Both sovereign and subject are bound by 820 years of the Common Law

Royal Courts fo JusticeUnlike in the EU, both sovereign and subject are, in practice, bound by the Common Law. This year we celebrate 820 years of English Law, law that has given most english speaking peoples throughout the free world, freedom from oppression. We ignore the gigantic differences between English Common law and European Roman Law at our peril, because we have a ruling elite that seems to want to sacrifice us to to the EU system, bit by bit, on the altar of "Ever Closer Union" as Andrew Symeou found out on friday. We should all look closely at his case as it has profound implications for the future of freedom in England. See Andrew Symeou update & "You can forget about getting British justice".

 

To understand the huge differences between the two systems of law, read Sir Winston Churchills words on "The English Common Law":  ..................

[Photo: Royal Courts of Justice]


With the establishment of a system of royal courts, giving the same justice all over the country, the old diversity of local law was rapidly broken down, and a common law to the whole land and to all men soon took its place. A modern lawyer, transported to the England of Henry's predecessor, would find himself in strange surroundings; with the system that Henry bequeathed to his son, he would feel almost at home. That is the measure of the great King's achievement1. He had laid the foundations of the English Common law, upon which succeeding generations would build. Changes in the design would arise, but its main outlines were not to be altered.

It was in these fateful and formative years that the English speaking peoples began to devise methods of determining legal disputes which survive in substance to this day. A man can only be accused of a civil or criminal offense which is clearly defined and known to the law. The judge is an umpire. He adjudicates on such evidence as the parties choose to produce. Witnesses must testify in public and on oath. They are examined and cross-examined, not by the judge, but by the litigants themselves or their legally qualified and privately hired representatives. The truth of their testimony is weighed not by the judge by [sic] by twelve good men and true, and it is only when this jury has determined the facts that the judge id empowered to impose sentence, punishment, or penalty according to law. All might seem very obvious, even a platitude, until one contemplates the alternative system which still dominates a large portion of the world. Under Roman law, and systems derived from it, a trial in those turbulent centuries, and in some countries even today, is often an inquisition. The judge makes his own investigation into the civil wrong or the public crime, and such investigation is largely uncontrolled. The suspect can be interrogated in private. He must answer all questions put to him. His right to be represented by a legal adviser is restricted. The witness against him can testify in secret and in his absence. And only when these processes have been accomplished is the accusation or charge against him formulated and published. Thus often arises secret intimidation, enforced confessions, torture, and blackmailed pleas of guilty. These sinister dangers were extinguished from the Common Law of England more than six centuries ago. By the time Henry II's great-grandson, Edward I had died English criminal and civil procedure had settled into a mold and tradition which in the mass govern the English speaking peoples to-day. ...

 

Digests and codes imposed in the Roman manner by an omnipotent state on a subject people were alien to the spirit and tradition of England. The law was already there, in the customs of the land, and it was only a matter of discovering it by diligent study and comparison of recorded decisions in earlier cases, and applying it to the particular dispute before the court. In the course of time the Common Law changed. Lawyers of the reign of Henry II read into the statements of their predecessors of the tenth century meanings and principles which their authors never intended, and applied them to the novel conditions and problems of their own day. No Matter. Here was a precedent. If a judge could be shown that a custom or something like it had been recognised and acted upon in an earlier and similar case he would be more ready, if it accorded with his sense of what was just and with the current feelings of the community, to follow it in the dispute before him. This slow but continuous growth of what is popularly known as "case law" ultimately achieved much the same freedoms and rights for the individual as are enshrined in other countries by written instruments such as the Declarations of the Rights of Man and the spacious and splendid provisions of the American Declaration of Independence and constitutional guarantees of civil rights. But English justice advanced very cautiously. Even the framers of Magna Carta did not attempt to lay down new law or proclaim any broad general principles. This was because both sovereign and subject were in practice bound by the Common Law, and the liberties of Englishmen rested not on any enactment of the State, but on immemorial slow-growing custom declared by juries of free men who gave their verdicts case by case in open court.

1The Birth of Britain, vol 1, Winston S. Churchill, Dodd, Mead & Co, New York 1956, page 222

Posted on 06 May, 2009 by alfred

Filed under Law


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