2016/08/02

Three schools of interpretation

The English common law tradition has essentially three schools of interpretation: royalist. tory, and whig.

One point on which the schools did differ was whether a delegation of power included incidental powers of carrying such a delegation into execution. Originally, going back to before the 17th century, it did not. By 1776 the tories were tending to hold that it did, and the whigs were the ones taking a  more conservative position. It was that split that led in the Constitutional Convention to the inclusion of the Necessary and Proper Clause to expressly delegate incidental powers, to carry into execution the other express powers. However, from the legacy of this split we can find that such incidental powers were only to make a limited official effort, not to do whatever might be thought expedient to get a desired outcome.

Some Latin legal maxims shed some light on this question:
  1. Potestas stricte interpretatur. A power is strictly interpreted.
  2. In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.
  3. Delegata potestas non potest delegari. A delegated power cannot be delegated.
  4. Ubi jus ibi remedium. There is no right without a remedy.
Another point of division was on the role of the jury. The whig position, notably asserted by John Lilburne in his trial, was that the jury had the right and duty to judge the law, and could override the judge on a point of law in favor of the defendant. The tory position was that the jury lacked the duty to do so, although they begrudgingly conceded the jury had the power to do so, especially as all arguments on issues of law were then made to them as well as to the judges. The tory judges later asserted their position on this by having the lawyers make legal arguments to them in writing out of the hearing of the jury, which is still the practice today.

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