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6 - The royal prerogative

from Part II - Themes

Published online by Cambridge University Press:  05 November 2015

Stephen Sedley
Affiliation:
University of Oxford
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Summary

The claims of the Tudor and Stuart monarchs to unrestricted state power were repudiated by judges who held that the Crown had only those prerogatives which the law accorded it. The residue of authority which this has afforded the Crown and its ministers has nevertheless remained a controversial source of state power.

The throne and the lions

If anyone imagines that judges overreaching themselves and interfering in politics is a complaint confined to modern judicial review, they need look no further than Bacon's essay “Of Judicature”, published in 1625.

“Let judges also remember,” Bacon wrote, “that Solomon's throne was supported by lions on both sides: let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty.”

Much of the history considered in this book begins in Bacon's working lifetime, between his call to the Bar by Gray's Inn in 1582 and his disgrace and demotion from the chancellorship in the early 1620s. It is a history which not only explains why Bacon wrote what he did about the proper place of the judiciary but also helps to explain why critiques continue to be directed at what is conventionally dubbed judicial activism.

Public law, as Bacon pointed out, has a proper sphere of operation which does not include the business of government. What Bacon was also taking care to point out, however, was that the state itself must operate within the law: that was the principle which the judicial lions were there to guard, and it is why he went on to say:

Let not judges also be so ignorant of their own right as to think there is not left them, as a principal part of their own office, a wise use and application of laws.

Type
Chapter
Information
Lions under the Throne
Essays on the History of English Public Law
, pp. 123 - 142
Publisher: Cambridge University Press
Print publication year: 2015

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  • The royal prerogative
  • Stephen Sedley, University of Oxford
  • Book: Lions under the Throne
  • Online publication: 05 November 2015
  • Chapter DOI: https://doi.org/10.1017/CBO9781316402863.008
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  • The royal prerogative
  • Stephen Sedley, University of Oxford
  • Book: Lions under the Throne
  • Online publication: 05 November 2015
  • Chapter DOI: https://doi.org/10.1017/CBO9781316402863.008
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • The royal prerogative
  • Stephen Sedley, University of Oxford
  • Book: Lions under the Throne
  • Online publication: 05 November 2015
  • Chapter DOI: https://doi.org/10.1017/CBO9781316402863.008
Available formats
×