High up, on the roof of the Inns of Court, in the legal heart of England, there are three statues symbolizing the principles of English common law. The first statue is of King Alfred the Great (871-890), who codified the first legal system in England, a code based on Scripture. Many constitutional experts, including Blackstone, regard Alfred as the “Father of English common law.” The second statue is of King Solomon, famed for his wisdom in judgement, He represents the impartiality of the judiciary. The third, and central, statue is that of Christ, here representing the “Spirit of the Law.” While the letter of the law remains constant, the “spirit of the law” allowed judges a scope for both justice and mercy, taking into account extenuating circumstances.
English common lawAll common law has its origin in ancient canon (Church); in fact, the term “common law” comes from the Latin jus commune, found in canon law. As recently as 1980, in theFountains of Justice, Professor John C. Wu wrote: “It may be said that canon law was the nurse and tutor of common law.”
The most widely quoted explanation of English common law comes from the Commentaries on the Laws of England (1765-1770) by William Blackstone, a renowned jurist who taught law at Oxford. Blackstone began his Commentaries by an analysis of the law of God as revealed in Scripture, and of the law of nature (or “natural law”). Of the latter, he wrote:
“The law of nature being coeval [that is, of the same age] with mankind, and dictated by God Himself, is of course superior in obligation. It is binding all over the globe, in all countries and at all times; no human laws have any validity if contrary to this … “Man, considered as a creation, must necessarily be subject to the laws of his creator, for he is an entirely dependent being . . .”
Common law developed from case law over the centuries, and from these cases came the doctrine of stare <I>decisis. Stare is the Latin for “to stand,” and stare decisis means “to stand by the decision.” An American, Russell Kirk, explained stare decisis (when based on God’s law) in these words:
“The purpose of stare decisis is to ensure that even-handed justice will be administered from one year to another, one decade to another, one century to another; that judges will not be permitted to create laws, or to decide cases arbitrarily, or to favour particular persons or particular circumstances. They must abide by the accumulated experiences of legal custom, so that law will be no respecter of persons, and so that people may be able to act in the certitude that the law does not alter capriciously.” (The Roots of American Order, 1974)
Common law in the U.S.Common law was carried to North America by the early settlers, and incorporated into the legal systems of the various states as they codified their laws. It is claimed that there were more copies of Blackstone’s Commentaries in North America than there were in England by 1775. Indeed, Daniel Boostin, in the Mysterious Science of the Law (1958), said, “In the first century of American Independence, the Commentaries were not merely an approach to the study of the law; for most lawyers they constituted all there was of the law.”
It is not irrelevant to add a quotation from Joseph Story (later a U.S. Supreme Court Justice) in his inaugural address as Professor of Law at Harvard in 1829: “There has never been a period of history, in which common law did not recognize Christianity as its foundation.”
Until the mid-19th century, common law was the foundation on which settlers from the British Isles based their laws. Today the Judeo-Christian foundation of the law has all but disappeared in Canada.
The slide to anti-ChristianityDarwin’s The Origin of Species (1859) marked the beginning of a slide, first to post-Christianity, and later to an anti-Christian age. Darwin dismissed belief in God as Creator, replacing it with his theories of “survival of the fittest” and “biological evolution.” Science became trendy; secular humanism became religion; Blackstone was abandoned in favour of “the evolution of law.”
Oliver Wendell Holmes (later of the U.S. Supreme Court, 1902-1932) was a leading proponent of “evolving law,” and his book The Common Law (1871) was, in fact, a bitter attack on common law. By definition, his own theory of law was sociological law, which Francis Schaeffer and Dr. Everett Koop described in Whatever Happened to the Human Race: “Sociological law is only what the people think at that moment in history, and there is no higher law. It follows that the law can be changed at any moment to reflect what the majority think. More recently the law becomes what a few people, some branch of the government, think.”
By the 1960s, the anti-Christian age had arrived. In 1961, the U.S. Supreme Court officially rejected Christianity as the basis of law; two years later it prohibited both prayer and Bible reading in public schools; in 1980 it struck down a Kentucky law which required the posting of the Ten Commandments in classrooms. The Court ruled the Commandments were “religious” and even “may induce children to read, meditate upon, perhaps venerate and obey the Commandments.” Incredibly, the Court objected to children obeying authority, or refraining from theft, lying and murder.
For centuries Christianity was the centre of gravity for law, medicine and education. With the denial of God, “the centre could not hold” and disintegration followed. The outer shells of structures remained, but too often their content was false. Hilaire Belloc foresaw our position in The Great Heresies (1938). He wrote: “It is the essence of heresy [“an opinion contrary to the doctrine of any subject”] that it leaves standing a great part of the structure it attacks. On this account it can appeal to believers … Wherefore it is said of heresies that they survive by the truths they retain.” The damaged structures include parliamentary democracy and our courts of law.
DemocracyIn the late 18th century, the great parliamentarian, Edmund Burke, warned: “Whenever Parliament is persuaded to assume the offices of Executive Government, it will lose all the confidence, love and veneration it has ever enjoyed; it would be considered the most intolerable of all the modes of tyranny.” Australia, New Zealand, and Canada are on that road; Britain may join them.
The following are quotations from leading Australians on the state of their democracy (contained in Jeremy Lee’s pamphlet, Conscience Voting). Unfortunately the same criticisms apply to Canada:
“Increasing executive power is debilitating Parliament.” (Charles Falkinder, MP, 1966)
“Parliament has permitted itself to be starved of power, status . . . It has permitted the executive, and particularly the administrative bureaucrats to avoid accountability. It has permitted even the necessary knowledge of what is happening in the country to be kept from it.” (Senator Peter Rae, 1978).
In 1966 Falkinder condemned the anti-democratic developments in party politics: “Members sublimate their minds to the wish of the party . . . and the fate of the man who tries to pursue an independent course is certain.”
Frank Green stated in 1965: “Debate in Parliament is futile, or avoided; futile because members always vote the party line; avoided, because issues betray the disunity within each party.”
Professor Bland said scathingly: “Parliamentarians could save the electors a lot of money by staying at home and sending a telegram when votes were needed.”
All the Australians quoted could have been Canadians, speaking of Canada. So too could Professor Geoffrey Palmer who said that the New Zealand Executive Council made regulations without consent of Parliament, and added: “Democracy is on a slippery slope which could eventually remove the need for Parliament at all.”
It should be noted that Canada’s slide has been accelerated by the government’s collaboration, since 1974, with the anti-family, global government agenda of the United Nations, by the Charter of Rights and Freedoms, which has turned the courts, especially the Supreme Court into law-makers and the notorious decisions of our various human rights tribunals.
Canada’s legal system today is a travesty of the one symbolized in the Inns of Court and of the stare decisis lauded by Russell Kirk. Today, it is true to say that both Parliament and the courts have “lost the confidence, love and veneration” they always had.
We would be wise to heed the words of Sir John Curran, Lord Mayor or Dublin, in 1790 (a time of great danger): “The condition upon which God has given liberty to man is eternal vigilance, which condition, if he break, servitude is at once the consequence of his crime and the punishment of his guilt.”
Prayer and courageous action 200 years ago saved freedom; they can, with our determination, do so again.