Common Law, the Constitution and Christianity

An essay by Anna McClelland
(All that follows is inspired by the wisdom and remarkable writings of Leslie Blake, with the guidance and patient encouragement of Ian Murdoch.)

The British Constitution

The word ‘constitution’ comes originally from the Latin ‘constituere’, ‘com’ is ‘together’, ‘statuere’ carries the meaning of ‘to cause to stand firm’, so agreeing together, establishing firmly. This is Edmund Burke’s description of the British Constitution: ‘It is a constitution made by what is ten thousand times better than choice; it is made by the peculiar circumstances, occasions, tempers, dispositions, and moral, civil and social habitudes of the people, which disclose themselves only in a long space of time; it is a vestment which accommodates itself to the body.’[1] And the constitution of the people of this country is to love freedom, freedom under the law.

Most nations have a written Constitution, not so the British, a matter of considerable bafflement to the foreigner seeking to understand our law, of admiration to the more perceptive.

Long ago the Katha Upanishad created that vivid image of government, government of individual or of nation:[2]

“Self rides in the chariot of the body, intellect the firm-footed charioteer, discursive mind the reins. Senses are the horses, objects of desire the reins. When Self is joined to body, mind, sense, none but He enjoys. When a man lack steadiness, unable to control his mind, his senses are unmanageable horses. But if he control his mind, a steady man, they are manageable horses.”

Britain’s unwritten Constitution is drawn from four sources: statute law, common law, parliamentary conventions, and works of authority. Let’s apply the analogy of the chariot, a description of sovereignty, or self-rule, as the pattern for government. Self is the inner spirit, ‘the divinity’ as Prince Charles describes it, unchanging, unmoving, always true; intellect, ‘Sovereign Reason’ according to Shakespeare, lightly manages the reins; mind, the winged messenger, responding to the calls of the senses will either lead us a wild dance, or under the control of reason lead back to truth.

So how does this become the pattern of government? We have a Coronation. Though too few people are familiar with it, the Coronation of the Sovereign is at once the bedrock and pinnacle of this nation. The original ceremony of investiture was devised in 973 by Dunstan, Archbishop of Canterbury, for Edgar, king from AD 959 to 975. With occasional changes these have been the vows by which the sovereign’s life has been consecrated to the nation under God for more than a thousand years.

At the great and mysterious ceremony in Westminster Abbey – chosen coronation site since both King Harold and William of Normandy were crowned there – the Archbishop of Canterbury, flanked by all the great officers of state, presents the Queen, asking the People whether they are willing to do their homage and service. ‘The People signify their willingness and joy, by loud and repeated acclamations, all with one voice crying out: “God Save Queen Elizabeth’. Then the trumpets sound.

The Queen has already, in the presence of both Houses of Parliament, signed the Declaration of Accession prescribed by Act of Parliament. Now follows the Coronation Oath in the form of a series of questions put to her by the Archbishop. Among her responses are promises ‘to …cause Law and Justice, in Mercy, to be executed’ in all her judgments; and to the utmost of her power to ‘maintain the Laws of God and the true profession of the Gospel.’

Kneeling before the altar, the Queen kisses the Book and signs the Oath.

The Queen being again seated in King Edward’s Chair (1296), this same Book is then brought to her by the Moderator of the General Assembly of the Church of Scotland, the Archbishop saying the following words: ‘Our Gracious Queen: to keep your Majesty ever mindful of the Law and the Gospel of God as the Rule for the whole life and government of Christian Princes, we present you with this Book, the most valuable thing that this world affords’. The Moderator continues: ‘Here is Wisdom; This is the royal Law; These are the lively Oracles of God.’

Then begins the Communion service, during which the Archbishop anoints the Queen with holy Oil, as Solomon was anointed by Zadok the priest, consecrating and blessing her. She is presented with the Sword of State to ‘do justice, stop the growth of iniquity, protect the Holy Church of God, help and defend widows and orphans, restore the things that are gone to decay, maintain the things that are restored, punish and reform what is amiss, and confirm what is in good order…and so faithfully serve our Lord Jesus Christ…’.

