Brexit moment 1714

Britain was at the moment when a great change, believed to be settled some years earlier, might be overturned. It would only take a little push, and all those years of effort, and the confidence in peace, would be cast down. Freedom was in peril, a foreign power across the Channel waited, social and political unrest could break out. The nation was on edge. The year was 1714.

The Settlement to end the crisis

The healing peace of King Charles II’s reign was followed by three years’ turmoil and the Revolution of 1688, as I recalled in a previous article. The settlement of 1688 was solid in establishing the balance of authority and rights, but fragile as King William and Queen Mary were childless and the hopes of the nation rested on Mary’s sister Anne, who was fertile indeed.  However although she was almost constantly pregnant, Anne lost all but one of her children in childbirth or infancy. In 1700, Anne lost her one surviving child at the age of 11: she was the last Protestant of the House of Stuart and now she was a dead-end. At her passing, Anne’s deposed father would cross the Channel again and reverse the revolution.

There was time yet – the King and Parliament looked for an heir and found that the nearest Protestant heirs had inexplicably turned Papist, so they turned to a granddaughter of King James I, Sophie of Hanover, and the Act of Settlement was passed in 1701 to settle the succession on her. King James II died in exile in the same year, but was succeeded by a son, born the year of the Revolution, bred a Frenchman and a Roman Catholic and looking to reclaim his father’s throne. William died a few months later and Anne succeeded to the throne.

Queen Anne

Queen Anne was a popular queen (and was nothing like her portrayal by Olivia Coleman).  She achieved the union between her two realms and presided over a flowering of culture.  Hers though was a barren throne with no son to succeed her.

All surely was settled by the Act of Settlement?  An Act though is only as strong as the next election and the willingness of the establishment to uphold it.

By 1713 the Queen was ailing.  Those who supported the exiled king and his line, the Jacobites, had been quiescent while his daughters and his son-in-law sat on the throne, but as the end of their line approached, they began to move.  Suddenly the issues of the Revolution and even of the Civil War all those years ago were appearing again.

Queen Anne’s own thoughts are uncertain: she refused to allow her Hanoverian cousins to move to Great Britain, but we cannot know if that was to avoid an intimation of mortality or because she had sympathy with the idea of letting her half-brother’s succeed her, or if it was her Tory ministers who insisted on it.

The government and the Commons were dominated by Tories and the leading Tories were certainly playing both sides. It is known that there were contacts across the Channel. The War of the Spanish Succession was ended precipitously to make a rapprochement with France and Louis XIV. Harley and Bolingbroke were both in contact with the Jacobites and Bolingbroke had even met the Pretender in person. Outwardly they stood for the Settlement and the Hanoverian succession, but they were open to renouncing their pledges to the people and handing the Crown to the young James Edward Stuart.  If only James would renounce the Church of Rome and become Protestant, then the Tories in Parliament would most likely have repealed the Act of Settlement at once.  They also knew that as soon as the new Hanoverian monarch succeeded, they would be out of office and the Whigs would supplant them, and this, ambition for office, outweighed in some the public good.

The Settlement was looking very fragile indeed.

1714

In 1714, there was an alehouse in Stamford known as The George Tap, which was kept by a Mr Bolton, who had Jacobite sympathies.  The Jacobites had a custom of drinking to the Queen kneeling and bareheaded, which was a harmless defiance, but these were not normal days.  A dragoon was in The Tap, and when he saw Bolton on his knees and uncovered; his anger burst forth – he drew his sword and ran the man through.  A riot broke out, a mob surrounded the house and threatened to tear it down unless the soldier were handed over to them – he fled through the back gate.

The nation was on edge.  The little, bloody vignette in Stamford was just one eruption amongst the dramas played out up and down the land. Parliament had pledged to the Hanoverian succession, and spoken for it, both sides, but they were not trusted: the Tories were suspected of playing both sides and they were, or at least some were.

In June, the Electress Sophie of Hanover died; the heir was now George Louis of Hanover, one step further from the Stuart House.

On 29 July, Queen Anne was on her deathbed: this was the moment on which all would turn. The Queen realised it and acted:  she dismissed Harley and the next day appointed the Duke of Shrewsbury as Lord Treasurer; effectively as prime minister. Shrewsbury had been instrumental in the overthrow of James II and so was to be relied upon to support the Settlement. Two days later the Queen was dead and Shrewsbury held supreme power, and he ensured that the Settlement was honoured, and that King George succeeded peacefully.

It was a month and a half before the new King arrived in London, and he was a hated foreigner, but he was received and took the throne.

