Judge John Bradshawe
SETTING THE SCENE:
IN 1649, the King of England was brought to trial before the Puritan judges at Westminster. At that trial the political theory, which became the "common consensus" of the American Revolutionaries a century later, was enunciated by the Chief Judge, John Bradshawe: ‘There is a contract and a bargain made between the King and his people, and your oath is taken: and certainly, Sir, the bond is reciprocal; for as you are the liege lord, so they liege subjects ... This we know, the one tie, the one bond, is the bond of protection that is due from the sovereign; the other is the bond of subjection that is due from the subject. Sir, if this bond be once broken, farewell sovereignty! ... These things may not be denied, Sir.’
The King was later executed for failure to protect the welfare of his subjects. In the 1760's and 70's, the American Rebels embraced this tradition. Thomas Jefferson adopted as his own motto a saying, which he attributed to Judge John Bradshawe: "Rebellion to tyrants is obedience to God."
This page begins with a mystery – what is the connection between a little known town in Cheshire, an even lesser well-known parish in Jamaica and the ashes of the one and only President of the one and only Republic of Great Britain whose memory the State, Church and the Monarchy took great pains to erase? WARNING - this page goes on forever, so - make yourself comfy with a cuppa.
Church Versus State Versus Monarchy:
Stockport was first ‘wiped off the map’ by the Normans as they moved northwards, following their invasion and conquest of Britain in 1066. They obviously considered it to be a threat. As a result of this, Stockport’s first claim to fame is that, as a result of this erasure and, unlike Wythenshawe/Northenden, it is not mentioned in the Domesday Book. It was again wiped off the political map in the latter part of the 17th Century in a State-sponsored effort to erase a monumental chapter of world history.
Stockport is also the birthplace of someone that both the Crown and Parliament preferred to forget, someone who helped author the democratic rights that we all take for granted today. His name was John Bradshawe, known as Judge John Bradshawe, who went on to become the Lord President of the High Court of Justice which condemned King Charles 1st to death.
In February 1649 he was made President of the Council of State (the English Republic), the highest office in the kingdom. In March of the same year he was appointed Chief Justice of Wales and in July he was re-appointed Chief Justice of Chester. During this time he also presided over the newly constituted Court for the trial of political offenders. Shortly after he was made Chancellor of the Duchy of Lancaster, an appointment that was renewed by Act of Parliament each year, and an office he held until February 1656.
The poet John Milton (a cousin of Judge John Bradshawe) said of him:
"He brought to the study of the law, a capacity enlightened, a lofty spirit and spotless manners obnoxious to none, so that he filled the high and lofty office, rendered the more dangerous by the threats and daggers of private assassins, with a firmness, a gravity, a dignity and presence of mind, as if he had been designed and created by the Deity expressly for this work, for how much more is it just and majestic to try a tyrant than to slay him untried?"
John Bradshawe was probably born at 'The Place', later known as Peace Farm, which was located on the site of the Texaco garage, at the corner of Stockport Road and Church Lane in Stockport. Wybersley Hall has also been cited as Bradshawe's birthplace and this is an argument that can never be firmly resolved, as there are no definitive records (the monarchy made sure of that out after the Restoration).
The Council has obviously decided in favour of Peace Farm, which was demolished in 1936, as they have erected a blue heritage plaque on the wall of the garage shop to commemorate it as the site of his birth - not much of a tribute to a man who once held the highest office in the land in a unique period of British history.
His baptism was entered in the Stockport Parish Register on the 10th December 1602. At some later date the word "Traitor" was added in a different hand.
Very little has been known up until recently about John Bradshawe. After the Restoration of Charles II, Bradshawe's body, along with those of several others, was exhumed from Westminster Abbey by order of the Council of State and on the 30th January 1661, the anniversary of the execution of Charles I, the bodies of Cromwell, Ireton and Bradshawe were hung on the gallows at Tyburn. Their heads were afterwards cut off and set up in Westminster Hall and their bodies burned and thrown into a hole dug under the gallows. It is said that the heads of Cromwell and Bradshawe were still fixed on the spikes of Westminster in 1684, when that of another traitor was placed between them. The State took great pains to destroy any trace of, or reference to, the life and achievements of John Bradshawe.
|Bradshawe himself did not attend court until the third session after his appointment, apologising on the grounds that he had been out of London and disavowed his ability to perform “so important a task.” While he served as the Lord President, he was flanked by an impressive personal guard and carried a sword at his side. He wore scarlet robes and a “broad-brimmed, bullet-proof iron hat, which he had covered over with velvet" (left). King Charles refused to recognise the authority of the court and would not plead. After declaring Charles I guilty as a “Tyrant, Traitor, Murderer, and a public enemy,” Bradshaw did not allow the king any final words. Under English law, a condemned prisoner was no longer alive and therefore did not have the right to speak, and Bradshaw followed this tradition strictly.
