The
Common Law Of England -Its Heritage and Importance to Parliamentary Democracy
Today.
*
[With the ever-increasing volume of regulations from
Brussels which are chipping-away at the
Common
Law of England
it is as well to remind ourselves of the distinction
between the home legal system of law and that of the Continental system which
with the help of the majority of our Members of Parliament over the past 35
years is now threatening the existence of our
OWN
Common Law of England.
In order to put our case we
refer to extracts from the work by another Member of Parliament of the 15th
century
(Later Lord Chief Justice of
England-1442 )
Edited and
Translated with Introduction and Notes
by
Dr. S.B.Chrimes M.A., Ph. D.
Lecturer in Constitutional
History
University of Glasgow.
Cambridge
AT THE UNIVERSITY PRESS
1949.
In the history of English
legal literature the second half of the fifteenth century was the age of
Littleton and Fortescue. Sir Thomas Littleton was a judge of the Court of
Common Pleas; Sir John Fortesque was a Chief Justice of the King’s Bench.
Although the judgments of
these great lawyers contributed materially to the growth of the Common Law of
England, the fame of each of them rests not so much upon the part he played in
moulding the LAW by the exercise of his judicial power as upon the wealth of
learning and the enlightenment of the constructive thought which embodied in
his writings.
Not only in its subject
matter, but also in its method and purpose. The contribution, to our legal
literature made by Fortescue differs widely, however, from that of Littleton.
Littleton’s Tenures was a
summary of the mediaeval law of the land at the end of a long period of
continuous and logical growth before its rules, principles, and doctrines were
profoundly modified by the influence of Statute and Equity in the sixteenth and
seventeenth centuries.
Littleton’s great
achievement was the exposition of the fundamental part of our mediaeval private
law, whereas Fortescue in his writings dealt chiefly with public law:
-the Constitution of the
Kingdom and the law upon which it was founded.
In the fullness of its
scope, however, Fortesque’s contribution to legal literature embraced more than
English public law. Administrative
reform, for example, was the main theme of Fortescue’s
Governance of England
(1471-1476)
…In
the De laudibus Legum Angliae Fortesque not only wrote upon the
difference between an absolute and a limited Monarchy, ever his principal
intellectual interest, but he also dealt with certain other matters.
Three
topics figure prominently:
First:
The
Law of Nature
Customs
and Statutes as sources or ‘fountains’ of human law.
Secondly:
Aspects
of English civil and criminal law, both substantive and procedural in
comparison with French law and institutions;
Thirdly:
The
organisation and education of the English legal profession.
Upon
these three subjects - matters Fortesque made important original contributions
to knowledge, which have attracted the attention of jurists and legal
historians in all succeeding ages.
The
main interest of political theorists, on the other hand, has always been
centred in Fortesque’s doctrine of
English kingship as
dominium
politicum et regale, a limited monarchy
in contrast with French kingship as dominium regale, an absolute monarchy. The few chapters in the De Laudibus Legum
Angliae specifically devoted to the difference between
an absolute and a limited monarchy embody the essence of Fortesque’s
doctrine respecting kingship.
It should be observed however, that these chapters
are closely related to that part of the
work in which Fortescue compares the institutional and legal systems of England
and France; for here, in the course of his
comparative
study,
he applies his theory of monarchy to the two systems of Law and Government…
This general tendency in thought was represented in
England by
John Wycliffe.
In the last half of the fourteenth century, England’s
first great literary age - the time of Chaucer and Gower and Langland - John
Wycliffe was both the first reformer in English religious thought and the first
reformer in English legal thought.
In law as in religion,
Wycliffe appealed to the individual and for the individual against
authority.
Known for his resistance to authority in the Church,
Wycliffe in his tract De Officio
Regis attacked authority in law.
Against the Justinean Roman law and the Canon law embodied
in papal decretals, the two cosmopolitan legal systems which held sway over
most of the Western World, Wycliffe asserted the sufficiency of English
Case-Law as developed by the Common Law Courts.
In
this appeal to English Common Law as against the Civil Law of the Continent,
Wycliffe was a precursor of Fortesque, who in his De Laudibus Legum
Angliae maintained that the English
system of government and law was superior to systems based on Civil Law.
Both Wycliffe and Fortesque represented an early stage of
that general trend in European legal thought which ultimately led to the
exaltation of the Germanic and other elements in secular law, in opposition to
the elements derived from the Romanic legal systems, the Civil and the Canon.
In truth the
,
the ideas of Wycliffe and Fortesque in regard to the independent place held by
English Law symbolised that growing spirit of Nationalism in Western
Civilisation which was in time to exercise a profound influence on the
institutional and legal systems and the legal and political thought of Europe.
The growth of Nationalism
meant the rise of native laws into a position of importance, which they had not
held before, and the gradual decline in the influence of the two cosmopolitan
laws: the Civil and the Canon.
