Common Law

Last updated on: September 6, 2017 at 10:49 pm by Peter Leithart

Common Law 2017-09-06T22:49:19+06:00 Peter Leithart

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Rosenstock-Huessy emphasizes the importance of the Chancery for the functioning of English Common Law and the integration of England into the realm of Christendom. Chancery was instituted as a counter-balance, in a sense, to Parliament. During the middle ages, Parliament was dangerous, expensive, and burdensome for the MPs to attend. They knew that when they assembled they would be asked for tax funds, and the compensation was that they could use the opportunity to present local grievances to the chancellor and King. The Chancellor was charged with investigating and correcting any abuses that might arise at Parliament.

For the Normans, a candidate for chancellor had to meet two criteria: He could not be a local lord, and he had to know the laws of the land. Detached from local interests, he could pursue the interests of the whole nation, and enforce justice in a more detached manner. The chancellor was a bishop, but still had to know the laws and customs of England, not just canon law. According to Rosenstock-Huessy, “The English chancellor of a King who had other interests outside the country, in France or Ireland for example, was the guarantee that English customs would be respected by the Realm. He was the Keeper of the King’s Conscience in English affairs. This great name, derived from his duty of hearing the King’s confession, was more than a name. Ordinarily, the chancellor kept the Great Seal of the Kingdom. Nothing could be enacted, therefore, without his co-operation. The will of the King became visible only under the Great Seal of the English Kingdom, administered by the chancellor.” Chancery provided a zone of international legal wisdom within the English government; the “outside” set up shop on the “inside” producing a dialectic and dialogue that was productive of freedom.

Against this background, Rosenstock-Huessy asserts that “the chancellor embodied an order of things in which new ideas of righteousness incessantly made their way from the sanctuaries of the Church into the nation. Chancery created the pride of Anglo-Saxon public life, the bulwark of England and America, the famous and mysterious Common Law.”

It’s crucial, he claims, to recognize that Common Law is not, as often thought today, a national creation. Common Law was seen throughout the seventeenth century as a product of Christianity, grounded on the Old and New Testaments. But it developed as various institutions and authorities commingled. Common law was “the product of a union between universal Christian laws and local customs; and the union was legalized by the office of the chancellor.” Prior to Henry VIII, Common Law was more “process” than a fact or set of rules, the “product of the mutual permeation of the Canon Law of the Church, the Roman Law of the Franco-Roman Empire and the Norman law.” Through the mediation of Chancery, “anything could become and be made ‘common law.’”

Henry VIII wrecked Common Law in this sense, precisely by turning a “vivifying process of give and take” into a systematized, “stable order” of laws. He also wrecked it by reversing the relationship between King and church: “equity, Christianity, progress, had always worked through the keeper of the King’s conscience, the chancellor. The quality of mercy was not strained so long as the chancellor could constantly promote change; his reforms and mitigations of strict law were based on equity, Canon Law, and all the ecclesiastical recommendations for a better social order.” This combination of mercy, equity, and Canon law flowed from Chancery to the king. Henry reversed the direction of flow by making himself the head of the church. Henry claimed that the King himself as “the source of universal law.” This meant that the “King’s conscience” was no longer a public institution, embodied in Chancery. It could not be as soon as counselors no longer looked to the church for legal principles. By the time of James I, the king’s realm encompassed several churches (Church of England, Church of Scotland, etc), a direct reversal of the medieval arrangement in which the universal church encompassed many political units and exceeded them all.

Thomas More, Rosenstock-Huessy says, was defending the genuine liberties of Englishment when he opposed Henry’s attempt to control the church and Chancery. He was the last true chancellor of the realm; after him the chancellor’s duties were reduced significantly, as the King’s authority grew. More “saw that the coincidence of King and Supreme Head of the Church deprived the courts of any chance of acting as they had acted before.” He recognized that Common Law had “been, not an established reality, but a campaign of action by the King’s conscience, against the interests of the King and the other powers.” And he saw that Henry was eliminating this campaign, so that “after 1535 the King of England had no organized conscience.” Henry thus brought a major breach in the tradition of Common Law, but one that modern students of Common Law fail or refuse to recognize.

In the English Civil war, the gentry avenged More, but did so without eliminating Henry’s victory, the supremacy of the king over the church. The gentry of the English revolution was attempting a restoration of the liberties of Englishmen, the restoration of the common law. This language of “restoration” assumed that there had been an interruption in the Common Law. The Puritans attempted this restoration by reaching back to old forms and old statutes, and thus established the propensity of the English to “make herself old by artificial means.” Being old became a weapon in the hands of the gentry, England’s new class.

But the “restored” Common Law was very different from what preceded it. The Puritans evaded the question of whether the Common Law came from church or nation, and, cut off from the Papacy and Canon Law, put Common Law “into the hands of English judges and lawyers and juries.” Yet, they attempted to build in safeguards against the codification and fixing of Common Law, and the chief safeguard was an effort to rescue Common Law from the King. Where the King and his counselors would attempt to “bring order out of the chaos of precedents,” the Puritans said “Let us intrench ourselves behind this chaos of precedents.” The result ultimately was that the “power of the judiciary became intimately enmeshed with the interests and ways of life of the aristocracy,” as the “Inns of courts became self-perpetuating bodies with the right of co-operation.” This was a barrier to the king’s power, but not a real protection of general liberties. The Restoration of the Common Law ended up establishing the aristocracy.

With the rise in the importance of the aristocracy as the protector of Common Law, economics took on a new importance. Rosenstock-Huessy says that no country waxes as lyrical about money as England. Every major political issue is a budget question, and a taxc question. One of the effects of this shift was the elimination of the Chancellor in his older role, as he became merely a Treasury official. And this made the restoration of Common Law really impossible: “That no full restoration of the Common Law was planned is shown by the development of the chancellorship. It was not restored to its full power. In the search for a check on the King’s Conscience, the Puritans abolished the royal courts, like the Starchamber, and the whole jurisdiction over moral which these courts had inherited from the ecclesiastical courts. During the Puritan Restoration ‘keepers of the liberties of England’ were appointed for a short time,

obviously as a parallel to the old controlling keeper of the King’s Conscience. During the Restoration the most shocking moral misbehavior could not be punished because no courts existed for such offences.” Parliament eventually inherited the “power in spiritual matters by which the Chancellor had restrained the King’s arbitrary power.”

The Puritan Revolution, with its emphasis on precedent and particular, has “stamped out all feeling for system and economy of thought” among the English, as well as inculcating the privilege of the old. The worship of the “old,” he notes, is a product of relatively recent times, the seventeenth century.

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