Thread by @JusticeTyrwhit

(Thread) One passage in the Inner House judgment had the effect of, if unintentionally, disparaging English law. It said, "The power of the
sovereign was, by immemorial tradition, restricted by the laws and customs of the people.
This was different from England". James I was

(2) famously taken aback by the independence and audacity of the English parliament in daring to decline his commands and place conditions upon him, something to which he was apparently unused in Scotland. Furthermore, there is a long history of England as a land of laws, in

(3) which the king was firmly limited by the laws of the land and particularly by statute law. In 1441, a case came before the Exchequer Chamber. A rector of an abbey brought a judicial review of a tax assessment made against him. He prayed in aid a discharge granted by a

(4) previous king 40 years previously. The case went up to the Exchequer Chamber where it was heard before all the judges of England. Fray CBEx (Chief Baron of the Court of Exchequer) said, "le Parlement est la Court du Roy, & le plus haute Court que il ad, & la Ley est le plus

(5) haute inheritance que l' Roy ad: car par la Ley il meme & touts ses subjects sont rules", or, " the Parliament is the king's court, and the highest court he has, and the law is the highest inheritance that the king has, because by the law he himself and all his subjects are

(6) ruled". Ayscouch JCP, or Justice of the Common Pleas, said, " if the king had granted him that he would not punish him for any felony nor trespass done by him in times to come, this grant is void, because it is against common right and justice, and cannot coexist with law".

(7) One of the counsel in that case, Serjeant Fortescue (later Chief Justice of the Common Pleas, to which I shall return), appearing for the king, said, "One will not grant any thing unless such thing is in him at the time of the grant" (i.e. nemo dat quod non habet); in essence

(8) the king's own lawyers were arguing that the king had no power to discharge someone from that which had been enacted by parliament. In a case in 1464, two justice of the King's Bench were riding out on circuit, hearing jury trials at 'nisi prius', and they came before a

(9) plaintiff who had been successful in his claim, and was now applying for writs of capias and exigi facias, for attachment of the defendant's goods, and eventually outlawry if he did not comply. They duly granted the application. Several days later, a letter arrived bearing

(10) the king's privy seal, requesting the judges reverse process in that case and not allow those writs. The two justices, Yelverton JKB and Bingham JKB, refused outright! They said, "“They said that we ought to do as reason and conscience counsel us, it is not honourable for

(11) us nor for this Court, nor for any other court to vary in our judgments, as to give judgment in a matter in one Term, and to give another different judgment afterwards in another Term”. They would not vary their judgment based on a mere letter from the king; England was a

(12) land of laws. That barrister I mentioned before, Fortescue, he went on to write one of the greatest books every written on English law, De Laudibus Legum Angliae (In Praise of the Laws of England). It was supposed to be a textbook for the Prince Edward, the heir. In it,

(13) Fortescue was adamant that England was what he called a 'dominium politicum et regale'. He referred to France as a dominium regale; a realm in which the king's word is law. And he referred to the Roman republic as a dominium politicum; a political/democratic realm. But

(14) England was a 'dominium politicum et regale'; yes, it had a monarch. But it was a monarch constrained by the laws of the land. He writes, "A king of England cannot, at his pleasure, many any alterations in the laws of the land, for the nature of his government is not only

(15) regal, but political". Further, "In France, the nobility and gentry are not so burdened by taxes. But if any one of them be impeached for a state-crime, though by his known enemy, it is not usual to convene him before the ordinary judge, but he is very often examined in the

(16) king's own apartment or some other such private place; as soon as the king, upon such private information, shall adjudge him guilty, he is never more heard of but immediately without any formal process, is put into a sack and thrown into the river at night". Fortescue was

(17) adversely comparing this to the English legal system, in which one was judged by their peers and "twelve honest men of the neighbourhood". He conceded that the wheels of justice could turn slowly in England, but so much the better so as to avoid mistakes through haste.

(18) England has never had a perfect legal system, but it has a history of adherence to the rule of law, of parliamentary activism and legislative assertion against the executive, that rivals any country in the world. This history should be appreciated, not disparaged.

(19) Correction, I said Fortescue was future CJCP. He was in fact future Chief Justice of the King's Bench