts of Parliament and sometimes adjudge them to be utterly void; For when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such Act to be void.”  Not in England but in America this was to reverberate with the revolutionaries.  In 1765 James Otis contended the Stamp Act to be void.  The Massachusetts Assembly declared the Act “against the Magna Carta and the natural rights of Englishmen, and therefore, according to Lord Coke, null and void.”  In England, however, apart from the dicta from Lord Holt, in the early 18th century, it was never seriously suggested after the Revolution that the common law could ‘control’ statutes.

The Revolution Settlement, the Supremacy of Parliament and their relation to the Rule of Law

  Throughout the 17th century the lawyers were in alliance with Parliament.  Parliament was never feared as a possible usurper of common law rights.  To the contrary, it was the protector of rights from encroachment by the Crown.  It was, after all, Parliament which had enacted the Bill of Rights and it was Parliament which had earlier, in 1628, enacted the Petition of Right.  That Petition was presented by Coke who had become a member of parliament, thus symbolising the alliance between the parliament and the common law.

Parliament often completed what the lawyers had begun to do or failed to do.  Thus when in Darnell’s case* the Court of King’s Bench refused bail, the Petition of Right in effect reversed that decision.  In 1679 and later in 1817 Parliament ensured that the writ of habeas corpus would become and remain the bulwark of an Englishman’s personal freedom.  Indeed the abolition of the Star Chamber Act 1641 ensured that habeas corpus was available against the King and Council.  And although Coke had, in Edward’s case, ruled against the High Commission’s attempt to attempt to coerce answers on oath* and, although in the case of Felton* “all the judges being assembled at Sergeant’s Inn, in Fleet Street, agreed in one that he ought not by the law to be tortured by the rack, for no such punishment is known or allowed by our law”, it was only with the abolition of the Star Chamber by the Star Chamber Act that torture was finally abolished in England. 

As Holdsworth put it, “the supremacy of the existing law, so long as parliament saw fit to leave it unaltered was guaranteed by the powers of parliament, and to parliament they (the common lawyers) could safely leave the task of maintaining this position.”*

There was, however, another and substantial reason why common lawyers could accept parliamentary supremacy without fear of legislative invasion of individual rights. 

The Glorious Revolution belonged to a period before our constitution came to embody the principle of ministerial responsibility.  At that time Parliament was not necessarily controlled in a practical sense by the Crown.  By the 19th century however the King or Queen were obliged to accept the advice of his or her ministers so long as they retained the confidence of parliament – that is retained a majority – and the executive could control legislation.*

The position remained* that in England Parliament could, on any matter, displace the law.  Theoretically, the Parliament at Westminster could repeal the Bill of Rights at any time.  It could override any rights ordinarily conceded to the individual by the common law.  Thus, it could suspend the guarantee of habeas corpus.  It did so expressly in 1794 during the Revolutionary wars, and by regulation during the first and second world wars.*  In 1942, Liversidge v Anderson Lord Atkin in a famous dissent spoke against the emergency powers of detention but of necessity his dissent was based only upon the construction of the relevant regulation.  At no point did he suggest that the courts could override the will of parliament.*

In one very important respect the Revolution Settlement enhanced the position of the judges.  Their tenure was guaranteed.  James II had dismissed a Chief Justice of the Common Pleas, a Chief Baron of the Exchequer and two Puisne Justices.  As a rule judges had held their offices during the royal pleasure.*  But by the Act of Settlement* judges became removable only for misbehaviour upon an address of both Houses of Parliament.  In addition their remuneration was fixed.* 

The judges preserved their independent authority through their exclusive power of interpretation of Statutes.  The significance of this power can easily be underestimated.*  The authority to interpret is uncontrolled except of course by future legislation replacing the rule of law upon which a court’s decision is based.

Thus courts have been left more or less at liberty to determine the rules of interpretation which they will apply.  If the courts had seen themselves as a mere adjunct of the legislature, the basic rule would inevitably have been that the courts only function when applying legislation would have been to find out parliament’s intention and give effect to it.  With that as the purpose they would have sought the aid of parliamentary debates and parliamentary committees which considered the legislation.  And, indeed, in an earlier period when Parliament was less strong, the courts did seek to ascertain the ‘mischief’ with which the legislature sought to deal and interpret the Act accordingly.*  But that is not what the courts did following the Revolution.  Reference to the proceedings in parliament was rigidly forbidden.  The rule in Heydon’s case remained but with a subordinate status.  The primary rule of interpretation was to ascertain what the words mean.  As Mr Justice Holmes described it, “we do not enquire what the legislature meant, we only ask what the statute means”.  A statute is expressed in words.  Words, by their nature, are frequently indefinite in meaning.*  That is particularly so with large and general expressions.  In this way the courts can by their interpretation greatly influence if not control the effect of legislation.  They applied presumptions of meaning, one of which was that a statute was not intended to overrule the common law and another that it was not intended to displace private rights.* 

In addition, the authority of the courts was preserved by virtue of Parliament’s acceptance that private rights should be regulated through the common law.  As Maitland pointed out and as previously mentioned, until the 19th century and perhaps well into it, there were relatively few statutes in the area of private law and then only to fill some lacuna in it. 

The Rise of the Democratic Principle

The primacy of Parliament established at the Revolution evidenced the democratic principle as the foundation for legitimate government.  It was apparent that something new had happened in the world.  The publication of Sir Robert Filmer’s Patriarcha de Monarcha in 1680, some 50 years after it had been written, was a final attempt to defend royal absolutism.*  After centuries, during which hereditary right had been the unquestioned basis of legitimacy it was now replaced by the people.  It is true that this did not apply to many countries in Europe.  In France, the  change to democracy was only brought about by Revolution.  It is also true that the Parliament of William and Mary was very far from what we would now call democratic.*  Nevertheless, the principle was established.

John Locke’s (1632-1704) Treatises on Civil Government, published in 1689, provided an intellectually acceptable philosophy of the democratic principles on which the Revolution was based.  They were written in 1681 as a rebuttal of Sir Robert Filmer’s Patriarcha de Monarcha.  Locke had, in 1683, been forced to flee to Holland with the discovery of the Rye House Plot.  He returned to England on the same ship that brought William and Mary.*  The Treatises were belatedly published, clearly with the object of justifying the Revolution.*

Locke’s Second Treatise went beyond rebutting Sir Robert Filmer’s advocacy of the divine right of kings although it certainly did that.  It jettisoned the notion that church or other ecclesiastical institution had anything to do with the legitimacy of political authority.

If we enter upon Locke’s philosophy at some length it is not because it represents a definitive view of democracy.  It can well be said that as a theory of democracy it leaves many issues unresolved and places too great an emphasis on private property.  But valid as these comments may be they do not affect the historical impact of Locke’s views.  This can hardly be exaggerated.  His philosophy justified the English Revolution and also very much the American and the French.  As has been said of the Declaration of Independence, “Jefferson had in fact succeeded admirably in condensing Locke’s fundamental argument into a few hundred words.”*  Locke’s influence upon the French Revolution was hardly less.  Voltaire who lived in England from 1724 to 1729 was largely responsible for this.  Accordingly, whatever its limitations, democracy in the 18th century was Lockean democracy. 

The components of Locke’s theory were: the social contract which both established and justified government; natural rights which are the end and purpose of the social contract and, finally, the right of a people to bring a government to an end when it exercises power perversely which is to act contrary to the purpose of the social contract. 

In his Second Treatise Locke asked the question why would human beings who are free in a state of nature give up their freedom.  In answer to his own question, he said that a state of nature was also a state of insecurity.  The members of society found their property and other rights which they possess by virtue of the law of nature, were unprotected and so the ‘adult members of the society’ enter into a contract to establish a government whose sole purpose is to protect their property.* 

The idea of the social contract can be traced back to Marsilius of Padua (1270-1343) who used it for the purpose of excluding church jurisdiction against a prince even on the matter of ecclesiastical appointment.  Although it is not clear that Separatist ideas of covenant influenced Locke directly, 17th century society in England was in a receptive mood to accept contract as the basis of government.  Hobbes shared the view that the originating source of political authority was the people and it was only they who made the social contract.*

But, in Hobbes’ philosophy, once government was established. the ‘people’ ceased to have any authority or influence.  Their duty was to submit.*  Locke held that the people – “the adult members of society” – who constituted the social contract had committed themselves to abiding by the decision of the majority once government had been established.  The considerations which led him to this view were practical.  “For if the consent of the majority shall not, in reason, be received as the act of the whole and conclude every individual, nothing but the consent of every individual can make anything to be the act of the whole.  But such a consent is next impossible ever to be had...”* 

Locke was never very explicit as to who were the ‘people’ to elect this majority whose decisions were to be obeyed.  He did assert that there could be no taxation without representation but beyond that we do not know from his writings.  It is reasonable to assume he would have regarded ownership of property as the decisive qualification.  The Revolution of 1688 was a revolution to establish the rights of private property not equality.  As Addison was to write a few decades later, “the House of Commons is the representative of men in my condition, a freeholder in our government being of the nature of a citizen of Rome in that famous Commonwealth...”.*  Accordingly, Lockean democracy was not ‘true’ democracy either in England or America.  Neither women nor the propertyless had the vote.  The possibility of ‘true’ democracy in an electoral sense, proclaimed by the Levellers, was extinguished with their loss of influence shortly before the Restoration.

Nevertheless, the secularisation of the legitimacy of political power and its location in the people belongs to the 17th century and principally to John Locke.

The purpose of the social contract was preservation of property and protection of rights.*  There is no need to disguise the pre-eminence which Locke gave to private property.  That would be to deny the underlying and perhaps even unconscious economic motivations for the Revolution.  But equally there is no reason to suppose the purpose of government established by the social contract was solely to preserve the ownership of land and other property. 

Explaining what he meant by ‘properties’, Locke said that men are willing to join in society ‘for the mutual preservation of their lives, liberties and estates which I call by the general name property’.  It is evident from this description that Locke would have included other ‘liberties’ and almost certainly freedom from persecution for religious belief within those matters which the social contract was intended to preserve.  At all events the social contract came to comprehend natural rights generally as its end and purpose. 

Apart from what Locke said specifically, his philosophy demonstrated there were other rights and liberties which government was designed to preserve.  Locke’s Letter Concerning Toleration may be regarded as the source of religious toleration which came to England and the Continent during the next century.  Freedom of religious belief was another end of government under the social contract.  “The only narrow way that leads to heaven is not better known to the magistrate than to private persons, and therefore, I cannot safely take him for my guide who may probably be as ignorant as of the way as myself... the care of every man’s soul belongs unto himself, and is to be left unto himself.”*

In a wider sense the entire doctrine of natural rights derives from Locke’s philosophical idea of the person.  Influenced by 17th century science* Locke’s idea of the person was based upon a strict dualism of mind and body.  The mind was pure mental substance.  The body, comprising separate matter, was independent of the soul except that each person’s body was material substance or property owned by that person.  But the critical element was the independence of each person – each soul or mental substance – from every other person.  Because each person was independent, it followed that each person’s beliefs and opinions were as sacrosanct as any others.  “A man’s soul belongs unto himself, and is to be left unto himself.”  A further consequence was that the only link between persons could be a consensual link. 

Such a philosophy provided the base for individual rights.  But why were these rights ‘natural’?  What made positive law consensually arrived at subject to natural rights?  The answer was because those rights were set down by the law of nature which governed mankind antecedently to the State and before formation of the social contract and were thus superior to laws of the State formed by that social contract. 

Locke inherited natural law from its long history in western thought.  In the medieval period the law of nature was believed to derive from God and hence its superiority to positive law.  By the 18th century the divine source of the law of nature was no longer accepted.  It had been displaced by Reason.  Grotius perhaps led in this substitution of Reason for divine supremacy.  With this secular foundation of Reason, natural law, surviving the Reformation and the Renaissance, retained its supremacy.  ‘Law’ which implied duties became redirected to ‘rights’.  The detailed reasons for this redirection take us beyond this essay.  Locke’s philosophy of the individual person played a part.  It was due also to the natural development of the idea of a free conscience underpinning protestantism, the rise of individual ownership as feudalism disintegrated and also to the claims of those who rebelled against royal absolutism or autocratic authority in the revolutions of the 17th and 18th centuries.  It was inevitable that those persons rebelling against church and state should base their claims on rights not duties. 

It will be necessary to consider the working out of Locke’s theory of democracy but before doing so it is convenient to summarise the situation at the end of the English Revolution.

Summary – at the end of the English Revolution

  We have traced the history of the evolution of parliament culminating in its triumph over royal absolutism.  The Law no longer presses any claim to superiority over Parliament.  In England Bonham’s case was quietly buried.  Nonetheless the Law is by no means in a state of submissive inferiority.  The common law remained the underlying law of the Kingdom and develops continuously by means of the doctrine of precedent.  It can be displaced by an Act of Parliament but only, as we have said, if the judges, whose authority to interpret legislation is exclusive, hold that it does so.  And those judges could not be removed by Parliament except in very restricted circumstances.  In other words, but importantly, the Law retained a legitimacy, deriving not only from immediate history during the revolution but from the medieval conception that all power was ‘sub deo et sub lege’.* 

A theory of the democratic state had been elaborated and this came to be accepted not only in England but in America and France. 

The first principle of this theory was that consent of the governed conferred legitimacy to make laws and to implement them.  The second principle was that the Courts had an independent authority to interpret the law.  The third principle was that a democratic state was bound to uphold individual rights to which human beings were entitled by the law of nature. 

These survive more or less today as defining the nature of a democracy.  Further grounds, more prudential and utilitarian, have been advanced.  Natural law as the ultimate foundation of either natural rights or positive law is no longer universally or even generally accepted.  But few would query the proposition that a democracy is a society in which laws are made by the People or their representatives as expressed by a majority and one in which the rights of its individual members are protected. 

Consent of the governed and the protection of natural human rights do not necessarily come into tension but they may do so.  Locke was not unaware of the problem and held that if the attempt by the majority to tyrannise a minority was so extreme as to deprive it of its rights, rebellion would be justifiable.*  Locke’s justification of rebellion was relied upon in America, explicitly in the Declaration of Independence, and also in France. 

But rebellion presented no solution to the ongoing tensions between the democratic principle and the protection of human rights.  To a large extent the interaction of the rule of law and the democratic principle is bound up with this further question of how democracies have sought to deal with this conflict.  One solution was that foreshadowed in Bonham’s case.  The courts would be asked to determine whether legislation offended human rights which were also defined by law and declare the offending legislation void.  Such a solution involves projecting the rule of law into the field of legislation.  It also involves that within that field – the field of rights – the rule of law would have supremacy over the democratic principle.*  Another possibility is to trust the legislature to respect natural rights.  This was the course adopted in England.  Parliament was supreme.  Bonham’s case fell into disfavour and it was not possible for the courts to adjudge an Act duly passed by the Queen in Parliament to be void.  In England the legislature was trusted not to repeal or suspend such sacrosanct Acts as Magna Carta, the Bill of Rights, Habeas Corpus or the Act of Settlement.  England never had a written constitution or fundamental law.*  That would have contradicted the supremacy of Parliament.  It was not that the possibility of this had never been attempted.  The Levellers believed that the civil power had broken down during the civil war and that the military power should be handed back to the people.  The Agreement of the People which they proposed during the civil war and which was rejected by the officers was such an attempt.  Its avowed intent was to fetter Parliament.* 

In America events took a different turn.  The New England colonies had been founded by Separatists and the colonies embodied in writing the covenant which was to govern the civil polity.  Also, many of the colonies had been established by charter or Royal Warrant which fostered the notion of limited government.  To add to this, as the antagonism of the colonists to English rule gathered momentum, Bonham’s case was relied upon in litigation challenging the validity of Acts of the English Parliament. 

