Category Archives: English Legal History

BOOK RECOMMENDATION: The Lawyers Who Made America

image003The Lawyers Who Made America

From Jamestown to the White House

Anthony Arlidge QC

No other nation’s creation, both politically and socially, owes such a debt to lawyers as the United States of America.  This book traces the story of that creation through the human lives of those who played important parts in it: amongst others, of English lawyers who established the form of the original colonies; of the Founding Fathers, who declared independence and created a Constitution; of Abraham Lincoln, Woodrow Wilson, Justices of the Supreme Court and finally Barack Obama.  Even Richard Nixon features, if only as a reminder that even the President is subject to the law.  The author combines his wide legal experience and engaging writing style to produce a book that will enthral lawyers and laymen alike, giving perhaps a timely reminder of the importance of the rule of law to American democracy.

Anthony Arlidge has been a Queen’s Counsel for over thirty five years, appearing in many high profile cases.  He has submitted written amicus briefs to the Supreme Court of the United States and the Santa Monica Court of Appeals.

April 2017   |    9781509906369   |   232pp   |   Hardback   |    RSP: £25

Discount Price: £20

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1867: When democracy came to the Isle of Man?

Peter Edge*

manxcrestThe Isle of Man holds a unique place in English Legal History. From 1266 to the late 14th Century, the Island was alternatively ruled and vied for by Scotland and England. Eventually, the Island came under the rule of the English Crown, but never became part of the United Kingdom, and retained its own legal system, albeit strongly influenced, and at times determined, by English law. The Island today therefore is a self-governing Crown dependency.

The UK Government is responsible for the management of the Island’s defence and external relations generally. The UK Parliament maintains the power to legislate for the Island, although it is disputed whether Acts of Parliament are superior to Acts of Tynwald, the Manx legislature.

Manx Legal History and its inter-relationship with English Legal History is fascinating and is worthy of close study.

One hundred and fifty years ago, the Isle of Man carried out its first elections to the national legislature, the Tynwald. From the early 17th century the House of Keys, the lower chamber, had been elected by a partnership of the Lieutenant-Governor of the Island and the Keys themselves. The Keys would nominate two candidates to a vacancy, of whom the Lieutenant-Governor would elect one, almost invariably the first. Unsurprisingly, as Moore put it, the Keys became “a closed corporation … largely confined to a few leading families”.

The upper chamber of the Tynwald, the Council, consisted of the principal Crown officers of the Island. This matched a model to be found across the British Empire. A lower chamber elected by itself, however, was not to be found elsewhere. In 1837 Robert Peel described it as “[s]o anomalous a body as could not exist within the British Empire”. Certainly it contrasted sharply with contemporary elected assemblies in the Province of Canada (1841), and New Zealand (1853).

The catalyst for attention being directed at this anomaly was not a strict concern with Imperial consistency. Rather, during the nineteenth century there was an increased concern that Manx revenues were not being spent on projects to advance Manx interests, and consequent Manx pressure for reform. The old Manx constitution posed two significant obstacles to the granting of greater authority to Tynwald – the legislation which led to the 1867 elections dealt with these obstacles in order to allow the creation of distinctively Manx public finances controlled by Isle of Man based officials.

Firstly, enhancing the practical powers of the House of Keys while leaving them in the grip of a particular class of society was not acceptable to the Imperial government. This was particularly the case as the Isle of Man was already developing elected government at local level. An 1866 Act provided for popular elections to the House of Keys to be held in 1867, with the first elections taking place across 2-5 April.

Secondly, the Keys had an ancient, and distinctive, role as the ultimate jury of the Island. From 1601 the Keys sat in the Manx criminal court which dealt with felonies, responsible for punishing juries who gave a false and partial verdict. By 1823 they were seen as overreaching themselves, and delaying the court. In 1824, under orders from London, the Lieutenant-Governor manufactured a test case which, on reaching the Privy Council in 1824, confirmed that the Keys had no place in the criminal court. Even after their removal from this Court, however, the Keys continued to exercise their customary role as a jury of appeal in other cases, particularly serious civil cases. Numerous examples can be found of the Keys reversing the verdict of a lower jury, for instance in 1830 reversing the dismissal of an assault suit and awarding £100 damages plus costs to the plaintiff.