Commonwealth and Protectorate:
On 12 March, 1649 Bradshaw was elected President of the Council of State, which was to act as the Executive of the country's government in place of the King and the Privy Council. After wars in Scotland and Ireland the Long Parliament had still not dissolved itself or called for re-elections.On 30 April 1653, Oliver Cromwell declared Parliament and the Council dissolved and soon assumed rule as Lord Protector calling elections for a new Parliament himself.
Since 1 August, 1649, Bradshaw had also held the post of Chancellor of the Duchy of Lancaster. After 1653, he served as commissioner of the Duchy, jointly with Thomas Fell, until mounting differences with Cromwell culminated in this resignation in 1654. Bradshawe, though an ardent Republican, became an opponent of the Protectorate. After Oliver Cromwell died in 1658, his son Richard succeeded him as Lord Protector and reinstated Bradshawe as Chancellor of the Duchy of Lancaster. In 1659, Bradshaw moved to Westminster after falling dangerously ill, and died on 31 October of the same year. He was buried with great honours at Westminster Abbey. On his deathbed Bradshaw averred that if called upon to try the King again he would be "the first man in England to do it".
Charles II was restored to his throne in 1660. On January 30th, 1661 - the twelfth anniversary of the regicide - the bodies of Bradshaw, Cromwell and Henry Ireton were exhumed and displayed in chains all day on the gallows at Tyburn. At sunset the bodies were beheaded. The bodies were thrown into a common pit and the heads were displayed on pikes on top of Westminster Hall.
Bradshawe’s name and very existence was erased from British memory. It is only very recently that he was brought to the attention of pesent-day Members of Parliament. Some of his ashes and the remains of a bone from one of his fingers was secreted away by an unknown sympathiser to the Republican Cause.
The following inscription was made out three years ago on the cannon near which the ashes of President Bradshawe were lodged, on the top of a high hill near Martha Bray* in Jamaica, to avoid the rage against the Regicides exhibited at the Restoration:
Ere thou pass, contemplate this CANNON,
Nor regardless be told
That near its base lies deposited the dust of
Who, nobly superior to all selfish regards,
Despising alike the pageantry of courtly splendor,
The blast of calumny, and the terrors of royal vengeance,
Presided in the illustrious band of heroes and patriots,
Who fairly and openly adjudged
Tyrant of England,
To a public and exemplary death,
Thereby presenting to the amazed world,
And transmitting down, through applauding ages,
The most glorious example
Of unshaken virtue, love of freedom, and impartial justice,
Ever exhibited on the blood-stained theatre of human actions.
Pass not on till thou hast blessed his memory,
And never - never forget
THAT REBELLION TO TYRANTS IS OBEDIENCE
(Letter written by Benjamin Franklin to ‘The Pennsylvania Evening Post’, December 14, 1775.)
(*‘Martha Bray’ is now known as ‘Martha Brae’ and is situated in the Parish of Trelawny near Montego Bay, Jamaica.)
IN the 17th Century, monarchs became the personification of the power of the state. Palaces and capital cities magnified the public aura of kings. The divine right of kings held that God created the institution of monarchy and appointed kings as His representatives on earth to ensure good order.
King James I actually wrote a treatise on the divine right of monarchs entitled ‘The True Law of Free Monarchies’. More surprisingly, the theory of rule through heavenly appointment was generally accepted outside the circle of monarchs. In order to properly exercise the powers ordained by God, a monarch had to act in the best interests of his people - rule through good laws, pursue peace and prosperity. Kings who failed to rule according to divine dictates - whatever they were perceived to be - risked God's wrath. Kings became synonymous with the public performance of the duties of state, and all monarchs were constrained to appear in front of their subjects.
THE COURT AND THE COURTIERS:
The duties of government in the seventeenth century were larger in scope than one man or woman could possibly handle. Consequently, more state officers were required to manage the growing burden of government. As courts expanded, once independent aristocrats were co-opted into royal service. Royal councillors grew in wealth, prestige, and power as they gained the ability to create executive policy. The point of contact between monarch and royal council was often a personal favourite—either an officially appointed chief minister or simply a personal companion with more frequent access to the king or queen. Favourites were often shields for monarchs against public displeasure with royal policies.
