9 May 2018

Statutory Subversion of Sovereignty

Britain is a common law country which is administratively governed and policed by consent. Due to the considerable growth of international commerce and powerful corporations, combined with the ever present desire of the few to rule the many, the commercial legal system known as Roman Civil Law, has expanded internationally and led to the existence of bijural (dual jurisdiction) systems of regulation in all the World's common law countries.

These two competing systems of regulation, the ancient and preeminent jurisdiction of common law and the subordinate statutory jurisdiction of Roman Civil Law, are in constant ideological conflict with each other. 

The primary and compelling reason for the United States’ Declaration of Independence was to eliminate the Roman civil legal system from the domestic law of the colonies due to its potential for conflict with freedom.

Briefly, and stated in general terms, the basic concepts of these two systems are diametrically opposed. In the Roman statutory legal system, the source of all regulations is the State or the personal ruler, it or he is sovereign. In the common law, the source of all law is the People, and they as a whole are sovereign.  The most prominent distinction between common law and the statutory legal system is that common laws are principle based and applied equally to all men, while the statutes of the Roman legal system are more prescriptive, can only hold jurisdiction over legally registered consenting persons and can be made to apply to specified parts of society.

The Roman civil legal system is recognised as lending itself towards an oligarchic state, whereas the true democracy enhancing Saxon common law promotes moral self-determination of the People by the People under a constitution created by the People.  The Roman civil legal system is a top-down authority, whereas the common law system is a people-up authority, with the People as the foundation of power.

During the centuries, these two systems have had an almost deadly rivalry for the control of society.  The Roman civil legal system and its fundamental concepts have been the instrument through which men of genius and self-serving ambition have set up and maintained despotisms through trading and money.  Whereas the common law, with its basic moral principles being the instrument through which men of equal genius but with love of mankind burning in their souls, have established and preserved liberty and free institutions.

In Britain, we have these two systems of regulation running simultaneously. In a finance based modern society, the existence of a civil legal system is arguably advantageous and necessary for the administrative management of some aspects of society, such as the road transport system for example.  However, with careful legal and historical analysis it can be observed that there has been a very slow introduction of a very considerable number of enactments of Parliament (Statutes and Acts) which have tipped the balance of power considerably towards the State over the People.   

In 1931, the Macmillan Committee was formed following the 1929 stock market crash to determine the root causes of the depressed economy of the United Kingdom.  Of relevance to this discussion, it is worth calling attention to the following passage from the 1931 Macmillan Report:-
The most distinctive indication of the change of outlook of the government of this country in recent years has been its growing preoccupation, irrespective of party, with the management of the life of the people.  A study of the Statute Book will show how profoundly the conception of the function of government has altered.  Parliament finds itself increasingly engaged in legislation which has for its conscious aim the regulation of the day-to-day affairs of the community, and now intervenes in matters formerly thought to be entirely outside its scope.  This new orientation has its dangers as well as its merits.  Between liberty and government there is an age-long conflict.  It is of vital importance that the new policy, while truly promoting liberty by securing better conditions of life for the people of this country, should not, in its zeal for interference, deprive them of their initiative and independence which are the nation’s most valuable assets.”

The introduction of many Statutes, such as the Offence Against Persons Act 1861 or the Theft Act 1968 as examples, have unnecessarily imported the details of common law crimes into statutory jurisdiction.  If punishment is administered as a result, without open and informed consent to this form of summary justice, there is a clear conflict with our common law Constitution.  Specifically, according to common law, all individuals are innocent until proven guilty and cannot be punished by fines or loss of liberties, except according to the judgment of a trial by a jury of their equals.  

In 1929, Lord Hewart of Bury, Lord Chief Justice of England, gave clear warnings of the capacity for the abuse of statutory power in his aptly titled book ‘The New Despotism’.  He discussed, among other things, how ministers of Parliament were making delegated legislation to install legal instruments of authoritarianism which were untouchable by Parliament or the Courts.  Chapter 4 of this book was appropriately titled “Administrative Lawlessness”.  This book unsurprisingly caused a constitutional and political storm.  It was rumoured that Whitehall considered an attempt to boycott the book.  

 The main points of criticism of Lord Hewart’s report were as follows: -

In response the British Government appointed the “Committee on Ministers’ Powers” to review the powers of ministers.

Lord Hewart’s complaints were substantially confirmed in the resulting report, which indicated that the powers conferred upon ministers by statute should be closely watched and strictly defined.   
Lord Hewart's spirited protest in The New Despotism against the tendency of the Government Departments to exercise not merely legislative but also judicial functions, was no doubt partly responsible for the appointment in 1929 of the exceptionally strong Committee on Ministers' Powers. His complaints are substantially confirmed in its Report, which indicates that the powers conferred upon Ministers by Statute should be closely watched and strictly defined. On the legislative side it is doubtless impossible for Parliament, overworked and hampered by its own procedure, not to leave the Departments the power of making rules and regulations concerning endless details. But Parliament could and should adopt at once the Committee's suggestion that a Standing Committee should examine every Government Bill and see that the rule-making function is duly circumscribed. It is even more important that Ministers should refrain from making judicial decisions, taking upon themselves the work of the Courts and often making the citizen feel that he is denied justice. The Committee's Report demands not merely close attention but immediate action. Departmental autocracy may have been less evident since the War, but it is still a serious menace to our liberties.” The Spectator, p.2, May 14, 1932.

Whilst Lord Hewart’s efforts may have stunted and slowed the administrative 'power-grabbing' process, it definitely did not stop the drive and rot of subversion from within. If you need proof of this fact, try gaining access to a properly convened common law court in Britain today.

If the constitutional practice of granting Royal Assent had been more vigorously scrutinised, the encroachment of statutory legislation into the jurisdiction of our common laws would not be permitted.  (Please see this post - Failed Constitutional Checks and Balances.)

This use of statutory legislation is not invalidating common law, as the common laws of the land exist in a higher jurisdiction, beyond the reach of parliamentary Statutes and Acts.  However, it is the growth in the appearance of the dominance of statutory jurisdiction that is having the deliberate effect of bureaucratically obscuring common law in a false appearance of obsolescence. The common law still exists and holds all its power for those who understand it and wish to access its protection.  It is only the People’s awareness which has been eroded.  Conversely it is through increased public awareness of this matter that some redress can be sought.

When viewing the global picture and observing the same pattern of growth of Roman Civil Law in other common law nations, the appearance of a background agenda emerges.  This practice appears to have a definite and very long-term purpose of subtly steering the direction of our future governance towards the dominance of State power, not just nationally but internationally, at the expense of the true common law democracy of the People.

Common law courts are being properly convened in Britain and other nations, not by the State but by the People.  Their success now depends upon the awareness and the will of the People to support them.  (www.commonlawcourt.com)