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CHAPTER II

ENGLISH HIGHER LAW DOCTRINES

THE traditional view of English legal historians was that in English law there are relatively slight traces of the influence of the Roman law or of its mediaeval offshoot, the canonical codes. It was taken for granted, therefore, that the ancient and mediaeval concepts of natural law, though occasionally referred to by English text writers and judges, were never accepted in any authoritative way as principles of English law. Recent investigations in English legal history have modified to some extent the traditional views regarding the acceptance of Roman law principles and have tended to indicate some important connections between the main currents of continental legal thought and the emerging common law of England.[1] And we are now assured that one of the main connecting links between the two legal systems was the doctrine of the law of nature or law of reason of ancient and mediaeval times.

1. Natural Law Ideas and English Doctrines relating to Fundamental Laws. In the processes by which Anglo-Saxon and Norman customs were transformed into law, may be traced the growth of ideas relating to a superior law in England. Authorities do not agree, however, as to the significance of higher law concepts in the development of English law. Certain authors maintain, with Professor McIlwain, that customary laws with no assignable beginning and accepted as a rule without question, in the course of time acquired a character of inviolability; and whether this inviolability be the result or the cause of the preservation of these customs, the feeling has somehow come into existence that there is a law fundamental and unalterable, and rights derived from it indefeasible and inalienable. The content of the law may not be definite, — in England it was always far from definite, — but the idea has lodged itself in men's minds as a formative principle, and once lodged it colors everything.[2]

This idea though vague and indefinite in outline was at times, they assert, a significant force in the development of law in mediaeval England,[3] and as a result of it certain principles of mediaeval customary law were thought to be beyond the power of Parliament to change, and were likely to be identified with the law of nature.[4] A few provisions of Magna Carta were occasionally referred to as fundamental and immutable.

William E. Holdsworth,[5] William S. McKechnie,[6] Edward Jenks,[7] and L. O. Pike[8] have questioned the great claims made for Magna Carta as a charter for constitutional government and have emphasized that the barons who forced the King's signature to the document "were guided by class interests and aimed at reaction and anarchy rather than at legality and progress." Vinogradoff[9] thinks that these historians fail to explain the reasons for the great influence of the document on the national life of England and why it became the watchword of English legalism. He believes that the feudal interpretation of the Charter fails to take into account sufficiently that certain provisions tended to impress upon all the necessity of the appreciation of the rule of law in ordinary legal relations and to carry over this idea from the class justice of the feudal lords to the common law of the growing commonwealth.[10] At least there are some vague general statements which appear to consider Magna Carta in the nature of a superior law.[11]

Whether or not these ancient customs and the written provisions of the Great Charter had the characteristics of fundamental laws which were not subject to change by statutes is a controversial matter which need not be determined here. It will suffice to note that as a result of a careful study of the Yearbooks Mr. Plucknett concludes that the examples which Professor McIlwain cites to sustain his contention that there were fundamental laws in England in the mediaeval period "afford no support for the thesis of a supreme, fundamental law."[12] Whatever conclusion may be arrived at in this controversy there is substantial agreement among the authorities that not infrequent use was made of the concept of natural law. Mr. Plucknett regards the instances of such use, which he discovered in the fourteenth century, as rather loose and vague references to custom, to conscience, or to the colloquial sense of the unreasonable.[13] Perhaps the difference in interpretation of these legal phenomena may be due in part to the point of view of the investigator just as many American legal historians find no bona fide traces of natural law doctrines in the legal decisions of the American courts and others discover many illustrations of the applications of these doctrines in the opinions of the judges.

The use of the term "law of nature" was quite sparing[14] and seems to have been avoided in the development of equity. More frequent applications of the term may be found in the beginnings of the law merchant.[15]

If natural law terms were not adopted in the beginning of English equity procedure, generous use of the ideas involved therein was made by the chancellors. The common lawyers of the thirteenth and early fourteenth centuries according to Holdsworth included under the term "equity"

such ideas as abstract justice and analogy. The ecclesiastical chancellors, on the other hand, based their equity on the more restricted idea that the court ought to compel each individual litigant to fulfill all the duties which reason and conscience would dictate to a person in his situation. Reason and conscience must decide how and when the injustice caused by the generality of the rules of law was to be cured. They were the executive agents in the work of applying to each individual case those dictates of the law of God and nature, upon which the ecclesiastical chancellors considered equity to rest.[16]

Maitland believed that there was a more direct and insistent use of the law of nature ideas in the development of equity.[17]

2. Natural Law and the Doctrine of the Supremacy of the Law. The evolution of English ideas relating to a higher law was intimately bound up with the emerging concept of the supremacy of law. From the dominant idea of mediaeval thinkers that law should be supreme, and superior to the state itself, English judges evolved the peculiar English doctrine of the supremacy of the law, which bound even the King.[18] Bracton, for instance, who made use of the Roman concept of natural law, regarded the King as subject to law but did not suggest any effective remedy for a breach of law by the King.[19] However, the courts of law at this time were regarded as possessing certain political functions on which Professor Holdsworth comments as follows:

The law was a rule of conduct which all members of the state, rulers and subjects alike, were bound to obey, the whole conduct of government consisted in the enforcement of the law, and in the maintenance of the rights and duties to which it gave rise. It was a necessary consequence of this theory of government that the courts should possess political functions; for they existed not merely to do justice as between private persons, but also to see that the law itself was not arbitrarily infringed or altered by the king or any other person.[20]

