by Hewlett
Edwards
Martin of Patteshull, Dean of St.
Paul's: William of Raleigh, Bishop of Winchester; Henry of Bracton, Archdeacon
of Exeter Cathedral.[1] These and those around them (1154-1272
) were the formulators of Common Law, unique and of England.
Continuing
over generations this formulation did not consist merely in the redrafting of
something which existed, or the devising of something new. Such men were not isolated
intellectuals detached from their own time and generation but were the outcome
of age-long Christendom.
First, what they had behind them in their great work
was Christian tradition and its interpretation in Canon Law, second immemorial
custom, slowly acquiring the weight of law; and third Natural Law which, as Stephen
Langton said, is binding on Princes and Bishops alike, there being no escape from
it.
Dealing with problems as
they arose:
Around them was present change, in the gradual acceptance
elsewhere of Roman Law, with its compact organisation and its tendency towards
abstractionism. Custom slowly generated the principles of Common Law with Canon
Law as a natural bridge connecting legal ideas with interpretation of the New
Testament, and theology based upon it. The synthesis of these varying strands
of thought and practice embodied the structure of the Constitution; a synthesis
consonant with growth, for the technique was in the heart of life and day to day
affairs, dealing with problems as they arose; each decision constituting another
link to take [lie stress which caused the problem to arise, much as the budding
of new leaves requires a greater strength to carry them. which is supplied by
growth. Magna Carta itself was a case, and that decision a precedent, not a completion.
This
continuity of growth received articulation in the Year Books; "a matchless
record of the dealings of the King's Courts with free men and women of England
and of their relations with one another as this appeared in evidence before the
Court."
Power, Authority
and the Just Price
From out of this practice of the principles of Christian
philosophy, England became a society of free and reasonable men and women, living
in a free and responsible community. As part of the same process emerged the solution
of the primary problem of society: the disposition of power. Christian theology
converged with the nature of reality in the trinitarian constitution; the three
Estates of the Realm. The King-"the fountain of honour and justice"-was
executive as to the power entrusted to him by his subjects the Commons, and Lords
Temporal. Authority was represented by The Lords Spiritual; the Lord Chancellor,
invariably a Churchman, was recognised as "the King's Conscience." So
far as humanity has yet experienced, it is this balance between Authority, Power,
and the Executive which alone can stand against relapse by human frailty, into
pagan totalitarianism.
A clear
distinction was drawn between matters mundane dealt with by the King's Courts
and those spiritual which fell to the Courts Christian. Among the latter was usury,
"the taking from a borrower of a payment solely for the use of money lent
to him to be applied by him in the normal way as a means of exchange." This
was prohibited.
In this sphere Church law was met by enactment in the King's
Court concerning the "just price."
Whereas Roman law sanctioned
the idea that each man had the right to outreach others as far as he could, a
Statute of Edward III clearly envisaged the conception that price should be reasonably
related to cost.
The wrong use
of money was recognised as a source of corruption and these measures had a profound
effect upon the whole range of economic life, embodying the injunction "whatsoever
ye would that men should do unto you, do ye also unto t them."
This
age of Chivalry, and of the Builders of Cathedrals and of the Constitution had
its darker side-departures from the conditions of its growth. Throughout, there
was in the life of those days a certain clarity which has been lost. A man knew
where he stood and the mark at which he aimed.
His responsibilities were clear,
he needed none to tell him when he was evading them; he knew what freedom was
and when he lost it. Well understood provisions protected him where he was weakest,
and for the rest he was able and willing to fend for himself. Out of constitutional
practice the serf emerged a free man.
After
five... six . . . seven hundred years many words of tribute are still paid the
British Constitution; but here already in the nineteenth century, is a curious
note for reverence to assume:-
Lord Peel in an address (1848) [2]
"I
do earnestly trust -- I have that confidence in the good sense of the working
classes of this country -- that they will believe no false delusions of the compulsory
sharing of profits; no enmity directed against capital, no extinction of competition
among individuals, no over-powering of private enterprise at the public expense
can possibly be for the benefit of the working classes, or have any other ultimate
result than involving them in ruin."