In 1758 the Swiss jurist Emmerich Vattel published in London his ‘Law of Nations’.  This was widely read in the American colonies who were attracted to the sharp distinction he drew between a fundamental constitution which was supreme and ordinary legislation. 

Between 1776 and 1780 all the states, except two, adopted written constitutions.  Seven of the colonial constitutions included Bills of Rights.  After independence the American Constitution agreed to at Philadelphia in September 1787 became adopted by the states and in November 1791 was amended to include a Bill of Rights comprising ten Amendments.* 

The formulation of written Constitutions and the inclusion of Bills of Rights does not compel the need for judicial review of legislation.  But clearly they tend in the direction of allowing the courts to determine whether enacted legislation conforms with the written Constitution. 

Protection of rights and its compatability with the democratic principle – France and America

Protection of Rights and the judicial power in France; the separation of powers doctrine

The same question of reconciling democratic principle and with the protection of minority rights was faced by the new democracies on the Continent now freed from feudalism and royal absolutism.  Their position and indeed the whole question of judicial review became bound up with the interposition of a new development – the doctrine of the separation of powers. 

In France the constitutional settlement resulting from the 1688 Revolution in England was looked upon as an ideal.  Baron de Montesquieu mistakenly thought it embodied the separation of powers which he was to expound in his work The Spirit of the Laws published in 1748.  In fact the branches of government in England were separated in a very qualified way.*

Montesquieu established the separation of powers as a cardinal doctrine of government.  His classic statement of it was:

“When in the same person or in the same body of magistrates the legislative is combined with the executive power, there is no liberty because it is to be feared that the same monarch or senate who makes tyrannical laws will enforce them tyrannically.  Again there is no liberty if the judicial power is not separated from the legislative and executive power.  If it were joined to the legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be a legislator.  If it were joined to the executive power, the judge would have the strength of the oppressor.  All would be lost if the same man or the same body of Princes of Nobles, or people exercise these three powers, that of making laws, of putting into execution the resolutions of the public, and of adjudicating upon crimes or upon disputes between private persons.”

In England recognition of the independence of the judiciary along the lines of the Act of Settlement gave effect to the separation of powers.*  It prevented either the legislature or the executive from influencing the judicial process by appointments or by promises of appointment or by dismissal or threats of dismissal.  There is nothing in this that encroaches upon the democratic principle because it assumes the performance by the courts of the judicial function only* and insists that those who do so are independent of extraneous influence.  This, after all, had been put forward by Bacon as working advice to judges that “judges ought to remember, that their Office is ius dicere, and not ius dare; to interpret the law and not to make the law...”. 

But the doctrine, as framed by Montesquieu, was more than working advice.  It was a principle of government.  Its object was to prevent abuse of power arising from the aggregation of the three departments of government.  It was not directed to defining how rights may or may not be protected.  It is easy however to see how it became interposed into that question and how it gave rise to the issue whether judicial review infringed the doctrine.

In some countries judicial intervention was rejected altogether because it was seen as repugnant to the separation of powers.  This was the case with France.

The first step taken by the French Revolutionaries, relying upon Montesquieu had been to abolish the Parlements.  This was done by the famous Law of 16-24 August 1790, Article 12 of which provided that, “judicial functions are distinct and will always remain separate from administrative functions.  Judges in the civil courts may not, under pain of forfeiture of their offices, concern themselves in any manner whatsoever with the operation of the Administration.  Nor shall they call themselves to account before them in respect to their official functions”.  Although this Article was concerned with the exclusion of judicial review of administrative action the same was equally true of judicial review of legislation.  “...it is a major tenet of French constitutional theory that no French court can hold invalid or set aside as unconstitutional a legislative Act... To the extent that an Act of the Assemblée Nationale might conflict with the constitutional text habitual traditional techniques of statutory interpretation would be used to reconcile two sources of law of co-ordinative source.”*

Among the earliest matters undertaken by the National Assembly was the formulation of the Declaration of the Rights of the French Citizen.  This was completed in August 1789.  It was adopted shortly before the first ten Amendments of the American Constitution (November 1791) but it was influenced by both the American Declaration of Independence and the Bills of Rights in State Constitutions.

The Declaration of the Rights of Man was proposed by Lafayette and supported by a group of liberal Nobles known as ‘the Americans’ and who, like Lafayette, had served in the War of Independence.  Nevertheless, although French and American definition of rights bear much similarity they are not identical.*  The Declaration of Rights formed part of the French Constitution and has continued to do so but the French have never contemplated judicial review of legislation as a means of giving the Declaration effect.* 

The explanation for French antipathy to judicial review and reliance upon the separation of powers doctrine to exclude it, is historical.  In France the courts did not, as in England, seek to uphold the rule of law in alliance with Parliament.  Rather, they upheld the privileges of the aristocracy and obstructed reform, especially in the period shortly before the Revolution.  They became ‘targets of the Revolution’.*

The Parlements of France – thirteen in number, the most prominent being the Parlement of Paris – were Courts of Appeal reviewing the judgments of inferior courts.  In addition to its judicial powers the Parlement of Paris assumed the right to control Royal legislation through remonstrances which deferred the registration of Royal edicts until they were revised in accordance with the Parlement’s wishes or the Parlement’s objections were overridden by the King issuing a lit de justice.  Further, the Parlement began to claim the power to consent to taxation formerly vested in the States General. 

The Parlements comprised rich magistrates whose offices were inherited and which could be sold.  These magistrates formed part of the nobility – the noblesse de robe – and shared in its financial immunities.  In the period before the revolution the Parlements thwarted the attempt to remove the aristocracies financial privileges and the financial reforms of Turgot and Necker. 

In France therefore the judges were seen as enemies of the revolution.  The judicial power had to be curbed. 

How different from America can be seen from Alexander Hamilton’s description in the Federalist Papers [No.78]:

“Whoever attentively considers the different Departments of power must perceive that, in a government in which they are separated from each other, the Judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”

The civil law countries believed ‘interpretation’ of the laws to be foreign to the judicial function.  Their attitude was perhaps neatly summed up in Napoleon’s reaction when told that the first commentary had been written on his Code.  “My Code is lost” he exclaimed.  The codification movement which ran through the nineteenth century in civil law countries was an attempt to make the law complete.  It was thought that “if a judge is required to decide a case for which there was no legislative provision he would, in effect, make law.  A Code thus had to be complete and clear.”*

In its initial phases the doctrine of codification sought to exclude the courts from interpretation altogether.  In Prussia, for instance, Frederick the Great took this philosophy to an extreme.  The Prussian Landrecht, with its 16,000 Articles, sought to formulate a judge-proof code.  For a time any question of interpretation was referred to the legislature.  Under the Prussian code a judge was forbidden to interpret it.  It was a complete catalogue of all solutions to judicial problems. 

In time, even in Prussia it came to be recognised that there might be cases of doubt and so a Statutes Commission was created for that purpose.

Frederick’s code, his Commission and his prohibition of judicial interpretation were all considered to be failures.*

The French Revolutionaries did not make Frederick’s mistake.  Wedded though they were to the doctrine of the separation of powers they recognised that some element of interpretation was inevitable. 

What they did is described as follows by John Merryman: “The solution chosen was, under the circumstances, perfectly understandable.  A new governmental organ was created by the legislature and given the power to quash incorrect interpretations by the courts.  When the legislative debates and in the law eventually promulgated, it was made clear that the new organ was not a part of the judicial system, but rather a special instrument created by the legislature to protect legislative supremacy from judicial usurpation.  Although it looked and acted very much like a court, the legislature preserved appearances by calling it the Tribunal of Cassation, and describing it as ‘auprès du corps legislatif’.  The requirements of the separation of powers were met; legislative supremacy was upheld.  Ordinary judges were to be kept from interpreting the statutes, and the legislature did not have to do such work.”*

The function of the Tribunal of Cassation, consistent with its non-judicial character, was merely to quash decisions based upon an incorrect interpretation of statutes.  Those cases would then go back to the court for consideration which was a proper judicial function.*

Approaching the protection of rights in this way it is clear why the French would never entrust that function to the courts.  This did not mean, however, that the Declaration of the Rights of Man had no effect legally.  It was and is relevant to the interpretation of ordinary enactments and the rights declared in the declaration form part of the généaux du doit which, since 1944, have formed one of the grounds for administrative action by the Administrative Courts. 

In order to deal with legislation alleged to have infringed the Declaration, the Constitution of the Fourth Republic (1945) established a Committee on Constitutional Control.  This Committee consisted of ten members selected by the Assembly under the chairmanship of the President of the Republic.  But this Committee was a mechanism for examination of matters of form and procedure rather than substantive issues of constitutionality.*  Under the Constitution of the Fifth Republic, Arts. 56-63, a Constitutional Council, a body similar to the Committee established under the Constitution of the Fourth Republic, is required to examine organic laws before they are promulgated and may examine ordinary laws to see if they conflict with the Constitution.  Although the Constitutional Council goes further than the Committee under the Fourth Republic ‘often it falls short of the provision for judicial review as it is found, say, in the United States’.*

Protection of rights in the United States – judicial review

In America and in the large number of countries that have followed America, rights have not only been specified in the Constitution but the Supreme Court has been charged with protecting them*.  In introducing the Bill of Rights in June 1789 James Madison told Congress:

“If they are incorporated into the Constitution, independent tribunals of Justice will consider themselves in a peculiar manner the guardian of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the Declaration of Rights.”*

What then is the nature of the problem with judicial review?  Some have condemned it as undemocratic upon the view that a non-democratic judiciary is being asked to pronounce upon legislation made by the democratically elected legislature. *

That is an over-simplification.

As we have said, protection of rights is not subordinate to the democratic principle.  It has an independent importance in a democracy – in Locke’s view it is of prime importance.  And thus there is nothing wrong in principle with judicial review to protect rights by virtue only of it being carried out by a non-democratic entity – the Judges.  To that extent the French rejection of judicial review was not well-founded.

But this negative conclusion does not resolve the question.  The Judges have no authority, except as Judges.  Accordingly, it is legitimate for them to undertake the task of protecting rights only insofar as to do so would be a judicial function.

This then is the issue.  Are judges when interpreting and applying a Bill of Rights performing a judicial function?  Are they, in the words of Sir Owen Dixon capable of performing that task with ‘strict and complete legalism’ or, at least legalistically?  Or is the position that the Judges are being asked to undertake a role which is inherently and inevitably quasi-legislative?

That being the question the answer involves a degree of complexity which is not on its face apparent, and makes necessary some general observations about the judicial process.

Judges decide controversies between subjects and between the state and subject by determining rights and liabilities according to law.  They do this by finding what the relevant rules of law are from a body of law and then applying those to the facts in dispute.*

Where we have a constitutional Bill of Rights and a question whether legislation offends it the process involves interpreting each and then matching the legislation (as interpreted) to the constitutionally superior Bill of Rights (as interpreted).

The power to interpret is considerable.  An uncontrollable power to interpret proved so tyrannous in pre-revolutionary France that, as we have said, after the Revolution the civil law countries were determined to have none of it. 

A similar view of the powers of interpretation was cited by James Bradley Thayer in a celebrated article in the 1893 Harvard Law Review.  In that article he urged judicial restraint in construing a Constitution and quoted the remarks of a Bishop Hoadly on interpretation.  “Whoever hath an absolute authority to interpret any written or spoken law, it is he who is truly the law giver, to all intents and purposes, and not the person who just wrote and spoke them.”  This became known as the Hoadly syndrome. 

In the course of this essay we have mentioned with some emphasis the underestimated power of interpretation but nevertheless the Hoadly syndrome as described above represents a gross exaggeration.  Interpretation is not at large.  Because interpretation is not always mechanical; because an uncontrolled power to interpret may lead to abuses, does not involve that the judicial power will invariably intrude into law making. 

At one extreme are those many legal rules whose application is almost mechanical.  A Statute of Limitations says no proceedings may be brought in respect of a cause of action which arose more than six years before the proceedings are commenced; a road regulation prescribes a maximum speed or the correct side of the road on which to drive; the rule against perpetuities forbids the future vesting of interests after a given period which is almost mathematical in its computation.  In all these cases the rules to be applied are categorical and unqualified and once the facts in a controversy have been ascertained the application of the rules is almost automatic.

But not all rules are categorical and the failure of Frederick the Great’s Prussian Code to acknowledge that is a warning against repetition of the attempt to make them so. 

In all systems of law it has been found necessary to frame rules of some generality and leave to the future their application in particular cases; and for sub-rules based upon concrete circumstances as they emerge to be developed, accurately reflecting the principal rule.  The Legislature cannot trust itself to develop rules of greater particularity without knowledge of actual circumstances.*

Independently of statute the common law develops principles and standards.*  One no longer questions that ‘making’ law within the confines of precedent and analogical reasoning forms part of the judicial process.  Such standards as ‘reasonable care’, ‘just cause and excuse’ or ‘unconscionability’ are concepts developed, if not created, by the common law or equity.  But they are applied judicially notwithstanding their relative indeterminacy.  Their application is confined by the principle of analogy and the precedential authority of a prior analogy.  From a sufficient number of cases a Court may extract a general principle which will be binding on lower Courts in future like cases.  By definition analogy is not identity.  And so there is scope for determining whether the resemblances between two case are sufficient or whether these cases ought to be distinguished because of their differences.  This process is judicial.

In the case of a constitutional rule or a statutory rule there is this difference – the rule has been expressly specified.  No judicial process is required to elucidate its existence.  It has only to be interpreted.  If on that interpretation it is categorical it will be given effect as such.  If it is of a more general character it will be given effect by a process not altogether unlike that in the case of the development of common law principles described above.  Decided cases will seek to establish sub-rules deriving from the language of the statute.*

But for this process to be judicial it must be able to limit the indeterminacy of the constitutional or statutory rule in question from some pre-existing point of reference.  If there is none we would describe the body applying the rule, no matter how named, as a legislative body.  If, say, a Court were given the constitutional power to nullify legislation which it considered not to be in the public interest we would view that power as either legislative or executive but clearly not judicial.*

We are into an area where rules are of diminishing determinacy.  At their least indeterminate – at their most categorical – the rule’s application will be clearly judicial.  But, at the other extreme, the rule may be so large as not to be capable of application by the analogical processes described above.  The application of the rule and law-making in these circumstances are in reality coterminus. 

