The Basic Factors in British Greatness
In the beginning God gave mankind a law and we are told that Abraham walked according to it(Gen 26:5). It was observed by the patriarchs of the East, as is shown by the fact that a contemporary of Abraham, Hammurabi, embodied it in his Code. In the Book of Jasher we are informed that Abraham learned it in the household of Noah and Shem, and that he introduced it into his father's house in Ur of the Chaldees.
Later this law was given by God to Moses who wrote it down in the Pentateuch. It was brought to Britain by the earliest settlers when they came from the Crimea area and was embodied in the original laws of Britain by King Brutus, about 1100 BC, after the arrival of himself and other Trojans.
Lord Chief Justice Coke wrote:
"The original laws of this land were composed of such elements as Brutus first selected from the ancient Greek and Trojan institutions".
A later king, Dunwall or Molmutius, re-codified the laws, about 450BC, and Coke, in his Origin of the Common Law of England wrote that:
"the Molmutius laws have always been regarded as the foundation and bulwark of British liberties".
Under the laws of Brutus every subject was as free as the King. The laws in force were cyfreithiau or "Common Rights". The usages of Britain could not be altered by any act of the Crown or National Convention. They were now considered as inalienable rights to which every Briton was born, and of which no human legislation could deprive him. One of these usages was:
"There are three things belonging to a man, from which no law can separate him - his wife, his children and the instruments of his calling, for no law can unman a man or uncall a calling".
Among the laws enacted by Molmutius is the following:
"Three things are indispensable to a true union of nations: sameness of laws, rights and language".
Later again the laws were codified by King Alfred, who quotes almost verbatim from Moses. The law was again incorporated in Magna Carta and later again in the Bill of Rights and Act of Settlement.
This very ancient system of law, for long known as the Common Law. has been retained throughout the ages by England alone. From a time centuries before Christ the Jews had been losing it under the influence of the Talmud and of subjection to other peoples. The East eventually became subject to Mohammedan Law. The Roman Civil Law came to hold sway everywhere in Europe, except in Britain.
A great difference between the Civil Law and the Common Law is that the Civil Law holds that every man - and every nation - is guilty until he has proved himself innocent, whereas the Common Law holds that every man - and every nation - is innocent until he has been proved to be guilty. This Common Law applies equally to all in the land from the Monarch to the lowest and has the effect of conferring legal democracy on the people. It is essentially the most righteous system of Law in the world, as has been stated by a number of eminent foreign Jurists.The Common Law of England has, of course, been spread about parts of the world during recent centuries where Britain has held sway.
This legal democracy based on our Common Law led to the evolution of our Constitution which, throughout the ages, until the last hundred years or so, was as described by Blackstone in his Commentaries on the Laws of England:
"In all tyrannical governments the supreme magistracy, or the right of both making and enforcing laws, is invested in one and the same man, or one and the same body of men; and whenever these powers are united together, there can be no public liberty. The magistrate may enact tyrannical laws and execute them in a tyrannical manner, since he is possessed in quality of dispenser of justice with all the power which he, as legislator, thinks proper to give himself. But where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power as may tend to the subversion of its own independence and therewith the liberty of the subject. With us, therefore, in England, this supreme power is divided into two branches: the legislative, to wit, the Parliament consisting of the King, Lords and Commons; and the other, the executive consisting of the King alone".
The duty of the members of the Commons was to keep vigilant watch to see that none of the King's Ministers in conducting government did anything that would infringe the liberty of the subject. Their power of sanction lay in the fact that they controlled the purse and could impeach any Minister before the House of Lords, if they thought such a course to be necessary in the interest of good government.
| This ancient and historic constitution based on the principles of English legal democracy under the Common Law has proved to be the finest and most enduring system of government in the civilised world and under it every Englishman had freedom of action. |
The resulting achievements of the British at home and abroad were remarkable.
This legal democracy rested on fundamental law, applied to the wide divergent social issues by the reasoned decisions of the lawyers in the courts of law, and the separation of the legislative and executive authorities. The whole system rested on the consent of the people and all its officials were responsible to the people through their elected representatives in the Commons.
The Civil Law must now be described. Roman law was the great achievement of Roman lawyers applying fundamental principles of the Twelve Tables to the problems of Roman social life.With the passing of Rome its authority ended but when re-discovered in the revival of learning a call arose for the Civil Law to be adopted in place of the native laws of the various countries of Europe.