There were riots on the day of the coronation and the next year a rebellion was put down in the Highlands, and other risings that were snuffed out before they began. The Hanoverian succession and the rights enshrined in the settlement of 1688 were secured, but it all turned on a moment at the Queen’s death-bed.

Books

Burke on Ambitious Parliaments

Edmund Burke watched the progress of the French Revolution not with the enthusiasm of the age but with an eye to cold reality. He was a Whig, to his very boots, and believed in constitutional government, and Burke would have been cheered to see France progress to a constitutional settlement as England had done a hundred years before, but what he saw unfolding in France was very different. In 1790, the year after the Revolution broke out, and while deepened in its course, Burke wrote his most famous work; Reflections on the Revolution in France.

The National Assembly, after the Tennis Court Oath, moved to usurp all power in the state: instead of acting like the British parliament, it moved to seize not only legislative and constitutive power, but the powers of the executive government also. Burke realised the dangers.

Our own House of Commons has latterly begun to assert an unwonted authority. By convention, the Government is answerable to the House of Commons, but recently the Commons has tried to usurp executive power and exercise that power themselves. Various turbulent MPs have been tipped by the commentariat as “virtual Prime Minister” of this new, unconstitutional Parliamentarian regime.

Burke could see the outcome where the national assembly sought to exercise executive control and to command the army:

Men who have an interest to pursue are extremely sagacious in discovering the true seat of power. They must soon perceive that those who can negative indefinitely in reality appoint. The officers must, therefore, look to their intrigues in that Assembly as the sole certain road to promotion.

It is, besides, to be considered whether an assembly like yours, even supposing that it was in possession of another sort of organ through which its orders were to pass, is fit for promoting the obedience and discipline of an army. It is known that armies have hitherto yielded a very precarious and uncertain obedience to any senate or popular authority; and they will least of all yield it to an assembly which is only to have a continuance of two years. The officers must totally lose the characteristic disposition of military men if they see with perfect submission and due admiration the dominion of pleaders; especially when they find that they have a new court to pay to an endless succession of those pleaders, whose military policy, and the genius of whose command (if they should have any), must be as uncertain as their duration is transient.

In the weakness of one kind of authority, and in the fluctuation of all, the officers of an army will remain for some time mutinous and full of faction until some popular general, who understands the art of conciliating the soldiery, and who possesses the true spirit of command, shall draw the eyes of all men upon himself. Armies will obey him on his personal account. There is no other way of securing military obedience in this state of things. But the moment in which that event shall happen, the person who really commands the army is your master—the master (that is little) of your king, the master of your Assembly, the master of your whole republic.

See also

Books

Murmuring the (supreme) judges – 3

A frequent reaction to the bizarre Supreme Court ruling in Cherry/Miller (the prorogation case) has been to demand the abolition of the Supreme Court and to return the its jurisdiction to the House of Lords.  That is a wrongheaded approach, illogical and flying in the face of evidence, for the most part.

Tony Blair made constitutional innovations on the hoof, and the invention of the Supreme Court seems outwardly to be one of these but in truth this reform had been rumbling for a hundred and thirty years. In 1873, in Gladstone’s time, the appellate jurisdiction of the House of Lords was abolished, and a Supreme Court was created for England. However a General Election (remember them?) intervened: the incoming Conservatives restored the power of the House of Lords, but turned it into a real court, appointing qualified judges as life peers. From that point, ultimate appellate jurisdiction was only nominally that of the Lords: no peer ever sat in judgment who was not qualified. It was a separate supreme court in all but name. Constitutional experts even so pointed out the impropriety of mixing the judicature with the legislature.

Tony Blair’s new Supreme Court is little more than a rebranding and removing an anomaly.  Reversing the change would achieve nothing.

Politics and the court

The prorogation judgment is the latest in a line of judgments in which the judges have expanded their own authority to review and quash government actions.

This tendency started in the House of Lords, not Mr Blair’s Supreme Court. The fault is not in the name of the court but in mission-creep. When one embraces the concept that the whole of the state and society is wrapped in a comprehensive code of law then every action must be judged by rules, and therefore judged by judges.

A review of the cases, large and small, shows statistically that very few cases actually succeed (about 1%) which suggests that judges are not leaping in usurp the powers of decision-makers. Even so, where the actions do succeed there is an uneasy sense that judges feel more ready to quash decisions out of caution, to give a chance to stop or postpone a momentous change, and to ask the decision-maker if they are quite sure.  That is not properly in the realm of the judge, but it is a human reaction.

