This article is mirrored from here:
https://learncommonlaw.today/index.php/john-hurst-section
I haven’t been able to find where it was originally published.
It was in 3 parts but I have condensed it into one article.
Commentary on Relevant Legal Developments Since 2001
The authority of the Bill of Rights (and therefore the principles from Magna Carta which it was based upon) has been confirmed by the Courts since 2001. Here are two examples.
The “Metric Martyr” judgment (Neutral Citation Number: [2002] EWHC 195 (Admin)) identified our constitutional statutes
“62. We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It may be there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute.
Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature’s actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper v Hart [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute…”.
https://www.bailii.org/ew/cases/EWHC/Admin/2002/195.html
Note that in this Judgement the terms “Statutes” is used. Peace treaties such as Magna Carta and the Declaration of Rights are contracts between The Sovereign and the people as will be described below.
It is necessary for Parliament to pass Acts to give treaties the force of statute law. Repeal of those Acts, in whole or in part and by implication or otherwise, may constitute breaches of the parent treaty. This was the nature of the grievances that were put to the Barons Committee in 2000.
It is because The Sovereign is a member of the House of Lords that that institution is entitled to pass Judgement on Her.
The effect of the Bill of Rights was confirmed by the Supreme Court in 2017. Note that the authority of that institution is inconsistent with the law of the Constitution. The final Court of appeal was traditionally the House of Lords.
By the Common Law there is a maxim that “No man may sit in judgement of his own cause”. For that reason, neither of those institutions has the authority to settle a dispute between them. That is the reason why our wise ancestors relied on a “Constitutional Convention” as the final arbiter in the event of a dispute.
Nevertheless, here is the “Brexit” Judgement (Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5 (24 January 2017):
“Para 44. In the early 17th century Case of Proclamations (1610) 12 Co Rep 74, Sir Edward Coke CJ said that “the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm”. Although this statement may have been controversial at the time, it had become firmly established by the end of that century. In England and Wales, the Bill of Rights 1688 confirmed that “the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegall” and that “the pretended power of dispensing with laws or the execution of laws by regall authoritie as it hath beene assumed and exercised of late is illegall”…”.
The entry on the citation of the Bill of Rights in the 2010 edition of Halsbury’s Laws of England says this:
Halsbury’s Laws of England/CONSTITUTIONAL LAW AND HUMAN RIGHTS (VOLUME 8(2) (REISSUE))/1. INTRODUCTION: BASIC PRINCIPLES OF THE CONSTITUTION OF THE UNITED KINGDOM/(7) THE DESCENT OF THE CROWN AND PROVISIONS SECURING THE SUCCESSION/(i) Descent of the Crown/35. Parliament’s power to limit descent of the Crown.
35. Parliament’s power to limit descent of the Crown.
The Bill of Rights, being thus confirmed by a Parliament summoned in the constitutional manner, was formally credited with the force of a legal statute, and appears upon the statute books as such (see infra). For a full discussion of the logical difficulties involved in the irregular procedure employed see Maitland Constitutional History of England (1908) pp 283-285.
Here is the extract from Maitland that is referred to:
“Now certainly it was very difficult for any lawyer to argue that there had not been a revolution. Those who conducted the revolution sought, and we may well say were wise in seeking, to make the revolution look as small as possible, to make it as like a legal proceeding, as by any stretch of ingenuity it could be made. But to make it out to be a perfectly legal act seems impossible. Had it failed, those who attempted it would have suffered as traitors, and I do not think that any lawyer can maintain that their execution would have been unlawful. The convention hit upon the word * abdicated’ as expressing James’s action, and, according to the established legal reckoning, he abdicated on the II December, 1688, the day on which he dropped the great seal into the Thames. From that day until the day when William and Mary accepted the crown, 13 February, 1689, there was no king of England. Possibly the convention would better have expressed the truth if, like the parliament of Scotland, it had boldly said that James had forfeited the crown. But put it either way, it is difficult for a lawyer to regard the Convention Parliament as a lawfully constituted assembly. By whom was it summoned ? Not by a king of England, but by a Prince of Orange. Even if we go back three centuries we find no precedent. The parliaments of 1327 and of 1399 were summoned by writs in the king’s name under the great seal. Grant that parliament may depose a king, James was not deposed by parliament; grant that parliament may elect a king, William and Mary were not elected by parliament. If when the convention met it was no parliament, its own act could not turn it into a parliament. The act which declares it to be a parliament depends for its validity on the assent of William and Mary. The validity of that assent depends on their being king and queen ; but how do they come to be king and queen? Indeed this statute very forcibly brings out the difficulty—an incurable defect. So again, as to the confirming statute of 1690.
Do not think that I am arguing for the Jacobite cause. I am only endeavouring to show you how much purely legal strength that cause had. It seems to me that we must treat the Revolution as a revolution, a very necessary and wisely conducted revolution, but still a revolution. We cannot work it into our constitutional law…”.
In other words, to overthrow the settlement of 1688 would require the restoration of the Stuart line in defiance of the verdict by “Trial by battle”. When the Stuart line usurped their authority in claiming that the “Divine Right of Kings” allowed them to disarm their opponents they were lawfully overthrown.
These passages from Blackstone confirm that the settlement of The Crown on the present line was lawful and that there is no authority to disregard the common law. They begin with an account of how the peace treaty known as Magna Carta was settled, it being the precedent for events in 1688 and 2001:
“A metrical chronicle (4) records the threat to depose the King, (John) unless he fully amended the law and furnished undoubted guarantees for a lasting peace. On 5th May, the barons went through the ceremony of diffidatio, or formal renunciation of allegiance,(1) a recognised feudal right, and not involving treason if justified by events and properly intimated to the overlord.(2)
(4) Chronica de Mailros, sub anno 1215.1. Blackstone, Great Charter, p. xiii, citing Annals of Dunstable (p. 43), says they were absolved at Wallingford by a Canon of Durham. 2. Cf. Adams, Origin, 181 n.; 306, 312; cf. also infra under c. 61.