The doctrine that there were superior principles of right and justice which acts of Parliament might not contravene was asserted and defended vigorously and effectively by Lord Coke in his controversy with the Stuart Kings.[21] In the well-known case of Dr. Bonham, wherein the Royal College of Physicians attempted to impose a fine for illegal practice of medicine, Coke asserted that it was an established maxim of the common law that no man can be judge in his own case. And he continued: "It appears in our books that in many cases the common law will control acts of Parliament and sometimes adjudge them to be utterly void; for when an act of Parliament is against common right or reason, or repugnant or impossible to be performed, the common law will control it and adjudge such act to be void."[22] A number of cases were cited in support of this dictum.[23] Concerning this opinion there have been many disputes. Supporters of Coke have tried to show that the opinion with the precedents upon which it is based is an essentially accurate reflection of the situation in England at the time when the principle of the supremacy of law was winning its way over the tendencies toward the establishment of an absolute monarchy.[24] On the other hand, historians have endeavored to prove that the cases on which Coke based his theory of the supremacy of the common law courts do not bear the construction which he gave to them. Most English legal authorities agree that there is no specific case on record in which an English court of justice has directly overruled or disregarded the plain meaning of an act of Parliament.[25] In England the mediaeval doctrine that law is above the state, which meant that there was a fundamental law which could not be changed, came to mean primarily the supremacy of law which Parliament could change at will. The dictum of Coke in Bonham's case that courts may refuse to enforce an act of Parliament when it is "against common right and reason," or "repugnant, or impossible to be performed," Holdsworth considers as founded on little mediaeval authority. The cases cited by Coke, he thinks, amount to little more than that the courts will interpret statutes strictly.[26] Even when the supremacy of Parliament was recognized there were few who would have admitted that Parliament possessed unlimited powers. Even Sir Francis Bacon, who took the side of the King against Coke in his assertions of common law supremacy admitted the superior force of the law of nature.[27] But the theoretical limits conceived as binding Parliament lost much of their significance when this body asserted its authority over the King and the courts.[28]

Recognizing that in the first few centuries after the establishment of Parliament there were doubts whether private acts could be passed which were judicial in character, such as bills of attainder, it was contended that in Henry VIII's reign all such doubts were removed and "the judges were obliged to admit that these acts, however morally unjust, must be obeyed."[29] Whatever effects Coke's attempt to set up a superior and fundamental law may have had, the Revolution of 1688 marked the abandonment of his doctrine as a practical principle of English politics.[30]

It is necessary to distinguish between the idea of an appeal to a fundamental law, when the appeal is primarily in the nature of a criticism and finds its chief sanction in the ancient right to resist arbitrary authority by revolutionary methods, and an appeal to a fundamental law which the courts must hold as binding in order to protect citizens from arbitrary authority. The appeal to a fundamental law as embodying superior principles of right or of equity is a common method of resisting injustice and accounts in part for the extreme pretensions of Coke. It was in this connection that the assertive chief justice set about to revive interest in Magna Carta as a fundamental charter of liberties.[31] After a period of comparative neglect the Charter was rendered popular by its use as a weapon to check the extensive prerogatives claimed by James and Charles. Coke, Hampden, Eliot, and Pym gave an interpretation to long-forgotten clauses of Magna Carta that supported their partisan views of constitutional reform. The Great Charter, McKechnie observes, "as enshrined in the imaginations of the parliamentary leaders of the Puritan Rebellion was, to a great extent, the creation of Coke's legal intellect." So great was this creative effort of Coke and his followers that a contrast may well be made between two Great Charters — one, the original feudal charter; the other, the seventeenth-century charter, as it came to be accepted by the political leaders, the judges and lawyers, and the majority of the people of England.[32]

A middle ground between the pretensions of Coke, that both the King and Parliament were limited by a common reason and superior principles of justice of which the common law courts were the ultimate interpreters, and that of Pollock, Holland, and Holdsworth, to the effect that no cases are on record in which the will of the King and of Parliament were thwarted by the courts, resting their opinion on a higher law basis, probably comes nearer to stating the actual situation in England. Even if it be true, as is claimed, that there is no case on record in which the clearly expressed will of the King and of Parliament were really checked by the courts there were instances in which the courts, interpreting the common law changed the meaning of statutes, refused to give them the effect intended, or to apply a rule of his majesty in council until the King, Lords, and Commons joined in an unmistakable mandate, which the courts reluctantly at times conceded it was their duty to obey. Short of such mandates clearly and unequivocally expressed there was a wide realm in which the courts applied the basic principles of reason of the common law and were seldom interfered with either by the King or by Parliament.[33] Moreover, the frequent confirmations or reaffirmations of Magna Carta served to impress upon the public mind that enshrined therein were fundamental principles upon which the superstructure of the English constitution might arise. Coke's reiteration of these principles served to strengthen the basic doctrine of the supremacy of the law.

