1297 And All That: how to impress a Brexit judge

Turned down the chance to take the option on Medieval Law during your time as a legal scholar? Bad move. Ancient precedents are now cool – and the best way to impress our top judges when they are considering tricky matters such as the Brexit wrangle.

One of the teams in the Gina Miller/Dos Santos Brexit case came up with material going all the way back to 1297 to support their contention that Theresa May didn’t have power to start Brexit by issuing an Article 50  notification. But were they, how can one say it, a little economical with the historicité?

Helen Mountfield QC, for the People’s Challenge, said Henry IV had tried to suspend a 1297 Act which allowed foreigners to trade in London:

“So this is an example, which is right on point, an Act which provides for freedom of movement and establishment of foreign merchants. The Crown doesn’t purport to repeal this act; it simply frustrates its purpose by a decree which makes the intended purpose of the Act unenforceable for a particular period of time. The law itself which is referred to there has been, I think, tracked down by the industries of my friend Ms Simor QC, the law of 1297 at bundle E1, and it is perhaps unsurprising that it was Henry IV who wanted to ‘kill all of the lawyers’.”  Second day of case; digest here. 

This writer, of course, cannot pretend to have access to their lordships bundles. However one assumes that the 1297 Act must be Magna Carta – the Edward I inspeximus* re-issue, not the 1215 original. Strictly speaking it is a treaty (between the King and his people – or those who mattered) rather than an Act of Parliament but it was also enacted into law. It remains on the statute books, what’s left of it, and can be found here. But it wasn’t exactly the act of a “sovereign parliament” as we know it today.

Many statutes of this time (listed here) were of this nature. Those summoned to Parliament did not make law but brought petitions to the Monarch of the day on behalf of their constituents (the dominant Lords representing only themselves) relying on the Monarch’s grace (and his prerogative power) to grant their pleas – in exchange for new taxes for wars and whatnot. For example, the Statute on Tallage of the same year (also still on the statute books, here) is another such pledge by the King turned into a piece of quasi-legislation. 

The Chapter of Magna Carta presumably examined in the Brexit case (see below) was indeed “right on point” in the sense of showing an attempt to ensure free movement (for merchants, not workers who were bound to their feudal masters) and the right of establishment – to trade in England. But it wasn’t a law passed by parliamentarians since they would have no power to override the King’s prerogative right to allow past his borders or exclude whomsoever he wishes.

In modern days a sovereign Parliament can, through legislation, oust the Royal prerogative – and that is what the lawyers against the Government were arguing had happened with the passing of the European Communities Act 1972. But in medieval times the Monarch (and/or Church) was the source of sovereign law, not parliamentarians.

The Case of Proclamations
This little wrangle between Henry IV and London traders has come down to us via Sir Edward Coke and the Case of Proclamations in 1610. Coke, then Chief Justice of the Common Pleas, was among judges who were asked by James I whether the King through his prerogative could control building in London – in particular the use of timber since, presciently enough, James saw in it a danger of terrible conflagration – and making starch from wheat – which was harmful to the environment. So he was trying to do good. But Coke saw the Henry IV issue as a useful precedent to challenge the King’s power, noting:

“An Act was made by which foreigners were licensed to merchandise within London. Henry IV, by proclamation, prohibited the execution of it, and that it should be in suspense until the next Parliament, which was against the law.”

That’s it. No further details or argument are given. Coke was under some pressure to find precedents for overruling the Crown’s prerogative since he had been given this brief by the Lord Chancellor:

“[T]he Lord Chancellor said, that every precedent had first a commencement, and that he would advise the Judges to maintain the power and prerogative of the King; and in cases in which there is no authority and precedent, to leave it to the King to order in it, according to his wisdom, and for the good of his subjects, or otherwise the King would be no more than the Duke of Venice [ie the elected Doge].”

So Coke looked into his books (as Jessica Simor QC no doubt did to find the 1297 reference for Mountfield) and came up with the Henry IV case (if that is what it amounts to).  

