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Democracy defined : regarding Australians and their constitutional protections

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Created: Tuesday, 30 August 2011 14:48

Written by Kenn d'Oudney

REFERENCES CONFIRMING WHAT COMMON LAW IS.
Here are some references confirming the common law is legem terræ and vice versa.

Sir Matthew Hale: "The common law is sometimes called, by way of eminence, lex terræ, as in the statute of Magna Carta, chap. 29, where certainly the common law is principally intended by those words, aut per legem terræ; as appears by the exposition thereof in several subsequent statutes; and particularly in the statute of 28 Edward III, chap. 3, which is but an exposition and explanation of that statute. Sometimes it is called lex Angliæ, as in the statute of Merton, cap. 9, Nolumus leges Angliæ mutari,' etc. (We will that the laws of England be not changed.) Sometimes it is called lex et consuetudo regni (the law and custom of the kingdom); as in all commissions of oyer and terminer; and in the statutes of 18 Edward I, and de quo warranto, and divers others. But most commonly it is called the Common Law, or the Common Law of England; as in the statute Articuli super Chartas, chap. 15, in the statute 25 Edward III, chap. 5 (4) and infinite more records and statutes."
1 Hale’s History of the Common Law, p. 128.

Crabbe: "It is admitted, on all hands, that it (Magna Carta) contains nothing but what was confirmatory of the common law, and the ancient usages of the realm, and is, properly speaking, only an enlargement of the charter of Henry I, and his successors."
Crabbe’s History of the English Law, p. 127.

Blackstone: "It is agreed by all our historians that the Great Charter of King John was, for the most part, compiled from the ancient customs of the realm, or the laws of Edward the Confessor; by which they mean the old common law, which was established under our Saxon princes."
Blackstone’s Introduction to the (Great) Charters; Blackstone’s Law Tracts, p. 289.

Coke (a High Court judge): "The common law is the most general and ancient law of the realm. The common law appeareth in the statute of Magna Carta, and other ancient statutes (which for the most part are affirmations of the common law) in the original writs, in judicial records, and in our books of terms and years."
1 Coke’s Institutes, p. 115.

Coke: "It (Magna Carta) was for the most part declaratory of the principal grounds of the fundamental laws of England. They (Magna Carta and Carta de Foresta) were, for the most part, but declarations of the ancient common laws of England, to the observation and keeping whereof the king (the government) was bound and sworn."
Preface to 2 Coke’s Institutes, p. 3.

Nota Bene: To judge the law, i.e., its fairness, validity, applicability, and legal meaning (interpretation), the Jurors are the sole legal judges prescribed by constitution and common law. For example, see the following from Gilbert:

"This position" (that the matter of law was decided by the justices [judges], but the matter of fact by the pares [peers, i.e., jurors]) "is wholly incompatible with the common law, for the Jurata [jury] were the sole judges both of the law and the fact."
Gilbert’s History of the Common Pleas, note, p. 70; and,

"The Annotist says, that this [i.e., whether jurors reflect upon the question of law] is indeed a maxim in the Civil-Law Jurisprudence, but it does not bind an English jury, for by the common law of the land the jury are judges as well as the matter of law, as of the fact, with this difference only, that the judge on the bench is to give them no assistance in determining the matter of fact, but if they have any doubt among themselves relating to matter of law, they may then request him to explain it to them, which when he hath done, and they are thus become well informed, they, and they only, become competent judges of the matter of law. And this is the province of the judge on the bench, namely, to show, or teach the law, but not to take upon him the trial of the delinquent, either in matter of fact or in matter of law."
Gilbert’s History of the Common Pleas, p. 57.

See TRIAL BY JURY: Its History, True Purpose and Modern Relevance, by d’Oudney & Spooner, ISBN 9781902848723.
See the constitutional, historical and law texts of Blackstone, Crabbe, Palgrave, Kelham, Mackintosh, Millar, Coke, Gilbert, Hume, Turner, Hallam, Stewart, Hale, et al.