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
Here is Blackstone’s account in his Commentaries on the Laws of England:
“On 5 May, the barons, having chosen as their leader, Robert Fitzwalter, acclaimed by them as “Marshal of the Army of God and Holy Church,” performed the solemn feudal ceremony of diffidatio, or renunciation of their fealty and homage, a formality indispensable before vassals could, without infamy, wage war upon their feudal overlord. Absolved from their allegiance at Wallingford by a Canon of Durham, they marched on London, on the attitude of which all eyes now turned with solicitude. When the great city opened her gates to the insurgents, setting an example to be immediately followed by other towns, she practically made the attainment of the Great Charter secure. The Mayor of London thus takes an honoured place beside the Archbishop of Canterbury among the band of patriots to whose initiative England owes her Charter of Liberties. John, deserted on all sides, and with an Exchequer too empty for the effective employment of mercenary armies, agreed to a conference on the 11th day of June, a date afterwards postponed till the 15th of the same month.
It was on 15 June, then, in the year 1215, that the conference began between John, supported by a slender following of half-hearted magnates, upon the one side, and the mail-clad barons, backed by a multitude of determined and well-armed knights, upon the other. The conference lasted for eight days, from Monday of one week till Tuesday of the next. On Monday the 15th, John set seal to the demands presented to him by the barons, accepting every one of their forty-eight “Articles,” with the additional “Forma Securitatis” or executive clause, vesting in twenty-five of their number full authority to constrain King John by force to observe its provisions…”.
Blackstone, Great Charter, p. Xiii.
Here is confirmation from Blackstone’s Commentaries that “Right of War” sets lawful title to The Crown and the limitations which bind the King:
“THIS conquest then by William of Normandy was, like that of Canute before, a forcible transfer of the crown of England into a new family: but, the crown being so transferred, all the inherent properties of the crown were with it transferred also. For, the victory obtained at Hastings not being a victory over the nation collectively, but only over the person of Harold, the only right that the conqueror could pretend to acquire thereby, was the right to possess the crown of England, not to alter the nature of the government. And therefore, as the English laws still remained in force, he must necessarily take the crown subject to those laws, and with all it’s inherent properties; the first and principal of which was it’s descendibility. Here then we must drop our race of Saxon kings, at least for a while, and derive our descents from William the conqueror as from a new stock, who acquired by right of war (such as it is, yet still the dernier resort of kings) a strong and undisputed title to the inheritable crown of England…”.
Blackstone’s Commentaries on the Laws of England
Book the First : Chapter the Third : Of the King and His Title P 193.
I respectfully remind you of the Oath of Allegiance:
“Oath of allegiance
“I, _________ , do swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors, according to law.”
The principles enunciated by Blackstone are the reasons why you swore to the present line, heirs and successors according to law.
For the avoidance of doubt I must point out what should be obvious, no attempt to set aside the settlement of 1688 and apply a different system of law should be entertained. To do so would comprise an offence of perjury, breach of an Oath being prima facie evidence of dishonesty when it was taken.
These principles have been confirmed by the Courts:
“‘No practice or custom, however prolonged or however acquiesced in on the part of the subject could be relied on by the Crown as justifying an infringement of the provisions of the unrepealed Bill of Rights…”.
Bowles v. Bank of England (1912).
Having had 30 years’ experience as a police constable at the bottom end of the food chain doing my best to maintain order by consent, and as the bearer of a Saxon family name, I can confidently state that the present establishment would do well to remember Kipling’s advice, or they will be replaced:
Norman and Saxon
A.D. 11.00
“My son,” said the Norman Baron, “I am dying, and you will be heir
To all the broad acres in England that William gave me for share
When he conquered the Saxon at Hastings, and a nice little handful it is.
But before you go over to rule it I want you to understand this:–“The Saxon is not like us Normans. His manners are not so polite.
But he never means anything serious till he talks about justice and right.
When he stands like an ox in the furrow – with his sullen set eyes on your own,
And grumbles, ‘This isn’t fair dealing,’ my son, leave the Saxon alone.“You can horsewhip your Gascony archers, or torture your Picardy spears;
But don’t try that game on the Saxon; you’ll have the whole brood round your ears.
From the richest old Thane in the county to the poorest chained serf in the field,
They’ll be at you and on you like hornets, and, if you are wise, you will yield.“But first you must master their language, their dialect, proverbs and songs.
Don’t trust any clerk to interpret when they come with the tale of their wrongs.
Let them know that you know what they’re saying; let them feel that you know what to say.
Yes, even when you want to go hunting, hear ’em out if it takes you all day.They’ll drink every hour of the daylight and poach every hour of the dark.
It’s the sport not the rabbits they’re after (we’ve plenty of game in the park).
Don’t hang them or cut off their fingers. That’s wasteful as well as unkind,
For a hard-bitten, South-country poacher makes the best man- at-arms you can find.“Appear with your wife and the children at their weddings and funerals and feasts.
Be polite but not friendly to Bishops; be good to all poor parish priests.
Say ‘we,’ ‘us’ and ‘ours’ when you’re talking, instead of ‘you fellows’ and ‘I.’
Don’t ride over seeds; keep your temper; and never you tell ’em a lie!”
The Secret People 