John Somers, 1st Baron Somers
John Somers, 1st Baron Somers, was an English jurist, Whig statesman and peer. Somers first came to national attention in the trial of the Seven Bishops where he was on their defence counsel. He published tracts on political topics such as the succession to the crown, where he elaborated his Whig principles in support of the Exclusionists. He played a leading part in shaping the Revolution settlement. He was Lord High Chancellor of England under King William III and was a chief architect of the union between England and Scotland achieved in 1707 and the Protestant succession achieved in 1714. He was a leading Whig during the twenty-five years after 1688; with four colleagues he formed the Whig Junto.
Early life
He was born at Claines, near Worcester, the eldest son of John Somers, an attorney in a large practice in that town, who had formerly fought on the side of the Parliament, and of Catherine Ceaverne of Shropshire. After being at school at Queen Mary's Grammar School, Walsall, and The King's School, Worcester he was entered as a gentleman commoner at Trinity College, Oxford, and afterwards studied law under Sir Francis Winnington, who became solicitor-general, and joined the Middle Temple.Early political career
He soon became intimate with the leaders of the country party, especially with Lord Essex, William Russell, and Algernon Sidney but never entered into their plans so far as to commit himself beyond recall. He was the author of a pamphlet supporting the Exclusion Bill, A Brief History of the Succession, Collected out of the Records and the Most Authentick Historians. Somers showed that Parliament had for centuries regulated the succession of the English crown against the arguments of those who believed that Parliament had no right to alter the succession. Before the Norman Conquest of England in 1066, the Anglo-Saxon kings had been elected, and even after it Parliament had deposed kings and kings, in turn, had confirmed their title by Act of Parliament. Somers concluded:...it hath been the constant opinion of all Ages that the Parliament of England had an unquestionable power to limit, restrain and qualify the Succession as they pleased, and that in all Ages they have put their power in practice; and that the Historian had reason for saying that seldom or never the third Heir in a right descent enjoyed the Crown of England.
He was reputed to have written the Just and Modest Vindication of the Two Last Parliaments, which was published in April 1681 as the answer to Charles II's famous declaration of his reasons for dissolving them. The authorship of this has been disputed. According to Bishop Burnet it was "first penned by Sidney; but a new draught was made by Somers, and corrected by Jones". Lord Hardwicke saw a copy in Somers's handwriting amongst his manuscripts before they were destroyed by fire in 1752.
In 1681 Lord Shaftesbury was sent to the Tower of London without bail or recourse to a trial. In November he was charged at the Old Bailey for high treason, specifically for intending to levy war against the king. However, the grand jury of Middlesex threw out the bill against Lord Shaftesbury, and were vehemently attacked for so doing by government supporters. Somers published anonymously The Security of Englishmen's Lives, or, The Trust, Power, and Duty of the Grand Juries of England in 1681. Somers acknowledged that judges may advise but juries "are bound by their Oaths to present the Truth, the whole Truth, and nothing but the Truth, to the best of their own, not the Judges', Knowledge". The monarch must ensure that justice is carried out:
Whosoever hath learnt that the Kings of England were ordained for the good Government of the Kingdom in the Execution of the Laws, must needs know, that the King cannot lawfully seek any other benefit in judicial proceedings, than that common Right and Justice be done to the People according to their Laws and Customs.
Somers went on to argue that the monarch should hold the protection of the innocent above the punishment of the guilty:
If a Criminal should be acquitted wrongfully he may be reserved for future Justice from Man or God, if he doth not repent; but 'tis impossible that satisfaction or reparation should be made for innocent Bloodshed in the forms of Justice.
