1937-01-13 — Page 3

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SUPREMACY

(Continued from Page 13

OF LAW

periods of revolutionary violence, than Wolfe Tone's case. “

"AN IRISH REBEL

These words are taken from the can be punished, no man can be concluding chapter of a tract "I made answerable: in body or in praise of the Laws of England" } property, expect for a distinct written centuries ago by 817 John, breach of the law brought home to In 1786 Wolfe Tone, an Irish Fortescue, who was Chief Justice him by ordinary legal procedure rebel, took part in a French in- of England in the reign of Henry before the established courts of rasion of Ireland. The man-of- VI. and who, on his monarch's de- the land. No man, where English war in which he sailed was cap- position at the end of the Wars law in is force, can be cast into } tured, and Wolfe Tone was brought of the Roses accompanied the King prison to remain untried. His - to trial before a court martial in into exile in France, where, with verty, his person, and his goods Dublin He was thereupon, sen- the barren title of Lom Chancellor are in the hands of a judge, pro- tenced to be hanged. He held, to the dethroned Kinz. he acted as nouncing judgment after public however, no commission as an tutor to the young Edward Prince trial on the publicly given evidence English oicer, his only commis of Wales

of fellow citizens and on the ver- dict of a jury of fellow country-'| ‚man, and are not subject to the whim of the arbitrary' wishes of authority, · ·

UNIVERSAL ADMIRATION What is it that through all these years up to to-day has made Bri- tish justice the object of auch universal admiration? That is a dimcult question to answer within

the compass of a short lecture, but I shall t to-night to indicate a few aspects of the problem, and though by so doing I may not supply an answer I hope that at least I will give you some foort for thought

The administration of Justice consists in the impartial applies- tion of the laws of the land to the

man

ORDINARY LAW England knows no administra- tive power of arrest or punish- ment, because in England the law of the constitution is part of the ordinary law of the land. A Sec- retary of State cannot at his dis- eretion and for reasons "of state, arrest, imprison. or punish any unless ot course special powers are conferred on him by statute, such powers as the Home facts in difference or dispute be-

Secretary possesses under tween litigants, and a useful start-Allens Acts or the Extradition ing point for us to-day will be Acts, because a Secretary of State firstly, the consideration of the nature of English law as applied throughout the Empire, its sources and its growth, and thereafter an examination of the position under the British Constitution occupied by law and its application through the Judiciary.

the

ls governed his official as well as

sion being one from the French Republic. On the morning when his execution was about to take place application was made to the Irish King's Bench for a writ of Habeas corpus. : The ground taken was that Wolfe Tone, not being a military person, was not subject to punishment by a court martial,

or, in effect that the officers who tried him were attempting illegally

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-FURNITURE of King's Bench at once. granted

Comprising -→→ the writ. When it is remembered that Wolle Tone's substantial guilt Black Wood Ware, Teak Drawing was admitted, that the Court was Room & Dining Room Furniture, Bed made up of Judges who detested Boom & Office Furniture, Ornaments, the rebels, and that in 1798 Ire-Cutlery Clocks, Electric... Table land was in the midst of a re- Lamps, Porcelain and Glass Ware, volutionary crisis, it will be ad- Brass & Aluminium Ware, Ico mitted that no more splendid as- Chests, Lineo, etc., etc. sertion of the supremacy of the law can be found than the pro- tection of Wolfe Tone by the Irish Bench**

INDEPENDENT JUDICIARY

in his private conduct by the or- dinary law of England. Even in periods of national emergency or revolutionary violence, as" distin- guished from war, the law of Eng-

and knows bo such thing as One necessary corollary to the martial law in the sense of sns- true effectiveness » of this Arst pension of ordinary law. When principle is that the judiciary once a state of actual war exists should be absolutely independent. the civil courts have no authority | A" Judge under the English system io call in question the actions of does not owe his position to any the military authorities, but it is political party nor does his

also

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for the civil courts to decide, if tenure of office depend on any TERMS-CASH on Delivery.

their jurisdiction is invoked, whe- | ther a state of war exists which

- ENGLISH LAW English law is unique in Europe in that it is a combination of the common law of the land. Statute law, and judge-made law: Every civilised country must of course have had a common law, a law embodying those customs, prin- ciples and precepts that through-fustines the application of martial out the ages had received the hall- mark of approval from the people whom they affected, but few coun- tries, if any, have retained as the basic part of their legal system a common law, in its emence age- old, but constantly flexible, ever re ceptive of new ideas and the necessities of changed conditions, until in its final stage of growth It received full recognition.