A similar question arises with the conferring of a discretion upon a court by statute.  In such a case, “the existence of a discretion does (not) necessarily take the jurisdiction outside judicial power ... (but) it must be a discretion proceeding upon grounds that are defined or definable, ascertained or ascertainable, and governed accordingly.*

Thus the judicial process assumes throughout there is some pre-existing standard or some pre-existing indicia which directs and confines the court.*

The American Bill of Rights – Judicial Review – The problem of justiciability

These general considerations lead then to the issue whether the United States Bill of Rights is amenable to the judicial process and thus to the rule of law. 

Comments to be made on this relate chiefly to the first, fifth and fourteenth amendments set out in the appended footnote.*

The generality of language in these clauses is evident enough and gives rise to some immediate questions: what is the ‘freedom of speech’ which is protected against abridgement in Article 1?  How extensive is ‘speech’ and what indeed constitutes ‘abridgement’?  May religion be abridged in some way short of prohibition?  What is ‘equal protection of the laws’?  In the case of other Amendments similar questions arise.  What punishments are ‘cruel’ or ‘unusual’?  And when are searches and seizures ‘unreasonable’?

Accordingly at the outset we are faced with extensive indeterminacy.  Special characteristics attach to constitutional Bills of Rights which prevent this being easily reduced.  Common law standards such as ‘equitable’; ‘reasonable care’; ‘just cause or excuse’ may of course be quite difficult to apply to the facts in question but what they mean is fairly clear.  Ordinary notions of culpability, justice and fairness give content to their meaning.  But prohibitions in Bills of Rights very often express values.  The difficulty in interpreting and hopefully clarifying indeterminacy is aggravated by a personal or subjective development in the judgment to be made.  Interpretation of constitutional heads of power may be difficult enough.  The defined subjects are large.  This, as John Marshall pointed out, is deliberately so.  But it is at least possible to look at an expression such as ‘trade and commerce’ objectively and make a judgment marking out its limits without that being clouded by personal inclinations.  It is a very different matter when judges are called upon in interpreting rights to say what is ‘free’ and how far a particular area of commerce should be free from government restraint.

Another and related feature is that placing limits upon the extent of a constitutional guarantee takes the court into areas of public policy.  A policy issue becomes concerned with the public as a whole or a section of the public.  It is thus different from private law where the judicial narrowing of indeterminate standards depends more or less upon notions of individual justice.*

Further it needs to be noticed that legalism presupposes the facts in controversy can be and are ascertained.  It is assumed these pre-exist the dispute and are indeed the subject of it.  They are ascertained by specified modes of proof.  In Bills of Rights cases, concerned as they are with the relationship between the value to be protected and legislation having some social or political objective, the material facts cannot be readily proved and, in any event, the issue often relates to the future.  The material facts are in a very real sense, prospective. 

We could take for analysis the long line of decisions on substantive due process from the Civil War until Roosevelt’s Court packing threat in the 1930’s.  Certainly this is one of the clearest example of the Court’s own social and economic philosophy influencing interpretation.  But at the end of the day this line of decisions does not bring out the inherent difficulty in construing value-laden Bills of Rights.  The substantive due process cases may indeed only evidence bad interpretation.  In construing the injunction not to deny ‘life, liberty or property without due process of law’ the Court appears to have read the phrase ‘due process of law’ out of the Constitution altogether.* 

Equal protection of the laws is a better example.  The question there was how to give effect to equality or more precisely ‘equal protection of the laws’.  Does this mean, and is it limited to, laws which discriminate between citizens?  Or does it refer only to those laws that impose inferior rights and obligations on some citizens? 

During the Reconstruction era following the Civil War legally enforced segregation prevailed throughout the South.  Negroes could not attend the same schools, go to the same theatres, eat in the same restaurants, sleep in the same hotels or relax at the same parks as Whites.  In particular, they were separated on transport.  In 1896 a Louisanna Statute required separate railroad accommodation for Negroes and white passengers.  This was challenged but upheld in Plessy v Ferguson.*  The majority held that “so long as laws requiring segregation did not establish unequal facilities for the Negro there was no unreasonable discrimination and therefore no denial of equal protection of the laws”. 

So under what became known as the ‘separate but equal’ doctrine the court held separation per se did not produce legal inequality.

By the end of the Second World War legalised school segregation was virtually everywhere in the South and the border states.  In eighteen states legislation mandatorily required segregation of white and negro school children while six others permitted segregation at the discretion of Local School Boards.

The Plessy decision, although increasingly questioned, was not tested until 1954 in Brown v The Board of Education* where the Supreme Court decided unanimously that school segregation violated the equal protection clause of the Constitution.

The Chief Justice in speaking for the Court said:

“Does segregation of children in public schools solely on the basis of race, even though the tangible factors may be equal, deprive the children of the minority group of equal educational opportunities?  We believe that it does.”

In rejecting Plessy and the line of precedents which had followed it, the Court considered that in the 20th century segregation generated feelings of inferiority in negro children. 

It is not possible to rationalise these decisions by any change in conditions.  What had changed were attitudes and values and the Court in Brown specifically adverted to these changes. 

Most of us would applaud this decision.  We approve of it because it ended or led to the cessation of the repugnant racial segregation in the Southern States of the United States.  But such approval is not based upon a judgment of its legal correctness.  Because it accords with our values we describe it as progressive, rational, or liberal – adjectives of statesmanship – rather than legality.  We would not think of applauding it because it was ‘correct’.

Ordinarily though, “Courts do in fact proceed upon the assumption that the law provides a body of doctrine which governs the decision of a given case.  It is taken for granted that a decision of the Court will be ‘correct’ or ‘incorrect’, ‘right’, or ‘wrong’ as it conforms with ascertained legal principles and applies them according to standards of reasoning which is not personal to the judges themselves.  It is a tacit assumption.  But it is basal.”* 

Inevitably a decision whether legislation is in conformity with some defined value involves judgements which are non-judicial.  The endeavour to require rights to be given effect draws the Court into issues typical of lawmaking.  One example are decisions that ‘equal protection of the laws’ require legislatures to protect those who are unequal by legislatively compensating them for their disadvantages.  That leads to a range of imponderables.  Just how far is a medical school or other educational establishment to go to ensure that blacks, Mexicans or others from unprivileged backgrounds can gain admission?  This may require deciding not only how far the standard is to be lowered but also to what extent the hitherto ‘privileged’ group is to be discriminated against to give equal protection effect.*

Suppose in the light of this we attempt to isolate the judicial and non-judicial elements in the process of deciding a line of cases.  First Amendment cases may be taken as an example.  We may assume the First Amendment is not absolute.  To construe it otherwise would be to confuse a principle with a categorical rule.  “Nobody suggests that all words, writings and other communications are at all times and under all circumstances, protected from all forms of government restraint.” *

The first step in a free speech case is to interpret the legislation.  Does it impose a restraint?  What is its purpose as disclosed by the legislation?  Such a step in the process is clearly judicial.

We have next to determine whether the restraint as so construed falls within the First Amendment prohibition.  If of course the prohibition were absolute the almost mechanical process of matching the legislation with it would be self-evidently judicial.  But we have said that the prohibition is not absolute, at least in a mechanical sense.  We have thus to determine what are the qualifications to free speech which are allowable.  Certain categories are clear and their acceptance does not trespass beyond judicial bounds.

We have now reached the point of central difficulty – that of applying the qualifications to freedom of speech to the legislation and the surrounding circumstances in question.  We can examine this more precisely by going to a group of national security cases in both the Sacco and Vanzetti and the McCarthyist periods in the United States.

A number of qualifications were developed designed to delimit the generality of the free speech guarantee in the face of perceived security threats.  The best known of these is the ‘clear and present danger’ test of Mr Justice Holmes in Schenck (1919).  The question he said is whether the prohibited speech was used “in such circumstances and were of such a nature as to create a clear and present danger that they will bring about the substantive evil that Congress has a right to prevent.  It is a question of proximity and degree.”  Later, in Whitney (1927) Mr Justice Brandeis explained that “fear of serious injury cannot alone justify the suppression of free speech.  Men feared witches and burned women... even advocacy of violence, however reprehensible morally, is not a justification for denying free speech whose advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on.” 

The clear and present danger test certainly introduced some determinacy.  It was, as a test, clear and principled.  The difficulty arose with its application.  It required an assessment of the degree of danger and also a judgment, necessarily prospective, on the imminence of the danger.  Only in the simplest cases such as the likelihood of causing panic by shouting fire in a theatre, the example cited by Mr Justice Holmes, would this be capable of simple ascertainment.  What, in effect, the ‘clear and present danger’ test involved was that the burden of showing its application would rest upon the legislature.  Invalidity would result unless the Court were satisfied of both the gravity and the imminence of the danger.

Subsequently, Judge Learned Hand put forward a modification: he proposed instead  ‘the gravity of the evil, discounted by its improbability’ as the test.  This modification effectively changed the onus at least as to the imminence of the danger.  If the court were not satisfied by the claimant as to the improbability of the danger the legislative restraint would be upheld.  A degree of certainty had been achieved at the price of free speech.

We can see how some of these matters were worked out in Dennis v United States.*  The defendants were charged with violating the Smith Act by wilfully and knowingly conspiring to organise the Communist Party of the United States and thereby to teach and advocate the overthrow and destruction of the government of the United States by force and violence. 

Accordingly the charge was not that the defendants advocated the overthrow of the government or incited this to be done.  It was that they conspired to form the Communist Party so that in the future it might advocate and presumably achieve the forcible overthrow of the government. 

Mr Justice Jackson pointed out that in considering the threat posed by the Communist Party it would, “if the ‘clear and present’ danger test were to apply, be necessary to ‘predict’ the effectiveness of communist propaganda, opportunities for infiltration, whether and when, a time will come that they consider propitious for action, and whether and how fast our existing government will deteriorate...”.  The factual judgment to be made was thus prospective and even speculative. 

The most important judgment for our purposes was that of Mr Justice Frankfurter.  He starts from agreement with Mr Justice Jackson as to the inability to determine judicially the state of the danger.  “The judicial reading of events still in the womb of time... is to charge the Judiciary with duties beyond it’s equipment.”  He then applied what became described as the ad hoc balancing test. 

“The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests within the confines of the judicial process...  But how are competing interests to be assessed?  Since they are not subject to quantitative ascertainment, the issue necessarily resolves itself into asking, who is to make the adjustment?  Who is to balance the relevant factors and ascertain which interest is in the circumstances to prevail?  Full responsibility for the choice cannot be given to courts.  Courts are not representative bodies.  It is not for us to decide how we would adjust the clash of interests which this case presents were the primary responsibility for reconciling it ours.  Congress has determined that the danger created by advocacy or overthrow justifies the ensuing restriction on freedom of speech.”

The ad hoc balancing test applied by Frankfurter J in the First Amendment cases is only a particular application of his general doctrine of judicial restraint.  As he said in one of the earlier ‘Flag Salute’ cases, “so long as men could reasonably differ, so long as there was not absent a rational justification for the legislation,” judicial interposition was improper. 

In the result, although correctly perceiving the legislative element in judicial review, Mr Justice Frankfurter attempted to solve the problem by avoiding it.  He would require the court to defer to Congress so long as men ‘could reasonably differ, so long as there is not absent a rational justification for the legislation’ (as he explained in the Flag Salute cases) or, unless the legislation in question was ‘outside the pale’ (as he put it in Dennis itself).  It is in effect difficult to disagree with Mr Justice Black’s protest that this would mean the First Amendment becoming little more than an admonition to Congress to be reasonable. 

The Frankfurter doctrine of judicial restraint, the ‘political question’ doctrine, the holding that a case is not ‘ripe’ for adjudication have all failed to affect the fundamental fact that judicial review of the American Bill of Rights involves an unavoidable legislative element. 

An academic commentator has accurately summed up the matter:

“Although there may be considerable agreement as to the alternatives thought to be open, there is very serious disagreement as to the questions of fact bearing on the consequences and probabilities and as to the questions of value or the way in which different alternatives are to be ordered according to criteria establishing relative preferability...

It (the court) must, that is to say, choose among controversial alternatives of public policy by appealing to at least some criteria of acceptability on questions of fact and value and cannot be found in or deduced from precedent etc...

If the court were assumed to be a political institution no particular problems would arise, for it would be taken for granted that the members of the court would resolve questions of fact and value by introducing assumptions derived from their own predispositions.*

From this analysis we must conclude that the protection of constitutional rights by judicial review does not conform with the legalism required by rule of law.*  Judicial review – that is the rule of law – cannot protect human rights from legislative action without itself covertly adopting a quasi-legislative role beyond that strictly permitted by the judicial process.*

Epilogue – recent history

Some comment, necessarily incomplete, can be added on recent history.

Democracy and its two components – the democratic principle and the rule of law -- are in a process of dynamic change and interaction.

What can be said is that the hereditary principle – for centuries assumed to be the source of legitimacy in the exercise of power – remains only in a small number of states. Saudi Arabia is the most conspicuous exception. It seems surprising, in retrospect, that such an acutely far-sighted opportunist as Napoleon should have failed to see this and endeavoured to establish an hereditary dynasty to confer legitimacy upon his empire.

The most significant change to the operation of the democratic principle has been mass democracy. Mass democracy has almost completely supplanted its Lockean ancestor centred upon property and adult male suffrage. Its modern universality makes us forget how recent this is. In 1867, Bagehot could write that a theory that “every man of 21 years of age (if not every woman too) should have an equal vote in electing parliament” was “ultra-democratic” leading to “moral violence”.*

Other changes in the operation of the democratic principle have proved important in qualifying it. In democracies following the English model, the supremacy (although not the ultimate control) of the executive over parliament has been achieved through the development of tightly controlled political parties which select candidates for election, the collective responsibility of cabinet which make all ministers answerable for any decisions taken by cabinet and the definition of the doctrine of ministerial responsibility which makes the executive answerable to parliament only when it loses its majority . Accordingly, only at elections is this supremacy of the executive suspended or removed. 

Most modern states do though accept that the legitimacy of their governments depends upon having obtained the approval of their peoples at an election. Even single party states as in the Soviet Union or the communist states of Eastern Europe felt morally obliged to hold elections, ludicrous though these were.*

The second component in democracy, as we have described it, is the protection of individual rights by the rule of law. This has had a chequered history in the last half century. In the period before 1989 the rule of law protecting individual rights became increasingly accepted in the non-communist world. It was embodied in a number of widely ratified international instruments beginning with the Universal Declaration of Human Rights. With the dismantling of colonialism, a large number of the new states introduced written constitutions providing for elections, the recognition of an Opposition, a separate judiciary and, very frequently, a Bill of Rights.

In 1989 the South African apartheid regime acknowledged defeat,* the Berlin Wall came down and the Cold War ended. *

The American way of giving effect to a constitutionally entrenched Bill of Rights by judicial review was emulated in many countries with varying degrees of success. In the United States itself judicial review which, as we have said, became quasi-legislative, continued to oscillate with the political complexion of appointees.*

In Roe v Wade (1973) it was held that the right to an abortion formed part of the right to privacy guaranteed by the 14th Amendment but that this right existed within a trimester (three month) framework; a woman had an unrestricted right to abortion in the first three months of pregnancy but in the trimester when the foetus had become capable of independent life, access to abortion was severely restricted.

