Law of England

“ The law of England was an open declaration that houses, money, land, all insensate, could guarantee a man a qualification for doing that which alone can be done properly by the operation of mind, and living within an arbitrary area imparted to him full competency for the right of citizenship. ”

“ There is not, and never has been, a question connected with either, in which we do not find every Englishman appealing to the common law, or to the charters and statutes of England, as defining the nature and as furnishing the best protection of his rights. ”

“ Evolutionary character of the English Constitution The English Constitution looks ever backward. Precedent lies behind precedent, law behind law, until fact shades off into legend and that into a common beginning, the Germanic character. Standing upon the eminence of 1689, one sees the Petition of Right, and then in deepening perspective, Confirmatio Cartarum and Magna Carta. The crisis of 1215 points to the Charter of Henry I, and behind that are the good laws of Edward the Confessor. ”

“ Apart from the inhumanity of this procedure, from its unchristian character, from its proselytizing effects, we protest against it in the name of law, of right, and of human liberty. The common law of England is our heritage, and by that common law “no power on earth, except the authority of parliament, can send any subject of England out of the land against his will ”

“ The supreme authority in England was the law; and the King no more possessed, or claimed, a power of controlling the judgment of the bishops or their ministers, than he could interfere with the jurisdiction of the judges of the bench. All persons in authority, whether in Church or State, held their offices thenceforth by similar tenure; but tho rule of the proceedings in each remained alike the law of the land, which Henry had no more thought of superseding by his own will than the most constitutional of modern princes. ”

“ As this was the first effort towards a legal government, so is it beyond comparison the most important event in our history, except that, Revolution without which its benefits would have been rapidly annihilated. The constitution of England has indeed no single date from which its duration is to be reckoned. The institutions of positive law, the far more important changes which time has wrought in the order of society, during six hundred years subsequent to the Great Charter, have undoubtedly lessened its direct application to our present circumstances. ”

“ One of the great statutes that followed begins with the preamble that England is a realm to which the Almighty has given all fulness of power, under one supreme head, the King, to whom the body politic has to pay natural obedience, next after God; that this body consists of clergy and laity; to the first belongs the decision in questions of the divine law and things spiritual, while temporal affairs devolve on the laity; that one jurisdiction aids the other for the due administration of justice, no foreign intervention is needed. ”

“ England, as a penalty of her greatness, finds herself in all parts of the world face to face with the necessity of maintaining her jurisdiction and of extending it in order to maintain it. When she does so she finds herself only extending law and order for the benefit of everybody. ”

“ But throughout all this realm of England, in all the courts of justice, are observed the laws of the realm, and all causes and controversies judged by the same, so as no other laws have place—which laws of the realm are not the civil laws, nor are grounded upon them, nor have no conformity unto them, so as the knowledge of the civil law serveth nothing at all for the understanding or exercising of them. ”

“ All Persons born in the British American Colonies are by the laws of God and nature, and by the Common law of England, exclusive of all charters from the Crown, well Entitled, and by the Acts of the British Parliament are declared to be entitled to all the natural essential, inherent & inseperable Rights Liberties and Privileges of Subjects born in Great Britain, or within the Realm. ”

“ Every nation must and will abide by its own municipal laws, which various accidents conspire to render different in almost every country in Europe. We permit some kinds of suits to be of ecclesiastical cognizance which other nations have referred entirely to the temporal courts, as concerning wills and successions to intestates' chattels; and perhaps we may, in our turn, prohibit them from interfering in some controversies which, on the Continent, may be looked upon as merely spiritual. In short, the common law of England is the one uniform rule to determine the jurisdiction of our courts ”

“ When we adopt the common law, or portions of it, we also adopt the established adjudications upon them. It may be true that the common law of England is not, in all respects, to be received as the law of America. ”

“ If England had adopted the Roman law, or still better for purposes of illustration the Code Napoléon, would it be right to speak of it as a national system of law? Is it not rather the fact that English law differs from the law of other nations which makes it national? And, similarly, if the English nation accepted the Church with its then existing canon law, does it not tend to obscure rather than to illustrate the history of the Church in England to speak of it as the National Church? ”

“ So that the breaking of their government into many kingdoms, or the reuniting of their kingdoms into a monarchy, wrought little or no change amongst them touching laws. For, though we talk of the West-Saxon-law, the Mercian-law and the Dane-law, whereby the west parts of England, the middle parts, and those of Norfolk, Suffolk and the north, were severally governed; yet held they all an uniformity in substance, differing rather in their mulcts than in their canea; that is, in the quantity of fines and amerciaments, than in the course and frame of justice.” Relig. ”

“ They will be told that the King of England is not only incapable of doing wrong, but of thinking wrong. They will be informed that he never dies, that he is invisible as well as immortal, and that in the eye of the law he is present at one and the same instant in every court of justice within his dominions.... They may have been told that the royal prerogative in England is limited; but when they consult the sages of the law, they will be assured that the legal authority of the King of England is absolute and irresistible ... that all are under him, while he is under none but God.... ”