The legal and political
thought of modern times had been materially affected by this general progress
in institutional and legal development during the sixteenth and later
centuries…
In
England, as in other parts of Europe, the Renaissance and Reformation Movement
of the fifteenth century meant both a further revolt against authority and the
emphasis upon the importance of the free application of observation, criticism,
and comparison to the affairs of the intellectual, social, political and legal
life of the nation…
…Fortesque was in revolt
against the sole authority of the kings who ruled their realms on the
principles of the civil law of Rome, especially the maxim Quod principi
placuit legis habet vigorem; he held the English kingship superior to the
French
because it was monarchy
limited by assent of Parliament …
…Fortescue’s works were
based, in part at least, on his own observation of the continental and legal
institutions of his own age; and he not only subjected these institutions to
criticism, but also advocated certain measures for their reform. Comparison,
moreover, formed one of the main characteristics of his work as a legal and
political writer: by the method of comparison, he drew sharp lines of
distinction between the kingship of France and the kingship of England, and
between the civil law of the Continent and the Common
Law of England.
…
The chief factor which this mediaeval school of national jurists in England was
the early growth of a common law due to centralisation of justice by Henry I
and Henry II. In continental countries, on the other hand, the law was not
unified till a much later age, a feature of Continental legal development,
which helps explain the historical significance of the rise of Continental
schools of national jurists in the sixteenth century.
… In the history of English
legal science, the true meaning of the Renaissance period of the later fifteenth
and sixteenth centuries I that after the dominant influence of the common [law]
lawyers during the fourteenth century and the first half of the fifteenth, there
was a return to the ways of scholarship exemplified by the purpose, method and
constructive achievement of Bracton, the greatest of our mediaeval national
jurists.
The works of Littleton and
Fortesque, the founders of the Renaissance school of English national jurists,
illustrate this new tendency in scholarship. Littleton based his treatise
respecting the English land law on the judicial decisions reported in the Year Books;
and yet his book was not a mere summary of those cases, for it consolidated the
results of an effort to seek the
‘arguments and reasons of the law’
-embodied in the decisions, and thus to construct a
coherent body of legal doctrine.
In Coke’s words, the Tenures
was based upon
‘ two faithful witnesses in
law, authority and reason’
Although Fortescue did not refer to decided cases in his
writings on English public and private law, yet he derived the principles of
that law from the traditional constitutional and legal institutions of England
as they worked in his own time.
Fortescue’s exposition of
juris-prudential and political theories formed, moreover, one of the most
characteristic features of his work. By
the stress which they laid not only on the traditional and judicial character of
the Common Law, BUT ALSO ON THE REASON AND THEORY INHERENT IN THE LAW, both
Littleton and Fortescue wrote in the spirit of Bracton.
Following the example set by
Littleton and Fortesque, English legal writers of the Renaissance period placed
an increasing emphasis on the fundamental importance of the indigenous elements
in the common law. They based their
works on the writ-system, the medieval legal treatises, the Year Books, and the
early Reports; they stressed, moreover, both the independence and the self-sufficiency
of English public and private law.
Thus in his Reports
and Institutes, Coke, by an elaboration and expansion of the work
already done by Littleton, re-stated the medieval common law and adapted it to
the needs of modern society, basing his comprehensive summary of the law not
only on the Tenures, but also on the early law-books, notably Glanvill,
Bracton, and Britton, the Year Books, and the early Reports. Nor did the English civilians neglect the
Laws of England.
As Maitland observed, Sir Thomas Smith in
his little treatise on the Commonwealth of England,
written at Toulouse in 1565, ‘ certainly did not underrate those
traditional, medieval, Germanic and parliamentary elements which were still to
be found in English life and law under the fifth and last of the Tudors’. John Cowel, another English civilian, wrote
a work on English law, in which he compared the Roman law, entitled Institutions
Juris Anglicani.
Both Littleton and Fortescue
had shown, the one by his treatise on the land law, and the other by his
exposition of the
-that the native Common Law of England FOUNDED IN THE MAIN
ON Germanic and feudal customary law, had taken its place in history as a
system different from and opposed to Roman law.
Fortesque himself compared
the two laws, the English and the Roman, in the
De Laudibus Legum Angliae:
(1468-1470)
-his immediate successors in the field of comparative law
were Sir Thomas Smith, St Germain, Seldon, and Hale.
Legal theory played a
prominent role in Littleton’s treatise; but in Fortescue’s writings theory,
both legal and political, held a place of far greater importance. Theory became
more and more a characteristic feature of our legal literature. As theorists, Coke, Hale, and Bacon were the
leading successors of Littleton and Fortescue in the province of common- law doctrine;
St Germain’s exposition of the canonists’ theory of conscience became the
foundation of the English system of equity…
… In Tudor England, on the
other hand, it was the literature written by layers trained in the history,
principles and methods of the common law which proved to be one of the most
influential of all the dominant factors making for a further development of the
constitutional and legal institutions inherited from the middle ages along the
lines of a policy that at one and the same time was conservative, reformative
and constructive.
Not the least part of the
credit for the growth of the Tudor state and of Tudor law in accordance with
English rather than Roman traditions is due to Littleton and Fortescue,
who
by their writings had initiated tendencies in legal thought inspired by the
idea of preserving the past and yet advancing beyond the past.
