Parliamentary Sovereignty


The doctrine of parliamentary supremacy if not parliamentary sovereignty had all but emerged by the regency; William Blackstone argued strongly for sovereignty in his Commentaries on the English Law in 1765. He essentially argued that absolute supremacy must exist in one of the arms of Government and he certainly thought it resided in Parliament as Parliament could legislate on anything and potentially could even legislate the impossible as valid law if not practical policy. The debate over whether of not Parliament could limit or overrule the supposed rights granted by Magna Carta was to prove to be the basis for the discussion over parliamentary sovereignty; however Blackstone preached that Parliament should respect Magna Carta as a show of law from time immemorial, and the other great legal mind of the time, Jeremy Bentham used The Charter to attack the legal abuses of his time.


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ONE CRAZY FOO

In 1763 an MP, John Wilkes was arrested for writing an inflammatory pamphlet, No. 45, 23rd of April 1763: however he cited Magna Carta incessantly, and the weight that Magna Carta held at the time meant Parliament was reluctant to continue the charge, and he was released and awarded damages for the wrongful seizing of his papers as the general warrant under which he was arrested was deemed illegal. However, he was still expelled from Parliament after spending a week in the Tower of London. He was abroad for a number of years until 1768 when he returned and failed to be elected as the MP for London; unperturbed, however, he stood again for Middlesex but he was expelled again, on the basis of the earlier offence, the following year. He stood again, however, and was elected yet again, but the Commons ruled that he was ineligible to sit. At the next three re-elections Wilkes again was the champion, but the house did not relent and his opponent, Lutteral, was declared the winner. The treatment of Wilkes caused a furore in Parliament, with Lord Camden denouncing the action as a contravention of Magna Carta. Wilkes made the issue a national one and the issue was taken up by the populace, and there were very popular prints of him being arrested while teaching his son about Magna Carta all over the country. He had the support of the Corporation of London, long seeking to establish its supremacy over Parliament based on The Charter itself. The fight for the charter was misplaced and it was merely the idea of the liberties which were supposedly enshrined in The Charter that people were fighting for. It is no coincidence that those who supported Wilkes would have little or no knowledge of the actual content of The Charter, or, if they did, were looking to protect their own position based on The Charter. Wilkes re-entered the house in 1774. He had talked of Magna Carta as he knew it would capture public support to achieve his aims, but he had started the ball rolling for a reform movement to ‘restore the constitution’ through a more representative, less powerful, and shorter-termed Parliament.

One of the principal reformists was a man called Granville Sharp who was a philanthropist who had on his list of causes the Society for the Abolition of Slavery and The Society for the Conversion of the Jews. Sharp called for the reformation of Parliament based on Magna Carta, and devised a doctrine to back this up, the doctrine of accumulative authority. This theory stated that almost innumerable parliaments had approved of Magna Carta, and therefore it would take the same amount of Parliaments to repeal The Charter. As with many, he accepted the supremacy of Parliament as an institution, but he did not believe that this power was without restraint, namely that they could not repeal Magna Carta. Many reformists agreed that The Charter was a statement of the liberties of the mythical and immemorial golden age, but there was a popular movement to have a holiday to commemorate the signing of The Charter in a similar way to the American 4th of July holiday; however, very few went as far as Sharp.

Although there was a popular movement to resist the sovereignty of Parliament based on The Charter, there were still a great number of people who thought that The Charter was over-rated. John Cartwright pointed out in 1774 that Magna Carta could not possibly have existed unless there was a firm constitution beforehand to facilitate its use. He went even further, later, and claimed that The Charter was not even part of the constitution but merely a codification of what the constitution was at the time. Cartwright suggested that there should be a new Magna Carta based on equality and rights for all, not just for landed persons.

The work of people like Cartwright was fast showing that the rights granted by The Charter were out of pace with the developments which followed in the next six centuries. However there were certain provisions, such as Clauses 23 and 39, which were not only still valid then but which still form the basis of important rights in the present English law. Undeniably, though, Magna Carta was diminishing in importance, and the arguments for having a fully sovereign Parliament were becoming more and more accepted. Many in the house still supported The Charter, however, such as Sir Francis Burdett who called for a return to the constitution of Magna Carta in 1809 and denounced the house for taking proceedings against the radical John Gale Jones, for denouncing the house as acting in contravention of Magna Carta. Burdett was largely ignored, as by this stage Magna Carta had largely lost its appeal, but he continued, claiming that the Long Parliament had usurped all the power then enjoyed by the Parliament of the time; he stated that Parliament was constantly acting against Magna Carta (although he was referring to their judicial rather than their legislative practice) which they did not have the right to do; he achieved popular support and there were riots across London when he was arrested for these claims, and again a popular print circulated of him being arrested whilst teaching his son about Magna Carta

With the popular movements being in favour of the liberties of The Charter, and Parliament trying to establish their own sovereignty there needed to be some sort of action in order to swing the balance in favour of one or the other. However, all that occurred was the Reform Act 1832 which was such a compromise that it ended up pleasing no one. Due to their disappointment in the Reform Act a group was founded calling itself the Chartists; they called for a return to the constitution of Magna Carta and eventually culminated in a codification of what they saw as the existing rights of the People; the People's Charter. At a rally for the Chartists in 1838 the Reverend Raynor demanded a return to the constitution of The Charter; freedom of speech, of worship, and of congress. This is a perfect example of how the idea of The Charter went so far beyond the actual content of The Charter: it depicted for many people the idea of total liberty whereas the actual liberties granted by The Charter were very limited and by no means intended to be applied to all. It was this over-exaggeration of The Charter that eventually led to its downfall. The more people expected to get from The Charter, the less Parliament was willing to attempt to cater to this expectation, and eventually writers such as Tom Paine rebutted the claims of those such as the Chartists. This meant that the educated were no longer supporting any of these claims, and therefore the Myth gradually faded into obscurity, and the final claim against sovereignty of Parliament was erased, and the road was open to the establishment of this doctrine.