It was Coke's version of the supremacy of the common law, as an exemplification of rules of reason and of justice, which the courts must enforce even above the King and Parliament, that served as a convenient argument when American justices were confronted with the demand that limits must be placed on legislative powers to safeguard individual rights and privileges.[34]

Blackstone in his Commentaries gave a version of natural law which, through the popularity of his work, was given wide currency. "Man, considered as a creature," he said,

must necessarily be subject to the laws of his Creator.... This will of his maker is called the law of nature.... This law of nature, being co-eval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times; no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately and immediately, from this original.... Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say no human laws should be suffered to contradict these ... nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we offend both the natural and the divine.[35]

He placed these precepts in the realm of moral restraints by later admitting that no authority could prevent Parliament from enacting laws contrary to them. With the supremacy of Parliament generally accepted the references to superior natural laws become less frequent.

3. Evidences of Natural Law Ideas in Judicial Decisions. The efforts to predicate a basis for a fundamental law, which were gradually brushed aside as Parliament gained ascendency over the other departments of government, are by no means the only attempts to apply the ancient and mediaeval concepts of natural law in England. Sir Frederick Pollock has indicated the inaccuracy of the prevailing view that English law was comparatively free from the influence of natural law doctrines.[36] When Roman and canon law doctrines came into disrepute in England Pollock observes that the law of nature terminology was frowned upon and gradually dropped, only, to be restored in common law terminology in the words "reason" and "reasonable." Due to a natural aversion to Continental ideals and to the influences of church law and of Roman law it became the English practice to speak of reason in preference to the mediaeval concept of the law of nature.[37] Natural justice or reason which the common law recognizes and applies does not differ from the law of nature which the Romans identified with jus gentium and the mediaeval jurists accepted as being divine law revealed chiefly through man's natural reason.[38]

Pollock's summary of the extensive ramifications of the doctrine of reasonableness or the English version of natural law deserves to be quoted:

Reasonable price and reasonable time are among the most familiar elements in our law of contract. Oftentimes no more definite instruction can be given to a jury than to award reasonable damages. "Natural reason and the just construction of the law," as Blackstone said, have given us the various applications of the common counts, extending to the whole field of what we now call quasi-contract. In Lord Mansfield's hands the principles of natural equity were an enchanter's wand to call a whole new world of justice into being. The test of what a reasonable man's conduct would be in the circumstances governs our modern law of negligence and underlies those branches of it which have been specialized into groups of definite rules. Almost in our own time a simple and wholly untechnical conception of the same kind has been developed into the doctrine of estoppel "in pais," perhaps the most powerful and flexible instrument to be found in any system of civil jurisprudence.[39]

Since the Middle Ages the law of nature or its offshoot, the law of reason, has been an important factor in the development of equity, of the law merchant, and of the law of nations.[40] Principles of natural justice are also recognized and applied today in cases where the courts review the exercise of quasi-judicial powers by administrative boards, committees, or commissions.[41]

One need not seek far in English case law to find impressive examples of the use of the doctrine of reason or reasonableness, though the law of nature connotations of these phrases may be inadvertently or purposely concealed.[42]

The law of nature as "the living embodiment of the collective reason of mankind" has, indeed, been adopted by the common law in substance if not in express terms.[43] Despite the persistent applications of natural law concepts in English law certain English jurists frequently refer to the philosophy of law as comprehended under Naturrecht as a German product, and criticize such thinking as "a mere system of elaborate trifling."[44]

4. Types of Natural Law Theories applied in English Law. It is apparent that natural law concepts of one kind or another served various purposes in English legal history. First, there was in mediaeval times an identification of the term "natural" with the "customary" rules of the common law. The importance attached to these natural or customary rules, the origins of which were unknown, gave an element of certainty and permanence to the emerging system of the common law, and encouraged the belief that certain laws were fundamental. As the courts were the prime agencies in the application of these rules it encouraged the recognition of the supremacy of the law as interpreted by the justices.

Second, the doctrine of the supremacy of the law was given a prominent place in the conflict between the King and the barons when resistance to the King was supported by reference to the fundamental immemorial rights of Englishmen — essentially a form of appeal to a higher law. The assertion of the idea that there was a law above the King and above Parliament as that body gained in prominence, despite the differences of opinion regarding its significance, became a vital principle in the growth of English constitutionalism. It encouraged a more definite recognition of the distinction between ordinary law and fundamental law. As a means of supporting the revolt against arbitrary rulers the concepts of natural law and natural justice were revolutionary and idealistic.

Third, the theory that law is of divine origin and that such rules as accord with this law are natural and valid was inherited from Continental European thought and was accepted by some English lawyers and jurists until the bonds with the Roman church and the mediaeval canonists were severed. As in Blackstone's Commentaries, the theory may be repeated at times with little reference to its practical importance in English law.

Fourth, law of nature ideas were the sources from which the common law judges derived their notions of rules of reason and natural justice whereby they aimed to rationalize the legal processes. In this role these ideas became active and progressive principles of legal growth. They assisted in establishing close relations between legal logic and practical experience. The growth of the common law in an inductive, experimental, and pragmatic manner was conditioned by the famous rule of reason, which prevented the rigid and archaic procedure and rules of the system from remaining long in force when they were not in accord with social and economic conditions. The manifold appearances of the rule of reason in Anglo-American law bear witness to the fact that natural law doctrines are not ignored or discarded in the jurisdictions which are subject to this law. But differences in terminology have tended to obscure the continuous applications in English law of natural law concepts which play an important rôle in Continental legal systems.

