In the 1760s
William Blackstone
Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family ...
described the Fundamental Laws of England in ''
Commentaries on the Laws of England, Book the First – Chapter the First : Of the Absolute Rights of Individuals'' as "the absolute
rights of every Englishman" and traced their basis and evolution as follows:
*''
Magna Carta'' between
King John and his barons in 1215
*confirmation of ''Magna Carta'' by
King Henry III to
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...
in 1216, 1217, and 1225
*''Confirmatio Cartarum'' (
Confirmation of Charters) 1253
*a multitude of subsequent corroborating statutes, from
King Edward I
Edward I (17/18 June 1239 – 7 July 1307), also known as Edward Longshanks and the Hammer of the Scots, was King of England and Lord of Ireland from 1272 to 1307. Concurrently, he ruled the duchies of Aquitaine and Gascony as a vassal ...
to
King Henry IV
*the
Petition of Right
The Petition of Right, passed on 7 June 1628, is an English constitutional document setting out specific individual protections against the state, reportedly of equal value to Magna Carta and the Bill of Rights 1689. It was part of a wider ...
, a parliamentary declaration in 1628 of the liberties of the people, assented to by
King Charles I
*more concessions made by King Charles I to his Parliament
*many laws, particularly the
Habeas Corpus Act 1679
The Habeas Corpus Act 1679 is an Act of Parliament in England (31 Cha. 2 c. 2) during the reign of King Charles II. It was passed by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of '' ...
, passed under
King Charles II
*the
Bill of Rights 1689
The Bill of Rights 1689 is an Act of the Parliament of England, which sets out certain basic civil rights and clarifies who would be next to inherit the Crown, and is seen as a crucial landmark in English constitutional law. It received Royal ...
assented to by
King William III
William III (William Henry; ; 4 November 16508 March 1702), also widely known as William of Orange, was the sovereign Prince of Orange from birth, Stadtholder of Holland, Zeeland, Utrecht, Guelders, and Overijssel in the Dutch Republic from the ...
and
Queen Mary II
Mary II (30 April 166228 December 1694) was Queen of England, Scotland, and Ireland, co-reigning with her husband, William III & II, from 1689 until her death in 1694.
Mary was the eldest daughter of James, Duke of York, and his first wife ...
*the
Act of Settlement 1701
Blackstone's list was an 18th-century constitutional view, and the
Union of the Crowns
The Union of the Crowns ( gd, Aonadh nan Crùintean; sco, Union o the Crouns) was the accession of James VI of Scotland to the throne of the Kingdom of England as James I and the practical unification of some functions (such as overseas dip ...
had occurred in 1603 between
Kingdom of England
The Kingdom of England (, ) was a sovereign state on the island of Great Britain from 12 July 927, when it emerged from various History of Anglo-Saxon England, Anglo-Saxon kingdoms, until 1 May 1707, when it united with Kingdom of Scotland, ...
and
Kingdom of Scotland
The Kingdom of Scotland (; , ) was a sovereign state in northwest Europe traditionally said to have been founded in 843. Its territories expanded and shrank, but it came to occupy the northern third of the island of Great Britain, sharing a l ...
, and the 1628 Petition of Right had already referred to the ''fundamental laws'' being violated.
Recorded usage
The phrase ''Fundamental Laws of England'' has often been used by those opposing particular legislative, royal or religious initiatives.
For example, in 1641 the
House of Commons of England protested that the
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
was "subverting the fundamental laws of England and Ireland", part of a campaign ending in 1649 with the
beheading of King Charles I.
Subsequently, the phrase was used by the
Leveller
The Levellers were a political movement active during the Wars of the Three Kingdoms who were committed to popular sovereignty, extended suffrage, equality before the law and religious tolerance. The hallmark of Leveller thought was its popul ...
Lt. Col.
John Lilburne
John Lilburne (c. 161429 August 1657), also known as Freeborn John, was an English political Leveller before, during and after the English Civil Wars 1642–1650. He coined the term "'' freeborn rights''", defining them as rights with which eve ...
(later to become a
Quaker) accusing the
House of Lords
The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminste ...
and House of Commons of tyranny in ''The Just Defence of John Lilburne, Against Such as charge him with Turbulency of Spirit''. Lilburne also wrote a 1646 book called ''The Legal Fundamental Liberties of the People of England, asserted, revived and vindicated''.
Also in 1646, the
General Court of Massachusetts
The Massachusetts General Court (formally styled the General Court of Massachusetts) is the state legislature of the Commonwealth of Massachusetts. The name "General Court" is a hold-over from the earliest days of the Massachusetts Bay Colony, w ...
referred to the Fundamental Laws of England in regard to ''Magna Carta'', while defending their representative and legislative autonomy in their address to the
Long Parliament
The Long Parliament was an English Parliament which lasted from 1640 until 1660. It followed the fiasco of the Short Parliament, which had convened for only three weeks during the spring of 1640 after an 11-year parliamentary absence. In Septem ...