Describing the preparation of the judgements in The Brethren (Coronet, Hodder and Staughton, p.276), Woodward and Armstrong wrote:  “ The clerks in most chambers were surprised to see the Justices, particularly Blackmun, so openly brokering their decisions like a group of legislators. There was a certain reasonableness in the draft, but it derived more from medical and social policy than constitutional law.”

The intensity of the Court’s divisions on policy grounds was revealed in Webster (1989) in which the majority restricted but did not overrule Roe. This excited Mr Justice Scalia who thought  the  majority decision should have gone further, and led him to describe that decision as “the most stingy holding”, whilst Mr Justice Blackmun, who thought Roe should have been left untouched, said of the majority decision “(never) in my memory has a plurality gone about its business in such a deceptive fashion.”]Perhaps the European Court of Human Rights has been less politicised and more successful in its work of reviewing the rights embodied in the European Convention than its American ancestor.

The last two decades have witnessed a transformation in the previously progressive trend. The precise outcome is still uncertain, but its tendency can be stated.

It has never hitherto been questioned that democracy comprised the two elements we have outlined in this study – the democratic principle and the rule of law.

But what has emerged in these last decades is a bifurcation between these two principles: the democratic principle being given effect, at least more or less; whilst in the same polity, civil and political rights are ruthlessly denied. Hence the phenomenon, as Fareed Zakaria* has described it, of ‘illiberal’, or ‘quasi’-democracies. The most obvious examples are Singapore and Malaysia.

Whatever the liberal hopes or intentions of the new, decolonised states, they inherited  security legislation from their colonial predecessor which it was inexpedient or simply too tempting to renounce. The essence of preventive detention is the conferral of power upon the executive to detain where in its opinion it is considered “ necessary or “expedient” for the security of the nation. Such detention is, in substance, beyond judicial challenge. In the ordinary course, preventive detention offends the rule of law: the deprival of personal liberty is imposed by the executive, not by a constituted court; the ground of detention is preventive and thus does not relate to offences which have occurred but to harms which are feared might occur in the future and, finally, the grounds of detention are not typically restricted to conventional criminal offences but to more amorphous and almost non-justiciable grounds such as ‘the safety of the nation’. These can include peaceful dissent, freedom of association or assembly. Ordinarily, preventive detention involves suspension of the remedy of habeas corpus, or rendering it ineffective in some way.

It is clear though that there are real emergencies and that the derogation from the rule of law is justified so that the existence of a preventive detention regime during an emergency if confined to that necessity may be said in a larger sense not to violate the rule of law. The existence of  the rule of law assumes the survival of the state embodying it.  But this also supposes it is an ‘emergency’: a permanent ‘emergency’ and the rule of law are a contradiction in terms. A true ‘emergency’ compatible with the rule of law involves a number of things: First, its expected duration must be identifiable and determinable – either ‘fixed’ as in the case of wartime emergencies by the cessation of hostilities or defined in a sufficiently precise way as to be determined by judicial finding or parliament i.e. some body independent of the executive. The idea of an emergency lasting so long as the executive is of the unexaminable opinion it exists contradicts the rule of law. In addition, to be consistent with the rule of law, the grounds of any detention should have some judicially examinable and objective basis.

Continuing preventive detention implemented by the executive has been a feature of the quasi-democracies of the former colonial states, particularly in Asia. Malaysia may be taken as an example .In 1948 a state of emergency was proclaimed as a result of the communist threat to wrest power by force throughout the Malaysian Peninsula. Colonial-type emergency legislation continued throughout the immediate pre and post independence. Twelve years later, the Malaysian Government announced that the emergency was at an end. Clearly, the communist threat had been averted and the communist party was subsequently to formally abandon armed struggle. But in the same year – 1960 – the government introduced the Internal Security Act – the justification being some future possibility of harm Preventive detention was allowed on such grounds as conduct “prejudicial to the security of Malaysia”; “prejudicial to the maintenance of the essential services of Malaysia”. These were extended in 1971 to conduct “prejudicial to the economic life of Malaysia” in 1971. No more definite criteria were specified. Judicial review is effectively excluded. These powers have been freely exercised to detain troublesome members of the Opposition.* 

The other contemporary challenge to the rule of law is jihadi terrorism and the loss of life, destruction of property and impairment of the feeling of physical security inseparable from civilised life, which  the events in New York  on the 11th September 2001 and the bombings in Bali, Madrid and London have so dramatically shown.The challenge comes from the need by states to react effectively to this threat. To prevent terrorism, assumptions common in states governed by the rule of law have been qualified, and heavily so in some instances. These assumptions are: (a) that a person could not be detained against his/her will for interrogation in the absence of suspicion he/she had committed an offence to which the interrogation was related; (b) that a person whilst being interrogated by the police or other authority could not be subject to torture or other coercion so as to render any resulting statement involuntary and (c) that a person could not be imprisoned or suffer other penalty except for a breach of the law and that that breach of the law had been found to have been committed by a duly constituted court or other independent tribunal.

It is evident that any state which denied these principles wholly and indefinitely would have abandoned the rule of law. To do that would be to remove the substratum of our liberties. We would have destroyed that “causeway upon which so long as he keeps to it a citizen may walk safely.”*The principle that no person – man, woman or child – may be imprisoned except for having broken a pre-existing law has taken centuries to establish. And it has  taken centuries to establish that a breach of the law cannot be decided upon by the police or other organ of the executive but only by an independent Court, and that the citizen has a remedy – habeas corpus – to enforce this. And likewise it took centuries to establish throughout the civilised world that torture and other coercion cannot be used to procure evidence.

Circumstances of emergency, where state and society are in peril, may require the modification of these principles but it follows that in such a case any modification should be restricted both in time and extent by the necessity which has occasioned it. It is essential therefore that procedures should be introduced to ensure that any modification of principle should last no longer than the necessity it was intended to meet.

It is not appropriate in an epilogue of current developments to traverse in detail the anti-terrorism legislation, some of it still in the process of change, introduced in recent years in western countries.Much of it has been characterised by extremity and lack of judicial control of police and other security authorities. Most has been enacted by legislators fearful of the reaction by a frightened public if restraint of any kind were to be shown.

The moral capitulation of the United States in the aftermath of the 11th September happened quite quickly. The nation hitherto most identified with upholding the rule of law sought to exclude it or submerge it by an overriding executive authority. The Vice-President, by way of explanation, told the American people it was necessary for the great Republic to go 'to the dark side'. 

Until July 2006 the regime at Guantanamo Bay, Cuba, was established by and authorised under a Presidential-Executive power. It had as its deliberate objective the removal of any control by law. The Administration sought to do this by (i) the locating the base for detention of those apprehended in Afghanistan and elsewhere outside United States sovereignty ; (ii) the exclusion of the right to obtain habeas corpus in any United States Court; (iii) the exclusion by legislation of the right to rely upon the Geneva Conventions, common article 3 of which guaranteed a fair trial before a duly constituted court; (iv) the denial of a fair trial or trial at all for many detainees and (v) coercive techniques in interrogation, in some instances by torture, and the allowing of cruelty-obtained statements into evidence.

It was claimed that by virtue of his 'commander-in-chief' wartime powers, the President -- the executive authority of the United States -- was able to override the law of the United States. The harsh interrogation of detainees at Guantanamo Bay, their treatment and the unfairness of the military commission process were all given effect under the aegis of this claim to the dominance of executive authority but, in July 2006, the Supreme Court in Hamdan rejected the Administration's contentions. In October of that year though, shortly before the November elections, Congress substantially, although not entirely, conferred those same powers upon the Executive by virtue of  the Military Commission Act 2006  which in Hamdan  the Supreme Court had denied as executive authority .

Whilst the peremptory jettisoning of the rule of law by the United States Administration has caused dismay, it does not follow that terrorism is just another criminal offence.  Without question the threat of terrorism presents especial problems to the rule of law.

There is a compelling need to anticipate the commission of a terrorist offence and prevent it occurring. The criminal law is of course generally concerned to prevent crime. Ordinarily it relies upon fear of apprehension, prosecution, conviction and the severity of the expected punishment in order to deter the commission of criminal offences. In advance of the commission of a crime there is no compulsion to provide information although concealment of evidence may give rise to a secondary, preparatory offence. In general compulsive powers become operative on the commission of an offence. But this delayed operation is not sufficient in the case of terrorism. Prospective offenders are relatively indifferent to the prospect of punishment -- and indeed often to death itself.  The ordinary criminal processes do not deter and certainly not to the same extent.An additional and critical consideration to the need for prevention is the enormous harm, loss of life and destruction which terrorism causes and the sense of insecurity in the community which that produces.

Prevention in advance requires information. This information may be in the possession of those who have not yet committed an offence or non-suspects who are involved innocently and incidentally.But there is a need to obtain intelligence as distinct from evidence .

To what extent in this situation do we confer compulsive powers to obtain information? Do we modify the ordinary principles associated with the rule of law to obtain it?

If it is correct that prevention depends upon advance information, we must do this or else acquiesce in the threat of terrorism. 

But a community which values the rule of law does not simply hand over the problem as of course to the executive, the police and intelligence agencies. That is the tempting and easy course. It is tempting because security agencies naturally press for increased and unexaminable powers unfetterd by oversight; democratic publics fearful of terrorism press their governments for immediate action and, finally, it removes the need for thought, because working out appropriate conditions and the forms of supervision, does require some intellectual effort in the formulation of policy .

But it can be done. In the early years after the 11th September 2001, a Bill for the Australian Security and Intelligence Organization Act 2003 was considered by a joint parliamentary committee of the Australian parliament. The draft before the committee would have allowed almost indefinite detention for intelligence interrogation and for the subject to have been detained incommunicado. It  conferred relatively uncontrolled powers. This draft was rejected by the committee.

The legislation finally recommended by it recognized the special need in the case of terrorism to acquire intelligence in order to anticipate and prevent the commission of a terrorist act. Accordingly, the legislation accepted that where it was believed on reasonable grounds that a person was able “ to substantially assist the collection of intelligence that is important in relation to a terrorism offence” such a person could be detained for questioning.

But the power was attended by restrictions:

·         the power could only be exercised under warrant issued by a federal judicial officer  who had to be independently satisfied that it would allow for terrorist-related information to be obtained;

·          the period of detention was limited to 8 hours with the possibility of it being extended for an additional 8 hours but so that the maximum period was 24 hours, the actual periods of interrogation were limited to 4 hours;

·         It was required that a Judge or ex-Judge should explain to the detainee his rights to complain and the Judge or ex-Judge would ‘sit in’ on the interrogation;

·         Consistently with the object of the questioning to obtain intelligence the answers to questions (or refusal to answer) could not be tendered in evidence against the detainee if charged with an offence other than the offence of refusing to answer questions.

And, in addition, and rightly, provision was made for a review of the operation of the legislation after three years.

One further and general observation on terrorism legislation may be made.We have agreed that where an emergency justifies inroads into the rule of law these should not extend beyond the period of the emergency. Where that is indefinite it is of the utmost importance that its existence and extent be subject to reasonably frequent review. The ordinary way this is provided for is by a 'sunset' clause in the legislation. This provides that the operation of the legislation will cease after a given period unless  extended by the Parliament. Typically, a parliamentaryy committee will consider the situation shortly before that time and report upon the need for the continuance of the legislation. Usual periods in 'sunset' clauses are three, perhaps, five years. It is a matter of serious criticism of the Australian legislation that the period specified in the clause is ten years.

 

This study may at this point appropriately conclude with some wise words written during the Cold War. They are entirely apposite today:

“The permanent and perhaps irreparable damage done over a long period in which vital principles are subordinated to expediency can never be anticipated. But the real nature of the danger may be seen if we consider how tenuous, at the best of times, is our grasp of the true principles of democratic living and how readily it is relaxed when fear or passion masters us. … The greatness of the institution of the law is that it confines us to that straight and narrow path that we are too often inclined to desert.”*

John Greenwell

December 2006

 

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Separatists and Levellers

Although a Study of the Separatist and Leveller movements is outside the scope of this Study, their importance is by no means antiquarian.  It is difficult to believe that insistence on a voluntary covenant forming the basis for Church organisation was not an influence upon Locke.  But more importantly Leveller doctrines highlight the limitations of Lockean democracy, chiefly in regard to representation  Looking ahead from this time we see Leveller principles as a continuing influence in radical movements for reform of the suffrage.

The great historian of 17th century England, Christopher Hill, in The World Turned Upside Down, p.15, said:

“There were, we may oversimplify, two revolutions in mid-17th century England.  The one which succeeded established the sacred rights of property (abolition of feudal tenures, no arbitrary taxation), gave political power to the propertied (sovereignty of parliament and common law, abolition of prerogative courts)... There was, however another revolution which never happened, though from time to time it threatened.  This might have established communal property, a far wider democracy in political and legal institutions, might have disestablished the State Church and rejected the protestant ethic.”

This failed revolution was the work of the Separatists in the first instance and later the Levellers.  It was the Separatists or Browneists who insisted upon the rigid separation of church and state and, further, that the state itself should be founded upon covenant or agreement.  Robert Browne, the Sect’s originator, had defined a church as being “planted or gathered a companie of a number of christians or believers, which by a willing covenant made with their God and under the covenant of God ... What Agreement must there be of Men?  For church governors there must be an agreement of the Church.  For civil magistrates there must be an agreement by the people of the Commonwealth”, The Booke That Sheweth.

These ideas were given effect all along the New England Colonies.  Before reaching land the Plymouth settlers had made a covenant on the Mayflower.  The covenant was to ‘combine ourselves together with a civil body politick.’  Government along the same lines was established on the foundation of Rhode Island by Roger Williams in 1637 and in Connecticut by the Fundamental Orders of Connecticut in 1638-1639.

The Colonialists led by Hugh Peter returned in large numbers at the commencement of the Long Parliament (1640) and both Lilburne and Burton declared themselves adherents of the ‘New England Way’.  The idea of compact was also reflected in the Agreement of the People which the Levellers in the army presented to Parliament. 

The Levellers were a related sect which acquired great influence during the civil war.  The army, through Leveller influence, had become a ‘hothouse of political ideas’.  “In the enforced leisure after the civil war had been won, the thinking of the rank and file developed apace”, Christopher Hill, The World Turned Upside Down, Penguin, p.58. 

The Levellers themselves had arisen originally from opposition to the enclosure movement, a movement which gained momentum in the early part of the 17th century.  By 1646 some in the army were calling for an upper limit on the landed property that might be held. 

They held to the same ideas on church organisation as the Separatists and were, like them, in deep conflict with the Presbyterians during the late 1640s.  The Levellers thought that the state had broken down in the course of the Civil War.  Military force could be used to hand power back to the people.  They proposed therefore the Agreement of the People which was submitted to their officers in the Army Council in October 1647.  On the parliamentary side, Ireton, Cromwell and Lambert had brought forward what were described as Heads of Proposals.  This proposed biennial Parliaments and a franchised redistributed in accordance to taxation. 

