Fundamental Laws of England

Fundamental Laws of England

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In the 1760s William Blackstone
William Blackstone
Sir William Blackstone KC SL 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 in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...

 described the Fundamental Laws of England in Commentaries on the Laws of England
Commentaries on the Laws of England
The Commentaries on the Laws of England are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1769...

, Book the First – Chapter the First : Of the Absolute Rights of Individuals
as "the absolute rights of every Englishman
Rights of Englishmen
The rights of Englishmen are the perceived traditional rights of British subjects. The notion refers to various constitutional documents that were created throughout various stages of English history, such as Magna Carta, the Declaration of Right , and others...

" and traced their basis and evolution as follows:
  • Magna Carta
    Magna Carta
    Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...

     between King John
    John of England
    John , also known as John Lackland , was King of England from 6 April 1199 until his death...

     and his barons in 1215
  • confirmation by King Henry III
    Henry III of England
    Henry III was the son and successor of John as King of England, reigning for 56 years from 1216 until his death. His contemporaries knew him as Henry of Winchester. He was the first child king in England since the reign of Æthelred the Unready...

     to Parliament
    Parliament of England
    The Parliament of England was the legislature of the Kingdom of England. In 1066, William of Normandy introduced a feudal system, by which he sought the advice of a council of tenants-in-chief and ecclesiastics before making laws...

     in 1216, 1217, and 1225
  • Confirmatio Cartarum (Confirmation of Charters) 1253
  • a multitude of subsequent corroborating statutes, from King Edward I
    Edward I of England
    Edward I , also known as Edward Longshanks and the Hammer of the Scots, was King of England from 1272 to 1307. The first son of Henry III, Edward was involved early in the political intrigues of his father's reign, which included an outright rebellion by the English barons...

     to King Henry IV
    Henry IV of England
    Henry IV was King of England and Lord of Ireland . He was the ninth King of England of the House of Plantagenet and also asserted his grandfather's claim to the title King of France. He was born at Bolingbroke Castle in Lincolnshire, hence his other name, Henry Bolingbroke...

  • the Petition of Right
    Petition of right
    In English law, a petition of right was a remedy available to subjects to recover property from the Crown.Before the Crown Proceedings Act 1947, the British Crown could not be sued in contract...

    , a parliamentary declaration in 1628 of the liberties of the people, assented to by King Charles I
    Charles I of England
    Charles I was King of England, King of Scotland, and King of Ireland from 27 March 1625 until his execution in 1649. Charles engaged in a struggle for power with the Parliament of England, attempting to obtain royal revenue whilst Parliament sought to curb his Royal prerogative which Charles...

  • more concessions made by King Charles I to his parliament
  • many laws, particularly the Habeas Corpus Act
    Habeas Corpus Act 1679
    The Habeas Corpus Act 1679 is an Act of the Parliament of England passed during the reign of King Charles II by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of habeas corpus, whereby persons unlawfully detained cannot be ordered to be...

     in 1679, passed under King Charles II
    Charles II of England
    Charles II was monarch of the three kingdoms of England, Scotland, and Ireland.Charles II's father, King Charles I, was executed at Whitehall on 30 January 1649, at the climax of the English Civil War...

  • the 1689 English Bill of Rights assented to by King William III
    William III of England
    William III & II was a sovereign Prince of Orange of the House of Orange-Nassau by birth. From 1672 he governed as Stadtholder William III of Orange over Holland, Zeeland, Utrecht, Guelders, and Overijssel of the Dutch Republic. From 1689 he reigned as William III over England and Ireland...

     and Queen Mary II
    Mary II of England
    Mary II was joint Sovereign of England, Scotland, and Ireland with her husband and first cousin, William III and II, from 1689 until her death. William and Mary, both Protestants, became king and queen regnant, respectively, following the Glorious Revolution, which resulted in the deposition of...

    .
  • the Act of Settlement
    Act of Settlement 1701
    The Act of Settlement is an act of the Parliament of England that was passed in 1701 to settle the succession to the English throne on the Electress Sophia of Hanover and her Protestant heirs. The act was later extended to Scotland, as a result of the Treaty of Union , enacted in the Acts of Union...

     of 1701.