And
Baron Bramwell, in binding over a number of men who had been convicted of illegal
activities during the London Tailors' strike in 1867:-
"Everyone knows
that the total aggregate of happiness of mankind is increased by every man being
left to the unbiased, unfettered determination of his own will and judgement as
to how he will employ his industry and other means of getting on in the world.
You must know it…
But strange to say, you men are trying to legislate
for yourselves in a contrary direction: for instead of furthering that freedom
of labour… and of capital which the law has endeavoured to secure, you are
endeavouring to put restraints upon them…"
Although
engaged in the endeavour to create confidence, neither Peel nor Bramwell could
conceal his perplexity. In propounding a thesis which is implicit in the Constitution
they were evidently baffled by the resistance offered and quite unable to translate
this into its own realistic comment upon constitutional practice. It was a curious
position to 'bind over' men not to seek bondage; to force them to he free.
These
eminent Victorians were not entirely unaware of the movement of the ground beneath
their feet, presage of the landslide of today. But neither they nor others seem
to have been able to regard the problem in the wider perspective in which it now
seems so clear that there were two possibilities: either the provision by the
Constitution of a framework in which responsible men could move freely was 'wrong'
and ultimately doomed to disaster, or the framework within which men were neither
responsible nor free had in fact become inadequate.
It
is the tragedy of recent history that, almost without argument, the former alternative
was accepted; for the process which we now experience consists in the removal
of responsibility and freedom in order - so we are instructed -- to be responsible
and free.
Little imagination is
required to show that the Constitution no longer provides that comprehensive refuge
from interference in which alone the integration of a free society can take place.
In the 12th and 13th centuries the constitution was a living, growing thing.
Suppose that growth to have continued in the single-minded search for all-embracing
truth, not only by divines but expressed in Everyman's activities and in successive
decisions of the Courts Christian and of the King's Courts; each problem illumined
by instructed integrity and each a step to further understanding.
It
is an illumination to imagine men of that ancient integrity, penetration and tenacity
faced by the problems of the turn of the eighteenth century. What would they not
have accomplished, backed by that unity of purpose so long since vanished? Adherence
to and development of the 'just price'
And the ban on usury would long before
have resulted in a money system fit to meet and use the impact of the industrial
revolution. Finance, instead of adding its headlong momentum to the pursuit of
material things, would have turned to fulfil the spiritual aspect of material
changes.
For the release which is implicit in the advancement of the industrial
arts is also of the spirit (otherwise 'progress' is not merely senseless but fatally
destructive) which, so enlarged, would without effort have overcome the flood
of alien and materialistic philosophies.
Had
the Constitution proceeded on its course inviolate, we of this generation might
well have echoed Shakespeare:
"Come the three corners of the world .
. . and we shall shock them!"
It
did not happen so. During the early years of the sixteenth century Sir Thomas
More (Speaker of the House of Commons and later Chancellor) was recognised as
the incarnation of English Law and Equity, and of the Christian theology and philosophy
which animated the Common Law. His execution by Henry VIII in 1533 marked the
beginning of the dismemberment of that for which he stood. The Year Books came
to an end; as to which Edward Burke made comment, "To put an end to the Reports
is to put an end to the law of England."
The
study of Canon Law was prohibited and Roman civil law was instituted. The Constitution
thus breached, the enemy marched in. The Prince, by Machiavelli being made current
and in the religious houses by Thomas Cromwell, Vicar General to the King. The
doctrine of the Supremacy of Kings (Cranmer 1540) undermined the threefold balance.
The foundations of the Constitution were deep and sound and its downfall lasted
over generations.