Being of a highly technical character it could only be imposed by order of the ruler or, as in England, used as a source of legal reasoning and brought into native law as thought desirable. For its authority did not claim that it was based on fundamental legal principles but that it rested on the will of the ruler who could alter it as he thought fit. This doctrine became known as the Lex Regia and is described in the Institutes of Justinian as follows:
"That which seems good to the Emperor has all the force of law; for the people by the Lex Regia which is passed to confer on him his power makes over to him their whole power and authority. Therefore, whatever the Emperor ordains by rescript or decides in adjudging a cause or lays down by edict is unquestionably law"...
This idea of will and caprice as the sole source of law gave birth to the idea that rulers derived their absolute authority from God alone and not from the people. Outside England law ceased to be a subject for lawyers, who became mere civil servants applying the will of the ruler, and instead it became a subject of academic speculation on constitutional and legal principles in the universities. Under these theoretical conditions all sorts of ideas of political democracy took root and led to the ecclesiastical and political movements and revolutions of western civilisation which were aimed at the revocation of the lex Regia but failed, in that the result was merely to substitute the will of the people in place of the will of the ruler, i.e. one source of lawlessness for another.
The effect of the adoption of the Roman Civil code is the total destruction of all constitutional law and the subversion of all constitutional institutions. This was clearly shown in the case of Scotland which had for centuries been a Common Law country, with legal ideas and institutions similar to those of England. The Declaration of Arbroath had been the Magna Carta of Scotland, but in 1370 the Scottish Parliament gave up its power to an independent committee which became the College of Justice and which adopted Civil Law in Scotland although it was never authorised by a Scottish Parliament. The result was that the Scottish Parliament became a mere rubber stamp for the use of the King of Scotland and for any ruling factions that arose. The King became a legislative sovereign ruler, the source of all law. This is why there was so much trouble when the Stuarts mounted the English throne! They had been brought up in a constitution diametrically opposed to that of England and failed to adapt themselves to it.
The English opposition to the Civil Law ideas has been on record as long as seven hundred years ago in the writings of Bracton and his successors. Five hundred years ago Fortescue, in his De Laudibus Legem Angliae, made the contrast between Common Law and Civil Law kingships when he wrote:
"For the king of England is not able to change the laws of his kingdom at his pleasure, for he rules his people with a power not only regal but political. If his power over them were only regal then he might change the laws of his realm and charge his subjects with taxes and other burdens without their consent; and such is the dominion that the Civil Laws claim when they state: `the Prince's pleasure has the force of Law'. But the case is far otherwise with a king ruling his people politically, he can neither change the law without the consent of his subjects nor yet charge them with impositions against their will. Wherefore his people fairly and freely enjoy and occupy their own goods, being ruled by such laws as they themselves desire".
After nearly a century of trouble with the Stuarts and with Cromwell the English Constitution was again re-affirmed in the Act of Settlement and Bill of Rights.
The Act of Settlement had the following peroration:
"Whereas the laws of England are the birthright of the people thereof and all the Kings and Queens who ascend the throne of this realm ought to administer the government of the same according to the said laws and all the officers and ministers ought to serve them respectively according to the same; the said Lords spiritual and temporal and Commons do therefore humbly pray; That the laws and statutes of this realm for securing the established religion and the rights and liberties of the people thereof and all other laws and statutes of the same now in force, may be ratified and confirmed and the same are by His Majesty, by and with the advice and consent of the said Lords, spiritual and temporal and Commons and by the authority of the same, ratified and confirmed accordingly".
The principles thus enacted remain to this day the fundamental law of our constitution.
But after that we began to run into further trouble. Corruption set in as a result of a) political parties beginning to emerge; b) of the union with Scotland, a Civil Law country; c) and of having more kings brought up with Civil Law ideas.
The Union with Scotland had unfortunate results in that the House of Lords now had to deal with appeals from the Court of Session and it know nothing about Civil Law. The members began to lose interest in their legal duties through being unable to understand the new jurisprudence about which English judges were of little help. At the same time a rapid increase in the membership of the House began as a result of party political activities and this led to a great decrease on the part of the membership in their traditional pride in their duty to understand and judge in accordance with the Common Law. Eventually, by the Judicature Act of 1870 our supreme Court of Common Law was virtually suppressed.
The Act of Settlement contained the following vitally important clause relating to the purity of the representative principle:
"No person who has an office or place of profit under the King or receives a pension from the Crown shall be capable of serving as a member of the House of Commons".