The Archbishop presents the symbols of majesty, among them: the bracelets of sincerity and wisdom; the Imperial Robe, robe of righteousness and garment of salvation; the Orb set under the Cross, as the whole world is subject to the Power and Empire of Christ; the Royal Sceptre, the ensign of kingly power and justice. Delivering to her the Rod with the Dove, the Rod of equity and mercy, he says, ‘Be so merciful that you be not too remiss; so execute justice that you forget not mercy. Punish the wicked, protect and cherish the just, and lead your people in the way wherein they should go’.

Finally, the Queen is lifted up into her throne ‘by the Archbishop and Bishops and other Peers of the kingdom’, surrounded by all the Great Officers, and the Archbishop says: ‘Stand firm and hold fast from henceforth the seat and state of royal and imperial dignity, which is this day delivered unto you, in the Name and by the Authority of Almighty God, and by the hands of us the Bishops and servants of God, though unworthy…’.

It was only when I began to look at the British Constitution that I began to understand how fundamental to it is the role of the Church. ‘The Crown is held on condition that the holder should be in communion with the Church of England as by law established.’ Like the centurion who recognised that he was ‘under authority’, the Queen may never forget by whose authority she rules. And through the entire system of law and government runs the ‘sacred and golden thread of reason’.

In ‘Thought for the Day, 10 May 2010’, explaining the British Constitution! Clifford Longley said: ‘All that Her Majesty the Queen swore before God to do in 1953, she swore on behalf of all those ministers of the Crown who govern in her name, and all those judges who dispense justice in her name. It would be an excellent idea if each new minister or judge, on being sworn in, was given a copy of the Coronation Service so they could see what the Queen had committed them to.’

‘Self rides in the chariot,’ Leslie Blake explains: ‘…the Monarch is the firm- footed charioteer, exercising, through Parliament, sovereignty under God; …Parliament is the reins, communicating information as to the state of the people, and…the people themselves are the horses, driving along the roads laid down…by the ideas and opinions of the past.’ So the British Constitution lives through the Queen in Parliament acting through her ministers and judges, all of them her servants, fluid, evolving all the time. At the highest level, the nation can only act through the Queen. She gives power to act. Acts of Parliament begin: ‘Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same as follows…’.

The Queen has described her role as, ‘not doing, but being’. She is the still centre, perceptive, wise, ever watchful for the best interests of her peoples. Bagehot, writing on the English Constitution in 1867, tells us that: ‘To put the matter shortly, the sovereign has, under a constitutional monarchy such as ours, three rights – the right to be consulted, the right to encourage, the right to warn. He would say to his Minister: “Whatever you think best shall have my full and effectual support. But you will observe that for this reason and that reason what you propose to do is bad; for this reason and that reason what you do not propose is better. I do not oppose, it is my duty not to oppose; but observe that I warn.” It might be that the Prime Minister might still go his own way. ‘But’, says Bagehot, ‘his mind would be troubled.

So where does all this leave the original question? Do we live in a Christian country? What has become of the beliefs rooted in Judaism, developed by Jesus into a way of life, and, according to some legends, brought to the Britons in the second century in response to a letter from Lucius, their king?[3] Over the intervening centuries, through persecutions, invasions and reformations, the light of Christian teaching has continued to shine, illuminating our law and language.

‘…the majority of the people of England, far from thinking a religious national establishment unlawful, hardly think it lawful to be without one.

This principle runs through the whole system of their polity. They do not consider Church establishment as convenient, but as essential to their state… They consider it as the foundation of their whole Constitution with which, and with every
part of which, it holds an indissoluble union. Church and State are ideas inseparable their minds, and scarcely is the one ever mentioned without mentioning the other.’said Edmund Burke when reflecting on the Revolution in France in 1790.[4]

That was more than two centuries ago. What about now? A few more facts.