None of this has anything to do with the creation of the Supreme Court in place of the Lords, and so we must, for once, acquit Tony Blair of wrongdoing.

That said, there may be some cause to worry about whether the very name ‘Supreme Court’ tempts a comparison with that of the United States and emboldens its judges to interfere even in the sovereign actions of the state, like their American brethren. The constitutional position is very different, but it is a matter of psychology. At the time of its creation there were legal journalists who asked if the new court would go all American, and not all the judges dismissed the idea out of hand. That is a worrying.

So far, the court has stuck to the constitution as we understand it, until the prorogation case. In spite of occasional dark hints detectable in occasional obiter dicta, no judgment has renounced the Supreme Court’s subjection to Acts of Parliament.

Murmuring the judges

After the prorogation judgment was handed down, the court looked political. On the assumption that we now have an American-style political court, voices were raised proposing confirmation hearings for judges. That though is the surest way to ensure there is indeed a political court, and not of the flavour these advocates for change would want, for Conservatives will choose judges who know the law, while Socialists will choose those versed in Marxist assumptions.

I predicted these moves and other in earlier articles, as readers may recall:

Choosing judges politically would or socio-politically be the greatest constitutional vandalism of all.

Robert Buckland QC, the Lord Chancellor has wisely rejected the suggestion of allowing Parliament to hold such hearings.

Another way

There is an alternative, which is in the hands of Parliament, is unimpeachable in propriety and which is no more than for Parliament to perform a neglected duty. Parliament should make the law clear.

Judicial review is a vast field, such that when trying to write layman’s guide, this site became rather tangled in explanations. I will revisit it frequently no doubt. The rules governing judicial review are all judge-made law, since no rules nor guidance have been given by any Act of Parliament and so the courts have been forced to guess the rules by implication.

Therefore those parliamentarians who make their voices heard in the cause of supervising the judges should do their own part and throw their weight behind actually writing the rules down.  Compose a code to imply into every delegated power how and on what grounds it may lawfully be exercised, or if there are powers in the decisionmaker’s unchallengeable discretion. Parliamentarians should give rules which are to be followed and make them clear. Until they do so, they have only themselves to blame when judges left on their own make rulings they do not like.

See also

Books

Brexit moment 1688

All the efforts, the progress, the confidence built up and settled over many years was in sudden danger.  The establishment was reasserting an ugly face and turning for its model towards European despotism. On a small push of the balance one way or the other the fate and freedoms of the nation would turn. The year was 1688.

King Charles II, from his restoration in 1660, with great skill healed the wounds that were yet open from the Civil War and the Cromwellian dictatorship, not by favouring a side but encouraging both, such that both sides thought they were in the winning place. The Puritans were so strong still that it was assumed that the Church of England would be refashioned as a Presbyterian church as under the Protector, but that was defeated by public opinion.

The King kept the peace until his strength began to fade and it was revealed that his heir, his brother James, had embraced the Popish religion and all the despotic tendencies that implied. For three years from 1679, the Exclusion Crisis raged, in which Parliament sought to exclude James or any Papist from the succession, and King Charles responded by dissolving Parliament, only to find new parliaments elected which were even more vehement against James. The crisis ended only after the exposure of the Rye House plot and the collapse of the opposition.

Then in 1685 the King, the peacemaker, died, and all the issues of the Civil War were open again, twenty-three years after the muskets had ceased.

James II was not a popular king and he was at once at odds with Parliament both in England and Scotland. His one advantage was that the Civil War was too raw a memory for anyone to want another. He also saw time on his side:  he was a modernist, and the most modern of states in Europe were those operating what they called ‘enlightened despotism’. First amongst these was France, under Louis XIV, James’s cousin. Louis also operated a revivified, militant Roman Catholicism, which again was portrayed as the modern way and had been advancing in Europe. Had James known our modern idioms, he might have said that his opponents were “on the wrong side of history”, and he just had to wait for the older generation to pass away.

This was not 1642 though: under James I and Charles I Parliament had met infrequently and the coming men were used to rule by the King alone, but under Charles II Parliament had been a permanent feature.  When James II interfered with elections to Parliament and then dissolved it to assume personal rule, he crossed the Rubicon. Then in 1688, James dismissed justices of the peace throughout England and issued new commissions packing the benches with his supporters, and in this way alienated those who expected as of right to hold rule locally. In Scotland too James predated upon the ruling class – Parliament was dismissed, leading men were prosecuted under ancient, forgotten statutes and new royal decrees introduced, clan chiefs were deprived of authority, and noblemen even had their sons sent abroad to be educated in France.