STATUTE „LAW

Statate law too la inevitable for all States possessing a legislative power, but in this respect also England has been fortunate. ixas- much as the legislative machinery has been and is the embodiment of a full and articulate democracy, so that it has been well said that an Act of Parliament is the act of every man in the Realm. In these days of universal adult suïrage one might go further and say the act of every man and woman in the Realm. No other great coun- try except the United States of America, which adopted and has been true to English Common Law, aas, with these initial advantages, as an integral part of its system that great and most valuable body of what is commonly called case law, by which is meant the inter-

Pretation placed on common law

and statute law by the Judges. whether it be to adapt the former to the requirements of modera conditions or to rid the latter of its ambiguities and mconsistencies, and to declare for all time what a statute means in contradistinc- tion to what its draughtsman and his parliamentary tritics thought it meant or intended to convey.

Such then are the main ingre- dients in what we know as Eng Eish law. Elastic and adaptable it

doubtless 15, free of restrictive codification and these high sound ing declarations of rights and lla- bilities to which Continental 578- tems are so prone.

are

law. The powers, such as they are, of the military authorities wase, and those of the civil courts resumed ipsofacto, with the termination of the state of war, and in the absence of an Act of Indemnity the civil courts may en- quire into the legality of anything done during the state of war.

*MARTIAL LAW"

party's remaining in power. He is appointed during His Majesty's pleasure, and is removable only for gross misconduct by joint address of both Houses of Parliament, and his duty is to held the scales of justice evenly between subject and subject, or even between Sovereign, and subject.

Alaw Library

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SUPREMACY OF LAW - I come now to the second of the palaciples on which as a founda-" tion rests the supremacy or law. Lord Halsbury in the case of That principle, on which I have Tilanko versus the Attorney Gen-already triedy touched in another eral for Natal puts it very plainly connection, is that of case law, or, when he says "It is by this time in other words, the power which a very familiar observation that from time immemorial the judges what is called martial law is no have exercised, to interpret the law at all The notion that mar-

common law and statute law, to tial law esta by reason of the declare Its true meaning, and to proclamation is an entire delusion, adapt it or shape it to the neces The right to administer force sites of the times or to the facts

of each case. against force in actual war does not depend upon the proclamation nowadays comprises hundreds of of martial law at all. It depends volumes of reported cases in each upon the question whether there of which may be found the ded- is war or not." In the event of ions of appeal courts or of in- dividual judges, and each of these serious rot or civil commotion troops may be called out to belo innumerable judgments turns on the construction of a part of a to quell the disturbance, and may be ordered to are on the crowd. statute or on the application of but if that order was unnecessary llar circumstances of the case some legal provision to the pecu-

in the circumstances, or it more; force was used than was actually under trial. It is impossible to required to restore order the per-

overestimate the value of case sons responsible will be liable to law, not only to the lawyer but prosecution in the ordinary courts. perhaps even more to the man in O

"Lord Bowen, a famous Judge, the street, for it is here that we puts it thus "Omcers and soldiers and first, the confident claim to, are under no special privileges and and later the recognition of, two subject to no special respons- great powers against the harshness bilities as regards this principle of the law or the arbitrary asser-TERMS: CASH ON DELIVERY.