Blackstone's list was an 18th-century constitutional view, and the Union of the Crowns
Union of the Crowns
The Union of the Crowns was the accession of James VI, King of Scots, to the throne of England, and the consequential unification of Scotland and England under one monarch. The Union of Crowns followed the death of James' unmarried and childless first cousin twice removed, Queen Elizabeth I of...

 had occurred in 1603 between England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...

 and Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...

, and the 1628 Petition of Right had already referred to the fundamental laws being violated.

See also: Constitution of the United Kingdom
Constitution of the United Kingdom
The constitution of the United Kingdom is the set of laws and principles under which the United Kingdom is governed.Unlike many other nations, the UK has no single core constitutional document. In this sense, it is said not to have a written constitution but an uncodified one...

, List of English monarchs, common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...


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
British House of Commons
The House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 650 members , who are known as Members...

 protested that the Roman Catholic Church
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...

 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 Lieut. Col. John Lilburne
John Lilburne
John Lilburne , also known as Freeborn John, was an English political Leveller before, during and after English Civil Wars 1642-1650. He coined the term "freeborn rights", defining them as rights with which every human being is born, as opposed to rights bestowed by government or human law...

 (later to become a Quaker) accusing the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....

 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 referred to the Fundamental Laws of England in regard to the Magna Carta, while defending their representative and legislative autonomy in their address to the Long Parliament
Long Parliament
The Long Parliament was made on 3 November 1640, following the Bishops' Wars. It received its name from the fact that through an Act of Parliament, it could only be dissolved with the agreement of the members, and those members did not agree to its dissolution until after the English Civil War and...

.

In his 1670 trial, William Penn
William Penn
William Penn was an English real estate entrepreneur, philosopher, and founder of the Province of Pennsylvania, the English North American colony and the future Commonwealth of Pennsylvania. He was an early champion of democracy and religious freedom, notable for his good relations and successful...

 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
William Henry Drayton
Other notable men have similar names, see: William Drayton .William Henry Drayton was an American planter and lawyer from Charleston, South Carolina...

 wrote
That the Americans being descended from the same ancestors with the people of England, and owing fealty to the same Crown, are therefore equally with them, entitled to the common law of England formed by their common ancestors; and to all and singular the benefits, rights, liberties and claims specified in Magna Charta, in the petition of Rights, in the Bill of Rights, and in the Act of Settlement. They being no more than principally declaratory of the grounds of the fundamental laws of England.


Other famous subscribers to the phrase include Lord Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...

 (1522–1634), Emerich de Vattel
Emerich de Vattel
Emer de Vattel was a Swiss philosopher, diplomat, and legal expert whose theories laid the foundation of modern international law and political philosophy. He was born in Couvet in Neuchatel, Switzerland in 1714 and died in 1767 of edema...

 (1714–1767), and Samuel Adams
Samuel Adams
Samuel Adams was an American statesman, political philosopher, and one of the Founding Fathers of the United States. As a politician in colonial Massachusetts, Adams was a leader of the movement that became the American Revolution, and was one of the architects of the principles of American...

 (1722–1803).

Unwritten history


Locke
John Locke
John Locke FRS , widely known as the Father of Liberalism, was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social...

's view in ... Civil Government 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 the Magna Carta in both custom
Custom (law)
Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Customary law exists where:...

 and natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

. Influenced by Locke, the 1776 United States Declaration of Independence
United States Declaration of Independence
The Declaration of Independence was a statement adopted by the Continental Congress on July 4, 1776, which announced that the thirteen American colonies then at war with Great Britain regarded themselves as independent states, and no longer a part of the British Empire. John Adams put forth a...

 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 the Magna Carta, there was debate about whether they arose from time immemorial
Time immemorial
Time immemorial is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record"...

, were somehow immanent to society, from post-Roman
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...

 Saxon
Anglo-Saxons
Anglo-Saxon is a term used by historians to designate the Germanic tribes who invaded and settled the south and east of Great Britain beginning in the early 5th century AD, and the period from their creation of the English nation to the Norman conquest. The Anglo-Saxon Era denotes the period of...

 times, or from various combinations of these and other origins.