George III had been brought up under the influence of his mother who was a German Princess from a Civil Law principality. She also took care to surround him with tutors and advisers holding similar conceptions of kingship. The result was that Scotsmen played a leading part in his education and in his early administrations, notably William Murray, as Solicitor General and later as Lord Chief Justice of England under the tile of Lord Mansfield. Now Mansfield, though an English judge was a Roman lawyer, seeing the foundation of jurisprudence to be the Roman Civil Law and not appreciating the merits of the Common Law or the love of public liberty displayed by many of its maxims.
By means of the power given to him by patronage, George III found himself able to achieve a personal rule with the support of the Commons as complete as Charles I had tried to establish in opposition to the House.
Under Lord Mansfield the entirely new conception was introduced that an absolute passive obedience was due to Parliament which must not in any way be questioned, much less, resisted, by the people. He insisted that:
"When the supreme power abdicates, the government is dissolved" and therefore that every means of coercion is justified to enforce authority.
As a result of these ideas Mansfield was partly responsible for the revolt of the American colonies and other troubles. Opposition to Mansfield's ideas was strongly expressed by men like Edmund Burke and William Pitt, Earl of Chatham, but in spite of this, we have now for all practical purposes a Civil Law set- up of government by the Prime Minister, who has usurped the Royal Prerogative power of patronage.
This unconstitutional state of affairs has been attained by the development of the PARTY SYSTEM and of what are known as Constitutional Conventions, although they are, in fact, unconstitutional and opposed to the fundamental law of the land.
It is interesting to note that when the American colonies obtained their independence they introduced a written constitution based on the Common Law of England with the President performing, more or less, the functions which the King should perform in our constitution. The result is that they have been able to keep their political parties under legal control and their legal democracy has been able to confine and control the will as expressed by political democracy.
As Sir Ivor Jennings writes in his Law and Constitution:
"Most of the `conventions' relate to the operation of the party system, which is merely an aspect of Cabinet Government. The principles governing the working of that system have never been formally recognised by Parliament or the Courts. So far as the Courts are concerned, they developed too late. The principles of constitutional law established by the courts recognise the constitution of the Revolution Settlement. Institutions and practices which have grown up since that time have not received formal recognition by the Courts and the rules relating to them are not part of the Common Law. Accordingly, the rules relating to the foundation and operation of the Cabinet, the relations between Prime minister and other Ministers, between Government and Opposition and many more are not in legislation nor in the Common Law nor in the law and custom of Parliament". The Party System is composed of private organisations under no legal or public control and by means of conventions it has destroyed all constitutional restraints. There is nothing democratic about it. What we really have now is party dictatorship.
"The great instrument of all these changes and what infuses a particular venom into all of them is Party. It is of no consequence what the principles of any party, or what their pretensions are; the spirit which actuates all parties is the same, the spirit of ambition, of self-interest, of oppression and treachery. This spirit entirely reverses all the principles which a benevolent nature has erected within us; All honesty, all equal justice, and even the ties of natural society, the natural affections. In a word, we have all seen...we have some of us felt such oppression from the Party Government as no other tyranny can parallel. Such men as Lord Brougham, John Stuart Mill and Lord Bryce, in England, and Washington and John Adams in America, also gave warnings against the party system.
The parties form an effective barrier between the people and their government. Under the Whip system the MP owes allegiance to the party, not to the people. The system crushes personal independence, a totalitarian not a democratic feature. It has led to the elimination of Independent MPs and the dominance of the Government over the Commons. Party rivalry is no guarantee of protection of our rights and liberties as the parties will always unite to keep out Independents and in defence of the powers of prerogatives which they have stolen from the people.
The Monarch is the centre of our whole constitutional system because in the Monarch is vested all the sovereignty of the British people and it is from this sovereignty that all legal authority is derived. By law the Sovereignty is in the Crown and cannot be delegated. It can only be effected by Act of Parliament. Under the law the Monarch has only one personal function, that of being controller of public patronage and the grant of office and honour. The appointment of executive office was only limited by the need to appoint a person/s who would command the confidence of the House of Commons.
But with the membership of the House of Commons under party discipline and control it was only necessary for party managers to inform the king that no confidence will be shown to anyone not acceptable to the majority party and the personal and most significant prerogative of the Crown - of appointments to public office - immediately passed to the party managers. This is without any Act of parliament having been passed. The Crown is now in the position, purely by illegal party rules, of having to treat as a command the very humble advice Ministers choose to give.
