The Common Law: Tradition and Stare Decisis

This is a section of a paper written by John: of the Hurst family, which he wrote in 1998 and has kindly sent to me for publication. It is a compilation of writings from different people and is helpful if you are just discovering how powerful our common law really is.

Common Law is gold, statutes are plastic by comparison.

As always, with guest posts, I will defend, where I can, and defer to John when I get stuck.

Here we go:

The Common Law: Tradition & Stare Decisis.

    By Peter Landry.

            “I now deal with a species of law known as the common law. Common law is law that comes from the common people, vers legislation, which, comes from the "experts."

            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 Carta,' 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'.

            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 labor 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.

            The common law is a great scientific lab, the resources and results of which     are brought to bear on the populations which are fortunate enough to possess an English common law tradition, such as exists, for example, in: Canada, the United States and Australia. My use of the adjective, "scientific," will be better appreciated after one reads my essay, Siren's Song. Sufficient to say here, at this place, that nature is the great and ultimate scientific testing lab, and it always, in time, shakes out the truth. Whether we appreciate it, or not, for hundreds of years: the common law tests, observes, adjusts and re-observes on a continual bases.

            The fact of the matter is that there exists all around us a great body of law which has not ever been (nor could it be) written down in one spot. In a way, its, its more of a process which has a single guiding rule, the "golden rule," a negative rule: "Don't do something to someone that you don't want to have visited on yourself, either directly or through the agency of a government." Though it has suffered much at the hands of legislators, common law is yet followed in all major English speaking nations around the world.

            Common law to England was and is its very force. The greatness of England,

certainly in the past, is attributable, I would say fully attributable, to the stabilizing and enriching institution that we have come to know as common law. This subject of the common law is a great and wonderful subject: its evolutionary development and its great benefits make it the most superior law system known in the world, as history will readily tell. The common law is as a result of a natural sequence which hardened first

into custom and then into law. It did not come about as an act of will, as an act of some group aware only of the instant moment, unaware of the nature and history of man. It come about as a result of a seamless and continual development, through processes we can hardly begin to understand; it evolved along with man.

            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. While no one can point o the origins of our traditional moral rules, their function in human society is clear enough. These moral rules, or traditions, are necessary to preserve the existing state of affairs; such that culture was allowed to evolve; and in turn, with culture, civilizations came about.

            Thus, as David Hume wrote, man developed in an evolutionary fashion -- not only biologically, but also culturally. That, like the lot of all animals, man evolved in accordance with certain natural rules, in that "no form can persist unless it possesses those powers and organs necessary for its subsistence: some new order or economy must be tried and so on, without intermission; until at last some order which can Support and maintain itself, is fallen upon."

                The preservation of existing laws as was represented by traditions and

    cultural rules, to early man, at least, was of greater concern then putting up with bad laws: change was what men feared: change and its social upheaval was what brought on suffering and death. I quote from Bagehot's work:

            In early societies it matters much more that the law should be fixed than that it should be good. Any law which the people of ignorant times enact is sure to involve many misconceptions, and to cause many evils. Perfection in legislation is not to be looked for, and is not, indeed, much wanted in a rude, painful, confined life. But such an age covets fixity. That men should enjoy the fruits of their labour, that the law of property should be known, that the law of marriage should be known, that the whole course of life should be kept in a calculable track, is the summum bonum of early ages, the first desire of semi-civilized mankind. In that age men do not want to have their laws adapted, but to have their laws steady. The passions are so powerful, force so eager, the social bond so weak, that the august spectacle of an all but unalterable law is necessary to preserve society. In the early stages of human society all change is thought an evil. And most change is an evil. The conditions of life are so simple and so unvarying that any decent sort of rules suffice, so long as men know what they are. Custom is the first check on tyranny; that fixed routine of social life at which        modern innovations have, and by which modern improvement is impeded, is the primitive check on base power. The perception of political expediency has then hardly begun; the sense of abstract justice is weak and vague; and a rigid adherence to the fixed mould of transmitted usage is essential to an unmarred, unspoiled, unbroken life.

                                    (Walter Bagehot,  The English Constitution, at pp. 229-30.)

       

            Stare Decisis:- This idea, as expressed by Bagehot, is picked up in the law as it exists  today. When a court decides a case it does so on the merits of the case before it. The court's decision is meant to only effect the rights of the parties, the litigants, before it. The court, however, is obliged to apply settled principles of law. The decision of any respected court amounts to a recap of the law needed to resolve the case before it. 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. These decisions, many being years and years old, thus became statements of law, to be applied by all courts when measuring the private and public rights of citizens. It is this stream of cases, within the arc of the great pendulum of time, which changes the banks of the law: the common law, thus, as it turns out, is a living, creeping, creature.

            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 legislature.

                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, many years, as numerous similar cases are heard and decided. 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 labors, 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.)

            Tyrants can only get a hold of a central system where the rules issue from a single authority (government); tyrants 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 presumption of innocence.

            “Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt…No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained”.