James I elevated the Duke of Buckingham from the ranks of the commoners to the nobility of England. Buckingham's position as the royal favourite allowed him to gain influence within the royal government, particularly in the military. Buckingham survived the death of James I to become the royal favourite of Charles I. His continued role of influence and power within the royal court alienated many of the English nobility. When his foreign policy schemes failed, Parliament attempted to have him removed from the king's presence. The support of the monarch frustrated parliamentary attempts at impeachment, but a disgruntled naval officer assassinated Buckingham in 1628.
THE ZENITH OF THE ROYAL STATE:
In the aftermath of the mid-century rebellions, the search for political stability became a primary goal of monarchs and regional political elites. Royal reforms of administrative policy were balanced by a greater willingness on the part of the regional elites to cooperate with the central government. While England, Holland, and Sweden developed balanced constitutions that limited the role of the monarchy, elsewhere the rule of government was royal absolutism.
THE NATURE OF ABSOLUTE MONARCHY:
Most countries were unwilling to grant the degree of political freedom necessary for the operation of a balanced constitution. More common was the development of absolute monarchy along the lines developed by Thomas Hobbes. In ‘Leviathan’, Hobbes theorized that humans in a "state of nature" engaged in constant warfare. To avoid such internecine strife, men gave up their rights to rulers who undertook the restoration of law and order, the only guarantee of individual rights.
Absolutism involved reverence for the person of the monarch as the symbol of the state, the consequent diminution of other elites within the state, personal management of the government by the ruler, decline of influence of representative bodies, and growth of the military. Absolutism remained more theoretical than practical. It depended on a capable ruler, the absence of religious diversity, and the will of the governed to support the government.
THE DRIVE TO CENTRALISE GOVERNMENT:
Despite the attempts of monarchs and personal favourites to increase the power of the central government, powerful regional elements existed within all the states of Western Europe. One of the primary means of achieving centralisation over the regions was the creation of strong central legal systems. The local officials in England were called Lords Lieutenant. England, alone among European states, was without a standing national army. The function of the Lords Lieutenant was to raise, equip, and train a local militia on royal demand. However, English armies were not the most proficient in Europe.
The expansion of the state occurred at the expense of other corporate entities - the Church, towns, and aristocracy. Often immune from taxation, the corporate bodies nevertheless relied on their own ability to mulct the peasantry. More efficient and intrusive legal systems disrupted the traditional patterns of local authority. At the same time, population pressure on the agricultural system led to failures in the food supply. Responses were violent. At first resistance was on a local level. By the 1640s, the focus of resistance was the state itself and the concept of divine monarchy.
THE ORIGINS OF PARLIAMENT & THE ENGLISH CONSTITUTION:
‘Parliament’ was originally used to describe a meeting for a ‘parley’ or discussion
Mediaeval kings had to meet all royal expenses, private and public, out of their own income. If extra resources were needed for an emergency, such as going to war, the sovereign would seek help from his barons in the Great Council – a gathering of leading men who met several times a year. During the 13th century, several English kings found their own private revenue, together with aid from the barons, insufficient to meet the expenses of government. They therefore also called on representatives of counties, cities and towns to agree to additional taxation.
In time the Great Council came to include those who were summoned by name (who, broadly speaking, were later to form the House of Lords) and those who were representatives of communities – the Commons. These two groups, together with the sovereign, became known as 'Parliament' – a term meaning a meeting for parley or discussion. Originally the sovereign's legislation needed only the agreement of his councillors. Later, starting with the right of individuals to present petitions, the Commons was eventually allowed to appeal to the Crown on behalf of groups of people.
In the 14th century, under King Edward III it was accepted that there should be no taxation without parliamentary consent, still a fundamental principle today. In the 15th century, the Commons gained equal law-making powers with the Lords. In the 17th century, tensions increased between parliament and monarch, such that in 1641 the King and Parliament could not agree on the control of troops for repression of the Irish Rebellion. Civil War broke out the following year, leading to the execution of King Charles I in January 1649.
Following the restoration of the monarchy in 1660, the role of Parliament was enhanced by the events of 1688-89 (the 'Glorious Revolution') and the passage of the Bill of Rights which established the authority of Parliament over the King, and enshrined in law the principle of freedom of speech in parliamentary debates.
