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Common Law Constitutionalism and the Oath of Governance: an Hieroglyphic of the Laws

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Common Law Constitutionalism and the Oath of Governance: an Hieroglyphic of the Laws Mississippi College Law Review Volume 28 Issue 1 Vol. 28 Iss. 1 Article 7 2009 Common Law Constitutionalism and the Oath of Governance: An Hieroglyphic of the Laws M. R. Kelly L. Follow this and additional works at: https://dc.law.mc.edu/lawreview Part of the Law Commons Custom Citation 28 Miss. C. L. Rev. 121 (2008-2009) This Article is brought to you for free and open access by MC Law Digital Commons. It has been accepted for inclusion in Mississippi College Law Review by an authorized editor of MC Law Digital Commons. For more information, please contact [email protected]. COMMON LAW CONSTITUTIONALISM AND THE OATH OF GOVERNANCE: "AN HIEROGLYPHIC OF THE LAWS"' M.R.L.L. Kelly 2 I. INTRODUCTION.................................................. 122 II. "COMMON LAW CONSTITUTIONALISM": THE ISSUES .......... 125 A. Crooked Cords........................................... 126 B. Lawyers and the "Common Law" ....................... 130 III. THE NATURE OF "THE COMMON LAw"........................ 131 A. Sir Matthew H ale ........................................ 131 B. Sir Edward Coke ........................................ 134 C. The definition of "common law"......................... 138 IV. "LEGAL" AND "CONSTITUTIONAL" HISTORY................. 141 A. The effect of the "professional"mindset.................. 141 V. THE IMPORTANCE OF ANGLO-SAXON LAW................... 144 A. Alfred the Great's Laws.................................. 148 B. The folcriht, The King's Peace and the Common law .... 152 C. William I and Continuity of the Laws ................... 158 D. The Continuity of the Law Continues .................... 160 VI. CONCLUSION .................................................... 165 VII. ANNEX: OATHS OF GOVERNANCE - SAMPLE TEXTS ........ .168 A. 732-736:Pontificalof Echberht, Archbishop of York ...... 168 1. Tria precepta or the Promissio Regis .............. 168 2. 7th-13th century Anglo-Saxon oath ................ 170 B. 11-12th Century Additions to the Oath (England) ........ 171 C. Liber Regalis 14th-16th century (England) .............. 172 1. Calvin's Case, 7 Co. REP., la, at 11b (K.B. 1610) ("a King's Crown is an hieroglyphic of the laws"). 2. Senior Lecturer in Law, Macquarie University, Sydney. This article originated as a paper presented to the Society of Legal Scholars (SLS) Conference 2006, Keele University, in the Legal His- tory Stream, which in turn drew upon ideas in a paper Common Law Constitutionalism-A Different View, presented to the Australian Legal Philosophy Conference in Auckland, on 24 June 2006. While the Auckland paper dealt with the ramifications of the ideas for the modern-day Parliament, Executive and Judiciary, this article (like the SLS paper) is primarily concerned with constitutional historical is- sues and the relevance of the Anglo-Saxon laws and the oath of governance in the context of "common law constitutionalism" as generally understood by modern scholars. 121 122 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 28:121 D. 1603-1685 Stuart Oath (England)-James VI and I ...... 177 JURAMENTUM REGIS JACOBI, 1603 ................... 177 E. 1689 William III and Mary I English Oath............. 178 F. 1953 Elizabeth II Oath (All Realms) .................. 179 I. INTRODUCTION Monarchs of England, and later of Great Britain, the United King- dom, the Empire, and of Commonwealth nations, have always been recog- nized by the people, and taken an oath of governance.' The fundamental principles of the oath have been to govern according to laws and customs; to judge with equity, justice and mercy; to maintain the laws of God, and to maintain the peace. So long as English law has existed, it has been in symbiotic relationship with the powers given by the oath. This Article ar- gues that the oath of governance is the well-spring of all power necessary and sufficient to govern; and that therefore, all law depends from it. In this context, the Article will investigate exactly what this common law is. This inquiry has become more pertinent with the development of the new the- ory, growing out of judicial review in the United Kingdom and the exercise of the judicial power, of "common law constitutionalism." Through an historical and constitutional analysis, this Article argues that the understanding of those scholars is fundamentally flawed in concen- trating their theoretical analysis on what they perceive to be the supremacy of the common law as articulated by the courts. It is argued that since all power to make law is dependant on the oath of governance, no supremacy can be given to one kind of law over another, and that indeed, "common law" as constitutionally understood, is not confined to judge-made law. Nor did the "common law" suddenly emerge fully formed, wise and armed, in the time of Henry II like Pallas Athene from the brow of Zeus. There had long been law common to the English from Anglo-Saxon times-the lack of consideration of the role Anglo-Saxon laws has played in the evolu- tion of the common law can be attributed, it is submitted, to the disjunction between "legal" history and "constitutional" history, and to a narrow pro- fessional mindset when considering the evolution of the law, often mis- informed as to the historical and constitutional circumstances within which it grew. While the debt to very many scholars will be obvious from the footnotes, particular tribute is paid here to the work of the late Patrick Wormald. 