20th century and later


In MacCormick v. Lord Advocate
MacCormick v. Lord Advocate
MacCormick v Lord Advocate was a Scottish legal action in which John MacCormick and Ian Hamilton contested the right of Queen Elizabeth II to style herself ‘Elizabeth II’ within Scotland...

 (1953), an action over the legitimacy of the title
Title
A title is a prefix or suffix added to someone's name to signify either veneration, an official position or a professional or academic qualification. In some languages, titles may even be inserted between a first and last name...

 Queen Elizabeth II
Elizabeth II of the United Kingdom
Elizabeth II is the constitutional monarch of 16 sovereign states known as the Commonwealth realms: the United Kingdom, Canada, Australia, New Zealand, Jamaica, Barbados, the Bahamas, Grenada, Papua New Guinea, the Solomon Islands, Tuvalu, Saint Lucia, Saint Vincent and the Grenadines, Belize,...

, Lord President Cooper posited that because the "fundamental law" of Scotland merged with that of England into the law of Great Britain
Great Britain
Great Britain or Britain is an island situated to the northwest of Continental Europe. It is the ninth largest island in the world, and the largest European island, as well as the largest of the British Isles...

 at the time of the Treaty of Union in 1707, the supremacy of Parliament may not extend to altering this fundamental law. He also raised the question of whether the fundamental laws could be judged by an English or Scottish court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...

 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 was upheld by Lord Reid [Madzimbamuto v. Lardner-Burke; 1 AC 645, 723] in 1969:

It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts would not hold the Act of Parliament invalid.

Under this view, Parliament has the legal authority to do anything, even though its acts might contradict common-law principles of natural justice. The classic rebuttal is expressed by Albert Venn Dicey, whose 1885 text An Introduction to the Study of the Law of the Constitution 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.

Laws LJ in Thoburn v Sunderland City Council
Thoburn v Sunderland City Council
Thoburn v Sunderland City Council is an important English constitutional law case. It advances the theory that there exists a hierarchy of Acts of Parliament, whereby those Acts affecting "the legal relationship between citizen and State" or "fundamental constitutional rights" form a special and...

 [2002] EWHC 195 (Admin) at [62] recognises what he calls "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 [2000] 2 AC 115 per Lord Hoffmann at 131, Pierson v Secretary of State [1998] AC 539, Leech [1994] QB 198, Derbyshire County Council v Times Newspapers Ltd. [1993] AC 534, and Witham [1998] 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 the remarks by the House of Lords in Watkins v Home Office [2006] UKHL 17 at [62])


In 2004 the Joint Committee
Joint committee
A Joint Committee is a term in politics that is used to refer to a committee made up of members of both chambers of a bicameral legislature. In other contexts, it refers to a committee with members from more than one organization.-Republic of Ireland:...

 (of both the House of Commons and House of Lords) tasked with overseeing the drafting of the Civil Contingencies Act published its first report in which, amongst other things, it suggested amending the proposed clauses that grant Cabinet Ministers the power "to disapply or modify any Act of Parliament
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...

" as overly wide, and that the bill should be modified to preclude changes to the following Acts, which, it suggested, formed "the fundamental parts of constitutional law" of the United Kingdom (names are shown as they appear in Hansard
Hansard
Hansard is the name of the printed transcripts of parliamentary debates in the Westminster system of government. It is named after Thomas Curson Hansard, an early printer and publisher of these transcripts.-Origins:...

:)
:
  • Magna Carta 1215
    Magna Carta
    Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...

  • Bill of Rights 1689
    Bill of Rights 1689
    The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689 ,...

  • Crown and Parliament Recognition Act 1689
    Crown and Parliament Recognition Act 1689
    The Crown and Parliament Recognition Act 1689 was an Act of the Parliament of England, passed in 1689. It was designed to confirm the succession to the throne of King William III and Queen Mary II of England and to confirm the validity of the laws passed by the Convention Parliament which had been...