The Keys as a body could thus be responsible both for passing a law, and acting as appeal jury in a case turning on that law. Concerns were exacerbated by the role of individual Members of the Keys as important parts of the Manx establishment, particularly the legal establishment. G.W. Dumbell, for instance, had represented the plaintiff in a libel case against the Manx Sun. On appeal to the Keys, Mr Dumbell was part of the body which decided to increase the damages awarded to that plaintiff, his client, from 40 shillings to £100. The role of the Keys in jury trials was put forward at one point by the Keys as a reason why they should not be subject to election. Instead, the 1866 legislation removed them from the appeals process, and 1867 legislation introduced a new appeals procedure.

1867 is justly celebrated in the Isle of Man. It was an incomplete democratisation, but provided an essential foundation for extensive reforms in the century that followed.

Firstly, initially the electorate was very narrow, with an open ballot, and a franchise limited to adult males able to meet a high property qualification. Kermode has suggested that around 20% of the adult population were eligible to vote, with even fewer eligible to stand for election. The first elections led, in the words of Brown’s Directory, to “a thoroughly conservative house, 13 of the 24 members elected having sat in the old self-elected House, and a majority of the 11 new men being pledged to conservative views”. These issues were addressed by fifty years of electoral reform.

Most importantly, and not sufficiently well-recognised globally, in 1881 the Isle of Man became the first territory in the British Empire to include women in the electorate to the national legislature. The first vote by a woman was cast by either Eliza Jane Goldsmith of Ramsey, Catherine Callow of Ballakilley, or Esther Kee of Leodest. Although not initially an equal franchise, the comparative narrowness of the period 1866-1881 when men, but not women, had the vote, is something for the Isle of Man to celebrate.

Secondly, although the Isle of Man gained increased fiscal autonomy, and a role for Tynwald in how it was exercised, the Manx constitution remained dominated by the Lieutenant-Governor, an appointee of the Crown. Ideas of responsible government, where executive authority was increasingly exercised by officers responsible to a locally elected assembly, were gaining ground, and being adopted in British North America (1848), and by New Zealand and most of Australia by 1859.

Responsible government was categorically, and deliberately, not intended to follow from elections. It was not until well into the twentieth century that responsible government came to the Isle of Man. The increased legitimacy the Keys gained from a democratic mandate had a significant role in this. As Lieutenant-Governor Hope foresaw in 1853, an elected Keys “would claim far greater and more arbitrary power … at issue with the British Government, [than] any Council consisting of Members nominated by the Crown”.

*Peter Edge is Professor of Law at Oxford Brookes University. His primary historical interest is the public law of the Isle of Man. His open access ebook Manx Public Law (1997) is available at tinyurl.com/kpz4rzv

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The Semantics of “Sanctuary”: Why Sanctuary Cities are no safe haven

Ben Darlow and Charlie Eastaugh*

Westminster AbbeyTalk of “sanctuary cities” has become flavour of the day in recent months, with a growing interest in their legality and—to the contrary—the unconstitutionality of federal attempts to attack such havens (as demonstrated by a January 2017 Executive Order, analysed by Garett Epps here). Volokh Conspiracy bloggers at the Washington Post have provided insightful commentary in line with the growing interest in this complicated area of constitutional law, including a helpful overview from Ilya Somin here, and executive order analysis here. This week David Post cited the English Legal History Blog, in arguing that the moniker “sanctuary” is misapplied and misleading. We will attempt to support such a claim in more detail.

Contemporary American legal context
Decades-old Supreme Court precedent gives us constitutional context for this issue. First, New York v. United States (1992) made clear that the 10th Amendment prevents “commandeering” of state governments to enforce participation in federal regulatory programmes. This was applied to the criminal context in Printz v. United States (1997), where a 5-4 majority led by the late Justice Scalia held unconstitutional certain provisions of the Brady Handgun Violence Prevention Act on similar anti-commandeering grounds.

In NFIB v. Sebelius (2012)—as helpfully flagged by Somin—federal funding conditions with the effect of such commandeering are also unconstitutional. In sum, cities (or even full states) are free to operate in a way that rejects federal cooperation, especially with respect to immigration policies and legislative requirements such as that contained in Section 1373 of the United States federal code (8 U.S.C. § 1373). Section 1373 mandates cooperation between states and the federal Immigration and Naturalization Service, and the January 2017 Executive Order has threatened to attach funds to that requirement. Making funding conditional on such strictures is likely to engage a constitutional question under the 10th Amendment (as outlined above), the 4th Amendment’s protection against unreasonable searches and seizures, and the 14th Amendment’s due process clause, which have been held applicable to “persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

The English common law privilege of Sanctuary was born out of principles that pre-date the common law itself. The basis, definition, and limitations of Sanctuary lead to the strong conclusion that the semantics of naming US immigration havens as “sanctuary cities” is at best misleading and ill-founded. At worst, it severely muddies the waters of discussion, preventing serious analysis in this important area. Appreciating the origins of common law Sanctuary is therefore vital to understanding contemporary use of the term.

