3rd Class

1
3rd Class

• Please sign in
• Handouts
• Slides
• English Bill of Rights
• Start audio recording
• Agenda
• Review
• Constitutional History of England (cont.)
• Constitutional Theory
• Rebellion or threat of rebellion as mechanism for
  development and enforcement of Constitution
• Role of judiciary
• Modern English developments
• Make-up Quiz

2
Review of Last Class

• Feudalism
• Society ruled by a military elite (nobility) of
  lords and vassals, in which a vassal received
  land (fief or fee) from his lord in return for
  military service to his lord.
• King was apex of feudal pyramid
• By 13th century, vassals obligations primarily
  monetary
• Rise of Parliament
• Origins in advice provided by tenants in chief
• As feudalism weakened in 13th century, others,
  including representatives of counties and
  boroughs also summoned
• Key powers taxation and legislation
• Key problems summoned by king, representation
  not proportional

3
Magna Carta

• 1) Is Magna Carta primarily a treaty ending a
  particular rebellion, a statement of good feudal
  customs, or a document setting forth timeless
  constitutional principles? Try to categorize
  each clause (e.g. numbered section) as fitting
  within one (or more) of these three
  interpretations.
• 2) How was Magna Carta to be enforced? That is,
  what would happen if King John did not fulfill
  its provisions.
• 3) Clauses marked () were omitted in later
  reissues of the charter. Can you see a pattern
  to those which were omitted and those which were
  preserved?
• 4) Was there anything you found particularly
  interesting or surprising in Magna Carta?

4
Constitutional Theory

• Max Weber (1918) famously said that a state is a
  human community that (successfully) claims the
  monopoly of the legitimate use of physical force
  within a given territory
• To understand English constitutional history,
  you must forget Weber
• English state did not possess monopoly of
  legitimate force.
• English state possessed very little force
• No standing army, no police
• Individuals had significant coercive capabilities
• Feudal barons, armed citizenry
• Barons and/or people used their power to
  constrain state and thereby make constitutional
  law
• Rebellion and revolution were key engines of
  constitutional development

5
Important Rebellions in English History I

• 1215 revolt against King John
• King John had increased feudal exactions (taxes)
  to finance unsuccessful war in France
• Rebellion culminated in Magna Carta
• 1263-65 rebellion against Henry III
• Henry III favored foreign relatives over English
  barons
• Simon de Montfort summoned elected Parliament to
  mount opposition to King
• English Civil War (1642-51)
• Charles I tried
• To make Church of England more Catholic
• To raise money without consent of Parliament
• Parliament
• Waged war on Charles I, tried him for treason,
  executed him
• Set up Commonwealth government which ruled for
  11 years without a king

Magna Carta
6
Important Rebellions in English History II

• Glorious Revolution (1688-89)
• James II
• Established standing army
• Promoted Catholics to high positions in
  government
• Decreed toleration for Catholics
• Group of nobles invited invasion by William
  Prince of Orange, James II fled
• William was married to Mary, James IIs daughter
• William was Protestant
• Parliament

James II

• Declared James IIs flight an abdication of the
  throne
• Granted monarchy to William Mary
• in return for Bill of Rights
• Passed over James IIs son, because he was
  Catholic

7
Judiciary and English Constitution

• Judiciary has relatively small role in English
  Constitution
• Cannot declare statute unconstitutional
• Because constitution is made by ordinary statutes
• And because statutes can change common law
• Parliamentry Supremacy
• Court can declare official action illegal
• if violates statute or common law
• because government officials must obey law
• See next slides
• Special problems in suing the King himself
• sovereign immunity
• But not normally a problem, because can sue
  officials instead

8
Ship Money Case (1637)

• Ship money was traditional tax that King could
  exact without Parliament
• Imposed on coastal towns in times of war to
  finance navy
• Charles I wanted to raise money without
  Parliament
• Imposed ship money several times on whole kingdom
  in time of peace
• Hampton refused to pay
• King sued Hampton for payment
• Hampton raised illegality of tax as defense
• Hampton lost
• Note
• Constitutional issue could be raised in courts
• Challenge was to royal action, not statute

9
Wilkes v Wood (1763)

• Wilkes was opponent of government of George III
• Wrote anonymous attack on government policy
• Charged with seditious libel
• Government ordered Wilkess house and papers to
  be searched under general warrant
• Warrant not specific as to persons searched or
  things to be seized
• Wilkes brought trespass suit against Wood,
  official who actually conducted search
• Trespass is unjustified interference with
  property
• Woods defense was that interference (search) was
  justified by the general warrant
• Wilkes argued that general warrant was illegal
• Wilkes won
• Note
• Constititutional issue litigated as ordinary
  common law suit against government officer
• See 4th Amend of US Constitution

10
European Convention on Human Rights

• Principal of Parliamentary Supremacy challenged
  by European integration
• European Convention on Human Rights (ECHR)
  obligated England to respect certain rights
• Enforced by European Court of Human Rights
• But court judgments not binding on states
• Decision is only recommendation
• So consistent with idea of Parliamentary
  Supremacy
• Human Rights Act of 1998
• Makes ECHR part of English law, enforceable in
  English courts (not just European Court of Human
  Rights)
• If English court finds statute inconsistent with
  ECHR, it can issue a declaration of
  incompatibility
• But statute remains in force
• Again consistent with idea of Parliamentary
  Supremacy

11
Modern Constitutional Change

• No rebellions since 1688
• Parliament has become mechanism of constitutional
  change
• 1832 Reform Act
• Increased franchise about 50 (to about 1/5 of
  adult male population)
• Increased representation of newly industrialized
  cities at expense of rotten boroughs
• Ordinary legislation
• Sponsored by Whigs, who expected new voters to
  support them (rather than Tories)
• House of Lords opposed
• But PM persuaded king to threaten to create new
  peers
• Lords dropped opposition

12
Parliament Act of 1911

• House of Lords consisted principally of large
  landowners and high clergy
• King had power to create new peers
• Majority of House of Lords required to pass
  legislation
• Increasingly inconsistent with democratic
  character of modern England
• Parliament Act of 1911
• House of Lords could not veto legislation, but
  could only delay it
• How passed?
• Parliament Act itself required consent of House
  of Lords
• PM persuaded King to threaten to create new peers
  who would vote in favor of Act

13
Make-Up Quiz

• Closed Book
• Put all books and materials out of sight
• 5 minutes
• If you already have an ID, use that
• And dont put your name
• If you do not already have an ID, use the ID at
  the top
• And put your name as well