5. Differences between the Anglo-American and the Continental Legal Points of View. The fact that in Continental systems of law two words are in use for the ideas comprehended in the English word "law" differentiates certain phases of legal thought of Continental nations in contrast with that of Anglo-American countries. Two sets of words to express two ideas of law are:

Latin

jus

lex

German

Recht[45]

Gesetz

French

droit

loi

Italian

diritto

legge

Spanish

derecho

ley


Though the two terms are not always clearly distinguished, lex is the term which commonly designates written enactments or rules and jus[46] refers to those rules which are just or inherently right or equitable. To the Romans jus naturale comprised the eternal principles of justice, as understood and appreciated by the human reason; but in the Middle Ages, as we have seen, the jus naturale frequently became the lex naturalis, or positive enactments proceeding from God, which were considered superior to all human laws.

When law was based largely on custom and on the application of traditional rules, and legislation was comparatively rare, the lex or loi was regarded as the embodiment of reason, for customs and traditions to be valid were expected to be reasonable. Later the distinction between droit and loi was more clearly drawn. In modern terminology la loi is a declaration of the will of the sovereign upon an object of common interest,[47] and droit is the aggregate of precepts or laws (lois) governing the conduct of man toward his fellows, the observance of which it is possible, and at the same time useful, to assure by way of external coercion. Thus with a term to characterize the enactments, usually in writing, to which men are expected to conform and the rules or ideas of justice which are to guide and control civil conduct, it is possible to differentiate between the ordinary conventional laws of a time and place and the underlying rules and principles which form the very groundwork of the legal structure. The terms droit or Recht[48] combining the ideas of a rule of civil conduct and a principle of justice, necessarily mingle law and morals in juridical speculation, whereas with a single term — law — English jurists have been inclined to divorce law and ethics.

"To this difference of language, and to the consequent difference in the tone of juridical speculation," Mr. Salmond thinks,

we may attribute, more than to any other single cause, the acceptance on the Continent and the rejection in England of that which the French call droit naturel, and the Germans Naturrecht.[49] It follows that our language can supply no equivalent for these terms, for they combine ethical and juridical significations in a manner not permitted to English speech. To express the ethical meaning we must use the terms natural right or natural justice; while the juridical meaning is expressed by the terms natural law or the law of nature. For a full equivalent for the French and German expressions, we may resort to the corresponding Latin jus naturale, which possesses the same twofold meaning, being either justitia naturalis or lex naturae.[50]

The differences in terminology and points of view are likely to be exaggerated, for whether or not separate words be used for definite written enactments and for rules of right or principles of justice the results in legal thinking do not vary greatly on this account. The fact that writers in Europe give a great deal more attention to legal speculations and that the schools of droit naturel or Naturrecht have produced elaborate and influential treatises is due rather to a different approach to philosophy and to speculative thought than to variations in terms. The Englishman's effort to divorce morals and law is, of course, not successful and his vain attempts to repudiate natural law thinking have failed to conceal the substratum of rationalizing in accordance with well-known natural law connotations. The obvious methods of suppression of natural law concepts are but a reflex of a type of mind which depreciates rationalizing and philosophizing at the same time that new ideas and new institutions are being molded in accordance with the assumptions and preconceived notions of particular schools of philosophic thought.[51] Englishmen are less prone to formulate the speculative ideas which are the warp and woof of their social fabric and they have been masters in the application of theories which, however, have been thought to be more acceptable because they were believed to be concealed.[52]

It was in the United States and in France, however, that different types of natural law concepts were to take shape. Higher law ideas were soon to become in these countries the source and sanction for portions of private and public law.


1. C. H. McIlwain, The High Court of Parliament and its Supremacy (New Haven, 1910). Sir Frederick Pollock thinks "there is a real link between the mediaeval doctrine of the law of nature and the principles of the common law. It is given by the use — correct in both systems, though constant, indeed exclusive in the Common Law, and rather sparing in the Canon Law — of the words 'reason,' and 'reasonable.'" Essays in the Law, p. 57; see also Holdsworth's A History of English Law, II, 133 ff. for a modern interpretation of the adoption of Roman law ideas in English law.

"English as well as Continental jurists and judges," says Professor H. D. Hazeltine, "were under the influence of doctrines which ascribed the jus divinum and the jus naturale the quality of immutability and rendered the man-made positive law opposed to them null and void. Bracton writes under the influence of these doctrines; and the early common lawyers treat the common law itself as the embodiment of the jus naturale in the guise of 'reason.'" Preface to Theodore F. T. Plucknett, Statutes and their Interpretation in the First Half of the Fourteenth Century (Cambridge, 1922), p. xxiii.

2. C. H. McIlwain, op. cit., pp. 51, 52. See also Sir Paul Vinogradoff, "Magna Carta Chapter 39," Malden, Magna Carta Commemoration Essays, p. 85.

3. McIlwain, op. cit., p. 53. McIlwain continues: "There is a fundamental law which binds a king and beyond which he may not go. The principle has persisted through all changes.... Men may not always have been clear as to what particular rights or liberties were guaranteed by the fundamental law, but as to the existence of such a law there was no doubt, and any act that violated it was in a true sense felt to be no law." Ibid., pp. 57, 63. For the use of the term "common law" as signifying in a real sense a fundamental law, cf. McIlwain, "Magna Carta and Common Law," in Magna Carta Commemoration Essays (London, 1917), pp. 122 ff. and 175 ff. This judgment is not in accord with the opinions of a number of English legal historians, who regard the theories of a fundamental law, which is superior to the King and to Parliament, as having little evidence to substantiate them, so far as the actual operation of the law in England is concerned.