1707 brought the Union of England with Scotland and the first Parliament of Great Britain. Growing pressure for reform of Parliament in the 18th and 19th centuries led to a series of Reform Acts which extended the vote to most men over 21 in 1867 and, finally, to women over 21 in 1928. The legislative primacy of the House of Commons over the Lords was confirmed in the 20th century by the passing of the Parliament Acts of 1911 and 1949.
The United Kingdom is a parliamentary democracy, based on universal suffrage. It is also a constitutional monarchy in which ministers of the Crown govern in the name of the Sovereign, who is both Head of State and Head of the Government.
There is no ‘written constitution’. Instead, the relationship between the State and the people relies on statute law, common law and conventions. The UK Parliament makes primary legislation - other than for matters devolved to the Scottish Parliament and the Northern Ireland Assembly - and is the highest authority in the land. It continues to have the supreme authority for government and law-making in the UK as a whole.
The Executive comprises the Government (members of the Cabinet and other ministers responsible for policies), government departments and agencies, local authorities, public corporations, independent regulatory bodies and certain other organisations subject to ministerial control. The judiciary determines common law and interprets statutes.
In her role as Monarch, the Queen is head of the executive and plays an integral part in the legislature. She heads the judiciary and is both the commander-in-chief of all the armed forces of the Crown and supreme governor of the established Church of England.
Following devolution, the responsibilities of the Secretaries of State for Scotland, Wales and Northern Ireland changed considerably, although they retain their positions in the UK Cabinet. They ensure that the reserved interests of the countries they represent are properly considered in central government and they lead the presentation of government policy in their parts of the UK. They are also responsible for safeguarding and promoting the devolution settlements of their respective countries.
Resistance & Rebellion in Britain & Europe:
Disease, crop failure, and the effects of war on non-combatants caused European population to decline in the seventeenth century and, up to 1750 all segments of the economy stagnated. Poor weather contributed to setbacks in agriculture that were most devastating to the peasantry. In France the increase of the taille, the tax on property, led to disorder and rebellion. Most revolts were directed against local tax collectors and strictly limited in objective. In England, local resistance was aimed at halting the progress of enclosure of open fields.
Peasant rebellions, generally opposed by local elites, could not succeed in the face of national armies. Only when the aristocracy joined in the cause of rebellion could the state be threatened. The right to rebel developed in curious combination with the theories of divine monarchy. As kings were God's representatives on earth, it became not only possible but necessary to dethrone tyrants—those who did not rule according to the divine strictures of upholding justice and piety.
The duty of rebellion fell at first on lesser magistrates and members of the elite, but later was extended to all members of the Body Politic. Attempts to murder James I of England failed, but in 1610 Henry IV of France did fall to an assassin. John Milton completed the theory of righteous rebellion by adding the concept of a contract between monarch and the governed. In The Tenure of Kings and Magistrates, Milton suggested that if kings failed in their contractual obligations to rule well, citizens could dissolve the contractual relationship between themselves and the ruler to reconstitute the state.
The English Revolutions:
Religious radicals were concentrated in the parliamentary army, which in 1647 became the central force in prosecuting the rebellion against royal authority. The army and its commanders easily defeated remaining royalist forces. When it appeared that moderates in Parliament might seek a new agreement with Charles I, the army invaded London and purged moderates from the representative body. The remaining radicals in Parliament, called the Rump, brought the king to trial and convicted him of tyranny. Charles' execution in 1649 led to the abolition of monarchy and the establishment of a commonwealth under the remainder of the lower house of Parliament. The Rump was unable to create a viable constitution.
When the Rump's failure became obvious, Oliver Cromwell, commander of the army, expelled the remnants of the Long Parliament. Cromwell adopted the title of Lord Protector under a new constitution called the Instrument of Government of 1653. Cromwell refused the offer of a crown and attempted to govern through Parliament and the Council of State. After Cromwell's death, there was no viable candidate to succeed him as Protector. In 1659 army commanders called for the restoration of the monarchy.
After lengthy negotiations, Charles II, son of Charles I, returned to England in 1660. The restored monarchy was forced to recognize the authority of Parliament and the limitations of royal power. Both the state religion and the limited authority of the crown were challenged in the reign of James II. When the king attempted to openly support Catholicism, virtually all elements of English authority rejected the monarchy. In 1688, with the encouragement of many in England, William of Orange and his wife, Mary Stuart, invaded. With virtually no support, James II had little choice but to become an exile. Parliament recognized William and Mary as joint monarchs to govern under an agreement called the Declaration of Rights.