tion of authoritý, These two of the law: A soldier, for the pur-

claims are the application of poses of establishing civil order, is only a citzen armed in a particu- Equity and the strict interpreta- lar manner. He cannot because

tion of Blatutes, including regula- tions and bylawa. he is a soldier excuse himself if without necessity he takes human Ufe." Even when military tri- bunals have been established it be

hoves them

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· GROWTH OF EQUITY - The growth of Equity as a branch of English substantive lawnglish Bench has always stend-

to be scrupulously is most interesting but it is out- careful to do nothing which they side the scope of this lecture. It fastly refused to interpret an Act are not plainly authorised to do, was originally the discretionary otherwise than by reference to ther for the ordinary courts of the law administered Dy the Lord words of the enactment. An Eng-

lish Judge takes no notice of any land, if their assistance is invoked, Chancellor to secure substantial TWO FECULIARITIES will not hesitate to pronounce on justice, to temper and relieve the thing which may have been said that even with such a legal sys-tary tribunal and to stand be

Why, you may well ask, is it the legality of any sets of a mill-hardships which might arise from in debate on the Bill, and ignores

a too strict and rigorous applies the ostensible object of the legis tem the administration of British tween them and any person ever tion of the principles of the lation and the mischier at which justice stands so high? Why is it whom they have no jurisdiction. Common Law, to extend reller it is intended to aim. He looks

to the words used and to nothing; that the Bench of Judges in re- I cannot better dilustrate this which that law could not give, garded with something akin to than by quoting from Professor and to give more ample and dis-. more, gives them their clear, and reverence, and that they, rather Dicey's admirable Introduction to tributive redress than ordinary natural intendment and refuses than. the Executive. Government, the Study of the Law of the Con-tribunals could afford. Through to allow a Statute to be invoked represent to the man in the street stitution. He has been discussing any vicissitudes it has grown, against any person umless by Dlain the August dignity of the Crown? the French system of the suspen- establishing its own benevolent and necessary implication that That question inevitably leads to ston of constitutional guarantees principles and laying down its person comes within its ambit the examination of two peculiar and proclamation of a state of maxims, almost entirely through One has only to think back to ities of the English constitution which, taken with another mani- testation of a matter which I have already touched on, are character- Istic of our daily life and thought, and yet lacking in practically every other legal and judicial sys tem: Taken together they make up what is shortly known as the Rule of Law, the subject which I have chosen for this talk.

The first of these principles is that the law is supreme.

NEAL FREEDOM From this principle Hows our real freedom in the eyes of the law, the subject's freedom of speech, freedom of meeting, and freedom of movement and the freedom of the press. No man

siege, and continues "Now this kind of martial law is in England utterly unknown to the constitu- tion. Soldiers may suppress a riot as they may resist an invasion they may night rebels just as they may fight foreign enemies, but they have no right under the law to inflict punishment for riot or re- belllon. During the effort to re- store peace the rebels may be law fully slaughtered in battle, or pri- soners may be shot, to prevent their escape, but any executian (Independently of military law) in ficted by a court martial is illegal and technically murder. Mothing better illustrates the noble energy with which judges have maintain ed the rule of regular law, even at

the medium of Judge-made law, some of the emergency war legis until now it is proud basst of every lation to be reminded of cases English Court of Record that it where the executive Government administers equity as well as law, was restrained by the Courts and that where law and equity from enforcing what Government conflict equity must prevail. Equity thought were rights vital to them on them by the shortly is a judicial device, to en- and conferred

Legislaturs, for the reason. that sure fair play for the underdog. = "CITIZENS". BAFEGUARDS

whatever Parliament intended to The strict Judicial interpretation do they failed to say so in clear of statutes is one of the greatest and unambiguous terms. In their safeguards which the citizen has scrutiny of regulations, bylaws and. Parliament the legislative sover other subsidiary form of legiala eignty of which is supreme, speaks tion the Courts have bean sven only through an Act of Parliament, more severe, and they will not give and this fact, greatly enhances effect to any such rule unless in the authority of the Judges. A addition to being within the Bill which has passed into powers of the law-making author- Statute at once becomes subject Ity. It is reasonable, by which is to judicial interpretation, and the (Continued of Page 7.):