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The Christian Roots in Common Law
Paper presented to the 60th Year Celebrations of The Australian League of Rights,
"Before getting into the specifics of the common law, let me first set forth a small speech given in 1875 by an obscure judge," writes Father Peter. The name of the judge was The Honourable Joseph Neilson, Chief Justice of the City Court of Brooklyn. He gave this address at some sort of a gathering, I don't think in a court. The publisher of the book "A Collection of Arguments and Speeches by Eminent Lawyers," (New York: Baker, Voorhis & Co., 1882). entitled it "The Growth of Principles."
the sea shore you pick up a pebble, fashioned after a law of nature, in the exact
form that best resists pressure, and worn as smooth as glass. It is so perfect
that you take it as a keepsake. But could you know its history from the time when
a rough fragment of rock fell from the overhanging cliff into the sea, to be taken
possession of by the under currents, and dragged from one ocean to another, perhaps
around the world, for a hundred years, until in reduced and perfect form it was
cast upon the beach as you find it, you would have a fit illustration of what
many principles, now in familiar use, have endured, thus tried, tortured and fashioned
during the ages.
Growth of Principles continued:
When England spread itself into an Empire throughout the world it left behind a common inheritance of many things and left behind the system of Common Law which in every former English colony has survived. Also, why, if Henry II is attributed as the father of Common Law, that common law was not found in Anjou and Normandy as well as in England?
Part of the answer lies in the way in which the Christian Church was established in England. The establishment of a regular Diocesan organization permitted the Church in England a means of orderly government which would allow it to override any narrow political boundaries and to act as a unit in country where there were many political units. Its strength was established early in the life of England and it was in a great position to influence the smaller kingdoms and ultimately the one united Kingdom.
In the course of this paper I cannot hope to satisfy all the answers to those questions but do wish to answer in part, at least, why the English common law came into existence and why it has stood the test of time.
is common law?
Stare decisis has come to us as a most sacred rule of law. A judge is to apply the law as it is presented to him through the previous decisions of the court, it is not the judge's function to make or remake the law that is the function of the parliament. However, judges do make law even though they try not to; indeed it is their function under a system of common law to do so: but not consciously and only over the course of time, as numerous similar cases are heard and decided.
Francis Bacon who was trained in the law from the age of 15 studied at Gray's
Inn in 1576 called to the bar in 1582, Solicitor General in 1607, Attorney General
in 1613 and Lord Chancellor in 1618 stated:
The common Law was a protection of the community by ensuring that it was safer from tyranny. Tyrants can only get a hold of a central system where the rules issue from a single authority. A tyrant cannot get a hold of a system which depends on a spontaneous participation in the law-making process on the part of each and all of the inhabitants of a country, viz., a system of common law.
"The Roman law," said Tinda, C.J., in Acton v. Blendell , "forms no rule, binding in itself, upon the subjects of these realms; but in deciding a case upon principle, where no direct authority can be cited from our own books, it affords no small evidence of the soundness of the conclusion at which we have arrived if it proves to be supported by that law the fruit of the researches of the most learned men, the collective wisdom of ages, and the ground-work of the municipal law of most of the countries in Europe."
Upon such principles
has the common law based its practice and developed its science. From first to
last, through the courts at Westminster, the common law has resisted the introduction
of the civil law into the jurisprudence of England. At the very time that the
Tudors and the Stuarts were grasping at high prerogative the common law was maturing
its vigour in the courts.
By the common law "every man's house is called his castle. Why? Because it is surrounded by a moat or defended by a wall? NO! It may be a straw-built hut the wind may whistle through it, the rain may enter, but the king cannot."
did it come to be?
The Code of King Wihtred of Kent in 695 begins with the prologue that refers to the deliberative assembly of clergy and laity to draw up the Laws of Wihtred and add to the legal usages of Kent. In the time of Aethelred the Unready when legal decisions were made such decisions were written in the Gospel book of the Cathedral establishing a pattern that was to link Church and State for time to come. It was the English Church that was to be the strongest agent of national identity. Christian missions, bishops and abbots all contributed to making England one Kingdom. And linked to this was the strength of community itself promulgated by the Church and it was this community action that was such a defining factor. With no police force, enforcement depended upon community action. Every male adult was in a tithing - a group of ten which was collectively responsible for behaviour of the ten. It was community that was the central pivot of what became the common law of England.
When a community emerges from the tribal condition into that degree of social development which constitutes a state and, consequently, the powers of government become defined with more or less distinctness as legislative, executive, and judicial, with the arbitration of disputes leading to the establishment of courts, the community finds itself conscious of certain rules regarding the conduct of life, the maintenance of liberty, and the security of property which come into being at the very twilight of civilization and which have been consistently observed from age to age. Such were the usages and customs, having the force of law which became the inheritance of the English people and were first compiled and recorded by Alfred the Great in his famous "Dome-book" or "Liber Judicialis", published by him for the general use of the whole kingdom.
The profound religious spirit which governed King Alfred and his times clearly appears from the fact that the "Liber Judicialis" began with the Ten Commandments, followed by many of the Mosaic precepts, added to which is the express solemn sanction given to them by Christ in the Gospel: "Do not think that I am come to destroy the law, or the prophets; I am not come to destroy but to fulfil."