The collision between the rival constitutions – the Heads of Proposals and the Agreement of the People provides the setting for the meeting and great debate at Putney on 16 October 1647 between the Army Council in which Levellers were prominent and Cromwell and Ireton on behalf of the officers.  A considerable argument took place on the franchise.  Ireton thought that it should be confined to men of property; “those who have a fixed interest in the kingdom”.  Colonel Rainboro and the Levellers called for a wide extension of the franchise downwards to all save paupers and wage labourers.  Indeed, an extreme Leveller view was that the vote should be vested in everybody.  The importance of the debate to the elucidation of democratic principle depends as much on the two views shared in common as where they differed. 

“Really” says Colonel Rainboro “I think that the poorest he that is in England hath a life to live as the highest he”.  And he goes on, “And, therefore, truly I think, sir, it is clear that every man that is to live under a government ought first by his own consent to put himself under that government that he hath not had a voice to put himself under.  Every man born in England, cannot, ought not, neither by the law of God nor the law of nature, to be exempted from the choice of those who are to make laws for him and to live under and for ought I know, to lose his life under.”  But the Levellers were defeated and effectively crushed by Cromwell in May 1649 and their ideas played no direct part after the Restoration (1660). 

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The history of the bar and the rule of law

The thirteenth century was important in the evolution of the common law.  The Royal Courts had attained dominance under the reforms of Henry II (1154 – 1189) which were carried forward by his grandson, Henry III (1216 – 1272) and Edward I (1273 -1307).  Henry II had established the King’s Peace throughout the land.  He had also introduced the Jury, a procedure for the finding of facts available only in the King’s Courts.  This new procedure proved popular.  The Curia Regis, originally a committee of the King’s Councillors having a general governmental as well as curial function, began to specialise, dividing into the three great courts which were to last 600 years – Common Pleas, King’s Bench and Exchequer. 

As a result the Royal Courts gradually supplanted the feudal and communal Courts, each of which applied its own territorial or personal law, so that now there was but one law throughout the realm – the common law of England.  This was the law as declared by the Judges of the Royal Courts.  The ‘common law’ had won a certain national loyalty.  A revival of Roman Law throughout Europe took place in the twelfth century attracting students to Universities such as Bologna and Paris to study Roman Law.  English ecclesiastics favoured the reception of Roman Law in England.  This was strongly resisted.  Roman Law was regarded as foreign both by the aristocracy and the people. 

Despite the growth of the monarchy, there was an insistence that the royal power was subject to law, and this could only mean, the common law.  We see it stated explicitly by Henry Bracton, almost the first and certainly the greatest writer on medieval English law, in the opening folio of De Legibus (1258).  He remarked that whilst, in almost all countries edicts (leges) and written law (ius scriptum) were in use, England alone employed unwritten law and custom.  Then in a more famous passage he wrote that the King is ‘sub deo et lege, quia lex facit regem’.*  He is saying that the King is under the law because the law made the King.  And so the common law, as declared by the Judges, was already being foreshadowed as providing a protection from the exercise of royal power. 

At this time trials were preceded by pleadings in which each side would allege, deny, reply and so on.  The ultimate object was to reach an ‘issue’, preferably a single issue which would be tried.  Pleadings were thus regarded as a stage in the process of proof.  After the oral pleadings of the parties, the court would decide who was to make final proof by wager of law or some other mode of trial. 

The part played in this by professional pleaders is explained by Maitland as follows:

“Before the end of the thirteenth century there already exists a legal profession, a class of men who make money by representing litigants before the Courts and giving legal advice.  The evolution of this class has been slow … the old procedure required of a litigant that he should appear before the Court in his own person and conduct his own cause in his own words … It is by this time permitted that one of those who ‘are of counsel’ with him should speak for him.”

Pleading itself became more complicated.  By the end of the thirteenth century the distinction between an issue en lay and an issue en fet – that is between law and fact – had been established.  Bracton’s seminal work had itself done much to make English law more scientific.  He had absorbed just enough of the systematic rationality of Roman law to inoculate English law against it. 

In 1292 Edward I provided for the training of advocates.  ‘The Lord King enjoined Mettingham (the Chief Justice) to provide and ordain at their (the Judge’s) discretion a certain number from every county, of the better, worthier and more promising students … and that those so chosen should follow the Court and take part in its business and no other’.

It was not possible for the universities to provide this training because they were controlled by the ecclesiastics who followed the civil law.  To prevent the advance of Roman Law, Henry III had prohibited the teaching of Roman Law in London in 1234.  (Pope Innocent the IV was to rejoin, in 1254, by prohibiting ecclesiastics from studying the common law).  Oxford and Cambridge taught only the civil law and English law was not taught at English Universities until relatively recent times. 

Important to the development of the Bar was the fixing by Magna Carta of the location of the Court of Common Pleas at Westminster, instead of the Court following the King.  Eventually, all the Royal Courts sat at Westminster. 

In the fourteenth century the leading narrators or advocatus formed their own society, calling themselves Serjeants-at-Law.

It was therefore against the background of a need for specialist advocates and for their training outside of the Universities that the Inns of Court were established.  They were located between Westminster, where the Court sat, and St Paul’s where the Serjeants met their clients.  Each Serjeant would, at that time, be allowed a stand near a pillar at the porch of the church.  Thus Chaucer (1340 -1400) wrote of the ‘Serjeant-at-Law who paid his calls, wary and wise, for clients at St Pauls’.

The four great Inns were Lincoln’s Inn, Gray’s Inn, the Inner and the Middle Temple.  At the Inns of Court the practitioners lived a collegiate life.  Excluded from Oxford and Cambridge they established, in effect, a University of their own.  They were called apprentices and hired houses in which they might live together.  In the middle ages these apprentices largely came from the younger sons of the nobility or gentry.  There was a four year novitiate at the end of which the apprentice would be ‘called to the Bar’.  Lectures were introduced very much in reaction to the universities teaching civil law.  The main method of education however was through moots and ‘reading’.  In both the apprentice would have to present a case or argue against it before a large group of Inn members, often before dinner.  Although this system of education was essentially practical it tied in with the evolving doctrine of precedent in English law.  In the reign of Edward I a series of books called ‘Year Books’ began which set out the decision and the Judge’s reasonings.  These continued until 1545 when they were replaced by private reports.  There was as yet no system of binding precedent but Judges and barristers were beginning to build a kind of legal philosophy upon decided cases.*

What was of enormous historical importance was that Judges were appointed exclusively from the Bar.  One Laurence del Brok was made a Judge of Common Pleas in 1268 and Gilbert Thornton was promoted direct to the Chief Justiceship of the King’s Bench in 1290.  These were the first of gentlemen-lawyers appointed but this became almost invariable.  After 1327 there is a record of only one ecclesiastic being appointed to the Court of King’s Bench.  By 1300 the King was recruiting the Judges increasingly from the Serjeants.  Of the 86 Serjeants between 1400 and 1500, 58 went on to be Judges.  Not only were the Judges recruited from the barristers but they continued to share the communal life with them.

After 1400, barristers, as they now came to be called, gained a monopoly of audience.  As Sawer has said ‘since about 1400, however, one factor has been constant, the dominating position of the branch of the profession which developed into the modern barrister’.

The importance of the Bar to the common law therefore derived chiefly from it becoming the source of appointment of Judges to the King’s Courts.  Appointments were not made from administrators.  They were professional persons independent of the executive.  The Judges did not adjudicate according to administrative convenience but according to ‘law’ – law supported by an edifice of legal reasoning.  In the first volume of the Selden’s society Year Book Series, Maitland describes how the common law resisted the civil law in the sixteenth century – ‘not vulgar common sense and the reflection of the layman’s unanalysed instinct; rather strict logic and high technique, rooted in the Inns of Court, rooted in the Year Books, rooted in the centuries’. 

This was also the basis for the Rule of Law.

The Rule of Law is indissolubly connected with the history of the English common law.  The Rule of Law was dependent upon two things.  First, the establishment of the ‘law’ as a body of rules independent of executive authority or policy and of official discretion.  This was achieved by the ‘science’ of the common law under which rules are evolved by an apparently objective process of formal reasoning.  Secondly, the independence of those administering the legal system from the executive.

In both, the Bar was critical.  It provided the almost exclusive reservoir for the Judiciary over the centuries of the formative stages of common law.  Judges were appointed from the private Bar.  They did not, on appointment, become officials in government.  They could not, after the Act of Settlement be dismissed, in the absence of incapacity or misbehaviour.  At the same time the barristers, who were to become Judges, had the technical expertise in the processes of reasoning from precedent which was the foundation of the common law.

 

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The common law concept of a fair trial

It is difficult to realise how comparatively recent is the concept of a fair trial.  The trial jury in criminal cases dates from the thirteenth century.  Before that time trials of felony were by Appeal of Felony.  Appeal, in this context, is quite different from what we now mean by the term – a proceeding to challenge the decision of a lower court.  An Appeal was essentially an accusation.  And, it was an accusation made by a private person.  The form of trial originated by Appeal was trial by battle in which the parties fought one another.  Henry II introduced a new system for bringing felons to trial.  In 1166, in the Assize of Clarendon, Henry gave instructions to the Justices who presided at courts throughout the country that they produce twelve Knights or, failing knights, twelve ‘good and lawful men’, of each hundred who should be summoned together in order to present for trial those persons who, by common report of the neighbourhood, had been guilty of felony.  This Jury of presentment, which came to be described as the Grand Jury, was the initiator of the accusation.  It was only concerned with accusations.  The form of trial, which then took place, was trial by Ordeal – trial by battle having become otiose  An important consequence of Henry’s introduction of the Jury of Presentment was that the accusation initiating a trial was no longer made by a private appellor but by the neighbourhood represented by the jury. 

Ordeal was effectively abolished in 1215 when Pope Innocent III, after the Fourth Lateran Council, forbade the clergy from assisting in Ordeals.  This confronted the King’s Justices with a difficult problem.  How were accused persons presented for trial by the Jury of Presentment, to be tried?  Ordeal could not now be used.  Battle was no longer available.  The problem confronting the Justices arising from the abolition of Ordeal in the thirteenth century confronted Europe generally leading it to look for another mode of trial.  The Continent substituted the inquisitorial procedure of the Canon law. In England the answer to the abolition of Ordeal was to use the Jury which had already been established.  At first the jurors who formed the jury of trial were the same as those who had constituted the Grand Jury or Jury of Presentment.  Obviously these were biased against the accused.  During the fourteenth century the practice grew up of adding other jurors in order to bring some fresh opinions into the jury of trial and in 1352 a Statute allowed the accused to challenge any of the indicting jury who were put on the jury of deliverance.  This severed the two juries and removed from the trial jury the members who were obviously prejudiced.  At first also, the jury were judges and witnesses together since they acted upon their supposed knowledge, fortified by village gossip (something that is still possible in small communities).  It soon came to be found that this knowledge was defective and witnesses were allowed to be called but at first only by the Crown.

The rule that no verdict of guilty would be taken unless it was unanimous was established as early as 1367 during an Assize at Northampton.  The case is reported in the Year Books of Edward III: ‘All the jurymen agreed except one who would not agree with the other eleven.  They were remanded and stayed there all that day and the next, without drink or food.’  Then the Judge asked ‘the one who stood out if he would agree with the others: and he said never – he would die in prison first.  Whereupon the judge took the verdict of the eleven’ and imprisoned the twelfth.  But ‘afterwards by the assent of all the Justices it was declared that this was no verdict’ and the twelfth was set free ‘for men are not to be forced to give their verdict against their judgement’.

The medieval common law did not establish the concept of a fair trial but it had established the fundamentals to it:  these were the accusatory mode of trial and that a criminal trial was concerned only with proof of guilt and not with an inquiry into the truth or otherwise of allegations that had been made.  All the incidents which were to attach to the concept in English law flow from these. 

There was a reaction in the sixteenth century.  In part this originated in the violence and disorders of the fifteenth century but more so the threat of invasion by Spain and of suspected treason by the Catholic portion of the population and the fear that Elizabeth would be assassinated.  The Star Chamber had been established and English law toyed with the inquisitorial methods adopted on the continent.  It was not the common law Courts that used these methods but courts and inquisitorial tribunals established under the Prerogative.

In charges of felony the defendant was not allowed to have counsel to cross-examine witnesses – and at first not even for the purpose of arguing points of law.  Many defendants had no legal advice, even when legal questions of great difficulty and importance were in issue.

Accused were brow-beaten in court.  The intemperate conduct of counsel for the Crown which runs through the early State Trials, reached its height in the appalling vituperation poured out by Coke in his prosecution of Sir Walter Raleigh (1603). 

Not only hearsay evidence but evidence of the accused’s bad character was freely admitted to prove his guilt, and the witnesses against him were frequently perjured.  The evidence of accomplices, taken after they had been tortured in prison, or while they were under postponed sentence of death, and so subject to the greatest temptation to say whatever might be required of them, whether true or not, was admitted without reservation or caution of any kind. 

The criminal law of the 16th century is described by Lytton Strachey in Elizabeth and Essex.*  The description perfectly describes the perversion of everything which constitutes a fair trial in a society stricken by fear.  The entire passage is set out in an end note.  At this point, and in the light of the history which immediately followed, it is appropriate to refer to the Elizabethan rules of evidence and the place of torture.

 “It was in the collection of evidence that the mingled of atrocity and absurdity of the system became most obvious.   Not only was the fabric of a case often built up on the allegations of the hired creatures of the Government, but the existence of the rack gave a preposterous twist to the words of every witness.  Torture was constantly used; but whether, in any particular instance, it was used or not, the consequences were identical.  The threat of it, the hint of it, the mere knowledge in the mind of a witness that it might at any moment be applied to him – those were differences merely of degree; always, the fatal compulsion was there, inextricably confusing truth and falsehood.  What shred of credibility could adhere to testimony obtained in such circumstances – from a man, in prison, alone, suddenly confronted by a group of hostile and skilled examiners, plied with leading questions, and terrified by the imminent possibility of extreme physical pain?  …Only one thing was plain about such evidence: it will always be possible to give it whatever interpretation the prosecutors might desire.  The government could prove anything.  It could fasten guilt upon ten innocent men with the greatest facility.  And it did so, since by no other means could it make certain that the actual criminal – who might be among them – should not escape.  Thus it was that Elizabeth lived out her life, unscathed…”

The  Long Parliament met in November 1640 and from then Parliament and the Common Law began to assert their supremacy.  In particular the tendency of the Common Law Courts to follow the Star Chamber’s inquisitorial methods was suppressed.  In July 1641 a statute abolished the jurisdiction of the Star Chamber, denied the competence of the Privy Council to adjudicate on the property rights of subjects and required effect to be given to the writ of habeas corpus.

Torture had in effect been abolished following Felton’s case (1628) where the question was whether Felton could be racked.  He was charged with the murder of the Duke of Buckingham.  The Privy Council at the request of the King asked the opinion of the Judges who denied the existence of the power to implement torture.  It was attempted once more in 1640 in the case of John Archer but that is the last instance in England.