4. McIlwain, The High Court of Parliament and its Supremacy, p. 99. Expressing the view that the omnipotence of the British Parliament, on which English jurists have usually built their theories of sovereignty, is really exceptional, Sir Frederick Pollock says: "The omnipotence of Parliament was not the orthodox theory of English law, if orthodox at all, even in Holt's time. It was formally adopted, and then not without lip-service to natural law, in Blackstone's Commentaries. Sir Thomas Smith had asserted it plainly enough two centuries before Blackstone; but he spoke the mind of the Tudor councillors of state, not the judges and serjeants. Down to the Revolution the common legal opinion was that statutes might be void as 'contrary to common right' — an insular version, as I have pointed out elsewhere, and generally received natural law." "A Plea for an Historical Interpretation," Law Quarterly Review, XXXIX (April, 1923), 165. See also the Expansion of the Common Law (London, 1904), p. 123.

5. A History of English Law, II, 207 ff.

6. Magna Carta (New York, 1915).

7. "The Myth of Magna Carta," The Independent Review, IV (1904-05), 260 ff.

8. Constitutional History of the House of Lords (London, 1894).

9. Sir Paul Vinogradoff, "Magna Carta Chapter 39," Magna Carta Commemoration Essays, p. 79.

10. Vinogradoff, op. cit., pp. 84, 95.

11. Cf. citations in Rodney L. Mott, Due Process of Law (Indianapolis, 1926), chap. 3.

12. Op. cit., pp. 26-31, 35, 36. For a critical analysis by the same author of Coke's broad claims for the existence of a fundamental law in England, see also "Bonham's Case and Judicial Review," Harvard Law Review, XL (November, 1926), 30.

13. Op. cit., pp. 35, 36.

14. See Fortescue, De Natura Legis Naturae and De Laudibus Legum Angliae, chap. 16, and Calvin's Case, 7 Co. Rep. 121. Holdsworth finds an occasional use of the term "law of nature" in the Yearbooks and rather frequent references to the idea that law must accord with reason, Appendix II, Holdsworth's History of English Law, II, 602.

15. Cf. Malines, Lex Mercatoria (1656), p. 311, and Sir John Davis, Concerning Impositions (1656), chap. 3. Pollock, Essays in the Law (London, 1922), pp. 53 ff.

16. Op cit., V, 216.

17. "On the whole, my notion is that with the idea of a law of nature in their minds, they decided cases without much reference to any written authority, now making use of some analogy drawn from the common law and now some great maxim of jurisprudence which they borrowed from the canonists or the civilians." F. W. Maitland, Equity, p. 9.

18. Holdsworth, op. cit., II, 131, 195, 196. Professor Adams speaks of "the idea that there existed a body of understood, more or less definitely formulated rights which the king was bound to observe," as a "guiding and creative principle" of the English constitution. George Burton Adams, The Origin of the English Constitution (New Haven, 1920), p. 157.

19. De Legibus el Consuetudinibus Angliae, III, 9, 2, fol. 107 b and Holdsworth, II, 252, 256. Bracton copied with slight changes his account of jus naturale from Azo, who in his edition of the Institutes, follows Ulpian's classification. See Professor Maitland's Selections 8, Selden Society's Publications (London, 1895), p. 33. A passage of the Roman code indicated that it was the duty of the Emperor to acknowledge that he was bound by law, Code 1. 14, 4. This idea was accepted by Azo and through him was incorporated in Bracton's De Legibus et Consuetudinibus Angliae, II, 16, 3. See also Carlyle, A History of Mediaeval Political Theory in the West, III, 34 ff., for Bracton's theory of limits on the king's authority.

20. Op. cit., IV, 169. The author refers to two striking examples of mediaeval courts which actually exercised political powers, namely, the Justizia of Aragon and the Parlement of Paris. "The supremacy of the law was a theme on which Coke was never tired of dilating. In fact, it would not be going too far to say that it was the view of all the leading lawyers, statesmen and publicists of the Tudor period." Ibid., pp. 201, 202.

21. See Bonham's Case, 8 Co. 118a, b; Plucknett, "Bonham's Case and Judicial Review," Harv. Law Rev., XL, 30; also C. G. Haines, The American Doctrine of Judicial Supremacy (New York, 1914), pp. 25 ff.

22. 8 Co. (C.P. 1610) 114a and 2 Brownl. (C.P. 1610) 255, 265.

23. Tregor's Case Y. B. Pasch, 8 Edw. III, 26; Fitzherbert, Annuitie 41. For a thorough analysis of these cases, consult Plucknett, Statutes and their Interpretation in the First Half of the Fourteenth Century (Cambridge, 1922), pp. 66-70 "and Bonham's Case and Judicial Review," Harv. Law Rev., XL, 35 ff. Cf. also Holdsworth, op. cit., V, 428, 454, 491 ff.

