How many Australians understand the importance of their Constitution and its Common Law roots?
This article is intended to introduce some thoughts on the importance of our nation’s Constitution and Legal systems.
Written quite a number of years ago, Hewlett Edwards takes us back into British history where the direction of the British peoples was dramatically altered and the foundational Constitutional concepts were being lost to sight.
I WENT AND HID THY TALENT IN THE EARTH
by Hewlett Edwards
Martin of Patteshull, Dean of St. Paul’s: William of Raleigh, Bishop of Winchester; Henry of Bracton, Archdeacon of Exeter Cathedral. 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 the 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) 
“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.”
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.”
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.
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.