In 1928 in Paisley in Renfrewshire Mrs Donoghue drank a bottle of ginger beer paid for by her friend. In the bottle was a dead snail. Mrs Donoghue became ill and had to be treated in hospital. She sued the manufacturer of the ginger beer, a Mr Stevenson, but as no contract existed between them she failed at first. After three hearings in the Court of Session in Edinburgh, the case went to the House of Lords where it was heard by five Law Lords. Referring to the liability for negligence, Lord Atkin said that the rule that you are to love your neighbour becomes in law, you must not injure your neighbour. Who, then, in law, is my neighbour? Eventually in 1932, the Lords concluded that a manufacturer has a duty of care to the ultimate consumer. This landmark court decision, based directly on Jesus’s second great commandment, laid the foundation of the modern law of negligence, an evolutionary step in the common law.

On 30 October 2019, the 80th Chaplain to the Speaker of the House of Commons was appointed. The Reverend Canon Tricia Hillas daily leads Members in prayers before every session of the House. As the second woman Speaker’s Chaplain from a BAME background, she has a pivotal role at Westminster providing pastoral care for MPs and staff.

The Church of England is responsible for an unparalleled wealth of historic buildings: some 16,000 churches and 42 cathedrals, survivors of war and peace, famine and abundance, pestilence and scientific discovery. Open the ancient door of any of these sacred buildings and you step into in an almost tangible atmosphere of peace, the subtle, irreplaceable accretion of centuries of prayer and dedication. A healing place to find oneself.

Finally, a recent poll shows that a result of the difficulties of separation forced on us by the coronavirus pandemic is that one in four people has turned to online church services, compared with some 6% previously. Shrewsbury Catholic
Cathedral’s online congregation has increased by 1000%, more than ever in its history. In times of crisis some profound memory may bring to mind the consolation offered by Jesus : Peace I leave with you, my peace I give unto you…Let not your heart be troubled, neither let it be afraid. [5]

Whether we are aware of it or not, the Christian teaching has, over centuries of practice and meditation by the countless millions of our forebears, become inextricably woven into our everyday life, enriching our law and our language, the foundation of our civilisation.

