Edward Cook #1: (His History)

The speaker is discussing the history and origins of the common law system. They argue that the common law is not based on biblical law, as many Christians believe, but rather on a combination of German custom and Roman law. They trace the shift away from biblical law to the Papal Revolution of 1075, where the church split from secular rulers and began developing its own law codes. They also discuss the role of Edward Cook, a champion of the common law, who unfortunately based his rulings on reason rather than scripture. Overall, they argue that the common law system has become oppressive and divorced from its biblical origins. Welcome everybody to GreatBibleReset.com What we're doing here is studying the lives of a hundred of the classical authors over a two-year period to better understand where we got off the narrow path of obedience to God in our national life. Now the law of God is summarized in the Mosaic Covenant of Exodus 20 through 24 and God promises national and personal blessing for obedience to that law. So we know that somewhere in the past we got off onto a sidetrack but the question is where and when? Well some would take us back to the campus rebellions of the 1960s or 1970s but others say no, no, it's much earlier than that and they would take us back to Darwinism in the 1870s where we replaced natural selection as the creator in the place of God. But we're going to go all the way back to 1070 AD to find the ultimate root of our problems in the papal revolution of 1075. Now you're probably asking what in the world is the papal revolution of 1075? Well it's kind of like a tidal wave or a tsunami that starts with an earthquake in the middle of the ocean. It gradually builds up energy in size as it approaches land until it crashes with devastating force on the beach. So what was this tectonic shift that occurred in 1075 that would come crashing down on us today nine or ten centuries later? Well in 1075 Pope Hildebrand decreed freedom of the church and the king was no longer the head of the church and eligible to collect rent from church properties. And this resulted in the secular rulers splitting off from the church and beginning to develop a multitude of secular law codes. The law codes that we labor under today. Now the conventional approach to history is to divide history since the time of Christ into three eras or epics. Roman Empire or patristic era to about 500 AD. The Roman Empire fell in 476 AD and then from 500 to 1500 we have the medieval or papal period of about a thousand years and then the modern era starting in around 1400 or 1500 to the present day. But more and more historians are starting to recognize this seismic seismic event that occurred right in the middle of the Middle Ages. A number of related dramatic events occurred in the 11th century. First we had the east-west church split in 1054 then the all-important battle of Hastings in 1066 then the papal revolution of 1075 which lasted for almost 50 years of warfare between church and Holy Roman Empire and then the first crusade in 1096. Now these events were triggered and accompanied by dramatic philosophical and theological events as well. Alfred the Great and his immediate ancestors implemented a biblical law restitutionary legal system during the 900s but that was all wiped out by the battle of Hastings in 1066 and replaced by a retributory legal system in which a debt is owed to the state or the king for violations of his royal law rather than to God and the victim. And here's a quote from Law and Revolution the Formation of the Western legal tradition by Harold Berman. He said in Anglo-Saxon times the guilty party had to compensate the victim or his relatives but the Normans changed all that in cases of felony. If the defendant lost he was immediately hanged or mutilated usually by exoculation meaning blinding. His land was acceded to his feudal lord and his shadows were forfeited to the king. End of quote. And this was part of the crux of the royal law or the common law of Henry the second who's known as the father of the common law. So definitely not scripture. Now in spite of this Christians have this misconception or this myth that the common law is based on the Bible but emphatically is not. So what exactly is the common law anyway? Well even Harold Berman has a hard time defining it. Moreover he says the common law of England is usually said to be itself a customary law and it's not easy to know what this means. The English common law is usually traced back to the Assize of Corindon or other 12th century royal enactments and these constitute enacted law which is the opposite of customary law. What is meant no doubt is that the royal enactments established procedures in the royal courts for the enforcement of rules, principles, standards, concepts that took their meaning from custom and usage. The rules and principles were derived from informal, unwritten, unenacted laws unenacted forms and patterns of behavior that existed in the minds of people in the consciousness of the community. That's common law. And it is this historical expansion of royal jurisdiction in the reign of Henry II that marks the origin of the English common law. Although the phrase English common law is itself of