3. This is true of all persons said to be monarchs except Edward Plantagenet, son of Edward IV, and Edward of Windsor, son of George V; there is also some doubt as to whether Edward IV took the oath. If no oath was taken, then at law in my view, they were no monarch. After the English Corona- tion Oath Act, 1688, 1 Will. & Mary c. 6, (Eng.), and the Act of Settlement, 1701, 12 & 13 Will. 3, c. 2 (Eng.), statute also required the taking of the oath for a person to be monarch. For an historical and constitutional substantiation of this premise, see M.R.L.L. KELLY, KING AND CROWN : AN EXAMINA- TION OF THE LEGAL FOUNDATION OF THE BRITISH KING, unpublished Doctoral Dissertation, 1998, Macquarie University Library. For a discussion in the Australian context, see MRLL Kelly, The Queen of the Commonwealth of Australia, 16(1) AUSTRALASIAN PARLIAMENTARY REVIEW, 150-175 (2001). 2009] COMMON LAW CONSTITUTIONALISM 123 In earlier centuries, legal scholars saw a clear connection be- tween the monarch's oath, and all jurisdiction to make laws, and to ensure justice, peace, liberty and equity-Bracton, writing in the thirteen century in The Laws and Customs of England, immediately after setting out the oath of govern- ance of the king, (Henry III)4 states: To this end is a king made and chosen, that he do justice to all men.' . The king, since he is the vicar of God on earth, must distinguish ius from injuria, equity from iniquity.6 Let him, therefore, temper his power by law, which is the bridle of power, that he may live according to the laws, for the law of mankind has decreed that his own laws bind the lawgiver, and else- where in the same source, it is a saying worthy of the maj- esty of a ruler that the prince acknowledge himself bound by the laws.' Nothing is more fitting for a sovereign than to live by the laws, nor is there any greater sovereignty than to govern according to law, and he ought properly to yield to the law what the law has bestowed upon him, for the law makes him king.' Elsewhere, he wrote: Now we must turn to liberties [and see] who can grant liber- ties,. Who then? It is clear that the lord king has all digni- ties, It is the lord king himself who has ordinary jurisdiction and power over all who are within his realm.' . For todo justice, judgment and preserve the peace is the crown.10 and again: The king has no equal within his realm, [Subjects cannot be the equals of the ruler, because he would thereby lose his 4. For samples of the oaths of governance see infra Part VII, Annex. 5. 2 BRACTON ON THE LAWS AND CUSTOMS OF ENGLAND 309 (GEORGE E. WOODBINE ed., SAMUEL E. THORNE trans., (Harvard College ed. 1977) (1968) [hereinafter BRACTON] ("Ad hoc autem creatus est rex et electus, ut iustitiam faciat universes"). While the attribution of the work to Bracton is of considerable antiquity, it now seems that the bulk of the work was written in the 1220s and 1230s by persons other than Bracton himself. It seems to have been edited and partially updated later in the late 1230s, with various additions being made to it between that time and the 1250s. The last owner of the original manuscript and the author of the later additions was probably Bracton-from Harvard Law School Library, http://hlsl5.law.harvard.edulbracton/ (31 August, 2006) . 6. Id. at 2: 305 ("Separare autem debet rex cum sit dei vicarius in terra ius ab iniuria,cequam ab iniquo"). 7. Id. at 2: 305-06. 8. Id. at 2: 306 ("Item nihil tam proprium est imperii quam legibus vivere, et maius imperio est legibus submittere principatum,et merito debet retribuere legi quod lex tribuit ei, facit enim lex quod ipse sit rex"). 9. Id. at 2: 166 ("Of liberties and who may grant liberties and which belong to the king"). 10. Id. at 2: 167 ("Est enim corona facere iustitiam et iudicium, et tenere pacem, et sine quibus corona consistere"). 124 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 28:121 rule, since equal can have no authority over equal.] nor a fortiori a superior, because he would then be subject to those subjected to him. The king must not be under man but under God and under 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 where will rules rather than lex.11 Blackstone in the eighteenth century noted that the king is "the foun- tain of justice and general conservator of the peace of the kingdom,"1 2 a sentiment with which Sir Edward Coke agreed, going so far as to say: In respect whereof [a quotation from Bracton] one saith, That Corona est quasi cor ornans, cujus ornamenta sunt mis- ericordiaetjusticia [(the crown) is, as it were, cor ornans (an ornamenting heart), the ornaments whereof are mercy and justice].
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