The Common Law

  • What is the Common Law? If ’common’ it must be based on fundamental principles common to all, on the knowledge that every human being seeks freedom and happiness, on reason and logic, and on the observance of duties of each towards each other. What becomes clear is that what we call the Common Law is an expression of the law that is integral to our nature. Descriptions of this law are found in all the scriptures. We have heard how the principles are enunciated by the monarch at the Coronation Service, binding the judges in service. The judges are Plato’s ‘ministers’ who, using their profound learning and guided by precedent, in the light of reason and logic, ‘discover’ the law in each particular case.
  • Alfred the Great recognised the love of liberty, and respect for duty and the law characteristic of the Anglo-Saxons. In about 890 in his Book of Dooms, with the advice of his wise men, he collected together the best principles from the laws of Kent, Wessex and Mercia. Sir Winston Churchill said of King Alfred: ‘We discern across the centuries a commanding and versatile intelligence wielding with equal force the sword of war and of justice; using in defence arms and policy; cherishing religion, learning and art in the midst of adversity and danger; welding together a nation and seeking always across the feuds and hatreds of the age a peace which would smile upon the land.’
  • On Christmas Day 1066, William of Normandy was crowned King. Rather than bringing with him a new system of law, William confirmed the English laws: ‘This I will and order that all shall have and hold the law of king Edward as to lands and all other things with these additions which I have established for the good of the English people.’ The Normans themselves were no great lawmakers, they ruled by force rather than by law, and it was no doubt prudent, in the face of the huge shock of their conquest, to seem to maintain the laws to which the enslaved people were accustomed.
  • On his accession in 1100 Henry I again confirmed the English law: ‘I give you back King Edward’s law with those improvements whereby my father improved it by the counsel of his barons.’
  • By the time that Henry II came to the throne in 1154 the power of the church had greatly increased as the state became feeble. Henry’s great task was to draw a line between the temporal and spiritual jurisdictions. His next important step was to take under royal protection the possession of all freeholders, followed in 1176 by a great reform of the criminal law. The king began to send royal judges out from town to town to hear complaints and give reasoned judgments, so building up a body of common law which people could trust.
  • Everyone remembers King John’s reign for Magna Carta in 1215. The result of the king’s great quarrels, first with the church then with the barons, was to unite the nation against him. To make peace between the king and the rebellious barons, the Archbishop of Canterbury, Stephen Langton, drafted the Great Charter of Liberties and the king was forced to sign. Two of its Chapters are of lasting importance:
    39. No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgement of his peers or by the law of the land.
    40. To no one will we sell, to no one will we deny, or delay, right or justice.
  • Out of all this change and growth came the great law book on the Laws and Customs of England, written by Henry de Bracton, himself a cleric and jurist. What Bracton wrote has echoed down the ages, cited again and again: ‘The king must not be under man but under God and the law, because law makes the king. Let him therefore bestow upon the law what the law bestows upon him, namely, rule and power, for there is no rex (king) where will rules rather than lex (law)… For he is the vicar of God.’
  • Sir Edward Coke, Chief Justice in the time of Elizabeth I, said: ‘…if all the reason that is dispersed into so many several heads were united into one, yet could he not make such a law as the law in England is; because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men, and by long experience grown to such a perfection for the government of this realm, as the old rule may be justly verified of it… No man out of his own private reason ought to be wiser than the law, which is the perfection of reason.’ This did not sit well with King James who believed that his right to kingship was ordained by God, and that he could sit as a judge himself. Coke quoted Bracton “Rex non debet esse sub homine sed sub deo et lege”. (The king must not be under man but under God and the law…).
  • The Petition of Right framed in 1628 to curb Charles I’s excesses by establishing rules governing kingship, was subsequently transformed into the Bill of Rights in 1689, when William and Mary came to the throne. It remains one of the most important constitutional acts in English history. It was the model for the French Declaration of the Rights of Man and the Citizen, the United Nations Universal Declaration of Human Rights in 1948, and the European Convention on Human Rights in 1998.

The Historical Perspective

This is the briefest of sketches of how the Common Law of England came into being and has grown since earliest recorded times. Founded in Christian teaching and a profound love of freedom under the law, the Common Law is not common at all, but unique. Over the centuries succeeding monarchs – Anglo-Saxon, Danish, Norman, English, Scottish, German – and their judiciary have developed a strong body of custom and precedent, bearing always in mind justice and equality under the law. The strength of this Common Law has withstood the turmoil of civil wars, the sometimes turbulent evolution of Parliament, establishment of a new religion under Henry VIII, battles over kingship and the execution of Charles I. Though little known these days, the Common Law remains the backbone of the country. The fundamentals – the right to a fair trial before an impartial judge and, in criminal cases in particular, by a jury of your peers – are not dependent on parliament but on precedent, hallowed by antiquity[6].

The English Common Law, the greatest gift of this island nation, has inspired legal systems all over the world, underpinning justice and liberty wherever it is practiced.

19 August 2017 and 6 May 2020

1. Speech on Reform of Representation of the Commons in Parliament, Edmund Burke (1782). VII, 91-103

2. The Ten Principal Upanishads, put into English by Shree Purohit Swami and W. B. Yeats, (Katha-Upanishad) Bk III, p.32

3. A History of the English Church and People, Bede (731), Penguin Classics, 1968, Ch. 4, p.42 4 Reflections on the Revolution in France, Edmund Burke, 1790, III, 350-69
said Edmund Burke when reflecting on the Revolution in France in 1790.

4. Reflections on the Revolution in France, Edmund Burke, 1790, III, 350-69

5. King James Bible, St. John, ch.15, v.27

6. Law, Liberty and the Constitution: A Brief History of the Common Law, Harry Potter (Boydell Press 2015), p.4.