The so-called Glorious Revolution of 1688 produced a new political theorist, John Locke. In Two Treatises on Civil Government, Locke proposed a social contract that existed between rulers and their subjects. In the contract, the governed gave up some of their unlimited natural rights to the ruler in order to secure greater liberty and freedom from violence. Monarchs who acted arbitrarily or failed to protect the rights of their subjects could be deposed.
The English Civil Wars:
The most severe disruption of monarchical rule occurred in the least likely of countries, England. James I, the king of Scotland, succeeded Elizabeth without dissension in 1603. Initial resistance to the Crown arose over the elevation of Scottish favourites to English offices. In addition, the royal government was forced to operate without a sufficient tax base. Requests to Parliament for additional revenues produced parliamentary demands for reform. In 1628 Parliament issued the Petition of Right restating the traditional freedoms of the English elite. In response, Charles I chose not to call a Parliament between 1629 and 1640.
Adding to the dissatisfaction with the royal government was unhappiness with the state church. Puritans demanded a more Calvinist form of religion, including the abolition of the episcopacy of the Anglican Church. James I and his successor Charles I both saw the bishops as part of the hierarchy of the state and refused reform on this issue. Both monarchs attempted to strengthen the authority of the bishops, not to reduce it. In Archbishop William Laud, the Anglican Church received a conservative head bent on a more formal liturgy in contradiction to the Puritans' demands for a more rigorous brand of Calvinism.
When a new prayer book to which all churches were supposed to conform was introduced in Scotland in 1637, the Scottish nobility refused to allow its imposition. When Charles I tried to gain parliamentary taxes to support military suppression of the religious and political uprising in Scotland, it refused. The Long Parliament first met in 1640. Instead of granting fiscal support, the Parliament demanded constitutional reform and the removal of specific royal councillors. Archbishop Laud was imprisoned. Charles' chief political advisor, the earl of Strafford, was executed. When Charles' belated and clumsy attempt to arrest leading members of the Long Parliament failed, the king withdrew from his capital in 1642 to raise a royal army. Parliament also called for military support to confront the king's military.
The king was able to gain the support of much of the English aristocracy. Parliament enjoyed the support of those who sought religious reform. By 1645 parliamentary forces gained a military advantage. Charles I, actually a prisoner of Parliament, refused to cooperate with his conquerors. In the face of royal intransigence, the uneasy coalition of opponents of the Crown began to disintegrate. Religious moderates and radicals created new political alignments.
ACTS OF UNION
THE MAKING OF GREAT BRITAIN:
ACT OF UNION 1707:
The Acts of Union were twin Acts of Parliament passed in 1707 in the Scottish and the English Parliaments. The effect was twofold:
1) To create a new Kingdom of Great Britain (though the name was used on occasion since 1604 to refer to the separate Kingdoms of England and Scotland, which since 1603 had a shared monarch, when speaking of the kingdoms together. Wales was also part of this Great Britain since it had been absorbed by England by the Acts of Union 1536-1543).
2) To dissolve both parliaments and replace them with a new Parliament of the Kingdom of Great Britain.
While there had been three earlier attempts to unite the two countries by Acts of Parliament, these were the first Acts which had the will of both political establishments behind them, albeit for rather different reasons. In the English case, the purpose was to establish the Royal succession along Protestant lines in the same manner as provided for by the English Act of Settlement rather than that of the Scottish Act of Security. In the Scottish case, the purpose was partly to use English subsidies to recover from the financial problems caused by the failure of the Darién scheme and partly to remove English trade sanctions put in place through the Alien Act to force the Scottish Parliament into compliance with the Act of Settlement.
The Acts of Union were not universally popular in Scotland, particularly amongst the general population. Many petitions were sent to the Scottish Parliament against union, and there were massive protests in Edinburgh the day it was signed. Many historians have since argued that the Scots Parliamentarians were coerced into signing up for union by English bribery.
The Act incorporated provisions for Scotland to send representative peers from the Peerage of Scotland to sit in the House of Lords. It guaranteed that the Church of Scotland would remain the established church in Scotland, and that the Court of Session would remain. It also established that the flag of Great Britain would be based on the Flag of England and Flag of Scotland; the exact design of the Flag of Great Britain was adopted later.
Other provisions included to restate the Act of Settlement and the ban on Roman Catholics from taking the throne. It created a customs union and monetary union. The treaty provided that if any 'laws and statutes' were 'contrary to or inconsistent with the terms' of the Treaty; that they would be null and void. This has not been held to prevent the Parliament of the United Kingdom from amending the Act.