24. Cf. views of Sir Henry Hobart in Day v. Savadge, Hobart, 85 (K. B. 1614) and Lord Holt in City of London v. Wood, 12 Modern 669, 687 (Mayor's Court, 1701).

25. Pound, "Common Law and Legislation," Harv. Law Rev., XXI (April, 1908), 391. "We find," says Pollock, "a series of dicta, extending to the early part of the eighteenth century, to the effect that statutes contrary to 'natural justice' or 'common right' may be treated as void. This opinion is most strongly expressed by Coke, but like many of his confident opinions, is extra-judicial. Although Coke was no canonist, we may be pretty sure that it was ultimately derived from the canonist doctrine prevailing on the continent of Europe. In England it was never a practical doctrine." The Expansion of the Common Law, pp. 121, 122. He claims that no case is known in fact, in which an English court of justice has openly taken on itself to overrule or disregard the plain meaning of an act of Parliament. First Book of Jurisprudence (3d ed, 1911), p. 264, and Essays in the Law (London, 1922), p 41. This view of Pollock is confirmed by J. G. Holland, who states that "these dicta, though approved of by Lord Holt in London v. Wood, appear never to have been followed in practice." The Elements of Jurisprudence (12th ed., New York, 1917), pp. 37, 38.

Plucknett notes that this judgment needs to be slightly modified so as to account for the few instances in which courts refused to apply acts regarded as impossible to carry out or absurd in their consequences, Harv. Law Rev., XL, 36 ff.

26. Holdsworth, op. cit., II, 441-443. This view is supported by F. W. Maitland, who thinks that the precedents cited by Coke do not bear him out. The Constitutional History of England (Cambridge, 1909), p 301. From this slim foundation, Plucknett observes, Coke developed a theory all his own — to the effect that there was a superior body of rules which bound the King and Parliament. The subsequent results of Coke's ideas are traced in "Bonham's Case," Harv. Law. Rev., XL, 49 ff. This article should be consulted for an analysis of the cases reported by Coke and those in which his views were approved.

27. "Our law is grounded upon the law of nature.... For as the common law is more worthy than the statute law, so this law is more worthy than them both" Bacon, Works (ed. by Spedding, Ellis, and Heath), XV, 202 ff.

28. Holdsworth explains the merging of the supremacy of law with the concept of parliamentary supremacy, as follows:

"But when the Act of Parliament had acquired this authority, the last remnants of the idea that there might be fundamental laws, which could not be changed by any person or body of persons in the state, necessarily disappeared. It was obviously difficult to assign any limits to the power of the Acts of a body which had effected changes so sweeping as those effected by the Reformation Parliament. I do not forget that Coke sometimes writes as it he believed in the supremacy of a law which even Parliament could not change But it would, I think, be a mistake to lay too much stress on isolated statements of this kind. In the first place, Coke was often inconsistent because he had the mind of an advocate, and therefore often allowed himself to be carried away by the argument which he was urging at the moment. In the second place, he was so thoroughly steeped in mediaeval law that he sometimes reproduces ideas which he himself would have admitted to be archaic. In the third place, he is often writing and thinking of the supremacy of the existing law, and not of the question whether Parliament was competent to change it. When Parliament is not sitting it is the existing law, as interpreted by the judges, which is supreme; and when, as in the seventeenth century, the different component parts of the Parliament cannot act together, the same result ensues. In the Fourth Institute, when he is dealing specifically with the powers of Parliament, and in other passages, he admits its supremacy freely and fully.

In the sixteenth century, therefore (whatever may be true of earlier periods), it is clear that the supremacy of the law, taught by Bracton and the Yearbooks, has come to mean, not the supremacy of an unchangeable law, but the supremacy of a law which Parliament can change. The supremacy of the law is coming to mean the supremacy of Parliament. That the lawyers never placed any difficulty in the way of this evolution was a fact which had large effects upon the future development, both of the constitution and of the common law." Op. cit., IV, 186, 187.

29. Holdsworth, op. cit., IV, 185. "It was only in England that the powers of Parliament had come to be regarded as the main security for the supremacy of the law; for it was only in England that the lawyers, by freely admitting the legislative supremacy of Parliament, had gained the support of Parliament and the nation for the mediaeval doctrine of the supremacy of law." Ibid., p. 189.

30. On the tendency of Coke to assume the rôle of a strenuous advocate in the causes which enlisted his interest, on his lack of consistency in relation to such matters as the supremacy of the common law, and on his uncritical use of authorities, see Holdsworth, op. cit., V, 474 ff; also Plucknett, "Bonham's Case," Harv. Law Rev., XL, 58, for citation of cases recognizing the supremacy of Parliament.

31. For an analysis of Coke's ideas relating to a fundamental law, see R. A. MacKay, "Coke — Parliamentary Sovereignty or the Supremacy of the Law," Michigan Law Review, XXII (January, 1924), 215.

"In every government there must be Somewhat Fundamental, Somewhat like a Magna Carta, which should be standing, be unalterable.... That Parliament should not make themselves perpetual is a Fundamental. Of what assurance is a law to prevent so great an evil, if it lie in the same legislature to un-law it again? Is such a Law like to be lasting? It will be a rope of sand." Cromwell's Speech of September 12, 1654.