Especially in the works of Fortescue the idea of
conservative progress in institutional and legal development was prominent. From Fortescue’s works, as well as from
other sources of jurisprudential and political thought, that idea passed into
Renaissance legal literature.
The spirit of conservative
progress, founded on English constitutional and legal developments in the past,
dominated the writings of many of Fortescue’s successors, not least of all Coke
[Cook], the great champion of the Common Law.
Suffusing the literature of
the law, this spirit was transmitted to the STATESMEN who saved ENGLAND from
the ABSOLUTISM on the CONTINENT, which had been so largely founded on ROMAN
ideas of LAW and GOVERNMENT.
*
It is the objective of Tony
Blair to have ‘substituted for LAW the administrative DECREES of THOSE who have
CAPTURED the MACHINERY of GOVERNMENT.’
‘In our own LAW such notions
as REASONABLENESS, boni mores, public policy and convenience, EQUITY and
GOOD CONSCIENCE play a considerable part.
‘Doing JUSTICE between MAN
and MAN’
(Summum ius summa iniura’)
* *
[Today in March 2006
we can see the effect of the slide away from the Common Law of England and into
the Absolutism of the Continent by the chicanery of a Prime Minister and his Lord
Chancellor Lord Falconer and other cronies in Parliament and the Country who live
only to destroy the Common Law of England which stands in their way of
enslaving a whole Nation State into a Continental system of Government -the ambitions
of which are almost complete unless the English people wake up
and make a positive stand together to rid their country of Traitors who have no
love for YOUR country but only the lucrative rewards from their Masters in
Brussels.]
*
These words were in lights
above the yacht of Lady Houston in the ‘Gathering Storm’ years-who
later donated £100,000 to enable the British entry to the Snyder Trophy
to compete and win and retain the Trophy as depicted in the film of
R.J.Mitchell
the designer of the
But what is not generally
known is that
-was the title of a
reprinted speech by
In 1911
* * *
For a copy of :
R.J.MITCHELL
by
(His son)
Gordon Mitchell
Published by Tempus @ £12.99
To order a copy telephone:
01453-88330
* *
WHY General De Gaulle vetoed
our EEC membership in 1963?
*
The
Truth about a Federal Europe
*
* * *
[Font altered-bolding &
Underlining used -comments in brackets]
*
*
*
Let the people speak!
www.makeitanissue.org.uk
*
www.noliberties.com
[Latest Addition - June07]
*
www.eutruth.org.uk
*
www.thewestminsternews.co.uk
*
www.speakout.co.uk
*
Daniel Hannan - Forming an OPPOSITION to the EU
www.telegraph.co.uk.blogs
*
GORDON BROWN WANTS TRUST-BUT WHY
WON'T HE TRUST YOU?
HELL ON EARTH
IN IRAQ
*
67%
want powers back from EU-ICM poll-June 21-2007-95%
of British people want a REFERENDUM
*
PETITION
FOR A
REFERENDUM
SIGN TODAY ON LINE
telegraph.co.uk/eureferendum
*
July 18-2007
ALSO
JOIN THE 10 DOWNING STREET PROTEST
Readers can add their support to the growing
clamour for a REFERENDUM on the '"REFORM TREATY" by signing up to a 10 Downing
Street 0n-line petition
(http://petitions.pm.gov.uk/EU-treaty-NON/)
The Petition reads as follows:
"We the undersigned petition the Prime
Minister to guarantee that the British people will be permitted a binding
REFERENDUM on any and all attempts to resurrect the EU " CONSTITUTION" (and any
or all of its content) regardless of nomenclature."
Deadline for the PETITION is 31st January,2008
Eurofacts 27th July 2007.
*
'The Spirit of
England'
by
Winston Churchill
In London on St.George's Day -1953
*
VOTE
-2007
TO
LEAVE
THE
EUROPEAN
UNION
WITH THE ONLY PARTY WITH A MANDATE
TO SET YOU
FREE
THE
UK
INDEPENDENCE PARTY
www.ukip.org
THE QUESTION THAT THE VOTER MUST
ANSWER
‘DO
YOU WISH TO BE GOVERNED BY YOUR OWN PEOPLE, LAW AND CUSTOM OR BY THE CORRUPT
,EXPENSIVE UNACCOUNTABLE AND CORRUPT ALIEN BUSYBODY BRUSSELS’
-SIMPLE IS IT NOT?
TO RECLAIM YOUR DEMOCRACY DON'T VOTE FOR THE
TRIPARTITE PARTIES IN WESTMINSTER
BUT
SMALL PARTIES THAT SPEAK THEIR MINDS
WITHOUT SPIN AND LIES.
*
ONLY
PRO-PORTIONAL
REPRESENTATION
WILL
BRING
DEMOCRACY
BACK
TO
THE
ENGLISH
PEOPLE
*
SCOTLAND -ITS
PARLIAMENT -WALES-ITS
ASSEMBLY-ENGLAND-STILL
AWAITS ITS PARLIAMENT-WHY?
*
Home
Rule
for
Scotland
WHY
NOT
HOME
RULE
for
ENGLAND
*
[All underlined words have a separate
bulletin]