  • Act of Settlement 1701
    Act of Settlement 1701
    The Act of Settlement is an act of the Parliament of England that was passed in 1701 to settle the succession to the English throne on the Electress Sophia of Hanover and her Protestant heirs. The act was later extended to Scotland, as a result of the Treaty of Union , enacted in the Acts of Union...

  • Union with Scotland Act 1707
  • Union with Ireland Act 1800
    Act of Union 1800
    The Acts of Union 1800 describe two complementary Acts, namely:* the Union with Ireland Act 1800 , an Act of the Parliament of Great Britain, and...

  • Parliament Acts 1911 and 1949
    Parliament Acts 1911 and 1949
    The Parliament Acts 1911 and 1949 are two Acts of the Parliament of the United Kingdom, which form part of the constitution of the United Kingdom. Section 2 of the Parliament Act 1949 provides that that Act and the Parliament Act 1911 are to be construed as one.The Parliament Act 1911 The...

  • Life Peerages Act 1958
    Life Peerages Act 1958
    The Life Peerages Act 1958 established the modern standards for the creation of life peers by the monarch of the United Kingdom. Life peers are barons and are members of the House of Lords for life, but their titles and membership in the Lords are not inherited by their children. Judicial life...

  • Emergency Powers Act 1964
    Emergency Powers Act 1964
    The Emergency Powers Act 1964 is an Act of the Parliament of the United Kingdom and was passed to amend the Emergency Powers Act 1920 and make permanent the Defence Regulations 1939...

  • European Communities Act 1972
    European Communities Act 1972 (UK)
    The European Communities Act 1972 is an Act of the Parliament of the United Kingdom providing for the incorporation of European Community law into the domestic law of the United Kingdom. It is not to be confused with the Irish law of the same name, Act No...

  • House of Commons Disqualification Act 1975
    House of Commons Disqualification Act 1975
    The House of Commons Disqualification Act 1975 is an Act of the Parliament of the United Kingdom that prohibits certain categories of people from becoming members of the House of Commons...

  • Ministerial and Other Salaries Act 1975
  • British Nationality Act 1981
    British Nationality Act 1981
    The British Nationality Act 1981 was an Act of Parliament passed by the British Parliament concerning British nationality. It has been the basis of British nationality law since 1 January 1983.-History:...

  • Supreme Court Act 1981
  • Representation of the People Act 1983
    Representation of the People Act 1983
    The Representation of the People Act 1983 is an Act of the Parliament of the United Kingdom. It changed the British electoral process in the following ways:* Amended the Representation of the People Act 1969....

  • Government of Wales Act 1998
    Government of Wales Act 1998
    This is about the Act that set up the Welsh Assembly. For the newer Government of Wales Act 2006, see that article.The Government of Wales Act 1998 This is about the Act that set up the Welsh Assembly. For the newer Government of Wales Act 2006, see that article.The Government of Wales Act 1998...

  • Human Rights Act 1998
    Human Rights Act 1998
    The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...

  • Northern Ireland Act 1998
    Northern Ireland Act 1998
    The Northern Ireland Act 1998 is an Act of the Parliament of the United Kingdom which established a devolved legislature for Northern Ireland, the Northern Ireland Assembly, after decades of direct rule from Westminster....

  • Scotland Act 1998
    Scotland Act 1998
    The Scotland Act 1998 is an Act of the Parliament of the United Kingdom. It is the Act which established the devolved Scottish Parliament.The Act will be amended by the Scotland Bill 2011, if and when it receives royal assent.-History:...

  • House of Lords Act 1999
    House of Lords Act 1999
    The House of Lords Act 1999 was an Act of the Parliament of the United Kingdom that was given Royal Assent on 11 November 1999. The Act reformed the House of Lords, one of the chambers of Parliament. For centuries, the House of Lords had included several hundred members who inherited their seats;...

  • And the bill itself (which became the Civil Contingencies Act 2004
    Civil Contingencies Act 2004
    The Civil Contingencies Act 2004 is an Act of the Parliament of the United Kingdom that establishes a coherent framework for emergency planning and response ranging from local to national level...

    ).


However, this amendment was defeated by the government, and the only Act of Parliament which may not be amended by emergency regulations is the Human Rights Act 1998.