This article is mirrored from Graham Moore’s website:
Understanding Lawful Rebellion
By
John Hurst
The Magna Carta Society
Introduction
1. Understanding (“Interpreting”) common law statutes such as Magna Carta and Acts of Parliament is governed by certain common law rules and the Interpretation Act 1978. So is understanding the decisions (“Judgements”) made by the Courts.
2. Knowing something of these rules will go a long way towards knowing what “Lawful Rebellion” is and how it was invoked in 2001 by the Magna Carta Society.
3. This extract from one of the leading authors on interpretation explain how statutes should be interpreted, not on their own, but a part of the whole body of the law:
Implied ancillary rules
‘I end this opening chapter by pointing out that elements in the legal thrust of an enactment may be left unexpressed by the drafter. Often, they are to be treated as imported because of a general presumption based on the nature of legislation. This is that, unless the contrary intention appears, an enactment by implication imports any principle or rule of law (whether statutory or non-statutory) which prevails in the territory to which the enactment extends and is relevant to its operation in that territory. This may be referred to as an ‘implied ancillary rule’.
An Act of Parliament is not a statement in a vacuum. Parliament intends its Act to be read and applied within the context of the existing, corpus juris, or body of law …
Page 99. F.A.R. Bennion. Understanding Common Law Legislation. Oxford University Press 2009.
4. Here are parts of the Interpretation Act 1978 on these topics:
s.3 Judicial notice.
Every Act is a public Act to be judicially noticed as such, unless the contrary is expressly provided by the Act …
s.12 Continuity of powers and duties.
(1) Where an Act confers a power or imposes a duty it is implied, unless the contrary intention appears, that the power may be exercised, or the duty is to be performed, from time to time as occasion requires.
(2) Where an Act confers a power or imposes a duty on the holder of an office as such, it is implied, unless the contrary intention appears, that the power may be exercised, or the duty is to be performed, by the holder for the time being of the office …
https://www.legislation.gov.uk/ukpga/1978/30/contents
5. Here is an important caveat on s.3 to this Act which illustrates to point that the whole Act must be read in order to properly understand it, it only applies to all Acts passed after 1850 and 1889 …
SCHEDULE 2 Application of Act to Existing Enactments
https://www.legislation.gov.uk/ukpga/1978/30/schedule/2
6. This extract explains from Bennion covers the authority of the Courts to determine what the law is in any given Judgement:
“ It is the function of the court alone authoritatively to declare the legal meaning of an enactment. If anyone else, such as its drafter or the politician promoting it, purports to lay down what the legal meaning is the court may react adversely, regarding this as an encroachment on its constitutional sphere. Lord Wilberforce stated the classic position:
‘Legislation in England is passed by Parliament, and put in the form of written words. This legislation is given legal effect on subjects by virtue of judicial decision, and it is the function of the courts to say what the application of words to particular cases or particular individuals is to be. This power, which has been devolved on the judges from the earliest times, is an essential part of the constitutional process by which subjects are brought under the rule of law—as distinct from the rule of the king or the rule of Parliament; and it would be a degradation of that process if the courts were to be merely a reflecting mirror of what some other interpretation agency might say …
Page 80. Bennion 2009.
7. As to how a properly directed Court makes its decision, having heard evidence from the parties in sworn statements or affidavits, we need to know what the rules of “Ratio decidendi”, “Obiter” and “Stare decisis” are:
Ratio decidendi
Ratio decidendi (Latin plural rationes decidendi) is a Latin phrase meaning “the reason” or “the rationale for the decision”. The ratio decidendi is “the point in a case that determines the judgement”[1] or “the principle that the case establishes”.[2]
In other words, ratio decidendi is a legal rule derived from, and consistent with, those parts of legal reasoning within a judgment on which the outcome of the case depends.It is a legal phrase which refers to the legal, moral, political and social principles used by a court to compose the rationale of a particular judgment. Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on courts of lower and later jurisdiction—through the doctrine of stare decisis …
8. Having got the interpretation right, what can we say about the authority of Magna Carta today? Unusually for the BBC, they got it about right in this Horrible History sketch:
9. Regarding Article 61 of Magna Carta, treaties have Articles, it contains two separate Ratio decidendi.
10. The first is the subjects remedy by petitioning the House of Lords to form a Barons Committee to pass Judgement on the Sovereign.
11. The second is contained in the last sentence which confirms that “The King can do no wrong” and if he does the Courts will take no notice of it because the wrong deed is void in law. This is the basis of what is today known as “Judicial Review”
12. This presentation covers the activation of a Barons Committee in 2001:
Note that the obligations that all loyal subjects have are defined in the Article. It is a rule of interpretation known as Expressio unius est exclusio alterius that a given definition excludes all others:
13. Here is what Article 61 of Magna Carta states:
Those five–and–twenty barons shall, together with the community of the whole land, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; …
14. The Constitutionalists, of whom I am a member confine our resistance to what is specified in the Article.
15. The “Freemen on the Land” interpret Article 61 to in addition allow a general rejection of the authority of all Acts of Parliament.
16. I invite any proponent of the Freeman Community to put their case.
John Hurst. The Magna Carta Society.
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