By the repeal of the clause in the Act of Settlement prohibiting members of the Commons from holding office and the usurpation of the Royal Prerogative, the party managers became free to nominate themselves to the highest offices, so that, by party action in the Commons, the sovereignty of the English Monarchy and therefore of the English people and the supremacy of English Law has been usurped and destroyed.
As Sir Lewis Namier said in 1952:
"The Prime Minister replaced the sovereign as actual head of the executive when the choice of Prime Minister no longer lay with the sovereign; the sovereign lost the choice when strongly organised disciplined parties came into existence; and party discipline depends primarily on the degree to which the member depends on the party for his seat".
For all practical purposes we now have a REPUBLIC with only the trappings of a monarchy and the whole process has been carried out in complete contempt of the ancient law of the land.
The experience of Cromwell and the Protectorate showed the central truth that our constitutional monarchy in its sovereign capacity was the guardian of the rights and liberties of all Englishmen and their free parliamentary institutions.
Now, Prime Ministers having usurped the Royal Prerogative, we have become for all practical purposes a nation of serfs.
We have seen how the Monarchy and the people, as represented in the Commons, have been eliminated from the Constitution. We have also seen earlier how the House of Lords ceased for all practical purposes to be our Supreme Court of Common Law, and this was probably one of the biggest factors leading to the present corruption of the constitution and the reception of the alien jurisprudence which made that corruption possible. But as one of the institutions of Parliament the House of Lords could have been a barrier to the usurpation of government by private political organisations, but when the Royal Prerogative as the fountain of honour came under the control of the party managers it was used for party ends to get representation in the Lords and to raise money for party funds by the sale of honours, thus bringing discredit on the House and destroying its constitutional power.
The predominantly hereditary character of the Lords changed with the party actions of creating so many peers. The threat of an unlimited creation of peers was used to force through the Parliament Act of 1911, thus destroying the co-ordinate independence of the Lords. ( We now see the "elective dicatorship" of Tony Blair poised to give the coup de grace to the Lords, who seem supine enough to give in. Dec.3rd1998. Ed.)
"By the constitution of a country is meant so much of its law, as relates to the designation and form of the legislature; the rights and functions of several parts of the legislative body; the constructions, officers, offices and jurisdiction of courts of justice. The constitution is one principle division, section of title or code of public laws distinguished from the rest only by the superior importance of the subject of which it treats. Therefore the terms Constitutional and Unconstitutional mean legal or illegal. The distinction and ideas, which these terms denote, are founded in the same authority with the law of the land on any other subject,and to be ascertained by the same enquiries. In England, the system of public jurisprudence is made up of Acts of Parliament, of decisions of Courts of Law, and of immemorial usages, consequently these are the principles of which the English Constitution consists; the sources from all our knowledge of its nature and limitations is to be deduced and the authorities to which all appeal ought to be made and by which every constitutional doubt and question can be alone decided..."
Thus we who pride ourselves on democracy have allowed ourselves to reach the stage of being despotically governed by a secret council, sworn to silence, for which there is no basis in English Law.
There is now nothing to safeguard the national interests and our national destiny is bound to party appointments made for party ends, regardless of the suitability of the men for the posts to which they are appointed. Besides being unconstitutional, the system is criminally insane. Under irresponsible and unsuitable ministers we naturally get an immense army of government officials who exercise despotic power in all sorts of ways and who are exempt from any public and personal responsibility to parliament. There is no room for Statesmanship or integrity. Everything is reduced to the sordid immediate consideration of deluding (or bribing .Ed.) the public into voting as required by the respective parties in order to retain or obtain the sweets of office.
The Party System denies the existence of fundamental law and this modern denial is associated with John Austin who repudiated English Common Law ideas and turned to aspects of Roman Civil Law. He got his ideas in Germany when the Philosophy of Totalitarian Dictatorship was being incubated.(Adolph Hitler took "democracy" or "majority rule" to its ultimate conclusion!! Ed)
Popular institutions such as Parliament can only retain their character if they are subject to a fundamental law which holds them true to their purpose and, if the law is destroyed, there is nothing to prevent them being corrupted into the instruments of despotism instead of being the guardians of law, as was clearly shown by the experience of Scotland, mentioned earlier.(see Lord Hailsham quote on front page of website)
Austin and Dicey supported the idea that the sovereignty of Parliament is, from the legal aspect under the British Constitution, absolute to the extent that is could even ignore the law of nature, although that law was a common feature of all civilised legal systems, and although, for example, the Treaty of Union between England and Scotland gives no hint of an absolutely sovereign legislature but throughout conveys the idea of a supreme Parliament bound by fundamental law. What the modern idea that there is no fundamental law means in constitutional matters is made quite clear by Professor Gough when he states:
"It was with the Benthamite principle of utility (although this itself was only natural law in a new form) accompanied by the introduction of Parliamentary reform, that modernity really began to made itself felt. then at last the relics of the idea of fundamental law gave way before the realisation that there was nothing to hinder the possessors of power from using it to promote their own interests. and that how to do so most successfully is the art of politics."