Origins of Ecclesiastical Sanctuary
St. Augustine of Rome’s successful conversion of the Saxons to Christianity in the 6th Century AD introduced the idea of ecclesiastical Sanctuary to the ruling Saxon King, Aethelbert. In 597 AD—in support of his newly-adopted religion—Aethelbert introduced severe penalties for interrupting the peace of the Church. Clearly, the concept of Sanctuary at its English origin was, and remained to be until its abolition, an ecclesiastical principle and a creature of the Christian Church.

Sanctuary’s original intention in these earliest times was to protect a criminal from the devastating impact of vigilante justice at the hands of his own family and friends—fundamentally opposed to the contemporary notion of an asylum-seeker, who is likely to find refuge with those close to them. Sanctuary was used to nullify the blood feuds that wreaked havoc in Saxon communities and itself interfered with the pre-cursor to sovereign jurisdiction. William the Conqueror—upon his successful conquest of Saxon England in 1066—adopted many of the Saxon laws already in place, including those of Sanctuary. Later Norman Kings continued to support this privilege without controversy.

Around 1250, English common law was clear: a criminal could take Sanctuary in Churches; other consecrated ground; or even within the confines of a consecrated cemetery—it was fundamentally an Ecclesiastical privilege. If the fleeing criminal had no physical ground in which to take refuge, his Sanctuary began as soon as he placed his hand on the Church door. At this time, Sanctuary was still intended to give the common law legal process sufficient time to effectively run its course and not to provide indefinite refuge to criminals. It was a requirement for the criminal to admit his guilt—again drawing a stark contrast with any modern engagement of the term.

Indeed, it was a settled common law principle in the 13th Century that Sanctuary should last no longer than 40 days. After that period had ended, the Church was no longer allowed to provide food to the criminal and the authorities seeking the criminal hoped this would starve him out of his Sanctuary. Any person providing sustenance after the 40 days could be convicted as an accessory to the criminal’s original crime. Thereafter, the criminal had three options open to him. One, he could surrender, two, be exiled from the country at the escort of the authorities, or three: flee to another Sanctuary to begin a fresh 40 day limitation period. The extent to which this Sanctuary-hopping occurred is unclear, but certainly the privilege of Sanctuary was open to abuse.

Sanctuary curtailed
Over the next two centuries, due to abuses of Sanctuary, English public opinion developed to view the practice as the Church openly harbouring criminals. There are even instances of criminals in London successfully running their nefarious activities from within the confines of a Sanctuary. This abuse of Sanctuary was abhorrent to the English public and was seen as far removed from its original intentions as a safe haven from vigilante justice.

Sanctuary was later diluted in 1504 when King Henry VII successfully asked Pope Innocent VIII to allow the authorities to enter Churches and apprehend a criminal when they committed a fresh crime whilst taking Sanctuary. This was an attempt to curb the abuses mentioned above. Henry VIII followed in his father’s footsteps and initiated further reforms. A significant case in 1519 involving St. John’s Priory and Westminster Abbey (two large sanctuaries) challenged the remit of Sanctuary for murder and other heinous crimes. Henry was moved to state that: “I will have [Sanctuary] reformed which has been encroached by abuse, and brought back to the true intention of the makers”.

In 1540, the English Parliament abolished the use of Sanctuaries for the worst crimes such as murder, rape, and arson. It had already been abolished for High Treason. Following these restrictions, Henry VIII established eight Sanctuary cities where approved asylum seekers had to remain permanently. These national Sanctuaries quickly fell out of use in the reign of Henry’s son, Edward VI, in the mid-16th Century.

During his reign, Henry VIII attempted to restrict the use of Sanctuary by making it unappealing for criminals. A Sanctuary seeker had to wear a 10-inch badge on their upper arm, often had to adhere to a curfew, and had to be branded with an ‘A’ on their right thumb. A 16th Century Sanctuary became something much more closely aligned with a gulag than a haven of respite: not something the Constitutional Framers would transpose over a century later.

