We have just had one of those moments when everyone brushes up on the English Constitution.
The High Court has pronounced on #Brexit; and dropped a great dollop of whoops-oh-nasty onto the May Government. The May Government will now try to appeal to the Supreme Court. For in law, as no where else, the Siphonaptera applies:
Great fleas have little fleas upon their backs to bite ’em,
And little fleas have lesser fleas, and so ad infinitum.
And the great fleas themselves, in turn, have greater fleas to go on,
While these again have greater still, and greater still, and so on.
With some small joy, the BBC political editor, Laura Kuenssberg (herself only two generations descent from one of the great Scottish jurists) was relishing that the High Court had cited a precedent from 1610:
27. Sir Edward Coke reports the considered view of himself and the senior judges of the time in The Case of Proclamations (1610) 12 Co. Rep. 74, that
“the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm”
and that :
“the King have no prerogative, but that which the law of the land allows him.”
So, phooey to you, Theresa May and your claims of “prerogative”.
There’s a nice extra bit in quoting Coke on the customs of the realm, because that takes us so far back behind the veil of history.
The Scandinavians, when not on the Viking warpath, were a litigious people and loved to get together in the ‘thing’ to hear legal argument. They had no professional lawyers, but many of their farmer-warriors, like Njal, the truth-teller, were learned in folk custom and in its intricate judicial procedure. A Danish town in England often had, as its main officers, twelve hereditary ‘law men.’ The Danes introduced the habit of making committees among the free men in court, which perhaps made England favorable ground for the future growth of the jury system out of a Frankish custom later introduced by the Normans.
Trevelyan then moves on to remark on Æthelred (the Redeless/ the Unready — yes, him).
That sent me to Maddicott: The Origins of the English Parliament of which a clean, crisp copy I do have here. Because I knew there (on page 37) I would find this:
The turning point came in 1014: a year of disasters in which the victories of the Danish king Swein, culminating in his capture of London, had forced Æthelred to take refuge overseas. What followed set a precedent for future bargaining between kings and councils. Æthelred was recalled from a brief exile in Normandy by ‘all the councillors (þa witan ealle) who were in England’. In advance of his return he promised to be a gracious lord to his people and to reform what they all hated, on condition that they gave him their unqualified allegiance. John of Worcester adds that he also undertook to fall ion with their advice. These terms were clearly imposed by the councillors as the price of Æthelred’s restoration. As Sir Frank Stenton long ago pointed out, they are ‘of great constitutional interest as the first recorded pact between an English king and his subjects’.
If anyone is still in doubt: the whole government case for being able to invoke Article 50, without prior parliamentary approval, lies in a claim that the Prime Minister has the residual Crown prerogative.