                                                Stones Justice’s Manual. Preface to 1990 Edition.

            An authoritative book entitled “Taylor upon evidence” has this to say about burden of proof.

            The right which every man has to his character, the value of that character to himself and his family, and the evil consequences that would result to society if charges of guilt were lightly entertained, or readily established in Courts of justice:-these are the real considerations which have led to the adoption of the rule that all imputations of crime must be strictly proved.

            The Firearms Act 1920 and the Prevention of Crime Act 1953 are based on the principle that Parliament can create new offences that everyone is guilty of from the date of their adoption, and then allow exceptions at the discretion of the police. They have shifted the burden of proof onto the defence, which is something that never happened before.

            This purported power of Parliament was objected to strongly by many MPs in the debates on the Prevention of Crime Act 1953. They generated about 90 pages of debate in Hansard on a Bill that was little more than one page long. Several MPs were only prepared to accept the Bill as a short-term emergency measure to be reviewed after 5 years.  The Government claimed that the measure was necessary to deal with an outbreak of violent crime.  James Carmichael (MP for Glasgow, Bridgeton), pointed out that Scottish crime figures had actually dropped significantly in the preceding years and the Bill was an over-reaction to misleading press reports (Hansard, 26 March 1953). Several references were made to the fact that at that time the assurances given by Ministers that the police would act responsibly and with restraint was worthless because what had been said in Parliament could not be referred to in the Courts.  The Bill was passed, and soon the presumption of innocence was set aside in other legislation without a murmur.

            This has resulted in the proliferation of Statutory absolute offences. In the common law guilt could only be inferred from a persons actions and evidence of his mental intent at that time. Thus stealing is the taking of property belonging to another with evidence of an intention to permanently deprive the owner of it. The Statutory offence of simple possession of a “prohibited weapon” is a crime regardless of the circumstances as are selling apples by the pound or beef on the bone. Statutory “crimes” are whatever the legislature decides. A victim or intent is not required.

We have come to a point where the ancient rightness of the common law has been set aside. As Mr Justice Laws said in the case of Witham;

            “What is the precise nature of any constitutional right such as might be outwith the power of government... to abrogate?  In the unwritten order of the British State, at a time when the common law continues to accord a legislative supremacy to Parliament...”

            We believe that is the key. The Courts have given up legislative supremacy to Parliament. And they have been allowed to do this because no one has gone before a Court and claimed his common law rights. Those rights of the subject are written, but have been hidden and forgotten.

            And here lies the danger to us all. The only power that Government has is to manufacture criminals. If Government believes that it can do as it wishes without the restraint of a Constitution then no one and nothing is safe from the whims and prejudices of the legislators. John Locke the philosopher, was a major influence in the education of the generation that debated what became the English Bill of Rights in 1688. We can have an insight into the mischief that the participants sought to avoid with the passing of the Statue which “Declares the Rights and Liberties of the subject...in all time to come”.

            “Man is a maker of things, and a property owning animal... From the right to self-defence and protection of property comes the right to the rule of law, and a multitude of like rights, such as the right to privacy expressed as ‘An Englishman's home is his castle’. A ruler is legitimate only in so far as he upholds the law. A ruler that violates the law is illegitimate. He has no right to be obeyed; his commands are mere force and coercion. Rulers who act lawlessly, whose laws are unlawful, are mere criminals”.

The responsibilities of the Judiciary, and a little history.

            The situation in which we find ourselves has happened before. It seems that Governments will, from time to time, attempt to subvert the liberties of the subject. In the first instance we are entitled to appeal to the Courts for redress of our grievances. The Courts function on the basis that they will adjudicate in disputes that are put before them. That is why we say that the time has come to test the validity of the Firearms Acts. The principle at stake is wider than the issue of arms. The reversal of the presumption of innocence is a threat to us all.

            The question therefore is; will our judiciary stand on the ramparts of justice and the ancient constitutional rule of law? Would our judiciary act, resign or abandon their judicial oaths and state freely that they are no longer prepared to serve a country entitled to be called a free democracy? 

            Does Parliament have the power to deprive the Court of its authority to hear a citizen’s claim to enforcement of a fundamental legal right? 

            Parliament derives its sovereignty and privileges from the Bill of Rights 1689 and from a body of authority. As described above, the Speaker was at pains to remind the Court which was considering the case of Pepper v. Hart to respect Article 9 of the Bill of Rights which states “ That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament”. How can Parliament then justify ignoring the other Articles when it suits them to do so? And what are the other privileges of Parliament? The Clerk of the Commons was invited to explain to that Court what they were. And he did not answer.

            In the Bill of Rights the victors in the Revolution sought to protect, not to change, the fundamentals of the constitution. The framers of that document were simply declaring common law that already existed and would continue to exist. The preamble to the bill reads:

            "And thereupon the said Lords Spiritual and Temporal, and Commons...do in the first place (as their ancestors in like cases have usually done) for the vindicating and asserting their ancient rights and liberties declare..”