After 1640 persons charged with felony, that is to say the graver class of crimes, were in practice allowed to call witnesses.  The admission for them to do so was so grudging that until the close of that century, defence witnesses were not generally permitted to give their evidence the added credibility of the oath.*

The rule at common law was that neither the Judge nor the prosecution is entitled at any stage to question the accused.  The old Ecclesiastical courts and the Star Chamber claimed the power to summon a defendant with no warning of the charge and to examine him on oath.  Since the law was that an oath could be compulsorily administered to the defendant he could be punished for refusing to take the oath.  Throughout the second half of the thirteenth and all of the fourteenth century and under Henry VIII and Elizabeth the common lawyers resisted the inquisitorial procedures of the Ecclesiastical Courts.  Under Elizabeth they began to base their opposition upon the principle that a person could not be compelled to furnish under oath answers to charges which had not been formally made and disclosed except in Wills cases or matrimonial causes.

But what was the situation after an accused had been properly charged?  As early as the 1640’s the accused began to claim and common law Judges to concede that a man on trial could not be compelled to answer questions which would disclose his guilt.  John Lilburn, who was charged in 1637 with sending seditious libels out of Holland into England, refused to take the oath – described as an ex officio oath which was administered in the Star Chamber and the ecclesiastical courts – and was punished by being whipped from the Fleet to the pillory, receiving upwards of 500 lashes and then being made to stand in the pillory for two hours and fined 500 pounds.  After being punished he appealed to the Commons, which in 1640, voted his sentence ‘illegal, and against the liberty of the subject’ and ordered him to be compensated.

It was in the same year that the Court of Star Chamber was abolished and ecclesiastical tribunals were forbidden from administering ex officio oaths by which a man would be required to confess anything which would expose him to any censure, pain, penalty or punishment.  In 1645 the House of Lords heard the petition of Lilburn.  The House ordered his sentence to be totally vacated as ‘illegal, most unjust, and against the liberty of the subject and law of the land and Magna Carta and unfit to continue on the record’.  In 1648 Lilburn was granted 3000 pounds in reparation.

The rule that confessions had to be proved voluntary became an established part of English law.  The classic formulation of the principle appears in Lord Sumner’s speech in Ibrahim v R (1914).  “It has long been established as a positive rule of English law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement … The principle is as old as Hale.”  Hale was a Judge and jurist in the 17th century.  The nature of voluntariness was described by Dixon. J in McDermott v R (1948) 76 C.L.R. at p.567.*

There was a setback in the latter part of the reign of Charles II and James II, especially, arising out of the trials following the Popish plot.  The prisoners were kept in close confinement until trial.  They had no means of knowing what evidence had been given against them.  They were only allowed an occasional favour to have either counsel or solicitor to advise on their defence.  Thus in Colledge* the prisoner was refused to be allowed to have papers which contained instructions for his defence on the ground that this would be tantamount to allowing him professional assistance* North, CJ said: “For counsel you cannot have it, unless a matter of law arises and that must be propounded by you; and then, if it be a matter debateable the court will engage to hear counsel but it must be upon a matter fit to be argued.  For I must tell you, a defence in the case of high treason would not be made by artificial cavils but by plain fact.”

It took a long time for it to be accepted that the Judge could not coerce the jury by threatening them with fine or imprisonment if they brought in a verdict against his direction.  In 1671, in Bushel’s case, two Quakers William Penn and William Mead were charged with unlawful and tumultuous assembly after having addressed a crowd of about 300 people in Gracechurch Street.  The Recorder of London directed the jury that on the evidence the Quakers were guilty.  The jury rejected the direction and acquitted them.  The Recorder then fined each of the jurors.  The jurors refused to pay the fine.  The Recorder committed them to prison.  But the jurors led by their foreman, Edmund Bushel, brought habeas corpus for their release.  It was agreed by all the Judges of England that the fine was not legal.  The jury was a conclusive judge of the facts and could not be subjected to a penalty for disregarding the Judges’ direction.  A related problem was of the attempt by Judges to coerce the jury.  The worst case took place during the same period at the beginning of the bloody Assize of Judge Jeffreys in the case of Dame Alice Lisle.  The case is described by Denning in his Freedom under the Law:

                                    “Dame Alice Lisle was charged with high treason because she had given some food and a night’s lodging to two men who had fought with Monmouth… It was one of the most disgraceful trials in our history.   He browbeat the jury unmercifully.  When they had been out a long time, he sent a messenger to tell them, that if they did not come back with their verdict at once, he would adjourn and they would have to be locked up all night.  They came back and said they did not think there was sufficient proof.  But Judge Jeffreys thundered at them again.  Some say that they returned three times and refused to find a verdict until Jeffreys in a transport of rage threatened them with an attaint of treason: then most reluctantly they found her guilty and she was put to death on a scaffold in the marketplace at Winchester.”

In the early 1700’s the habit of overtly questioning the defendant ceased, though whenever the defendant conducted his own defence there was in practice a strong compulsion upon him to answer the case against him, for otherwise his failure to make an effective defence would naturally be taken as an inability to do so. 

Shortly after 1760 the courts began allowing defending counsel to cross-examine witnesses and this was so even in capital cases but he still could not address the jury.  A full right to have counsel was eventually given by Statute to accused persons in 1836.

A police force was formed in 1829.  Considerable apprehension was felt about its powers. In 1827, in Beckwith v Philby it was laid down that a constable was not allowed to make an arrest unless he had reasonable grounds for believing the accused had committed a felony.  The police were obviously in a position to influence accused men to confess.  So the judges made it clear that they would not admit in evidence any confessions which had been in any way improperly obtained by the police.  Between 1837 and 1844 there were many cases in which judges ruled that even if a policeman told a prisoner that anything he might say might be given in evidence for him, or against him, the subsequent confession was inadmissible.*

This was carrying things too far.  In 1852 the prior rulings were overthrown in R v Baldry*, and it was held that where a constable had told the prisoner that he need not say anything to incriminate himself but what he did say would be tendered in evidence, the confession was admissible.  It was recognised to be right and proper that a policeman should caution a prisoner.  The Judges admitted in evidence confessions which have been freely and voluntarily made but rigorously exclude any others. 

In 1912 the Judges in England laid down the following rules which became generally applicable throughout the Commonwealth:

             ·          When a police officer has made up his mind to charge a person with a crime, he should first caution such a person before asking any questions or any further questions, as the case may be.

             ·          Persons in custody should not be questioned without the usual caution being first administered.

             ·          If the prisoner wishes to volunteer any statement, the usual caution should be administered. 

             ·          The caution to be administered to a prisoner when he is formally charged should be in the following words:  “Do you wish to say anything in answer to the charge?  You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.”  Care should be taken to avoid any suggestion that his answers can only be used in evidence against him as this may prevent an innocent person making a statement which might assist to clear him of the charge. 

It was only in 1898 that the accused was allowed to go into the box and give evidence.  He is not obliged to do so and in Australia no comment may be made upon his failure to go into the box.  But if he does go into the box and gives evidence he can of course be cross-examined and can therefore be asked questions that might incriminate him.

The English requirement of an oral hearing in open court and the rule that an accused person could not be punished for not answering questions were taken over by the French Code d’Instruction Criminelle in 1808 and have, in this way, passed into the jurisprudence of the Continent as a whole.  The jury system was widely copied at first but has since been generally abandoned.  Continental lawyers steadfastly refuse to adopt the English rules of evidence and the mode of examining witnesses that goes with them and have also, for the most part, rejected the English conception of the Judge as an umpire. 

The French system accepts the inquiry into crime as a semi-judicial activity and entrusts it to the juge d’instruction, an examining magistrate who is by nature both administrative and judicial.  On the Continent the Judge’s duty is to arrive at the truth by his own exertions in conjunction with those of the official prosecutor.  In France, for example, there is the interrogatoire of the accused by the presiding Judge, who also takes the leading part in examining witnesses.  In England, on the other hand, the examination of all witnesses is conducted by advocates for the parties.  The Judge does not himself examine witnesses.  This relative inactivity of the Judge is a feature of English procedure going back to the Middle Ages.  It was indeed the original method of criminal trial in all European countries being a kind of regularisation of primitive combat but only in England did it survive essentially in its original form.  On the Continent it was abandoned from the twelfth century in favour of the inquisitorial system.  Even England adopted this system, along with the use of torture, in the Ecclesiastical Courts and Star Chamber during the sixteenth and seventeenth centuries.  That, as we have said, has since been abandoned. 

The concept of the Fair Trial has now become part of every system of justice which claims to be civilised.  An open hearing before an impartial tribunal, onus of proof upon the prosecution, the right to be heard, the presumption of innocence, restrictions upon self-incrimination are some of the agreed elements of it.  These and others have now been embodied in the International Covenant on Civil and Political Rights.

England and the common law can justifiably claim the major responsibility for this particular contribution to civilization, although other systems of jurisprudence have played an important part.  Notable have been the decisions of American Courts in making specific the general obligation of procedural due process.  Departures from concept are frequent enough but few governments are prepared to admit to it.

So important is justice to the individual accused when faced with the immense power of the State and its apparatus of coercion that the community is prepared to tolerate and indeed insist upon procedural standards which may, and certainly do, allow a certain proportion of guilty persons to go free.  It can only be because of a sufficiently general acceptance that these procedures guarantee us all personal security against the power of the State.

But the concept is fragile.  In ordinary times it will only continue to command assent if the number of guilty persons who go free is not so high as to threaten the preservation of law and order.  Also, it flows from the consideration that the various sub-rules which give life to the concept have all arisen historically from a disparity between the power of the State and the individual.  Where in the course of time the balance becomes less favourable to the State the sub-rules may need to be modified.  A modern example concerns the rules against self-incrimination and the right to silence.  The fairly categorical character of these rules were worked out over time when, in Coke’s words, “laymen, for the most part are not lettered and may easily be inveigled...”.  Their application today may involve executives of large corporations amply serviced by lawyers pleading the 5th Amendment.

But a greater danger to the fragility of the concept, in these times, may come from excessive response by the State to security concerns.  The Military Commissions established by President Bush under a Military Order of November 2001 to try Guantanamo Bay detainees disregards very many components of the fair trial concept.  These Military Commissions resemble more closely the courts which secretly tried dissidents in the former Soviet Union and the East European countries under communist rule and were correctly described as ‘show’ trials.

 

John Greenwell

March 2007

 

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The reign of law and the reign of terror - effect upon the fair trial in Elizabethan England

“And now began one of those strange and odious processes which fill the obscure annals of the past with the ironical futility of human justice.  The true principles of criminal jurisprudence have only come to be recognised, with gradually increasing completeness, during the last two centuries; the comprehension of them has grown with the growth of science – with the understanding of the nature of evidence, and the slow triumph in men’s mental habits, of ordered experience and reason.  No human creature can ever hope to be truly just; but there are degrees in mortal fallibility, and for countless ages the justice of mankind was the sport of fear, folly and superstition.  In the England of Elizabeth there was a particular influence at work which, in certain crucial cases, turned the administration of justice into a mockery.  It was virtually impossible for anyone accused of High Treason – the gravest offence known to the law – to be acquitted.  The reason for this was plain; but it was a reason not of justice but expediency.  Upon the life of Elizabeth hung the whole structure of the State.  During the first thirty years of her reign, her death would have involved the accession of a Catholic sovereign, which would inevitably been followed by a complete revolution in the system of government, together with the death or ruin of the actual holders of power.  The fact was obvious enough to the enemies of the English polity, and the danger that they might achieve their end by the Queen’s assassination was a very real one.  The murder of inconvenient monarchs was one of the habits of the day.  William of Orange and Henry III of France had both been successfully obliterated by Phillip and the Catholics.  Elizabeth on her side had sought, though, indeed, rather half heartedly – to have the Queen of Scots secretly put out of the way, in order to avoid the public obloquy of a judicial execution.  Her own personal fearlessness added to the peril… In such a situation only one course of action seemed to be possible:  every other consideration must be subordinated to the supreme necessity of preserving the Queen’s life.  It was futile to talk of justice; for justice involves, by its very nature, uncertainty; and the government could take no risks.  The old saw was reversed; it was better that ten innocent men should suffer than that one guilty man should escape.  To arouse suspicion became in itself a crime.  The proofs of guilt must not be sifted by the slow processes of logic and fair play; they must be multiplied – by spies… by torture.  The prisoner brought to trial should be allowed no counsel to aid him against the severity of lion-hearted judges and the virulence of the ablest lawyers of the day.  Conviction should be followed by the most frightful punishment.  In the domain of treason, under Elizabeth, the reign of law was, in effect, superseded, and its place was taken by a reign of terror.”*

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Footnotes

 



*           This is so even today.  In the 17th century it was decided that the prerogative was subject to law and since the Revolution subject to statute, but it otherwise remains.  It cannot be lost by disuse.  An example of prerogative still retained by the Crown is the power to declare war.  The executive can do this independently of Parliament.

 

*           See C. K. Allen, The Queen’s Peace, Stevens, p.4.

 

*           Chrimes, English Constitutional History, Oxford, p.53.

 

*           This doctrine evolved with the increase of power conferred upon or asserted by the Emperors.  At the outset of the principate, Augustus (d. 14 A.D.) was cautious, carefully following the forms of the Republic.  The Lex de Imperio conferred authority upon the Emperor over certain administrative matters but Augustus still relied upon the Consul to steer legislation through the Senate.  By the time of Hadrian (117-138 A.D.) the Emperor’s authority to make laws directly was recognised and the Constitutiones, as they were called, increasingly became a source of Roman Law.  Ulpian, in the third century, was only declaring as principle what had become the situation in fact. 

 

            As mentioned in the text the origins of the idea of the supremacy of law in England were Germanic.  That idea prevailed over any doctrines of imperial power which Ulpian sought to legitimize. Only very much later was Ulpian relied upon in England to support the theory of the Divine Right of Kings, Bryce, Holy Roman Empire, 1922, Chapter xxii, p.429.

 

            But on the Continent Ulpian’s principle of imperial absolutism had a continuing influence.  Holy Roman Emperors saw the Holy Roman Empire as a direct descendent of the Roman Empire if not a continuation of it.  Emperors, such as Henry IV, relied upon Ulpian in their contest with the Papacy in the Investiture dispute, Barraclough, History in a Changing world, Oxford, 1957, p.121.

 

            The ultimate supremacy of the idea of law on the Continent depended to a greater extent upon the idea of natural law or, more precisely, upon the identification of natural law with the law of God.  The originator of this was a Bolognese monk, Gratian, who in about 1150 systemetized the enormous bulk of canons, conciliar rulings and Papal decretals which constituted Church law, Pollock, The History of the Law of Nature, Journal to the Society of Comparative Legislation, 1900, p.418.  He arranged the sources of law in an hierarchical order.  Highest was Divine Law.  It comprised God’s will as reflected in revelation and in natural law as reflected in human reason and conscience.  From this Gratian concluded that “the laws of Princes ought not to prevail over natural law”, Decretum. Dist IX, Para I,c.i.  He also laid down that natural law required that “Princes are bound and shall live according to their law”, Dist IX, Para. I,c.2.  He thus explicitly rejected Ulpian’s proposition.  Gratian sought to support the Papacy.  In 1075 Pope Gregory had declared the supremacy of the Papacy and the independence of the Church from secular control.  “The Church must have her own jurisprudence, her own jurisdiction that set the Vicar of Christ where the Roman Empire had been”, E.F. Jacobs, The Legacy of the Middle Ages, Oxford, p.514.  The subordination of the State to natural law became, in the next century, embodied in Church doctrine by Thomas Aquinas in his Summa Theologica.  Secularised, natural law became part of the European tradition by which the state became subordinated to law.