The Case of Proclamations is one of Coke’s law reports – not as we have them today, contemporaneous transcripts of judge’s decisions, but a series of volumes in which Coke writes at leisure after his sacking about old cases he knew of or those he was involved in.

His reports were, it must be said, partial and political (see the Note below on how he could manipulate precedents); Coke was at the intellectual forefront of the 16th century struggle against the monarchy – and also a great proponent of the Common Law, not least because he made his money from the Common Law.

The Case of Proclamations is taken as a great constitutional document holding that “the King cannot change any part of the common law, nor create any offence, by his proclamation, which was not an offence before, without parliament”. It has been the foundation of the legal notion that the laws of a sovereign Parliament trump the Crown Prerogative – which the Government is seeking to use to issue the Article 50 Brexit notification.

But, in fact, it is less a ruling than an opinion. King James, for all his reputation as a Divine Right of Kings man, actually was insistent he had to follow the laws and traditions of his new kingdom – England. He invited judges in to advise on this issue because he wanted to be guided by the country’s jurists in his actions (though, ultimately, he got rid of Coke because he gave the wrong answers on this and other matters). And it seems James ignored the advice arising out of the Case of Proclamations. According to one account:

“notwithstanding the above Opinion there have been Instances of Persons who have been sentenced in the Star Chamber [the Monarch’s prerogative court] upon Proclamations against the Increase of Buildings; and particularly where a Person was fined in the Star-Chamber for building without Brick, tho’ upon old Foundations; and it is there said that such buildings had an ill Effect from the Danger of Fire, Consumption of Timber and Difficulty of Feeding, Cleaning and Governing the City; and it was said in general that Proclamations were so far just as they were made pro Bono Publico and for public Utility.” A New Abridgement of the Law Vol 4 Matthew Bacon 1793.

Doubtless Theresa May would argue that she and her Three Brexiteers are acting pro bono publico in seeking to leave the EU – not least given the threat of millions of Faragists taking to the streets or marching on Westminster if they don’t get their way. So the Prime Minister might put her lawyers to finding some even dustier precedents of her own to back up her position.

As to the lawyers on the other side who will take the Brexit case to the UK Supreme Court, they had better be on their mettle. For we have among the learned Justices one of the flowers of medieval scholarship in Jonathan Sumption. Some pretty thorough research by Ms Simor et al will be required to impress this Lordship.

Twitter: alrich0660 

*”An inspeximus issue of a charter is one in which the granter states that an older charter has been examined (Latin: inspeximus, we have examined), and then recites and confirms the provisions of that original.”

• More Brexit material can be found here.
• The extended Note below is really “Quite Interesting”, so further reading is highly recommended.

Historical posts include:
• Magna Carta: Is it such a great charter?
• Capturing the British Constitution
• Harry Potter and the misleading case of habeas corpus
• Torture: A history (also points out Coke’s inconsistency as below)

Note on Non Obstante case
In the New Abridgement volume cited above there is another case in which Sir Edward Coke’s precedents are examined – and found wanting. It relates to the King’s prerogative of non obstante – to dispense with a law when, according to the author of the volume,

“a Law that is good in general might be mischievous in some Particular Cases; and therefore and for the publick Good the Law intrusts the King (who is intrusted with the Execution of the Law) to judge of such Circumstances … to exempt it out of Penalty of the general law”.

The sort of law open to the King’s non obstante include just the sort of trade-related statutes that Henry IV apparently wished to suspend:

“Carrying Bell-Metal or beer &c out of the Realm, importing certain Merchandizes in foreign Ships &c. Selling wines beyond a certain price, Exporting Wool to any other place than Calais, Coining Money of a base Alloy and other Matter of a like Nature”.

It was accepted, though, that the King could not generally bar statutory rights especially if the statute expressly ousts non obstante. The case (late 17th or early 18th century, about a Colonel’s failure to offer service) looked back at a case Coke reports (12 Rep 18) about whether the King could overrule a law restricting sheriff’s service to a year. Coke used it to establish that

“no Act can bind the King from any prerogative which is sole and inseparable to his person [“which” should strictly be “that” here], but that he may dispense with by a Non Obstante, as a Sovereign Power to command any of his Subjects to serve him for the Weal [good of the] Public”.