            Clearly, the intent and true meaning was not to abolish their ancient fundamental rights and liberties for a pretended parliamentary sovereignty, which is generally believed and accepted today. They were vindicating and asserting them, and reclaiming them, from a despotic King James II whom had grievously violated them, as had his predecessors. 

            Applying the principle of Pepper v, Hart to the debates on the Bill of Rights itself, Sir Robert Howard, a member of the Committee’s which prepared the Bill, said;

            "The Rights of the people had been confirmed by early Kings both before and after the Norman line began. Accordingly, the people have always had the same title to their liberties and properties that England’s Kings have unto their Crowns. The several Charters of the people’s rights, most particularly Magna Carta, were not grants from the King, but recognition’s by the King of rights that have been reserved or that appertained unto us by common law and immemorial custom."

            The intent throughout that debate was clear; - The Bill was intended to reserve fundamental rights. Edmund Burke also extolled the virtues of the Declaration of Rights;

            "In the 1st of William and Mary in the famous statute, called the Declaration of Right, the two houses utter not one syllable of a ‘right to frame a government for themselves.’ You will see that their whole care was to secure the religion, laws, and liberties, that had long been possessed, and had been lately endangered...You will observe that from Magna Carta to the Declaration of Right, it has been the uniform policy of our constitution to claim and assert our liberties, as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity; as an estate specially belonging to the people of this kingdom without any reference whatever to any other more general or prior right."

                          (Burke, Reflections on the Revolution in France (Penguin ed) 118ff)       

            In fact, at the time of James II it was the Parliament who was on the defensive and it is the Parliamentarians who deployed fundamental law first. Magna Carta became the focus of the debate, and its clauses on the due process of law caused Parliament to frame a proposal to James that said:

            "That according to Magna Carta and the Statutes aforenamed, and also according to the most ancient Customs and Laws of this Land, every free subject of this realm hath a fundamental propriety in his goods, and a fundamental liberty of his person."

            (Gough, Fundamental Law in English Constitutional History (2nd Ed) at 63.)

  

            Parliament in this instance claimed the right to use fundamental law to rebel as a lawful step in securing adherence to the fundamentals, just as the Barons had explicitly negotiated a right to rebel with King John in Magna Carta over four hundred years before.  The historical parallels with the present situation are clear. If we are rebels, then we are entitled to claim the protection of the Article of the Bill of Rights that states;

            “That it is the Right of subjects to petition the King and all commitments and prosecutions for such petitioning are illegal”.

            SAFE is aware of several persons who have applied the their chief officers of police to exercise their right to arms for defence and had their firearm certificates revoked. Chief officers are Crown servants and such actions by them are in breach of this provision of the law.

            Winston Churchill was well aware of the significance of Magna Carta and as a historian wrote this warning and reassurance to future generations :

                        "The facts embodied in it and the circumstances giving rise to them were buried or misunderstood. The underlying idea of the sovereignty of the law, long existent in feudal custom, was raised by it into a doctrine for the national State. And when in subsequent ages the State, swollen with its own authority, has attempted to ride roughshod over the rights or liberties of the subject it is to this doctrine that appeal has again and again been made, and never as yet, without success."

            (Churchill, A History of the English Speaking Peoples (1956) Vol 1, 201-202)        

Postscript.

            "As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air - however slight - lest we become unwitting victims of the darkness."                               

                                                                                         Justice William O. Douglas

“Where did the men of honour go that made Britain great? Many gave their lives in the cause of liberty that we carelessly give away without a second thought. Who will take their places?”

                                                                                                           John Pate. 1996.

“Give us the tools- and we will finish the job”.                     

                                                                                               Winston Churchill 1940.

“You may have to fight when there is no chance of victory, because it is better to perish than to live as slaves.”
--Winston Churchill

“There's no way to rule innocent men. The only power any government has, is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible to live without breaking laws.”

                                                                                (Ayn Rand Atlas Shrugged)

Criminals prefer unarmed victims. What greater ally does a criminal have than a Government that guarantees most victims will be unarmed and helpless?

Blackstone on Arms for Self-Defence.

            “The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W.& M. st. 2, c.2, and it is indeed a public allowance under due restrictions, of the natural right of resistance and self- preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. In these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen: liberties, more generally talked of than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other.

And we have seen that these rights consist, primarily, in the free enjoyment of personal

security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliament be supported in full vigour; and limits, certainly known, be set to the royal prerogative.

            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 - restraints in themselves so gentle and moderate, as will appear upon further enquiry, that no man of sense or probity would wish to see them slackened.

            For all of us have it in our choice to do everything that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow-citizens."

            (This extract is taken from pages 143 and 144 of the first volume (of four) of the 21st edition of Sir William Blackstone's book 'Commentaries on the Laws of England' dated 1884 in which it Is stated that it derives from the edition of 1783 with the author's last corrections. It is commonly to be found in law libraries and in the larger reference libraries).

John: Hurst,

Magna Carta Society.