.
In his 1670 trial,
William Penn
William Penn ( – ) was an English writer and religious thinker belonging to the Religious Society of Friends (Quakers), and founder of the Province of Pennsylvania, a North American colony of England. He was an early advocate of democracy a ...
called upon the phrase many times, including "However, this I leave upon your Consciences, who are of the Jury (and my sole Judges) that if these Ancient Fundamental Laws, which relate to Liberty and Property, and (are not limited to particular Persuasions in Matters of Religion) must not be indispensably maintained and observed, Who can say he hath Right to the Coat upon his Back?" The aftermath of the trial established
Bushell's Case, preventing a jury from being fined for its verdict.
In the 1774 pamphlet
American Claim of Rights, South Carolina's
Chief Justice William Drayton wrote
Other famous subscribers to the phrase include
Lord Coke (1522–1634),
Emerich de Vattel
Emer (Emmerich) de Vattel ( 25 April 171428 December 1767) was an international lawyer. He was born in Couvet in the Principality of Neuchâtel (now a canton part of Switzerland but part of Prussia at the time) in 1714 and died in 1767. He was l ...
(1714–1767), and
Samuel Adams
Samuel Adams ( – October 2, 1803) was an American statesman, political philosopher, and a Founding Father of the United States. He was a politician in colonial Massachusetts, a leader of the movement that became the American Revolution, an ...
(1722–1803).
Unwritten history
Locke's view in ''
Two Treatises of Government
''Two Treatises of Government'' (or ''Two Treatises of Government: In the Former, The False Principles, and Foundation of Sir Robert Filmer, and His Followers, Are Detected and Overthrown. The Latter Is an Essay Concerning The True Original, ...
'' (1690) was "that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions". This philosophy was in keeping with the view that the Fundamental Laws predated ''Magna Carta'' in both
custom
Custom, customary, or consuetudinary may refer to:
Traditions, laws, and religion
* Convention (norm), a set of agreed, stipulated or generally accepted rules, norms, standards or criteria, often taking the form of a custom
* Norm (social), a r ...
and
natural law
Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
. Influenced by Locke, the 1776
United States Declaration of Independence
The United States Declaration of Independence, formally The unanimous Declaration of the thirteen States of America, is the pronouncement and founding document adopted by the Second Continental Congress meeting at Pennsylvania State House ( ...
stated: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
For those who believed that the Fundamental Laws of England predated ''Magna Carta'', there was debate about whether they arose from
time immemorial
Time immemorial ( la, Ab immemorabili) is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record". The phrase is used in legally significant contexts as well as ...
, were somehow immanent to society, from post-
Roman
Roman or Romans most often refers to:
*Rome, the capital city of Italy
*Ancient Rome, Roman civilization from 8th century BC to 5th century AD
*Roman people, the people of ancient Rome
*'' Epistle to the Romans'', shortened to ''Romans'', a lette ...
Saxon times, or from various combinations of these and other origins.
20th century and later
In ''
MacCormick v. Lord Advocate'' (1953), an action over the legitimacy of the numeric
Style of the British Sovereign, asserting only the style
Elizabeth I for Elizabeth II would only carry legal authority in Scotland
Lord President Cooper
Thomas Mackay Cooper, 1st Baron Cooper of Culross (24 September 1892 – 15 July 1956) was a Scottish Unionist Party politician, a judge and a historian, who had been appointed Lord Advocate of Scotland.
Background and education
Cooper was th ...
gave judicial recognition to the concept of a "fundamental law" of Scotland that merged with that of England into the law of
Great Britain
Great Britain is an island in the North Atlantic Ocean off the northwest coast of continental Europe. With an area of , it is the largest of the British Isles, the largest European island and the ninth-largest island in the world. It i ...
at the time of the
Act of Union 1707, a corpus of law which the supremacy of Parliament may not extend to altering, as "the principle of unlimited sovereignty of Parliament is a distinctively English principle and has no counterpart in Scottish constitutional law". He raised as a hypothetical consideration the question of whether such fundamental laws could be judged by an English or Scottish
court
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in acco ...
in the same manner as other countries consider constitutional cases. However, he left the matter open, saying "I reserve my opinion."
The doctrine of
parliamentary supremacy
Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all ...
was upheld in the
Privy Council by
Lord Reid in 1969:
Under this precedent, Parliament has the legal authority to do anything, even though its Acts might contradict common-law
principles of natural justice
In English law, natural justice is technical terminology for the rule against bias (''nemo iudex in causa sua'') and the right to a fair hearing (''audi alteram partem''). While the term ''natural justice'' is often retained as a general conc ...
. The classic rebuttal or at least qualification is expressed by
Albert Venn Dicey, whose 1885 text ''
Introduction to the Study of the Law of the Constitution
''Introduction to the Study of the Law of the Constitution'' is a book by A. V. Dicey about the constitution of the United Kingdom. It was first published in 1885.