Following continued controversy, negative public opinion and the numerous restrictions outlined above, Parliament finalised the reform in 1624 by passing a Statute that stated “no Sanctuary or Privilege of Sanctuary shall be hereafter admitted or allowed in any case”. Plainly, 150 years prior to American Independence, the English principle of Sanctuary had been diluted into obscurity, with the original concept of a place of haven long consigned to the annals of history, excluded from the common law.

It is worth noting at this juncture that there was no mention of Sanctuary Cities (or anything like them) in the 85 Federalist Papers, nor in the 1787 Constitutional Convention. Although the Founders did describe the Capitol as a “sanctuary of liberty” and Jefferson remarked that it would be the nation’s “first temple”, no illusions were made as to the importance of federalism, the notion that states’ rights were fundamental to a successfully operating Republic, and the separation of Church and State.

Constitutional Convention

The 1787 Constitutional Convention in Philadelphia: no mention of Sanctuary Cities

Closing remarks
As the foregoing outline has shown, the common law principle of Sanctuary is an English ecclesiastical principle deriving from early Christianity. Its status as a bargaining chip between the Church and the State in the 15th and 16th Centuries led to its ultimate abolition as a common law practice, far removed from its haven-providing origin. The Philadelphia Convention of the late 18th Century included an emphatic decision to separate the Church from the State, with the Union founded on this secular basis. According to long-standing judicial precedent it is plainly unconstitutional under the republican Constitution for the federal Government to commandeer sovereign state cities for its own bidding in an unfettered way. Contemporary American usage of the term “sanctuary cities”—as has become de rigeur in modern political discourse—cannot be divorced from the historical (originalist) underpinnings of the term “Sanctuary”. To do so causes injury to tenets of federalism, constitutional law, and endangers the secularity of the debate.


*Charlie Eastaugh is a Visiting Fellow at the University of Surrey. He has a PhD in US Constitutional Law and tweets at: @inapposite
His contributions were limited to those of legal accuracy and any criticism or opinion expressed in this commentary remains that of the English Legal History Blog.

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BOOK RECOMMENDATION: Granville Sharp’s Cases on Slavery

Granville Sharp’s Cases on SlaveryGranville Sharp image

Andrew Lyall

The purpose of Granville Sharp’s Cases on Slavery is twofold: first, to publish previously unpublished legal materials principally in three important cases in the 18th century on the issue of slavery in England, and specifically the status of black people who were slaves in the American colonies or the West Indies and who were taken to England by their masters. The unpublished materials are mostly verbatim transcripts made by shorthand writers commissioned by Granville Sharp, one of the first Englishmen to take up the cause of the abolition of the slave trade and slavery itself. Other related unpublished material is also made available for the first time, including an opinion of an attorney general and some minor cases from the library of York Minster.

The second purpose, outlined in the Introduction, is to give a social and legal background to the cases and an analysis of the position in England of black servants/slaves brought to England and the legal effects of the cases, taking into account the new information provided by the transcripts. There was a conflict in legal authorities as to whether black servants remained slaves, or became free on arrival in England.

Lord Mansfield, the chief justice of the court of King’s Bench, was a central figure in all the cases and clearly struggled to come to terms with slavery. The material provides a basis for tracing the evolution of his thought on the subject. On the one hand, the huge profits from slave production in the West Indies flooded into England, slave owners had penetrated the leading institutions in England and the pro-slavery lobby was influential. On the other hand, English law had over time established rights and liberties which in the 18th century were seen by many as national characteristics. That tradition was bolstered by the ideas of the Enlightenment.

By about the 1760s it had become clear that there was no property in the person, and by the 1770s that such servants could not be sent abroad without their consent, but whether they owed an obligation of perpetual service remained unresolved.

Dr Andrew Lyall is a retired member of staff in Law at University College Dublin.

February 2017   |    9781509911219   |   448pp  |   Hardback  |   RSP: £60

Discount Price: £48

Click here to order online and use the discount code CV7 at the checkout to get your 20% off

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History of the Referendum

referendum-picture

It is fair to say that the result of the United Kingdom’s Referendum on continued membership of the European Union is one of the most controversial and fiercely debated topics in modern English Legal History. Rafts of previously silent Constitutional Lawyers have entered the arena to voice their opinions.