“ No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order, or regulation as aforesaid. ”

“ One instance, however, of a distinct attempt on the part of the law to protect the stronger side must be given, because English law claims for itself not merely a supremacy, but something not far removed from a monopoly of justice. ”

“ In looking also to the laws of other countries with respect to the transfer, mortgage, or encumbrance of real property, I have come to the conclusion that the law of England is inferior to most of them with regard to cost and security of title. The old Conservative feeling of England adheres with a sort of veneration to laws and usages respecting title which originated under the feudal system, and is loath to abandon them for a system adapted to the requirements of modern civilization. ”

“ Having first established a principle which is noble in itself, and seems specious, but is belied by all history and experience, “that the people are the origin of all just power;” they next declared, that the commons of England, assembled in parliament, being chosen by the people, and representing them, are the supreme authority of the nation, and that whatever is enacted and declared to be law by the commons, hath the force of law, without the consent of king or house of peers. ”

“ The legislative therefore cannot abridge the executive power of any rights which it now has by law, without it's own consent; since the law must perpetually stand as it now does, unless all the powers will agree to alter it. And herein indeed consists the true excellence of the English government, that all the parts of it form a mutual check upon each other. In the legislature, the people are a check upon the nobility, and the nobility a check upon the people ”

“ England was the first western country to attain political unity with a territory substantially the same as at the present day; and the determination of the English kings that in the more important matters justice should be done throughout the land in the king's name, either by his courts at Westminster or by judges sent by him to the counties, secured the formation of an English Common Law which left comparatively little play for local custom, and which at an early time became strong enough to resist attempts to introduce foreign law. ”

“ The country is simply informed by the resolution, as it was adopted, that, so far as foreign nations are concerned, the future rule of the Government of England is to be, that, in all cases, and under all circumstances, British subjects are to have that protection only, which the law and the tribunals of the land in which they happen to be, may give them. ”

“ Vainly is it pleaded that England is a mixed monarchy; and that a law, assented to by king, lords, and commons, is enacted by the concurrence of every part of the state: it is plain, that there remains a very powerful party, who may indeed be outvoted, but who never will deem a law, subversive of hereditary right, anywise valid or obligatory. Limitations, such as are proposed by the king, give no shock to the constitution, which, in many particulars, is already limited; and they may be so calculated as to serve every purpose sought for by an exclusion. ”

“ The kingdom of England, over which our municipal laws have jurisdiction, includes not, by the common law, either Wales, Scotland, or Ireland, or any other part of the king’s dominions, except the territory of England only. ”

“ Here they appeal to one of the communes notitiæ—to a settled and acknowledged maxim in the law of nature, that if men's commands and God's interfere God's commands must take place. It is a rule in the common law of England that if any statute be made contrary to the law of God it is null and void. ”

“ III. And whereas also by the statute called “The Great Charter of the liberties of England,” it is declared and enacted, that no freeman may be taken or imprisoned or be disseised of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land. ”

“ These particular customs, or some of them, are without doubt the remains of that multitude of local customs before-mentioned, out of which the common law, as it now stands, was collected at first by king Alfred, and afterwards by king Edgar and Edward the confessor: each district mutually sacrificing some of it’s own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. ”

“ In Europe it has no proper place, for whether a constitution in continental states be or be not regarded as a supreme law, no body of men has, as a rule, been intrusted with legal authority to enforce its provisions as against the legislature; and in England there is no law superior in obligation to an Act of Parliament. ”

“ The first type of constitution, in which the fundamental law is the creation of the powers wielding the sovereign authority of the State, is to be found in all of the monarchical States of Europe which have adopted, in whole or in part, a constitutional form of government. The free Constitution of England, so popular in character and so largely the product of custom, in a strict legal sense, belongs in this category as clearly as does the government of the Czar, the autocratic character of which has been modified by imperial concessions. ”

“ And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self-preservation and defence. And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints. ”

“ But all the strength that either the papal or imperial laws have obtained in this realm (or indeed in any other kingdom in Europe) is only because they have been admitted and received by immemorial usage and custom in some particular cases, and some particular courts; and then they form a branch of the leges non scriptae, or customary law: or else, because they are in some other cases introduced by consent of parliament, and then they owe their validity to the leges scriptae, or statute law. ”

“ But it is hardly to Parliament that one's hopes must turn in the first instance." Certain ancient and honourable societies, proud of a past that is unique in the history of the world, may become fully conscious of the heavy weight of responsibility that was assumed when English law schools saved, but isolated, English law in the days of the Reception. ”

“ The form of government in England is different from that of any of those countries. It is also different in its nature, though not in its form, from what it was under the Plantagenets and Tudors. Court favour cannot enrich a family in this country, and the operation of the law is tolerably equal. ”