After quoting the canons of the Apostolic Council at Jerusalem, Alfred refers to the Divine commandment, "As ye would that men should do to you, do ye also to them", and then declares, "From this one doom, a man may remember that he judge every one righteously, he need heed no other doom-book."
original code of the common law compiled by Alfred was not uniform but consisted
of observances of different nature prevailing in various districts, e.g. Mercian
laws, Laws of the West-Saxons, and Danish law. These three systems of law were
codified and digested by Edward the Confessor into one system, which was promulgated
throughout the entire kingdom and was universally observed. The code was referred
to in a certain declaration of King Edward, the son of Alfred, with the injunction:
In the days of the Anglo-Saxon kings the courts of justice consisted principally of the county courts. These county courts were presided over by the bishop of the diocese and the sheriff, who exercised both ecclesiastical and civil jurisdiction. In these courts originated and developed the custom of trial by jury. The legal system which thus received form under the direction of the last Saxon King of England was common to the entire realm and was designated as "Jus commune" or Folk-right.
William the Conqueror brought with him into England jurists and clerics thoroughly imbued with the spirit of the civil law and distinctly adverse to the English system. However, the ancient laws and customs of England prevailing before the Conquest withstood the shock and stress of opposition and remained without impairment to any material extent.
In the 13th century a
royal judge, Henry de Bracton (d.1268), wrote his famous treatise on English law
and justice. For Bracton, state law could never depart from God's higher laws.
Collected in his notebook are some two thousand cases from the plea rolls of Pateshull and Raleigh, against some of which marginal notes have been written in pencil. Bracton's influence was very high in his own day, for numerous copies of his book were made, some of which are extant. He did not always receive the respect that was normally accorded to him. As late as 1744 Willies CJ, in dealing with the notion that all infidels were in law perpetui inimici (perpetual enemies) was moved to say: 'I lay no stress upon the authority of Bracton, Britton, and Fleta, for they lived in popish times when no other trade was carried on except the trade of religion; and I hope such times will never come over again.'
In the middle of the 18th Century the famous William Blackstone (1723-1780) stated that no human law could be valid if it contradicted God's higher laws, laws which maintain and regulate God's natural human rights to life, liberty, and property. Freedom of speech is one of the most important ingredients of human liberty.
antient (ancient) collection of unwritten maxims and customs which is called the
Common Law...had subsisted immemorially in this kingdom.... It was then taught,
says Mr. Selden (in Fletam 7.7), in the monasteries.... The clergy in particular...then
engrossed almost every other branch of learning. So (like their predecessors the
British druids) they were peculiarly remarkable for their proficiency in the study
of the law. Nullus clericus nisi causidicus ['No cleric unless a lawyer'],
is the character given of them soon after the Conquest, by William of Malmesbury
(Laws of the Kings l.4). The judges therefore were usually created out of the
sacred order...."An academic expounder of the laws...should be engaged...in tracing
out the originals and as it were the elements of the law....
It has not always been easy, and it has not always been the Christian Church that has been consistent. It was in disputes and disagreements between Pope Innocent III and Kind John and his barons about the rights of Kings that the Church in England was ratified in the first clause of Magna Carta: FIRST, THAT WE HAVE GRANTED TO GOD, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired.
King John was compelled to sign Magna Carta, proclaiming the great fundamental principles of the common law which secured very important liberties and privileges to every order of men in the kingdom - to the clergy, to the barons, and to the people. King John seemed to submit passively: but he only dissembled. He secretly sent abroad emissaries to enlist foreign soldiers, and he dispatched a messenger to Rome to Pope Innocent III who issued a bull in which he annulled the charter, yet Magna Carta survived despite the attempted influence of the Pope. It was the triumph of an English Christianity that ensured that the principles of the Common law survived and remained to this present day.
Throughout the creative centuries of the Common Law, the orientation of the mind and life of England was towards God : Godward. All the life and institutions of the realm were inspired and guided by a moral ideal. The Church was every-where the centre of community life. The separate organisation of Church and State was designed to secure that the moral and spiritual life of Everyman should be free from control by the political officers of the community, and so to avoid the danger of totalitarianism. ("Christian Philosophy in Common Law," by Richard O'Sullivan KC. 1942)
conclusion, it is this stability of law, ruling over the prerogative of the crown,
and administering equal justice to the high and the low through so many centuries.
It has produced certainty in rights and obligations which are regulated by law.
But, above all, it excludes private interpretations and controls the arbitrary
discretion of judges. It is the law, and the law only, which can successfully
resist the encroachments of despotism. In the absence of defined laws, and an
independent judiciary to enforce them, the only check upon arbitrary power is
popular insurrection and the people, after they have overthrown by force one despot,
are liable by their excesses, as all history shows, to succumb to another.
* * * * * * *
What Say the Reeds at Runnymede?
poem commemorating the signing of Magna Carta
Runnymede, at Runnymede,
When through our
ranks the Barons came,
freeman shall be fined or bound,
shall be fined or bound,
|© Published by the Australian League of Rights, P.O. Box 27 Happy Valley, SA 5159|