This is contrary to the position he is more famous for, that of the Case of Proclamations. The 19th century historian Henry Hallam notes the words were written “before he had learned the bolder tone of his declining years” (Constitutional History Vol III Chap XIV). In a marginal note to the Abridgement, that volume’s editor notes: “Strange Doctrine! tantamount to saying that the Constitution had invested the King with a Power to ruin any Subject that was obnoxious to him”. Enforced service to the King was not necessarily deemed a great honour.

 Coke had referred to a statute of Henry VI (23 H6 Cap 8 according to the volume but actually 23 Henry 6 Cap 7 on tenure of sheriffs, for those of you particularly interested – as you must be to have read this far) and the lawyer in the later (Colonel’s) case, Sir Edward Nortby, notes that it

“was an Act purely restraining that power the King had of commanding, and was rather a Disabling the King than the Subject; for it took away the power of the King and of granting the Office for Years, Life and Inheritance, and by Consequence was a total Depriving him of the Use of some of his Subjects as some Times; and I may very well allow that such Acts of Parliament did not nor can bind the King.”

So the lawyer is arguably saying that such Statutes that bind the Monarch’s prerogative amount to treaties with the people rather than binding law. They cannot oust the King’s prerogative unless he allows them to. 

The same principle presumably might have applied to Chap 30 of Magna Carta – at least until Coke came along and changed the course of constitutional history. It is now wholly accepted that legislation can remove prerogative powers, and has periodically done so. Thus James Eadie QC, putting the government case in Miller/Santos, said: “the correct and true principle is that the prerogative is the residue of powers left in the hands of the Crown by Parliament” (Third day digested here).

We don’t have the details of the Henry IV affair so we don’t know how it was established that Henry’s suspension of the Act “was against the law”, as Coke put it. Henry may have simply backed down without any judicial decision.

Coke’s precedents
The Non Obstante case published in A New Abridgement is also interesting for the lawyer’s comment on Coke’s precedents. Nortby says:

“… he is mistaken in the Case on which he relies; for by the Book 2 H 7 6 on which he relies, it appears plainly that there never was such Resolution as he cites, but a sudden Opinion given, and at which Time the Judges declared they would not be bound by what they had said”.

In another case Coke cited “it appears nothing more was ever done in the Matter but it rested and was never adjudged”. This certainly suggests Coke played fast and loose with the precedents, implying judicial authority when there was none. The lawyer concludes:

“The great Foundation [of Coke’s case] failing, the Superstructure of Lord Coke thereon, and his Opinion, must needs fall and be rejected as an Opinion grounded on palpable Mistake.”

Elsewhere, the 12th Volume of Coke’s reports, which contains the sheriff’s non obstante case (12 Rep 18), is held to be “not fit to be allowed” while one senior legal figure of the 18th century, Serjeant Hill, noted on his copy that 12 Rep 18 “might justify the King in acting against the law and afforded grounds for him to erect arbitrary power”. Reports of Cases by John Bayly Moore, Joseph Payne 1813.

It would seem to be unwise to take everything Lord Coke wrote on trust.

• Here’s the Abridgement Volume 4 reference.
• And here is a selection of Coke’s writings including the Non Obstante case at page 423 et seq: The selected writings of Sir Edward Coke – Online Library (pdf)

Magna Carta 1297 Chap 30
“All merchants, unless they have before been publicly prohibited, shall have safety and security in going out of England, and in coming into England, and in staying and in travelling through England, as well by land as by water, to buy and sell, without any unjust exactions, according to ancient and right customs, excepting in the time of war, and if they be of a country at war against us: and if such are found in our land at the beginning of a war, they shall be apprehended, without injury of their bodies or goods, until it be known to us, or to our Chief Justiciary, how the merchants of our country are treated who are found in the country at war against us: and if ours be in safety there, the others shall be in safety in our land.”