32. W. S. McKechnie, "Magna Carta (1215-1915)" in Malden, Magna Carta Commemoration Essays (London, 1917), p. 12. McKechnie thinks that the inaccurate eulogies of Coke and Hampden rendered a great service to the cause of constitutional government. Ibid., p. 19.

33. Plucknett, Statutes and their Interpretation in the Fourteenth Century, Part II.

34. Cf. The American Doctrine of Judicial Supremacy, chap. 2 and Plucknett, "Bonham's Case and Judicial Review," Harv. Law Rev., XL, 61 ff.

35. I, 41-43. See also, Hooker, The Laws of Ecclesiastical Polity, Book III, chap. 9.

36. "The History of the Law of Nature," Journal of Society of Comparative Legislation, II (1900), 418, and Columbia Law Review, I (Jan., 1901), 11. Cf. also Pollock, The Expansion of the Common Law (London, 1904), pp. 107-138. "The term 'law of nature,' or natural law, has been in use in various applications ever since the time of the later Roman Republic. Their variety and apparent diversity have tended to obscure the central idea which underlies them all, that of an ultimate principle of fitness with regard to the nature of man as a rational and social being, which is, or ought to be the justification of every form of positive law. Such a principle, under the name of reason, reasonableness, or sometimes natural justice, is fully recognized in our own system, but the difference in terminology has tended to conceal the similarity from English lawyers during the last century or more." Pollock, "The History of the Law of Nature," Col. Law Rev., p. 11.

37. Christopher St. Germain, Doctor and Student, Dial., 1. chap. 5. St. Germain aimed to popularize the canonist conception of equity and to define its relations to the common law, and he exercised a great influence on the development of modern English equity. Holdsworth, op. cit., V, 266 ff.

38. "The Common Law is pictured invested with a halo of dignity, peculiar to the embodiment of the deepest principles and to the highest expression of human reason and of the law of nature implanted by God in the heart of man," Figgis, The Divine Right of Kings, pp. 228, 229. "Common Law is the perfect ideal law; for it is natural reason developed and expounded by the collective wisdom of many generations." Ibid., p. 220.

39. The Expansion of the Common Law, p. 108, also Pollock, Essays in the Law, pp. 63, 68, 69.

40. The Expansion of the Common Law, pp. 108-113. Pollock speaks of this law of nature or law of reason as a "pervading ideal, of which it would be hardly too much to say that it is the life of the modern Common Law," ibid., p. 109.

41. Pollock, Essays in the Law, p. 70 See Local Government Board v. Arlidge (1913) 1 K. B. 463; (1914) 1 K. B. 160; (1915) A. C. 120. In the Arlidge Case administrative proceedings which did not accord the injured party a hearing or an opportunity to see the record on which the decision of the officers had been rendered were held valid. The first trial in the Court of King's Bench resulted in the approval of the administrative action. The failure to grant a hearing or to permit an examination of the records, the Court of Appeal held to be contrary to the principles of natural justice on which the English common law is based. See especially, opinion of J. Vaughn Williams, Rex v. Local Government Board (1914) 1 K. B. 160, 176. By the House of Lords this decision was reversed on the ground that the acts of Parliament expressly authorized such administrative proceedings and did not provide in these instances for review by the courts. Lord Shaw disapproved of the ground on which the Court of Appeal based its judgment. He observed: "In so far as the term 'natural justice' means that a result or process should be just, it is harmless though it may be a high-sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is vacuous." Local Government Board v. Arlidge (1915) A. C. 120, 138. Lord Moulton also objected to the use of the phrase "contrary to natural justice" in this connection, ibid., 150. Cf. also Sir Paul Vinogradoff, Yale Law Journal, XXXIV, 68, and decisions and remarks in the cases of Scott v. Scott (1913) C. 417, 176 (an action for the nullity of a marriage in which proceedings were conducted in camera) and of Chester v. Bateson (1920) 1 K. B. 829 (interference with rights of citizens through ministerial orders under the Defence of the Realm Act).

42. Cf. Pollock, The Expansion of the Common Law, pp, 123 ff. A few applications of law of nature concepts may be cited: Certain decisions relating to the validity of the procedure of foreign courts when judgments had been rendered without notice or through fraud made use of the phrase "contrary to natural justice." For example, Lord Ellenborough said: "It is contrary to the first principles of reason and justice that either in civil or criminal proceedings, a man should be condemned before he is heard." Buchanan v. Rucker (1807) 1 Camp. 63, 66. For a criticism of this language of Ellenborough as no more than declamation, see J. Blackburn in Schibsby v. Westenholz (1870) L. R. 6 Q. B. 155, 160.

Bramwell B. "It this were the case of a judgment obtained by reason of untrue statements contained in an affidavit in a foreign court where the procedure is contrary to natural justice, then we might refuse to give effect to that judgment.... If the proceedings be in accordance with the practice of the foreign court, but that practice is not in accordance with natural justice, this court will not allow itself to be concluded by them." In Crawley v. Isaacs (1867) 16 L. T R. 529, 531.

Mellish, L. J. "It was always held that a foreign judgment could be impeached at law as contrary to the principles of natural justice, as, for instance, on the ground of the defendant having had no notice of the foreign action, or not having been summoned or of want of jurisdiction, or that the judgment was fraudulently obtained." In Ochsenbein v. Papelier (1873) L. R. 8 Ch. 695, 700.