The Kingdom of Great Britain merged with the Kingdom of Ireland to form the United Kingdom of Great Britain and Ireland on 1 January 1801, through the Act of Union 1800. The United Kingdom shrank a little in 1922 when most of Ireland left to become the Irish Free State.
ACT OF UNION 1800:
The 1800 Act of Union merged the Kingdom of Ireland and the Kingdom of Great Britain (itself a merger of England and Scotland under the Act of Union 1707) to create the United Kingdom of Great Britain and Ireland on 1 January 1801.
Under the terms of the union, Ireland continued to have over 100 MPs representing it in the united parliament, meeting in the Palace of Westminster. Part of the trade-off was to be the granting of Catholic Emancipation. However this was blocked by King George III who argued that emancipating Roman Catholics would breach his Coronation Oath; it instead happened in 1829.
The flag created by the merger of the Kingdoms of Great Britain and Ireland in 1801 still remains the flag of the current United Kingdom. Known as the Union Jack or the Union Flag, it combines the flags of England and Scotland with St. Patrick's flag from Ireland. The upright red cross, St George's Cross, represents England. The blue background, on which St Andrew's Saltire (in the shape of a white X) appears, represents Scotland, while the diagonal red X which overlays the white X on the blue background of Scotland, is known as "St Patrick's Cross" and represents Ireland.
THE UK CONSTITUTION:
THE Constitutional Law and Practice of England today is a very large subject, and even general accounts of it fill volumes of considerable size. Many able expositions of it have been produced by lawyers and other experts, but there is no exposition of it which is authoritative and binding in the legal sense. There is no document or statement to which we can point and say, 'This is the English Constitution', as one may in many countries which possess what is called a 'written constitution'.
The Constitution of the United States, for example, is the document which was drawn up in 1787, together with the twenty-two amendments subsequently made to it. Most countries in Europe possess, or until recently have possessed, documents which set out in black and white most, if not all, of their constitutional law. It is true that most countries inevitably develop in the course of the practical working of government certain usages which are not in fact parts of the law in the ordinary sense, but which are found by experience to be indispensable for the smooth working of the Constitution, so that it is doubtful whether any mature Constitution can be said to be wholly written in a legal and authoritative sense.
But in England there is no one document which pretends to set down even the legal, let alone the non-legal or conventional, usages. English constitutional law has to be searched for in a number of different sources. Important parts of it are to be found scattered up and
down the statute-book, contained in Acts of Parliament.
Thus, the MAGNA CARTA, originally written in 1215, long before anything like a parliament had come into existence, was eventually, in 1297, enrolled on what came to be known as the statute-book and, except in so far as it has been repealed by later legislation, is still valid law. To take another example, the title to the Crown today is determined by the Act of Settlement of 1701, as modified by the Abdication Act of 1936.
The relations between the House of Lords and the House of Commons, at least in certain respects, are laid down in the Parliament Acts of 1911 and 1949. Numerous other examples can be quoted, and obviously our constitutional law is in part written in the statute-book.
But by no means all, or even the greater part, of the law applied in the courts is to be found in Acts of Parliament. A very great deal of it is law not enacted by any legislature at all, but is the common law hammered out through the ages by the King's justices, which provides a source of law in decided cases. This common law consists of judicial decisions on actual cases decided in court, and is to be found written in the reports of proceedings in the courts.
Inevitably in the course of litigation many important points of constitutional law have been decided by the justices. Such decisions are binding in the courts as case-law, unless and until they are upset by the decisions of a superior court or by an Act of Parliament. Very many matters of great constitutional importance are common-law matters. The whole of the law of the Royal Prerogative, except in so far as modified by statute, is common law.
The very fact that all courts are bound by Acts of Parliament and must apply them is but a rule of common law; there has never been any legislation ordering the King's justices to enforce statutes or Acts of Parliament. But they do so, and have always done so, or at any rate since a short period of doubt and difficulty in the earliest days of parliamentary enactment. Similarly, innumerable points of great importance to the preservation of the rights and liberties of the individual citizen, and of his remedies if aggrieved, exist only at common law, not by virtue of parliamentary enactments, which, especially in recent times, tend to curtail individual rights rather than to preserve or extend them.
Furthermore, a great many of the rules and usages of the English Constitution are not legal in character, and are not to be found written in the statute-book nor in the reports of judicial decisions, nor written at all, except in the legally unauthoritative, purely academic expositions of scholars, lawyers, publicists, and the like.