Dicey was named the Vinerian Professor of English Law at the University of Oxford ...
'' argues that the
will of the electorate must ultimately prevail over any attempt at tyranny: it is "a political, not a legal fact" that fundamental principles of natural justice cannot be denied. This implies that in most scenarios principles of the Fundamental Laws can be upheld by
statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward meani ...
or as an alternative since 1998 by issuing a
Declaration of incompatibility
A declaration of incompatibility in UK constitutional law is a declaration issued by a United Kingdom judge that a statute is incompatible with the European Convention of Human Rights under the Human Rights Act 1998 section 4. This is a central pa ...
.
Laws LJ in ''
Thoburn v Sunderland City Council
''Thoburn v Sunderland City Council'' (also known as the "Metric Martyrs case") is a UK constitutional and administrative law case, concerning the interaction of EU law and an Act of Parliament. It is important for its recognition of the supre ...
''
002 002, 0O2, O02, OO2, or 002 may refer to:
Fiction
*002, fictional British 00 Agent
*''002 Operazione Luna'',
*1965 Italian film
*Zero Two, a ''Darling in the Franxx'' character
Airports
*0O2, Baker Airport
*O02, Nervino Airport
Astronomy
*1996 ...
EWHC 195 (Admin) at
2recognised what he called "constitutional statutes":
In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental: see for example such cases as Simms 000
Triple zero, Triple Zero, Zero Zero Zero, Triple 0, Triple-0, 000, or 0-0-0 may refer to:
* 000 (emergency telephone number), the Australian emergency telephone number
* "Triple Zero", a song by AFI from ''Shut Your Mouth and Open Your Eyes''
* Th ...
2 AC 115 per Lord Hoffmann at 131, Pierson v Secretary of State 998
Year 998 ( CMXCVIII) was a common year starting on Saturday (link will display the full calendar) of the Julian calendar.
Events
By place
Europe
* Spring – Otto III retakes Rome and restores power in the papal city. Crescenti ...
AC 539, vLeech 994
Year 994 ( CMXCIV) was a common year starting on Monday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* September 15 – Battle of the Orontes: Fatimid forces, under Turkish gener ...
QB 198, Derbyshire County Council v Times Newspapers Ltd. 993
Year 993 ( CMXCIII) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar.
Events
By place
Europe
* Spring – The 12-year-old King Otto III gives the Sword of Saints Cosmas and Damian ...
AC 534, and vWitham 998
Year 998 ( CMXCVIII) was a common year starting on Saturday (link will display the full calendar) of the Julian calendar.
Events
By place
Europe
* Spring – Otto III retakes Rome and restores power in the papal city. Crescenti ...
QB 575. And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament as it were: "ordinary" statutes and "constitutional" statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It may be there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute. (cf obiter
''Obiter dictum'' (usually used in the plural, ''obiter dicta'') is a Latin phrase meaning "other things said",'' Black's Law Dictionary'', p. 967 (5th ed. 1979). that is, a remark in a legal opinion that is "said in passing" by any judge or ar ...
remarks by the House of Lords in ''Watkins v Home Office'' 006
Alec Trevelyan (006) is a fictional character and the main antagonist in the 1995 James Bond film '' GoldenEye'', the first film to feature actor Pierce Brosnan as Bond. Trevelyan is portrayed by actor Sean Bean. The likeness of Bean as Ale ...
UKHL 17 at 2
In 2004 the
Joint Committee of the House of Commons and House of Lords
A joint committee of the Parliament of the United Kingdom is a Joint committee (legislative), joint committee of the Parliament of the United Kingdom, formed to examine a particular issue, whose members are drawn from both the House of Commons and ...
overseeing the drafting of the Civil Contingencies Bill published its first report in which, among other things, suggested:
*Amending the proposed clauses, operative in a State of Emergency, that would grant
the Cabinet, by Emergency Regulations, the power "to disapply or modify any
Act of Parliament
Acts of Parliament, sometimes referred to as primary legislation, are texts of law passed by the Legislature, legislative body of a jurisdiction (often a parliament or council). In most countries with a parliamentary system of government, acts of ...
" on the grounds that such a clause is overly wide.
*An amendment to preclude changes to the following Acts, which, it suggested, formed "the fundamental parts of constitutional law" of the United Kingdom:
The amendment was defeated and the bill passed without it, although the government did partially implement one recommendation—the
Human Rights Act 1998 may not be amended by emergency regulations.
See also
*
Common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
*
Royal Prerogative
The royal prerogative is a body of customary authority, privilege and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in th ...
*
History of the constitution of the United Kingdom The constitution of the United Kingdom is an uncodified constitution made up of various statutes, judicial precedents, convention, treaties and other sources. Beginning in the Middle Ages, the constitution developed gradually in response to vario ...
References
{{English law types
Legal history of England
English law
Rights
Constitution of the United Kingdom
Political charters