"Our common-law system consists in applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise." Justice James Parke in Mirehouse v. Rennell (1833) 1 Cl. & F. 527, 546.

A modern illustration of the application of the old doctrine of natural rights is made by Justice Farwell when in giving judgment on certain rights involved in underground water courses he remarks: "The foundation of the right as stated throughout all the cases is jus naturae [citations to a number of cases follow] ... I have come to the conclusion, therefore, that jus naturae is used in these cases as expressing that principle in English law which is akin to, if not derived from, the jus naturale of Roman law. English law is, of course, quite independent of Roman law, but the conception of aequum et bonum and the rights flowing therefrom which are included in the jus naturale underlie a great part of English common law; although it is not usual to find 'the law of nature' or 'natural law' referred to in so many words in English cases." Bradford Corporation v. Ferrand (1902) 2 Ch. 655, 661, 662. Cf. Lord Mansfield's reference to obligations of justice and equity in Moses v. Macferlen (1760) 2 Burr. 1005, 1012 and opinions of Baron Martin in Freeman v. Jeffries (1869) L. R. 4 Ex. 189, 199 and Justice Buller in Master v. Miller (1791) 4 T. R. 320, 342.

Justice Parker, referring to the custom that a mortgage on the real estate of a married woman might be executed by her husband without having been acknowledged by her, said "It is quite clear that for a custom to be good it must be reasonable or, at any rate, not unreasonable. The words 'reasonable or not reasonable' imply an appeal to some criterion higher than the mere rules or maxims embodied in the common law, for it is no objection to a custom that it is not in accordance with these rules or maxims.... A custom to be valid must be such that, in the opinion of a trained lawyer, it is consistent or, at any rate, not inconsistent, with those general principles which, quite apart from particular rule or maxims, lie at the root of our legal system.... 'Custom,' as it is put in Needier v. Bishop of Winchester (Hob. 220, 225) 'must not deprive the law of nature.' Lawyers of today do not refer to the law of nature as freely or confidently as lawyers did centuries ago, but, translated into modern phraseology, I think this means that a custom ... must be according to the principles of our common law." Johnson v. Clark (1908) 1 Ch. 303, 311, 312.

43. In British India the law of nature has been used as a device to aid in the introduction of English legal ideas The judges are instructed in various Indian provinces to act "according to justice, equity and good conscience." Pollock, Essays in the Law, p. 70 and Expansion of the Common Law, pp. 132 ff.

44. W. G Miller, The Law of Nature and Nations in Scotland (Edinburgh, 1896), p. 5.

45. The German Recht is never quite our "right" or quite our "law" says Maitland in his introduction to Political Theories of the Middle Ages by Otto Gierke, p. lxiii. Closely related to the German Recht is what is called by Ihering the Sittlichkeit, "the system of habitual or customary conduct, ethical rather than legal, which embraces all those obligations of the citizen which it is 'bad form' or 'not the thing' to disregard." See Lord Haldane, "Higher Nationality: A Study in Law and Ethics," American Bar Association Reports, XXXVIII (1913), 393. Though there is no word in English which exactly expresses the meaning of Sittlichkeit, it is sometimes translated as "social ethics."

46. "There is nothing in the Greek language exactly corresponding to the Latin jus. The Roman term cannot be translated by nomoV, which is mainly used for statutory law — lex. Nor is to dikaion an equivalent, for it signifies "the just." ... These phraseological peculiarities point to the highly important fact that the Greeks regarded law primarily as the embodiment of justice." Vinogradoff, Jurisprudence of the Greek City, p. 19.

47. Laurent, Principes du droit civil français, vol. I, sec. 2, also Baudry-Lacantinerie, Precis de droit civil, vol. I, sec. 1.

48. "Recht is 'right and law' — the law looked at not merely as courts enforce it, but also with reference to what the courts are seeking to attain through the judicial administration of justice." Pound, Law and Morals, pp. 84, 8s.

49. It may be observed that the German terms Recht and Naturrecht include only a portion of good conduct, the remainder being covered by Tugend, Sittlichkeit, and Moralität. In France, droit and droit naturel are opposed to moralité.

Sir Frederick Pollock speaks of the Continental schools of jurisprudence as either ethical or historical. "By the ethical school I mean ... those authors who throw their main strength on investigating the universal moral and social conditions of government and laws, and expounding what such government and laws are or ought to be, so far as determined by conformity to those conditions. This is the nearest account I can give in few words of what is implied in modern usage by the terms law of nature, droit naturel or Naturrecht." An Introduction to the History of the Science of Politics, p. 110.

50. "The Law of Nature," Law Quar. Rev., XI (April, 1926), 121.

51. "English lawyers are not, and never have been ready," says Professor Holdsworth, "to receive and use as the basis of their reasoning the theories of legal and political philosophers." Some Lessons from our Legal History (New York, 1928), p. 109.

52. Generalizations, often assumed and followed without any definite formulation, are likely to form the major premises of judicial reasoning. For some interesting examples of this type, cf. H. Rottschaefer, "Legal Theory and the Practice of the Law," Minnesota Law Review, X (April, 1926), 382. Mr. Rottschaefer notes that not only are such generalizations subsumed in much judicial thinking but similar generalizations serve as a background for those who criticize legal rules.


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