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.
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."
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
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
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.
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.
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.
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?
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
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:
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)
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.
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."
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.
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.
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."
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:
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
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.
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.
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....
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.
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.
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:
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
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,"
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.
* * * * * * *
Say the Reeds at Runnymede?
poem commemorating the signing of Magna Carta
Runnymede, Surrey, June 15, 1215
Rudyard Kipling (1865-1936)
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
With tales of John at Runnymede.
At Runnymede, at Runnymede,
hear the reeds at Runnymede:
'You musn't sell, delay, deny,
right or liberty.
It wakes the stubborn Englishry,
We saw 'em roused at
When through our
ranks the Barons came,
With little thought of praise or blame,
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
They settled John at Runnymede.
At Runnymede, at Runnymede,
rights were won at Runnymede!
freeman shall be fined or bound,
Or dispossessed of freehold ground,
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
Across the reeds at Runnymede.
Thames, that knows the moods of kings,
And crowds and priests and suchlike
Rolls deep and dreadful as he;
And there they launched in solid
The first attack on Right Divine,
The curt uncompromising "Sign!'
settled John at Runnymede.
At Runnymede, at Runnymede,
Your rights were
won at Runnymede!
shall be fined or bound,
Or dispossessed of freehold ground,
Except by lawful
And passed upon him by his peers.
Forget not, after all these
The Charter signed at Runnymede.'
And still when mob or Monarch
Too rude a hand on English ways,
The whisper wakes, the shudder plays,
the reeds at Runnymede.
And Thames, that knows
the moods of kings,
And crowds and priests and suchlike things,
and dreadful as he brings
Their warning down from Runnymede!