Evolution Of The West Minister System - Public Law

Evolution of the West-minister system: A power struggle amongst institutions:

• Writ of mandamus: Order someone to do something.

• Habeus corpus: About being imprisoned unlawfully. You can’t be detained without lawful reason. You ask for a writ of habeus corpus to be released. Bodily integrity.

Timeline:

• 1066: Norman conquest and reorganisation of Anglo Saxon kingdoms. William the conqueror. It was a feudal system. He rented out bits of land to get noble support. They gave the king money and knights in return. This made the country controllable.

• 1215: Magna Cart. King John forced to sign it. Nobles had grown sick of them only using them to raise money for wars.

• 1300s: Evolution of Parliament. Edward II, Edward III and Richard III. Bills were introduced.

• 1485: Start of Tudor era. They strengthen their rule with Parliament. Henry VII, Henry VIII, Elizabeth I.

• 1603: Start of Stuart era. James I rules by divine right. He still had to raise money though and he needed Parliament for that.

• 1616: Coke sacked as Chief Justice of the King’s Bench.

• 1642-46: Civil war after Charles I dissolved Parliament.

• 1649: Charles I was beheaded. Cromwell ruled in a Republic. Yet Parliament did not rule well. They had a dictatorship for 14 years.

• 1660: Restoration of monarchy. Charles II took control of the crown. Yet he continued to fight with Parliament about money and religion (he was a Catholic).

• 1688: Glorious Revolution. Bill of Rights. James II was Catholic and wanted Parliament to remove restrictions on Catholics. He lost his throne. William and Mary who were Protestants were asked to rule. End of divine right.

• 1701: Act of Settlement. Validated that Parliament was the only governing body and that judges were independent. A separation of powers.

• 1714: Hanoverians take over. Germans. Parliament got more power and it became harder for the king to choose the ministers.

• 1832: Reform Act. The king lost the right to decide who was in Parliament. New electorates were formed. Widened who could vote, men who were leased land could also vote instead of only land owners.

• 1928: woman got the vote. It was 1902 in Australia.

Page 69-94

English Constitutional History:

• The Magna Carta, accepted by King John in 1215 limits arbitrary exercise of government power. The first time the king was forced to obey rules.

• It is a pre-cursor of the rule of law.

Geoffrey d Q Walker, The Rule of Law: Foundation of Constitutional Democracy (1988):

• The Magna Carta has been degenerated by Marxists and positivists who say it is only a feudal document. A deal struck between the king and the barons for the benefit of nobility.

• These views cannot be supported. The group that drew it up were nobility, clergy, merchants, townsmen and freemen.

• Chapter 39 prevented the imprisonment of any free man except by lawful judgment by his peers by the law of the land. If it held for the villain class was disputed. Sir Edward Coke thought it was.

• Chapter 8 said no widow shall b compelled to marry if she does not want to.

• Chapter 40 says to no one shall we sell, refuse or delay right or justice.

• It protects citizenship, liberty, property and life.

John Adler, Constitutional and Administrative Law (1994):

• Magna Carta is England’s closest form of Constitution. Concessions were wrung from the King by force. It makes the king subservient to ideas of law and sets up machinery against the king (legalised rebellion).

Magna Carta (The Great Charter-1297):

• Chapter 6: heirs shall be given in marriage and without disparagement (criticism).

• Chapter 7: a widow shall have her portion of her inheritance at once without any hindrance, nor shall she pay anything for her dower.

• Chapter 14: a freeman shall not be amerced for a trivial defence, unless in the degree of the offence.

• Chapter 28: no bailiff shall put anyone on trial by his own unsupported allegation, without bringing credible witnesses.

• Chapter 29: no freeman shall be taken or imprisoned or disseised of his freehold, liberties or free customs.

CF Padfield, British Constitution Made Simple (1977):

• The word Parliament meant talk.

• The Anglo Saxon Kings held an assembly of the wisest men. They were always relied on for advice before decisions. The Witan or Council met 2-3 times a year. They were a small non-elected aristocratic body.

• The Witan disappeared with the Anglo Saxon Kings.

• William I of the Normans held great councils instead. Three times a year, archbishops, bishops, abbots, earls and knights would meet.

• In the thirteenth century, they began to be called Parliaments.

• In 1265 under Edward I, Parliament began to include common people and aristocracy. There were three realms summoned to the king- the Lords Spiritual, Lords Temporal and the Commons. They were summoned when the King needed money or to engage in wars or crusades.

• In the first half of the 14^th century, the Lords and the Commons met separately to discuss answers for the King. The Commons began giving bills to the king or grievances to be noted by the King.

• In 1485-1509, in the reign of Henry VII, statutes were given to the king for assent or dissent.

• The 16^th and 17^th century was a great Constitutional struggle between monarchs and parliament. Some Kings cooperated and others went against Parliament.

  • Henry VIII was the most absolute of monarchs. Elizabeth I ruled through Parliament. Charles I wanted prerogative rights like the right to tax and suspend laws. James II (1685) wanted to rule the country by divine right.

• In 1688, the bloodless revolution or glorious revolution occurred. James II fled to France. William II and Mary (1689) were invited to accede to the throne of England. The Tudor period began.

• The Bill of Rights was formed in 1689. It is one of the most important constitutional documents. It ensured the ultimate supremacy of Parliament. The King became bellow the Parliament and was just a figurehead of the executive.

Frederick Marcham, A Constitutional History of Modern England, 1485 to the Present (1960):

• In 1485 Parliament had existed 200 years. The King was part of Parliament. He attended the opening and closing of Parliament.

• The Chancellor served as presiding officer over the nobles and leading churchmen.

• Candidates from the country gentry and professionals served as members without pay. They were not all from the aristocracy and professional classes.

• Monarchs in the Tudor period infrequently summoned new Parliaments. They were only called for special functions like to perform tax grants, declaring law and judicial functions. They also heard treason, impeachments and appeals from cases in court.

• When making legislature, the Parliament shared authority with the King or King in council.

• Judges gave full legal force to acts of Parliament and royal proclamations.

• Bills came before Parliament to be discussed. It they were drawn from the House of Commons then the House of Lords scrutinised them and visa versa.

• The king could kill bills or veto them when they were passed. However he rarely did.

• Law was seen as part of God’s rule. When religion became more important, rules of the church and the nature of treason needed more official actions. Their decisions became official actions in the forms of statutes.

• Parliament acquired greater power as a law maker.

• Parliament wanted the right to free speech. They could be punished about offensive words said about the monarch. Finally Elizabeth I agreed to free speech but only if it was in obedience and reverence to her. Some bills had to have permission before they were discussed and any action to offend would result in prison.

Star Chamber and Common Law Courts:

• The court of the Star Chamber was a Tudor invention originating from the Middle Ages.

• It was abolished in 1641.

Frederick Marcham, A Constitutional History of Modern England, 1485 to present (1960):

• It was a room called the...