later origin and it was also called the law of the land which was applicable locally. The Roman law of Justinian was also called the just commune since it was viewed as a body of theoretical principles and rules valid everywhere and applied to everything. The critical point was that Henry II created the English common law by legislation establishing judicial remedies in the royal courts. Magna Carta refers to the law of the land but nowhere to biblical law. Edward Cook was a great defender of the common law during the reign of the tyrant James I of England. James tried to use the system of church courts called the High Commission to enforce his theory of divine right of kings which stated that since a king was ordained by God, he's accountable to nobody else but God himself, no other man on earth and even to the law itself. As Lord Chancellor, Cook upheld the rights of Englishmen under the older system of common law. Sadly, however, his rulings were based on natural law and reason rather than the scroll of biblical law as we've noted. So Edward Cook lived from 1552 to 1634. He was an English jurist and champion of the common law. He resisted attempts of Elizabeth I, James I and Charles I to overrule that law. He wrote Institutes of the Laws of England in 1628 and reports. The latter consisted primarily of notes taken during cases he had heard from 1600 to 1615. Cook was also the primary author of the Petition of Right in 1628. This was the most forthright statement of English freedom and due process of law to that point. He was a father of the Whig outlook on history. Now there was quite a stir in London when Cook married the highborn Lady Elizabeth Hatton. Cook had risen from very humble origins. One day he laid a hand on his wife's stomach and felt a baby stirring. What, he exclaimed, flesh in a pot? To which the lady reportedly responded, yes, or else I would never have married a cook. Perhaps it was such simple pleasures that prompted Cook to rule, quote, the house of everyone is to him as his castle and fortress, as well as his defense against injury and violence as for his repose, end of quote. European law can be traced in large measure to Justinian's legal code. On the other hand, we're often told that English common law allegedly had its roots in the biblical law code of Alfred the Great. Now you may recall, Alfred was the Anglo-Saxon ruler of England from 871 to 899 and was definitely headed in the right direction. In a dramatic reversal, Alfred defeated the Viking invaders and led them en masse to Christ. He then ruled South England jointly with the defeated Viking chieftain Guthrum. They ruled as Christian princes under the law of God. However, after the Battle of Hastings, German common, German custom and Roman law replaced the influence of Alfred. The circuit writing and secular King Henry II became known as the father of the common law. Later, a new allegedly biblical legal theory gained ascendancy, especially in the 16th and 17th centuries, and that was the divine right of kings, most ably expounded by Richard Hooker, who we looked at a week or so ago. Now, Edward Cook, Lord Chancellor for James I, tried to restore the older Anglo-Saxon view of the common law. But as noted, the biblical basis in legal theory had begun to fade long before and was not mentioned even in Magna Carta in 1215. Magna Carta was signed under duress by King John in the Meadow of Runnymede in 1215. English common law is thought by many Christians to trace its origin to the biblical law code of Alfred the Great in the 9th and 10th century AD, as we've noted. But after the Roman invasion of 1066, a new legal theory gained prominence, which was the divine right of kings, which was the practice of some 14 of the Plantagenet kings, five Tudors and four Stuarts. This supposedly biblical theory was expounded most eloquently by its ablest defender, Richard Hooker. When the theory quite naturally took an oppressive turn in the 17th century, early 1600s, it ran into a common law roadblock erected by Edward Cook. As Lord Chancellor, he repeatedly overturned high commission rulings in James I ecclesiastical courts. While Cook upheld the common rights of Englishmen, he unfortunately applied the test of reasonableness rather than scripture to his rulings. And because of this, Cook's policy of judicial review eventually degenerated into a form of tyranny in the American colonies. Cook upheld the common rights of free Englishmen. And sadly, as we have noted, he was wielding the blunt instrument of common law rather than the Bible. For in their selection of what customs to recognize, the judges employed the test of reasonableness rather than scripture. Thus, right reason replaced the Bible as the basis for law over a long period of time. Cook set a precedent for judicial review of constitutional issues. This was carried over into the colonies by John Marshall under the U.S. Constitution. But the link to the Bible was now obscure or obliterated. As a result, judicial review has become more and more oppressive. Well, thank you for listening today. Please comment, like, and subscribe and visit Kingsway Classical Academy or bloomersalive.com, our sponsors, where 15% of all purchases go towards scholarships for low-income families at the academy.