In 1683 he was counsel for the sheriffs Thomas Pilkington and Samuel Shute before the Court of King's Bench, and secured a reputation which continually increased until the trial of the Seven Bishops, in which he was junior counsel. One of the bishops objected that "too young and obscure a Man" should be retained on the defence counsel but Sir Henry Pollexfen refused to participate in the trial without him, saying that Somers was "the Man who would take most Pains, and go deepest into all that depended on Precedents and Records". In Macaulay's words: "Somers rose last. He spoke little more than five minutes: but every word was full of weighty matter; and when he sate down his reputation as an orator and a constitutional lawyer was established". In his speech Somers cited the case of Thomas v. Sorrel whereby it was ruled that no Act of Parliament could be abrogated except through Parliament. The bishops' petition had been described as a false, malicious and seditious libel. In his peroration Somers answered this charge:
My Lord, as to all the matters of fact alleged in the Petition,—that they are perfectly true we have shown by the Journals of both Houses. In every instance which the petitioners mention, this power of dispensation was considered in Parliament, and, on debate, declared to be contrary to law. They could have no design to diminish the prerogative because the King hath no such prerogative. Seditious, my Lord, the Petition could not be, for the matter of it must be seen to be strictly true. There could be nothing of malice, for the occasion, instead of being sought, was forced upon them. A libel it could not be, for the intent of the defendants was innocent, and they kept strictly within the bounds set by the law, which gives the subject leave to apply to his Prince by petition when he is aggrieved.
Glorious Revolution
In the secret councils of those who were planning the Glorious Revolution Somers took a leading part, and in the Convention Parliament was elected a member for Worcester. He was immediately appointed one of the managers for the Commons in the conferences between the houses, and in arguing the questions whether James II had left the throne vacant by abdication and whether the acts of the Convention Parliament were legal—that parliament having been summoned without the usual writs—he displayed great learning and legal subtlety.In his maiden speech on 28 January 1689, Somers argued that James II had forfeited his claim to the allegiance of the English by casting himself into the hands of Louis XIV of France and conspiring "to subject the Nation to the Pope, as much as to a foreign prince". On 6 February Somers advocated the word "abdicate" rather than "desert" to describe James' flight to France. He concluded by stating that James' actions were a prime example of the act of abdicating:
That King James II, by going about to subvert the constitution, and by breaking the original contract between king and people, and by violating the fundamental laws, and withdrawing himself out of the kingdom, hath thereby renounced to be a king according to the constitution, by avowing to govern by a despotic power, unknown to the constitution, and inconsistent with it; he hath renounced to be a king according to the law, such a king as he swore to be at his coronation, such a king to whom the allegiance of an English subject is due.
Challenged by the Lords to produce a precedent whereby England had been without a monarch, Somers referred to a parliamentary roll from 1399 that stated that the throne had been unoccupied between the reigns of Richard II and Henry IV. Somers could not point to the interregnum of 1649–1660 because by law the reign of Charles II had started after the execution of Charles I. The Lords replied by pointing to a roll from the first year of the reign of Edward IV which showed that the roll of 1399 had been annulled. Sir George Treby supported Somers by producing the roll of the first year of the reign of Henry VII which repealed Edward IV's roll. Eventually the Lords accepted the abdication clause and that the throne was vacant at the behest of William, and passed a resolution affirming William and Mary's right to the crown.
Although some historians such as Macaulay have claimed Somers was made chairman of the committee which drew up the Declaration of Right, the committee's report was delivered to the Commons by Treby. However Somers did play a leading part in drawing up the Declaration, which would be passed in Parliament and become known as the Bill of Rights 1689. Although later generations exaggerated Somers' role as architect of the Bill of Rights, his biographer asserts that no one else can have a better claim to that title. Somers published anonymously A Vindication of the Proceedings of the Late Parliament of England in 1690. Here, Somers justified the war against France and the Bill of Rights:
The proceedings of the late parliament were so fair, so prudent, so necessary, and so advantageous to the nation, to the protestant interest in general, and in particular to the church of England, that all true Englishmen must needs acknowledge they owe to the then representatives of the nation, their privileges, their liberties, their lives, their religion, their present and future security from popery, slavery, and arbitrary power, had they done nothing else but enacted the rights and liberties of the subject, and settling the succession of the crown.
Somers went on to place the abolition of the dispensing power of sovereigns first in importance, then the parliamentary control of taxation, the outlawing of standing armies in time of peace unless Parliament decided otherwise, and the royal succession. Somers argued for the vital importance of the rule of law:
Our happiness then consists in this, that our princes are tied up to the law as well as we, and upon an especial account obliged to keep it up in full force, because if they destroyed the law, they destroyed at the same time themselves, by overthrowing the very foundation of their kingly grandeur and regal power. So that our government not being arbitrary, but legal, not absolute but political, our princes can never become arbitrary, absolute, or tyrants, without forfeiting at the same time their royal character, by the breach of the essential conditions of their regal power, which are to act according to the ancient customs and standing laws of the nation.