Pollock on “our lady” the common law and her devoted servants (1911)

About this Quotation:

Pollock makes an interesting point about the law being “blind”. In his view the English common law is indifferent to the outward form a political community may take, whether it is democratic or aristocratic, or based upon “civic liberty” or not. He seems to believe that there is no one path which leads to a society of law and that the future may produce other forms of organizing society which will also satisfy the need for law which have not yet imagined by men. The sole criterion in his mind for the making of good law is that the judges of law in the courts be “fearless and independent” of any outside influence such as the “pleasure of rulers” or seeking “popular favour”. In an interesting passage he is not convinced that appeals to a “higher spiritual authority” produces better law than judge-made law. He dismisses the efforts of the Puritans in North America to infuse a religious dimension into the law as “spurious” and accuses them of introducing a “constant Puritanic and Judaizing bias”. It took the Founding Fathers of the American constitution “who, in the very act of repudiating allegiance to king and parliament, enthroned our lady the Common Law on the western shores of the Atlantic.”

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11 July, 2011


Pollock on “our lady” the common law and her devoted servants (1911)

The great historian of English law Sir Frederick Pollock (1845–1937) concluded his popular lectures on “the genius of the common law” with the following statement about the need for impartial interpreters of the common law regardless of the outward form which government may take. He calls the common law “Our Lady” and believes that she and her servants will be able to keep the enemy of liberty from coming “within the gate”:

There seems to be no ground for affirming that the Common Law is especially attached to any one form of government, or is incompatible with any that makes substantial provision for civic liberty and the representation of the governed. Those fundamental conditions may be satisfied in many ways, perhaps in ways not yet found out. It might be hard to say how much of our lady’s house has been rebuilt, but it is sure that the fashion of the furniture has been changed many times. … Our lady does not, in truth, care much by what name the chief magistrate is called, whether his office is elective or hereditary, whether he has as much active discretion of his own as the President of the United States or as little as a modern King of Great Britain. What she does care for is that government, whatever its forms, shall be lawful and not arbitrary; that it shall have the essential attribute for which Chief Justice Fortescue’s word was ‘political’ as far back as the fifteenth century. She looks for trusty servants who will stand by her in the day of need. She demands fearless and independent judges drawn from a fearless and independent Bar, men who will not swerve from the straight path to the right hand for any pleasure of rulers, be they aristocratic or democratic, nor be drawn aside to the left by the more insidious temptation of finding popular favour in opposition. If our lady’s servants are not of that spirit, all the learning of all their books will not save them from disgrace or her realm from ruin. If they are, we shall never see the enemy whom she and they will be afraid to speak with in the gate.

The full passage from which this quotation was taken can be be viewed below (front page quote in bold):

An acuter kind of conflict may arise when obedience is refused to the secular magistrate in the name of a higher spiritual authority. Conscience, right or wrong, can be a very stubborn thing, and has been known to wear out the law in minor matters, as in the case of the Quakers. Not that the Common Law is very tolerant of conscientious pretenders to a special revelation; as witness the anecdote, apocryphal though it may be, concerning Chief Justice Holt and a certain prophet. We speak here, however, of the more serious case where the dissenting conscience appeals to an external and visible authority having a law of its own. Here we have not the State on one side and the individual on the other, but independent powers face to face, with the regular incidents (mostly but not always short of physical combat) of friendly or unfriendly relations, diplomatic discussion, treaties, compromises, and so forth. During the Middle Ages our lady the Common Law was in frequent strife with the more ancient and, at those times, more highly organized empire of the Church and the Canon Law. Now and then the strife might be said to be for independence rather than for any privilege or particular exclusive jurisdiction. Boundary questions, however, must come up whenever two or more jurisdictions exist at the same time and place and are capable of overlapping; and their occurrence, though it may imperil peace, does not involve in itself any state of normal hostility. Far more deliberate, though much less known to posterity, was the attack made on the Common Law in America not by Popes or bishops but by Puritans. The settlers of Massachusetts refused to admit any authority but that of their own enactments, tempered by a general deference to ‘God’s word,’ meaning thereby the text of the Mosaic law: not the system of the great medieval Rabbis, but the letter of the Pentateuch interpreted after their own fashion. Such was the prevailing temper, down to the eighteenth century, throughout the New England States, and the zeal of Massachusetts was equalled or even exceeded elsewhere (I do not, of course, refer to the spurious ‘Blue Laws’ of Connecticut; the genuine examples are sufficient). Besides the constant Puritanic or Judaizing bias, these early colonial ordinances exhibit curious reversions to archaic ideas and classification. Outside New England there was not the same downright aversion to English law and procedure, but it would be hard to find even in Virginia or the Carolinas, within the same period, any received presumption in favour of the Common Law being the groundwork of local jurisprudence. It may seem a paradox, but it is a fact which research more and more tends to confirm, that it was none of the Pilgrim Fathers, but the Fathers of the Constitution, who, in the very act of repudiating allegiance to king and parliament, enthroned our lady the Common Law on the western shores of the Atlantic.