 

*           Maitland, Forms of Action, Cambridge, p.12.

 

*           Compurgation required the accused to produce a proscribed number of oath-helpers to swear to his innocence.  These oath-helpers did not depose to facts but generally to the innocence of the accused.  The efficacy of compurgation depended upon the dread of what might follow a false oath.  Ordeal was of Germanic origin but had been sanctioned by the church.  The outcome depended upon supposed divine intervention.  Because it involved an appeal to the supernatural it was carried out under clerical supervision.  An example of Ordeal was the Ordeal of hot iron.  The accused had to carry a hot iron in his hand for nine steps.  His hand was then bound up.  If, when it was uncovered on the third day, it festered, he was guilty; if healthy, he was innocent.

 

*           For a description of trial by battle see Holdsworth, History of English Law, Methuen Vol 1, pp.688-679.

 

*           Pollock and Maitland, History of English Law, Cambridge, Vol 1, p.203.

 

*           Pollock and Maitland, History of English Law, Vol 1, p.185.

 

*           Smith v Lane, (1585) And 191, Peplow v Rowley (1615) Cro.Jac. 357

 

*           Allen, Law in the Making O.U.P p.126.

 

*           Pollock and Maitland, op cit, p.186.

 

*           We may contrast this development with France.  The French Royal Courts never created or applied a uniform body of law throughout the realm.  The Parlements were essentially courts of appeal from feudal courts and minor royal tribunals of first instance.  Their original jurisdiction was limited to a few matters of direct interest to the King.  Before the Revolution France was divided into pays des coutumes (customs) and the pays des droit ecrit (written law).  France, north of the line from Geneva to Bordeaux was the pays des coutumes and the territory south of that line was Roman law based on Justinians’ Code.  Attempts were made from the fifteenth century until the Revolution to codify the coutumes.  In the end these were not successful.  At the Revolution 60 different grandes coutumes and 300 coutumes locales could be identified.

 

*           Law in the Making, op. cit. p.186.  Allen however emphasises that there was not, at this time, any explicit doctrine that precedents were binding: see also Rupert Cross, Precedent in English Law, second edit, O.U.P. p.20.

 

*           See infra, The History of the Bar and the Rule of Law.

 

*           Bracton, De Legibus, Lib i, cviii.  These words of Bracton – that the King was ‘sub deo et sub lege’ would be repeated centuries later by Coke in his Sunday morning altercation with James I and by Bradshaw at the trial of Charles I. 

 

*           Joliffe, Constitutional History of Medieval England, Norton, p.158.

 

*           Statute 15th of Edward II (1322) declared that: “The matters to be established for the estate of the King and of his heirs, and for the estate of the realm and of the people, should be treated, accorded and established in Parliament by the King, and by the assent of the prelates, earls and barons and the commonality of the realm, according it has been before accustomed.”

 

*           At first these King-in-Council laws were called ordinances.  Later they became described as Proclamations.

 

*           De Laudibus legum Angliae.

 

*           Pollock & Maitland, History of English Law, Cambridge, Vol 1, p.178.

 

*           Allen, Law in the Making, Oxford, p.365.

 

*           This statute prohibited the practice of subinfeudation:  that is the granting of lands held in fee simple to another person to hold of him in fee simple.  This was prohibited so that the ultimate grantee would hold from the original owner.

 

*           Maitland, Forms of Action, Cambridge, pp.51-52.

 

*           although it was from the ‘in consimili casu’ provision that the writ of trespass on the case was allowed and from which the modern law of negligence evolved.

 

*           Penguin, pp.230-231.

 

*           Maitland, Constitutional History of England, Cambridge University Press, p.19.

 

*           Chrimes, Opus, English Constitutional History, p.79.

 

*           Hallam, Ward, Locke and Co., Constitutional History of England, p.18.

 

*           1598.

 

*           Encyc. Britt. Vol 2, p.783.

 

*           See Pound, An Introduction to the Philosophy of Law, pp.53-54.

 

*           See Kishlansky, Geary, O’Brien, A Brief History of Western Civilization, pp.478-479.

 

*           Leviathan, Ch.xviii.

 

*           The World’s Classics, Essays by Bacon.

 

*           Windeyer, Legal History, p.196.

 

*           State Trials 13 Charles I, 1637, Vol II, pp.826-1315.

 

*           Windeyer, Legal History, Law Book Co., p.171.

 

*           This description of the Sunday morning altercation draws upon The Lion and the Throne, Catherine Drinker Bowen, Hamish Hamilton, pp.261-264.

 

*           (1611) 12 Co. Rep. 74.

 

*           Maitland, Constitutional History of England, p.302; Wade and Phillips, Constitutional Law, Longmans Green and Co pp.29-30.

 

*           (1606)2 ST. Tr. 371.

 

*           The King v Hampden (1637) 3 ST. TR. 825.

 

*           (1674) Vaughan 330.

 

*           The Crown in this instance is acting not in its executive function but as part of the legislature.

 

*           (1627) State Trials, Vol 3, 1-59.

 

*           “The ecclesiastical judge cannot examine any man upon his oath, upon the intention and thought of his heart.  Cogitation is poenam nemo emeret (no man may be punished for his thoughts) for it has been said in the Proverb thought is free.”

 

*           3 State Trials 371.

 

*           Holdsworth, Metheun, History of English Law Vol 4 (1924) pp.187-188.  Although the relationship between the common law and Parliament was generally one of allies there were conflicts.  One of the most important occurred over parliamentary privilege and contempt of Parliament which came to a head with the proceedings of Parliament against John Wilkes.  Parliament had never acquiesced in the decision of Holt CJ and the House of Lords in Ashby v White (1704) 2 Ld. Raym 938 that although it was a matter for Parliament to decide whether an established privilege had been breached, it was for the Courts to decide whether a privilege existed.  Eventually though by the mid-nineteenth century Parliament had to accept the degree of legal control Lord Holt had declared.

 

*           “The recognition of the legislative powers of parliament precluded insistence on the part of the lawyers that in the common law there existed a system of fundamental laws which parliament could not alter… the price paid by Coke and his followers for their alliance with parliament, which ensured the defeat of the Crown’s claim to rule by prerogative, was that the common law could be changed by parliament.”  E.C.S. Wade, Law of the Constitution, Dicey, Introduction, MacMillan & Co.

 

*           Until the late 20th century when Britain adhered to the European Convention on Human Rights.

 

*           R v Halliday ex parte Zadig (1917) A.C. 260 and Liversidge v Anderson (1942) A.C. 240.

 

*           Lord Atkin said: “In this country, amid the clash of arms, the laws are not silent.  They may be changed, but they speak the same language in war as in peace.  It was always been one of the pillars of freedom, one of the principles of liberty for which we are now fighting, that the judges are no respectors of persons and stand between the subject and any attempt at encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.  In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.  I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.”

 

*           The Commissions of the Chief Baron of the Exchequer and other Barons of the Exchequer were exceptional and were always quamdiu se bene gesserint, ie, during good behaviour.

 

*           12 and 13 William 3 c 3.

 

*           Maitland, Constitutional History of England, pp.312-313, Holdsworth, History of English Law, Metheun, Vol 1, p.195.  It would seem that misbehaviour includes, firstly, improper exercise of the judicial function; secondly, wilful neglect of duty or non-attendance, and, thirdly, a conviction for any ‘infamous’ offence, which although not connected with the judges office rendered him unfit to exercise any office or public franchise.

 

*           Not though on the Continent which, as we shall see, feared the power of the judiciary precisely because of the way it had interpreted and applied the law.

 

*           Heydon’s case (1584) 3.Rep.7a.

 

*           See Glanville Williams, Language and the Law (1945) Law Quarterly Review.

 

*           “But to the words of the Parliament whose literal authority it (the common law) thus recognised it accorded none of that aura of respect and generosity of interpretation with which it surrounded its own doctrines... Draftsmen tended to concern themselves with minutiae, so that their intention may be manifest in every particular instance to upset the hydra-headed presumptions in the courts in favour of the common law.”  R.T.E. Latham, The Law and the Commonwealth in Survey of British Commonwealth Affairs vol. 1, (1937), pp.510-511.

 

*           This finality is, however, very much more apparent from a retrospective perspective.  It could not have been assumed in the 1680s that the Divine Right of Kings was at an end.  After discovery of the Rye House Plot and the beheading of Lord Russell there followed many abject protestations of loyalty, notably by the University of Oxford, which formally and publicly denounced what we would now call democratic propositions.

 

*           “All through English history to this time the qualification of the voter has depended in some manner or another on his relation to what loosely speaking we may call real property… situated within the county or borough.” Maitland, Constitutional History of England, p.352.  Progress was slow.  The Reform Act 1832 abolished rotten boroughs and ended the ascendency of the landed class but it admitted only half the middle class and the workers were left unenfranchised.  It added only 217,000 voters.  At that time there were only 435,000 in England.  The second Reform Act (1867) brought in the town workers so that 1,400,000 were added to the electorate.  But that was still only one in 30 persons in the United Kingdom as a whole.  Fifteen years later the agricultural franchise was conferred.  It was only in 1918 that all property qualifications were done away with and where women were granted the vote.  Significantly the secret ballot was introduced in 1872, Introduction to Contemporary History, Penguin, Barraclough, p.124, and The Government of Mankind, J A Spender, Cassell, p.304.

 

*           Locke had been in the service of and very friendly with Lord Shaftsbury, author of the plot.  The plot itself had aimed to prevent the accession of Charles II’s brother James to the throne.

 

*           In the preface Locke wrote that “I hope (the Treatises) are sufficient to establish the throne of our great restorer, our present King William; to make good his title in the consent of the people, which being the only one of all lawful governments…”.

 

*           Kelly & Harbison, The American Constitution, its Origins and Development, Norton, p.90.

 

            “We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.  That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government…”.  It is possible that the only word in this Locke might have wished to alter would have been the substitution of “property” for “happiness”.

 

*           “In a pre-political society everyone is equal in that none has powers over his fellows.  All are subject to the law of nature, according to which no one ought to harm another in his life, liberty or property.  But in the state of nature man’s rights are insecure.  Only the civil society can provide that.  So the adult members of the society make a contract whereby each agrees to assign to civil society the power necessary to the ends for which they will unite in society...  The great and chief end, therefore, of men’s uniting into Commonwealths, and putting themselves under government, is the preservation of their property...”, Second Treatise.

 

*           “This is more than Consent or Concord:  It is reall Unitie of them all… made by a covenant of every man with every man”, Leviathan.

 

*           Even Hobbes though did contemplate that in some very extreme circumstances where the sovereign had ceased to provide the minimum protection for the people he could be overthrown.

 

*           Locke, Second Treatise, para.98.

 

*           The Freeholder No. 1.

 

*           “The supreme power cannot take from any man any part of his property without his own consent.  For the preservation of property being the end of government, and that for which men enter into society, it necessarily supposes and requires that the people should have property, without which they must be supposed to have that by entering into society which was the end for which they entered into it.” Second Treatise.

 

*           The Second Treatise.

 

*           Locke was a friend of Newton.

 

*           The view has been advanced that the ultimate foundation of the English Constitution is the common law and that judges, although bound to recognise the superiority of an Act of Parliament to a common law rule, can enquire into and decide upon the authenticity of an Act of Parliament:  See The Common Law as an Ultimate Constitutional Foundation, Sir Owen Dixon, 1957-58 31 ALJ 240;  Trethowen’s case, Parliamentary sovereignty and the limits of legal change, W. Friedmann, 1950-51 24 ALJ 103; A.V. Dicey, Study of the Law of the Constitution, Introduction E.C.S. Wade, xliii-lxxvii; R.F.V. Heuston, Oxford Essays in Jurisprudence, ed. A.G. Guest, 198, 216-222.

 

*           “Whensoever, therefore, the legislative shall transgress this fundamental rule of society, and, either by ambition, fear, folly, or corruption, endeavour to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the People by this breach of trust they forfeit the power the People had put into their hands for quite contrary ends.  And it devolves to the People, who have a right to resume their original liberty and, by establishment of a new legislative...”.

 

*           See however Alexander Hamilton in the Federalist No. 78, infra.

 

*           See supra the possibility that the common law should be treated as a fundamental law.

 

*           The Agreement of the People provided “if anyone should enquire why we should desire to join in an agreement with the people to declare these to be our native rights, and not rather to Petition to the Parliament for them: the reason is evident.  No Act of Parliament is or can be unalterable and so cannot be sufficient security to save you or us harmlesse, from what another Parliament may determine if it should be corrupted.”

 

*           Provisions in these colonial state Bills of Rights reflected the English Bill of Rights of 1689 and the traditional guarantees in Magna Carta and the common law as to procedural rights and a free trial.  Perhaps the best known was the Virginia Bill of Rights drafted by George Mason and adopted in 1776.  No Bill of Rights was included in the Federal Constitution which was approved by an overwhelming majority of the states at Philadelphia in September 1787 but when it was submitted to the states for ratification many of the states sought and were promised that a Bill of Rights would be included in the Constitution and President Washington recommended this on his inauguration.  So the first ten Amendments to the American Constitution constituting the Bill of Rights became part of the Constitution in November 1791.  These included the famous first Amendment – no abridgment of freedom of religion; freedom of speech or freedom of the Press.  Later amendments were added.  But it was by no means clear at this stage that this meant laws passed by Congress could be adjudged invalid by the Supreme Court because they violated the Bills of Rights or any other provision of the Constitution.

 

*           Locke had adverted to the separation of powers.  But Locke, with the supremacy of parliament in mind did not believe in it in the sense of “independence and equality” of legislature and executive.  “There can be but one supreme power, which is the legislative, to which all the rest must be subordinate”, Second Treatise, para.149.  But he recognised the difficulty, “it may be too great a temptation to human frailty... for the persons who have the power of making laws to have also in their hands the power to execute them whereby they may exempt themselves from obedience to the laws they made.”  For this reason “the legislative and executive power come often to be separated.”

 

*           The influence of Montesqieu can be seen in Blackstone’s Commentaries on the Laws of England published in 1765:

 

            “In this distinct and separate existence of the judicial power... consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice can be in some degree separated both from the legislative and also from the executive power.  Were [judicial power] joined with the legislative, the life, liberty and property of the subject would be in the hands of arbitrary judges, whose decisions would then be regulated only by their own opinions and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe.  Were it joined with the executive, this union might soon be an overbalance for the legislative.  For this reason, by the statute of 16 CI c 10 which abolished the court of Star Chamber, effectual care is taken to remove all judicial power out of the hands of the king’s privy council; who, as then was evident from recent instances, might soon be inclined to pronounce that for law, which was most agreeable to the prince or his officers.  Nothing is therefore more to be avoided in a free constitution, than uniting the provinces of a judge and minister of state.”

