LECTURES - College of Social Sciences and International Studies ...

The Free Individual and the Free Society
The use by the restored monarchy of the royal prerogative to
pardon wealthy criminals was stopped. Governmental boards
were set up which began to professionalise public administration.
16 The first beginnings of the cabinet, bringing heads of
departments together, appeared; though it was not until well
into the eighteenth century that it could be said 17 that the king
had ceased to govern through ministers and that ministers now
governed through the king. The judges did initially less well.
Once assured that their tenure of office was (as the Commonwealth
had established) conditional on proper conduct and not
on the royal pleasure, they insisted that they had a freehold right
to sell offices in the court system; and the Master of the Rolls,
who had been doubling as Speaker of the House of Commons,
was fined for taking a large fee from the City to get it exempted
from the imposition of poor rates. 18 It was judges like Sir John
Holt, who became Chief Justice of the King's Bench in the year of
the Glorious Revolution, who as time went by began to take the
common law, and the constitution with it, into logical and principled
paths on which ministers were not allowed to tread
except on terms of equality with citizens.
The consequent partitioning of state power between Parliament,
the executive and the courts has continued from then till
now to be contested, at least at the margins. But it was within a
generation that Holt, trying the great electoral corruption case of
Ashby v. White, 19 is said to have been confronted by the Speaker
of the House of Commons and his retinue threatening the judges
with imprisonment for contempt of Parliament, and to have
ordered the Speaker out on pain of committal for contempt of
court—"had you all the House of Commons in your belly". 20 It
is to this symbolic stand-off, of which the deference of the courts
to Parliament's enactments is a central but by no means the only
16 The diaries of Samuel Pepys, often spoken of as the first modern civil servant,
give a window on to this process.
17 W.R. Anson, Law and Custom of the Constitution (3rd ed., 1908) vol. II., Pt 1,
p. 41.
18 This was Sir John Trevor, who in 1695 was impeached and fined (after a
debate over which he himself initially presided) for accepting what was called
a fee but what others then and now would have called a bribe from the
Common Council of London to bring forward a Bill in the House.
19 (1703) 2 Ld. Ray. 938.
20 The story is recounted in the DNB entry on Holt, where it is said to be
mythical. But like other myths it contains a truth. What is better attested is
that Holt had earlier been summoned before the House of Lords for contempt
for deciding that a man accused of murder, Charles Knollys, had a sufficient
claim to the Earldom of Banbury to exclude the jurisdiction of the ordinary
courts. Holt refused to account to the Lords for his judgment, and the issue
was dropped.