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The Christian Roots in Common Law

The Venerable Father Peter Coote, Anglican Church of Australia

A Paper presented to the 60th Year Celebrations of The Australian League of Rights, Albury NSW
October 2006.

"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."

"At 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.
We stand by the river and admire the great body of water flowing so sweetly on; could you trace it back to its source, you might find a mere rivulet, but meandering on, joined by other streams and by secret springs, and fed by the rains and dews of heaven, it gathers volume and force, makes its way through the gorges of the mountains, plows, widens and deepens its channel through the provinces, and attains its present majesty.
Thus it is that our truest systems of science had small beginnings, gradual and countless contributions, and finally took their place in use, as each of you, from helpless childhood and feeble boyhood, have grown to your present strength and maturity."

The Growth of Principles continued:
"No such system could be born in a day. It was not as when nature in fitful pulsations of her strength suddenly lifted the land into mountain ranges, but rather, as with small accretions, gathered in during countless years, she builds her islands in the seas. The rain could enter but the king could not.

It took a long time to learn the true nature and office of governments; to discover and secure the principles commonly indicated by such terms as 'Magna Charta,' the 'Bill of Rights,' 'Habeas Corpus,' and the 'Right of trial by jury;' to found the family home, with its laws of social order, regulating the rights and duties of each member of it, so that the music at the domestic hearth might flow on without discord; the household gods so securely planted that 'Though the wind and the rain might enter, the king could not'; to educate noise into music, and music into melody; to infuse into the social code and into the law a spirit of Christian charity, something of the benign temper of the New Testament, so that no man could be persecuted for conscience sake, so that there should be an end of human sacrifice for mere faith or opinion; the smouldering fires at the foot of the stake put out, now, thank God, as effectually as if all the waters that this night flood the rivers had been poured in upon them.

It took a long time to learn that war was a foolish and cruel method of settling international differences as compared with arbitration; to learn that piracy was less profitable than a liberal commerce; that unpaid labour was not as good as well-requited toil; that a splenetic old woman, falling into trances and shrieking prophecies, was a fit subject for the asylum rather than to be burned as a witch.
It took a long, long time after the art of printing had been perfected before we learned the priceless value, the sovereign dignity and usefulness of a free press. But these lessons have been taught and learned; taught for the most part by the prophets of our race, men living in advance of their age, and understood only by the succeeding generations. But you have the inheritance."

It is us indeed who have a rich inheritance so that Richard O'Sullivan, KC could write:
Ever since the period of the Norman Conquest the emerging principles of the Common Law were being shaped by Christian kings and by Churchmen who were also Canonists.
Common law arose independently of the Roman law in place in England at the time of the Empire and subsequent to that. There is, however great discussion on how the Common Law came into existence, so differently as opposed to Europe. From what roots did it grow and what was it that caused it to flourish and grow into a mighty tree that still today has resisted every attempt to change or remove it. This is particularly relevant today in the light of the ever-increasing modern onslaught of world humanism international socialism and revolutionary ideology against Common Law.
The question that has interested me in the preparation of this paper is: Why did the English Law enter upon its deliberative course when political and cultural contact with Europe and England was at it highest? English scholars studied in European universities, and the English Church was ruled by clergy from of European extraction bound by papal directives yet the common law not only survived but thrived, and established itself as something distinctly English.

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.

What is common law?
In the history of the world only two great systems of law, the civil law of ancient Rome, and the common law of England have emerged. All the most civilized nations in the world are governed by either of these two great schemes of justice. Though the civil law and the common law have much in common, yet in many important particulars they are the opposites of each other. Common law is judicial principles and general rules regulating the possession, use and inheritance of property and the conduct of individuals, based upon the decisions of law courts as distinct Royal Edicts or acts of parliament. (lex scripta)

The common law is derived from many sources and traditions, Anglo-Saxon, Norman, ecclesiastical, Roman and Scholastic: all strands woven into a fabric of custom and organization. It comes about as a result of a seamless and continual development. Primitive man knew nothing of laws: all he knew was custom. Custom, or tradition, evolved into rules for living. They grew spontaneously, viz., not deliberately designed by some particular human mind. The law as it is used in the particular case has a universal applicability to all future cases embracing similar facts, and involving the same or analogous principles. Do not, however, be mistaken - there is a conscious effort by those involved (lawyers and judges) to keep the law pure: not to change it, but to apply it. This principle is called stare decisis: Latin which literally translated means, "stand by things decided."

