Responsible Government and Law in Eighteenth-Century England
The Importance of the Habeas Corpus Act 1679 and the Bill of Rights 1689,
including their application in modern Australia.
Habeas Corpus Act 1679: This act re-stated the ancient legal right of habeas corpus.
This right, traceable to at least the twelfth century, is the insistence upon bringing
prisoners before a court rather than suffering indefinite detention. The re-statement of
this safeguard was promoted during the period immediately prior to the Glorious
Revolution.
Bill of Rights 1689: The Bill of Rights 1689 is mentioned as one of the significant
developments following the Glorious Revolution, alongside the Act of Settlement.
Understanding its importance is a specific learning outcome of the chapter.
Application in Modern Australia: While the sources note that the principle of the
presumption of innocence was imported throughout the British Empire and
Commonwealth, the provided excerpts do not detail the specific application of the
Habeas Corpus Act 1679 or the Bill of Rights 1689 in modern Australia.
The Separation of Powers, Responsible Government and Judicial Tenure.
The Separation of Powers: This doctrine was introduced in 1731 by the French
lawyer Montesquieu in his book De L’Esprit des Lois. He argued that if the same
person or body exercised the three powers—enacting laws (legislature), executing
public resolutions (executive), and trying causes (judiciary)—"there would be an end
of everything". Montesquieu compared the "checks and balances" he thought existed
in the British Constitution with the absolutist regimes of other European powers.
However, he misunderstood the British system by separating the King (executive)
too strongly from Parliament (legislature), failing to recognize that the ministers (the
actual executive) originated from within Parliament. The US Constitution was drafted
to specifically integrate this doctrine.
Responsible Government: If parliamentary sovereignty was the achievement of the
seventeenth century, responsible government was the achievement of the eighteenth
century. This system dictates that the executive (Ministers) is responsible to the
legislature (Parliament). Over the course of the century, the monarch’s power
gradually declined. Since only Parliament could raise taxes and authorize spending,
the King was practically necessitated to choose his advisors (the government) from
the group that held a majority of seats in Parliament and controlled ‘the power of the
purse strings’. This practice is still followed in 'Westminster systems of government'
today.
Judicial Tenure: The Act of Settlement 1701 fixed judicial salaries and mandated
that superior court judges hold office based on ‘good behaviour’ instead of being
subject to the monarch’s ‘pleasure’. This was a decisive move toward judicial
independence. Prior to 1701, monarchs like Charles II and James II frequently
dismissed judges at will. Following the Act, a superior court judge can only be
dismissed for misbehaviour after petitions from both Houses of Parliament.
The Origins of Defence Mechanisms, Lawyers’ Participation in Trials, and the
Presumption of Innocence.
Presumption of Innocence: This key evidentiary principle dictates that the accused
is presumed innocent until proven guilty. Treason trials are viewed as an excellent
context for considering the emergence of the contours of a modern trial, including this
major operative principle.
The ‘Golden Thread’: The presumption of innocence is famously described as the
‘golden thread’ running through the English Criminal Law, as proclaimed by Lord
Sankey LC in the 1935 case Woolmington v Director of Public Prosecutions. Sankey
emphasized that it is the duty of the prosecution to prove the prisoner’s guilt. This
principle was imported throughout the British Empire and Commonwealth. This
notion is underpinned by William Blackstone’s maxim that it is better that ten guilty
persons go free than one innocent person be convicted.
Lawyers’ Participation/Defence Mechanisms: Treason, being the most serious
crime, is one where important developments in the use of counsel are apparent. The
sources illustrate a lack of fairness in earlier trials, such as the treason trial of the
Jesuits accused of the Popish Plot, where the judge, Sir William Scrogg, CJKB,
exhibited bullying behavior and excused lapses in memory for Crown witnesses but
not for the defendants.
The Legal Issues Involved in the Abolition of Slavery in the British Empire.
Understanding the legal issues involved in the abolition of slavery in the British
Empire is listed as a crucial learning outcome for the chapter.
However, the provided excerpts do not contain any information or discussion
regarding the legal issues, context, or mechanisms surrounding the abolition of
slavery.