Obviously, no constitutional system of value can survive on these principles.
Dicey, when defining Parliamentary Sovereignty, was forced to do so in terms of constitutional and fundamental law. Parliament has no legal authority whatever unless it is conforming to law. We have a legal constitution based on the fundamental Common Law of England, laid down as described by Walter Paley above, but smothered by unwritten Conventions. Dicey confused the issue.
In law our constitution is as rigid as is the American with its written Constitution.
The statutory rules and orders now flooding our legal system have no validity, being only accepted as law in conformity with the Austinian doctrine, as stated by C H S Fifoot, in his English Law and its Background.
A sinister development has been the setting up of independent Courts of Law, known as Administrative Courts, which have developed a procedure incompatible with English legal procedure. They are based on Civil Law and not on Common Law principles and are designed to dodge the Statute of Northampton in which it is enacted that justice and right should be done regardless of the command of the government. They have no "day in court", no jury, no decisions governed by precedent; the judges are civil servants and the decisions given are not even those of the hearing judges. The judgements are not reasoned. Their purpose is to enforce the will of the rulers regardless of justice and right, or of the consent of the people. It is now being firmly established in our modern system that even in peace-time Britons have no fundamental or constitutional rights, such as were guaranteed forever by our fundamental law contained in Magna Carta, etc., and expressed in the Petition of Right in the following terms:"That all and singular the rights and liberties ascerted and claimed is the said declaration are the true, ancient and indubitable rights and liberties of the people of this Kingdom."
One example of loss of rights is that of the right to appeal to the Sovereign. If anyone now writes appealing to the Queen in connection with what is thought to be unjust treatment received at the hands of a government department, all that happens is that the bureaucracy surrounding the Queen, in accordance with modern "Convention", passes the petition to the department in question, where it is put in a pigeon-hole. Two examples: 3/4m. signatures to stop EC entry,1972 .Freedom Association re Treaty of Amsterdam,1998
The remarkable split-mindedness of our modern legal authorities is well illustrated by the fact that Sir Hartley - now Lord Shawcross - had to appeal to Common Law principles in order to make a case against the Germans during the shocking mockery of justice in the war crimes trials at Nuremberg, because it was not feasible to do so under Civil Law principles, but, at the same time, when feeling it to be necessary to praise at home the principles he had been condemning as criminal at Nuremberg, he could say to an English audience, as reported in The Times on May 13th 1946:
"Parliament is sovereign; it can make any laws. It could ordain that all blue-eyed babies should be destroyed at birth, but is has been recognised that it is no good passing laws unless you can be reasonably sure that, in the eventualities which they contemplate, those laws will be supported and can be enforced."
The above is pure Civil Law and amounts to the fact that in the opinion of such lawyers the Cabinet now has the legal power to do anything, not being bound by any considerations of natural or fundamental law. This is utter lawlessness and a fatal corruption of the soul of the British people.
As Burke said, the whole point about the English Constitution as it developed under law over the ages was that it was designed to produce good governors, whereas other constitutions were satisfied with trying to produce good subjects.
It is clear that if you have good governors you have a very good chance of having good subjects and it should now be obvious, judging by what has happened in Britain since the last war, that if you have bad governors you also get corrupted subjects.
It is hoped that enough has been said above to show that we now have a government based on a system entirely contrary to the ancient Constitution and fundamental law of the land and completely contrary to the dictates of common sense, in that it cannot fail to do other than result in the greatest possible corruption of the character of the people and the destruction of all proper national interests.
End of text by Wing Commander Young.
Since the former Dominions all obtained their system of government from England, it follows that their problems are identical and the function of Governor General in place of the Queen still has urgent validity, especially where the debate on the monarchy rages in Australia.
From the text we have uncovered the following totaliarian features:
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Centralisation of Power |
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Corruption of the 'Rule of Law' |
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Coercion |
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Bribery |
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Blackmail |
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Hypocrisy |
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Deception |
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Secrecy |
All these operate within the Parliamentary system of a supposedly free society.
- Editor.
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