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.

As 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:
Judges ought to remember that their office is
jus dicere and not jus dare; to interpret law, and not to make law, or give law. Else it will be like the authority claimed by the church of Rome, which under the pretext of exposition of Scripture, doth not stick to add or alter; and to pronounce that which do not find; and by shew of antiquity to introduce novelty" ("Of Judicature," Francis Bacon)
The common law has been and is built up like pearls in an oyster, slowly and always in response to some small personal aggravation, infinitesimal layer after infinitesimal layer. It is built up upon the adjudications of courts: "... built up as it has been by the long continued and arduous labours, grown venerable with years, and interwoven as it has become with the interests, the habits, and the opinions of the people. [Without the common law a court would] in each recurring case, have to enter upon its examination and decision as if all were new, without any aid from the experience of the past, or the benefit of any established principle or settled law. Each case with its decision being thus limited as law to itself alone, would in turn pass away and be forgotten, leaving behind it no record of principle established, or light to guide, or rule to govern the future." (Hanford v. Archer, 4 Hill, 321.)

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.
Coke, one of their judges, did more to develop and organize it for protecting the individual against arbitrary power than any man who has appeared in the progress of English society. In him the professional instinct of the common law judge reached its sublimest sense of human right. He saw that the English constitution draws its whole life from the common law, and is but the framework of its living spirit.

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."

How did it come to be?
Christianity came to England at some stage after the death of resurrection of Christ and there have been many stories of how it came to be. What is certain is that Christianity was well established before Constantine converted to Christianity. Evidence of this is reflected by the fact that the Bishops of York, London and Lincoln were in attendance at the Council of Arles in 314. It is wrong to see that Christianity only came to English shores in 597 when Augustine landed at Kent. It was in the periods after the Roman Empire had left the shores of England that the English Christian Church became involved in the administration of laws in the various kingdoms.

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."

The 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:
To all who are charged with the administration of public affairs I give the express command that they show themselves in all things to be just judges precisely as in the Liber Judicialis it is written; nor shall any of them fear to declare the common law freely and courageously
("Omnibus qui reipublicæ præsunt etiam atque etiam mando ut omnibus æquos se præbeant judices, perinde ac in judiciali libro scriptum habetur: nec quicquam formident quin jus commune audacter libereque dicant")

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.
Bracton was born in Devonshire, and received the degree of Doctor of Laws at Oxford University. In 1245 he was appointed a circuit judge in 1264 he was appointed archdeacon of Barnstaple but resigned the post in the same year to become Chancellor of Exeter Cathedral, an office he held until his death in 1268. His claim to fame rests on two works: the Note Book, which is a collection of old decided cases; and his Treatise on the Laws of England written between 1250 and 1260, which he never finished, probably due to the Barons' Wars. Bracton showed that no matter how complex its superstructure, English law rested upon principles.

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.

"The 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....
"These originals should be traced to their fountains our antient lawyers and particularly Fortescue (c. 17) insist with abundance of warmth that these customs are as old as the primitive Britons, and continued down through the several mutations of government and inhabitants to the present time unchanged and unadulterated....
Our antiquarians and first historians do all positively assure us that...in the time of Alfred [A.D. 887f]...he found it expedient to compile his Dome-Book...for the general use of the whole kingdom.... It contained...the principal maxims of the Common Law [Folcruhte alias 'Folk-rule']....The first ground and chief cornerstone of the laws of England...is general immemorial custom or Common Law....
"God, when He created matter and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion - so, when He created man and endued him with free-will to conduct himself in all parts of life, He laid down certain immutable laws of human nature whereby that free-will is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws."
- Sir William Blackstone: Commentaries on the Laws of England, I:17-95.