Unless something happened, the freedoms of England and of Scotland would be lost. The nation would become a European state, remodelled according to a European standard. It might even become a dependency of Louis XIV.

In the autumn the displaced establishment struck. William III of Orange, already a Protestant hero and enemy to Louis XIV, was invited to sail for England. His fleet swept down the Channel, allowed to pass unmolested by the King’s Navy. He landed at Brixham in Devon on 5 November 1688 and by Christmas he was on the throne beside his wife, James’s daughter Mary. James had fled.

Nothing was yet safe though, with a new, unknown quantity on the throne and those who would not forswear the old king still in influence.  A new settlement was made, in the Bill of Rights and the Claim of Right, and what we would now call a new “narrative” of history: the king had abdicated voluntarily and as a Papist was now incapable of holding the Crown. This created “the Whig interpretation” of history, which dominated constitutional theory.

This was an almost bloodless change, known as “the Glorious Revolution”, without upsetting the Old Constitution but reasserting it with new, stated provisions, which are still the basis of our constitution.

There were then rebellions, in the Highlands and most dangerously in Ireland, and Louis XIV attempted an invasion which would have landed his cousin James back in England. The settlement was in danger, but with the French driven back both in the Channel and in Ireland, the settlement restored peace. The necessary change had been made and the moment of danger had passed, and seemed settled at last.

Books

Are we European though, or Anglospherical?

The one thing that met a glum response in Boris Johnson’s speech was a statement that “we are European”. Are we?

We inhabit our islands close to Europe, and have borrowed a great deal of our culture from Europe, although in latter years they have taken more of ours than we theirs.  Our native languages are descended from those originating in Europe, and English in particular is a German language spoken with French and Latin vocabulary. That must settle it, surely? Not all our languages are European though: the next most common are not. In fact as Boris looked out, many in the audience were not European at all by culture or mother tongue, but Asian.  All though had been born to or absorbed our British culture and all of whatever origin passed undistinguished amongst themselves in the hall.

There is a continuum between European culture and British culture, born of frequent flows of trade, scholarship and warfare. We are familiar with the names of their great cities and may have holidayed there, and if not visited will have seen photographs or heard tales of when our grandfathers liberated them. We may listen to sublime German and Italian opera – perhaps this explains the more pro-European bent of the cultured classes – or watch their football teams, or both. Europe is there, close by.  It is part of our consciousness.

The cultural links only go so far though. Our social and political cultures are very different.  As was described on this blog a while ago:

We are not on any continent. Britons are a people of the seas:  we may dream at night of the endless ocean, and when beside the sea, and we are never far from it, then our hearts thrill at the sound of the shrouds hammering impatiently on the spars and lurch with joy at the draw of the wind in the taut sail. Beyond the sea, there is another home.

Yes, we eat French and Italian food, but also Indian and Chinese, just as voraciously. We are not limited to identifying with one continent.

The English-speaking world, the Anglosphere, is built on the inheritance of freedom which is fundamental to our culture. In continental Europe though, democracy is a modern accretion grafted roughly on from the example of Britain and America: strip it away and you are left with feudal tyranny as the basic norm of life. Strip modernity from the English-speaking peoples and you have the ancient rights of free Englishmen. It is no wonder that Europeans cannot understand the Britons: ancient authority for them was a tyrannous ancien régime, but for us it was a time of greater personal freedom.

Our closest cultural connections are not with Europe, which is not to deny cultural connection, but it is not so close – our closest bond is with the other English-speaking peoples, which are alike in language, culture, outlook, assumptions and attitudes, born of the same legacy, and if America or Australia has consciously moved away from their idea of British norms, actually we have been coming the same way, and as we watch each other’s films and read each other’s books, that culture grows closer, and Europe more distant.

Philologists used to look at the languages of Europe and said that as Latin had become divided across Europe and become separate, mutually unintelligible languages, so English would evolve into separate tongues across the world, but they wrote that before Hollywood and the BBC – nation shall speak English unto nation. We can find plenty of differences between the way Americans do things and the way Britons do, but they are petty cultural differences compared with the yawning gap we both have with Europe.

The truth is that parts of our culture are shared with Europe, but our whole culture is shared across the Anglosphere. If we are European, as we may be, then so are the Americans and the Australians. We cannot just divide the world into convenient geographically neat continents and allocate each country to its closest – the English-speaking world, scattered across the globe, and making the world more prosperous in all those corners, is a more realistic ‘continent’.

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