This ferocity has been an enduring theme surrounding Referendums since the earliest discussions regarding their introduction. The central pillar of controversy is that Referendums are arguably contrary to the concept of Parliamentary Sovereignty. This is the principle that Parliament, acting by its Members and Lords, can make or unmake any law whatsoever. Theoretically, if Parliament wants to pass an Act that mandates the slaughter of all blue-eyed boys, Parliament can do so. Practically this might present difficulties, but it is correct as a matter of English Constitutional Law.

The greatest advocate of Parliamentary Sovereignty was Constitutional theorist Albert Venn Dicey in 1885. Bizarrely, it was also Dicey who first advocated the introduction of Referendums in an 1890 article, a mere 5 years after the publication of his renowned text on Parliamentary Sovereignty. Dicey believed that Referendums could act as a direct democratic check against the corruption of elected parties. Dicey stated that the people could act as ‘Political Sovereign’.

Dicey wanted a Referendum on the subject of Irish Home Rule to try to defeat Ireland’s attempt to govern itself in the late 19th Century, but he was unsuccessful. In the early 1900s, Members of the Conservative party suggested using a Referendum every time the House of Commons and House of Lords disagreed on a Bill, but this was roundly rejected. Moreover, in 1903 Joseph Chamberlain unsuccessfully suggested a Referendum on the issue of tariff reform. This reform, fittingly, was to be a departure from free trade towards imposing custom duties on foreign imports.

The other main suggestion of this era (again rejected) was made by Winston Churchill in 1910 who recommended a Referendum as a means of answering the question of Women’s Suffrage.

Over the next several decades, the idea of Referendums became increasingly unpopular in England due to their use by dictators as a tool of oppression. By way of example, Hitler held a Referendum in 1934 to effectively give himself ultimate State power. Groups of people were escorted to polling stations by Nazi soldiers and then had to vote in public. Some ballot papers were pre-ticked ‘Yes’ and forgeries were so common in some regions of Germany that the number of votes cast was greater than the total number of people entitled to vote.

The next major suggestion was again made by Winston Churchill in 1945 to answer the question of whether his Second World War government coalition should continue until Japan had been defeated. In response, Clement Atlee described the concept of Referendums as ‘alien to all of our traditions’. In the decades after the Second World War, Referendums were barely mentioned; no issue seemed important enough to warrant a Referendum. Atlee’s sentiment was echoed by Margaret Thatcher in the 1970s, however this did not dissuade Harold Wilson from promising and implementing the first ever UK nationwide Referendum in 1975.

The United Kingdom has only held 3 nationwide Referendums. The first was on 5 June 1975 to decide whether to continue as a member of the European Economic Community (now the European Union) (67.23% Yes), the second was on 5 May 2011 to decide whether to adopt the Alternative Vote system (67.9% No) and, finally, on 23 June 2016, whether to continue as a member of the European Union (51.89% No).

Over the years, there have been various regional Referendums, mostly concerning the devolution of powers to Scotland, Northern Ireland and Wales (notably the Scottish Independence Referendum of 2014 – 55.3% No).

Although nationwide Referendums were firmly rejected in the early 1900s, the argument against them was not as strong for more localised Referendums and these were carried out from 1913. For example, in 1913 local areas in Scotland held Referendums on whether to implement the prohibition of alcohol. Of particular interest is that from 1881 pubs in Wales legally had to be closed on Sundays. In 1961, local areas of Wales were permitted to have a Referendum on whether they wanted Sundays to be ‘wet’ or ‘dry’ and for further Referendums asking the same question to take place every 7 years. Sadly, the Welsh pub Referendums were abolished in 2003.

Finally, since 1972 the people of local Parish areas have been able to call for a local Referendum, called ‘Parish polls’, to answer questions on community issues. These tend to be on local planning concerns and rarely have a turnout of more than a few hundred voters.

It is clear that Referendums are not new to English Legal History but are not by any means entrenched as an English democratic principle. Indeed, a system to govern Referendums was only put in place in 2000. The Electoral Commission oversees the conduct of Referendums and consults on how understandable the phrasing of the proposed Referendum question is. The recent EU membership Referendum has been so divisive that, on hearing a challenge, the High Court has held that Article 50 of the Treaty on European Union (relating to the withdrawal of a Member State from the EU) cannot be used in the UK without an affirmative vote in Parliament.

The UK Government has stated it will appeal this judgment and we will have to wait and see what the appeal decision will mean for the future of Referendums in English Legal History. One thing is certain, party leaders are going to think very carefully before including Referendum promises in their political Manifestos in the future.

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