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)

In 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.
From the spirit of the common law, the representative system of government composed of democracy, monarchy, and aristocracy, was established: which has served as a model for our form of government. It is a mixture of so many varied strands yet it was woven carefully together by the Church and the Christian faith based on the Bible itself.

As the great Puritan Dr. John Owen told the English Parliament on 26th April 1646:
"In the very morning of the Gospel, the Sun of righteousness shone upon this land.... The first potentate of the Earth that owned it, was in Britain.... "Oh, that we could remember the days of old! ... God will again water His garden; once more purge His vineyard; once more, of His own accord, He will take England upon liking.... The reformation of England shall be more glorious than of any nation in the World - being carried on neither by might nor power, but only by the Spirit of the Lord of hosts!"

O'Sullivan, R. "Christian Philosophy in the Common Law," (1942)
A Collection of Arguments and Speeches by Eminent Lawyers (New York: Baker, Voorhis & Co., 1882).
Sandfeur, T. "The Common Law Right to Earn a Living," Volume VII, No 1 2002
Yang, T. "Henry De Bracton - the Father of Case Law"
Landry, P. "The Common Law: Tradition & Stare Decisis"
Clancey, M. "A History of Medieval England," (1997)
Blair, P. "A History of Anglo Saxon England," (1997)
Lee, F. "Common Law: Roots and Fruits," (1997)

The full length edition of October 2006 The New Times Survey is available from the League's Book Shop, Box 1052, GPO Melbourne 3001. Send Cheque or Money Order to the value of $4.00 and the 12-page edition will be forwarded to you by post.

* * * * * * *

What Say the Reeds at Runnymede?

A poem commemorating the signing of Magna Carta
Runnymede, Surrey, June 15, 1215
Rudyard Kipling (1865-1936)

At Runnymede, at Runnymede,
What say the reeds at Runnymede?
The lissom reeds that give and take,
That bend so far, but never break,
They keep the sleepy Thames awake
With tales of John at Runnymede.

At Runnymede, at Runnymede,
Oh, hear the reeds at Runnymede:
'You musn't sell, delay, deny,
A freeman's right or liberty.
It wakes the stubborn Englishry,
We saw 'em roused at Runnymede!

When through our ranks the Barons came,
With little thought of praise or blame,
But resolute to play the game,
They lumbered up to Runnymede;
And there they launched in solid line
The first attack on Right Divine,
The curt uncompromising "Sign!'
They settled John at Runnymede.
At Runnymede, at Runnymede,
Your rights were won at Runnymede!

No freeman shall be fined or bound,
Or dispossessed of freehold ground,
Except by lawful judgment found
And passed upon him by his peers.
Forget not, after all these years,
The Charter signed at Runnymede.'

And still when mob or Monarch lays
Too rude a hand on English ways,
The whisper wakes, the shudder plays,
Across the reeds at Runnymede.
And Thames, that knows the moods of kings,
And crowds and priests and suchlike things,
Rolls deep and dreadful as he;
And there they launched in solid line
The first attack on Right Divine,
The curt uncompromising "Sign!'
They settled John at Runnymede.
At Runnymede, at Runnymede,
Your rights were won at Runnymede!

No freeman shall be fined or bound,
Or dispossessed of freehold ground,
Except by lawful judgment found
And passed upon him by his peers.
Forget not, after all these years,
The Charter signed at Runnymede.'

And still when mob or Monarch lays
Too rude a hand on English ways,
The whisper wakes, the shudder plays,
Across the reeds at Runnymede.
And Thames, that knows the moods of kings,
And crowds and priests and suchlike things,
Rolls deep and dreadful as he brings
Their warning down from Runnymede!

© Published by the Australian League of Rights, P.O. Box 27 Happy Valley, SA 5159