 

*           In almost all modern Constitutions the judicial department of government is kept separate from the legislative and the executive.  The independence of the judiciary enacted in the United Kingdom Act of Settlement is reflected in these Constitutions.  See for example the Australian Constitution, Sect.1, “The legislative power of the Commonwealth shall be vested in a Federal Parliament”; Sect.71, “The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia...”; Sect.72 “The justices of the High Court shall not be removed except by the Governor-General in Counsel on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity; shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.”.

 

*           The French Legal System, René David and Henri P. de Vries, Oceana, 1958, p.3.

 

*           Thus the French Declaration, possibly influenced by Rousseau’s volunté generale, declares the nation to be the source of sovereignty, Article III, and that ‘the law is an expression of the will of the community’ in which ‘all citizens have a right to concur’, Article VI.  Also, and perhaps more importantly signifying a difference of legal function, the Declaration modifies the particular right ‘by the law’ in a number of instances.  That is, ordinary law is allowed to modify the extent to which the right would otherwise be applicable.  In this respect the ‘right’ is to have a residuary operation legally subordinate to the provisions of positive law.  No such limitation is set out in the first ten Amendments to the American Constitution.  At all times it assumes any purported contravention of the prohibitions in the Constitution would render the contravening law void.

 

*           The Declaration in its Preamble makes clear that the French National Assembly was looking elsewhere from judicial control to preserve and protect rights:

 

            “The representatives of the People of France, formed into a National Assembly... Have resolved to set forth in solemn Declaration these natural, imprescriptable and inalienable rights; that this Declaration being constantly present to the minds of the members of the body social, that they may be ever kept attentive to their rights and duties; that the acts of the Legislative and Executive and executive powers of Government, being capable of every moment being compared with the end of political institutions, may be more respected...”

 

*           Merryman, The Civil Law Tradition, Stanford, p.16.

 

*           Merryman, op.cit., p.30.

 

*           See Merryman, op.cit., pp.40, 41 & 42.

 

*           Merryman, op.cit., p.41.

 

*           “Eventually the mere quashing of the decision was dropped and the Tribunal not only indicated that the judicial decision was wrong but what was the correct interpretation of the Statute.  It came to be called the Court of Cassation.  Paradoxically, in France, as well as in Italy the court which is at the apex of the judicial system, which is manned by judges and has the highest responsibility for the correct and uniform interpretation of Statutes was the direct descendent of a legislative tribunal originally created to keep the power of interpretation out of the hands of the judges.”  Merryman, op.cit., p.42.

 

*           David and de Vries op.cit. pp.31-32.

 

*           Wheare, Modern Constitutions, Oxford Paperback University Series, p.103.

 

*           Marbury v Madison (1803) 1 Cranch. 137.  Marbury v Madison established judicial review of the Constitution.  In the course of his famous exposition of that principle, Marshall CJ said, “To what purpose are powers limited, and to what purpose is that limitation committed to writing if these limits may, at any time, be passed to those intended to be restrained?...  The Constitution is either superior, paramount law, unchangeable by ordinary means or it is on a level with ordinary legislative Acts...”

 

            The historical question whether judicial review was contemplated by the founders of the Constitution at Philadelphia has been much debated.  One of the earliest proponents in favour of it was Alexander Hamilton in No. 78 of the Federalist Papers.  These were written by Hamilton and Madison after the Philadelphia Convention in 1787 and before ratification of the Constitution by the States and indeed were written with the intention of persuading the states to do so. 

 

            In a letter he wrote to Madison on 15 March 1789, only three months before the first 10 amendments of the Bill of Rights were introduced, Jefferson said, “In the arguments in favour of a Bill of Rights, you omit the one which has great weight with me; the legal check which it puts in the hands of the Judiciary”.  He had, in the same letter, warned of the “tyranny of the legislatures”. 

 

            However, the outcome of this historical debate does not matter greatly to us.  Constitutional judicial review was established in 1803 and, despite distinguished sceptics such as Mr Justice Holmes and Judge Learned Hand, has been accepted and applied in the United States ever since.

 

*           Annals of Congress, First Congress, First Session, June 8, 1789, Washington 1834, 457.

 

            The first ten amendments were proposed by Congress on 25 September 1789 and ratified by sufficient states by 15 December 1791.  The 14th amendment was proposed on 16 June 1866 and declared ratified on 21 July 1868.

 

*           Various writers have sought to claim the judicial review of the Bill of Rights is democratic.  In some way they seem to feel any acknowledgement that it is non-democratic would be an admission of imperfection.  The earliest was Alexander Hamilton in No. 78 of the Federalist as has been mentioned.  His reliance upon the “people” who were to ratify the Constitution is so nebulous in regard to future legislation that Alexander Bickel is surely correct in characterising it as mystic.  The best discussion of this whole question is in Alexander Bickel’s work, The Least Dangerous Branch, The Supreme Court at the Bar of Politics, Bobbs Merill Educational Publishing, Indianapolis, pp.16-29.  As he there says “The root difficulty is that judicial review is a counter-majoritarian force in our system”, p.16.  In West Virginia Board of Education v Barnette 319 US 624 (1943) Mr Justice Jackson said, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy; to place them beyond the reach of majorities”.

 

*           Huddart Parker Pty Limited v Moorehead (1908) 8CLR 330 at 357:  Prentis v Atlantic Coastline Co (1908) 211 US 210 at 226-227.

 

*           H.L.A. Hart, The Concept of Law, Clarendon Law Series O.U.P., p.127.

 

*           J. Stone, Legal Systems and Lawyers Reasonings, Maitland Publications 1968, Ch.7 p.263: R. Pound, The Administrative Application of Legal Standards (1919) 44 ABAJ 440; Paton, Jurisprudence, 4th edit. p.236; Dixon, Concerning Legal Judicial Method, 1955-56 29 ALJ 468.

 

*           One can refer to many examples of this.  Section 1 of the Sherman Act 1890 provides that “Every contract, combination ... or conspiracy in restraint of trade or commerce ... is illegal.”  In United States v Trenton Potteries (1927) price fixing was held to be illegal per se.  No evidence need to be elicited as to its unreasonableness.  In an earlier case a sub-rule was devised known as the rule of reason which would be applied to determine whether a particular restraint was in fact illegal under the Act, US v Chicago Board of Trade (1918).

 

*           In R v Sharkey (1949) 79 CLR 121 Dixon, J. refused to regard the phrase, “peace order and good government” as definite enough to furnish a nexus with federal power.

 

*           Dixon CJ, Builders’ Labourers Case (1958) 31 ALJ 670 at 673.

 

*           Section 92 of the Australian Constitution provides a case for consideration.  The section provides that ‘trade, commerce and intercourse among the States... shall be absolutely free”.  In the Privy Council Lord Wright considered the phrase “absolutely free”.  He thought it so indeterminate as to be nearly but not quite impossible to define.  “The use of the language involves the fallacy that a word completely general is the most effective.” James v The Commonwealth (1936) 55 CLR 1.

 

*           Article 1 reads as follows:  “Congress shall make no law respecting an establishment of religion: or prohibiting the free exercise thereof; or abriding the freedom on speech, or of the press; or the right of peacable people peaceably to assemble, and ...”.

 

            Article 5 provides, inter alia, “No person ... shall be compelled in any criminal case to be a witness against himself nor be deprived of life, liberty or property, without due process of law;.”

 

            Article 14 provides, inter alia, ... “No State shall  make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.”

 

*           In the Banking Case the Privy Council, in speaking of Section 92 of the Australian Constitution made a similar observation:  “The problem to be solved will often be not so much legal as political, social and economic, yet it must be solved by a court of law”, Commonwealth of Australia v Bank of New South Wales (1950) AC at p.311 and further at p.639, “it is generally recognized that the expression ‘free’ in s.92, though emphasised by the accompanying ‘absolutely’, yet must receive some qualification.  It was, indeed, common ground in the present case that freedom of trade, commerce and intercourse in a community ruled by law requires some degree of restriction upon the individual”.  An attempt was made by the High Court, especially under the Chief Justiceship of Dixon, to interpret the provision with ‘strict and complete legalism’, by a test originally enunciated by him in dissent in O Gilpin Ltd v Commr. For Road Transport and Tramways (NSW) (1935) 59 C.L.R. 189 at 205-206.  This attempt was finally jettisoned by a unanimous High Court in Cole v Whitfield (1988) 62 A.L.J.R. 303 in which it was said of the doctrine that “in truth the history of the doctrine is an indication of the hazards of seeking certainty of operation of a constitutional guarantee through the medium of artificial formula”.

 

*           In his work on Constitutional Limitations (1868) Cooley had stated that the due process clause embraced all the ‘natural rights’ contemplated by the Declaration of Independence and that among those inalienable rights were property interests.  These were to be immune from legislative interference.  It was then held that it protected liberty of contract.  Mr Justice Field held that it followed from the natural rights in the Declaration of Independence that the right to engage in any business should be unhindered.  This lead to a line of decisions upholding absolute freedom of contract.  Any legislative attempt interfering with this was struck down as invalid.  Prominent examples were Lochner (1901), in which a New York law limiting employment in bakeries to 10 hours per day was held contrary to due process, Adair (1908), where the Court held Congress could not constitutionally prohibit a rail road from discharging workers who joined a Labour Union because the prohibition interfered with liberty of contract, and Adkins (1923), in which the Minimum Wages Act passed by Congress for the District of Columbia was invalidated. 

 

            “Due process of law” was just another phrase for the ‘law of the land’ used in Magna Carta and which became incorporated in Colonial Charters, State Constitutions and the Fifth Amendment and was taken in this context to refer to the kinds of procedural safeguards associated with a fair trial.  Substantive due process was in fact a judicial creation with little basis in the text of the Constitution and much in the social and economic philosophy of the judges.

 

*           163 US 537.

 

*           347 US 483 (1954).

 

*           Dixon, Concerning Judicial Method, 29 ALJ 268.  One amendment should be made to Dixon’s statement.  Legalism does, as he says, imply that decisions are ‘correct’ or ‘incorrect’ but it also implies a third category.  A decision may be ‘not incorrect’.  That is, one can say of two differing decisions that neither is ‘incorrect’.  Had the decision in Donohue v Stephenson (1932) been that of the dissentients, one would hardly have said that the decision was on that account correct or, given the decision that was in fact made, that the decision was incorrect.  One could say of both possible decisions that neither would have been incorrect.  The reason for this is that the logic of analogies permits a Court to declare which of one of two possibilities is determinative.  This does not mean everything is capable of falling into this intermediate category.  Thus a decision that a written contract may be contradicted and substituted by parole evidence of the subjective intention of the parties would, quite simply, be wrong. 

 

*           In Bakke (1978) the Court held an affirmative action Plan of the medical school of the University of California at Davis to be invalid as it required a fixed quota of minority admissions.  However, five of the Justices ruled that a University could take race into consideration as one of a number of factors.  Since then the Court has whittled down Bakke in such cases as Croson (1988), Adarand Constructions v Pena (1995) and Hopwood (1996).  The issue is currently (2003) before the Court again in the Michigan affirmative action cases.

 

*           T. Emerson, Towards a Theory of the First Amendment, Vintage, p.56.  Mr Justice Black has been associated with the construction of the First Amendment described as ‘absolute’ but the description seems to have been used only to distinguish his approach from the principle of ‘judicial restraint’ advanced by Mr Justice Frankfurter.  It seems to be only a rejection of what he would regard as judicially introduced qualifications not derived in any way from the text but that Mr Justice Black did not treat the First Amendment as literally absolute, is apparent from his own decisions in the ‘sit-in-demonstration’ cases.

 

 

*           341 US 494 (1951).

 

*           Robert Dahl, Decision Making in a Democracy:  The Supreme Court as a National Policy Maker, Journal of Public Law Volume VI 279-295.

 

*           Benjamin Cardozo, the great jurist had spent most of his judicial life on the New York Court of Appeals.  Going to Washington in his final years to fill Holmes’ seat on the court but “longing to return to the ‘lawyers court’ he had left behind in New York, (he) complained to Professor Frankfurter with tears in his eyes that the Supreme Court is not a Court of Law”, as recounted by Bernard Schwarz with Stephan Lesher in Inside the Warren Court 1953-1969.

 

*           For an extreme instance of expressly abandoning legalism in the interpretation of the American constitution and urging the court to overtly assume the legislative role of balancing interests in the case of terrorism, see Richard Posner, Not a suitable pact:  The Constitution in a Time of National Emergency, Oxford University Press.

 

*           The English Constitution, The World’s Classics, pp 130,131: see  generally, Geoffrey Barraclough, An Introduction to contemporary History, Pelican, pp 126-128.

 

*           China and Saudi Arabia are outstanding exceptions to the general trend. There have been some important instances, such as Burma and Algeria, where elections have been held but the result, being unfavourable to those in power, have been nullified. More often elections have been marred by corruption and malpractice. This though involves conceding the legitimacy of the democratic principle. A dilemma resulting from elections has occurred where the majority vote for a party which opposes democracy, as in Hitler’s Germany. It becomes in effect the last election.

 

*           Apartheid South Africa was a very curious case. The rule of law, in the sense of a separate judiciary independently observing and applying the law legalistically, had largely remained during the apartheid regime whilst rights were appallingly denied on racial grounds in those laws.

 

*           see O. D.Schreiner, The Contribution of English Law to South Africa and the rule of law, Hamlyn Lecture series.

 

*           Perhaps few issues more clearly demonstrate this than the abortion cases.

 

*           Foreign Affairs, Nov/ Dec 1997.

 

*           See Suruhanjaya Hak Asasi Manusia Malaysia, Review of the Internal Security Act 1960; Amnesty International, Malaysia, Human Rights Undermined: Restrictive Laws in a Parliamentary Democracy, ASA 28/06/99.

 

*           Sir Thomas More in A Man for all Seasons ,Robert Bolt, Heinemann, p.92.

 

*           This did not last: see the provisions relating to control orders, Division 104 of the Commonwealth Criminal Code ; the provisions relating to preventative detention, Division 105 of the Commonwealth Criminal Code and the National Security Information, Criminal and Civil Proceedings Act (2004).

 

*           Siepmann, Radio, Television and Society, Oxford, p.216.

 

*           See the essay ‘The Rule of Law and the Democratic Principle’.

*           See Allen, Law in the Making 4th edit. pp.186-187.

 

*           Penguin Modern Classics,p.54.

 

*           See generally The Proof of Guilt, Glanville Williams, The Hamlyn Lectures, Stevens.

 

*           “If he (the accused) speaks because he is overborne his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne.  If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.  But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement was made.”  It is to be noted that this rule, as with so many others, flow from the accusatory nature of the English trial.  As Frankfurter, J. explained in Rogers v Richmond (1961) 365 US 534: “Our decisions under the 14th Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary ie the product of coercion, either physical or psychological, cannot stand.  This is so not because such confessions are unlikely to be true but because the method used to extract them offend and underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system – a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against the accused out of his own mouth…”

 

*           8 State Trials 549-563.

 

*           8 State Trials 570.

 

*           R v Drew (1837) 8 C & P 140; R v Morton (1843) 2 M & R 514; R v Furley (1844) 1 Cox 76; R v Harris (1844) 1 Cox 106.

 

*           (1852) 2 Den 430.

 

*           Strachey, Elizabeth and Essex, Penguin, p.54.

 

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