But "since
the Whig revolutions of 1644 and 1688, and the foundation of the Bank of England
under characteristically false auspices in 1694, the Constitution has been insidiously
sapped by the Dark Forces which knew its strength, and the obstacle which it offered
to treachery."3
In the eighteenth century Blackstone could write that
"Parliament hath sovereign and uncontrolled authority in making, conforming,
expounding and repealing laws; this being the place where that despotic power,
which must in all governments reside somewhere, is entrusted by the Constitution
of these Kingdoms…"
From
their inception no political Party has contested this process; all have accelerated
and accepted its advance. "We have now only the mere shell of the Constitution,
Single Chamber Government… to which the next step is the secular materialistic
State, the final embodiment of power without responsibility."[3]
The
disintegration of the Constitution has proceeded at various rates in various spheres
but no aspect has escaped attention. Provisions against known dangers in the use
of money were abandoned.
§ In 1571 a Statute
provided that no penalty should attach to usurious transactions if the rate of
interest did not exceed ten per cent.
§ In the 17th century, Cromwell
reinstated the Jews as moneylenders in London.
§ In 1854 came the
repeal of all usury laws (one of the removed 'restraints' referred to by Bramwell).
This was due to the influence of Bentham whose Defence of Usury became ''one of
the sacred books of the economists.
§ Marriage and the family have
been subjected to influences and regarding individuals no more need be said than
that the free men and women of England have become insured persons.
Volumes
would be required to record other, and in particular more recent infringements
of the Constitution.
Throughout
all, there have been times and there still are tines when the spirit of England
shows forth for what it is: but in spite of, and not in concept with
the political structure within which it is now imprisoned.
Deeper than
history, the Constitution has profound relationship to doctrine: the Doctrine
of the Incarnation. "At bottom, what we have to make up our minds upon is
whether human political action is subject to the same kind, or some kind, of compulsion
to be right as we accept in doing a multiplication sum, and if so, whether the
Christian Church, the Mystical Body of Christ, is the living incarnation of that
'right'-ness… It must be insisted that Christianity is either something inherent
in the very warp and woof of the universe, or it is just a set of interesting
opinions, largely discredited, and thus doubtfully on a par with many sets of
opinions, and having neither more nor less claim to consideration."[4]
This
brief review will suffice to indicate that the Constitution contemplated by the
Victorians, or that now being elaborated by present politicians, is distinguishably
at variance with that for which Sir Thomas More died rather than surrender.
It
is evident that neither Lord Peel nor Judge Bramwell appreciated this, or that
their perplexities would have dissolved in the return to authentic constitutional
practice; no easy task in their day, and the hundred and fifty years which have
since elapsed have been devoted to little else than the cultivation of further
disintegration.
Real understanding comes first; upon that problem itself into
the restoration of the functions we have allowed to decay. No surface measures
on conventional lines will have the least effect, and any others will, at first
sight, be condemned as impracticable; but the reason for taking action is not
because it is easy but because it is contributory towards its purpose..
It
would be small exaggeration to say that what has not been said here carries the
major weight, in consideration of the appropriate focus of action. The deterioration
of ideas (as well as of words) must be taken for granted.
By
the 'Welfare State' freedom has been transmuted into irresponsibility. But in
reality freedom, though distinguishable, is inseparable from responsibility and
from that which is at once the progenitor and product of both -- integrity. If
responsibility is attained, freedom will there too.
In this sense it may be
useful to think of the approach to this problem as being couched in terms of responsibility.
The Lords (Upper House) are responsible
for the safe-keeping of the Common Law -- then make it so, together with the removal
of restrictions upon it and the establishment of the principle of that legislation
by the House of Commons impinging upon it is ultra vires.
The
Parties have assumed responsibility for the propounding of policy - then make
it so, with the proviso that their proposals (including cost) are put in a form
which the electors will understand.
Electors are responsible for choosing policy
- then make it so, being sure that they understand the proposals put before them
and that each (by having his vote recorded with those who agree) will secure the
results of his choice.
This line
of action clearly impinges on the restoration of the Constitution - the incarnation
of the Talent which is the especial endowment of the British people.
Notes
1.
Much factual information has been derived from "Christian Philosophy In Common
Law," by Richard O'Sullivan, K.C.
2. Quotations from "The Age of
Equipoise," by W.L. Burn.
3. "Realistic Constitutionalism,"
by C.H. Douglas.
4. "The Realistic Position of the Church of England,"
by C.H. Douglas.
